[Title 32 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2014 Edition]
[From the U.S. Government Publishing Office]



[[Page i]]

          

          Title 32

National Defense


________________________

Parts 191 to 399

                         Revised as of July 1, 2014

          Containing a codification of documents of general 
          applicability and future effect

          As of July 1, 2014
                    Published by the Office of the Federal Register 
                    National Archives and Records Administration as 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)                                                5
  Finding Aids:
      Table of CFR Titles and Chapters........................    1105
      Alphabetical List of Agencies Appearing in the CFR......    1125
      List of CFR Sections Affected...........................    1135

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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

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
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Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
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Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

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Code a note has been inserted to reflect the future effective date. In 
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states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

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

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
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PAST PROVISIONS OF THE CODE

    Provisions of the Code that are no longer in force and effect as of 
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Code users may find the text of provisions in effect on any given date 
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previous annual editions of the LSA. For changes to the Code prior to 
2001, consult the List of CFR Sections Affected compilations, published 
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.

``[RESERVED]'' TERMINOLOGY

    The term ``[Reserved]'' is used as a place holder within the Code of 
Federal Regulations. An agency may add regulatory information at a 
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used 
editorially to indicate that a portion of the CFR was left vacant and 
not accidentally dropped due to a printing or computer error.

INCORPORATION BY REFERENCE

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This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
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    (c) The incorporating document is drafted and submitted for 
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CFR INDEXES AND TABULAR GUIDES

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and Finding Aids. This volume contains the Parallel Table of Authorities 
and Rules. A list of CFR titles, chapters, subchapters, and parts and an 
alphabetical list of agencies publishing in the CFR are also included in 
this volume.

[[Page vii]]

    An index to the text of ``Title 3--The President'' is carried within 
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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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INQUIRIES

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    The e-CFR is a regularly updated, unofficial editorial compilation 
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available at www.ecfr.gov.

    Charles A. Barth,
    Director,
    Office of the Federal Register.
    July 1, 2014.







[[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, 2014.

    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 part 800 to end.

    For this volume, Bonnie Fritts was Chief Editor. The Code of Federal 
Regulations publication program is under the direction of John Hyrum 
Martinez, assisted by Ann Worley.

[[Page 1]]



                       TITLE 32--NATIONAL DEFENSE




                 (This volume contains parts 191 to 399)

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

              SUBTITLE A--Department of Defense (Continued)

                                                                    Part

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

[[Page 3]]

              Subtitle A--Department of Defense (Continued)

[[Page 5]]



        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
197             Historical research in the files of the 
                    Office of the Secretary of Defense (OSD)          55
199             Civilian Health and Medical Program of the 
                    Uniformed Services (CHAMPUS)............          63
202             Restoration Advisory Boards.................         381
203             Technical Assistance for Public 
                    Participation (TAPP) in defense 
                    environmental restoration activities....         388
204             User fees...................................         398
205             End Use Certificates (EUCs).................         404
206             National Security Education Program (NSEP) 
                    grants to institutions of higher 
                    education...............................         406
207-209         [Reserved]

210             Enforcement of State traffic laws on DoD 
                    installations...........................         412
211             Mission compatibility evaluation process....         413
212             Procedures and support for non-Federal 
                    entities authorized to operate on 
                    Department of Defense (DoD) 
                    installations...........................         419
213             Support for non-Federal entities authorized 
                    to operate on DoD installations.........         423
215             Employment of military resources in the 
                    event of civil disturbances.............         425

[[Page 6]]

216             Military recruiting and Reserve Officer 
                    Training Corps Program access to 
                    institutions of higher education........         432
218             Guidance for the determination and reporting 
                    of nuclear radiation dose for DoD 
                    participants in the atmospheric nuclear 
                    test program (1945-1962)................         440
219             Protection of human subjects................         445
220             Collection from third party payers of 
                    reasonable charges for healthcare 
                    services................................         456
222             DOD Mandatory Declassification Review (MDR) 
                    Program.................................         468
223             DOD Unclassified Controlled Nuclear 
                    Information (UCNI)......................         472
226             Shelter for the homeless....................         479
228             Security Protective Force...................         481
229             Protection of archaeological resources: 
                    Uniform regulations.....................         484
230             Financial institutions on DoD installations.         497
231             Procedures governing banks, credit unions 
                    and other financial institutions on DoD 
                    installations...........................         499
232             Limitations on terms of consumer credit 
                    extended to service members and 
                    dependents..............................         532
233             Federal Voting Assistance Program (FVAP)....         537
234             Conduct on the Pentagon Reservation.........         547
235             Sale or rental of sexually explicit material 
                    on DoD property.........................         552
236             Department of Defense (DoD)--Defense 
                    Industrial Base (DIB) voluntary cyber 
                    security and information assurance (CS/
                    IA) activities..........................         554
237a            Public affairs liaison with industry........         559
239             Homeowners Assistance Program--application 
                    processing..............................         562
240             DOD Information Assurance Scholarship 
                    Program (IASP)..........................         571
241             Pilot program for temporary exchange of 
                    information technology personnel........         576
242             Admission policies and procedures for the 
                    School of Medicine, Uniformed Services 
                    University of the Health Sciences.......         580
242a            Public meeting procedures of the Board of 
                    Regents, Uniformed Services University 
                    of the Health Sciences..................         585
242b            General procedures and delegations of the 
                    Board of Regents of the Uniformed 
                    Services University of the Health 
                    Sciences................................         589
245             Plan for the Emergency Security Control of 
                    Air Traffic (ESCAT).....................         593

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246             Stars and Stripes (S&S) newspaper and 
                    business operations.....................         604
247             Department of Defense newspapers, magazines 
                    and civilian enterprise publications....         617
249             Presentation of DoD-related scientific and 
                    technical papers at meetings............         635
250             Withholding of unclassified technical data 
                    from public disclosure..................         639
253             Assignment of American National Red Cross 
                    and United Service Organizations, Inc., 
                    employees to duty with the Military 
                    Services................................         648
257             Acceptance of service of process............         650
259             Uniform relocation assistance and real 
                    property acquisition for Federal and 
                    federally-assisted programs.............         650
260             Vending facility program for the blind on 
                    DoD-controlled Federal property.........         650
263             Traffic and vehicle control on certain 
                    Defense Mapping Agency sites............         656
264             International interchange of patent rights 
                    and technical information...............         658
266             Audits of State and local governments, 
                    institutions of higher education, and 
                    other nonprofit institutions............         661
268             Collecting and reporting of foreign 
                    indebtedness within the Department of 
                    Defense.................................         663
269             Civil monetary penalty inflation adjustment.         667
270             Compensation of certain former operatives 
                    incarcerated by the Democratic Republic 
                    of Vietnam..............................         668
272             Administration and support of basic research 
                    by the Department of Defense............         681
274             Regulations governing competitive bidding on 
                    U.S. Government guaranteed military 
                    export loan agreements..................         682
275             Obtaining information from financial 
                    institutions: Right to Financial Privacy 
                    Act of 1978.............................         684
277             Implementation of the Program Fraud Civil 
                    Remedies Act............................         692
279             Retroactive stop loss special pay 
                    compensation............................         707
281             Settling personnel and general claims and 
                    processing advance decision requests....         709
282             Procedures for settling personnel and 
                    general claims and processing advance 
                    decision requests.......................         711
283             Waiver of debts resulting from erroneous 
                    payments of pay and allowances..........         719

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284             Waiver procedures for debts resulting from 
                    erroneous payments of pay and allowances         720
            SUBCHAPTER N--FREEDOM OF INFORMATION ACT PROGRAM
285             DoD Freedom of Information Act (FOIA) 
                    Program.................................         730
286             DoD Freedom of Information Act Program 
                    regulation..............................         732
286h            Release of acquisition-related information..         783
287             Defense Information Systems Agency Freedom 
                    of Information Act Program..............         786
290             Defense Contract Audit Agency (DCAA) Freedom 
                    of Information Act Program..............         788
291             Defense Nuclear Agency (DNA) Freedom of 
                    Information Act Program.................         803
292             Defense Intelligence Agency (DIA) Freedom of 
                    Information Act.........................         817
293             National Imagery Mapping Agency (NIMA) 
                    Freedom of Information Act Program......         823
295             Office of the Inspector General, Freedom of 
                    Information Act Program.................         827
296             National Reconnaissance Office Freedom of 
                    Information Act Program regulation......         848
298             Defense Investigative Service (DIS) Freedom 
                    of Information Act Program..............         850
299             National Security Agency/Central Security 
                    Service (NSA/CSS) Freedom of Information 
                    Act Program.............................         852
300             Defense Logistics Agency Freedom of 
                    Information Act Program.................         862
                      SUBCHAPTER O--PRIVACY PROGRAM
310             DoD Privacy Program.........................         869
311             Office of the Secretary of Defense and Joint 
                    Staff Privacy Program...................         923
312             Office of the Inspector General (OIG) 
                    Privacy Program.........................         940
313             The Chairman of the Joint Chiefs of Staff 
                    and the Joint Staff Privacy Program.....         948
314             Defense Advanced Research Projects Agency, 
                    Privacy Act of 1974.....................         948
315             Uniformed Services University of Health 
                    Sciences, Privacy Act of 1974...........         949
316             Defense Information Systems Agency Privacy 
                    Program.................................         949
317             DCAA Privacy Act Program....................         953
318             Defense Threat Reduction Agency Privacy 
                    Program.................................         957

[[Page 9]]

319             Defense Intelligence Agency Privacy Program.         967
320             National Geospatial-Intelligence Agency 
                    (NGA) Privacy...........................         976
321             Defense Security Service Privacy Program....         988
322             National Security Agency/Central Security 
                    Services Privacy Act Program............        1000
323             Defense Logistics Agency Privacy Program....        1028
324             DFAS Privacy Act Program....................        1034
326             National Reconnaissance Office Privacy Act 
                    Program.................................        1042
327             Defense Commissary Agency Privacy Act 
                    Program.................................        1063
329             National Guard Bureau Privacy Program.......        1077
                 SUBCHAPTER P--OBTAINING DOD INFORMATION
337             Availability of DoD directives, DoD 
                    instructions, DoD publications, and 
                    changes.................................        1091
338             Availability to the public of Defense 
                    Nuclear Agency (DNA) instructions and 
                    changes thereto.........................        1091
                         SUBCHAPTER Q [RESERVED]
                  SUBCHAPTER R--ORGANIZATIONAL CHARTERS
344             Assistant Secretary of Defense for Reserve 
                    Affairs (ASD(RA)).......................        1092
352a            Defense Finance and Accounting Service 
                    (DFAS)..................................        1093
383a            Defense Commissary Agency (DeCA)............        1097
395             Defense Legal Services Agency...............        1101
396-399         [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.

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[[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. \10\
---------------------------------------------------------------------------

    \10\ 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]



          Sec. 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?



           Sec. 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 Referral personnel, the commander shall 
take appropriate disciplinary action against that number.
    (5) Periodically publish a current listing of restricted facilities 
in the base bulletin (or other appropriate means of internal 
distribution). Minimally, such publication shall occur when there has 
been an addition or deletion to the list.
    6. 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).



    Sec. 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 projects (33 United States Code 540 and 577, and 47 Stat. 
42, Feb. 10, 1932).
    23. Emergency bank protection works constructed by the Army Corps of 
Engineers for protection of highways, bridge approaches, and public 
works (33 United States Code 701r).
    24. Assistance to States and local interests in the development of 
water supplies for municipal and industrial purposes in connection with 
Army Corps of Engineers reservoir projects (Water Supply Act of 1958, 43 
United States Code 390b).
    25. Army Corps of Engineers contracts for remedial works under 
authority of section 111 of Act of July 3, 1958 (33 United States Code 
633).

[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 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. 196.550  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 197_HISTORICAL RESEARCH IN THE FILES OF THE OFFICE OF THE
SECRETARY OF DEFENSE (OSD)--Table of Contents



Sec.
197.1 Purpose.
197.2 Applicability and scope.
197.3 Definition.
197.4 Policy.
197.5 Responsibilities.
197.6 Procedures.

Appendix A to Part 197--Explanation of Freedom of Information Act (5 
          U.S.C. 552) Exemptions
Appendix B to Part 197--Procedures for Historical Researchers 
          Permanently Assigned Within the Executive Branch Working on 
          Official Projects
Appendix C to Part 197--Procedures for the Department of State (DoS) 
          Foreign Relations of the United States (FRUS) Series
Appendix D to Part 197--Procedures for Historical Researchers Not 
          Permanently Assigned to the Executive Branch
Appendix E to Part 197--Form Letter--Conditions Governing Access to 
          Official Records for Historical Research Purposes
Appendix F to Part 197--Procedures for Copying of Documents for the 
          Foreign Relations of the United States Series
Appendix G to Part 197--Procedures for Copying Documents

    Authority: 10 U.S.C. 301.

    Source: 72 FR 36876, July 6, 2007, unless otherwise noted.



Sec. 197.1  Purpose.

    This part identifies and updates the policies and procedures for the 
programs that permit U.S. citizens to perform historical research in 
records created by or in the custody of the OSD consistent with 
Executive Order 12958, DoD 5200.01-R \1\, DoD 5400.07-R, DoD Directive 
5400.11, the Interagency Agreement on Access for Official Agency 
Historians, and DoD Directive 5230.09.
---------------------------------------------------------------------------

    \1\ Copies of unclassified DoD Directives, DoD Instructions, DoD 
Publications, and OSD Administrative Instructions may be found at http:/
/www.dtic.mil/whs/directives/.
---------------------------------------------------------------------------



Sec. 197.2  Applicability and scope.

    This part applies to:
    (a) The Office of the Secretary of Defense and organizations for 
which the Washington Headquarters Services provides administrative 
support (hereafter referred to collectively as the ``OSD Components'').
    (b) All historical researchers.
    (c) Former OSD Presidential Appointees seeking access to records 
containing information they originated, reviewed, signed, or received 
while serving in an official capacity.



Sec. 197.3  Definition.

    Historical researcher or researcher. A person desiring to conduct 
research in OSD files for historical information to use in any project 
(e.g. agency historical office projects, books, articles,

[[Page 56]]

studies, or reports) regardless of the person's employment status.



Sec. 197.4  Policy.

    It is DoD policy, pursuant to E.O. 12958, that:
    (a) Anyone accessing classified material must possess the requisite 
security clearance.
    (b) Information requested by historical researchers shall be 
accessed at a DoD activity or facility under the control of the National 
Archives and Records Administration (NARA). Usually such access will 
occur at either the Washington National Records Center (WNRC) in 
Suitland, Maryland, or NARA's Archives II in College Park, Maryland.
    (c) Access to records by historical researchers shall be limited to 
the specific records within the scope of the proposed historical 
research over which the Department of Defense has classification 
authority. Access shall also be limited to any other records for which 
the written consent of other Agencies that have classification authority 
over information contained in or revealed by the records has been 
obtained.
    (d) Access to unclassified OSD Component files by historical 
researchers shall be permitted consistent with the restrictions of the 
exemptions of the Freedom of Information Act that are contained in E.O. 
12958 and explained in the appendix B to this part (5 U.S.C. 552). The 
procedures for access to classified information shall be used if the 
requested unclassified information is contained in OSD files whose 
overall markings are classified.
    (e) Under E.O. 12958, or its successor, persons permanently assigned 
within the Executive Branch may be authorized access to classified 
information for official projects under DoD classification authority, 
provided such access is essential to the accomplishment of a lawful and 
authorized Government purpose and a written determination of the 
trustworthiness of the persons has been made.
    (f) Under E.O. 12958 and paragraph C6.2.2. of DoD 5200.01-R, persons 
not permanently assigned within the Executive Branch who are engaged in 
historical research projects or persons permanently assigned within the 
Executive Branch engaged in personal, i.e. unofficial projects, may be 
authorized access to classified information under DoD classification 
authority. The authorization shall be based on a written determination 
of the researcher's trustworthiness, on the proposed access being in the 
interests of national security, and on the researcher signing a copy of 
the letter (appendix E to this part) by which he or she agrees to 
safeguard the information and to authorize a review of any notes and 
manuscript for a determination that they contain no classified 
information.
    (g) Access for former Presidential appointees is limited to records 
they originated, reviewed, signed, or received while serving as 
Presidential appointees.
    (h) Contractors working for Executive Branch Agencies may be allowed 
access to classified OSD Component files. No copies of still classified 
documents will be released directly to a contractor. All copies of 
classified documents needed for a classified project will be forwarded 
to the office of the Contracting Government Agency responsible for 
monitoring the project. The monitoring office will be responsible for 
ensuring that the contractor safeguards the documents. The information 
is only used for the project for which it was requested, and that the 
contractor returns the documents upon completion of the final project. 
All copies of documents needed for an unclassified project will undergo 
a mandatory declassification review before the copies are released to 
the contractor to use in the project.
    (i) The records maintained in OSD Component office files and at the 
WNRC cannot be segregated, requiring that authorization be received from 
all agencies whose classified information is or is expected to be in the 
requested files for access to be permitted.
    (j) All researchers must hold security clearances at the 
classification level of the requested information. In addition, all DoD 
employed requesters, to include DoD contractors, must have Critical 
Nuclear Weapons Design Information (CNWDI) access and all other 
Executive Branch and non-Executive

[[Page 57]]

Branch requesters must have a Department of Energy issued ``Q'' 
clearance to access CNWDI information.



Sec. 197.5  Responsibilities.

    (a) The Director of Administration and Management, Office of the 
Secretary of Defense, (DA&M, OSD), or designee shall, according to the 
Deputy Secretary of Defense Memorandum dated August 25, 1993, be the 
approval authority for access to DoD classified information in OSD 
Component files and in files at the National Archives, Presidential 
libraries, and other similar institutions.
    (b) The Heads of the OSD Components, when requested, shall:
    (1) Determine whether access is for a lawful and authorized 
Government purpose or in the interest of national security.
    (2) Determine whether the specific records requested are within the 
scope of the proposed historical research.
    (3) Determine the location of the requested records.
    (4) Provide a point of contact to the OSD Records Administrator.
    (c) The OSD Records Administrator shall:
    (1) Exercise overall management of the Historical Research Program.
    (2) Maintain records necessary to process and monitor each case.
    (3) Obtain all required authorizations.
    (4) Obtain, when warranted, the legal opinion of the General Counsel 
of the Department of Defense regarding the requested access.
    (5) Perform a mandatory declassification review on documents 
selected by the researchers for use in unclassified projects.
    (6) Provide to prospective researchers the procedures necessary for 
requesting access to OSD Component files.
    (d) The Researcher shall provide any information and complete all 
forms necessary to process a request for access.



Sec. 197.6  Procedures.

    The procedures for processing and/or researching for access to OSD 
Component files are in appendices B, C, and D to this part.



 Sec. Appendix A to Part 197--Explanation of Freedom of Information Act 
                        (5 U.S.C. 552) Exemptions

                              A. Exemptions

------------------------------------------------------------------------
            Exemption                           Explanation
------------------------------------------------------------------------
(b)(1)...........................  Applies to information that is
                                    currently and properly classified
                                    pursuant to an Executive Order in
                                    the interest of national defense or
                                    foreign policy (See E.O. 12958 and
                                    DoD 5200.01-R) (Sec 1.4.
                                    Classification Categories from E.O.
                                    12958 are provided on the next
                                    page);
(b)(2)...........................  Applies to 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 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
                                    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 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;
(b)(6)...........................  Applies to information the 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 could reasonably be
                                    expected to interfere with law
                                    enforcement proceedings; would
                                    deprive a person of a right to a
                                    fair trial or impartial
                                    adjudication; could reasonably be
                                    expected to constitute an
                                    unwarranted invasion of the personal
                                    privacy of others; disclose the
                                    identity of a confidential source;
                                    disclose investigative techniques
                                    and procedures; or could reasonably
                                    be expected to endanger the life or
                                    physical safety of any individual.
------------------------------------------------------------------------

    See Chapter III of DoD 5400.07-R for further information.

                       B. Extract From E.O. 12958

    Section 1.4. Classification Categories. Information shall not be 
considered for classification unless it concerns:
    (a) Military plans, weapons systems, or operations;
    (b) Foreign government information;
    (c) Intelligence activities (including special activities), 
intelligence sources or methods, or cryptology;

[[Page 58]]

    (d) Foreign relations or foreign activities of the United States, 
including confidential sources;
    (e) Scientific, technological, or economic matters relating to the 
national security, which includes defense against transnational 
terrorism;
    (f) United States Government programs for safeguarding nuclear 
materials or facilities;
    (g) Vulnerabilities or capabilities of systems, installations, 
infrastructures, projects, plans, or protection services relating to the 
national security, which includes defense against transnational 
terrorism; or
    (h) Weapons of mass destruction.



   Sec. Appendix B to Part 197--Procedures for Historical Researchers 
  Permanently Assigned Within the Executive Branch Working on Official 
                                Projects

    1. The Head of each OSD Component, when requested, shall:
    a. Make a written determination that the requested access is 
essential to the accomplishment of a lawful and authorized Government 
purpose, stating whether the requested records can be made available; if 
disapproved, cite specific reasons.
    b. Provide the location of the requested records, including 
accession and box numbers if the material has been retired to the WNRC.
    c. Provide a point of contact for liaison with the OSD Records 
Administrator if any requested records are located in OSD Component 
working files.
    2. The OSD Records Administrator shall:
    a. Process all requests from Executive Branch employees requesting 
access to OSD Component files for official projects.
    b. Determine which OSD Component(s) originated the requested records 
and, if necessary, request an access determination (paragraph 1.a. of 
this appendix) from the OSD Component(s) and the location of the 
requested records, including accession and box numbers if the records 
are in retired files.
    c. Request authorization for access from other Agencies as 
necessary:
    (1) By the terms of the ``Interagency Agreement on Access for 
Official Agency Historians,'' hereafter referred to as ``the 
Agreement'', historians employed by a signatory Agency may have access 
to the classified information of any other Agency signatory to the 
Agreement found in OSD files. The Central Intelligence Agency (CIA) and 
National Security Council (NSC) are not signatories to the Agreement. 
Authorization for access must be obtained from these Agencies, as well 
as from any other non-signatory Agency whose classified information is 
expected to be found in the files to be accessed.
    (2) If the official historian is employed by an Agency that is not a 
signatory to the Agreement, authorization for access must be obtained 
from the CIA, NSC, Department of State (DoS), and any other non-DoD 
Agency whose classified information is expected to be found in the files 
to be accessed.
    (3) If the requester is not an official historian, authorization for 
access must be obtained from the CIA, NSC, DoS, and any other non-DoD 
Agency whose classified information is expected to be found in the files 
to be accessed.
    (4) Make a written determination as to the researcher's 
trustworthiness based on the researcher having been issued a security 
clearance.
    (5) Compile all information on the request for access to classified 
information to include evidence of an appropriately issued personnel 
security clearance and forward the information to the DA&M, OSD, or 
designee, who shall make the final access determination.
    (6) Notify the researcher of the authorization and conditions for 
access to the requested records or of the denial of access and the 
reason(s).
    (7) Ensure all conditions for access and release of information for 
use in the project are met.
    (8) Make all necessary arrangements for the researcher to visit the 
WNRC and review the requested records if they have been retired there.
    (9) Assign a member of his staff to supervise the researcher's 
copying of pertinent documents at the WNRC. Provide a copier and toner 
cartridge or appropriate consumable supplies to be used by the 
researcher to copy the documents.
    (10) If the records are maintained in an OSD Component's working 
files, arrange for the researcher to review the material and make copies 
of pertinent documents in the OSD Component's office.
    (11) Notify the National Archives or Presidential library concerned 
of the authorization and conditions for access, if the researcher 
desiring to research material in those facilities is not an official 
historian or is an official historian employed by an Agency that is not 
a signatory to the Agreement.
    3. The researcher shall:
    a. Submit a request for access to OSD files to the OSD Records 
Administrator, 1155 Defense, Pentagon, Washington, DC 20301-1155.
    The request must contain the following information:
    (1) The name(s) of the researcher(s) and any assistant(s), level of 
security clearance, and the office to which the researcher is assigned.
    (2) Provide a statement on the purpose of the project, including 
whether the final product is to be classified or unclassified.

[[Page 59]]

    (3) Provide an explicit description of the information being 
requested and if known, the originating office, so that the 
identification and location of the information may be facilitated.
    (4) An appropriate higher authority must sign the request.
    b. Ensure his or her security manager or personnel security office 
verifies his or her security clearances in writing to the Security 
Manager for the office of the OSD Records Administrator.
    c. Submit notes taken during research, as follows:
    (1) Use letter-sized paper (approximately 8\1/2\ by 11 inches), 
writing on only one side of the page. Each page of notes must pertain to 
only one document.
    (2) Indicate at the top of each page of notes the document's 
originator, date, subject (if the subject is classified, indicate the 
classification), folder number or other identification, accession number 
and box number in which the document was found, and the security 
classification of the document. All notes are considered classified at 
the level of the document from which they were taken.
    (3) Number each page of notes consecutively.
    (4) Leave the last 1\1/2\ inches on the bottom of each page of notes 
blank for use by the reviewing agencies.
    (5) Ensure the notes are legible, in English, and in black ink.
    (6) All notes must be given to the facility staff at the end of each 
day. The facility staff will forward the notes to the OSD Records 
Administrator for a declassification review and release determination.
    d. Maintain the file integrity of the records being reviewed, 
ensuring no records are removed and all folders are replaced in the 
correct box in their proper order.
    e. Make copies of any documents pertinent to the project, ensuring 
that staples are carefully removed and that the documents are restapled 
before they are replaced in the folder. Subparagraph E3.1.3. of this 
appendix, also applies to the copying of documents. The copying of 
documents at the WNRC must be accomplished under the supervision of a 
member of the OSD Records Administrator staff (appendix D to this part).
    f. Submit, prior to unclassified presentation or publication, the 
completed manuscript, along with any copies of documents used and notes 
taken, to the OSD Records Administrator for onward transmission to the 
Chief, Security Review, Executive Services Directorate for review.
    g. If the requester is an official historian of an Agency signatory 
to the Agreement, requests for access to the records at the National 
Archives or a Presidential library should be addressed directly to the 
pertinent facility with an information copy to the OSD Records 
Administrator.
    (1) The historian's security clearances must be verified to the 
National Archives or the Presidential library.
    (2) Paragraphs 1.c. through 1.f. of this appendix apply to research 
in files at the National Archives, a Presidential library, or other 
facility.
    (3) All notes and documents must be given to the facility staff for 
forwarding to the office of the OSD Records Administrator.



  Sec. Appendix C to Part 197--Procedures for the Department of State 
       (DoS) Foreign Relations of the United States (FRUS) Series

    1. The OSD Records Administrator shall:
    a. Determine the location of the records being requested by the DoS 
for the FRUS series under Public Law No. 102-138.
    b. Request authorization from the CIA, NSC, and any other non-DoD 
Agency not signatory to the Agreement for the State historians to have 
access to such non-DoD Agency classified information expected to be 
interfiled with the requested OSD records.
    c. Obtain written verification from the DoS Diplomatic Security 
staff of all security clearances, including ``Q'' clearances.
    d. Make all necessary arrangements for the State historians to 
access and review OSD files.
    e. Make all necessary arrangements for the State historians to copy 
documents selected for use in their research.
    (1) According to appendix F to this part, provide a staff member to 
supervise the copying and the copier to be used to copy the documents.
    (2) Compile a list of the documents that were copied by the DoS.
    f. Release all documents copied by the DoS for use in the FRUS still 
classified.
    g. Submit to the respective Agency a list of CIA and NSC documents 
copied and released to the State historians.
    h. Process requests from the DoS Historian's office for members of 
the Advisory Committee on Historical Diplomatic Documentation, who 
possess the appropriate security clearances, to have access to documents 
copied and used by the State historians to compile the FRUS series 
volumes or to the files that were reviewed to obtain the copied 
document. Make all necessary arrangements for the Committee to review 
any documents that are at the WNRC.
    2. The DoS Historian shall:
    a. Submit requests for access to OSD files to the OSD Records 
Administrator, 1155 Defense, Pentagon, Washington, DC 20301-1155. The 
request should list the names and security clearances for the historians 
doing the research and an explicit description, including the accession 
and box numbers, of the files being requested.

[[Page 60]]

    b. Submit requests for access for members of the Advisory Committee 
on Historical Diplomatic Documentation to documents copied by the State 
historians for the series or the files reviewed to obtain the documents 
to the OSD Records Administrator.
    c. Request that the DoS Diplomatic Security staff verify all 
security clearances in writing to the Security Manager for the office of 
the OSD Records Administrator.
    d. According to appendix F to this part, supply the toner cartridge, 
paper, and other supplies required to copy the documents.
    e. Give all copies of the documents to the member of the office OSD 
Records Administrator's staff who is supervising the copying as the 
documents are copied.
    f. Submit any DoD documents desired for use or pages of the 
manuscript containing DoD classified information to the Chief, Security 
Review, Executive Services Directorate, 1155, Defense, Pentagon, 
Washington, DC 20301-1155 for a declassification review prior to 
publication.



 Sec. Appendix D to Part 197--Procedures for Historical Researchers Not 
              Permanently Assigned to the Executive Branch

    1. The Head of each OSD Component, when required, shall:
    a. Make recommendations to the DA&M, OSD, or his designee, as to 
approval or disapproval of requests to OSD files stating whether release 
of the requested information is in the interest of national security and 
whether the information can be made available; if disapproval is 
recommended, specific reasons should be cited.
    b. Provide the location of the requested information, including the 
accession and box numbers for any records that have been retired to the 
WNRC.
    c. Provide a point of contact for liaison with the OSD Records 
Administrator if any requested records are located in Component working 
files.
    2. The OSD Records Administrator shall:
    a. Process all requests from non-Executive Branch researchers for 
access to OSD files. Certify that the requester has the appropriate 
clearances.
    b. Obtain prior authorization to review their classified information 
from the DoS, CIA, NSC, and any other Agency whose classified 
information is expected to be interfiled with OSD records.
    c. Make a determination as to which OSD Component originated the 
requested records, and as necessary, obtain written recommendations 
(paragraph 1.a. of this section) for the research to review the 
classified information.
    d. Obtain a copy of the letter in Enclosure 6 of this AI signed by 
the researcher(s) and any assistant(s).
    e. If the requester is a former Presidential appointee (FPA), after 
completion of the actions described in paragraph 1.b. through 1.b.(4) of 
this appendix, submit a memorandum to DoD, Human Resources, Security 
Division, requesting the issuance (including an interim) or 
reinstatement of an inactive security clearance for the FPA and any 
assistant and a copy of any signed form letters (paragraph 1.b. of this 
appendix). DoD, Human Resources, Security Division, will contact the 
researcher(s) and any assistant(s) to obtain the forms required to 
reinstate or obtain a security clearance and initiate the personnel 
security investigation. Upon completion of the adjudication process, 
notify the OSD Records Administrator in writing of the reinstatement, 
issuance, or denial of a security clearance.
    f. Make a written determination as to the researcher's 
trustworthiness, based on his or her having been issued a security 
clearance.
    g. Compile all information on the request for access to classified 
information to include either evidence of an appropriately issued or 
reinstated personnel security clearance and forward the information to 
the DA&M, OSD, or his designee, who shall make the final determination 
on the applicant's eligibility for access to classified OSD files. If 
the determination is favorable, the DA&M, OSD, or his designee, shall 
then execute an authorization for access, which will be valid for not 
more than 2 years.
    h. Notify the researcher of the approval or disapproval of the 
request. If the request has been approved, the notification shall 
identify the files authorized for review and shall specify that the 
authorization:
    (1) Is approved for a predetermined time period.
    (2) Is limited to the designated files.
    (3) Does not include access to records and/or information of other 
Federal Agencies, unless such access has been specifically authorized by 
those Agencies.
    i. Make all necessary arrangements for the researcher to visit the 
WNRC and review any requested records that have been retired there, to 
include written authorization, conditions for the access, and a copy of 
the security clearance verification.
    j. If the requested records are at the WNRC, make all necessary 
arrangements for the copying of documents; provide a copier and toner 
cartridge for use in copying documents and a staff member to supervise 
the copying of pertinent documents by the researcher.
    k. If the requested records are maintained in OSD Component working 
files, make arrangements for the researcher to review the requested 
information and if authorized, copy pertinent documents in the OSD 
Component's office. Provide the OSD Component with a copy of the written 
authorization and

[[Page 61]]

conditions under which the access is permitted.
    l. Compile a list of all the documents copied by the researcher.
    m. Perform a mandatory declassification review on all notes taken 
and documents copied by the researcher.
    n. If the classified information to be reviewed is on file at the 
National Archives, a Presidential library or other facility, notify the 
pertinent facility in writing of the authorization and conditions for 
access.
    3. The researcher shall:
    a. Submit a request for access to OSD Component files to the OSD 
Records Administrator, 1155 Defense, Pentagon, Washington, DC 20301-
1155. The request must contain the following:
    (1) As explicit a description as possible of the information being 
requested so that identification and location of the information may be 
facilitated.
    (2) A statement as to how the information will be used, including 
whether the final project is to be classified or unclassified.
    (3) State whether the researcher has a security clearance, including 
the level of clearance and the name of the issuing Agency.
    (4) The names of any persons who will be assisting the researcher 
with the project. If the assistants have security clearances, provide 
the level of clearance and the name of the issuing Agency.
    b. A signed copy of the letter (appendix E to this part) by which 
the requester agrees to safeguard the information and to authorize a 
review of any notes and manuscript for a determination that they contain 
no classified information. Each project assistant must also sign a copy 
of the letter.
    c. If the requester is an FPA, complete the forms necessary (see 
paragraph 1.b. of this appendix) to obtain a security clearance. Each 
project assistant will also need to complete the forms necessary to 
obtain a security clearance. If the FPA or assistant have current 
security clearances, their personnel security office must provide 
verification in writing to the Security Manager for the office of the 
OSD Records Administrator.
    d. Maintain the integrity of the files being reviewed, ensuring that 
no records are removed and that all folders are replaced in the correct 
box in their proper order.
    e. If copies are authorized, all copies must be given to the 
custodian of the files at the end of each day. The custodian will 
forward the copies of the documents to the OSD Records Administrator for 
a declassification review and release to the requester.
    (1) For records at the WNRC, if authorized, make copies of documents 
only in the presence of a member of the OSD Records Administrator's 
staff (appendix G to this part).
    (2) As they are copied, all documents must be given to the OSD 
Records Administrator's staff member supervising the copying.
    (3) Ensure all staples are carefully removed and that the documents 
are restapled before the documents are replaced in the folder. Paragraph 
1.c. of this appendix also applies to the copying of documents.
    f. Submit all notes (classified and unclassified) made from the 
records to the OSD Records Administrator for a declassification and 
release review through the custodian of the files at the end of each 
day's review as described in paragraphs 1.c.(3) through 1.c.(5) of 
appendix B to this part.
    g. Submit the notes and final manuscript to the OSD Records 
Administrator for forwarding to the Chief, Security Review, Executive 
Services Directorate, for a security review and clearance under DoD 
Directive 5230.09 prior to unclassified publication, presentation, or 
any other public use.



Sec. Appendix E to Part 197--Form Letter--Conditions Governing Access to 
            Official Records for Historical Research Purposes

Date:
OSD Records Administrator
1155 Defense Pentagon
Washington, DC 20301-1155

Dear
    I understand that the classified information to which I have 
requested access for historical research purposes is concerned with the 
national defense or foreign relations of the United States, and the 
unauthorized disclosure of it could reasonably be expected to cause 
damage, serious damage, or exceptionally grave damage to the national 
security depending on whether the information is classified 
Confidential, Secret, or Top Secret, respectively. If granted access, I 
therefore agree to the following conditions governing access to the 
Office of the Secretary of Defense (OSD) files:
    1. I will abide by any rules and restrictions promulgated in your 
letter of authorization, including those of other Agencies whose 
information is interfiled with that of the OSD.
    2. I agree to safeguard the classified information, to which I gain 
possession or knowledge because of my access, in a manner consistent 
with Part 4 of Executive Order 12958, ``National Security Information,'' 
and the applicable provisions of the Department of Defense regulations 
concerning safeguarding classified information, including DoD 5200.1-R, 
``Information Security Program.''
    3. I agree not to reveal to any person or Agency any classified 
information obtained as a result of this access except as authorized in 
the terms of your authorization letter or a follow-on letter, and I 
further agree that I shall not use the information for purposes other 
than those set forth in my request for access.

[[Page 62]]

    4. I agree to submit my research notes for security review, to 
determine if classified information is contained in them, before their 
removal from the specific area assigned to me for research. I further 
agree to submit my manuscript for a similar review before its 
publication or presentation. In each of these reviews, I agree to comply 
with any decision of the reviewing official in the interests of the 
security of the United States, including the retention or deletion of 
any classified parts of such notes and manuscript whenever the Federal 
Agency concerned deems such retention or deletion necessary.
    5. I understand that failure to abide by the conditions in this 
statement shall constitute sufficient cause for canceling my access to 
classified information and for denying me any future access, and may 
subject me to criminal provisions of Federal Law as referred to in item 
6.
    6. I have been informed that provisions of title 18 of the United 
States Code impose criminal penalties, under certain circumstances, for 
the unauthorized disclosure, loss, copying, or destruction of defense 
information.
    THIS STATEMENT IS MADE TO THE UNITED STATES GOVERNMENT TO ENABLE IT 
TO EXERCISE ITS RESPONSIBILITY FOR THE PROTECTION OF INFORMATION 
AFFECTING THE NATIONAL SECURITY. I UNDERSTAND THAT ANY MATERIAL FALSE 
STATEMENT THAT I MAKE KNOWINGLY AND WILFULLY SHALL SUBJECT ME TO THE 
PENALTIES OF TITLE 18, U.S. CODE, SECTION 1001.
Signature:

Witness's Signature:

Date:



Sec. Appendix F to Part 197--Procedures for Copying of Documents for the 
              Foreign Relations of the United States Series

    1. The records will be reviewed and copied at the WNRC, Suitland, 
Maryland.
    2. The requested records have been reviewed under the 
declassification provisions of E.O. 12958. Part of NARA's government-
wide procedures for the review process requires that certain types of 
documents be tabbed for easy identification. Any tabs removed during the 
research and copying must be replaced.
    3. When documents are being copied, a DoD/WHS/declassification and 
historical research branch staff member must be present at all times.
    4. OSD will supply the copier, but the DoS must supply the toner 
cartridge, paper, staples, staple remover, stapler, and Post-It Notes. 
The copier is a Cannon Personal Copier-Model PC 425. It takes one of two 
cartridges--Cannon E20, which makes 2,000 copies and Cannon E40, which 
makes 4,000 copies.
    5. The number of boxes to be reviewed will determine which of the 
following two procedures will apply. The Declassification and Historical 
Research Branch staff will make that determination at the time the 
request is processed. When the historian completes the review of the 
boxes, he or she must contact the Declassification and Historical 
Research Branch to establish a final schedule for copying the needed 
documents. To avoid a possible delay, a tentative schedule will be 
established at the time that the review schedule is set.
    a. For a small number of boxes--the review and copying will take 
place simultaneously.
    b. For a large number of boxes--the historian will review the boxes 
and mark the documents that are to be copied using Post-It Notes or WNRC 
Reproduction Tabs.
    6. The documents must be given to the Declassification and 
Historical Research Branch staff member for transmittal to the 
Declassification and Historical Research Branch Office for processing.
    7. The Declassification and Historical Research Branch will notify 
the historian when the documents are ready to be picked-up.



      Sec. Appendix G to Part 197--Procedures for Copying Documents

    1. The records will be reviewed and copied at the WNRC, Suitland, 
Maryland.
    2. The requested records have been reviewed under the 
declassification provisions of E.O. 12958. Part of NARA's government-
wide procedures for the review process requires that certain types of 
documents be tabbed for easy identification. Any tabs removed during the 
research and copying must be replaced.
    3. The researcher will mark the documents that he or she wants to 
copy using Post-It Notes or WNRC Reproduction Tabs.
    4. Any notes taken during the review process must be given to the 
WNRC staff for transmittal to the Declassification Branch.
    5. When documents are being copied, a DoD/WHS/declassification and 
historical research branch staff member must be present at all times. In 
agreeing to permit the copying of documents from OSD classified files at 
the WNRC, the WNRC is requiring that the Declassification and Historical 
Research Branch be held solely responsible for the copying process. The 
staff member is only there to monitor the copying and ensure that all 
record management and security procedures are followed.
    6. The Declassification and Historical Research Branch will supply 
the copier and toner cartridge.
    7. The researcher will need to bring paper, staples, staple remover, 
stapler, and Post-It Notes.

[[Page 63]]

    8. When the researcher completes the review of the boxes, he or she 
must contact the Declassification and Historical Research Branch to 
establish a final schedule for copying the needed documents.
    9. The documents must be given to the Declassification and 
Historical Research Branch staff member for transmittal to the 
Declassification and Historical Research Branch Office for processing.
    10. When the documents are ready to be picked up or mailed, the 
Declassification and Historical Research Branch will notify the office.
    11. All questions pertaining to the review, copying, or transmittal 
of OSD documents must be addressed to the OSD action officer.
    12. The WNRC staff can only answer questions regarding the use of 
their facility.



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 TRICARE Pharmacy Benefits Program.
199.22 TRICARE Retiree Dental Program (TRDP).
199.23 Special Supplemental Food Program.
199.24 TRICARE Reserve Select.
199.25 TRICARE Retired Reserve.
199.26 TRICARE Young Adult.

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.
    (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

[[Page 64]]

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.
    (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

[[Page 65]]

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 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.

[[Page 66]]

    (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 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

[[Page 67]]

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 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.

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    (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 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

[[Page 69]]

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 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

[[Page 70]]

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 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.
    Ambulatory Payment Classifications (APCs). Payment of services under 
the TRICARE OPPS is based on grouping outpatient procedures and services 
into ambulatory payment classification groups based on clinical and 
resource homogeneity, provider concentration,

[[Page 71]]

frequency of service and minimal opportunities for upcoding and code 
fragmentation. Nationally established rates for each APC are calculated 
by multiplying the APC's relative weight derived from median costs for 
procedures assigned to the APC group, scaled to the median cost of the 
APC group representing the most frequently provided services, by the 
conversion factor.
    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 72]]

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.
    Bariatric Surgery. Surgical procedures performed to treat co-morbid 
conditions associated with morbid obesity. Bariatric surgery is based on 
two principles: (1) Divert food from the stomach to a lower part of the 
digestive tract where the normal mixing of digestive fluids and 
absorption of nutrients cannot occur (i.e., Malabsorptive surgical 
procedures); or (2) Restrict the size of the stomach and decrease intake 
(i.e., Restrictive surgical procedures).
    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.
    CAHs. A small facility that provides limited inpatient and 
outpatient hospital services primarily in rural areas and meets the 
applicable requirements established by Sec. 199.6(b)(4)(xvi).
    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

[[Page 73]]

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.
    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

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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 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

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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 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

[[Page 76]]

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 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

[[Page 77]]

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 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.

[[Page 78]]

    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.
    (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.
    Essential Access Community Hospital (EACH). A hospital that is 
designated by the Centers for Medicare and Medicaid Services (CMS) as an 
EACH and meets the applicable requirements established by Sec. 
199.14(a)(7)(vi).
    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.
    Facility charge. The term ``facility charge'' means the charge, 
either inpatient or outpatient, made by a hospital or other 
institutional provider to cover the overhead costs of providing the 
service. These costs would include building costs, i.e. depreciation and 
interest; staffing costs; drugs and supplies; and overhead costs, i.e., 
utilities, housekeeping, maintenance, etc.
    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

[[Page 79]]

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 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 in an adult day-care 
program that is licensed or 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

[[Page 80]]

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 purposes of the preceding sentence, any absence for 
the 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. An exception is 
made to the above homebound definitional criteria for beneficiaries 
under the age of 18 and those receiving maternity care. The only 
homebound criteria for these special beneficiary categories is written 
certification from a physician attesting to the fact that leaving the 
home would place the beneficiary at medical risk. 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, home health 
aide 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 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

[[Page 81]]

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 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.
    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

[[Page 82]]

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 
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

[[Page 83]]

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, 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. A body mass index (BMI) equal to or greater than 40 
kilograms per meter squared (kg/m\2\), or a BMI equal to or greater than 
35 kg/m\2\ in conjunction with high-risk co-morbidities, which is based 
on the guidelines established by the National Heart, Lung and Blood 
Institute on the Identification and Management of Patients with Obesity.

    Note: Body mass index is equal to weight in kilograms divided by 
height in meters squared.

    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

[[Page 84]]

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.
    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.
    Off-label use of a drug or device. A use other than an intended use 
for which the prescription drug, biologic or device is legally marketed 
under the Federal Food, Drug, and Cosmetic Act or the Public Health 
Services Act. This includes any use that is not included in the approved 
labeling for an approved drug, licensed biologic, approved device or 
combination product; any use that is not included in the cleared 
statement of intended use for a device that has been determined by the 
Food and Drug Administration (FDA) to be substantially equivalent to a 
legally marketed predicate device and cleared for marketing; and any use 
of a device for which a manufacturer or distributor would be required to 
seek pre-market review by the FDA in order to legally include that use 
in the device's labeling.
    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

[[Page 85]]

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
    (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 or intermittent home health aide and skilled nursing 
services. Part-time or intermittent means skilled nursing and home 
health aide services furnished any number of days per week as long as 
they are furnished (combined) less than 8 hours each day and 28 or fewer 
hours each week (or, subject to review on a case-bay-case basis as to 
the need for care, less than 8 hours each day and 35 or fewer hours per 
week).
    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

[[Page 86]]

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 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

[[Page 87]]

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 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

[[Page 88]]

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:
    (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. TRICARE/CHAMPUS defines a rare disease as any disease 
or condition that has a prevalence of less than 200,000 persons in the 
United States.
    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.

[[Page 89]]

    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.
    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

[[Page 90]]

achieve the medically desired result in accordance with accepted 
standards of practice.
    Sole community hospital (SCH). A hospital that is designated by CMS 
as an SCH and meets the applicable requirements established by Sec. 
199.6(b)(4)(xvii).
    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 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.

[[Page 91]]

    (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 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 billing agent. Any entity that acts on behalf of a 
provider to prepare, submit and monitor claims, excluding those entities 
that act solely as a collection agency.
    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

[[Page 92]]

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 Hospital Outpatient Prospective Payment System (OPPS). OPPS 
is a hospital outpatient prospective payment system, based on nationally 
established APC payment amounts and standardized for geographic wage 
differences that includes operating and capital-related costs that are 
directly related and integral to performing a procedure or furnishing a 
service in a hospital outpatient department.
    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. 
1076d and Sec. 199.24 of this Part.
    TRICARE Retired Reserve. The program established to allow members of 
the Retired Reserve who are qualified for non-regular retirement, but 
are not yet 60 years of age, as well as certain survivors to qualify to 
purchase medical coverage equivalent to the TRICARE Standard (and Extra) 
benefit unless that member is either enrolled in, or eligible to enroll 
in, a health benefit plan under Chapter 89 of Title 5, United States 
Code. The program benefits and requirements are set forth in section 25 
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.
    TRICARE Young Adult. The program authorized by and described in 
Sec. 199.26 of this part.
    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.
    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.

[[Page 93]]

    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]

    Editorial Notes: 1. At 66 FR 45172, Aug. 28, 2001, Sec. 199.2, was 
amended in part by revising the definition of ``Director, OCHAMPUS''; 
however, this amendment could not be incorporated due to inaccurate 
amendatory instruction.

    2. 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 at www.fdsys.gov.



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 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.

[[Page 94]]

    (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 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

[[Page 95]]

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 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) An unmarried person. An unmarried person placed in the home of a 
member or former member prior to adoption. To be a dependent child, the 
unmarried person must not have reached the age of 21 (or otherwise meets 
the requirements of a student or incapacitated child set out in 
paragraphs (b)(2)(ii)(H)(1) or (b)(2)(ii)(H)(2) of this section) and has 
been placed in the home of the member or former member by a recognized 
placement agency or by any other source authorized by State or local law 
to provide adoption placement, in anticipation of legal adoption by the 
member or former member.
    (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,

[[Page 96]]

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.
    (iv) An unmarried person who is placed in the legal custody of a 
member or former member by a court of competent jurisdiction in the 
United States (or possession of the United States) for a period of at 
least 12 consecutive months. The unmarried person shall be considered a 
dependent of the member or former member under this section provided he 
or she otherwise meets the following qualifications:
    (A) Has not reached the age of 21 unless he or she otherwise meets 
the requirements of a student set out in paragraph (b)(2)(ii)(H)(1) of 
this section or the requirements for being incapacitated as set out in 
paragraph (b)(2)(ii)(H)(2) of this section and the incapacitation 
occurred while he or she was a dependent of the member or former member 
through court ordered legal custody;
    (B) Is dependent on the member or former member for over one-half of 
the person's support;
    (C) Resides with the member or former member unless separated by the 
necessity of military service or to receive institutional care as a 
result of disability or incapacitation or under such other authorized 
circumstances; and,
    (D) Is not a dependent of a member or former member under any other 
provision of law or regulation.
    (3) Eligibility under TRICARE Senior Pharmacy Program. Section 711 
of the National Defense Authorization Act for

[[Page 97]]

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 who are victims of abuse and eligible

[[Page 98]]

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:
    (A) Medical benefits authorized by the Dependents' Medical Care Act 
of 1956, December 7, 1956;

[[Page 99]]

    (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 requirements of paragraph (b)(2)(ii)(H)(2) of this section, 
whose incapacity occurred between the ages of

[[Page 100]]

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.
    (iii) Has been placed in the home of a member by a placement agency 
or by any other source authorized by State or local law to provide 
adoption placement, in anticipation of the legal adoption of the member:
    (A) All benefits for which entitled, January 6, 2006.
    (B) Extended Care Health Option benefits limited to children of 
members only, January 6, 2006.
    (10) Beginning dates of eligibility for a retiree for:
    (i) Medical benefits under the Basic Program January 1, 1967.
    (ii) Retirees and their dependents are not eligible for benefits 
under the Extended Care Health Option.
    (d) 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.
    (v) A member who receives a sole survivorship discharge (as defined 
in section 1174(i) of this title).
    (vi) A member who is separated from Active Duty who agrees to become 
a member of the Selected Reserve of the Ready Reserve of a reserve 
component.
    (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

[[Page 101]]

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, 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. However, during TAMP eligibility, a member of a Reserve 
Component as described in paragraph (e)(1)(ii) of this section, is 
entitled to dental care to which a member of the uniformed services on 
active duty for more than 30 days is entitled. Each branch of service 
will determine eligibility for its members and eligible 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.

    (iii) 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.
    (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

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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 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 except that in 
the case of a retroactive determination of entitlement to Medicare Part 
A hospital insurance benefits for a person under 65 years of age there 
is no requirement to enroll in Medicare Part B from the Medicare Part A 
entitlement date until the issuance of such retroactive determination; 
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.

[[Page 103]]

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.
    (3) Enrollment in Medicare Part B. For individuals whose CHAMPUS 
eligibility has terminated pursuant to paragraph (f)(2)(iii) or 
(f)(3)(vi) of this section due to beneficiary action to decline Part B 
of Medicare, CHAMPUS eligibility resumes, effective on the date Medicare 
Part B coverage begins, if the person subsequently enrolls in Medicare 
Part B and the person is otherwise still eligible.
    (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 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; 72 FR 2447, Jan. 19, 2007; 75 FR 50883, Aug. 18, 2010; 76 FR 
81367, Dec. 28, 2011; 77 FR 38176, June 27, 2012]



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

[[Page 104]]

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 
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

[[Page 105]]

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 possibility 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. 
Unless required by action of the Assistant Secretary of Defense for 
Health Affairs (ASD(HA)) under this paragraph (a)(9), nonavailability 
statements are not required. If they are required by ASD(HA) action, in 
some geographic locations, CHAMPUS beneficiaries not enrolled in TRICARE 
Prime may be required to obtain a nonavailability statement from a 
military medical treatment facility in order to receive specifically 
identified health care services from a civilian provider. If the 
required care cannot be provided through the Uniformed Service facility, 
the hospital commander, or a designee, will issue a Nonavailability 
Statement (NAS) (DD Form 1251). Failure to secure such a statement may 
waive the beneficiary's rights to benefits under CHAMPUS/TRICARE.
    (i) With the exception of maternity services, the ASD(HA) may 
require an NAS prior to TRICARE cost-sharing for additional services 
from civilian sources if such services are to be provided to a 
beneficiary who lives within a 40-mile catchment area of an MTF where 
such services are available and the ASD(HA):
    (A) Demonstrates that significant costs would be avoided by 
performing specific procedures at the affected MTF or MTFs; or
    (B) Determines that a specific procedure must be provided at the 
affected MTF or MTFs to ensure the proficiency levels of the 
practitioners at the MTF or MTFs; or
    (C) Determines that the lack of NAS data would significantly 
interfere with TRICARE contract administration; and
    (D) Provides notification of the ASD(HA)'s intent to require an NAS 
under this authority to covered beneficiaries who receive care at the 
MTF or MTFs that will be affected by the decision to require an NAS 
under this authority; and
    (E) Provides at least 60-day notification to the Committees on Armed 
Services of the House of Representatives and the Senate of the ASD(HA)'s 
intent to require an NAS under this authority, the reason for the NAS 
requirement, and the date that an NAS will be required.
    (ii) Rules in effect at the 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 NAS is required.
    (iii) The Director, TMA is responsible for issuing the procedural 
rules and regulations regarding Nonavailability Statements. Such rules 
and regulations should address:

[[Page 106]]

    (A) When and for what services a NAS is required. However, a NAS may 
not be 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) of this part; 
and
    (B) When and how notifications will be made to a beneficiary who is 
not enrolled in TRICARE Prime as to whether or not he or she resides in 
a geographic area that requires obtaining a NAS; and
    (C) What information relating to claims submissions, including the 
documentation, if any, that is required to document that a valid NAS was 
issued. However, when documentation of a NAS is required, then that 
documentation shall be 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.
    (iv) In the case of any service subject to a NAS requirement under 
this paragraph (a)(9) and also subject to a preadmission (or other pre-
service) authorization requirement under Sec. 199.4 or Sec. 199.15 of 
this part, the administrative processes for the NAS and pre-service 
authorization may be combined.
    (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

[[Page 107]]

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 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

[[Page 108]]

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 
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.

[[Page 109]]

    (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, 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 medically 
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;

[[Page 110]]

    (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.
    (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

[[Page 111]]

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.
    (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

[[Page 112]]

    (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) 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;

[[Page 113]]

    (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 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:

[[Page 114]]

    (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.
    (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

[[Page 115]]

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.
    (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.

[[Page 116]]

    (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.
    (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:

[[Page 117]]

    (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.
    (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

[[Page 118]]

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.
    (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

[[Page 119]]

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
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

[[Page 120]]

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 include an incidental 
procedure, no benefits shall be allowed for the incidental procedure.
    (2) 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 
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

[[Page 121]]

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 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, certified 
clinical social workers, certified marriage and family therapists, 
certified mental health counselors, pastoral counselors under a 
physician's supervision, and until December 31, 2014, 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 of this 
part 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

[[Page 122]]

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.
    (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, 
certified physician assistant or certified nurse practitioner.
    (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.

[[Page 123]]

    (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.
    (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

[[Page 124]]

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
    (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--

[[Page 125]]

    (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 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.

[[Page 126]]

    (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.
    (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) Drugs and medicines. Drugs and medicines that by United States 
law require a prescription are also referred to as ``legend drugs.'' 
Legend drugs are covered when prescribed by a physician or other 
authorized individual professional provider acting within the scope of 
the provider's license and ordered or prescribed in connection with an 
otherwise covered condition or treatment, and not otherwise excluded by 
TRICARE. This includes Rh immune globulin.
    (A) Drugs administered by a physician or other authorized individual 
professional provider as an integral part of

[[Page 127]]

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.
    (C) Over-the-counter (OTC) drugs (drugs that by United States law do 
not require a prescription), in general, are not covered. However, 
insulin is covered for a known diabetic even in states that do not 
require a prescription for its purchase. In addition, OTC drugs used for 
smoking cessation are covered when all requirements under the TRICARE 
smoking cessation program are met as provided in paragraph (e)(30) of 
this section.
    (vii) Prosthetics, prosthetic devices, and prosthetic supplies, as 
determined by the Secretary of Defense to be necessary because of 
significant conditions resulting from trauma, congenital anomalies, or 
disease. Additionally, the following are covered:
    (A) Any accessory or item of supply that is used in conjunction with 
the device for the purpose of achieving therapeutic benefit and proper 
functioning;
    (B) Services necessary to train the recipient of the device in the 
use of the device;
    (C) Repair of the device for normal wear and tear or damage;
    (D) Replacement of the device if the device is lost or irreparably 
damaged or the cost of repair would exceed 60 percent of the cost of 
replacement.
    (viii) 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.
    (ix) Diabetes Self-Management Training (DSMT). A training service or 
program that educates diabetic patients about the successful self-
management of diabetes. It includes the following criteria: Education 
about self-monitoring of blood glucose, diet, and exercise; an insulin 
treatment plan developed specifically for the patient who is insulin-
dependent; and motivates the patient to use the skills for self-
management. The DSMT service or program must be accredited by the 
American Diabetes Association.
    Coverage limitations on the provision of this benefit will be as 
determined by the Director, TRICARE Management Activity, or designee.
    (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.


[[Page 128]]


    (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 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 TRICARE-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, including the substitution of a therapeutic drug, with addictive 
potential, for a

[[Page 129]]

drug addiction when medically or psychologically necessary and 
appropriate medical care for a beneficiary undergoing medically 
supervised treatment for a substance use disorder. 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 
TRICARE 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 an 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 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.

[[Page 130]]

    (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 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.


[[Page 131]]


    (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. 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

[[Page 132]]

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).
    (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.--(i) 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

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a biological male who had undergone transsexual surgery.
    (ii) Benefits are available for otherwise covered services and 
supplies required in the treatment of complications (unfortunate 
sequelae) resulting from a noncovered incident of treatment provided in 
an MTF, when the initial noncovered service has been authorized by the 
MTF Commander and the MTF is unable to provide the necessary treatment 
of the complications, according to the guidelines adopted by the 
Director, TMA, or a designee.
    (10) Dental. TRICARE/CHAMPUS does not include a dental benefit. 
However, in connection with dental treatment for patients with 
developmental, mental, or physical disabilities or for pediatric 
patients age 5 or under, only institutional and anesthesia services may 
be provided as a 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 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, TRICARE 
Management Activity, or a designee, in accordance

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with paragraph (a)(12) 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 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.
    (vi) Anesthesia and institutional costs for dental care for children 
and certain other patients. Institutional benefits specified in 
paragraph (b) of this section may be extended for hospital and in-out 
surgery settings related to noncovered, nonadjunctive dental care when 
such outpatient care or inpatient stay is in conjunction with dental 
treatment for patients with developmental, mental, or physical 
disabilities or for pediatric patients age 5 or under. For these 
patients, anesthesia services will be limited to the administration of 
general anesthesia only. Patients with developmental, mental, or 
physical disabilities are those patients with conditions that prohibit 
dental treatment in a safe and effective manner. Therefore, it is 
medically or psychologically necessary for these patients to require

[[Page 135]]

general anesthesia for dental treatment. Patients with physical 
disabilities include those patients having disabilities as defined in 
Sec. 199.2 as a serious physical disability. Preauthorization by the 
Director, TRICARE Management Activity, or a designee, is required for 
such outpatient care or 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 the 
preauthorization request for outpatient care or hospital admission is 
approved and thus qualifies for institutional benefits, the professional 
service related to the nonadjunctive dental care is not covered, with 
the exception of coverage for anesthesia services.
    (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, TRICARE benefits cannot be 
authorized to support or 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. Drugs, including the substitution of a therapeutic drug with 
addictive potential for a drug of addiction, prescribed to beneficiaries 
undergoing medically supervised treatment for a substance use disorder 
as authorized under paragraph (e)(4)(ii) of this section are not 
considered to be in support of, or to maintain, an existing or potential 
drug abuse situation and are allowed. The Director, TRICARE Management 
Activity, may prescribe appropriate policies to implement this 
prescription drug benefit for those undergoing medically supervised 
treatment for a substance use disorder.
    (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) [Reserved]
    (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

[[Page 136]]

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) [Reserved]
    (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 TRICARE morbid obesity benefit is limited 
to those bariatric surgical procedures for which the safety and efficacy 
has been proven comparable or superior to conventional therapies and is 
consistent with the generally accepted norms for medical practice in the 
United States

[[Page 137]]

medical community. (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.)
    (i) Conditions for coverage. (A) Payment for bariatric surgical 
procedures is determined by the requirements specified in paragraph 
(g)(15) of this section, and as defined in Sec. 199.2(b) of this part.
    (B) Covered bariatric surgical procedures are payable only when the 
patient has completed growth (18 years of age or documentation of 
completion of bone growth) and has met one of the following selection 
criteria:
    (1) The patient has a BMI that is equal to or exceeds 40 kg/m\2\ and 
has previously been unsuccessful with medical treatment for obesity.
    (2) The patient has a BMI of 35 to 39.9 kg/m\2\, has at least one 
high-risk co-morbid condition associated with morbid obesity, and has 
previously been unsuccessful with medical treatment for obesity.

    Note: The Director, TMA, shall issue guidelines for review of the 
specific high-risk co-morbid conditions, exacerbated or caused by 
obesity based on the Reliable Evidence Standard as defined in Sec. 
199.2 of this part.

    (ii) Treatment of complications. (A) Payment may be extended for 
repeat bariatric surgery when medically necessary to correct or treat 
complications from the initial covered bariatric surgery (a takedown). 
For instance, the surgeon in many cases will do a gastric bypass 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.
    (B) Payment is authorized for otherwise covered medical services and 
supplies directly related to complications of obesity when such services 
and supplies are an integral and necessary part of the course of 
treatment that was aggravated by the obesity.
    (iii) Exclusions. CHAMPUS payment may not be extended for weight 
control services, weight control/loss programs, dietary regimens and 
supplements, appetite suppressants and other medications; food or food 
supplements, exercise and exercise programs, or other programs and 
equipment that are primarily intended to control weight or for the 
purpose of weight reduction, regardless of the existence of co-morbid 
conditions.
    (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

[[Page 138]]

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.
    (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

[[Page 139]]

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.
    (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

[[Page 140]]

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 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 
of care. The periods of care that may be elected by the terminally ill 
CHAMPUS beneficiary shall be as the Director, TRICARE determines to be 
appropriate, but shall not be less than those offered under Medicare's 
Hospice Program.
    (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

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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.
    (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.

[[Page 142]]

    (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 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 state-established or other training program 
that meets the requirements of 42 CFR Part 484;
    (E) Medical supplies, a covered osteoporosis drug (as defined in the 
Social Security Act 1861(kk), but excluding other drugs and biologicals) 
and durable medical equipment;
    (F) Medical services provided by an interim or resident-in-training 
of a hospital, under an approved teaching program of the hospital in the 
case of an HHA that is affiliated or under common control of a hospital; 
and
    (G) Services at hospitals, SNFs or rehabilitation centers when they 
involve equipment too cumbersome to bring to the home but not including 
transportation of the individual in connection with any such item or 
service.
    (ii) 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:

[[Page 143]]

    (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.
    (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), 42 CFR Part 409, Subpart E 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.
    (26) National Institutes of Health clinical trials. By law, the 
general prohibition against CHAMPUS cost-sharing of unproven drugs, 
devices, and medical treatments or procedures may be waived in 
connection with clinical trials sponsored or approved by the National 
Institutes of Health National

[[Page 144]]

Cancer Institute if it is determined that such a waiver will promote 
access by covered beneficiaries to promising new treatments and 
contribute to the development of such treatments. A waiver shall only be 
exercised as authorized under this paragraph.
    (i) Demonstration waiver. A waiver may be granted through a 
demonstration project established in accordance with Sec. 199.1(o) of 
this part.
    (ii) Continuous waiver. (A) General. As a result of a demonstration 
project under which a waiver has been granted in connection with a 
National Institutes of Health National Cancer Institute clinical trial, 
a determination may be made that it is in the best interest of the 
government and CHAMPUS beneficiaries to end the demonstration and 
continue to provide a waiver for CHAMPUS cost-sharing of the specific 
clinical trial. Only those specified clinical trials identified under 
paragraph (e)(26)(ii) of this section have been authorized a continuous 
waiver under CHAMPUS.
    (B) National Cancer Institute (NCI) sponsored cancer prevention, 
screening, and early detection clinical trials. A continuous waiver 
under paragraph (e)(26) of this regulation has been granted for CHAMPUS 
cost-sharing for those CHAMPUS-eligible patients selected to participate 
in NCI sponsored Phase II and Phase III studies for the prevention and 
treatment of cancer. Additionally, Phase I studies may be approved on a 
case by case basis when the requirements below are met.
    (1) TRICARE will cost-share all medical care and testing required to 
determine eligibility for an NCI-sponsored trial, including the 
evaluation for eligibility at the institution conducting the NCI-
sponsored study. TRICARE will cost-share all medical care required as a 
result of participation in NCI-sponsored studies. This includes 
purchasing and administering all approved chemotherapy agents (except 
for NCI-funded investigational drugs), all inpatient and outpatient 
care, including diagnostic and laboratory services not otherwise 
reimbursed under an NCI grant program if the following conditions are 
met:
    (i) The provider seeking treatment for a CHAMPUS-eligible patient in 
an NCI approved protocol has obtained pre-authorization for the proposed 
treatment before initial evaluation; and,
    (ii) Such treatments are NCI sponsored Phase I, Phase II or Phase 
III protocols; and
    (iii) The patient continues to meet entry criteria for said 
protocol; and,
    (iv) The institutional and individual providers are CHAMPUS 
authorized providers; and,
    (v) The requirements for Phase I protocols in paragraph 
(e)(26)(ii)(B)(2) of this section are met:
    (2) Requirements for Phase I protocols are:
    (i) Standard treatment has been or would be ineffective, does not 
exist, or there is no superior non-investigational treatment 
alternative; and,
    (ii) The available clinical or preclinical data provide a reasonable 
expectation that the treatment will be at least as effective as the non-
investigational alternative; and,
    (iii) The facility and personnel providing the treatment are capable 
of doing so by virtue of their experience, training, and volume of 
patients treated to maintain expertise; and,
    (iv) The referring physician has concluded that the enrollee's 
participation in such a trial would be appropriate based upon the 
satisfaction of paragraphs (e)(26)(ii)(B)(2)(i) through (iii) of this 
section.
    (3) TRICARE will not provide reimbursement for care rendered in the 
National Institutes of Health Clinical Center or costs associated with 
non-treatment research activities associated with the clinical trials.
    (4) Cost-shares and deductibles applicable to CHAMPUS will also 
apply under the NCI-sponsored clinical trials.
    (5) The Director, TRICARE (or designee), shall issue procedures and 
guidelines establishing NCI-sponsorship of clinical trials and the 
administrative process by which individual patients apply for and 
receive cost-sharing under NCI-sponsored cancer clinical trials.
    (27) TRICARE will cost share forensic examinations following a 
sexual assault or domestic violence. The forensic examination includes a 
history of the event and a complete physical and

[[Page 145]]

collection of forensic evidence, and medical and psychological follow-up 
care. The examination for sexual assault also includes, but is not 
limited to, a test kit to retrieve forensic evidence, testing for 
pregnancy, testing for sexually transmitted disease and HIV, and medical 
services and supplies for prevention of sexually transmitted diseases, 
HIV, pregnancy, and counseling services.
    (28) Preventive care. The following preventive services are covered:
    (i) Cervical, breast, colon and prostate cancer screenings according 
to standards issued by the Director, TRICARE Management Activity, based 
on guidelines from the U.S. Department of Health and Human Services. The 
standards may establish a specific schedule that includes frequency, age 
specifications, and gender of the beneficiary, as appropriate.
    (ii) Immunizations as recommended by the Centers for Disease Control 
and Prevention (CDC).
    (iii) Well-child visits for children under 6 years of age as 
described in paragraph (c)(3)(xi) of this section.
    (iv) Health promotion and disease prevention visits (which may 
include all of the services provided pursuant to Sec. 199.18(b)(2)) for 
beneficiaries 6 years of age or older may be provided in connection with 
immunizations and cancer screening examinations authorized by paragraphs 
(e)(28)(i) and (ii) of this section.
    (29) Physical examinations. In addition to the health promotion and 
disease prevention visits authorized in paragraph (e)(28)(iv) of this 
section, the following physical examinations are specifically 
authorized:
    (i) Physical examinations for dependents of Active Duty military 
personnel who are traveling outside the United States. The examination 
must be required because of an Active Duty member's assignment and the 
travel is being performed under orders issued by a Uniformed Service. 
Any immunizations required for a dependent of an Active Duty member to 
travel outside of the United States is covered as a preventive service 
under paragraph (e)(28) of this section.
    (ii) Physical examinations for beneficiaries ages 5-11 that are 
required for school enrollment and that are provided on or after October 
30, 2000.
    (iii) Other types of physical examinations not listed above are 
excluded including routine, annual, or employment-requested physical 
examinations and routine screening procedures that are not part of 
medically necessary care or treatment or otherwise specifically 
authorized by statute.
    (30) Smoking cessation program. The TRICARE smoking cessation 
program is a behavioral modification program to assist eligible 
beneficiaries who desire to quit smoking. The program consists of a 
pharmaceutical benefit; smoking cessation counseling; access to a toll-
free quit line for non-medical assistance; and, access to print and 
internet web-based tobacco cessation materials.
    (i) Availability. The TRICARE smoking cessation program is available 
to all TRICARE beneficiaries who reside in one of the 50 United States 
or the District of Columbia who are not eligible for Medicare benefits 
authorized under Title XVIII of the Social Security Act. In addition, 
pursuant to Sec. 199.17, if authorized by the Assistant Secretary of 
Defense (Health Affairs), the TRICARE smoking cessation program may be 
implemented in whole or in part in areas outside the 50 states and the 
District of Columbia for active duty members and their dependents who 
are enrolled in TRICARE Prime (overseas Prime beneficiaries). In such 
cases, the Assistant Secretary of Defense (Health Affairs) may also 
authorize modifications to the TRICARE smoking cessation program rules 
and procedures as may be appropriate to the overseas area involved. 
Notice of the use of this authority, not otherwise mentioned in this 
paragraph (e)(30), shall be published in the Federal Register.
    (ii) Benefits. There is no requirement for an eligible beneficiary 
to be diagnosed with a smoking related illness to access benefits under 
this program. The specific benefits available under the TRICARE smoking 
cessation program are:
    (A) Pharmaceutical agents. Products available under this program are 
identified through the DoD Pharmacy and Therapeutics Committee, 
consistent

[[Page 146]]

with the DoD Uniform Formulary in Sec. 199.21. Smoking cessation 
pharmaceutical agents, including FDA-approved over-the-counter (OTC) 
pharmaceutical agents, are available through the TRICARE Mail Order 
Pharmacy (TMOP) or the MTF at no cost to the beneficiary. Smoking 
cessation pharmaceuticals through the TRICARE program will not be 
available at any retail pharmacies. A prescription from a TRICARE-
authorized provider is required to obtain any pharmaceutical agent used 
for smoking cessation, including OTC agents. For overseas Prime 
beneficiaries, pharmaceutical agents may be provided either in the MTF 
or through the TMOP where such facility or service is available.
    (B) Face-to-face smoking cessation counseling. Both individual and 
group smoking cessation counseling are covered. The number and mix of 
face-to-face counseling sessions covered under this program shall be 
determined by the Director, TMA; however, shall not exceed the limits 
established in paragraph (e)(30)(iii) of this section. A TRICARE-
authorized provider listed in Sec. 199.6 must render all counseling 
sessions.
    (C) Toll-free quit line. Access to a non-medical toll-free quit line 
7 days a week, 24 hours a day will be available. The quit line will be 
staffed with smoking cessation counselors trained to assess a 
beneficiary's readiness to quit, identify barriers to quitting, and 
provide specific suggested actions and motivational counseling to 
enhance the chances of a successful quit attempt. When appropriate, quit 
line counselors will refer beneficiaries to a TRICARE-authorized 
provider for medical intervention. The quit line may, at the discretion 
of the Director, TMA, include the opportunity for the beneficiary to 
request individual follow-up contact initiated by quit line personnel; 
however, the beneficiary is not required to participate in the quit line 
initiated follow-up. Printed educational materials on the effects of 
tobacco use will be provided to the beneficiary upon request. This 
benefit may be made available to overseas Prime beneficiaries should the 
ASD(HA) exercise his authority to do so and provide appropriate notice 
in the Federal Register.
    (D) Web-based resources. Downloadable educational materials on the 
effects of tobacco use will be available through the internet or other 
electronic media. This service may be made available to overseas Prime 
beneficiaries in all locations where web based resources are available. 
There shall be no requirement to create web based resources in any 
geographic area in order to make this service available.
    (iii) Limitations of smoking cessation program. Eligible 
beneficiaries are entitled to two quit attempts per year (consecutive 12 
month period). A third quit attempt may be covered per year with 
physician justification and pre-authorization. A quit attempt is defined 
as up to eighteen face-to-face counseling sessions over a 120 
consecutive day period and/or 120 days of pharmacologic intervention for 
the purpose of smoking cessation. Counseling and pharmacological 
treatment periods that overlap by at least 60-days are considered a 
single quit attempt.
    (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

[[Page 147]]

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.
    (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 or a National Guard member who is called or ordered to 
fulltime federal National Guard duty for a period of more than 30 days 
in support of a contingency operation (as defined in 10 U.S.C. 
101(a)(13)). For purposes of this paragraph, a dependent is a lawful 
husband or wife of the member and a child is defined in paragraphs 
(b)(2)(ii)(A) through (F) and (b)(2)(ii)(H)(1), (2), and (4) of Sec. 
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

[[Page 148]]

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.

    (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).

[[Page 149]]

    (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 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

[[Page 150]]

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-
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(e), 
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(e).
    (B) In the case of services provided by institutional providers 
normally paid on the basis of a pre-set amount (such as DRG-based amount 
under 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

[[Page 151]]

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.

    (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.
    (12) Elimination of cost-sharing for certain preventive services.
    (i) Effective for dates of service on or after October 14, 2008, 
beneficiaries, subject to the limitation in paragraph (f)(12)(iii) of 
this section, shall not pay any cost-share for preventive services 
listed in paragraph (e)(28)(i) through (iv) of this section. The 
beneficiary shall not be required to pay any portion of the cost of 
these preventive services even if the beneficiary has not satisfied the 
deductible for that year.
    (ii) Beneficiaries who paid a cost-share for preventive services 
listed in paragraph (e)(28)(i) through (iv) of this section on or after 
October 14, 2008, may request reimbursement until January 28, 2013 
according to procedures established by the Director, TRICARE Management 
Activity.
    (iii) This elimination of cost-sharing for preventive services does 
not apply to any beneficiary who is a Medicare-eligible beneficiary. For 
purposes of this section, the term ``Medicare-eligible'' beneficiary is 
defined in 10 U.S.C. 1111(b) and refers to a person eligible for 
Medicare Part A.
    (iv) Appropriate copayments and deductibles will apply for all 
services not listed in paragraph (e)(28) of this section, whether 
considered preventive in nature or not.
    (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).

[[Page 152]]

    (7) Custodial care. Custodial care as defined in Sec. 199.2.
    (8) Domiciliary care. Domiciliary care as defined in Sec. 199.2.
    (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 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 
except as authorized under paragraph 199.4(e)(26) of this part.
    (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 will consider coverage of off-label uses of drugs and 
devices that meet the definition of Off-Label Use of a Drug or Device in 
Sec. 199.2(b). Approval for reimbursement of off-label uses requires 
review for medical necessity and also requires demonstrations from 
medical literature, national organizations, or technology assessment 
bodies that the off-label use of the drug or device 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.


[[Page 153]]


    (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.
    (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.
    (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

[[Page 154]]

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. Service and supplies related 
``solely'' to obesity or weight reduction or weight control whether 
surgical or nonsurgical; wiring of the jaw or any procedure of similar 
purpose, regardless of the circumstances under which performed (except 
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 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. Except as stated in paragraph (e)(28) of this 
section, preventive care, such as routine, annual, or employment-
requested physical examinations and routine screening procedures.
    (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. Educational, vocational, and nutritional counseling 
and counseling for socioeconomic purposes, stress management, and/or 
lifestyle modification purposes, except that the following are not 
excluded:
    (i) Services provided by a certified marriage and family therapist, 
pastoral or mental health counselor in the treatment of a mental 
disorder as specifically provided in paragraph (c)(3)(ix) of this 
section and in Sec. 199.6.
    (ii) Diabetes self-management training (DSMT) as specifically 
provided in paragraph (d)(3)(ix) of this section.
    (iii) Smoking cessation counseling and education as specifically 
provided in paragraph (e)(30) of this section.
    (iv) Services provided by alcoholism rehabilitation counselors only 
when rendered in a CHAMPUS-authorized treatment setting and only when 
the

[[Page 155]]

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:
    (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,

[[Page 156]]

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) [Reserved]
    (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 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

[[Page 157]]

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 
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

[[Page 158]]

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 Note: 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 at www.fdsys.gov.



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 ECHO-eligible 
dependent's qualifying condition. Services include those necessary to 
maintain, minimize or prevent deterioration of function of an ECHO-
eligible dependent.
    (b) Eligibility. (1) The following categories of TRICARE/CHAMPUS 
beneficiaries with a qualifying condition are ECHO-eligible dependents:
    (i) A spouse, child, or unmarried person (as described in Sec. 
199.3(b)(2)(i), (b)(2)(ii), or (b)(2)(iv)) of a member of the Uniformed 
Services on active duty for a period of more than 30 days.
    (ii) An abused dependent as described in Sec. 199.3(b)(2)(iii).
    (iii) A spouse, child, or unmarried person (as described in Sec. 
199.3(b)(2)(i), (b)(2)(ii), or (b)(2)(iv)), of a member of the Uniformed 
Services who dies while on active duty for a period of more than 30 days 
and whose death occurs on or after October 7, 2001. In such case, an 
eligible surviving spouse remains eligible for benefits under the ECHO 
for a period of 3 years from the date the active duty sponsor dies. Any 
other eligible surviving dependent remains eligible for benefits under 
the ECHO for a period of three years from the date the active duty 
sponsor dies or until the surviving eligible dependent:
    (A) Attains 21 years of age, or
    (B) Attains 23 years of age or ceases to pursue a full-time course 
of study

[[Page 159]]

prior to attaining 23 years of age, if, at 21 years of age, the eligible 
surviving dependent is enrolled in a full-time course of study in a 
secondary school or in a full-time course of study in an institution of 
higher education approved by Secretary of Defense and was, at the time 
of the sponsor's death, in fact dependent on the member for over one-
half of such dependent's support.
    (iv) A spouse, child, or unmarried person (as defined in paragraphs 
Sec. 199.3(b)(2)(i), (b)(2)(ii), or (b)(2)(iv)) of a deceased member of 
the Uniformed Services who, at the time of the member's death was 
receiving benefits under ECHO, and the member at the time of death was 
eligible for receipt of hostile-fire pay, or died as a result of a 
disease or injury incurred while eligible for such pay. In such a case, 
the surviving dependent remains eligible for benefits under ECHO through 
midnight of the dependent's twenty-first birthday.
    (2) 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.
    (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 160]]

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 receiving benefits under 
paragraph (c)(5), 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 
accrues to the fiscal year benefit limit of $36,000.
    (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

[[Page 161]]

increase the cost to the Department 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 162]]

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


[[Page 163]]

    (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) and EHHC respite care, provided in a given fiscal year to a 
beneficiary, may not exceed $36,000 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 Section 199.4, and accrues to the fiscal 
year benefit limit specified in paragraph (f)(3) of this section.
    (ii) Cost-share. A cost-share, as provided by paragraph (f)(2) of 
this section, is required for each month in which equipment is purchased 
under this section. However, in no month shall a sponsor be required to 
pay more than one cost-share regardless of the number of benefits the 
sponsor's dependents received under this section.
    (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

[[Page 164]]

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 and adjusted according to the actual number of days in the 
month the services were provided.
    (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 
accordingly. Unless waived by the Director, TRICARE Management Activity 
or designee, 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 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 
requirements 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 for beneficiaries receiving 
institutional care, 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 $36,000 per fiscal year 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

[[Page 165]]

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 (h)(3)(v)(A) notwithstanding, 
no public facility use certification is required for services and items 
that are provided under Part C of the Individuals with Disabilities 
Education Act in accordance with the Individualized Family Services Plan 
and that are otherwise allowable under the ECHO.
    (i) 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) Effective date. All changes to this section are effective as of 
October 14, 2008, and claims for ECHO benefits provided on or after that 
date will be reprocessed retroactively to that date as necessary.

[69 FR 51564, Aug. 20, 2004, as amended at 71 FR 47092, Aug. 16, 2006; 
72 FR 2447, Jan. 19, 2007; 75 FR 47711, Aug. 9, 2010]



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

[[Page 166]]

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 
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

[[Page 167]]

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 SNF or a HHA, in order to be an authorized provider under 
TRICARE, must enter into a participation agreement with TRICARE for all 
claims.
    (C) Corporate services providers authorized as CHAMPUS providers 
under the provisions of paragraph (f) of this section must enter into a 
participation agreement as provided by the Director, OCHAMPUS, or 
designee.
    (ii) 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 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

[[Page 168]]

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 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;

[[Page 169]]

    (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.
    (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

[[Page 170]]

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.
    (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.

[[Page 171]]

    (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.
    (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

[[Page 172]]

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.
    (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)).

    Note: If a pediatric SNF is certified by Medicaid, it will be 
considered to meet the Medicare certification requirement in order

[[Page 173]]

to be an authorized provider under TRICARE.

    (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 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

[[Page 174]]

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 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

[[Page 175]]

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.
    (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

[[Page 176]]

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 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

[[Page 177]]

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;
    (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

[[Page 178]]

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 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.


[[Page 179]]


    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.
    (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

[[Page 180]]

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;
    (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

[[Page 181]]

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 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 free-standing psychiatric partial 
hospitalization program must be certified pursuant to TRICARE 
certification standards. Such standards shall incorporate the basic 
standards set forth in paragraphs

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(b)(4)(xii)(A) through (D) of this section, and shall include such 
additional elaborative criteria and standards as the Director, TRICARE 
Management Activity, 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 free-standing program. Approval of a hospital by TRICARE is 
sufficient for its partial hospitalization program to be an authorized 
TRICARE provider. Such hospital-based partial hospitalization programs 
are not required to be separately certified pursuant to TRICARE 
certification standards.
    (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. 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

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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.
    (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

[[Page 184]]

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 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.

[[Page 185]]

    (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 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

[[Page 186]]

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) Free-standing partial hospitalization programs shall 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, 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

[[Page 187]]

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 
interviewing 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 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

[[Page 188]]

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;
    (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

[[Page 189]]

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 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.

[[Page 190]]

    (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 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

[[Page 191]]

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.
    (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.

[[Page 192]]

    (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.
    (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

[[Page 193]]

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 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

[[Page 194]]

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 for authorized 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.
    (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 home health 
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;

[[Page 195]]

    (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.
    (xvi) CAHs. CAHs must meet all conditions of participation under 42 
CFR 485.601 through 485.645 in relation to TRICARE beneficiaries in 
order to receive payment under the TRICARE program. If a CAH provides 
inpatient psychiatric services or inpatient rehabilitation services in a 
distinct part unit, these distinct part units must meet the conditions 
of participation in 42 CFR 485.647, with the exception of being paid 
under the inpatient prospective payment system for psychiatric 
facilities as specified in 42 CFR 412.1(a)(2) or the inpatient 
prospective payment system for rehabilitation hospitals or 
rehabilitation units as specified in 42 CFR 412(a)(3).
    (xvii) Sole community hospitals (SCHs). SCHs must meet all the 
criteria for classification as an SCH under 42 CFR 412.92, in order to 
be considered an SCH under the TRICARE program.
    (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 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

[[Page 196]]

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.
    (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 had 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.

[[Page 197]]

    (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 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(j)(1)(ix) 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:

[[Page 198]]

    (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
    (2) Is certified by the Council on Certification of Nurse 
Anesthetists, or its successor organization.
    (K) Other individual paramedical providers. (1) 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 paramedical providers.
    (i) Licensed registered nurses.
    (ii) Audiologists.
    (2) 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, a certified 
physician assistant or certified nurse practitioner and a physician, a 
certified physician assistant, or certified nurse practitioner must also 
provide continuing and ongoing

[[Page 199]]

oversight and supervision of the program or episode of treatment 
provided by these individual paramedical providers.
    (i) Licensed registered physical therapist and occupational 
therapist.
    (ii) Licensed registered speech therapists (speech pathologists).
    (L) Nutritionist. A nutritionist may provide DSMT via an accredited 
DSMT program. The nutritionist must be licensed by the State in which 
the care is provided, and must be under the supervision of a physician 
who is overseeing the DSMT program.
    (M) Registered Dietitian. A dietitian may provide DSMT via an 
accredited DSMT program. The dietitian must be licensed by the State in 
which the care is provided, and must be under the supervision of a 
physician who is overseeing the DSMT program.
    (N) Certified mental health counselor. For the purposes of CHAMPUS, 
a certified mental health counselor (CMHC) must be licensed for 
independent practice in mental health counseling by the jurisdiction 
where practicing. In jurisdictions with two or more licenses allowing 
for differing scopes of independent practice, the licensed mental health 
counselor may only practice within the scope of the license he or she 
possesses. In addition, a CMHC must meet all of the requirements 
contained in this paragraph (c)(3)(iii)(N)(1) or the requirements of 
paragraph (c)(3)(iii)(N)(2) of this section.
    (1) The requirements of this paragraph are that the CMHC:
    (i) Must have passed the National Clinical Mental Health Counselor 
Examination (NCMHCE) or its successor as determined by the Director, 
TMA; and
    (ii) Must possess a master's or higher-level degree from a mental 
health counseling program of education and training accredited by the 
Council for Accreditation of Counseling and Related Educational Programs 
(CACREP); and
    (iii) Must have a minimum of two (2) years of post-master's degree 
supervised mental health counseling practice which includes a minimum of 
3,000 hours of supervised clinical practice and 100 hours of face-to-
face supervision. This supervision must be provided by a mental health 
counselor who is licensed for independent practice in mental health 
counseling in the jurisdiction where practicing and must be conducted in 
a manner that is consistent with the guidelines for supervision of the 
American Mental Health Counselors Association.
    (2) The requirements of this paragraph are that the CMHC, prior to 
January 1, 2015:
    (i) Possess a master's or higher-level degree from a mental health 
counseling program of education and training accredited by CACREP and 
must have passed the National Counselor Examination (NCE); or
    (ii) Possess a master's or higher-level degree from a mental health 
counseling program of education and training from either a CACREP or 
regionally accredited institution and have passed the NCMHCE; and
    (iii) Must have a minimum of two (2) years of post-master's degree 
supervised mental health counseling practice which includes a minimum of 
3,000 hours of supervised clinical practice and 100 hours of face-to-
face supervision. This supervision must be provided by a mental health 
counselor who is licensed for independent practice in mental health 
counseling in the jurisdiction where practicing and must be conducted in 
a manner that is consistent with the guidelines for supervision of the 
American Mental Health Counselors Association.
    (3) The Director, TRICARE Management Activity may amend or modify 
existing or specify additional certification requirements as needed to 
accommodate future practice and licensing standards and to ensure that 
all CMHCs continue to meet educational, licensing and clinical training 
requirements considered appropriate.
    (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.

[[Page 200]]

    (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.
    (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

[[Page 201]]

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) Supervised mental health counselor. For the purposes of TRICARE, 
a supervised mental health counselor is an individual who does not meet 
the requirements of a certified mental health counselor in paragraph 
(c)(3)(iii)(N) of this section, but meets the requirements of this 
paragraph (c)(3)(iv)(C). After December 31, 2014, this category of 
provider will no longer be recognized by TRICARE and no reimbursement 
may be made to any person for services provided by this category of 
provider. However, prior to January 1, 2015, a supervised mental health 
counselor is one who meets all of the following requirements and 
conditions of practice:
    (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 3,000 hours 
of clinical work and 100 hours of face-to-face supervision; and
    (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 TRICARE 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 
of this part); and
    (iv) The date of services provided is on or before December 31, 
2014.
    (D) The following additional information applies to each of the 
above categories of extramedical individual providers:

[[Page 202]]

    (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 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. In addition to 
being subject to the policies and procedures for authorized providers 
established by this section, additional policies and procedures may be 
established for authorized pharmacies under Sec. 199.21 of this part 
implementing the Pharmacy Benefits Program.

[[Page 203]]

    (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 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

[[Page 204]]

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
    (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

[[Page 205]]

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 CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and at www.fdsys.gov.



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 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

[[Page 206]]

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.
    (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

[[Page 207]]

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.).
    (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

[[Page 208]]

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.
    (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:

[[Page 209]]

    (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 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

[[Page 210]]

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 
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

[[Page 211]]

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.
    (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

[[Page 212]]

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 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

[[Page 213]]

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.

    (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

[[Page 214]]

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]

    Editorial Note: For Federal Register citations affecting Sec. 
199.7, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and at www.fdsys.gov.



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 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

[[Page 215]]

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 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.

[[Page 216]]

    (d) Special considerations--(1) CHAMPUS and Medicare--(i) General 
rule. In any case in which a beneficiary is eligible for both Medicare 
and CHAMPUS received medical or dental care for which payment may be 
made under Medicare and CHAMPUS, Medicare is always the primary payer 
except in the case of retroactive determinations of disability as 
provided in paragraph (d)(1)(v) of this section. 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 under CHAMPUS shall be the amount of 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.
    (C) For Medicare beneficiaries who enroll in Medicare Part D, the 
Part D plan is primary and TRICARE is secondary payer. TRICARE will pay 
the beneficiary's out-of-pocket costs for Medicare and TRICARE covered 
medications, including the initial deductible and Medicare Part D cost-
sharing amounts up to the initial coverage limit of the Medicare Part D 
plan. The Medicare Part D plan, although the primary plan, pays nothing 
during any coverage gap period. When the beneficiary becomes responsible 
for 100 percent of the drug costs under a Part D coverage gap period, 
the beneficiary may use the TRICARE pharmacy benefit as the secondary 
payer. TRICARE will cost share during the coverage gap to the same 
extent as it does under Section 199.21 for beneficiaries not enrolled in 
Medicare Part D plan. The beneficiary is responsible for the applicable 
TRICARE pharmacy cost-sharing amounts (and deductible if using a retail 
non-network pharmacy). Part D plan sponsors may offer a defined standard 
benefit, or an actuarially equivalent standard benefit. Part D plan 
sponsors may also offer alternative prescription drug coverage, which 
may consist of basic alternative coverage or enhanced alternative 
coverage. Therefore depending on the Part D plan that a beneficiary 
chooses, monthly premiums, coinsurances, co-pays, deductibles and 
benefit design may vary from plan to plan. TRICARE payment of the 
beneficiary's initial deductible, if any, along with payment of any 
beneficiary cost share count towards total spending on drugs, and may 
have the effect of moving the beneficiary more quickly through the 
initial phase of coverage to the coverage gap. Irrespective of the phase 
of the benefit in which a beneficiary may be, if a beneficiary is 
accessing a pharmacy under contract with his or her Part D plan, the 
provider will bill the Part D plan first, then TRICARE. If the 
beneficiary chooses to use his or her TRICARE pharmacy benefit during a 
coverage gap under Part D, the beneficiary may do so, but the 
beneficiary is responsible for the TRICARE cost-shares.
    (iv) 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

[[Page 217]]

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, 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) Retroactive determinations of disability. In circumstances 
involving determinations of retroactive Medicare Part A entitlement for 
persons under 65 years of age, Medicare becomes the primary payer 
effective as of the date of issuance of the retroactive determination by 
the Social Security Administration. For care and services rendered prior 
to issuance of the retroactive determination, the CHAMPUS payment will 
be determined consistent with paragraph (d)(1)(iii)(B) of this section 
notwithstanding the beneficiary's retroactive entitlement for Medicare 
Part A during that period.
    (vii) Effect on enrollment in Medicare Advantage Prescription Drug 
(MA-PD) plan. In the case of a beneficiary enrolled in a MA-PD plan who 
receives items or services for which payment may be made under both the 
MA-PD plan and CHAMPUS/TRICARE, a claim for the beneficiary's normal 
out-of-pocket costs under the MA-PD plan may be submitted for CHAMPUS/
TRICARE 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/
TRICARE amount payable is limited to the amount that would have been 
paid if the beneficiary had received care covered by the Medicare 
Advantage plan. If the TRICARE-Medicare beneficiary enrolls in a MA-PD 
drug plan, it generally will be governed by Medicare Part C, although 
plans that offer a prescription drug benefit must comply with Medicare 
Part D rules. The beneficiary has to pay the plan's monthly premiums and 
obtain all medical care and prescription drugs through the Medicare 
Advantage plan before seeking CHAMPUS/TRICARE payment. CHAMPUS/TRICARE 
payment for such beneficiaries may not exceed that which would be 
payable for a beneficiary under paragraph (d)(1)(iii)(C) of this 
section.
    (viii) 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.
    (ix) 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,

[[Page 218]]

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.
    (6) Prohibition against financial and other incentives not to enroll 
in a group health plan--(i) General rule. Under 10 U.S.C. 1097c, an 
employer or other entity is prohibited from offering TRICARE 
beneficiaries financial or other benefits as incentives not to enroll 
in, or to terminate enrollment in, a group health plan that is or would 
be primary to TRICARE. This prohibition applies in the same manner as 
section 1862(b)(3)(C) of the Social Security Act applies to incentives 
for a Medicare-eligible employee not to enroll in a group health plan 
that is or would be primary to Medicare.
    (ii) Application of general rule. The prohibition in paragraph 
(d)(6)(i) of this section precludes offering to TRICARE beneficiaries an 
alternative to the employer primary plan unless:
    (A) The beneficiary has primary coverage other than TRICARE; or
    (B) The benefit is offered under a cafeteria plan under section 125 
of the Internal Revenue Code and is offered to all similarly situated 
employees, including non-TRICARE eligible employees; or
    (C) The benefit is offered under a cafeteria plan under section 125 
of the Internal Revenue Code and, although offered only to TRICARE-
eligible employees, the employer does not provide any payment for the 
benefit nor receive any direct or indirect consideration or compensation 
for offering the benefit; the employer's only involvement is providing 
the administrative support for the benefits under the cafeteria plan, 
and the employee's participation in the plan is completely voluntary.
    (iii) Documentation. In the case of a benefit excluded by paragraph 
(d)(6)(ii)(C) of this section from the prohibition in paragraph 
(d)(6)(i) of this section, the exclusion is dependent on the employer 
maintaining in the employer's files a certification signed by the 
employer that the conditions described in paragraph (d)(6)(ii)(C) of 
this section are met, and, upon request of the Department of Defense, 
providing a copy of that certification to the Department of Defense.
    (iv) Remedies and penalties. (A) Remedies for violation of this 
paragraph (d)(6) include but are not limited to remedies under the 
Federal Claims Collection Act, 31 U.S.C. 3701 et seq.
    (B) Penalties for violation of this paragraph (d)(6) include a civil 
monetary penalty of up to $5,000 for each violation. The provisions of 
section 1128A of the Social Security Act, 42 U.S.C. 1320a-7a, (other 
than subsections (a) and (b)) apply to the civil monetary penalty in the 
same manner as the provisions apply to a penalty or proceeding under 
section 1128A.
    (v) Definitions. For the purposes of this paragraph (d)(6):
    (A) The term ``employer'' includes any State or unit of local 
government and any employer that employs at least 20 employees.

[[Page 219]]

    (B) The term ``group health plan'' means a group health plan as that 
term is defined in section 5000(b)(1) of the Internal Revenue Code of 
1986 without regard to section 5000(d) of the Internal Revenue Code of 
1986.
    (C) The term ``similarly situated'' means sharing common attributes, 
such as part-time employees, or other bona fide employment-based 
classifications consistent with the employer's usual business practice. 
(Internal Revenue Service regulations at 26 CFR 54.9802-1(d) may be used 
as a reference for this purpose). However, in no event shall eligibility 
for or entitlement to TRICARE (or ineligibility or non-entitlement to 
TRICARE) be considered a bona fide employment-based classification.
    (D) The term ``TRICARE-eligible employee'' means a covered 
beneficiary under section 1086 of title 10, United States Code, Chapter 
55, entitled to health care benefits under the TRICARE program.
    (vi) Procedures. The Departments of Defense and Health and Human 
Services are authorized to enter into agreements to further carry out 
this section.
    (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; 74 FR 55775, Oct. 29, 2009; 75 FR 
18054, Apr. 9, 2010; 77 FR 38176, June 27, 2012]



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 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

[[Page 220]]

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 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

[[Page 221]]

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 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

[[Page 222]]

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 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.


[[Page 223]]


    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 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

[[Page 224]]

(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. 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.

[[Page 225]]

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.
    (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

[[Page 226]]

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 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.

[[Page 227]]

    (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 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.

[[Page 228]]

    (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;
    (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

[[Page 229]]

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 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

[[Page 230]]

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:
    (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

[[Page 231]]

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 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

[[Page 232]]

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 situation, the provider bills the 
beneficiary, restitution to the beneficiary may be required by the 
Director, OCHAMPUS, or a designee, as a condition for consideration of 
reinstatement as a CHAMPUS authorized provider.
    (ii) 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, 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

[[Page 233]]

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 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

[[Page 234]]

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 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

[[Page 235]]

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.)
    (n) Third-party billing agents as defined in Sec. 199.2(b) of this 
part, while not considered providers, are subject to the provisions of 
this section to the same extent as such provisions apply to providers.

[54 FR 25246, June 14, 1989, as amended at 63 FR 48445, Sept. 10, 1998; 
78 FR 12954, Feb. 26, 2013]



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.
    (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

[[Page 236]]

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.
    (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

[[Page 237]]

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 
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.

[[Page 238]]

    (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 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.

[[Page 239]]

    (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 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

[[Page 240]]

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.
    (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

[[Page 241]]

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.
    (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.

[[Page 242]]

    (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.
    (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

[[Page 243]]

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 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,

[[Page 244]]

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)).
    (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

[[Page 245]]

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 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

[[Page 246]]

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 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

[[Page 247]]

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, funds or property from any 
person, partnership, association, corporation, governmental body or 
other legal entity, foreign or domestic, except another Federal agency, 
because of an erroneous payment of benefits under both CHAMPUS and the 
TRICARE program under Sec. 199.17 of this part. The term ``Civilian 
Health and Medical Program of the Uniformed Services'' (CHAMPUS) is 
defined in 10 U.S.C. 1072(4), and referred to under Sec. 199.17 as the 
basic CHAMPUS program, otherwise known as TRICARE Standard. The term 
``TRICARE program'' is defined in 10 U.S.C. 1072(7) and is referred to 
under Sec. 199.17 as the triple-option benefit of TRICARE Prime, 
TRICARE Extra, and TRICARE Standard. 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 benefit payments arising out of the 
administration of CHAMPUS and the TRICARE program. For the purpose of 
this section, references herein to TRICARE beneficiaries, claims, 
benefits, payments, or appeals shall include CHAMPUS beneficiaries, 
claims, benefits, payments, or appeals. A claim against several joint 
debtors arising from a single incident or transaction is considered one 
claim. The Director, TRICARE Management Activity (TMA), or a designee, 
may pursue collection against all joint debtors and is not required to 
allocate the burden of payment between debtors.
    (b) Authority--(1) Federal statutory authority. The Federal Claims 
Collection Act, 31 U.S.C. 3701, et seq., as amended by the Debt 
Collection Act of 1982 and the Debt Collection Improvement Act of 1996 
(DCIA), provides the basic authority under which claims may be asserted 
pursuant to this section. The DCIA is implemented by the Federal Claims 
Collection Standards, joint regulations issued by the Department of the 
Treasury (Treasury) and the Department of Justice (DOJ) (31 CFR Parts 
900-904), that prescribe government-wide standards for administrative 
collection, offset, compromise, suspension, or termination of agency 
collection action, disclosure of debt information to credit reporting 
agencies, referral of debts to private collection contractors for 
resolution, and referral to the Department of Justice for litigation to 
collect debts owed the Federal government. The regulations under this 
part are also issued under Treasury regulations implementing the DCIA 
(31 CFR part 285) and related

[[Page 248]]

statutes and regulations governing the offset of Federal salaries (5 
U.S.C. 5514; 5 CFR part 550, subpart K), administrative offset (31 
U.S.C. 3716; 31 CFR part 285, subpart A); administrative offset of tax 
refunds (31 U.S.C. 3720A) and offset of military pay (37 U.S.C. 1007(c); 
Volume 7A, Chapter 50 and Volume 7B, Chapter 28 of the Department of 
Defense Financial Management Regulation, DOD 7000.14-R \1\ (DoDFMR)).
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    \1\ Copies may be obtained at http://www.dtic.mil/whs/directives/.
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    (2) Other authority. Federal claims may arise under authorities 
other than the federal statutes, referenced above. These include, but 
are not limited to:
    (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 Director, TMA, or a designee, shall aggressively 
collect all debts arising out of its activities. Claims arising out of 
any incident, which has or probably will generate a claim in favor of 
the government, will not be compromised, except as otherwise provided in 
this section, nor will any person not authorized to take final action on 
the government's claim, compromise or terminate collection action. Title 
28 U.S.C. 2415-2416 establishes a statute of limitation applicable to 
the government where previously neither limitations nor latches were 
available as a defense. Claims falling within the provisions of this 
statute will be referred to the Department of Justice 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 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 of this 
part 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 
an appealable issue. For example, a TRICARE contractor may erroneously 
make payment for services, which are excluded as TRICARE benefits 
because they are determined to be not medically necessary. In that 
event, the contractor will initiate recoupment action, and at the same 
time, the 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. The recoupment action and the 
administrative appeal are separate actions. However, in an appropriate 
case, the pendency of the appeal may provide a basis for the suspension 
of collection in the recoupment case. If an appeal were resolved 
entirely in favor of the appealing party, it 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, and 
compromise or to suspend or terminate collection action arising on 
claims under the Federal Claims Collection Act has been delegated to the 
Director, TMA, or a designee.
    (f) Recoupment of erroneous payments. (1) 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 TRICARE include mathematical errors, payment for care 
provided to an ineligible person, payment for care which is not an 
authorized benefit, payment for duplicate claims, incorrect 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 TRICARE claims or other fraud fall under 
the cognizance of the Department of Justice. Consequently, procedures in 
this section apply to such

[[Page 249]]

claims only when specifically authorized or directed by the Department 
of Justice. (See 31 CFR 900.3.) Due to the nature of contractual 
agreements between network providers and TRICARE prime contractors, 
recoupment procedures may be modified or adapted to conform to network 
agreements. The provisions of Sec. 199.11 shall apply if recoupment 
under the network agreements is not successful.
    (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, patient, beneficiary, provider, physician or other 
supplier of products or services under TRICARE.
    (ii) Debtor defined. As used herein, ``debtor'' means a sponsor, 
beneficiary, provider, physician, other supplier of services or 
supplies, or any other person who for any reason has been erroneously 
paid under TRICARE. It includes an individual, partnership, corporation, 
professional corporation or association, estate, trust or any other 
legal entity.
    (iii) Delinquency defined. A debt is ``delinquent'' if it has not 
been paid by the date specified in the initial written demand for 
payment (that is, the initial written notification) or other applicable 
contractual agreement, unless other satisfactory payment arrangements 
have been made by the date specified in the initial written demand for 
payment. A debt is considered delinquent if at any time after entering 
into a repayment agreement, the debtor fails to satisfy any obligations 
under that agreement.
    (3) Claims arising from erroneous TRICARE payments in situations 
where the beneficiary has entitlement to an insurance, medical service, 
health and medical plan, including any plan offered by a third party 
payer as defined in 10 U.S.C. 1095(h)(1) 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 
following the procedures in paragraph (f) of this section. If the other 
plan has not made payment to the beneficiary or provider, the contractor 
shall first attempt to recover the overpayment from the other plan 
through the contractor's coordination of benefits procedures. If the 
overpayment cannot be recovered from the other plan, or if the other 
plan has made payment, the overpayment will be recovered from the party 
that received the erroneous payment from TRICARE. Nothing in this 
section shall be construed to require recoupment from any sponsor, 
beneficiary, provider, supplier and/or the Medicare Program under Title 
XVIII of the Social Security Act in the event of a retroactive 
determination of entitlement to SSDI and Medicare Part A coverage made 
by the Social Security Administration as discussed in Sec. 199.8(d) of 
this part.
    (4) Claim 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 of persons eligible to 
receive benefits under TRICARE. However, it is the responsibility of the 
Uniformed Services to provide eligible TRICARE beneficiaries with 
accurate and appropriate means of identification. When sources of 
civilian medical care exercise reasonable care and precaution 
identifying persons claiming to be eligible TRICARE beneficiaries, and 
furnish otherwise covered services and supplies to such persons in good 
faith, TRICARE benefits may be paid subject to prior approval by the 
Director, TMA, or a designee, notwithstanding the fact that the person 
receiving the services and supplies is subsequently determined to be 
ineligible for benefits.

[[Page 250]]

Good faith payments will not be authorized for services and supplies 
provided by a civilian source of medical care because of its own 
careless identification procedures.
    (ii) When it is determined that a person was not a TRICARE 
beneficiary, the TRICARE contractor and the civilian source of medical 
care are expected to make all reasonable efforts to obtain payment or to 
recoup the amount of the good faith payment from the person who 
erroneously claimed to be the TRICARE beneficiary. Recoupment of good 
faith payments initiated by the TRICARE contractor will be processed 
pursuant to the provisions of paragraph (f) of this section.
    (6) Recoupment procedures. (i) Initial action. When an erroneous 
payment is discovered, the TRICARE contractor normally will be required 
to take the initial action to effect recoupment. Such actions will be in 
accordance with the provisions of this part and the TRICARE contracts 
and will include a demand (or demands) for refund or an offset against 
any other TRICARE payment(s) becoming due the debtor. When the efforts 
of the TRICARE contractor to effect recoupment are not successful within 
a reasonable time, recoupment cases will be referred to the Office of 
General Counsel, TMA, 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. Written demand(s) for payment shall inform 
the debtor of the following:
    (A) The basis for and amount of the debt and the consequences of 
failing to cooperate to resolve the debt;
    (B) The right to inspect and copy TRICARE records pertaining to the 
debt;
    (C) The opportunity to request an administrative review by the 
TRICARE contractor; and that such a request must be received by the 
TRICARE contractor within 90 days from the date of the initial demand 
letter;
    (D) That payment of the debt is due within 30 days from the date of 
the initial demand notification;
    (E) That interest will be assessed on the debt at the Treasury 
Current Value of Funds rate, pursuant to 31 U.S.C. 3717, and will begin 
to accrue on the date of the initial demand letter; and that interest 
will be waived on the debt, or any portion thereof, which is paid within 
30 days from the date of the initial demand notification letter;
    (F) That administrative costs and penalties will be charged pursuant 
to 31 CFR 901.9;
    (G) That collection by offset against current or subsequent claims 
or other amounts payable from the government may be taken;
    (H) The opportunity to enter into a written agreement to repay the 
debt;
    (I) The name, address, and phone number of a contact person or 
office that the debtor may contact regarding the debt.
    (iii) A minimum of one demand letter is required. However, the 
specific content, timing and number of demand letters may be tailored to 
the type and amount of the debt, and the debtor's response, if any. 
Contractors' demand letters must be mailed or hand-delivered on the same 
date they are dated.
    (iv) The initial or subsequent demand letters may also inform the 
debtor of the requirement to report delinquent debts to credit reporting 
agencies and to collection agencies, the requirement to refer debts to 
the Treasury Offset Program for offset from Federal income tax refunds 
and other amounts payable by the Government, offset from state payments, 
the requirement to refer debts to Treasury for collection and TRICARE 
policies concerning the referral of delinquent debts to the Department 
of Justice for enforced collection action. The initial or subsequent 
demand letter may also inform the debtor of TRICARE policies concerning 
waiver. When necessary to protect the Government's interest (for example 
to prevent the running of a statute of limitations), written demand may 
be preceded by other appropriate actions under this regulation, 
including referral to the Department of Justice for litigation. There 
should be no undue delay in responding to any communication received 
from the debtor. Responses to communications from debtors should be made 
within 30 days of receipt whenever feasible. If prior to the initiation 
of the demand process or at any time during or after completion

[[Page 251]]

of the demand process, the Director, TMA, or a designee, determines to 
pursue or is required to pursue offset, the procedures applicable to 
administrative offset, found at paragraph (f)(6)(v) of this section, 
must be followed. If it appears that initial collection efforts are not 
productive or if immediate legal action on the claim appears necessary, 
the claim shall be referred promptly by the contractor to the Office of 
General Counsel, TMA.
    (v) Collection by administrative offset. Collections by offset will 
be undertaken administratively in every instance when feasible. 
Collections may be taken by administrative offset under 31 U.S.C. 3716, 
the common law or other applicable statutory authority. No collection by 
offset may be undertaken unless the debtor has been sent a written 
demand for payment, including the procedural safeguards described in 
paragraph (f)(6)(ii) of this section, unless the failure to take the 
offset would substantially prejudice the Government's ability to collect 
the debt, and the time before payment is to be made does not reasonably 
permit the time for sending written notice. Such prior offset must be 
promptly followed by sending a written notice and affording the debtor 
the opportunity for a review by the TRICARE contractor. Examples of 
erroneous payments include, but are not limited to, claims submitted by 
individuals ineligible for TRICARE benefits, claims submitted for non-
covered services or supplies, claims for which payments by another 
insurance or health plan reduce TRICARE liability, and from claims made 
from participating providers in which payment was initially erroneously 
made to the beneficiary. The resolution of recoupment claims rarely 
involves issues of credibility or veracity and a review of the written 
record is ordinarily an adequate means to correct prior mistakes. For 
this reason, the pre-offset oral hearing requirements of the Federal 
Claims Collection Standards, 31 CFR 901.3(e) do not apply to the 
recoupment of erroneous TRICARE payments. However, in instances where an 
oral hearing is not required, the debtor will be afforded an 
administrative review if the TRICARE contractor receives a written 
request for an administrative review within 90 days from the date of the 
initial demand letter. The appeals procedures described in Sec. 199.10 
of this part, afford a TRICARE beneficiary or participating provider an 
opportunity for an administrative appellate review, including under 
certain circumstances, the right to an oral hearing before a hearing 
officer when an appealable issue exists. TRICARE contractors may take 
administrative action to offset erroneous payments against other current 
TRICARE 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 part of 
a debt may be offset depending on the amount available for offset. Any 
requests for offset received from other agencies and garnishment orders 
issued by courts of competent jurisdiction will be forwarded to the 
Office of General Counsel, TMA. Unless otherwise provided by law, 
administrative offset of payments under the authority of 31 U.S.C. 3716 
may not be conducted more than 10 years after the Government's right to 
collect the debt first accrued, unless facts material to the 
Government's right to collect the debt were not known and could not 
reasonably have been known by the TRICARE official or officials charged 
with the responsibility to discover and collect such debts. This 
limitation does not apply to debts reduced to judgment. This section 
does not apply to debts arising under the Social Security Act, except as 
provided in 42 U.S.C. 404, payments made under the Social Security Act, 
except as provided for in 31 U.S.C. 3716(c), debts arising under, or 
payments made under, the Internal Revenue Code, except for offset of tax 
refunds or tariff laws of the United States; offsets against Federal 
salaries to the extent these standards are inconsistent with regulations 
published to implement such offsets under 5 U.S.C. 5514 and 31 U.S.C. 
3716; offsets under 31 U.S.C. 3728 against a judgment obtained by a 
debtor against the United States; offset or recoupment

[[Page 252]]

under common law, state law, or federal statutes specifically 
prohibiting offset or recoupment of particular types of debts or offsets 
in the course of judicial proceedings, including bankruptcy.
    (A) Referral for centralized administrative offset. When cost-
effective, legally enforceable non-tax debts delinquent over 180 days 
that are eligible for collection through administrative offset shall be 
referred to Treasury for administrative offset, unless otherwise 
exempted from referral. Referrals shall include certification that the 
debt is past due and legally enforceable and that TMA has complied with 
all due process requirements of the statute-authorizing offset. 
Administrative offset, including administrative offset against tax 
refunds due debtors under 26 U.S.C. 6402, in accordance with 31 U.S.C. 
3720A, shall be effected through referral for centralized administrative 
offset, after debtors have been afforded at least sixty (60) days notice 
required in paragraph (f)(6) of this section. Salary offsets shall be 
effected through referral for centralized administrative offset, after 
debtors have been afforded due process required by 5 U.S.C. 5514, in 
accordance with 31 CFR 285.7. Referrals for salary offset shall include 
certification that the debts are past due, legally enforceable debts and 
that TMA has complied with all due process requirements under 5 U.S.C. 
5514 and applicable agency regulations. The Treasury, Financial 
Management Service (FMS) may waive the salary offset certification 
requirement set forth in 31 CFR 285.7, as a prerequisite to submitting 
the debt to FMS for offset from other payment types. If FMS waives the 
certification requirement, before an offset occurs, TMA will provide the 
employee with the notice and opportunity for a hearing as required by 5 
U.S.C. 5514 and applicable regulations, and will certify to FMS that the 
requirements of 5 U.S.C. 5514 and applicable agency regulations have 
been met. TMA is not required to duplicate notice and administrative 
review or salary offset hearing opportunities before referring debts for 
centralized administrative offset when the debtor has been previously 
given them.
    (B) Referral for non-centralized administrative offset. Unless 
otherwise prohibited by law, when centralized administrative offset is 
not available or appropriate, past due legally enforceable non-tax-
delinquent debts that are eligible for referral may be collected through 
non-centralized administrative offset through a request directly to the 
payment-authorizing agency. Referrals shall include certification that 
the debts are past due and that the agency has complied with due process 
requirements under 31 U.S.C. 3716(a) or other applicable authority and 
applicable agency regulations concerning administrative offset. 
Generally, non-centralized administrative offsets will be made on an ad 
hoc case-by-case basis, in cooperation with the agency certifying or 
authorizing payments to the debtor.
    (vi) Collection by transfer of debts to Treasury or a Treasury-
designated debt collection center for collection through cross 
servicing. (A) The Director, TMA or a designee, is required to transfer 
legally enforceable non-tax debts that are delinquent 180 days or more 
to Treasury for collection through cross-servicing (31 U.S.C. 3711(g); 
31 CFR 285.12.) Debts referred or transferred to Treasury or Treasury-
designated debt collection centers shall be serviced, collected, or 
compromised, or the collection action will be suspended or terminated, 
in accordance with the statutory requirements and authorities applicable 
to the collection of such debts. Agencies operating Treasury-designated 
debt collection centers are authorized to charge a fee for services 
rendered regarding referred or transferred debts. This fee may be paid 
out of amounts collected and may be added to the debt as an 
administrative cost. Referrals will include certification that the debts 
transferred are valid, legally enforceable debts, that there are no 
legal bars to collection and that the agency has complied with all 
prerequisites to a particular collection action under the applicable 
laws, regulations or policies, unless the agency and Treasury agree that 
Treasury will do so on behalf of the agency.
    (B) The requirement of paragraph (f)(1) of this section does not 
apply to any debt that:

[[Page 253]]

    (1) Is in litigation or foreclosure.
    (2) Will be disposed of under an approved asset sale program.
    (3) Has been referred to a private collection contractor for a 
period of time acceptable to Treasury.
    (4) Will be collected under internal offset procedures within 3 
years after the debt first became delinquent.
    (5) Is exempt from this requirement based on a determination by the 
Secretary of the Treasury that exemption for a certain class of debt is 
in the best interest of the United States.
    (vii) Collection by salary offset. When a debtor is a member of the 
military service or a retired member and collection by offset against 
other TRICARE payments due the debtor cannot be accomplished, and there 
have been no positive responses to a demand for payment, the Director, 
TMA, or a designee, may refer the debt for offset from the debtor's pay 
account pursuant to 37 U.S.C. 1007(c), as implemented by Volume 7A, 
Chapter 50 and Volume 7B, Chapter 28 of the DoDFMR. Collection from a 
Federal employee may be effected through salary offset under 5 U.S.C. 
5514.
    (A) For collections by salary offset the Director, TMA, or designee, 
will issue written notification, as required by 5 CFR 550.1104(d) at 
least 30 days before any offsets are taken. In addition, the 
notification will advise the employee that if he or she retires, resigns 
or his or her employment ends before collection of the debt is 
completed, collection may be made from subsequent payments of any nature 
due from the United States (e.g., final salary payment, lump-sum leave 
under 31 U.S.C. 3716 due the employee as of date of separation.) A 
debtor's involuntary payment of all or part of a debt being collected 
will not be construed as a waiver of any rights the debtor may have 
under 5 U.S.C. 5514 or any other provision of contract or law, unless 
there are statutory or contractual provisions to the contrary or the 
employee's paying agency is directed by an administrative or judicial 
order to refund amounts deducted from his or her current pay. No 
interest will be paid on amounts waived or determined not to be owed 
unless there are statutory or contractual provisions to the contrary.
    (B) Petition for hearing. The notice of the proposed offset will 
advise the debtor of his or her right to petition for a hearing. The 
petition for hearing must be signed by the debtor or his or her 
representative and must state whether he or she is contesting debt 
validity, debt amount and/or the terms of the proposed offset schedule. 
It must explain with reasonable specificity all the facts, evidence and 
witnesses, if any (in the case of an oral hearing and a summary of their 
anticipated testimony), which the debtor believes support his or her 
position, and include any supporting documentation. If contesting the 
terms of the proposed offset schedule, the debtor must provide financial 
information including a completed Department of Justice Financial 
Statement of Debtor form (OBD-500 or other form prescribed by DOJ), 
including specific details concerning income and expenses of the 
employee, his or her spouse and dependents for 1-year period preceding 
the debt notification and projected income and expenses for the proposed 
offset period and a statement of the reason why the debtor believes the 
salary offset schedule will impose extreme financial hardship. Upon 
receipt of the petition for hearing, the Director, TMA, or a designee, 
will complete reconsideration. If the Director, TMA, or a designee 
determines that the debt amount is not owed, that a less amount is owed, 
or that the terms of the employee's proposed offset schedule are 
acceptable, it will advise the debtor and request that the employee 
accept the results of the reconsideration in lieu of a hearing. If the 
employee declines to accept the results of reconsideration in lieu of a 
hearing, the debtor will be afforded a hearing. Ordinarily, a petition 
for hearing and required submissions that are not timely filed, shall be 
accepted after expiration of the deadline provided in the notice of the 
proposed offset, only when the debtor can demonstrate to the Director, 
TMA, 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 or because of failure to receive notice 
of the time limit (unless he or she was otherwise aware of it). Each 
request for an

[[Page 254]]

exception to the timely filing requirement will be considered on its own 
merits. The decision of the Director, TMA, or a designee, on a request 
for an exception to the timely filing requirement shall be final.
    (C) Extreme financial hardship. The maximum authorized amount that 
may be collected through involuntary salary offset is the lesser of 15 
percent of the employee's disposable pay or the full amount of the debt. 
An employee who has petitioned for a hearing may assert that the maximum 
allowable rate of involuntary offset produces extreme financial 
hardship. An offset produces an extreme financial hardship if the offset 
prevents the employee from meeting the costs necessarily incurred for 
the essential expenses of the employee, employee's spouse and 
dependents. These essential expenses include costs incurred for food, 
housing, necessary public utilities, clothing, transportation and 
medical care. In determining whether the offset would prevent the 
employee from meeting the essential expenses identified above, the 
following shall be considered:
    (1) Income from all sources of the employee, the employee's spouse, 
and dependents;
    (2) The extent to which assets of the employee, employee's spouse 
and dependents are available to meet the offset and essential 
subsistence expenses;
    (3) Whether these essential subsistence expenses have been minimized 
to the greatest extent possible;
    (4) The extent to which the employee or the employee's spouse can 
borrow money to meet the offset and other essential expenses; and
    (5) The extent to which the employee and the employee's spouse and 
dependents have other exceptional expenses that should be taken into 
account and whether these expenses have been minimized.
    (D) Form and content of hearings. The resolution of recoupment 
claims rarely involves issues of credibility or veracity and a review of 
the written record is ordinarily an adequate means to determine the 
validity or amount of the debt and/or the terms of a proposed offset 
schedule. The Director, TMA, or a designee, will determine whether an 
oral hearing is required. A debtor who has petitioned for a hearing, but 
who is not entitled to an oral hearing will be given an administrative 
hearing, based on the written documentation submitted by the debtor and 
the Director, TMA, or a designee. If the Director, TMA, or a designee, 
determines that the debtor should be afforded the opportunity for an 
oral hearing, the debtor may elect to have a hearing based on the 
written record in lieu of an oral hearing. The Director, TMA, or a 
designee, will provide the debtor (or his representative) notification 
of the time, date and location of the oral hearing to be held if the 
debtor has been afforded an oral hearing. Copies of records documenting 
the debt will be provided to the debtor or his representative (if they 
have not been previously provided), at least 3 calendar days prior to 
the date of the oral hearing. At oral hearings, the only evidence 
permitted, except oral testimony, will be that which was previously 
submitted as pre-hearing submissions. At oral hearings, the debtor may 
not raise any issues not previously raised with TMA. In the absence of 
good cause shown, a debtor who fails to appear at an oral hearing will 
be deemed to have waived the right to a hearing and salary offset may be 
initiated.
    (E) Costs for attendance at oral hearings. Debtors and their 
witnesses will bear their own costs for attendance at oral hearings.
    (F) Hearing official's decision. The Hearing Official's decision 
will be in writing and will identify the documentation reviewed. It will 
indicate the amount of debt that he or she determined is valid and shall 
state the amount of the offset and the estimated duration of the offset. 
The determination of a hearing official designated under this section is 
considered an official certification regarding the existence and amount 
of the debt and/or the terms of the proposed offset schedule for the 
purposes of executing salary offset under 5 U.S.C. 5514. The Hearing 
Official's decision must be issued at the earliest practical date, but 
not later than 60 days from the date the petition for hearing is 
received by the Office of General Counsel, TMA, unless the debtor 
requests, and the Hearing

[[Page 255]]

Official grants a delay in the proceedings. If a hearing official 
determines that the debt may not be collected by salary offset, but the 
Director, TMA, or a designee, finds the debt is still valid, the 
Director, TMA or a designee, may seek collection through other means, 
including but not limited to, offset from other payments due from the 
United States.
    (viii) [Reserved]
    (ix) Collection of installments. Debts, including interest, penalty 
and administrative costs shall be collected in one lump sum whenever 
possible. However, when the debtor is financially unable to pay the debt 
in one lump sum, the TRICARE contractor or the Director, TMA, or 
designee, may accept payment in installments. Debtors claiming that lump 
sum payment will create financial hardship may be required to complete a 
Department of Justice Financial Statement of Debtor form or provide 
other financial information that will permit TMA to verify such 
representations. TMA may also obtain credit reports to assess 
installment requests. Normally, debtors will make installment payments 
on a monthly basis. Installment payment shall bear a reasonable 
relationship to the size of the debt and the debtor's ability to pay. 
Except when a debtor can demonstrate financial hardship or another 
reasonable cause exists, installment payments should be sufficient in 
size and frequency to liquidate the debt in 3 years or less. (31 CFR 
901.8(b)). Normally, installment payments of $75 or less will not be 
accepted unless the debtor demonstrates financial hardship. Any 
installment agreement with a debtor in which the total amount of 
deferred installments will exceed $750, should normally include an 
executed promissory agreement. Copies of installment agreements will be 
retained in the contractor's or TMA, Office of General Counsel's files.
    (x) Interest, penalties, and administrative costs. Title 31 U.S.C. 
3717 and the Federal Claims Collection Standards, 31 CFR 901.9, require 
the assessment of interest, penalty and administrative costs on 
delinquent debts. Interest shall accrue from the date the initial debt 
notification 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 (the Treasury tax and loan account rate). 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 begins to accrue, shall be waived. 
The Director, TMA, or designee, may extend this 30-day period on a case-
by-case basis, if it reasonably determines that such action is 
appropriate. 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. Interest shall not be compounded; that is, interest shall not 
be charged on interest, penalties, or administrative costs required by 
this section. However, if a debtor defaults on a previous repayment 
agreement, charges that accrued but were not collected under the 
defaulted agreement, shall be added to the principal under the new 
repayment agreement. 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, TMA, or 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 would be against equity 
and good conscience and not in the best interest of the United States. 
Some situations in which a waiver may be appropriate include:
    (A) Waiver of interest consistent with 31 CFR 903.2(c)(2) in 
connection with a suspension of collection when a TRICARE appeal is 
pending under 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 would be appropriate include: A 
debt arising when a

[[Page 256]]

TRICARE beneficiary in good faith files and is paid for a claim for 
medical services or supplies, which are later determined not to be 
covered benefits, or a debt arising when a TRICARE beneficiary is 
overpaid as the result of a calculation error on the part of the TRICARE 
contractor or TMA.
    (C) Waiver of interest where there has been an agreement to repay a 
debt in installments, there is no indication of fault or lack of good 
faith on the part of the debtor, and the amount of interest is so large 
in relation to the size of the installments that the debtor can 
reasonably afford to pay, that it is likely the debt will never be 
repaid in full. When a debt is paid in installments, the installment 
payments first will be applied to the payment of outstanding penalty and 
administrative cost charges, second, to accrued interest and then to 
principal. Administrative costs incurred as the result of a debt 
becoming delinquent (as defined in paragraph (f)(2)(iii) of this 
section) shall be assessed against a debtor. These administrative costs 
represent the additional costs incurred in processing and handling the 
debt because it became delinquent. The calculation of administrative 
costs should be based upon cost analysis establishing an average of 
actual additional costs incurred in processing and handling claims 
against other debtors in similar stages of delinquency. A penalty 
charge, not exceeding six percent a year, shall be assessed on the 
amount due on a debt that is delinquent for more than 90 days. This 
charge, which need not be calculated until the 91st day of delinquency, 
shall accrue from the date that the debt became delinquent.
    (xi) Referral to private collection agencies. TMA shall use 
government-wide debt collection contracts to obtain debt collection 
services provided by private contractors in accordance with 31 CFR 
901.5(b).
    (xii) Reporting delinquent debts to credit reporting agencies. 
Delinquent consumer debts shall be reported to credit reporting 
agencies. Delinquent debts are debts which are not paid or for which 
satisfactory payment arrangements are not made by the due date specified 
in the initial debt notification letter, or those for which the debtor 
has entered into a written payment agreement and installment payments 
are past due 30 days or longer. Such referrals shall comply with the 
Bankruptcy Code and the Privacy Act of 1974, 5 U.S.C. 552a, as amended. 
The provisions of the Privacy Act do not apply to credit bureaus (31 CFR 
901.4(1)). There is no requirement to duplicate the notice and review 
opportunities before referring debts to credit bureaus. Debtors will be 
advised of the specific information to be transmitted (i.e., name, 
address, and taxpayer identification number, information about the 
debt). Procedures developed for such referrals must ensure that an 
accounting of the disclosures shall be kept which is available to the 
debtor; that the credit reporting agencies are provided with corrections 
and annotations of disagreements of the debtor; and that reasonable 
efforts are made to ensure that the information to be reported is 
accurate, complete, timely and relevant. When requested by a credit-
reporting agency, verification of the information disclosed will be 
provided promptly. 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 not less than 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 credit 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. The requirements of this section do 
not apply to commercial debts, although commercial debts shall be 
reported to commercial credit

[[Page 257]]

bureaus. Treasury will report debts transferred to it for collection to 
credit reporting agencies on behalf of the Director, TMA, or a designee.
    (xiii) Use and disclosure of mailing addresses. In attempting to 
locate a debtor in order to collect or compromise a debt under this 
section, the Director, TMA, 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. TMA may 
disclose mailing addresses obtained under this authority to other 
agencies and to collection agencies for collection purposes.
    (g) Compromise, 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 TRICARE 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, as implemented by the Federal Claims Collection Standards, 
31 CFR parts 900-904. The provisions concerning compromise, suspension 
or termination of collection activity pursuant to 31 U.S.C. 3711 apply 
to debts, which do not exceed $100,000 or any higher amount authorized 
by the Attorney General, exclusive of interest, penalties, and 
administrative costs, after deducting the amount of partial payments or 
collections, if any. If, after deducting the amount of any partial 
payments or collections, the principal amount of a debt exceeds 
$100,000, or any higher amount authorized by the Attorney General, 
exclusive of interest, penalties and administrative costs, the authority 
to suspend or terminate rests solely with the DOJ.
    (2) Authority. TRICARE contractors are not authorized to compromise 
or to suspend or terminate collection action on TRICARE claims. Only the 
Director, TMA, or designee or Uniformed Services claims officers acting 
under the provisions of their own regulations are so authorized.
    (3) Basis for compromise. A compromise should be for an amount that 
bears a reasonable relation to the amount that can be recovered by 
enforced collection procedures, with regard to the exemptions available 
to the debtor and the time collection will take. 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 cost of collecting the claim does not justify enforced 
collection of the full amount; or
    (iii) The government is unable to enforce collection of the full 
amount within a reasonable time by enforced collection proceedings; or
    (iv) There is significant doubt concerning the Government's ability 
to prove its case in court for the full amount claimed; or
    (v) The cost of collecting the claim does not justify enforced 
collection of the full amount.
    (4) Basis for suspension. Collection action may be suspended for the 
following reasons if future collection action may be sufficiently 
productive to justify periodic review and action on the claim, 
considering its size and the amount, which may be realized thereon:
    (i) The debtor cannot be located; or
    (ii) The debtor's financial condition is expected to improve; or
    (iii) The debtor is unable to make payments on the government's 
claim or effect a compromise at the time, but the debtor's future 
prospects justify retention of the claim for periodic review and action 
and;
    (A) The applicable statute of limitations has been tolled or started 
running anew; or
    (B) Future collections can be effected by administrative offset, 
notwithstanding the expiration of the applicable statute of limitations 
for litigation of claims with due regard to the 10-year limitation for 
administrative offset under 31 U.S.C. 3716(e)(1); or
    (C) The debtor agrees to pay interest on the amount of the debt on 
which collection action will be temporarily suspended and such temporary 
suspension is likely to enhance the debtor's ability fully to pay the 
principal

[[Page 258]]

amount of the debt with interest at a later date.
    (iv) Consideration may be given by the Director, TMA, or designee to 
suspend collection action pending action on a request for a review of 
the government's claim against the debtor or pending an administrative 
review under Sec. 199.10 of this part of any TRICARE claim or claims 
directly involved in the government's claim against the debtor. 
Suspension under this paragraph will be made on a case-by-case basis as 
to whether:
    (A) There is a reasonable possibility that the debt (in whole or in 
part) will be found not owing from the debtor;
    (B) The government's interest would be protected if suspension were 
granted by reasonable assurance that the debt would be recovered if the 
debtor does not prevail; and
    (C) Collection of the debt will cause undue hardship.
    (5) Collection action may be terminated for one or more of the 
following reasons:
    (i) TMA cannot collect or enforce collection of any substantial 
amount through its own efforts or the efforts of others, including 
consideration of the judicial remedies available to the government, the 
debtor's future financial prospects, and the exemptions available to the 
debtor under state and federal law;
    (ii) The debtor cannot be located, and either;
    (iii) The costs of collection are anticipated to exceed the amount 
recoverable; or
    (iv) It is determined that the debt is legally without merit or 
enforcement of the debt is barred by any applicable statute of 
limitations; or
    (v) The debt cannot be substantiated; or
    (vi) The debt against the debtor has been discharged in bankruptcy. 
Collection activity may be continued subject to the provisions of the 
Bankruptcy Code, such as collection of any payments provided under a 
plan of reorganization or in cases when TMA did not receive notice of 
the bankruptcy proceedings.
    (6) In determining whether the debt should be compromised, suspended 
or terminated, the responsible TMA collection authority will consider 
the following factors:
    (i) Age and health of the debtor; present and potential income; 
inheritance prospects; the possibility that assets have been concealed 
or improperly transferred by the debtor; and the availability of assets 
or income which may be realized 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 a forced sale;
    (iv) The probability of proving the claim in court because of legal 
issues involved or because of a bona fide dispute of the facts; the 
probability of full or partial recovery; the availability of necessary 
evidence and related pragmatic considerations. Debtors may be required 
to provide a completed Department of Justice Financial Statement of 
Debtor form (OBD-500 or such other form that DOJ shall prescribe) or 
other financial information that will permit TMA to verify debtors' 
representations. TMA may obtain credit reports or other financial 
information to enable it independently to verify debtors' 
representations.
    (7) Payment of compromised claims. (i) Time and manner. Compromised 
claims are to be paid in one lump sum whenever possible. However, if 
installment payments of a compromised claim are necessary, a legally 
enforceable compromise agreement must be obtained. Payment of the amount 
that TMA has agreed to accept as a compromise in full settlement of a 
TRICARE claim must be made within the time and in the manner prescribed 
in the compromise agreement. Any such compromised amount is not settled 
until full payment of the compromised amount has been made within the 
time and 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

[[Page 259]]

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 default.
    (iii) Effect of compromise, waiver, suspension or termination of 
collection action. Pursuant to the Internal Revenue Code, 26 U.S.C. 
6050P, compromises and terminations of undisputed debts totaling $600 or 
more for the year will be reported to the Internal Revenue Service in 
the manner prescribed. Amounts, other than those discharged in 
bankruptcy, will be included in the debtor's gross income for that year. 
Any action taken under paragraph (g) of this section regarding the 
compromise of a federal claim, or waiver or suspension or termination of 
collection action on a federal claim is not an initial determination for 
the purposes of the appeal procedures in Sec. 199.10.
    (h) Referrals for collection--(1) Prompt referral. Federal claims of 
$2,500, exclusive of interest, penalties and administrative costs, or 
such other amount as the Attorney General shall from time to time 
prescribe on which collection action has been taken under the provisions 
of this section which cannot be collected or compromised or on which 
collection action cannot be suspended or terminated as provided herein, 
will be promptly referred to the Department of Justice for litigation in 
accordance with 31 CFR part 904. Such referrals shall be made as early 
as possible consistent with aggressive collection action made by TRICARE 
contractors and TMA. Referral will be made with sufficient time to bring 
timely suit against the debtor. Referral shall be made by submission of 
a completed Claims Collection Litigation Report (CCLR), accompanied by a 
signed Certificate of Indebtedness. Claims of less than the minimum 
amount shall not be referred unless litigation to collect such smaller 
claims is important to ensure compliance with TRICARE's policies or 
programs; the claim is being referred solely for the purpose of securing 
a judgment against the debtor, which will be filed as a lien against the 
debtor's property pursuant to 28 U.S.C. 3201 and returned to the 
referring office for enforcement; or the debtor has the clear ability to 
pay the claim and the Government effectively can enforce payment, with 
due regard for the exemptions available to the debtor under state and 
Federal law and judicial remedies available to the Government.
    (2) Preservation of evidence. The Director, TMA, 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 indication of fraud, filing of false claims or 
misrepresentation. Any case in which there is an indication of fraud, 
the filing of a false claim or misrepresentation on the part of the 
debtor or any party having an interest in the claim, shall be promptly 
referred to the Director, TMA, or designee. The Director, TMA, or a 
designee, will investigate and evaluate the case and either refer the 
case to an appropriate investigative law enforcement agency or return 
the claim for other appropriate administrative action, including 
collection action under this section. Payment on all TRICARE beneficiary 
or provider claims in which fraud, filing false claims or 
misrepresentation is suspected will be suspended until the Director, 
TMA, or designee, authorizes payment or denial of the claims. Collection 
action on all 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, TMA, or a 
designee. Only the Department of Justice has authority to compromise, 
suspend or terminate collection of such debts.
    (ii) [Reserved]

[73 FR 71547, Nov. 25, 2008, as amended at 77 FR 38176, June 27, 2012]



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

[[Page 260]]

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 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.

[[Page 261]]

    (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 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

[[Page 262]]

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) Responsibility 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 receive 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 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

[[Page 263]]

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 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

[[Page 264]]

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, services incidental to noncovered services, 
and services provided under paragraph (a)(2)(iv), 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.
    (iv) Exception to the exclusion of services performed in military 
dental care facilities.
    (A) Dependents who are 12 years of age or younger and are covered by 
a dental plan established under this section may be treated by 
postgraduate dental residents in a dental treatment facility of the 
uniformed services under a graduate dental education program accredited 
by the American Dental Association if
    (1) Treatment of pediatric dental patients is necessary in order to 
satisfy an accreditation standard of the American Dental Association 
that is applicable to such program, or training in pediatric dental care 
is necessary for the residents to be professionally qualified to provide 
dental care for dependent children accompanying members of the uniformed 
services outside the United States; and
    (2) The number of pediatric patients at such facility is 
insufficient to support satisfaction of the accreditation or 
professional requirements in pediatric dental care that apply to such 
programs or students.
    (B) The total number of dependents treated in all facilities of the 
uniformed services under paragraph (a)(2)(iv) in a fiscal year may not 
exceed 2,000.
    (3) 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

[[Page 265]]

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 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;

[[Page 266]]

    (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 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,

[[Page 267]]

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 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

[[Page 268]]

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 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.

[[Page 269]]

    (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 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 one 
of the requirements set forth in section 199.3(b)(2)(ii)(A)-(F) or 
199.3(b)(2)(ii)(H).
    (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

[[Page 270]]

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. 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

[[Page 271]]

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 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 loses 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 more than 30 days without a break in service, the member loses 
eligibility and is disenrolled, if 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.
    (i) Reserve component members separated from active duty in support 
of a contingency operation. When a member

[[Page 272]]

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 
for more than 30 days, the member becomes eligible for Transitional 
Health Care pursuant to 10 U.S.C. 1145(a) and the member is entitled to 
dental care to which a member of the uniformed services on active duty 
for more than 30 days is entitled. Thus the member has no requirement 
for the TDP and is not eligible to purchase the TDP. Upon the 
termination of Transitional Health Care eligibility, the member regains 
TDP eligibility and is reenrolled, if previously enrolled.
    (ii) Dependents of members separated from active duty in support of 
a contingency operation. Dependents of 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 for more than 30 
days maintain their eligibility and previous enrollment, subject to 
eligibility, enrollment and disenrollment provisions described in this 
section and in the TDP contract. During the member's Transitional Health 
Care eligibility, the dependents are considered family members of 
Reserve Component members.
    (iii) Members separated from active duty and not covered by 10 
U.S.C. 1145(a)(2)(B). When the previously enrolled active duty member is 
transferred back to the Selected Reserve or Individual Ready Reserve, 
and is not covered by 10 U.S.C. 1145(a)(2)(B), without a break in 
service, the member regains TDP eligibility and is reenrolled; however, 
enrolled dependents maintain their eligibility and previous enrollment 
subject to eligibility, enrollment and disenrollment provisions 
described in this section and in the TDP contract.
    (iv) 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.
    (2) Continuation of eligibility. Eligible dependents of active duty 
members who die while on active duty for a period of more than 30 days 
and eligible dependents of members of the Ready Reserve (i.e., Selected 
Reserve or Individual Ready Reserve, as specified in 10 U.S.C. 10143 and 
10144(b) respectively) who die, shall be eligible for continued 
enrollment in the TDP. This continued enrollment shall be up to (3) 
three years from the date of the member's death, except that, in the 
case of a dependent of the deceased who is described in 10 U.S.C. 
section 1072(2) by subparagraph (D) or (I), the period of continued 
enrollment shall be the longer of the following periods beginning on the 
date of the member's death:
    (i) Three years.
    (ii) The period ending on the date on which such dependent attains 
21 years of age.
    (iii) In the case of such dependent who, at 21 years of age, is 
enrolled in a full-time course of study in a secondary school or in a 
full-time course of study in an institution of higher education approved 
by the administering Secretary and was, at the time of the member's 
death, in fact dependent on the member for over one-half of such 
dependent's support, the period ending on the earlier of the following 
dates: The date on which such dependent ceases to pursue such a course 
of study, as determined by the administering Secretary; or the date on 
which such dependent attains 23 years of age.
    (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.

[[Page 273]]

    (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 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.

[[Page 274]]

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 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

[[Page 275]]

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 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.

[[Page 276]]

    (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.
    (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

[[Page 277]]

``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 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.

[[Page 278]]

    (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
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 Maxillofacial 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

[[Page 279]]

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 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

[[Page 280]]

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 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

[[Page 281]]

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 in accordance with 
the contractor's network agreements, 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'', 
``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:

[[Page 282]]

    (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).
    (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).
    (i) Implementing Instructions. The Director, TRICARE Management 
Activity or designee may issue TRICARE

[[Page 283]]

Dental Program policies, standards, and criteria as may be necessary to 
implement the intent of this section.

[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; 70 FR 55252, Sept. 
21, 2005; 71 FR 1696, Jan. 11, 2006; 71 FR 66872, Nov. 17, 2006; 72 FR 
53685, Sept. 20, 2007; 76 FR 57643, Sept. 16, 2011; 76 FR 81367, Dec. 
28, 2011]



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.
    (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) Pricing of claims. All final claims with discharge dates of 
September 30, 2014, or earlier that are 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. All final claims with 
discharge dates of October 1, 2014, or later that are reimbursed under 
the CHAMPUS DRG-based payment system are to be priced as of the date of 
discharge.
    (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;

[[Page 284]]

    (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-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

[[Page 285]]

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 
the respective DRG.
    (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 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,

[[Page 286]]

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 (SCHs). Prior to implementation of the 
SCH reimbursement method described in paragraph (a)(7) of this section, 
any hospital that has qualified for special treatment under the Medicare 
prospective payment system as an SCH (see subpart G of 42 CFR part 412) 
and has not given up that classification is exempt from the CHAMPUS DRG-
based payment system.
    (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.
    (10) CAHs. Effective December 1, 2009, any facility which has been 
designated and certified as a CAH as contained in 42 CFR Part 485.606 is 
exempt from the CHAMPUS DRG-based payment system.
    (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 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

[[Page 287]]

records in the database shall be grouped by DRG.
    (2) Remove DRGs. Those DRGs that represent discharges with invalid 
data or diagnoses insufficient for DRG assignment purposes are 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 
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:

[[Page 288]]

[GRAPHIC] [TIFF OMITTED] TC15NO91.043

    (3) 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.
    (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 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

[[Page 289]]

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 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).

[[Page 290]]

    (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.
    (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.

[[Page 291]]

    (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 beneficiaries 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 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.

[[Page 292]]

    (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 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

[[Page 293]]

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 hospital.
    (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.
    (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,

[[Page 294]]

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 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

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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 (SCHs). Prior to implementation of the 
SCH reimbursement method described in paragraph (a)(7) of this section, 
any hospital that has qualified for special treatment under the Medicare 
prospective payment system as an SCH 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 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 pursuant to the provisions of 
paragraph (a)(2)(ix)(C) of this section, with the exception of hospital-
based psychiatric and substance use disorder rehabilitation partial 
hospitalization services which are reimbursed in accordance with 
provisions of paragraph (a)(5)(ii) of this section. The per diem payment 
amount must be accepted as payment in full for all institutional 
services provided, including board, routine nursing service, ancillary 
services (includes music, dance, occupational and other such therapies), 
psychological testing and assessment, overhead and any other services 
for which the customary practice among

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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) Reimbursement for inpatient services provided by a CAH. (i) For 
admissions on or after December 1, 2009, inpatient services provided by 
a CAH, other than services provided in psychiatric and rehabilitation 
distinct part units, shall be reimbursed at allowable cost (i.e., 101 
percent of reasonable cost) under procedures, guidelines and 
instructions issued by the TMA Director, or designee. This does not 
include any costs of physician services or other professional services 
provided to CAH inpatients. Inpatient services provided in psychiatric 
distinct part units would be subject to the CHAMPUS mental health 
payment system. Inpatient services provided in rehabilitation distinct 
part units would be subject to billed charges.
    (ii) The percentage amount stated in paragraph (a)(3)(i) of this 
section is subject to possible upward adjustment based on a inpatient 
GTMCPA for TRICARE network hospitals deemed essential for military 
readiness and support during contingency operations under paragraph 
(a)(8) of this section.
    (4) Billed charges and set rates. The allowable costs for authorized 
care in all hospitals not subject to the CHAMPUS DRG-based payment 
system, the CHAMPUS mental health per-diem system, the reasonable cost 
method for CAHs, or the reimbursement rules for SCHs 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.
    (5) CHAMPUS discount rates. The CHAMPUS-determined allowable cost 
for authorized care in any hospital may be based on discount rates 
established under paragraph (l) of this section.
    (6) Hospital outpatient services. This paragraph (a)(6) identifies 
and clarifies

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payment methods for certain outpatient services, including emergency 
services, provided by hospitals.
    (i) Outpatient Services Not Subject to Hospital Outpatient 
Prospective Payment System (OPPS). The following are payment methods for 
outpatient services that are either provided in an OPPS exempt hospital 
or paid outside the OPPS payment methodology under existing fee 
schedules or other prospectively determined rates in a hospital subject 
to OPPS reimbursement.
    (A) Laboratory services. TRICARE payments for hospital outpatient 
laboratory services including clinical laboratory services are based on 
the allowable charge method under paragraph (j)(1) of the section. In 
the case of laboratory services for which the CMAC rates are established 
under that paragraph, a payment rate for the technical component of the 
laboratory services is provided. Hospital charges for an outpatient 
laboratory service are reimbursed using the CMAC technical component 
rate.
    (B) 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 (j)(1) of this section.
    (C) 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 (j)(1) 
of this section. Routine venipuncture services provided on an outpatient 
basis by institutional providers other than hospitals are also paid on 
this basis.
    (D) Radiology services. TRICARE payments for hospital outpatient 
radiology services are based on the allowable charge method under 
paragraph (j)(1) of the section. In the case of radiology services for 
which the CMAC rates are established under that paragraph, a payment 
rate for the technical component of the radiology services is provided. 
Hospital charges for an outpatient radiology service are reimbursed 
using the CMAC technical component rate.
    (E) Diagnostic services. TRICARE payments for hospital outpatient 
diagnostic services are based on the allowable charge method under 
paragraph (j)(1) of the section. In the case of diagnostic services for 
which the CMAC rates are established under that paragraph, a payment 
rate for the technical component of the diagnostic services is provided. 
Hospital charges for an outpatient diagnostic service are reimbursed 
using the CMAC technical component rate.
    (F) Ambulance services. Ambulance services provided on an outpatient 
basis by hospitals are paid on the same basis as ambulance services 
covered by the allowable charge method under paragraph (j)(1) of this 
section.
    (G) Durable medical equipment (DME) and supplies. Durable medical 
equipment and supplies provided on an outpatient basis by hospitals are 
paid on the same basis as durable medical equipment and supplies covered 
by the allowable charge method under paragraph (j)(1) of this section.
    (H) Oxygen and related supplies. Oxygen and related supplies 
provided on an outpatient basis by hospitals are paid on the same basis 
as oxygen and related supplies covered by the allowable charge method 
under paragraph (j)(1) of this section.
    (I) Drugs administered other than oral method. Drugs administered 
other than oral method provided on an outpatient basis by hospitals are 
paid on the same basis as drugs administered other than oral method 
covered by the allowable charge method under paragraph (j)(1) of this 
section. The allowable charge for drugs administered other than oral 
method is established from a schedule of allowable charges based on a 
formulary of the average wholesale price.
    (J) Professional provider services. TRICARE payments for hospital 
outpatient professional provider services rendered in an emergency room, 
clinic, or hospital outpatient department, etc., are based on the 
allowable charge method under paragraph (j)(1) of the section. In the 
case of professional services for which the CMAC rates are established 
under that paragraph, a payment rate for the professional component of 
the services is provided. Hospital charges for an outpatient 
professional service are reimbursed using the CMAC professional 
component rate. If

[[Page 298]]

the professional outpatient hospital services are billed by a 
professional provider group, not by the hospital, no payment shall be 
made to the hospital for these services.
    (K) Facility charges. TRICARE payments for hospital outpatient 
facility charges that would include the overhead costs of providing the 
outpatient service would be paid as billed. For the definition of 
facility charge, see Sec. 199.2(b).
    (L) Ambulatory surgery services. Hospital outpatient ambulatory 
surgery services shall be paid in accordance with Sec. 199.14(d).
    (ii) Outpatient Services Subject to OPPS. Outpatient services 
provided in hospitals subject to Medicare OPPS as specified in 42 CFR 
413.65 and 42 CFR Sec. 419.20 will be paid in accordance with the 
provisions outlined in sections 1833(t) of the Social Security Act and 
its implementing Medicare regulation (42 CFR Part 419) subject to 
exceptions as authorized by Sec. 199.14(a)(5)(ii). Under the above 
governing provisions, CHAMPUS will recognize to the extent practicable, 
in accordance with 10 U.S.C. 1079(j)(2), Medicare's OPPS reimbursement 
methodology to include specific coding requirements, ambulatory payment 
classifications (APCs), nationally established APC amounts and 
associated adjustments (e.g., discounting for multiple surgery 
procedures, wage adjustments for variations in labor-related costs 
across geographical regions and outlier calculations). While CHAMPUS 
intends to remain as true as possible to Medicare's basic OPPS 
methodology, there will be some deviations required to accommodate 
CHAMPUS' unique benefit structure and beneficiary population as 
authorized under the provisions of 10 U.S.C. 1079(j)(2). Temporary 
transitional payment adjustments (TTPAs) will be in place for all 
hospitals, both network and non-network in order to buffer the initial 
decline in payments upon implementation of TRICARE's OPPS. For network 
hospitals, the temporary transitional payment adjustments (TTPAs) will 
cover a four-year period. The four-year transition will set higher 
payment percentages for the ten Ambulatory Payment Classification (APC) 
codes 604-609 and 613-616, with reductions in each of the transition 
years. For non-network hospitals, the adjustments will cover a three 
year period, with reductions in each of the transition years. For 
network hospitals, under the TTPAs, the APC payment level for the five 
clinic visit APCs would be set at 175 percent of the Medicare APC level, 
while the five ER visit APCs would be increased by 200 percent in the 
first year of OPPS implementation. In the second year, the APC payment 
levels would be set at 150 percent of the Medicare APC level for clinic 
visits and 175 percent for ER APCs. In the third year, the APC visit 
amounts would be set at 130 percent of the Medicare APC level for clinic 
visits and 150 percent for ER APCs. In the fourth year, the APC visit 
amounts would be set at 115 percent of the Medicare APC level for clinic 
visits and 130 per cent for ER APCs. In the fifth year, the TRICARE and 
Medicare payment levels for the 10 APC visit codes would be identical.
    For non-network hospitals, under the TTPAs, the APC payment level 
for the five clinic and ER visit APCs would be set at 140 percent of the 
Medicare APC level in the first year of OPPS implementation. In the 
second year, the APC payment levels would be set at 125 percent of the 
Medicare APC level for clinic and ER visits. In the third year, the APC 
visit amounts would be set at 110 percent of the Medicare APC level for 
clinic and ER visits. In the fourth year, the TRICARE and Medicare 
payment levels for the 10 APC visit codes would be identical.
    An additional temporary military contingency payment adjustment 
(TMCPA) will also be available at the discretion of the Director, TMA, 
or a designee, at any time after implementation to adopt, modify and/or 
extend temporary adjustments to OPPS payments for TRICARE network 
hospitals deemed essential for military readiness and deployment in time 
of contingency operations. Any TMCPAs to OPPS payments shall be made 
only on the basis of a determination that it is impracticable to support 
military readiness or contingency operations by making OPPS payments in 
accordance with the same reimbursement rules implemented by Medicare. 
The criteria for

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adopting, modifying, and/or extending deviations and/or adjustments to 
OPPS payments shall be issued through CHAMPUS policies, instructions, 
procedures and guidelines as deemed appropriate by the Director, TMA, or 
a designee. TMCPAs may also be extended to non-network hospitals on a 
case-by-case basis for specific procedures where it is determined that 
the procedures cannot be obtained timely enough from a network hospital. 
For such case-by-case extensions, ``Temporary'' might be less than three 
years at the discretion of the TMA Director, or designee.
    (iii) Outpatient Services Subject to CAH Reasonable Cost Method. For 
services on or after December 1, 2009, outpatient services provided by a 
CAH, shall be reimbursed at 101 percent of reasonable cost. This does 
not include any costs of physician services or other professional 
services provided to CAH outpatients.
    (iv) CAH Ambulance Services. Effective for services provided on or 
after December 1, 2009, payment for ambulance services furnished by a 
CAH or an entity that is owned and operated by a CAH is the reasonable 
costs of the CAH or the entity in furnishing those services, but only if 
the CAH or the entity is the only provider or supplier of ambulance 
services located within a 35-mile drive of the CAH or the entity as 
specified under 42 CFR part 413.70(b)(5)(ii).
    (7) Reimbursement for inpatient services provided by an SCH. (i) In 
accordance with 10 U.S.C. 1079(j)(2), TRICARE payment methods for 
institutional care shall be determined, to the extent practicable, in 
accordance with the same reimbursement rules as those that apply to 
payments to providers of services of the same type under Medicare. 
TRICARE's SCH reimbursements approximate Medicare's for SCHs. Inpatient 
services provided by an SCH, other than services provided in psychiatric 
and rehabilitation distinct part units, shall be reimbursed through a 
two-step process.
    (ii) The first step referred to in paragraph (a)(7)(i) of this 
section will be to calculate the TRICARE allowable cost by multiplying 
the applicable TRICARE percentage by the billed charge amount on each 
institutional inpatient claim. The applicable TRICARE percentage is the 
greater of: the SCH's most recently available cost-to-charge ratio (CCR) 
from the Centers for Medicare and Medicaid Services' (CMS') inpatient 
Provider Specific File (after the ratio has been converted to a 
percentage), or the TRICARE allowed-to-billed ratio, defined as the 
ratio of the TRICARE allowed amounts (including discounts) to the amount 
of billed charges for TRICARE inpatient admissions at the SCH in FY 2012 
(after it has been converted to a percentage). The TRICARE allowed-to-
billed ratio in FY 2012 shall be reduced as follows (after the ratio has 
been converted to a percentage):
    (A) In the first year of implementation, 10 percentage points for 
network SCHs and 15 percentage points for non-network SCHs.
    (B) In the second year of implementation, 20 percentage points for 
network SCHs and 30 percentage points for non-network SCHs.
    (C) In the third year of implementation, 30 percentage points for 
network SCHs and 45 percentage points for non-network SCHs.
    (D) In the fourth year of implementation, 40 percentage points for 
network SCHs and 60 percentage points for non-network SCHs.
    (E) In the fifth year of implementation, 50 percentage points for 
network SCHs and 75 percentage points for non-network SCHs.
    (F) In the sixth year of implementation, 60 percentage points for 
network SCHs and 90 percentage points for non-network SCHs.
    (G) In the seventh year of implementation, 70 percentage points for 
network SCHs and 100 percentage points for non-network SCHs.
    (H) In the eighth year of implementation, 80 percentage points for 
network SCHs and 100 percentage points for non-network SCHs.
    (I) In the ninth year of implementation, 90 percentage points for 
network SCHs and 100 percentage points for non-network SCHs.
    (J) In the tenth year of implementation, 100 percentage points for 
network SCHs and 100 percentage points for non-network SCHs.

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    (iii) The second step referred to in paragraph (a)(7)(i) of this 
section is a year-end adjustment. The year-end adjustment will compare 
the aggregate allowable costs over a 12-month period under paragraph 
(a)(7)(ii) of this section to the aggregate amount that would have been 
allowed for the same care using the TRICARE DRG-method (under paragraph 
(a)(1) of this section). In the event that the DRG method amount is the 
greater, the year-end adjustment will be the amount by which it exceeds 
the aggregate allowable costs. In addition, the year-end adjustment also 
may incorporate a possible upward adjustment for inpatient services 
based on a GTMCPA for TRICARE network hospitals under paragraph (a)(8) 
of this section.
    (iv) At the end of an SCH's transition period, when the SCH reaches 
its Medicare CCR, a special allowable cost shall be applicable for 
discharges that group to inpatient nursery and labor/delivery DRGs. For 
these discharges, instead of using the percentage of the SCH's Medicare 
cost-to-charge ratio (as described in paragraph (a)(7)(ii) of this 
section), the percentage will be 130 percent of the Medicare CCR.
    (v) The SCH reimbursement provisions of paragraphs (a)(7)(i) through 
(iv) of this section do not apply to any costs of physician services or 
other professional services provided to SCH inpatients (which are 
subject to individual provider payment provisions of this section), 
inpatient services provided in psychiatric distinct part units (which 
are subject to the CHAMPUS mental health per-diem payment system), or 
inpatient services provided in rehabilitation distinct part units (which 
are reimbursed on the basis of billed charges or set rates).
    (vi) The SCH payment system under this paragraph (a)(7) applies to 
hospitals classified by CMS as Essential Access Community Hospitals 
(EACHs).
    (vii) The SCH payment system under this paragraph (a)(7) does not 
apply to hospitals in States that are paid by Medicare and TRICARE under 
a cost containment waiver.
    (8) General temporary military contingency payment adjustment for 
SCHs and CAHs. (i) Payments under paragraph (a) of this section for 
inpatient services provided by SCHs and CAHs may be supplemented by a 
GTMCPA. This is a year-end discretionary, temporary adjustment that the 
TMA Director may approve based on all the following criteria:
    (A) The hospital serves a disproportionate share of ADSMs and ADDs;
    (B) The hospital is a TRICARE network hospital;
    (C) The hospital's actual costs for inpatient services exceed 
TRICARE payments or other extraordinary economic circumstance exists; 
and,
    (D) Without the GTMCPA, DoD's ability to meet military contingency 
mission requirements will be significantly compromised.
    (ii) Policy and procedural instructions implementing the GTMCPA will 
be issued as deemed appropriate by the Director, TMA, or a designee. As 
with other discretionary authority under this Part, a decision to allow 
or deny a GTMCPA to a hospital is not subject to the appeal and hearing 
procedures of Sec. 199.10.
    (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

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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, with the exception of ambulatory surgery procedures 
performed in hospital outpatient departments or in CAHs, which are to be 
reimbursed in accordance with the provisions of paragraph (a)(6)(ii) or 
(a)(6)(iii) respectively, of this section. This payment method is 
similar to that used by the Medicare program for ambulatory surgery. 
This paragraph applies to payment for 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 
the paragraph shall be published periodically by the Director, TRICARE 
Management Activity (TMA). Payment to freestanding ambulatory surgery 
centers is limited to these procedures.
    (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

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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.
    (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

[[Page 303]]

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.
    (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-

[[Page 304]]

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 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.

[[Page 305]]

    (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 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

[[Page 306]]

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 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

[[Page 307]]

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 prospective payment system under Section 1895 of the Social Security 
Act (42 U.S.C. 1395fff) and 42 CFR Part 484, Subpart E 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 subject to appropriate adjustments. 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 subject to appropriate 
adjustments.
    (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 to another HHA 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.

[[Page 308]]

    (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 following methodology is used for calculation 
of the outlier payment:
    (i) TRICARE makes an outlier payment for an episode whose estimated 
cost exceeds a threshold amount for each case-mix group.
    (ii) The outlier threshold for each case-mix group is the episode 
payment amount for that group, the PEP adjustment amount for the episode 
or the total significant change in condition adjustment amount for the 
episode plus a fixed dollar loss amount that is the same for all case-
mix groups.
    (iii) The outlier payment is a proportion of the amount of estimated 
cost beyond the threshold.
    (iv) TRICARE imputes the cost for each episode by multiplying the 
national per-visit amount of each discipline by the number of visits in 
the discipline and computing the total imputed cost for all disciplines.
    (v) The fixed dollar loss amount and the loss sharing proportion are 
chosen so that the estimated total outlier payment is no more than the 
predetermined percentage of total payment under the home health PPS as 
set by the Centers for Medicare & Medicaid Services (CMS).
    (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 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:

[[Page 309]]

    (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 providers. The CHAMPUS-determined 
reasonable charge (the amount allowed by CHAMPUS) for the service of an 
individual health care professional or other non-institutional, non-
professional provider (even if employed by or under contract to an 
institutional provider) shall be determined by one of the following 
methodologies, that is, whichever is in effect in the specific 
geographic location at the time covered services and supplies are 
provided to a CHAMPUS beneficiary.
    (1) 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 (j)(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 determined reasonable 
charge will be the CMAC level as established in paragraph (j)(1)(i)(B) 
of this section plus any balance billing amount up to the balance 
billing limit as referred to in paragraph (j)(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).
    (E) Special rule for certain TRICARE Standard Beneficiaries. In the 
case of dependent spouse or child, as defined in paragraphs 
(b)(2)(ii)(A) through (F) and (b)(2)(ii)(H)(1), (2), and (4) of Sec. 
199.3, of a Reserve Component member serving on active duty pursuant to 
a call or order to active duty for a period of more than 30 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, the Director, 
TRICARE Management Activity, may authorize non-participating providers 
the allowable charge to be the CMAC level as established in paragraph 
(j)(l)(i)(B) of this section plus any balance billing amount up to the 
balance billing limit as referred to in paragraph (j)(l)(i)(C) of this 
section.

[[Page 310]]

    (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 
(j)(1)(ii)(A) of this section is the level that does not exceed the 
amount equivalent to the 80th percentile of billed charges made for 
similar services during the base period. The 80th percentile of charges 
shall be determined on the basis of statistical data and methodology 
acceptable to the Director, OCHAMPUS (or a designee).
    (C) For purposes of paragraph (j)(1)(ii)(B) of this section, the 
base period shall be a period of 12 calendar months and shall be 
adjusted once a year, unless the Director, OCHAMPUS, determines that a 
different period for adjustment is appropriate and publishes a notice to 
that effect in the 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 (j)(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 (j)(1)(i) through (iii) of this section is less than the 
Medicare rate, the Director, TSO, may determine that the use of the 
Medicare Economic Index under paragraph (j)(1)(iii)(B) of this section 
will result in a CMAC rate below the level necessary to assure that 
beneficiaries will retain adequate access to health care services. Upon 
making such a determination, the Director, TSO, may increase the 
national CMAC to a level not greater than the Medicare rate.

[[Page 311]]

    (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 (j)(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 (j)(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 (j)(1)(iii) and (j)(1)(iv) of this section may be waived 
pursuant to paragraph (j)(1)(iii)(C) of this section.
    (1) Waiver based on balanced billing rates. Except as provided in 
paragraph (j)(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 (j)(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 
(j)(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 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

[[Page 312]]

under paragraph (j)(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 (j)(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 (j)(1) of this section;
    (ii) A prevailing charge may be calculated, by applying the 
prevailing charge methodology of paragraph (j)(1)(ii) of this section to 
a specific locality (which need not be the same as the localities used 
for purposes of paragraph (j)(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 (j)(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 (j)(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 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

[[Page 313]]

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 (j)(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 (j)(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 (j)(1)(v) of this section.
    (B) Appropriate charge levels will be established for each locality 
for which an appropriate charge level was in effect immediately prior to 
October 7, 1991. For each procedure, the appropriate charge level shall 
be the prevailing charge level in effect immediately prior to October 7, 
1991, adjusted as provided in (j)(1)(v)(B) (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 (j)(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 
(j)(1)(ii)(B) of this section), adjusted to calendar year 1991 based on 
the adjustments made for maximum CHAMPUS allowable charge levels through 
1990 and the application of paragraph (j)(1)(v) of this section for 
1991.
    (B) The adjustment to calendar year 1991 of the product of paragraph 
(j)(1)(vi)(A) of this section shall be as follows:
    (1) For procedures other than those described in paragraph 
(j)(1)(vi)(B)(2) of this section, the adjustment to 1991

[[Page 314]]

shall be on the same basis as that provided under paragraph (j)(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 
(j)(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 (j)(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 (j)(1)(iii) and (j)(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 (j)(1)(i) through 
(j)(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 (j)(1)(viii) of this section as the 
``base period'').
    (B) For purposes of comparison to Medicare allowable payment amounts 
pursuant to paragraph (j)(1)(iii) of this section, the Medicare national 
laboratory payment limitation amounts shall be used.
    (C) For purposes of establishing laboratory service local CMACs 
pursuant to paragraph (j)(1)(iv) of this section, the adjustment factor 
shall equal the ratio of the local average charge (standardized for the 
distribution of clinical laboratory services) to the national average 
charge for all clinical laboratory services during the base period.
    (D) For purposes of a special locality-based phase-in provision 
similar to that established by paragraph (j)(1)(iv)(B) of this section, 
the CMAC in a locality will not be less than 85 percent of the maximum 
charge level in effect for that locality during the base period.
    (ix) The allowable charge for physician assistant services other 
than assistant-at-surgery shall be at the same percentage, used by 
Medicare, 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 shall be at the same 
percentage, used by Medicare, 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.
    (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.

[[Page 315]]

    (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 (j) of this section.
    (m) Accommodation of Discounts Under Provider Reimbursement 
Methods--(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.

[[Page 316]]

    (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]

    Editorial Note: For Federal Register citations affecting Sec. 
199.14, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and at www.fdsys.gov.



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

[[Page 317]]

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 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

[[Page 318]]

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 
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

[[Page 319]]

    (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.
    (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

[[Page 320]]

which occur within a certain period (specified by OCHAMPUS) of discharge 
from a hospital or hospital unit subject to the CHAMPUS DRG-based 
payment system.
    (iii) A random sample of other CHAMPUS admissions for each hospital 
subject to the CHAMPUS DRG-based payment system.
    (iv) CHAMPUS admissions in any DRGs which have been specifically 
identified by OCHAMPUS for review or which are under review for any 
other reason.
    (2) 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

[[Page 321]]

found not to be correct, the PRO will change the coding and assign the 
appropriate DRG on the basis of the changed coding.
    (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

[[Page 322]]

functions other than functions under this section.
    (g) Procedures regarding initial determinations. The CHAMPUS PROs 
shall 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 paragraph (g) 
of this section (concerning medical necessity determinations, DRG 
validation actions, etc.) and subsequent decisions regarding those 
determinations are not nondisclosable quality assurance records under 10 
U.S.C. 1102.
    (iii) Information the subject of mandatory PRO disclosure under 42 
CFR part 476 is not a nondisclosable quality assurance record under 10 
U.S.C. 1102.
    (m) 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

[[Page 323]]

by any hospital of the applicable payment methods for inpatient services 
shall apply to CHAMPUS payment methods as they do to Medicare payment 
methods.
    (3) The Director, or a designee, of CHAMPUS shall determine whether 
to impose a sanction pursuant to paragraphs (m)(1) and (m)(2) of this 
section. Providers may appeal adverse sanctions decisions under the 
procedures set forth in 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

[[Page 324]]

CHAMPUS allowable amount determined pursuant to Sec. 199.14 as payment 
in full for the hospital services covered 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 procedure. 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

[[Page 325]]

clinic designated as adequate to provide the needed primary care 
services to the active duty service member; and
    (ii) Pursuant to the assignment of such duty, resides at a location 
that is greater than fifty miles or approximately one hour from a 
military medical treatment facility or military clinic designated as 
adequate to provide the needed primary care services to the active duty 
service member.
    (3) 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; 71 FR 50348, Aug. 25, 2006]



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 to all 50 
states (except as modified for the state of Alaska under paragraph (v) 
of this section) and the District of Columbia.

[[Page 326]]

In such 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

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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

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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) Survivors of deceased members. (i) The spouse of a member who 
dies while on active duty for a period of more than 30 days is eligible 
to enroll in Prime for a 3 year period beginning on the date of the 
member's death. For the three year period, surviving spouses of a member 
who dies while on active duty for a period of more than 30 days are 
subject to the same rules and provisions as dependents of active duty 
members.
    (ii) A dependent child or unmarried person (as described in Sec. 
199.3(b)(2)(ii), or (b)(2)(iv)) of a member who dies while on active 
duty for a period of more than 30 days whose death occurred on or after 
October 7, 2001, is eligible to enroll in Prime and is subject to the 
same rules and provisions as dependents of active duty members for a 
period of three years from the date the active duty sponsor dies or 
until the surviving eligible dependent:
    (A) Attains 21 years of age, or
    (B) Attains 23 years of age or ceases to pursue a full-time course 
of study prior to attaining 23 years of age, if, at 21 years of age, the 
eligible surviving dependent is enrolled in a full-time course of study 
in a secondary school or in a full-time course of study in an 
institution of higher education approved by the Secretary of Defense and 
was, at the time of the sponsor's death, in fact dependent on the member 
for over one-half of such dependent's support.
    (4) 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

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Prime at the same time, the MTF Commander (or other authorized 
individual) may allow enrollment within this beneficiary group category 
on a first come, first served basis.
    (5) 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 
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

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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 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:
    (i) Spouse, child, or unmarried person, as defined in paragraphs 
Sec. 199.3 (b)(2)(i), (b)(2)(ii) or (b)(2)(iv);
    (ii) For a 3-year period, the surviving spouse of a member who dies 
while on active duty for a period of more than 30 days whose death 
occurred on or after October 7, 2001; and
    (iii) The surviving dependent child or unmarried person, as defined 
in paragraphs Sec. 199.3 (b)(2)(ii) or (b)(2)(iv), of a member who dies 
while on active duty for a period of more than 30 days whose death 
occurred on or after October 7, 2001. Active duty family member status 
is for a period of 3 years from the date the active duty sponsor dies or 
until the surviving eligible dependent:
    (A) Attains 21 years of age, or
    (B) Attains 23 years of age or ceases to pursue a full-time course 
of study prior to attaining 23 years of age, if, at 21 years of age, the 
eligible surviving dependent is enrolled in a full-time course of study 
in a secondary school or in a full-time course of study in an 
institution of higher education approved by the Secretary of Defense and 
was, at the time of the sponsor's death, in fact dependent on the member 
for over one-half of such dependent's support.
    (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 (g)(3)(i)(A) and (g)(3)(i)(B) or (g)(3)(i)(C) of this 
section or on or after October 7, 2001, meets the criteria of 
(g)(3)(i)(D) or (g)(3)(i)(E) of this section:
    (A) The family member's active duty sponsor has been assigned 
permanent duty as a recruiter; as an instructor at an educational 
institution, an administrator of a program, or to provide administrative 
services in support of a program of instruction for the Reserve 
Officers' Training Corps; as a full-time adviser to a unit of a reserve 
component; or any other permanent duty designated by the Director, 
TRICARE Management Activity that the Director determines is more than 50 
miles, or approximately one hour driving time, from the nearest military 
treatment facility that is adequate to provide care.
    (B) The family members and active duty sponsor, pursuant to the 
assignment of duty described in paragraph (g)(3)(i)(A) of this section, 
reside at a location designated by the Director, TRICARE Management 
Activity, that the Director determines is more than 50 miles, or 
approximately one hour driving time, from the nearest military medical 
treatment facility adequate to provide care.

[[Page 331]]

    (C) The family member, having resided together with the active duty 
sponsor while the sponsor served in an assignment described in 
(g)(3)(i)(A), continues to reside at the same location after the sponsor 
relocates without the family member pursuant to orders for a permanent 
change of duty station, and the orders do not authorize dependents to 
accompany the sponsor to the new duty station at the expense of the 
United States.
    (D) For a 3 year period, the surviving spouse of a member who dies 
while on active duty for a period of more than 30 days whose death 
occurred on or after October 7, 2001.
    (E) The surviving dependent child or unmarried person as defined in 
paragraphs Sec. 199.3 (b)(2)(ii) or (b)(2)(iv), of a member who dies 
while on active duty for a period of more than 30 days whose death 
occurred on or after October 7, 2001, for three years from the date the 
active duty sponsor dies or until the surviving eligible dependent:
    (1) Attains 21 years of age, or
    (2) Attains 23 years of age or ceases to pursue a full-time course 
of study prior to attaining 23 years of age, if, at 21 years of age, the 
eligible surviving dependent is enrolled in a full-time course of study 
in a secondary school or in a full-time course of study in an 
institution of higher education approved by the Secretary of Defense and 
was, at the time of the sponsor's death, in fact dependent on the member 
for over one-half of such dependent's support.
    (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 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

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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 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

[[Page 333]]

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.
    (D) As stated in Sec. 199.4(f)(12), TRICARE Standard beneficiaries 
who are not Medicare-eligible beneficiaries, shall have no cost sharing 
requirements for preventive care listed under Sec. 199.4 (e)(28)(i) 
through (iv).
    (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.
    (iii) As stated in Sec. 199.4(f)(12), TRICARE Standard 
beneficiaries who are not Medicare-eligible beneficiaries, shall have no 
cost sharing requirements for preventive care listed under Sec. 199.4 
(e)(28)(i) through (iv).
    (3) Cost sharing under internal resource sharing agreements. (i) For 
Prime enrollees, cost sharing is as provided in military treatment 
facilities.
    (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.

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    (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 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

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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 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

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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. (i) Beneficiaries who select the TRICARE 
Prime option or the TRICARE Prime Remote for Active Duty Family Members 
option remain enrolled for 12 month 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. For those 
who remain eligible for TRICARE Prime enrollment, no later

[[Page 337]]

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). Retired beneficiaries and their family members 
who disenroll prior to their annual enrollment renewal date will not be 
eligible to reenroll in Prime for a -1-year period from the effective 
date of the disenrollment. Active Duty family members may change their 
enrollment status twice in an enrollment year. Any additional 
disenrollment changes will result in an enrollment lock out for a 1-year 
period from the effective date of the disenrollment. Enrollment rules 
may be waived by the Assistant Secretary of Defense (Health Affairs) 
based on extraordinary circumstances.
    (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.
    (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

[[Page 338]]

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 expected number of enrollees 
from the beneficiary group being offered enrollment:
    (i) Under normal circumstances, enrollee travel time may not exceed 
30

[[Page 339]]

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.
    (4) The provider must meet all other qualification requirements, and 
agree to all other rules and procedures, that are established, publicly 
announced,

[[Page 340]]

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) Administration of the TRICARE program in the state of Alaska. In 
view of the unique geographical and environmental characteristics 
impacting the delivery of health care in the state of Alaska, 
administration of the TRICARE program in the state of Alaska will not 
include financial underwriting of the delivery of health care by a 
TRICARE contractor. All other provisions of this section shall apply to 
administration of the TRICARE program in the state of Alaska as they 
apply to the other 49 states and the District of Columbia.
    (w) 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]

    Editorial Note: For Federal Register citations affecting Sec. 
199.17, see the List of CFR Sections Affected, which appears in the

[[Page 341]]

Finding Aids section of the printed volume and at www.fdsys.gov.



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 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

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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 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.

[[Page 343]]

    (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 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 beneficiaries who meet the 
eligibility and enrollment criteria as set forth in paragraph (d)(1) of 
this section. The CHCBP is not part of the TRICARE program. However, as 
set forth in this section, it functions under similar rules and 
procedures of the TRICARE Standard program. Because the purpose of the 
CHCBP is to provide a continuation health care benefit for the 
Department of Defense and the other uniformed services (National Oceanic 
and Atmospheric Administration (NOAA), Public Health Service (PHS), and 
Coast Guard) beneficiaries losing eligibility, it will be administered 
so that it appears, to the maximum extent possible, to be part of the 
TRICARE Standard program. Medical coverage under this program will be 
the same as the benefits payable under the TRICARE Standard program. 
However, unlike the Standard program there is a cost for enrollment to 
the CHCBP and these premium costs are payable by enrollees before any 
care may be provided.
    (b) General provisions. Except for any provisions the Director of 
the TRICARE Management Activity may exclude, the general provisions of 
Sec. 199.1 shall apply to the CHCBP as they do to TRICARE.
    (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 the TRICARE Standard program.
    (d) Eligibility and enrollment. (1) Eligibility, Enrollment in the 
CHCBP is open to any individual, except as noted in this section, who:
    (i) Ceases to meet the requirements for eligibility under 10 U.S.C. 
chapter 55 or 10 U.S.C. 1145, and
    (ii) Who on the day before they cease to meet the eligibility 
requirements for such care they were covered under a health benefit plan 
under 10 U.S.C. chapter 55 or transitional healthcare under 10 U.S.C. 
1145, and

[[Page 344]]

    (iii) Who would otherwise not be eligible for any benefits under 10 
U.S.C. chapter 55 or 10 U.S.C. 1145 except for CHCBP.
    (2) Exceptions. The following individuals are not eligible to enroll 
in CHCBP:
    (i) Members of uniformed services, who are discharged or released 
from active duty either voluntarily or involuntarily under conditions 
that are adverse.
    (ii) Individuals who lost their eligibility or entitlement to care 
under 10 U.S.C. chapter 55 or 10 U.S.C. 1145 before October 1, 1994.
    (iii) Individuals who are locked out of other TRICARE programs per 
that program's requirements.
    (3) Effective date. Eligibility in the CHCBP is limited to 
individuals who lost their entitlement to benefits under the MHS on or 
after October 1, 1994. The effective date of their coverage under CHCBP 
shall begin on the day after they cease to be eligible for care under 10 
U.S.C. chapter 55 or 10 U.S.C. 1145.
    (4) Notification of eligibility.
    (i) The Department of Defense and the other uniformed services 
(National Oceanic and Atmospheric Administration (NOAA), Public Health 
Service (PHS), and Coast Guard) will notify persons in the uniformed 
services eligible to receive health benefits under the CHCBP. 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.
    (ii) In the case of a dependent of a member or former member who 
become eligible for continued coverage under paragraph (d)(1)(ii) of 
this section:
    (A) The member or former member may submit to the CHCBP contractor a 
notice with supporting documentation of the dependent's change in status 
(including the dependent's name, address, and such other information 
needed); and
    (B) The CHCBP contractor, within fourteen (14) days after receiving 
such information, will inform the dependent of the dependent's rights 
under 10 U.S.C. 1142.
    (iii) In the case of a former spouse of a member or former member 
who becomes eligible for continued coverage, the member, former member 
or former spouse may submit to the CHCBP contractor a notice of the 
former spouse's change in status. The CHCBP contractor within fourteen 
(14) days after receiving such information will notify the individual of 
their potential eligibility for CHCBP.
    (5) Election of coverage. In order to obtain coverage under the 
CHCBP, a written election by the eligible beneficiary must be made 
within a prescribed time period.
    (i) In the case of a member discharged or released from active duty 
or full-time National Guard duty (whether voluntarily or involuntarily), 
or a RC member formerly eligible for care under 10 U.S.C. chapter 55, 
the written election shall be submitted to the CHCBP contractor before 
the end of the 60-day period beginning on the later of:
    (A) The date of the discharge or release of the member; or
    (B) The date that the period of transitional health care applicable 
to the member under 10 U.S.C. 1145(a) ends; or
    (C) The date the member receives the notification required in 
paragraph (d)(3) of this section.
    (ii) In the case of a child who ceases to meet the requirements for 
being an unremarried dependent child of a member or former member under 
10 U.S.C. 1072(2)(D) or an unmarried dependent of a member or former 
member of the uniformed services under 10 U.S.C. 1072(2)(I), the written 
election shall be submitted to the CHCBP contractor before the end of 
the 60-day period beginning on the later of:
    (A) The date that the dependent ceases to meet the definition of a 
dependent under 10 U.S.C. 1072(2)(D) or 10 U.S.C. 1072(2)(I); or
    (B) The date that the dependent receives the notification required 
in paragraph (d)(3) of this section,
    (iii) In the case of former spouse of a member or former member, the 
written election shall be submitted to the CHCBP contractor before the 
end of the 60-day period beginning on the date as of which the former 
spouse first ceases to meet the requirements for

[[Page 345]]

being considered a dependent under 10 U.S.C. 1072(2).
    (iv) In the case of an unmarried surviving spouse of a member or 
former member of the uniformed services who on the day before the death 
of the member or former member was covered under 10 U.S.C. chapter 55 or 
10 U.S.C. 1145(a), the written election shall be submitted to the CHCBP 
contractor within 60 days of the date of the member or former member's 
death.
    (v) A member of the uniformed services who is eligible for 
enrollment under paragraph (d)(1) 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.
    (vi) All other categories eligible for enrollment under paragraph 
(d)(1) of this section must elect self-only coverage.
    (6) Enrollment. To enroll in the CHCBP, an eligible individual must 
submit the completed enrollment form designated by the Director, TRICARE 
as well as any documentation as requested on the enrollment form to 
verify the applicant's eligibility for enrolling in CHCBP, and payment 
to cover the quarter's premium. The CHCBP contractor may request 
additional information and documentation to confirm the applicant's 
eligibility for CHCBP.
    (7) Period of coverage. Except as noted below CHCBP coverage may not 
extend beyond 18 months from the date the individual becomes eligible 
for CHCBP. Although beneficiaries have sixty (60) days to elect coverage 
under the CHCBP, upon enrolling, the period of coverage must begin the 
day after entitlement or eligibility to a military health care plan ends 
as though no break in coverage had occurred notwithstanding the date the 
enrollment form with any applicable premium is submitted.
    (i) Exceptions:
    (A) In the case of a 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) or 10 U.S.C. 1072(2)(I).
    (B) In the case of an unremarried former spouse (as this term is 
defined in 10 U.S.C. 1072(2)(G) or (H)) of a member or former member, 
the date which is 36 months after the later of:
    (1) The date on which the final decree of divorce, dissolution, or 
annulment occurs; or
    (2) If applicable, the date the one-year extension of dependency 
under 10 U.S.C. 1072(2)(H) expires.
    (C) In the case of an unremarried surviving spouse (widow or 
widower) (under 10 U.S.C. 1072(2)(B) or (C)) of a member or former 
member of the uniformed services who is not otherwise eligible for care 
under 10 U.S.C. chapter 55, the date which is 36 months after the date 
the surviving spouse becomes ineligible under 10 U.S.C chapter 55 or 10 
U.S.C. 1145(a).
    (D) In the case of a former spouse of a retiree whose marriage was 
dissolved after the member retired from the service, the period of 
coverage under the CHCBP is unlimited, if the former spouse:
    (1) Has not remarried before the age of 55 after the marriage to the 
former member was dissolved; and
    (2) Was enrolled in the CHCBP or TRICARE as the dependent of a 
retiree during the 18-month period before the date of the divorce, 
dissolution, or annulment; and
    (3) 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
    (4) Has a court order for payment of any portion of the retired or 
retainer pay or 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.
    (E) For the beneficiary who becomes eligible for the CHCBP 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).

[[Page 346]]

    (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 TRICARE.
    (2) Exceptions. The following provisions of Sec. 199.4 are not 
applicable to the CHCBP:
    (i) Section 199.4(a)(2) concerning eligibility.
    (ii) All provisions regarding requirements to use facilities of the 
uniformed services because CHCBP enrollees are not eligible to use those 
facilities.
    (3) Beneficiary liability. For purposes of TRICARE deductible and 
cost-sharing requirements and catastrophic cap limits, amounts 
applicable to the category 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 TRICARE Standard.
    (g) Claims submission, review, and payment. The provisions of Sec. 
199.7 shall apply to the CHCBP as they do to TRICARE Standard except 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 TRICARE Standard.
    (i) Administrative remedies for fraud, abuse, and conflict of 
interest. The provisions of Sec. 199.9 shall apply to the CHCBP as they 
do to TRICARE Standard.
    (j) Appeal and hearing procedures. The provisions of Sec. 199.10 
shall apply to the CHCBP as they do to TRICARE Standard.
    (k) Overpayments recovery. The provisions of Sec. 199.11 shall 
apply to the CHCBP as they do to TRICARE Standard.
    (l) Third party recoveries. The provisions of Sec. 199.12 shall 
apply to the CHCBP as they do to TRICARE Standard.
    (m) Provider reimbursement methods. The provisions of Sec. 199.14 
shall apply to the CHCBP as they do to TRICARE Standard.
    (n) Quality and Utilization Review Peer Review Organization Program. 
The provisions of Sec. 199.15 shall apply to the CHCBP as they do to 
TRICARE Standard.
    (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 TRICARE Standard beneficiaries.
    (p) Special programs not applicable--(1) In general. Special 
programs established under this Part that are not part of the TRICARE 
Standard 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 but are not limited to:
    (i) The Extended Care Health Option under Sec. 199.5;
    (ii) The TRICARE Dental Program or Retiree Dental Program under 
Sec. 199.13 and 199.22 respectively;
    (iii) The Supplemental Health Care Program under Sec. 199.16;
    (iv) The TRICARE Program under Sec. 199.17, except for TRICARE 
Standard and Extra programs under that section; and
    (v) The Uniform HMO benefit under Sec. 199.18.
    (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 Employees Health Benefits 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 when the premium 
amount is changed.

[[Page 347]]

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 that are late thirty (30) days or more past the start 
of the quarter for which payment is due will result in the termination 
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 (90) day 
period for which a premium payment was received. Enrollees will be held 
liable for medical costs incurred after losing eligibility.
    (r) Procedures. The Director, TRICARE Management Activity, may 
establish other rules and procedures for the administration of the 
CHCBP.

[76 FR 57639, Sept. 16, 2011]



Sec. 199.21  TRICARE 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. (i) Applicability. The pharmacy 
benefits program, which includes the uniform formulary and its 
associated tiered co-payment structure, is applicable to all of the 
uniformed services. Geographically, except as specifically provided in 
paragraph (a)(2)(ii) of this section, this program is applicable to 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) (ASD(HA)), the TRICARE pharmacy benefits 
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 ASD (HA) may also authorize modifications to the pharmacy 
benefits program rules and procedures as may be appropriate to the area 
involved.
    (ii) Applicability exception. The pharmaceutical benefit under the 
TRICARE smoking cessation program under Sec. 199.4(e)(30) is available 
to TRICARE beneficiaries who are not entitled to Medicare benefits 
authorized under Title XVIII of the Social Security Act. Except as noted 
in Sec. 199.4(e)(30), the smoking cessation program, including the 
pharmaceutical benefit, is not applicable or available to beneficiaries 
who reside overseas, including the U. S. territories of Guam, Puerto 
Rico, and the Virgin Islands, except that under the authority of Sec. 
199.17 active duty service members and active duty dependents enrolled 
in TRICARE Prime residing overseas, including the U. S. territories of 
Guam, Puerto Rico, and the Virgin Islands, shall have access to smoking 
cessation pharmaceuticals through either an MTF or the TMOP program 
where available.
    (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 section, 
pharmaceutical agents in each therapeutic class are selected for 
inclusion on the uniform formulary based upon the relative clinical 
effectiveness and cost effectiveness of the agents in such class. If a 
pharmaceutical agent in a therapeutic class is determined by the 
Department of Defense Pharmacy and Therapeutics Committee not to have a 
significant, clinically meaningful therapeutic advantage in terms of 
safety, effectiveness, or clinical outcome over other pharmaceutical 
agents included on the uniform formulary, the Committee may recommend it 
be classified as a non-formulary agent. In addition, if the evaluation 
by the Pharmacy and Therapeutics Committee concludes that a 
pharmaceutical agent

[[Page 348]]

in a therapeutic class is not cost effective relative to other 
pharmaceutical agents in that therapeutic class, considering costs, 
safety, effectiveness, and clinical outcomes, the Committee may 
recommend it be classified as a non-formulary agent.
    (iii) Pharmaceutical agents which are used exclusively in medical 
treatments or procedures that are expressly excluded from the TRICARE 
benefit by statute or regulation will not be considered for inclusion on 
the uniform formulary. Excluded pharmaceutical agents shall not be 
available as non-formulary agents, nor will they be cost-shared under 
the TRICARE pharmacy benefits program.
    (b) 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

[[Page 349]]

Pharmacy and Therapeutics Committee. The Panel will function in 
accordance with the Federated Advisory Committee Act (5 U.S.C. App. 2).
    (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

[[Page 350]]

of circumstances including, but not limited to:
    (1) Approval of a new pharmaceutical agent by the U.S. Food and Drug 
Administration;
    (2) Approval of a new indication for an existing pharmaceutical 
agent;
    (3) Changes in the clinical use of existing pharmaceutical agents;
    (4) New information concerning the safety, effectiveness or clinical 
outcomes of existing pharmaceutical agents;
    (5) Price changes;
    (6) Shifts in market share;
    (7) Scheduled review of a therapeutic class; and
    (8) Requests from Pharmacy and Therapeutics Committee members, 
military treatment facilities, or other Military Health System 
officials.
    (g) 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.
    (4) Transition to the Uniform Formulary. Beginning in Fiscal Year 
2005, under an updated charter for the DoD P&T Committee, the committee 
shall meet at least quarterly to review therapeutic classes of 
pharmaceutical agents and make recommendations concerning which 
pharmaceutical agents should be on the Uniform Formulary, the Basic Care 
Formulary (BCF), and Extended Core Formulary (ECF). The P&T Committee 
will review the classes in a methodical, but expeditious manner. During 
the transition period from the previous methodology of formulary 
management involving only the MTFs and the TMOP Program, previous 
decisions by the predecessor DoD P&T Committee concerning MTF and Mail 
Order Pharmacy Program formularies shall continue in effect. As 
therapeutic classes are reviewed under the new formulary management 
process, the processes established by this section shall apply.
    (h) Obtaining pharmacy services under the retail network 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

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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 paragraphs (h)(2)(ii) and (h)(2)(iii) of this section, 
formulary pharmaceutical agents are available under the Pharmacy 
Benefits Program from all points of service identified in paragraph 
(h)(1) of this section.
    (ii) Availability of formulary pharmaceutical agents at military 
treatment facilities (MTF). Pharmaceutical agents included on the 
uniform formulary are available through facilities of uniformed 
services, consistent with the scope of health care services offered in 
such facilities and additional determinations by the P&T Committee of 
the relative clinical effectiveness and cost effectiveness, based on 
costs to the Program associated with providing the agents to 
beneficiaries. The BCF is a subset of the uniform formulary and is a 
mandatory component of formularies at all full-service MTF pharmacies. 
The BCF contains the minimum set of pharmaceutical agents that each 
full-service MTF pharmacy must have on its formulary to support the 
primary care scope of practice for Primary Care Manager enrollment 
sites. Limited-service MTF pharmacies (e.g., specialty pharmacies within 
an MTF or pharmacies servicing only active duty military members) are 
not required to include the entire BCF on their formularies, but may 
limit their formularies to those BCF agents appropriate to the needs of 
the patients they serve. An ECF may list preferred agents in drug 
classes other than those covered by the BCF. Among BCF and ECF agents, 
individual MTF formularies are determined by local P&T Committees based 
on the scope of health care services provided at the respective MTFs. 
All pharmaceutical agents on the local formulary of full-service MTF 
pharmacies must be available to all categories of beneficiaries.
    (iii) Pharmaceutical agents prescribed for smoking cessation are not 
available for coverage when obtained through a retail pharmacy. This 
includes network and non-network retail pharmacies.
    (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

[[Page 352]]

for review be expedited under the pharmacy benefits program.
    (4) Availability of vaccines/immunizations. This paragraph (h)(4) 
applies to the following three immunizations: H1N1 vaccine, seasonal 
influenza vaccine, and pneumococcal vaccine. A retail network pharmacy 
may be an authorized provider under the Pharmacy Benefits Program when 
functioning within the scope of its state laws to provide authorized 
vaccines/immunizations to an eligible beneficiary. The Pharmacy Benefits 
Program will cover the vaccine and its administration by the retail 
network pharmacy, including administration by pharmacists who meet the 
applicable requirements of state law to administer the vaccine. A 
TRICARE authorized vaccine/immunization includes vaccines/immunizations 
authorized as preventive care under the basic program benefits of Sec. 
199.4 of this Part, as well as such care authorized for Prime enrollees 
under the uniform HMO benefit of section 199.18. For Prime enrollees 
under the uniform HMO benefit, a referral is not required under 
paragraph (n)(2) of Sec. 199.18 for preventive care vaccines/
immunizations received from a retail network pharmacy that is a TRICARE 
authorized provider. Any additional policies, instructions, procedures, 
and guidelines appropriate for implementation of this benefit may be 
issued by the TMA Director, or designee.
    (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.
    (D) $0.00 co-payment for vaccines/immunizations authorized as 
preventive care for eligible beneficiaries.
    (iii) For formulary and generic pharmaceutical agents obtained from 
a retail non-network pharmacy there is a 20 percent or $9.00 co-payment 
(whichever is greater) per prescription for up to a 30-day supply of the 
pharmaceutical agent.
    (iv) For non-formulary pharmaceutical agents obtained at a retail 
non-network pharmacy there is a 20 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.
    (D) $0.00 co-payment for smoking cessation pharmaceutical agents 
covered under the smoking cessation program.
    (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

[[Page 353]]

family; and a point of service cost-share of 50 percent thereafter 
applies in lieu of the 20 percent co-payment.
    (vii) Except as provided in paragraph (h)(2)(viii) of this section, 
for pharmaceutical agents acquired by TRICARE Standard beneficiaries 
from retail non-network pharmacies, beneficiaries are subject to the 
$150.00 per individual or $300.00 maximum per family annual fiscal year 
deductible.
    (viii) Under TRICARE Standard, dependents of members of the 
uniformed services whose pay grade is E-4 or below are subject to the 
$50.00 per indiviudal or $100.00 maximum per family annual fiscal year 
deductible.
    (ix) The TRICARE catastrophic cap limits apply to pharmacy benefits 
program cost-sharing.
    (x) The per prescription co-payments established in this paragraph 
(i)(2) of this section may be adjusted periodically based on experience 
with the uniform formulary, changes in economic circumstances, and other 
appropriate factors. Any such adjustment may be made upon the 
recommendation of the Pharmacy and Therapeutics Committee and approved 
by the Assistant Secretary of Defense (Health Affairs). Any such 
adjusted amount will maintain compliance with the requirements of 10 
U.S.C. 1074g(a)(6).
    (xi) For a Medicare-eligible beneficiary, the cost-sharing 
requirements may not be in excess of the cost-sharing requirements 
applicable to all other beneficiaries covered by 10 U.S.C. 1086.
    (3) 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 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

[[Page 354]]

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, 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.

[[Page 355]]

    (m) Effect of other health insurance. The double coverage rules of 
section 199.8 of this part are applicable to services provided under the 
pharmacy benefits program. For this purpose, the Medicare prescription 
drug benefit under Medicare Part D, prescription drug benefits provided 
under Medicare Part D plans are double coverage plans and such plans 
will be the primary payer, to the extent described in section 199.8 of 
this part. Beneficiaries who elect to use these 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 methods 
and procedures for implementing and enforcing these requirements may 
differ from the methods and procedures followed under the basic CHAMPUS 
program.
    (q) Pricing standards for retail pharmacy program--(1) Statutory 
requirement. (i) As required by 10 U.S.C. 1074g(f), with respect to any 
prescription filled on or after the date of the enactment of the 
National Defense Authorization Act for Fiscal Year 2008, the TRICARE 
retail pharmacy program shall be treated as an element of the DoD for 
purposes of the procurement of drugs by Federal agencies under 38 U.S.C. 
8126 to the extent necessary to ensure pharmaceuticals paid for by the 
DoD

[[Page 356]]

that are provided by pharmacies under the program to eligible covered 
beneficiaries under this section are subject to the pricing standards in 
such section 8126.
    (ii) Under paragraph (q)(1)(i) of this section, all covered drug 
TRICARE retail pharmacy network prescriptions are subject to Federal 
Ceiling Prices under 38 U.S.C. 8126.
    (2) Manufacturer written agreement. (i) A written agreement by a 
manufacturer to honor the pricing standards required by 10 U.S.C. 
1074g(f) and referred to in paragraph (q)(1) of this section for 
pharmaceuticals provided through retail network pharmacies shall with 
respect to a particular covered drug be a condition for:
    (A) Inclusion of that drug on the uniform formulary under this 
section; and
    (B) Availability of that drug through retail network pharmacies 
without preauthorization under paragraph (k) of this section.
    (ii) A covered drug not under an agreement under paragraph (q)(2)(i) 
of this section requires preauthorization under paragraph (k) of this 
section to be provided through a retail network pharmacy under the 
Pharmacy Benefits Program. This preauthorization requirement does not 
apply to other points of service under the Pharmacy Benefits Program.
    (iii) For purposes of this paragraph (q)(2), a covered drug is a 
drug that is a covered drug under 38 U.S.C. 8126, but does not include:
    (A) A drug that is not a covered drug under 38 U.S.C. 8126;
    (B) A drug provided under a prescription that is not covered by 10 
U.S.C. 1074g(f);
    (C) A drug that is not provided through a retail network pharmacy 
under this section;
    (D) A drug provided under a prescription which the TRICARE Pharmacy 
Benefits Program is the second payer under paragraph (m) of this 
section;
    (E) A drug provided under a prescription and dispensed by a pharmacy 
under section 340B of the Public Health Service Act; or
    (F) Any other exception for a drug, consistent with law, established 
by the Director, TMA.
    (iv) The requirement of this paragraph (q)(2) may, upon the 
recommendation of the Pharmacy and Therapeutics Committee, be waived by 
the Director, TMA if necessary to ensure that at least one drug in the 
drug class is included on the Uniform Formulary. Any such waiver, 
however, does not waive the statutory requirement referred to in 
paragraph (q)(1) that all covered TRICARE retail network pharmacy 
prescriptions are subject to Federal Ceiling Prices under 38 U.S.C. 
8126; it only waives the exclusion from the Uniform Formulary of drugs 
not covered by agreements under this paragraph (q)(2).
    (3) Refund procedures. (i) Refund procedures to ensure that 
pharmaceuticals paid for by the DoD that are provided by retail network 
pharmacies under the pharmacy benefits program are subject to the 
pricing standards referred to in paragraph (q)(1) of this section shall 
be established. Such procedures may be established as part of the 
agreement referred to in paragraph (q)(2), or in a separate agreement, 
or pursuant to Sec. 199.11.
    (ii) The refund procedures referred to in paragraph (q)(3)(i) of 
this section shall, to the extent practicable, incorporate common 
industry practices for implementing pricing agreements between 
manufacturers and large pharmacy benefit plan sponsors. Such procedures 
shall provide the manufacturer at least 70 days from the date of the 
submission of the TRICARE pharmaceutical utilization data needed to 
calculate the refund before the refund payment is due. The basis of the 
refund will be the difference between the average non-federal price of 
the drug sold by the manufacturer to wholesalers, as represented by the 
most recent annual non-Federal average manufacturing prices (non-FAMP) 
(reported to the Department of Veterans Affairs (VA)) and the 
corresponding FCP or, in the discretion of the manufacturer, the 
difference between the FCP and direct commercial contract sales prices 
specifically attributable to the reported TRICARE paid pharmaceuticals, 
determined for each applicable NDC listing.

[[Page 357]]

The current annual FCP and the annual non-FAMP from which it was derived 
will be applicable to all prescriptions filled during the calendar year.
    (iii) A refund due under this paragraph (q) is subject to Sec. 
199.11 of this part and will be treated as an erroneous payment under 
that section.
    (A) A manufacturer may under section 199.11 of this part request 
waiver or compromise of a refund amount due under 10 U.S.C. 1074g(f) and 
this paragraph (q).
    (B) During the pendency of any request for waiver or compromise 
under paragraph (q)(3)(iii)(A) of this section, a manufacturer's written 
agreement under paragraph (q)(2) shall be deemed to exclude the matter 
that is the subject of the request for waiver or compromise. In such 
cases the agreement, if otherwise sufficient for the purpose of the 
condition referred to in paragraph (q)(2), will continue to be 
sufficient for that purpose. Further, during the pendency of any such 
request, the matter that is the subject of the request shall not be 
considered a failure of a manufacturer to honor a requirement or an 
agreement for purposes of paragraph (q)(4).
    (C) In addition to the criteria established in Sec. 199.11, a 
request for waiver may also be premised on the voluntary removal by the 
manufacturer in writing of a drug from coverage in the TRICARE Pharmacy 
Benefit Program.
    (iv) In the case of disputes by the manufacturer of the accuracy of 
TMA's utilization data, a refund obligation as to the amount in dispute 
will be deferred pending good faith efforts to resolve the dispute in 
accordance with procedures established by the Director, TMA. If the 
dispute is not resolved within 60 days, the Director, TMA will issue an 
initial administrative decision and provide the manufacturer with 
opportunity to request reconsideration or appeal consistent with 
procedures under section 199.10 of this part. When the dispute is 
ultimately resolved, any refund owed relating to the amount in dispute 
will be subject to an interest charge from the date payment of the 
amount was initially due, consistent with section 199.11 of this part.
    (4) Remedies. In the case of the failure of a manufacturer of a 
covered drug to honor a requirement of this paragraph (q) or to honor an 
agreement under this paragraph (q), the Director, TMA, in addition to 
other actions referred to in this paragraph (q), may take any other 
action authorized by law.
    (5) Beneficiary transition provisions. In cases in which a 
pharmaceutical is removed from the uniform formulary or designated for 
preauthorization under paragraph (q)(2) of this section, the Director, 
TMA may for transitional time periods determined appropriate by the 
Director or for particular circumstances authorize the continued 
availability of the pharmaceutical in the retail pharmacy network or in 
MTF pharmacies for some or all beneficiaries as if the pharmaceutical 
were still on the uniform formulary.
    (r) Refills of maintenance medications for TRICARE for Life 
beneficiaries through the mail order pharmacy program--(1) In general. 
Consistent with section 716 of the National Defense Authorization Act 
for Fiscal Year 2013, this paragraph requires that for covered 
maintenance medications, TRICARE for Life beneficiaries are generally 
required to obtain their prescription through the national mail-order 
pharmacy program or through military treatment facility pharmacies. For 
purposes of this paragraph, TRICARE for Life beneficiaries are those 
enrolled in the Medicare wraparound coverage option of the TRICARE 
program made available to the beneficiary under section 1086(d) of title 
10, United States Code.
    (2) Medications covered. The Director, TMA will establish, maintain, 
and periodically revise and update a list of covered maintenance 
medications subject to the requirement of paragraph (r)(1) of this 
section. The current list will be accessible through the TRICARE 
Pharmacy Program Internet Web site and by telephone through the TRICARE 
Pharmacy Program Service Center. Each medication included on the list 
will meet the following requirements:
    (i) It will be a medication prescribed for a chronic, long-term 
condition that is taken on a regular, recurring basis.
    (ii) It will be clinically appropriate to dispense the medication 
from the mail order pharmacy.

[[Page 358]]

    (iii) It will be cost effective to dispense the medication from the 
mail order pharmacy.
    (iv) It will be available for an initial filling of a 30-day or less 
supply through retail pharmacies.
    (v) It will be generally available at military treatment facility 
pharmacies for initial fill and refills.
    (vi) It will be available for refill through the national mail-order 
pharmacy program.
    (3) Refills covered. For purposes of the program under paragraph 
(r)(1), a refill is:
    (i) A subsequent filling of an original prescription under the same 
prescription number or other authorization as the original prescription; 
or
    (ii) A new original prescription issued at or near the end date of 
an earlier prescription for the same medication for the same patient.
    (4) Waiver of requirement. A waiver of the general requirement to 
obtain maintenance medication prescription refills from the mail order 
pharmacy or military treatment facility pharmacy will be granted in the 
following circumstances:
    (i) There is a blanket waiver for prescription medications that are 
for acute care needs.
    (ii) There is a blanket waiver for prescriptions covered by other 
health insurance.
    (iii) There is a case-by-case waiver to permit prescription 
maintenance medication refills at a retail pharmacy when necessary due 
to personal need or hardship, emergency, or other special circumstance. 
This waiver is obtained through an administrative override request to 
the TRICARE pharmacy benefits manager under procedures established by 
the Director, TMA.
    (5) Procedures. Under the program established by paragraph (r)(1) of 
this section, the Director, TMA will establish procedures for the 
effective operation of the program. Among these procedures are the 
following:
    (i) The Department will implement the program by utilizing best 
commercial practices to the extent practicable.
    (ii) An effective communication plan that includes efforts to 
educate beneficiaries in order to optimize participation and 
satisfaction will be implemented.
    (iii) Beneficiaries with active retail prescriptions for a 
medication on the maintenance medication list will be notified that 
their medication is covered under the program. Beneficiaries will be 
advised that they may receive up to two 30 day fills at retail while 
they transition their prescription to the mail order program. The 
beneficiary will be contacted after each of these two fills reminding 
the beneficiary that the prescription must be transferred to mail.
    (iv) Requests for a third fill at retail will be blocked and the 
beneficiary advised to call the pharmacy benefits manager (PBM) for 
assistance.
    (v) The PBM will provide a toll free number to assist beneficiaries 
in transferring their prescriptions from retail to the mail order 
program. With the beneficiary's permission, the PBM will contact the 
physician or other health care provider who prescribed the medication to 
assist in transferring the prescription to the mail order program.
    (vi) In any case in which a beneficiary required under paragraph (r) 
of this section to obtain a maintenance medication prescription refill 
from national mail order pharmacy program and attempts instead to refill 
such medications at a retail pharmacy, the PBM will also maintain the 
toll free number to assist the beneficiary. This assistance may include 
information on how to request a waiver, consistent with paragraph 
(r)(4)(iii) of this section, or in taking any other appropriate action 
to meet the beneficiary's needs and to implement the program.
    (vii) The PBM will ensure that a pharmacist is available at all 
times through the toll-free telephone number to answer beneficiary 
questions or provide other appropriate assistance.
    (6) Nonparticipation through opt-out from program. Any beneficiary 
who has been covered by the program under paragraph (r)(1) of this 
section for a period of at least one year may opt out of continuing to 
participate in the program.
    (i) For this purpose, the starting date for this one-year period is 
the first date after the effective date of paragraph

[[Page 359]]

(r)(1) of this section on which the beneficiary had a maintenance 
medication prescription filled through the mail order pharmacy program.
    (ii) The beneficiary may exercise his or her right to opt out of the 
program by contacting the PBM.
    (iii) Following an opt out, the beneficiary may obtain prescriptions 
from a retail pharmacy, subject to limitations under the TRICARE 
Pharmacy Benefits Program other than those under paragraph (r) of this 
section. These beneficiaries may also, if they wish, obtain refills from 
military treatment facility pharmacies and the mail order pharmacy 
program.
    (7) Expiration of program. The program and requirements established 
under paragraph (r)(1) of this section will expire December 31, 2017, 
unless Congress enacts a statutory extension of the program. If this 
happens, the program will automatically continue, with any adjustments 
or modifications required by law.

[69 FR 17048, Apr. 1, 2004, as amended at 74 FR 11292, Mar. 17, 2009; 74 
FR 55776, Oct. 29, 2009; 74 FR 65438, Dec. 10, 2009; 75 FR 63397, Oct. 
15, 2010; 76 FR 41065, July 13, 2011; 78 FR 13241, Feb. 27, 2013; 78 FR 
75247, Dec. 11, 2013]

    Editorial Note: At 76 FR 41065, July 13, 2011, Sec. 199.21 was 
amended by adding paragraphs (h)(4) and (i)(2)(ii)(D); however, the 
amendment could not be incorporated because both paragraphs already 
existed.



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, 
TRICARE Management Activity, or designee.
    (2) Premium costs for this coverage will be paid by the enrollee.
    (3) Geographic scope. (i) The TRDP 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.
    (ii) The Assistant Secretary of Defense (Health Affairs) (ASD (HA)) 
may extend the TRDP to geographic areas other than those specified in 
paragraph (b)(3)(i) of this section. In extending the TRDP overseas, the 
ASD (HA) is authorized to establish program elements, methods of 
administration, and payment rates and procedures that are different from 
those in effect for the areas specified in paragraph (b)(3)(i) of this 
section to the extent the ASD (HA), or designee, determines necessary 
for the effective and efficient operation of the TRDP. These differences 
may include, but are not limited to, specific provisions for 
preauthorization of care, varying licensure and certification 
requirements for foreign providers, and other differences based on 
limitations in the availability and capabilities of the Uniformed 
Services overseas dental treatment facilities and a particular nation's 
civilian sector providers in certain areas. The Director, TRICARE 
Management Activity shall issue guidance, as necessary, to implement the 
provisions of this paragraph. TRDP enrollees residing in overseas 
locations will be eligible for the same benefits as enrollees residing 
in the continental United States, although dental services may not be 
available or accessible in all locations.
    (4) Except as otherwise provided in this section or by the Assistant 
Secretary of Defense (Health Affairs) or designee, the TRDP is 
administered in a manner similar to the TRICARE Dental Program under 
Sec. 199.13 of this part.
    (5) The TRDP shall be administered through a contract.
    (c) Except as may be specifically provided in this section, to the 
extent terms defined in Sec. 199.2 and Sec. 199.13(b) are relevant to 
the administration of the TRICARE Retiree Dental Program, the 
definitions contained in Sec. 199.2 and Sec. 199.13(b) shall apply to 
the TRDP as

[[Page 360]]

they do to TRICARE/CHAMPUS and the TRICARE Dental Program.
    (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 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 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 for the TRICARE Dental Program.

    Note to paragraphs (d)(1)(iii), (d)(1)(iv), and (d)(1)(v):
    Eligible dependents of Medal of Honor recipients are described in 
Sec. 199.3(b)(2)(i) (except for former spouses) and Sec. 
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

[[Page 361]]

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, TMA, or designee, 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 enrollment 
periods of up to 12 months as long as the enrollee chooses to continue 
enrollment and remains eligible. An enrollee who chooses not to continue 
enrollment upon completion of an enrollment period may re-enroll at any 
time. However, an enrollee who is disenrolled from the TRDP before 
completion of an initial or subsequent enrollment period for reasons 
other than those in paragraphs in (d)(5)(ii)(A) and (B) of this section 
shall incur a lockout period of 12 months before re-enrollment can 
occur. Former enrollees who re-enroll following a lockout period or 
following a period of disenrollment after completion of an enrollment 
period must comply with all provisions that apply to new enrollees, 
including a new enrollment commitment.
    (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. All enrollee requests for termination of 
TRDP coverage before the completion of an enrollment period shall be 
submitted to the TRDP contractor for determination of whether the 
enrollee qualifies to be disenrolled under paragraphs (d)(5)(ii)(A) or 
(B) of this section.
    (A) Enrollment grace period. Regardless of the reason, TRDP coverage 
shall be cancelled, or otherwise terminated, upon request from an 
enrollee if the request is received by the TRDP contractor within 30 
calendar days following the enrollment effective date and there has been 
no use of TRDP benefits under the enrollment 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 termination of 
enrollment under paragraph (d)(5)(ii)(A) of this section will not be 
honored, and premiums will not be refunded.
    (B) Extenuating circumstances. Under limited circumstances, TRDP 
enrollees shall be disenrolled by the contractor before the completion 
of an enrollment period commitment upon request by an enrollee if the 
enrollee submits written, factual documentation that independently 
verifies that one of the following extenuating circumstances occurred 
during the enrollment period. In general, the circumstances must be 
unforeseen and long-term and must have originated after the effective 
date of TRDP coverage.
    (1) The enrollee is prevented by a serious medical condition from 
being able to utilize TRDP benefits,
    (2) The enrollee would suffer severe financial hardship by 
continuing TRDP enrollment; or
    (3) Any other circumstances which the Secretary considers 
appropriate.
    (C) Effective date of voluntary termination. For cases determined to 
qualify for disenrollment under the grace period provisions in paragraph 
(d)(5)(ii)(A) of this section, enrollment is completely nullified 
effective from the beginning date of coverage. For cases determined to 
qualify for disenrollment under the extenuating circumstances provisions 
in paragraph (d)(5)(ii)(B) of this section, the effective date of 
disenrollment is the first of the

[[Page 362]]

month following the contractor's initial determination on the 
disenrollment request or the first of the month following the last use 
of TRDP benefits under the enrollment, whichever is later.
    (D) Appeal process for denied voluntary enrollment termination. An 
enrollee has the right to appeal the contractor's determination that a 
disenrollment request does not qualify under paragraphs (d)(5)(ii)(A) or 
(B) of this section. The enrollee may appeal that determination by 
submitting a written appeal to the TMA, Office of Appeals and Hearings, 
with a copy of the contractor's determination notice and relevant 
documentation supporting the disenrollment request. This appeal must be 
received by TMA within 60 days of the date on the contractor's 
determination notice. The burden of proof is on the enrollee to 
establish affirmatively by substantial evidence that the enrollee 
qualifies to be disenrolled under paragraphs (d)(5)(ii)(A) or (B) of 
this section. TMA will issue written notification to the enrollee and 
the contractor of its appeal determination within 60 days from the date 
of receipt of the appeal request. That determination is final.
    (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 
premium payments will result in the enrollee's disenrollment from the 
TRDP and a lockout period of 12 months. Following this period of time, 
eligible individuals will be able to re-enroll.
    (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, TRICARE Management Activity, 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, 
TRICARE Management Activity, 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) The minimum TRDP benefit is basic dental care to include 
diagnostic services, preventive services, restorative services, 
endodontic services, periodontic services, oral surgery services, and 
other general services. The following is the minimum TRDP covered dental 
benefit:
    (i) Diagnostic services.
    (A) Clinical oral examinations.
    (B) Radiographs and diagnostic imaging.
    (C) Tests and laboratory examinations.
    (ii) Preventive services.
    (A) Dental prophylaxis.
    (B) Topical fluoride treatment (office procedure).
    (C) Sealants.
    (D) Other preventive services.
    (E) Space maintenance.
    (iii) Restorative services.
    (A) Amalgam restorations.
    (B) Resin-based composite restorations.
    (C) Other restorative services.
    (iv) Endodontic services.
    (A) Pulp capping.
    (B) Pulpotomy and pulpectomy.
    (C) Root canal therapy.
    (D) Apexification and recalcification procedures.
    (E) Apicoectomy and periradicular services.

[[Page 363]]

    (F) Other endodontic procedures.
    (v) Periodontic Services.
    (A) Surgical services.
    (B) Periodontal services.
    (vi) Oral surgery.
    (A) Extractions.
    (B) Surgical extractions.
    (C) Alveoloplasty.
    (D) Biopsy.
    (E) Other surgical procedures.
    (vii) Other general services.
    (A) Palliative (emergenery) treatment of dental pain.
    (B) Therapeutic drug injection.
    (C) Other drugs and/or medicaments.
    (D) Treatment of postsurgical complications.
    (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, TRICARE 
Management Activity, 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 treatement than in 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, TRICARE Management 
Activity, 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 procedures. All levels of appeal established by the 
contractor shall be exhausted prior to an appeal being filed with the 
TMA. Procedures comparable to those established for appeal of benefit 
determinations under Sec. 199.10 of this part shall apply together with

[[Page 364]]

the procedures for appeal of voluntary disenrollment determinations 
described in paragraph (d)(5)(ii)(D) of this section.
    (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 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; 72 FR 54213, Sept. 24, 2007; 72 FR 
64537, Nov. 16, 2007; 73 FR 59504, Oct. 9, 2008]



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

[[Page 365]]

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.
    (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

[[Page 366]]

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 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

[[Page 367]]

    (iv) Meet the nutrition risk criteria specified in this section.
    (2) In terms of income eligibility, the following apply:
    (i) The Department of Defense shall use the Alaska income poverty 
guidelines published by the DHHS for making determinations regarding 
income eligibility for the Program.
    (ii) Program income eligibility guidelines shall be adjusted 
annually to conform to annual adjustments made by the DHHS.
    (iii) For income eligibility, the Program may consider the income of 
the family during the past 12 months and the family's current rate of 
income to determine which indicator accurately reflects the family's 
status.
    (iv) A pregnant woman who is ineligible for participation in the 
Program because she does not meet income criteria shall be deemed 
eligible if the criteria would be met by increasing the number of 
individuals in her family (economic unit) by the number of children in 
utero.
    (v) The Program shall define income according to USDA regulations 
with regard to the USDA-administered WIC Program. In particular--
    (A) A basic allowance for housing is excluded from income as 
required by section 674 of the National Defense Authorization Act for 
Fiscal Year 2000.
    (B) The value of in-kind housing benefits is excluded from income as 
required under USDA regulations.
    (C) Cost of living allowances for duty outside the continental U.S. 
(OCONUS) is excluded from income as required under 7 CFR 
246.7(d)(2)(iv)(A)(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.

[[Page 368]]

    (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.
    (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

[[Page 369]]

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.
    (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 Reserve Select.

    (a) Establishment. TRICARE Reserve Select is established for the 
purpose of offering TRICARE Standard and Extra health coverage to 
qualified members of the Selected Reserve and their immediate family 
members.
    (1) Purpose. TRICARE Reserve Select is a premium-based health plan 
that is available for purchase by members of the Selected Reserve and 
certain survivors of Selected Reserve members as specified in paragraph 
(c) 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 (Health 
Affairs) may authorize modifications to the program rules and procedures 
as may be appropriate to the area involved.
    (4) Terminology. Certain terminology is introduced for TRICARE 
Reserve Select intended to reflect critical elements that distinguish it 
from other long-established TRICARE health programs. For instance, the 
effective date

[[Page 370]]

of eligibility for TRICARE has long been understood to mean that the 
eligible individual may obtain care under the military health system as 
of that date. However, that is not what it means in the context of 
TRICARE Reserve Select. To avoid the inevitable misunderstanding, this 
regulation uses the term ``qualify'' to mean that the member has 
satisfied all the ``qualifications'' that must be met before the member 
is authorized to purchase coverage. Only then may the member purchase 
coverage by submitting a completed request in the appropriate format 
along with payment of the applicable one month premium. The term 
``coverage'' indicates the benefit of TRICARE Standard or Extra covering 
claims submitted for payment of covered services, supplies, and 
equipment furnished by TRICARE authorized providers, hospitals, and 
suppliers.
    (5) 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 
ASD(HA), provisions of 32 CFR Part 199 apply to TRICARE Reserve Select.
    (B) Certain special programs established in 32 CFR Part 199 are not 
available to members covered under TRICARE Reserve Select. These include 
the Extended Care Health Option Program (see Sec. 199.5), the Special 
Supplemental Food Program (see Sec. 199.23), and the Supplemental 
Health Care Program (see Sec. 199.16) except when referred by a 
Military Treatment Facility (MTF) provider for incidental consults and 
the MTF provider maintains clinical control over the episode of care. 
The TRICARE Dental Program (see Sec. 199.13) is independent of this 
program and is otherwise available to all members of the Selected 
Reserve and their eligible family members whether or not they purchase 
TRICARE Reserve Select coverage.
    (ii) Premiums. TRICARE Reserve Select coverage is available for 
purchase by any Selected Reserve member if the member fulfills all of 
the statutory qualifications. A member of the Selected Reserve covered 
under TRICARE Reserve Select shall pay 28 percent of the total amount 
that the ASD(HA) determines on an appropriate actuarial basis as being 
appropriate for that coverage. There is one premium rate for member-only 
coverage and one premium rate for member and family coverage.
    (iii) Procedures. Under TRICARE Reserve Select, Reserve component 
members who fulfilled all of the statutory qualifications may purchase 
either the member-only type of coverage or the member and family type of 
coverage by submitting a completed request in the appropriate format 
along with payment of the applicable one month premium. Rules and 
procedures for purchasing coverage and paying applicable premiums are 
prescribed in this section.
    (iv) Benefits. When their coverage becomes effective, TRICARE 
Reserve Select beneficiaries receive the TRICARE Standard (and Extra) 
benefit including access to military treatment facility services and 
pharmacies, as described in Sec. 199.17 of this Part. TRICARE Reserve 
Select coverage features the deductible and cost share provisions of the 
TRICARE Standard (and Extra) plan for active duty family members for 
both the member and the member's covered family members. The TRICARE 
Standard (and Extra) plan is described in Sec. 199.17 of this Part.
    (b) TRICARE Reserve Select premiums. Members are charged premiums 
for coverage under TRICARE Reserve Select that represent 28 percent of 
the total annual premium amount that the Assistant Secretary of Defense, 
Health Affairs (ASD(HA)) determines on an appropriate actuarial basis as 
being appropriate for coverage under the TRICARE Standard (and Extra) 
benefit for the TRICARE Reserve Select eligible population. Premiums are 
to be paid monthly, except as otherwise provided through administrative 
implementation, pursuant to procedures established by the ASD(HA).
    (1) Annual establishment of rates. (i) TRICARE Reserve Select 
monthly premium rates shall be established and updated annually on a 
calendar year basis to maintain an appropriate relationship with the 
annual changes in premiums for the Blue Cross and Blue Shield Standard 
Service Benefit Plan under the Federal Employees Health

[[Page 371]]

Benefits Program, a nationwide plan closely resembling TRICARE Standard 
(and Extra) coverage, or by other adjustment methodology determined to 
be appropriate by the ASD(HA) for each of the two types of coverage, 
member-only and member and family as described in paragraphs (d)(2) of 
this section.
    (ii) Annual rates for the first year TRICARE Reserve Select was 
offered (calendar year 2005) were based on the Federal Blue Cross and 
Blue Shield annual premiums, with adjustments based on estimated 
differences in covered populations, as determined by the ASD(HA).
    (2) Premium adjustments. In addition to the determinations described 
in paragraph (b)(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) Survivor coverage under TRICARE Reserve Select. A surviving 
family member of a Reserve Component service member who qualified for 
TRICARE Reserve Select coverage as described in paragraph (c)(3) of this 
section will pay premium rates as follows. The premium amount shall be 
at the member-only rate if there is only one surviving family member to 
be covered by TRICARE Reserve Select and at the member and family rate 
if there are two or more survivors to be covered.
    (c) Eligibility for (qualifying to purchase) TRICARE Reserve Select 
coverage--(1) General. The law authorizing the TRICARE Reserve Select 
program uses the term ``eligibility'' to identify conditions under which 
a Reserve component member may purchase coverage. For purposes of 
program administration, the terms ``qualifying'' or ``qualified'' shall 
generally be used in lieu of such terms as ``eligibility'' or 
``eligible'' to refer to a Reserve component member who meets the 
program requirements allowing purchase of TRICARE Reserve Select 
coverage. The member's Service personnel office is responsible for 
keeping DEERS current with eligibility data.
    (2) Member Purchase. A member who is a member of a Reserve component 
of the Armed Forces qualifies to purchase TRICARE Reserve Select 
coverage if the member meets both the following conditions:
    (i) Is a member of the Selected Reserve of the Ready Reserve.
    (ii) Is not enrolled in, or eligible to enroll in, a health benefits 
plan under Chapter 89 of Title 5, U.S.C.
    (3) Survivor coverage under TRICARE Reserve Select. If a member of 
the Selected Reserve dies while in a period of TRICARE Reserve Select 
coverage, the family member(s) may purchase new or continue existing 
TRICARE Reserve Select coverage for up to six months beyond the date of 
the member's death.
    (d) Procedures--(1) Purchasing Coverage. A qualified member may 
purchase one of two types of coverage: member-only coverage or member 
and family coverage. Immediate family members of the Reserve component 
member, as defined in Sec. 199.3(b)(2)(i) (except former spouses) and 
Sec. 199.3 (b)(2)(ii) of this Part, may be included in such family 
coverage. To purchase either type of TRICARE Reserve Select coverage for 
effective dates of coverage described below, Reserve component members 
qualified under Sec. 199.24(c) must submit a request in the appropriate 
format, along with an initial payment of the applicable monthly premium 
required by paragraph (b) of this section to the appropriate TRICARE 
contractor in accordance with deadlines and other procedures established 
by the ASD(HA).
    (i) Continuation Coverage. Deadlines and other procedures may be 
established for a qualified member to purchase TRICARE Reserve Select 
coverage with an effective date immediately following the date of 
termination of coverage under another TRICARE program in which the 
member is the sponsor.
    (ii) Qualifying Life Event. Deadlines and other procedures may be 
established for a qualified member to purchase TRICARE Reserve Select 
coverage on the occasion of a qualifying life event that changes the 
immediate family composition (e.g., birth, adoption, divorce, etc.) that 
is eligible for coverage under TRICARE Reserve Select. The effective 
date for TRICARE Reserve Select coverage will be the

[[Page 372]]

date of the qualifying life event. It is the responsibility of the 
member to provide his or her personnel office with the necessary 
evidence required to substantiate the change in immediate family 
composition. Personnel officials will update DEERS in the usual manner. 
The appropriate TRICARE contractor will then take appropriate action 
upon receipt of the completed request in the appropriate format along 
with payment of the applicable one month premium.
    (iii) Open Enrollment. Deadlines and other procedures may be 
established for a qualified member to purchase TRICARE Reserve Select 
coverage at any time. The effective date of coverage will coincide with 
the first day of a month.
    (iv) Survivor coverage under TRICARE Reserve Select. Deadlines and 
other procedures may be established for a surviving family member of a 
Reserve Component service member who qualified for TRICARE Reserve 
Select coverage as described in paragraph (c)(3) of this section to 
purchase new TRICARE Reserve Select coverage or continue existing 
TRICARE Reserve Select coverage for up to six months beyond the date of 
the member's death. The effective date of coverage will be the day 
following the date of the member's death.
    (2) Changing type of coverage. TRICARE Reserve Select members may 
request to change type of coverage during open enrollment or on the 
occasion of a qualifying life event that changes immediate family 
composition as described in paragraph (d)(1)(ii) of this section by 
submitting a completed request in the appropriate format.
    (3) Termination. Termination of coverage for the member will result 
in termination of coverage for the member's family members in TRICARE 
Reserve Select, except as described in paragraphs (d)(1)(iv) of this 
section. The termination will become effective in accordance with 
procedures established by the ASD(HA). Members whose coverage under 
TRICARE Reserve Select terminates under paragraph (d)(3)(iii) or (iv) of 
this section will not be allowed to purchase coverage again under 
TRICARE Reserve Select for a period of one year following the effective 
the date of termination.
    (i) Coverage shall terminate for members who no longer qualify for 
TRICARE Reserve Select as specified in paragraph (c) of this section, 
including when the member's service in the Selected Reserve terminates.
    (ii) Coverage may terminate for members who gain coverage under 
another TRICARE program in which the member is the sponsor.
    (iii) Coverage may terminate for members who fail to make a premium 
payment in accordance with procedures established by the ASD(HA).
    (iv) Members may request termination of coverage at any time by 
submitting a completed request in the appropriate format in accordance 
with established deadlines and procedures.
    (v) Coverage for survivors as described in paragraph (d)(1)(iv) of 
this section shall terminate six months after the date of death of the 
covered Reserve component member.
    (4) Processing. Upon receipt of a completed request in the 
appropriate format, the appropriate TRICARE contractor will process 
enrollment actions into DEERS in accordance with deadlines and other 
procedures established by the ASD(HA).
    (5) Periodic revision. Periodically, certain features, rules or 
procedures of TRICARE Reserve Select may be revised. If such revisions 
will have a significant effect on members' costs or access to care, 
members may be given the opportunity to change their type of coverage or 
terminate coverage coincident with the revisions.
    (e) [Reserved]
    (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

[[Page 373]]

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 (f)(1) of this 
section, any State or local law or regulation pertaining to health 
insurance, prepaid health plans, or other health care delivery, 
administration, and financing methods is preempted and does not 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 
(f)(2) of this section includes State and local laws imposing premium 
taxes on health insurance carriers or underwriters or other plan 
managers, or similar taxes on such entities. Such laws are laws relating 
to health insurance, prepaid health plans, or other health care delivery 
or financing methods, within the meaning of 10 U.S.C. 1103. Preemption, 
however, does not apply to taxes, fees, or other payments on net income 
or profit realized by such entities in the conduct of business relating 
to DoD health services contracts, if those taxes, fees or other payments 
are applicable to a broad range of business activity. For the purposes 
of assessing the effect of Federal preemption of State and local taxes 
and fees in connection with DoD health services contracts, 
interpretations shall be consistent with those applicable to the Federal 
Employees Health Benefits Program under 5 U.S.C. 8909(f).
    (g) 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.

[72 FR 46383, Aug. 20, 2007, as amended at 76 FR 57641, Sept. 16, 2011]



Sec. 199.25  TRICARE Retired Reserve.

    (a) Establishment. TRICARE Retired Reserve is established for the 
purpose of offering the medical benefits provided under the TRICARE 
Standard and Extra programs to qualified members of the Retired Reserve, 
their immediate family members, and qualified survivors.
    (1) Purpose. As specified in paragraph (c) of this section, TRICARE 
Retired Reserve is a premium-based health plan that is available for 
purchase by any Retired Reserve member who is qualified for non-regular 
retirement, but is not yet 60 years of age, unless that member is either 
enrolled in, or eligible to enroll in, a health benefit plan under 
Chapter 89 of Title 5, United States Code, as well as certain survivors 
of Retired Reserve members.
    (2) Statutory Authority. TRICARE Retired Reserve is authorized by 10 
U.S.C. 1076e.
    (3) Scope of the Program. TRICARE Retired Reserve is geographically 
applicable to the same extent as specified in 32 CFR 199.1(b)(1).
    (4) Major Features of TRICARE Retired Reserve. The major features of 
the program include the following:
    (i) TRICARE rules applicable. (A) Unless specified in this section 
or otherwise prescribed by the ASD (HA), provisions of 32 CFR part 199 
apply to TRICARE Retired Reserve.
    (B) Certain special programs established in 32 CFR part 199 are not 
available to members covered under TRICARE Retired Reserve. These 
include the Extended Health Care Option (ECHO) program and the 
Supplemental Health Care Program (see Sec. 199.16) except when referred 
by a Military Treatment Facility (MTF) provider for incidental consults 
and the MTF provider maintains clinical control over the episode of 
care. The TRICARE Retiree Dental Program (see Sec. 199.13) is 
independent of this program and is otherwise available to all members 
who

[[Page 374]]

qualify for the TRICARE Retiree Dental Program whether or not they 
purchase TRICARE Retired Reserve coverage. The Continued Health Care 
Benefits Program (see Sec. 199.13) is also independent of this program 
and is otherwise available to all members who qualify for the Continued 
Health Care Benefits Program.
    (ii) Premiums. TRICARE Retired Reserve coverage is available for 
purchase by any Retired Reserve member if the member fulfills all of the 
statutory qualifications as well as certain survivors. A member of the 
Retired Reserve or qualified survivor covered under TRICARE Retired 
Reserve shall pay the amount equal to the total amount that the ASD(HA) 
determines on an appropriate actuarial basis as being appropriate for 
that coverage. There is one premium rate for member-only coverage and 
one premium rate for member and family coverage.
    (iii) Procedures. Under TRICARE Retired Reserve, Retired Reserve 
members (or their survivors) who fulfilled all of the statutory 
qualifications may purchase either the member-only type of coverage or 
the member and family type of coverage by submitting a completed request 
in the appropriate format along with an initial payment of the 
applicable premium. Procedures for purchasing coverage and paying 
applicable premiums are prescribed in this section.
    (iv) Benefits. When their coverage becomes effective, TRICARE 
Retired Reserve beneficiaries receive the TRICARE Standard (and Extra) 
benefit including access to military treatment facilities on a space 
available basis and pharmacies, as described in Sec. 199.17 of this 
part. TRICARE Retired Reserve coverage features the deductible and cost 
share provisions of the TRICARE Standard (and Extra) plan for retired 
members and dependents of retired members. Both the member and the 
member's covered family members are provided access priority for care in 
military treatment facilities on the same basis as retired members and 
their dependents who are not enrolled in TRICARE Prime as described in 
paragraph 199.17(d)(1)(E) of this Part.
    (b) Qualifications for TRICARE Retired Reserve coverage--(1) Retired 
Reserve Member. A Retired Reserve member qualifies to purchase TRICARE 
Retired Reserve coverage if the member meets both the following 
criteria:
    (i) Is a member of a Reserve component of the armed forces who is 
qualified for a non-regular retirement at age 60 under chapter 1223 of 
title 10, U.S.C., but who is not yet age 60 and
    (ii) Is not enrolled in, or eligible to enroll in, a health benefits 
plan under chapter 89 of title 5, U.S.C.
    (2) Retired Reserve Survivor. If a qualified member of the Retired 
Reserves dies while in a period of TRICARE Retired Reserve coverage, the 
immediate family member(s) of such member shall remain qualified to 
purchase new or continue existing TRICARE Retired Reserve coverage until 
the date on which the deceased member of the Retired Reserve would have 
attained age 60 as long as they meet the definition of immediate family 
members specified in paragraph (g)(2) of this section. This applies 
regardless whether either member-only coverage or member and family 
coverage was in effect on the day of the TRICARE Retired Reserve 
member's death.
    (c) TRICARE Retired Reserve premiums. Members are charged premiums 
for coverage under TRICARE Retired Reserve that represent the full cost 
of the program as determined by the ASD(HA) utilizing an appropriate 
actuarial basis for the provision of the benefits provided under the 
TRICARE Standard and Extra programs for the TRICARE Retired Reserve 
eligible beneficiary population. Premiums are to be paid monthly. The 
monthly rate for each month of a calendar year is one-twelfth of the 
annual rate for that calendar year.
    (1) Annual establishment of rates. (i) TRICARE Retired Reserve 
monthly premium rates shall be established and updated annually on a 
calendar year basis by the ASD(HA) for each of the two types of 
coverage, member-only coverage and member-and-family coverage.
    (ii) The appropriate actuarial basis used for calculating premium 
rates shall be one that most closely approximates the actual cost of 
providing care to the same demographic population as

[[Page 375]]

those enrolled in TRICARE Retired Reserve as determined by the ASD(HA). 
TRICARE Retired Reserve premiums shall be based on the actual costs of 
providing benefits to TRICARE Retired Reserve members and their 
dependents during the preceding years if the population of Retired 
Reserve members enrolled in TRICARE Retired Reserve is large enough 
during those preceding years to be considered actuarially appropriate. 
Until such time that actual costs from those preceding years becomes 
available, TRICARE Retired Reserve premiums shall be based on the actual 
costs during the preceding calendar years for providing benefits to the 
population of retired members and their dependents in the same age 
categories as the retired reserve population in order to make the 
underlying group actuarially appropriate. An adjustment may be applied 
to cover overhead costs for administration of the program by the 
government.
    (2) Premium adjustments. In addition to the determinations described 
in paragraph (c)(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 Retired Reserve Program.
    (3) Survivor Premiums. A surviving family member of a Retired 
Reserve member who qualified for TRICARE Retired Reserve coverage as 
described herein will pay premium rates at the member-only rate if there 
is only one surviving family member to be covered by TRICARE Retired 
Reserve and at the member-and-family rate if there are two or more 
survivors to be covered.
    (d) Procedures. The Director, TRICARE Management Activity (TMA), may 
establish procedures for the following.
    (1) Purchasing Coverage. Procedures may be established for a 
qualified member to purchase one of two types of coverage: member-only 
coverage or member and family coverage. Immediate family members of the 
Retired Reserve member may be included in such family coverage. To 
purchase either type of TRICARE Retired Reserve coverage for effective 
dates of coverage described below, Retired Reserve members and survivors 
qualified under either paragraph (b)(1) or (b)(2) of this section must 
submit a request in the appropriate format, along with an initial 
payment of the applicable premium required by paragraph (c) of this 
section in accordance with established procedures.
    (i) Continuation Coverage. Procedures may be established for a 
qualified member or qualified survivor to purchase TRICARE Retired 
Reserve coverage with an effective date immediately following the date 
of termination of coverage under another TRICARE program.
    (ii) Qualifying Life Event. Procedures may be established for a 
qualified member or qualified survivor to purchase TRICARE Retired 
Reserve coverage on the occasion of a qualifying life event that changes 
the immediate family composition (e.g., birth, death, adoption, divorce, 
etc.) that is eligible for coverage under TRICARE Retired Reserve. The 
effective date for TRICARE Retired Reserve coverage will coincide with 
the date of the qualifying life event. It is the responsibility of the 
member to provide personnel officials with the necessary evidence 
required to substantiate the change in immediate family composition. 
Personnel officials will update DEERS in the usual manner. Appropriate 
action will be taken upon receipt of the completed request in the 
appropriate format along with an initial payment of the applicable 
premium in accordance with established procedures.
    (iii) Open Enrollment. Procedures may be established for a qualified 
member or qualified survivor to purchase TRICARE Retired Reserve 
coverage at any time. The effective date of coverage will coincide with 
the first day of a month.
    (iv) Survivor coverage under TRICARE Retired Reserve. Procedures may 
be established for a surviving family member of a qualified Retired 
Reserve member who qualified for TRICARE Retired Reserve coverage as 
described in paragraph (b)(2) of this section to purchase new TRICARE 
Retired Reserve coverage or continue existing TRICARE Retired Reserve 
coverage.

[[Page 376]]

Procedures similar to those for qualifying life events may be 
established for a qualified surviving family member to purchase new or 
continuing coverage with an effective date coinciding with the day of 
the member's death. Procedures similar to those for open enrollment may 
be established for a qualified surviving family member to purchase new 
coverage at any time with an effective date coinciding with the first 
day of a month.
    (2) Changing type of coverage. Procedures may be established for 
TRICARE Retired Reserve members/survivors to request to change type of 
coverage during open enrollment as described in paragraph (d)(1)(iii) of 
this section or on the occasion of a qualifying life event that changes 
immediate family composition as described in paragraph (d)(1)(ii) of 
this section by submitting a completed request in the appropriate 
format.
    (3) Termination. Termination of coverage for the member will result 
in termination of coverage for the member's family members in TRICARE 
Retired Reserve, except as described in paragraphs (d)(1)(iv) of this 
section. The termination will become effective in accordance with 
established procedures.
    (i) Coverage shall terminate for members or their survivors who no 
longer qualify for TRICARE Retired Reserve as specified in paragraph (c) 
of this section. For purposes of this section, the member or their 
survivor no longer qualifies for TRICARE Retired Reserve when the member 
has been eligible for coverage in a health benefits plan under Chapter 
89 of Title 5, U.S.C. for more than 60 days. Further, coverage shall 
terminate when the Retired Reserve member attains the age of 60 or, if 
survivor coverage is in effect, when the deceased Retired Reserve member 
would have attained the age of 60.
    (ii) Coverage may terminate for members and survivors who gain 
coverage under another TRICARE program.
    (iii) Coverage shall terminate for members and survivors who fail to 
make a premium payment in accordance with established procedures.
    (iv) Procedures may be established for covered members and survivors 
to request termination of coverage at any time by submitting a completed 
request in the appropriate format.
    (v) Members or qualified survivors whose coverage under TRICARE 
Retired Reserve terminates under paragraph (d)(3)(iii) or (d)(3)(iv) of 
this section will not be allowed to purchase coverage under TRICARE 
Retired Reserve to begin again for a period of one year following the 
effective the date of termination.
    (4) Processing. Upon receipt of a completed request in the 
appropriate format, enrollment actions will be processed into DEERS in 
accordance with established procedures.
    (5) Periodic revision. Periodically, certain features, rules or 
procedures of TRICARE Retired Reserve may be revised. If such revisions 
will have a significant effect on members' or survivors' costs or access 
to care, members or survivors may be given the opportunity to change 
their type of coverage or terminate coverage coincident with the 
revisions.
    (e) 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 (f)(1) of this 
section, any State or local law or regulation pertaining to health 
insurance, prepaid health plans, or other health care delivery, 
administration, and financing methods is preempted and does not

[[Page 377]]

apply in connection with TRICARE Retired Reserve. 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 Retired Reserve. (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 Retired Reserve).
    (3) The preemption of State and local laws set forth in paragraph 
(f)(2) of this section includes State and local laws imposing premium 
taxes on health insurance carriers or underwriters or other plan 
managers, or similar taxes on such entities. Such laws are laws relating 
to health insurance, prepaid health plans, or other health care delivery 
or financing methods, within the meaning of 10 U.S.C. 1103. Preemption, 
however, does not apply to taxes, fees, or other payments on net income 
or profit realized by such entities in the conduct of business relating 
to DoD health services contracts, if those taxes, fees or other payments 
are applicable to a broad range of business activity. For the purposes 
of assessing the effect of Federal preemption of State and local taxes 
and fees in connection with DoD health services contracts, 
interpretations shall be consistent with those of the Federal Employees 
Health Benefits Program under 5 U.S.C. 8909(f).
    (f) Administration. The Director, TRICARE Management Activity, may 
establish other rules and procedures for the effective administration of 
TRICARE Retired Reserve and may authorize exceptions to requirements of 
this section, if permitted by law, based on extraordinary circumstances.
    (g) Terminology. The following terms are applicable to the TRICARE 
Retired Reserve program.
    (1) Coverage. This term means the medical benefits covered under the 
TRICARE Standard or Extra programs as further outlined in other sections 
of Part 199 of Title 32 of the Code of Federal Regulations, whether 
delivered in military treatment facilities or purchased from civilian 
sources.
    (2) Immediate family member. This term means spouse (except former 
spouses) as defined in paragraph 199.3(b)(2)(i) of this part, or child 
as defined in paragraph 199.3 (b)(2)(ii).
    (3) Qualified member. This term means a member who has satisfied all 
the criteria that must be met before the member is authorized for TRR 
coverage.
    (4) Qualified survivor. This term means an immediate family member 
who has satisfied all the criteria that must be met before the survivor 
is authorized for TRR coverage.

[75 FR 47455, Aug. 6, 2010]



Sec. 199.26  TRICARE Young Adult.

    (a) Establishment. The TRICARE Young Adult (TYA) program offers the 
medical benefits provided under the TRICARE Program to qualified 
unmarried adult children of TRICARE-eligible uniformed service sponsors 
who do not otherwise have eligibility for medical coverage under a 
TRICARE Program at age 21 (23 if enrolled in a full-time course of study 
at an approved institution of higher learning, and the sponsor provides 
over 50 percent of the student's financial support), and are under age 
26.
    (1) Purpose. As specified in paragraph (c) of this section, TYA is a 
premium-based health option that is available for purchase by any 
qualified adult child as that term is defined in paragraph (b) of this 
section. The TYA program allows a qualified adult child to purchase 
TRICARE coverage.
    (2) Statutory authority. TYA is authorized by 10 U.S.C. 1110b.
    (3) Scope of the program. TYA is geographically applicable to the 
same extent as specified in Sec. 199.1(b)(1).
    (4) Major features of TYA. (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 this part apply to TYA.
    (B) The TRICARE Dental Program (Sec. 199.13) and the TRICARE 
Retiree Dental Program (Sec. 199.22) are not covered under TYA.
    (C) TRICARE Standard is available to all TYA-eligible young adult 
dependents. TYA enrollees in TRICARE

[[Page 378]]

Standard may use TRICARE Extra (under Sec. 199.17(e)).
    (D) TRICARE Prime is available to TYA-eligible young adult 
dependents, provided that TRICARE Prime (including the Uniformed 
Services Family Health Plan) is available in the geographic location 
where the TYA enrollee resides. This applies to TYA-eligible:
    (1) Dependents of sponsors on active duty orders written, or 
otherwise continuously, for more than 30 days or covered by TAMP (under 
Sec. 199.3(e));
    (2) Dependents of sponsors who are retired members other than 
retired members of the Retired Reserve; and
    (3) Survivors of members who died while on active duty for more than 
30 days or while receiving retired or retainer pay.
    (ii) Premiums. TYA coverage is a premium based program that an 
eligible young adult dependent may purchase. There is only individual 
coverage, and a premium shall be charged for each dependent even if 
there is more than one qualified dependent in the uniformed service 
sponsor's family that qualifies for TYA coverage. Dependents qualifying 
for TYA status can purchase individual TRICARE Standard/Extra or TRICARE 
Prime coverage (as applicable) according to the rules governing the 
TRICARE option for which they are qualified on the basis of their 
uniformed service sponsor's TRICARE-eligible status (active duty, 
retired, Selected Reserve, or Retired Reserve) and the availability of a 
desired option in their geographic location. Premiums shall be 
determined in accordance with paragraph (c) of this section.
    (iii) Procedures. Under TYA, qualified dependents under paragraph 
(b) of this section may purchase individual TYA coverage by submitting a 
completed request in the appropriate format along with an initial 
payment of the applicable premium. Procedures for purchasing coverage 
and paying applicable premiums are prescribed in paragraph (d) of this 
section.
    (iv) Benefits. When their TYA coverage becomes effective, qualified 
beneficiaries receive the benefit of the TRICARE option that they 
selected, including, if applicable, access to military treatment 
facilities and pharmacies. TYA coverage features the per service cost 
share, deductible and catastrophic cap provisions based on program 
selected, i.e., the TRICARE Standard/Extra program or the TRICARE Prime 
program, as well as the status of their military sponsor. Access to 
military treatment facilities under the system of access priorities in 
Sec. 199.17(d)(1) is also based on the program selected as well as the 
status of the military sponsor. Premiums are not credited to deductibles 
or catastrophic caps.
    (v) Transition period. During fiscal year 2011, the TYA program will 
include only TRICARE Standard program coverage.
    (b) Eligibility for TRICARE Young Adult coverage.--(1) Young Adult 
Dependent. A young adult dependent qualifies to purchase TYA coverage if 
the dependent meets the following criteria:
    (i) Would be a dependent child under 10 U.S.C. 1072, but for 
exceeding the age limit under that section (abused dependents and NATO 
dependents are not eligible for TYA coverage); and
    (ii) Is a dependent under the age of 26; and
    (iii) Is not enrolled, or eligible to enroll, for medical coverage 
in an eligible employer-sponsored health plan as defined in section 
5000A(f)(2) of the Internal Revenue Code of 1986; and
    (iv) Is not otherwise eligible under Sec. 199.3; and
    (v) Is not a member of the uniformed services.
    (2) The dependents' sponsor is responsible for keeping the Defense 
Enrollment Eligibility Reporting System (DEERS) current with eligibility 
data through the sponsor's Service personnel office. Using information 
from the DEERS, the TRICARE regional contractors have the responsibility 
to validate a dependent's qualifications to purchase TYA coverage.
    (c) TRICARE Young Adult premiums. Qualified young adult dependents 
are charged premiums for coverage under TYA that represent the full cost 
of the program, including reasonable administrative costs, as determined 
by the ASD(HA) utilizing an appropriate actuarial basis for the 
provision of TRICARE benefits for the TYA-eligible

[[Page 379]]

beneficiary population. Separate premiums shall be established for 
TRICARE Standard and Prime plans. There may also be separate premiums 
based on the uniformed services sponsor's status. Premiums are to be 
paid monthly. The monthly rate for each month of a calendar year is one-
twelfth of the annual rate for that calendar year.
    (1) Annual establishment of rates.--(i) Monthly premium rates shall 
be established and updated annually on a calendar year basis by the 
ASD(HA) for TYA individual coverage.
    (ii) The appropriate actuarial basis used for calculating premium 
rates shall be one that most closely approximates the actual cost of 
providing care to a similar demographic population (based on age and 
health plans) as those enrolled in TYA, as determined by the ASD(HA). 
TYA premiums shall be based on the actual costs of providing benefits to 
TYA dependents during the preceding years if the population of TYA 
enrollees is large enough during those preceding years to be considered 
actuarially appropriate. Until such time that actual costs from those 
preceding years become available, TYA premiums shall be based on the 
actual costs during the preceding calendar years for providing benefits 
to the population of similarly aged dependents to make the underlying 
group actuarially appropriate. An adjustment may be applied to cover 
overhead costs for administration of the program.
    (2) Premium adjustments. In addition to the determinations described 
in paragraph (c)(1) of this section, premium adjustments may be made 
prospectively for any calendar year to reflect any significant program 
changes mandated by legislative enactment, including but not limited to 
significant new programs or benefits.
    (d) Procedures. The Director, TRICARE Management Activity may 
establish procedures for the following.
    (1) Purchasing coverage. Procedures may be established for a 
qualified dependent to purchase individual coverage. To purchase TYA 
coverage for effective dates of coverage described below, qualified 
dependents must submit a request in the appropriate format, along with 
an initial payment of the applicable premium required by paragraph (c) 
of this section in accordance with established procedures.
    (i) Continuation coverage. Procedures may be established for a 
qualified dependent to purchase TYA coverage with an effective date 
immediately following the date of termination of coverage under another 
TRICARE program. Application for continuation coverage must be made 
within 30 days of the date of termination of coverage under another 
TRICARE program.
    (ii) Open enrollment. Procedures may be established for a qualified 
dependent to purchase TYA coverage at any time. The effective date of 
coverage will coincide with the first day of a month.
    (iii) Retroactive coverage. A qualified young adult dependent may 
elect retroactive TRICARE Standard coverage effective as of January 1, 
2011, if dependent was eligible as of that date. If retroactive coverage 
is elected, retroactive premiums must be paid for the time period 
between January 1, 2011, and the date of the election. If no retroactive 
coverage is elected or the retroactive premiums are not paid within the 
time prescribed, coverage will not be retroactive and coverage will 
apply only prospectively under the procedures set forth for open 
enrollment. No purchase of retroactive coverage may take place after 
September 30, 2011. Coverage under TRICARE Prime may not be made 
retroactively.
    (2) Suspension and termination. Procedures may be established for 
TYA coverage to be suspended and/or terminated as follows.
    (i) Loss of eligibility or entitlement for coverage by the sponsor 
will result in termination of the dependent's TYA coverage unless 
otherwise specified. The effective date of the sponsor's loss of 
eligibility for care will also be the effective date of termination of 
benefits under the TYA program unless specified otherwise.
    (A) Active duty military sponsor. TYA coverage ends effective the 
date of military sponsor's separation from military service, unless the 
dependent would be eligible under section 199.3(e) of this Part but for 
the dependent's

[[Page 380]]

age, for the duration of the Transitional Assistance Management Program 
(TAMP) eligibility or until reaching age 26, whichever comes first. Upon 
the death of an active duty sponsor, dependents eligible for 
Transitional Survivor coverage may purchase TYA coverage if otherwise 
qualified.
    (B) Selected Reserve (Sel Res) Sponsor. Sel Res sponsors must be 
currently enrolled in TRICARE Reserve Select (TRS) before a young adult 
dependent is eligible to purchase TYA. If TRS coverage is terminated by 
the sponsor, TYA coverage ends effective the same termination date as 
the sponsor. If the Sel Res sponsor dies while enrolled in TRS, the 
young adult dependent is eligible to purchase TYA coverage for six 
months after the date of death of the Sel Res sponsor, if otherwise 
qualified.
    (C) Retired Reserve Sponsor. Retired Reserve members not yet 
eligible for retired or retainer pay must be enrolled in TRICARE Retired 
Reserve (TRR) to establish TYA eligibility for their young adult 
dependents. If TRR coverage is terminated by the sponsor, the TYA 
coverage for the young adult dependent ends effective the same date as 
the sponsor's termination of coverage under TRR. If the retired reserve 
sponsor dies while enrolled in TRR, the young adult dependent may 
continue to purchase TYA coverage until the date on which the deceased 
member would have attained age 60, if otherwise qualified. If the 
Retired Reserve member dies and is not enrolled in TRR, there is no 
eligibility for TYA coverage until the sponsor would have reached age 
60. On the date the Retired Reserve member would have reached 60, a 
young adult dependent who otherwise qualifies for TYA qualifies as a 
dependent of a deceased retired sponsor and can purchase TYA coverage.
    (ii) Failure of a young adult dependent to maintain the eligibility 
qualifications in paragraph (b) of this section shall result in the 
termination of coverage under the TYA program. The effective date of 
termination shall be the date upon which the adult young dependent 
failed to meet any of the prerequisite qualifications. If a subsequent 
change in circumstances re-establishes eligibility (such as losing 
eligibility for an eligible employer-sponsored plan), the young adult 
dependent may re-enroll for coverage under the TYA program.
    (iii) Coverage may also be terminated due to a change in the 
sponsor's status, and the young adult dependent must re-qualify and 
reapply for TYA coverage within 30 days of termination to preclude a gap 
in coverage.
    (iv) Termination of coverage results in denial of claims for 
services with a date of service after the effective date of termination.
    (v) Coverage may be suspended and finally terminated for young adult 
dependents upon request at any time by submitting a completed request in 
the appropriate format in accordance with established procedures.
    (vi) Coverage may be suspended and finally terminated for young 
adult dependents who fail to make premium payments within established 
procedures.
    (vii) Under paragraph (d)(2)(v) or (d)(2)(vi) of this section, TYA 
coverage may be first suspended for a period up to one year followed by 
final termination. Procedures may be established for the suspension to 
be lifted upon request before final termination is applied. Procedures 
may also be established for the suspension to be lifted before final 
termination is applied upon request for undue hardship as defined by 
Sec. 199.26(g).
    (3) Eligibility for the Continued Health Care Benefit Program. Upon 
termination of eligibility to purchase TYA coverage, dependents may 
purchase coverage for up to 36 months through the Continued Health Care 
Benefit Program under Sec. 199.20 unless locked out of TYA.
    (4) Changing coverage. Upon application and payment of appropriate 
premiums, qualified dependents already enrolled in and who are current 
in their premium payments may elect to change to another TRICARE program 
for which the qualified dependent is eligible based on the sponsor's 
eligibility and the geographic location of the qualified young adult 
dependent. Upon change in sponsor status (for example, active duty to 
retired status), TYA coverage may be automatically transferred to the 
appropriate TRICARE option consistent with the sponsor's new

[[Page 381]]

status. Recurring TYA premiums may be adjusted accordingly. 
Administrative processes may be established for changes in program 
enrollment; however, no change shall be effective until the applicable 
premium has been paid.
    (e) Preemption of State laws.--The preemption provisions of Sec. 
199.17(a)(7) are applicable to the TYA program.
    (f) Administration. The Director, TRICARE Management Activity may 
establish other processes, policies and procedures for the effective 
administration of the TYA Program and may authorize exceptions to 
requirements of this section, if permitted by law.
    (g) Terminology. The following term applies to the TYA program:
    Undue hardship. This term involves a situation that the TYA 
dependent could neither have prevented nor avoided by taking reasonable 
and timely action. The ASD(HA) may provide further guidelines regarding 
use of this term.

[78 FR 32119, May 29, 2013]



                  Sec. 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 202_RESTORATION ADVISORY BOARDS--Table of Contents



                     Subpart A_General Requirements

Sec.
202.1 Purpose, scope, definitions, and applicability.
202.2 Criteria for establishment.
202.3 Notification of formation of a restoration advisory board.
202.4 Composition of a RAB.

                    Subpart B_Operating Requirements

202.5 Creating a mission statement.
202.6 Selecting co-chairs.
202.7 Developing operating procedures.
202.8 Training RAB members.
202.9 Conducting RAB meetings.
202.10 RAB adjournment and dissolution.

[[Page 382]]

202.11 Documenting RAB activities.

  Subpart C_Administrative Support, Funding, and Reporting Requirements

202.12 Administrative support and eligible expenses.
202.13 Technical assistance for public participation.
202.14 Documenting and reporting activities and expenses.

    Authority: 5 U.S.C. 551 et seq and 10 U.S.C. 2705

    Source: 71 FR 27618, May 12, 2006, unless otherwise noted.



                     Subpart A_General Requirements



Sec. 202.1  Purpose, scope, definitions, and applicability.

    (a) Purpose. The purpose of this part to establish regulations 
regarding the scope, characteristics, composition, funding, 
establishment, operation, adjournment, and dissolution of Restoration 
Advisory Boards (RABs).
    (b) Purpose and scope of responsibilities of RABs. The purpose of a 
RAB is to provide:
    (1) An opportunity for stakeholder involvement in the environmental 
restoration process at Department of Defense (DoD) installations. 
Stakeholders are those parties that may be affected by environmental 
restoration activities at the installation.
    (2) A forum for the early discussion and continued exchange of 
environmental restoration program information between DoD installations, 
regulatory agencies, tribes, and the community.
    (3) An opportunity for RAB members to review progress, participate 
in a dialogue with, and provide comments and advice to the 
installation's decision makers concerning environmental restoration 
matters. Installations shall give careful consideration to the comments 
provided by the RAB members.
    (4) A forum for addressing issues associated with environmental 
restoration activities under the Defense Environmental Restoration 
Program (DERP) at DoD installations, including activities conducted 
under the Military Munitions Response program (MMRP) to address 
unexploded ordnance, discarded military munitions, and the chemical 
constituents of munitions. Environmental groups or advisory boards that 
address issues other than environmental restoration activities are not 
governed by this regulation.
    (c) Definitions. In this section:
    (1) Community RAB member shall mean those individuals identified by 
community members and appointed by the Installation Commander to 
participate in a RAB who live and/or work in the affected community or 
are affected by the installation's environmental restoration program.
    (2) Environmental restoration shall include the identification, 
investigation, research and development, and cleanup of contamination 
from hazardous substances, including munitions and explosives of 
concern, and pollutants and contaminants.
    (3) Installation shall include active and closing DoD installations 
and formerly used defense sites (FUDS).
    (4) Installation Commander shall include the Commanding Officer or 
the equivalent of a Commanding Officer at active installations; the 
Installation Commander or other Military Department officials who close 
the facility and are responsible for its disposal at Base Realignment 
and Closure (BRAC) installations; or the U.S. Army Corps of Engineers 
Project Management District Commander at FUDS.
    (5) Public participants shall include anyone else who may want to 
attend the RAB meetings, including those individuals that may not live 
and/or work in the affected community or may not be affected by the 
installation's environmental restoration program but would like to 
attend and provide comments to the RAB.
    (6) Stakeholders are those parties that may be affected by 
environmental restoration activities at an installation, including 
family members of military personnel and civilian workers, local and 
state governments and EPA for NPL properties, tribal community members 
and indigenous people, and current landowners, as appropriate.
    (7) Tribes shall mean any Federally-recognized American Indian and 
Alaska Native government as defined by the most current Department of 
Interior/Bureau of Indian Affairs list of

[[Page 383]]

tribal entities published in the Federal Register pursuant to Section 
104 of the Federally Recognized Tribe Act.
    (8) RAB adjournment shall mean when an Installation Commander, in 
consultation with the Environmental Protection Agency (EPA), state, 
tribes, RAB members, and the local community, as appropriate, close the 
RAB based on a determination that there is no longer a need for a RAB or 
when community interest in the RAB declines.
    (9) RAB dissolution shall mean when an Installation Commander, with 
the appropriate Military Component's Environmental Deputy Assistant 
Secretary's approval, disbands a RAB that is no longer fulfilling the 
intended purpose of advising and providing community input to an 
Installation Commander and decision makers on environmental restoration 
projects. Installation Commanders are expected to make every reasonable 
effort to ensure that a RAB performs its role as effectively as possible 
and a concerted attempt is made to resolve issues that affect the RAB's 
effectiveness. There are circumstances, however, that may prevent a RAB 
from operating effectively or fulfilling its intended purpose.
    (d) Other public involvement activities. A RAB should complement 
other community involvement efforts occurring at an installation; 
however, it does not replace other types of community outreach and 
participation activities required by applicable laws and regulations.
    (e) Applicability of regulations to existing RABs. The regulations 
in this part apply to all RABs regardless of when the RAB was 
established.
    (f) Guidance. The Office of the Deputy Under Secretary of Defense 
for Environment shall issue guidance regarding the scope, 
characteristics, composition, funding, establishment, operation, 
adjournment, and dissolution of RABs pursuant to this rule. The issuance 
of any such guidance shall not be a precondition to the establishment of 
RABs or the implementation of this part.

[71 FR 27617, May 12, 2006; 71 FR 30719, May 30, 2006]



Sec. 202.2  Criteria for establishment.

    (a) Determining if sufficient interest warrants establishing a RAB. 
A RAB should be established when there is sufficient and sustained 
community interest, and any of the following criteria are met:
    (1) The closure of an installation involves the transfer of property 
to the community,
    (2) At least 50 local citizens petition the installation for 
creation of a RAB,
    (3) Federal, state, tribal, or local government representatives 
request the formation of a RAB, or
    (4) The installation determines the need for a RAB. To determine the 
need for establishing a RAB, an installation should:
    (i) Review correspondence files,
    (ii) Review media coverage,
    (iii) Consult local community members,
    (iv) Consult relevant government officials, and
    (v) Evaluate responses to communication efforts, such as notices 
placed in local newspapers and, if applicable, announced on the 
installation's Web site.
    (b) Responsibility for forming or operating a RAB. The installation 
shall have lead responsibility for forming and operating a RAB.
    (c) Converting existing Technical Review Committees (TRCs) to RABs. 
In accordance with 10 U.S.C. 2705(d)(1), a RAB may fulfill the 
requirements of 10 U.S.C. 2705(c), which directs DoD to establish TRCs. 
DoD recommends that, where TRCs or similar advisory groups already 
exist, the TRC or similar advisory group be considered for conversion to 
a RAB, provided there is sufficient and sustained interest within the 
community.

[71 FR 27617, May 12, 2006; 71 FR 30719, May 30, 2006]



Sec. 202.3  Notification of formation of a Restoration Advisory Board.

    Prior to establishing a RAB, an installation shall notify potential 
stakeholders of its intent to form a RAB. In announcing the formation of 
a RAB, the installation should describe the purpose of a RAB and discuss 
opportunities for membership.

[[Page 384]]



Sec. 202.4  Composition of a RAB.

    (a) Membership. At a minimum, each RAB shall include representatives 
from DoD and the community. RAB community membership shall be well 
balanced and reflect the diverse interests within the local community.
    (1) Government representation. The RAB may also include 
representatives from the EPA at the discretion of the Regional 
Administrator of the appropriate EPA Regional Office, and state, tribal, 
and local governments, as appropriate. At closing installations where 
BRAC Cleanup Teams (BCT) exist, representatives of the BCT may also 
serve as the government representative(s) of the RAB. The Department 
encourages individuals and agencies involved with BRAC to participate in 
RABs at closing installations.
    (2) Community representation. Community RAB members should live and/
or work in the affected community or be affected by the installation's 
environmental restoration program. While DoD encourages individual 
tribal members to participate on RABs, RABs in no way replace or serve 
as a substitute forum for the government-to-government relationship 
between DoD and Federally-recognized tribes.
    (i) To support the objective selection of community RAB members, 
installations will use a selection panel comprised of community members 
to nominate community RAB members. The Installation Commander, in 
consultation with the state, tribal, and local governments and EPA, as 
appropriate, will identify community interests and solicit names of 
individuals who can represent these interests on the selection panel. 
The panel will establish the procedures for nominating community RAB 
members, the process for reviewing community interest, and criteria for 
selecting community RAB members. The panel will transmit the list of RAB 
nominees to the Installation Commander for appointment.
    (ii) Following the panel nominations, the Installation Commander, in 
consultation with the state and EPA, as appropriate, will review the 
nominations to ensure the panel fairly represents the local community. 
The Installation Commander will accept or reject the entire list of RAB 
nominees for appointment.
    (b) Chairmanship. Each RAB established shall have two co-chairs, one 
representing the DoD installation and the other the community. Co-chairs 
shall be responsible for directing and managing the RAB operations.
    (c) Compensation for community members of the RAB. The community co-
chair and community RAB members serve voluntarily. DoD will not 
compensate them for their participation.

[71 FR 27617, May 12, 2006; 71 FR 30719, May 30, 2006]



                    Subpart B_Operating Requirements



Sec. 202.5  Creating a mission statement.

    The installation and community co-chair, in conjunction with the RAB 
members, shall determine the RAB mission statement in accordance with 
guidance provided by the DoD Components.



Sec. 202.6  Selecting co-chairs.

    (a) DoD installation co-chair. The DoD installation co-chair shall 
be selected by the Installation Commander or equivalent, or in 
accordance with Military Component-specific guidance.
    (b) Community co-chair. The community co-chair shall be selected by 
the community RAB members.

[71 FR 27617, May 12, 2006; 71 FR 30719, May 30, 2006]



Sec. 202.7  Developing operating procedures.

    Each RAB shall develop a set of operating procedures and the co-
chairs are responsible for carrying them out. Areas that should be 
addressed in the procedures include:
    (a) Clearly defined goals and objectives for the RAB, as determined 
by the co-chairs in consultation with the RAB,
    (b) Meeting announcements,
    (c) Attendance requirements of members at meetings,
    (d) Development, approval and distribution procedures for the 
minutes of RAB meetings,
    (e) Meeting frequency and location,
    (f) Rules of order,

[[Page 385]]

    (g) The frequency and procedures for conducting training,
    (h) Procedures for selecting or replacing co-chairs and selecting, 
replacing, or adding RAB members,
    (i) Specifics on the size of the RAB, periods of membership, and co-
chair length of service,
    (j) Review of public comments and responses,
    (k) Participation of the general public,
    (l) Keeping the public informed about proceedings of the RAB,
    (m) Discussing the agenda for the next meeting and issues to be 
addressed, and
    (n) Methods for resolving disputes.



Sec. 202.8  Training RAB members.

    Training is not required for RAB members. It may be advisable, 
however, to provide RAB members with some initial orientation training 
regarding the purpose and responsibilities of the RAB, familiarization 
on cleanup technologies, chemicals of concern, and sampling protocols, 
as well as informing them of the availability of independent technical 
advice and document review through EPA's Technical Assistant Grant 
program and DoD's Technical Assistance for Public Participation (TAPP) 
program, to enable them to fulfill their responsibilities. Training 
should be site-specific and beneficial to RAB members. The DoD 
installation may also provide in-house assistance to discuss technical 
issues. Funding for training activities must be within the scope of 
administrative support for RABs, as permitted in Sec. 202.12.



Sec. 202.9  Conducting RAB meetings.

    (a) Public participation. RAB meetings shall be open to the public.
    (1) The installation co-chair shall prepare and publish a timely 
public notice in a local newspaper of general circulation announcing 
each RAB meeting. If applicable, it is recommended that the meeting also 
be announced on the installation's Web site.
    (2) Each RAB meeting shall be held at a reasonable time and in a 
manner or place reasonably accessible to and usable by all participants, 
including persons with disabilities.
    (3) Presentation materials and readable maps should be provided to 
all meeting participants as appropriate.
    (4) Interested persons shall be permitted to attend, appear before, 
or file statements with any RAB, subject to such reasonable rules or 
regulations as may be prescribed. Open solicitation of public comments 
shall be permitted and members of the public will have a designated time 
on the agenda to speak to the RAB committee as a whole.
    (b) Nature of discussions. The installation shall give careful 
consideration to all comments provided by individual RAB members. Group 
consensus is not a prerequisite for RAB input. Each member of the RAB 
may provide advice as an individual; however, when a RAB decides to vote 
or poll for consensus, only community members should participate.
    (c) Meeting minutes. The installation co-chair, in coordination with 
the community co-chair, shall prepare the minutes of each RAB meeting.
    (1) The RAB meeting minutes shall contain a record of the persons 
present; a complete and accurate description of matters discussed and 
comments received; and copies of all reports received, issued, or 
approved by the RAB. The accuracy of all minutes shall be certified by 
the RAB co-chairs. RAB minutes should be kept in the information 
repository; however, if the RAB minutes reflect decision-making, copies 
should also be documented in the Administrative Record.
    (2) The records, reports, minutes, appendixes, working papers, 
drafts, studies, agenda, or other documents that were made available to 
or prepared for or by each RAB shall be available for public inspection 
and copying at a publicly accessible location, such as the information 
repositories established under the installation's Community Relations 
Plan, a public library, or in the offices of the installation to which 
the RAB reports, until the RAB ceases to exist.

[71 FR 27617, May 12, 2006; 71 FR 30719, May 30, 2006]



Sec. 202.10  RAB adjournment and dissolution.

    (a) RAB adjournment--(1) Requirements for RAB adjournment. An 
Installation

[[Page 386]]

Commander may adjourn a RAB with input from the community when there is 
no longer a need for a RAB or when community interest in the RAB no 
longer exists. An Installation Commander may consider adjourning the RAB 
in the following situations:
    (i) A record of decision has been signed for all DERP sites on the 
installation,
    (ii) An installation has achieved response complete at all sites and 
no further environmental restoration decisions are required,
    (iii) An installation has all remedies in place,
    (iv) The RAB has achieved the desired end goal as defined in the RAB 
Operating Procedures,
    (v) There is no longer sufficient, sustained community interest, as 
documented by the installation with RAB community members and community-
at-large input, to sustain the RAB. The installation shall continue to 
monitor for any changes in community interest that could warrant 
reactivating or reestablishing the RAB, or
    (vi) The installation has been transferred out of DoD control and 
day-to-day responsibility for making restoration response decisions has 
been assumed by the transferee.
    (2) Adjournment procedures. If the Installation Commander is 
considering adjourning the RAB, the Installation Commander shall:
    (i) Consult with EPA, state, tribes, RAB members, and the local 
community, as appropriate, regarding adjourning the RAB and consider all 
responses before making a final decision.
    (ii) Document the rationale for adjournment in a memorandum in a 
memorandum for inclusion in the Administrative Record, notify the public 
of the decision through written notice to the RAB members and through 
publication of a notice in a local newspaper of general circulation, and 
describe other ongoing public involvement opportunities that are 
available if the Installation Commander decides to adjourn the RAB.
    (b) RAB dissolution--(1) Requirements for RAB dissolution. An 
Installation Commander may recommend dissolution of a RAB when a RAB is 
no longer fulfilling the intended purpose of advising and providing 
community input to an Installation Commander and decision makers on 
environmental restoration projects as described in Sec. 202.1(b).
    (2) Dissolution procedures. If the Installation Commander is 
considering dissolving the RAB, the Installation Commander shall:
    (i) Consult with EPA, state, tribal and local government 
representatives, as appropriate, regarding dissolving the RAB.
    (ii) Notify the RAB community co-chair and members in writing of the 
intent to dissolve the RAB and the reasons for doing so and provide the 
RAB members 30 days to respond in writing. The Installation Commander 
shall consider RAB member responses, and in consultation with EPA, 
state, tribal and local government representatives, as appropriate, 
determine the appropriate actions.
    (iii) Notify the public of the proposal to dissolve the RAB and 
provide a 30-day public comment period on the proposal, if the 
Installation Commander decides to proceed with dissolution. At the 
conclusion of the public comment period, the Installation Commander will 
review the public comments, consult with EPA, state, tribal and local 
government representatives, as appropriate, and, if the Installation 
Commander still believes dissolution is appropriate, render a 
recommendation to that effect.
    (iv) Send the recommendation, responsiveness summary, and all 
supporting documentation via the chain-of-command to the Military 
Component's Environmental Deputy Assistant Secretary (or equivalent) for 
approval or disapproval. The Military Component's Environmental Deputy 
Assistant Secretary (or equivalent) shall notify the Office of the 
Deputy Under Secretary of Defense (Installations & Environment) (or 
equivalent) of the decision to approve or disapprove the request to 
dissolve the RAB and the rationale for that decision.
    (v) Document the recommendation, responsiveness summary, and the 
rationale for dissolution in a memorandum for inclusion in the 
Administrative Record, notify the public of the decision through written 
notice to the

[[Page 387]]

RAB members and through publication of a notice in a local newspaper of 
general circulation and describe other ongoing public involvement 
opportunities that are available, once the Military Component's 
Environmental Deputy Assistant Secretary (or equivalent) makes a final 
decision.
    (c) Reestablishing an adjourned or dissolved RAB. An Installation 
Commander may reestablish an adjourned or dissolved RAB if there is 
sufficient and sustained community interest in doing so, and there are 
environmental restoration activities still ongoing at the installation 
or that may start up again. Where a RAB is adjourned or dissolved and 
environmental restoration activities continue, the Installation 
Commander should reassess community interest at least every 24 months. 
When all environmental restoration decisions have been made and required 
remedies are in place and are properly operating at an installation, 
reassessment of the community interest for reestablishing the RAB is not 
necessary. When additional environmental restoration decisions have to 
be made resulting from subsequent actions, such as long-term management 
and five-year reviews, the installation will reassess community interest 
for reestablishing the RAB. Where the reassessment finds sufficient and 
sustained community interest at previously adjourned or dissolved RABs, 
the Installation Commander should reestablish a RAB. Where the 
reassessment does not find sufficient and sustained community interest 
in reestablishing the RAB, the Installation Commander shall document in 
a memorandum for the record the procedures followed in the reassessment 
and the findings of the reassessment. This document shall be included in 
the Administrative Record for the installation. If there is interest in 
reestablishment at a previously dissolved RAB, but the Installation 
Commander determines that the same conditions exist that required the 
original dissolution, he or she will request, through the chain-of-
command to the Military Component's Deputy Assistant Secretary, an 
exception to reestablishing the RAB. If those conditions no longer exist 
at a previously dissolved RAB, and there is sufficient and sustained 
interest in reestablishment, the Installation Commander should recommend 
to the Deputy Assistant Secretary that the RAB be reestablished. The 
Deputy Assistant Secretary will take the Installation Commander's 
recommendation under advisement and may approve that RAB for 
reestablishment.
    (d) Public comment. If the Installation Commander intends to 
recommend dissolution of a RAB or reestablish a dissolved RAB, the 
Installation Commander shall notify the public of the proposal to 
dissolve or reestablish the RAB and provide a 30-day public comment 
period on the proposal. At the conclusion of the public comment period, 
the Installation Commander shall review public comments; consult with 
EPA and state, tribal, or local government representatives, as 
appropriate; prepare a responsiveness summary; and render a 
recommendation. The recommendation, responsiveness summary, and all 
supporting documentation should be sent via the chain-of-command to the 
Military Component's Environmental Deputy Assistant Secretary (or 
equivalent) for approval or disapproval. The Installation Commander 
shall notify the public of the decision.



Sec. 202.11  Documenting RAB activities.

    (a) The installation shall document information on the activities of 
a RAB in the Information Repository. These activities shall include, but 
are not limited to:
    (1) Installation's efforts to survey community interest in forming a 
RAB,
    (2) Steps taken to establish a RAB where there is sufficient and 
sustained community interest,
    (3) How the RAB relates to the overall community involvement 
program, and
    (4) Steps taken to adjourn, dissolve, or reestablish the RAB.
    (b) When RAB input has been used in decision-making, it should be 
documented as part of the Administrative Record.

[71 FR 27617, May 12, 2006; 71 FR 30719, May 30, 2006]

[[Page 388]]



  Subpart C_Administrative Support, Funding, and Reporting Requirements



Sec. 202.12  Administrative support and eligible expenses.

    (a) Administrative support. Subject to the availability of funding, 
the installation shall provide administrative support to establish and 
operate a RAB.
    (b) Eligible administrative expenses for a RAB. The following 
activities specifically and directly associated with establishing and 
operating a RAB shall qualify as an administrative expense of a RAB:
    (1) RAB establishment.
    (2) Membership selection.
    (3) Training if it is:
    (i) Site specific and benefits the establishment and operation of a 
RAB.
    (ii) Relevant to the environmental restoration activities occurring 
at the installation.
    (4) Meeting announcements.
    (5) Meeting facilities.
    (6) Meeting facilitators, including translators.
    (7) Preparation of meeting agenda materials and minutes.
    (8) RAB-member mailing list maintenance and RAB materials 
distribution.
    (c) Funding. Subject to the availability of funds, administrative 
support to RABs may be funded as follows:
    (1) At active installations, administrative expenses for a RAB shall 
be paid using funds from the Military Component's Environmental 
Restoration accounts.
    (2) At BRAC installations, administrative expenses for a RAB shall 
be paid using BRAC funds.
    (3) At FUDS, administrative expenses for a RAB shall be paid using 
funds from the Environmental Restoration account for the Formerly Used 
Defense Sites program.



Sec. 202.13  Technical assistance for public participation.

    Community members of a RAB or TRC may request technical assistance 
for interpreting scientific and engineering issues with regard to the 
nature of environmental hazards at the installation and environmental 
restoration activities conducted, or proposed to be conducted, at the 
installation in accordance with 10 U.S.C. 2705(e) and the TAPP 
regulations located in 32 CFR Part 203.



Sec. 202.14  Documenting and reporting activities and expenses.

    The installation at which a RAB is established shall document the 
activities and meeting minutes and record the administrative expenses 
associated with the RAB in the information repository at a publicly 
accessible location. Installations shall use internal department and 
Military Component-specific reporting mechanisms to submit required 
information on RAB activities and expenditures.



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.
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

[[Page 389]]

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.
    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

[[Page 390]]

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 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.

[[Page 391]]

    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 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

[[Page 392]]

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 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

[[Page 393]]

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 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.

[[Page 394]]

    (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:
    (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

[[Page 395]]

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.



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.

[[Page 396]]



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 397]]



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


[[Page 398]]


[GRAPHIC] [TIFF OMITTED] TR02FE98.007



PART 204_USER FEES--Table of Contents



Sec.
204.1 Purpose.
204.2 Applicability.
204.3 Policy and procedures.
204.4 Responsibilities.
204.5 Fees.

[[Page 399]]

204.6 Collections.
204.7 Legislative proposals.
204.8 Benefits for which no fee shall be assessed.
204.9 Schedule of fees and rates.

    Authority: 31 U.S.C. 9701.

    Source: 73 FR 23954, May 1, 2008, unless otherwise noted.



Sec. 204.1  Purpose.

    This part implements the DoD program under Title 31, United States 
Code, section 9701 and OMB Circular No. A-25, ``User Charges,'' to 
establish appropriate fees for authorized services supplied by DoD 
organizations.



Sec. 204.2  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, and the Defense Agencies (hereafter referred to 
collectively as ``DoD Components''). None of the provisions in this part 
should be construed as giving authority for the sale or lease of 
property, or the rendering of special services. Actions to convey such 
special benefits must be authorized by separate authority. This user fee 
policy is applicable except when other statutes or directives 
specifically direct other practices or procedures.



Sec. 204.3  Policy and procedures.

    (a) General. It is DoD policy not to compete unfairly with available 
commercial facilities 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 privilege) provides special 
benefits to an identifiable recipient, beyond those that accrue to the 
general public, a fee shall be imposed to recover the full cost to the 
Federal Government for providing the special benefit (or the market 
price) except as otherwise approved by the Under Secretary of Defense 
(Comptroller) (USD(C)) and authorized by the Director of OMB. A special 
benefit will be considered to accrue, and a user fee shall be imposed, 
when a Government service:
    (1) Enables the beneficiary to obtain more immediate or substantial 
gain or values (which may or may not be measurable in monetary terms) 
than those which accrue to the general public (e.g., receiving a patent, 
insurance, or guarantee provision, or a license to carry on a specific 
activity or business or various kinds of public land use); or
    (2) Provides business stability or contributes to public confidence 
in the business activity of the beneficiary (e.g., insuring deposits in 
commercial banks), or
    (3) Is performed at the request of or for the convenience of the 
recipient, and is beyond the services regularly received by other 
members of the same industry or group or by the general public (e.g., 
receiving a passport, visa, airman's certificate, or a Custom's 
inspection after regular duty hours).
    (b) Costing. (1) Except as provided in Sec. 204.3(c) and Sec. 
204.8, a user fee shall be imposed to recover the full cost to the 
Federal Government of providing the service, resource, or good when the 
Government is acting in its capacity as sovereign.
    (2) User fees shall be based on market prices (as defined in Sec. 
204.5(a)(4)) when the Government is not acting in its capacity as 
sovereign and is leasing or selling goods or resources, or is providing 
a service (e.g., leasing space in federally owned buildings). Under 
these business-type conditions, user fees need not be limited to the 
recovery of full cost and may yield net revenues.
    (3) User fees will be collected in advance of, or simultaneously 
with, the rendering of services unless appropriations and authority are 
provided in advance to allow reimbursable services.
    (4) Whenever possible, fees should be set as rates rather than fixed 
dollar amounts in order to adjust for changes in costs to the Government 
or changes in market prices of the good, resource, or service provided.
    (c) Exclusions. (1) The provisions of this part do not apply when 
other statutes or DoD issuances 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 according to Sec. 204.8.

[[Page 400]]

    (ii) Sale or disposal of surplus property under approved programs 
(Chapter 5 of DoD 7000.14-R.) \1\
---------------------------------------------------------------------------

    \1\ Copies of unclassified DoD issuances may be obtained at http://
www.dtic.mil/whs/directives/.
---------------------------------------------------------------------------

    (iii) Services furnished the general public relating to, or in 
furtherance of, the Armed Forces recruiting program.
    (iv) Services furnished to representatives of the public information 
media in the interest of public understanding of the Armed Forces.
    (v) Armed Forces participation in public events. Fees for such 
participation are governed by the provisions of DoD Instruction 5410.19.
    (vi) Records made available to the public, under the Freedom of 
Information Act, pursuant to 32 CFR part 285. Fees for such record 
searches and copies of records are governed by 32 CFR part 286.
    (vii) Services furnished to non-Federal audio-visual media. Fees for 
such services are governed by the provisions of DoD Instruction 5410.15.
    (viii) Government-developed computer programs released to non-
Federal customers. Fees for software packages are governed by DoD 
Instruction 7930.2.
    (ix) Pricing of performance by DoD Working Capital Fund activities 
shall be according to Volume 11B of DoD 7000.14-R.
    (x) Foreign Military Sales of Defense articles and services shall be 
according to Volume 15 of DoD 7000.14-R.
    (xi) Records made available to Privacy Act requesters shall be 
according to 32 CFR part 310.
    (2) User fees may be waived by the Head of a DoD Component when:
    (i) Furnishing of their service without fee is an appropriate 
courtesy to a foreign government or international organization, or 
comparable fees are set on a reciprocal basis with a foreign country.
    (ii) The Director of the OMB has approved a request for an 
exception. Such exceptions may be recommended when:
    (A) The cost of collecting the fees would represent an unduly large 
part of the receipts from the activity; or
    (B) Any other conditions exists that, in the opinion of the Head of 
the DoD Component or his designee, justifies the exception.



Sec. 204.4  Responsibilities.

    (a) The USD(C) shall develop and monitor policies governing user 
fees.
    (b) The Heads of the DoD Components, or designees, shall:
    (1) Identify each service or activity that may properly be the 
subject of a user fee under this part.
    (2) Determine the extent of the special benefit provided.
    (3) Apply the principles specified in Sec. 204.5(a) in determining 
full cost or market price.
    (4) Review the user fees biennially, to include:
    (i) Assurance that existing fees are adjusted to reflect 
unanticipated changes in costs or market values; and
    (ii) A review of all other programs to determine whether fees should 
be assessed for Government services or the user of Government goods or 
services. DoD Components should discuss the results of the biennial 
review of user fees and any resultant proposals in the Chief Financial 
Officers Annual Report required by the Chief Financial Officers Act of 
1990.
    (5) Initiate exception actions outlined in Sec. 204.3(c)(2). All 
such actions shall be coordinated with the USD(C) prior to forwarding to 
the OMB.
    (i) Exceptions granted under Sec. 204.3(c)(2)(i) shall be renewed 
every 4 years to ensure conditions warrant their continuation.
    (ii) Exceptions granted under Sec. 204.3(c)(2)(ii) shall be 
resubmitted for approval to the OMB every 4 years when conditions 
warrant their continuation.
    (6) Maintain readily accessible records of:
    (i) The services or activities covered by this part.
    (ii) The extent of special services provided.
    (iii) The exceptions to the general policy of this part.
    (iv) The information used to establish fees and the specific methods 
used in their determination.
    (v) The collections from each user fee imposed.
    (7) Maintain adequate records of the information used to establish 
fees and

[[Page 401]]

provide them upon request to OMB for the evaluation of the schedules and 
provide data on user fees to OMB according to the requirements in 
Circular No. A-11.
    (8) Develop legislative proposals as outlined in Sec. 204.7 when 
there are statutory prohibitions or limitations on the assessment of 
user fees.



Sec. 204.5  Fees.

    (a) General. (1) All fees shall be based on full cost to the U.S. 
Government or market price, whichever applies.
    (2) ``Full cost'' includes all direct and indirect costs associated 
with providing a good, resource, or service. These costs are outlined in 
Volume 11A, Chapter 1, paragraph 010203 of DoD 7000.14-R.
    (3) Full cost shall be determined or estimated from the best 
available records, and new cost accounting systems shall not be 
established solely for this purpose.
    (4) ``Market price'' means the price for a good, resource, or 
service that is based on competition in open markets, and creates 
neither a shortage nor a surplus of the good, resource, or service.
    (i) When a substantial competitive demand exists for a good, 
resource, or service, its market price will be determined using 
commercial practices, for example:
    (A) By competitive bidding; or
    (B) By reference to prevailing prices in competitive markets for 
goods, resources, or services that are the same or similar to those 
provided by the Government (e.g., campsites or grazing lands in the 
general vicinity of private ones) with adjustments as appropriate that 
reflect demand, level of service, and quality of the good or service.
    (ii) In the absence of substantial competitive demand, market price 
will be determined by taking into account the prevailing prices for 
goods, resources, or services that are the same or substantially similar 
to those provided by the Government, and then adjusting the supply made 
available and/or price of the good, resource, or service so that there 
will be neither a shortage nor a surplus (e.g., campsites in remote 
areas).
    (5) Fees established in advance of performance shall be based on the 
estimated cost of performance. Projected amounts shall be reviewed 
biennially or whenever significant changes in cost or value occur.
    (6) Management controls (see DoD Instruction 5010.40) must be 
established to ensure fees are developed and adjusted, using current, 
accurate, and complete data, to provide reimbursement conforming to 
statutory requirements. These controls also must ensure compliance with 
cash management and debt collection policies according to Volume 5 of 
DoD 7000.14-R.
    (b) Information resources. The fees for services provided by data 
processing activities shall be determined by using the costs accumulated 
pursuant to requirements in OMB Circular A-130, ``Management of Federal 
Information Resources.''
    (c) User fees for recurring services shall be established in 
advance, when feasible. The benefit of charging user fees must outweigh 
the cost of collecting the fees charged.
    (d) Lease or sale of property. Fees for lease or sale of property 
shall be based on the following:
    (1) Leases of military equipment or real estate. (i) In cases 
involving the lease or rental of military equipment, when there is no 
commercial counterpart, the fee will be based on the procedures provided 
in Volume 11A, Chapter 1, paragraph 010203.I of DoD 7000.14-R. The 
current interest rate in OMB Circular A-94 will be used in the 
computation of interest on investment in assets. 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.
    (ii) In cases involving real estate outgrants, the consideration for 
a lease shall be determined by appraisal of fair market rental value 
according to 10 U.S.C. 2667.
    (2) Sale of property. When there is legal authority to sell property 
to the public, the selling price of the property and related accessorial 
and administrative costs shall be computed according

[[Page 402]]

to Volume 11A, Chapter 1 of DoD 7000.14-R.



Sec. 204.6  Collections.

    (a) Collections of fees will be made in advance or simultaneously 
with the rendering of service unless appropriations and authority allow 
otherwise. The policies in this part, Volume 5 of DoD 7000.14-R, and DoD 
Instruction 5010.40, shall be used in accounting, controlling, and 
managing cash and debt collections.
    (b) Unless a statute provides otherwise, user fee collections will 
be credited to the general fund of the Treasury as miscellaneous 
receipts, as required by 31 U.S.C. 3302.



Sec. 204.7  Legislative proposals.

    (a) Legislative proposals that allow the DoD Component to retain 
collections may be appropriate when a fee is levied in order to finance 
a service intended to be provided on a substantially self-sustaining 
basis and thus is dependent upon adequate collections.
    (1) The authority to use fees credited to an appropriation is 
generally subject to limits set in annual appropriations language. 
However, it may be appropriate to request exemption from annual 
appropriations control, if a provision of the service is dependent on 
demand that is irregular or unpredictable (e.g., a fee to reimburse an 
agency for the cost of overtime pay of inspectors for services performed 
after regular duty hours).
    (2) Legislative proposals that permit fees to be credited to 
accounts shall be consistent with the full-cost recovery guidelines 
contained in this part. Any fees in excess of full cost recovery and any 
increase in fees to recover the portion of retirement costs which 
recoups all (funded or unfunded) accrual costs not covered by employee 
contributions are to be credited to the general fund of the Treasury as 
miscellaneous receipts.
    (b) Where the retention of the collection is appropriate, the DoD 
Components(s) concerned may submit legislative proposals under 
applicable legislative procedures included in OMB Circular A-19. These 
procedures may be obtained from the Office of Legislative Counsel, 
General Counsel, 1600 Defense Pentagon, Washington, DC 20301-1600. 
Proposals to remove user fee restrictions or retain collections shall:
    (1) Define in general terms the services for which fees will be 
assessed and the pricing mechanism that will be used.
    (2) Specify whether fees will be collected in advance of, or 
simultaneously with, the provision of service unless appropriations and 
authority are provided in advance to allow reimbursable services.
    (3) Specify where collections will be credited. Legislative 
proposals should not normally specify precise fees. The user fee 
schedule should be set by regulation to allow for the administrative 
updating of fees to reflect changing costs and market values.



Sec. 204.8  Benefits for which no fee shall be assessed.

    (a) Documents and information requested by members of the Armed 
Forces is required by such personnel in their capacity as Service 
members.
    (b) Documents and information requested by members of the Armed 
Forces who are in a casualty status, or requested by their next of kin 
or legal representative.
    (c) The provisions of the address of record of a member or former 
member of the Armed Forces when the address is readily available through 
a directory (locator) service, and when the address is requested by a 
member of the Armed Forces or by a relative or a legal representative of 
a member of the Armed Forces, or when the address of record is requested 
by any source for the purpose of paying monies or forwarding property to 
a member or former member of the Armed Forces.
    (d) Services requested by, or on behalf of, a member or former 
member of the Armed Forces and civilian personnel of the Department of 
Defense (where applicable) or, if deceased, his or her next of kin or 
legal representative that pertain to the provision of:
    (1) Information required to obtain financial benefits regardless of 
the terms of separation from the Service.
    (2) Document showing membership and military record in the Armed 
Forces if discharge or release was under honorable conditions, except as

[[Page 403]]

shown in paragraphs (d)(1) and (d)(4) of this section.
    (3) Information relating to a decoration or award or required for 
memoralization purposes.
    (4) Information relating to the review or change in type of 
discharge or correction of records.
    (5) Personal documents, such as birth certificates, when such 
documents are required to be furnished by the member.
    (6) Services furnished free according to statutes or Executive 
Orders.
    (7) Information from or copies of medical and dental records or x-
ray films of patients or former patients of military medical or dental 
facilities, when such information is required for further medical or 
dental care, and requests for such data are submitted by an accredited 
medical facility, physician, or dentist, or requested by the patient, 
his or her next of kin, or legal representative. Other requests subject 
to the Privacy Act shall be according to 32 CFR part 310 (see Sec. 
204.3(c)(1)(xi) of this part).
    (8) Services requested by, and furnished to, a member of Congress 
for official use.
    (9) Services requested by state, territorial, county, or municipal 
government, or an agency thereof, that is performing a function related 
to or furthering a DoD objective.
    (10) Services requested by a court, when such services will serve as 
a substitute for personal court appearance of a military or civilian 
employee of the Department of Defense.
    (11) Services requested by a nonprofit organization that is 
performing a function related to or furthering an objective of the 
Federal Government or is in the interest of public health and welfare, 
including education.
    (12) Services requested by donors in connection with the conveyance 
or transfer of a gift to the Department of Defense.
    (13) Occasional and incidental services (including requests from 
residents of foreign countries), not requested often, when it is 
determined administratively that a fee would be inappropriate for the 
occasional and incidental services rendered.
    (14) Administrative services offered by reference or reading rooms 
to inspect public records, excluding copies of records or documents 
furnished.
    (15) Services rendered in response to requests for classification 
review of DoD classified records, submitted under Executive Order 12065, 
``National Security Information,'' and implemented by DoD 5200.1-R. Such 
services consist of the work performed in conducting the classification 
review or in granting and completing an appeal from a denial of 
declassification following such review.
    (16) Services of a humanitarian nature performed in such emergency 
situations as life-saving transportation for non-Armed Forces patients, 
search and rescue operations, and airlift of personnel and supplies to a 
disaster site. This does not mean that inter- and intra-governmental 
agreements to recover all or part of costs shall not be negotiated. 
Rather, it means the recipients or beneficiary will not be assessed a 
``user fee''.



Sec. 204.9  Schedule of fees and rates.

    (a) Schedule of fees and rates. (1) 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 Sec. 204.3(c) or 
the ``Benefits for Which No Fee Shall Be Assessed'' included in Volume 
11A, Chapter 4, Appendix 1 of DoD 7000.14-R. All other fees will be 
based on full cost or market price.

                              Fee Schedule
------------------------------------------------------------------------
                  Service                               Rate
------------------------------------------------------------------------
(i) Copies
  (Standard size paper up to 8\1/2\ x 14).  $0.13 per page.
(ii) Search and Review
  (A) Managerial..........................  $13.15 per \1/4\ hour;
                                             $52.60 per hour.
  (B) Professional........................  $9.05 per \1/4\ hour; $36.20
                                             per hour.
  (C) Clerical............................  $5.20 per \1/4\ hour; $20.80
                                             per hour.
(iii) Other
  (A) Microfiche..........................  $0.08 per page.
  (B) Computer and magnetic tapes.........  $25.00 each.
  (C) Computer diskettes..................  $1.25 each.
  (D) Other services (computer time,        Actual Cost.
   special mailing).
------------------------------------------------------------------------


[[Page 404]]

    (2) Fees will not be charged if the total amount to process your 
request is $30.00 or less.
    (b) Criteria for estimating cost of computerized records:
    (1) Costs for processing a data request will be calculated using the 
full cost method as referenced in Sec. 204.5.
    (2) Itemized listing of operations required to process the job will 
be maintained (i.e., time for central processing unit, input/output 
remote terminal, storage, plotters, printing, tape/disk mounting, etc.) 
with associated costs.
    (3) Mailing costs for services (DHL, Express Mail, etc.) when 
request specifically specifies a means more expensive than first class 
mail.



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'').



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:

[[Page 405]]

    (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 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.

[[Page 406]]

    (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.
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: 71 FR 28267, May 16, 2006, 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

[[Page 407]]

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 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

[[Page 408]]

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.
    (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

[[Page 409]]

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 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

[[Page 410]]

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. 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

[[Page 411]]

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 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.

[[Page 412]]

                        PARTS 207	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.
---------------------------------------------------------------------------

    \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 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.
---------------------------------------------------------------------------

    \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.

[[Page 413]]



PART 211_MISSION COMPATIBILITY EVALUATION PROCESS--Table of Contents



                            Subpart A_General

Sec.
211.1 Purpose.
211.2 Applicability.
211.3 Definitions.

                            Subpart B_Policy

211.4 Policy.
211.5 Responsibilities.

                 Subpart C_Project Evaluation Procedures

211.6 Initiating a formal DoD review of a proposed project.
211.7 Initiating an informal DoD review of a project.
211.8 Inquiries received by DoD Components.
211.9 Mitigation options.
211.10 Reporting determinations to Congress.

                  Subpart D_Communications and Outreach

211.11 Communications with the Clearinghouse.
211.12 Public outreach.

    Authority: Public Law 111-383, Section 358, as amended by Public Law 
112-81, Section 331.

    Source: 78 FR 73088, Dec. 5, 2013, unless otherwise noted.



                            Subpart A_General



Sec. 211.1  Purpose.

    This part prescribes procedures pursuant to section 358 of the Ike 
Skelton National Defense Authorization Act for Fiscal Year 2011 to 
provide:
    (a) A formal review of projects for which applications are filed 
with the Secretary of Transportation under 49 U.S.C. 44718, to determine 
if they pose an unacceptable risk to the national security of the United 
States.
    (b) An informal review of a renewable energy development or other 
energy project in advance of the filing of an application with the 
Secretary of Transportation under 49 U.S.C. 44718.



Sec. 211.2  Applicability.

    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 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) Persons filing applications with the Secretary of Transportation 
for proposed projects pursuant to 49 U.S.C. 44718, when such 
applications are received by the Department of Defense from the 
Secretary of Transportation.
    (c) A State, Indian tribal, or local official, a landowner, or a 
developer of a renewable energy development or other energy project 
seeking a review of such project by DoD.
    (d) Members of the general public from whom comments are received on 
notices of actions being taken by the Department of Defense under this 
part.
    (e) The United States.



Sec. 211.3  Definitions.

    Adverse impact on military operations and readiness. Any adverse 
impact upon military operations and readiness, including flight 
operations research, development, testing, and evaluation and training, 
that is demonstrable and is likely to impair or degrade the ability of 
the armed forces to perform their warfighting missions.
    Applicant. An entity filing an application with the Secretary of 
Transportation pursuant to 49 U.S.C. 44718, and whose proper application 
has been provided by the Secretary of Transportation to the 
Clearinghouse.
    Armed forces. This term has the same meaning as provided in 10 
U.S.C. 101(a)(4) but does not include the Coast Guard.
    Clearinghouse. The DoD Siting Clearinghouse, established under the 
Deputy Under Secretary of Defense (Installations & Environment).
    Congressional defense committees. The--
    (1) Committee on Armed Services and the Committee on Appropriations 
of the Senate; and
    (2) Committee on Armed Services and the Committee on Appropriations 
of the House of Representatives.

[[Page 414]]

    Days. All days are calendar days but do not include Federal 
holidays.
    Landowner. A person, partnership, corporation, or other legal 
entity, that owns a fee interest in real property on which a proposed 
project is planned to be located.
    Military readiness. Includes any training or operation that could be 
related to combat readiness, including testing and evaluation 
activities.
    Mitigation. Actions taken by either or both the DoD or the applicant 
to ensure that a project does not create an unacceptable risk to the 
national security of the United States.
    Proposed project. A proposed project is the project as described in 
the application submitted to the Secretary of Transportation pursuant to 
49 U.S.C. 44718 and transmitted by the Secretary of Transportation to 
the Clearinghouse.
    Requester. A developer of a renewable energy development or other 
energy project, a State, Indian tribal, or local official, or a 
landowner seeking an informal review by the DoD of a project.
    Section 358. Section 358 of the Ike Skelton National Defense 
Authorization Act for Fiscal Year 2011, Public Law 111-383.
    Unacceptable risk to the national security of the United States. The 
construction, alteration, establishment, or expansion, or the proposed 
construction, alteration, establishment, or expansion, of a structure or 
sanitary landfill that would:
    (1) Endanger safety in air commerce, related to the activities of 
the DoD.
    (2) Interfere with the efficient use and preservation of the 
navigable airspace and of airport traffic capacity at public-use 
airports, related to the activities of the DoD.
    (3) Significantly impair or degrade the capability of the DoD to 
conduct training, research, development, testing, and evaluation, and 
operations or to maintain military readiness.
    United States. The several States, the District of Columbia, the 
Commonwealths of Puerto Rico and the Northern Mariana Islands, American 
Samoa, Guam, Midway and Wake Islands, the U.S. Virgin Islands, any other 
territory or possession of the United States, and associated navigable 
waters, contiguous zones, and territorial seas and the airspace of those 
areas.



                            Subpart B_Policy



Sec. 211.4  Policy.

    (a) It is an objective of the Department of Defense to ensure that 
the robust development of renewable energy sources and the increased 
resiliency of the commercial electrical grid may move forward in the 
United States, while minimizing or mitigating any adverse impacts on 
military operations and readiness.
    (b) The participation of the DoD in the process of the Federal 
Aviation Administration conducted pursuant to 49 U.S.C. 44718 shall be 
conducted in accordance with this part. No other process shall be used 
by a DoD Component.
    (c) Nothing in this part shall be construed as affecting the 
authority of the Secretary of Transportation under 49 U.S.C. 44718.



Sec. 211.5  Responsibilities.

    (a) Pursuant to subsection (e)(4) of section 358, the Deputy 
Secretary of Defense is designated as the senior officer. Only the 
senior officer may convey to the Secretary of Transportation a 
determination that a project filed with the Secretary of Transportation 
pursuant to 49 U.S.C. 44718 would result in an unacceptable risk to the 
national security of the United States.
    (b) Pursuant to subsection (b)(1) of section 358, the Under 
Secretary of Defense for Acquisition, Technology, and Logistics is 
designated as the senior official. Only the senior official may provide 
to the senior officer a recommendation that the senior officer determine 
a project filed with the Secretary of Transportation pursuant to 49 
U.S.C. 44718 would result in an unacceptable risk to the national 
security of the United States.
    (c) Pursuant to subsection (e)(1) of section 358, the Deputy Under 
Secretary of Defense (Installations & Environment), in coordination with 
the Deputy Assistant Secretary of Defense (Readiness) and the Principal 
Deputy Director, Operational Test and Evaluation, shall review a proper 
application for a project filed pursuant to 49 U.S.C. 44718 and received 
from the Secretary

[[Page 415]]

of Transportation and provide a preliminary assessment of the level of 
risk of adverse impact on military operations and readiness that would 
arise from the project and the extent of mitigation that may be needed 
to address such risk.
    (d) Pursuant to subsection (b)(1) of section 358, the Office of the 
Deputy Under Secretary of Defense (Installations & Environment) is 
designated as the lead organization. Under the authority, direction, and 
control of the Under Secretary of Defense for Acquisition, Technology, 
and Logistics, there is, within the Office of the Deputy Under 
Secretary, a DoD Siting Clearinghouse. The Clearinghouse:
    (1) Shall have a governing board organized in accordance with DoD 
Instruction 5105.18, DoD Intergovernmental and Intragovernmental 
Committee Management Program.
    (2) Has an executive director who is a Federal Government employee, 
appointed by the Deputy Under Secretary of Defense (Installations & 
Environment).
    (3) Performs such duties as assigned in this part and as the Deputy 
Under Secretary directs.



                 Subpart C_Project Evaluation Procedures



Sec. 211.6  Initiating a formal DoD review of a proposed project.

    (a) A formal review of a proposed project begins with the receipt 
from the Secretary of Transportation by the Clearinghouse of a proper 
application filed with the Secretary of Transportation pursuant to 49 
U.S.C. 44718.
    (1) The Clearinghouse will convey the application as received to 
those DoD Components it believes may have an interest in reviewing the 
application.
    (2) The DoD Components that receive the application shall provide 
their comments and recommendations on the application to the 
Clearinghouse no later than 20 days after they receive the application.
    (3) Not later than 30 days after receiving the application from the 
Secretary of Transportation, the Clearinghouse shall evaluate all 
comments and recommendations received and take one of three actions:
    (i) Determine that the proposed project will not have an adverse 
impact on military operations and readiness, in which case it shall 
notify the Secretary of Transportation of such determination.
    (ii) Determine that the proposed project will have an adverse impact 
on military operations and readiness but that the adverse impact 
involved is sufficiently attenuated that it does not require mitigation. 
When the Clearinghouse makes such a determination, it shall notify the 
Secretary of Transportation of such determination.
    (iii) Determine that the proposed project may have an adverse impact 
on military operations and readiness. When the Clearinghouse makes such 
a determination it shall immediately--
    (A) Notify the applicant of the determination of the Clearinghouse 
and offer to discuss mitigation with the applicant to reduce the adverse 
impact;
    (B) Designate one or more DoD Components to engage in discussions 
with the applicant to attempt to mitigate the adverse impact;
    (C) Notify the Secretary of Transportation that the Department of 
Defense has determined that the proposed project may have an adverse 
impact on military operations and readiness, and, if the cause of the 
adverse impact is due to the proposed project exceeding an obstruction 
standard set forth in subpart C of part 77 of title 14 of the Code of 
Federal Regulations, identify the specific standard and how it would be 
exceeded; and
    (D) Notify the Secretary of Transportation and the Secretary of 
Homeland Security that the Clearinghouse has offered to engage in 
mitigation discussions with the applicant.
    (4) The applicant must provide to the Clearinghouse its agreement to 
discuss the possibility of mitigation within five days of receipt of the 
notification from the Clearinghouse.
    (b) If the applicant agrees to enter into discussions with the DoD 
to seek to mitigate an adverse impact, the designated DoD Components 
shall engage in discussions with the applicant to attempt to reach 
agreement on measures that would mitigate the adverse impact of the 
proposed project on military operations and readiness. The

[[Page 416]]

Clearinghouse shall invite the Administrator of the Federal Aviation 
Administration and the Secretary of Homeland Security to participate in 
such discussions. The Clearinghouse may also invite other Federal 
agencies to participate in such discussions.
    (1) Such discussions shall not extend more than 90 days beyond the 
initial notification to the applicant, unless both the designated DoD 
Components and the applicant agree, in writing, to an extension of a 
specific period of time.
    (i) If agreement between the applicant and the designated DoD 
Components has not been reached on mitigation measures by that time and 
no extension has been mutually agreed to, the designated DoD Components 
shall notify the Clearinghouse of the results of the discussions and the 
analysis and recommendations of the Components with regard to the 
proposed project as it is proposed after discussions.
    (ii) If agreement between the applicant and the designated DoD 
Components has been reached on mitigation measures that remove the 
adverse impact of the proposed project on military operations and 
readiness, the DoD Components shall notify the Clearinghouse of the 
agreement. If the mitigation measures entail modification to the 
proposed project, the applicant shall notify the Secretary of 
Transportation of such agreement and amend its application accordingly.
    (2) If the applicant and the designated DoD Components are unable to 
reach agreement on mitigation, the Clearinghouse shall review the 
analysis and recommendations of the DoD Components and determine if the 
proposed project as it may have been modified by the applicant after 
discussions would result in an unacceptable risk to the national 
security of the United States.
    (i) If the Clearinghouse determines that the proposed project as it 
may have been modified by the applicant after discussions would result 
in an unacceptable risk to the national security of the United States, 
it shall make a recommendation to the senior official to that effect. If 
the Clearinghouse determines, contrary to the recommendations of the DoD 
Components, that the proposed project as it may have been modified by 
the applicant after discussions would not result in an unacceptable risk 
to the national security of the United States, it shall make a 
recommendation to the senior official to that effect.
    (ii) If the senior official concurs with the recommendation of the 
Clearinghouse, the senior official shall make a recommendation to the 
senior officer that is consistent with the recommendation of the 
Clearinghouse. If the senior official does not agree with the 
recommendation of the Clearinghouse, the senior official may make a 
recommendation to the senior officer to that effect.
    (iii) The senior officer shall consider the recommendation of the 
senior official, and, after giving full consideration to mitigation 
actions available to the DoD and those agreed to by the applicant, 
determine whether the proposed project as it may have been modified by 
the applicant would result in an unacceptable risk to the national 
security of the United States. If the senior officer makes such a 
determination, the senior officer shall convey that determination to the 
Secretary of Transportation, identifying which of the three criteria in 
Sec. 211.3 creates the unacceptable risk to the national security of 
the United States.
    (iv) Any mitigation discussions engaged in by the Department of 
Defense pursuant to this part shall not be binding upon any other 
Federal agency, nor waive required compliance with any other law or 
regulation.
    (c) If the applicant does not agree to enter into discussions with 
the DoD to seek to mitigate an adverse impact, the Clearinghouse shall 
review the analysis and recommendations of the designated DoD Components 
and determine if the proposed project would result in an unacceptable 
risk to the national security of the United States.
    (1) If the Clearinghouse determines that the proposed project would 
result in an unacceptable risk to the national security of the United 
States, it shall make a recommendation to the senior official to that 
effect. If the Clearinghouse determines, contrary to the recommendations 
of the DoD Components,

[[Page 417]]

that the proposed project would not result in an unacceptable risk to 
the national security of the United States, it shall make a 
recommendation to the senior official to that effect.
    (2) If the senior official concurs with the recommendation of the 
Clearinghouse, the senior official shall make a recommendation to the 
senior officer that is consistent with the recommendation of the 
Clearinghouse. If the senior official does not agree with the 
recommendation of the Clearinghouse, the senior official may make a 
recommendation to the senior officer to that effect.
    (3) The senior officer shall consider the recommendation of the 
senior official, and, after giving full consideration to mitigation 
actions available to the DoD and those agreed to by the applicant, 
determine whether the proposed project would result in an unacceptable 
risk to the national security of the United States. If the senior 
officer makes such a determination, the senior officer shall convey that 
determination to the Secretary of Transportation, identifying which of 
the three criteria in Sec. 211.3 creates the unacceptable risk to the 
national security of the United States.
    (d) The Clearinghouse may, on behalf of itself, the senior official, 
or the senior officer, seek an extension of time from the Secretary of 
Transportation for consideration of the application.



Sec. 211.7  Initiating an informal DoD review of a proposed project.

    (a) An informal review of a project begins with the receipt from a 
requester by the Clearinghouse of a request for an informal review. In 
seeking an informal review, the requester shall provide the following 
information to the Clearinghouse:
    (1) The geographic location of the project including its latitude 
and longitude,
    (2) The height of the project,
    (3) The nature of the project.
    (4) The requester is encouraged to provide as much additional 
information as is available. The more information provided by the 
requester, the greater will be the accuracy and reliability of the 
resulting DoD review. When a request for an informal review includes 
information that is proprietary or competition sensitive, requesters are 
encouraged to mark the documents they submit accordingly.
    (b) The Clearinghouse shall, within five days of receiving the 
information provided by the requester, convey that information to those 
DoD Components it believes may have an interest in reviewing the 
request.
    (1) The DoD Components that receive the request from the 
Clearinghouse shall provide their comments and recommendations on the 
request to the Clearinghouse no later than 30 days after they receive 
the request.
    (2) Not later than 50 days after receiving the request from the 
requester, the Clearinghouse shall evaluate all comments and 
recommendations received and take one of three actions:
    (i) Determine that the project will not have an adverse impact on 
military operations and readiness, in which case it shall notify the 
requester of such determination. In doing so, the Clearinghouse shall 
also advise the requester that the informal review by the DoD does not 
constitute an action under 49 U.S.C. 44718 and that neither the DoD nor 
the Secretary of Transportation are bound by the determination made 
under the informal review.
    (ii) Determine that the project will have an adverse impact on 
military operations and readiness but that the adverse impact involved 
is sufficiently attenuated that it does not require mitigation. The 
Clearinghouse shall notify the requester of such determination. In doing 
so, the Clearinghouse shall also advise the requester that the informal 
review by the DoD does not constitute an action under 49 U.S.C. 44718 
and that neither the DoD nor the Secretary of Transportation are bound 
by the determination made under the informal review.
    (iii) Determine that the project will have an adverse impact on 
military operations and readiness.
    (A) When the requester is the project proponent, the Clearinghouse 
shall immediately--
    (1) Notify the requester of the determination and the reasons for 
the conclusion of the Clearinghouse and advise the requester that the 
DoD would like

[[Page 418]]

to discuss the possibility of mitigation to reduce any adverse impact; 
and
    (2) Designate one or more DoD Components to engage in discussions 
with the requester to attempt to mitigate the adverse impact.
    (B) When the requester is a State, Indian tribal, or local official 
or a landowner, notify the requester of the determination and the 
reasons for that conclusion.
    (c) If the requester is the project proponent and agrees to enter 
into discussions with the DoD to seek to mitigate an adverse impact, the 
designated DoD Components shall engage in discussions with the requester 
in an attempt to reach agreement on measures that would mitigate the 
adverse impact of the project on military operations and readiness.



Sec. 211.8  Inquiries received by DoD Components.

    (a) An inquiry received by a DoD Component other than the 
Clearinghouse relating to an application filed with the Secretary of 
Transportation pursuant to 49 U.S.C. 44718 shall be forwarded to the 
Clearinghouse by the DoD Component except when that DoD Component has 
been designated by the Clearinghouse to engage in discussions with the 
entity making the inquiry.
    (b) A request for informal DoD review or any other inquiry related 
to matters covered by this part and received by a DoD Component other 
than the Clearinghouse shall be forwarded to the Clearinghouse by that 
Component except when that DoD Component has been designated by the 
Clearinghouse to engage in discussions with the entity making the 
request.



Sec. 211.9  Mitigation options.

    (a) In discussing mitigation to avoid an unacceptable risk to the 
national security of the United States, the DoD Components designated to 
discuss mitigation with an applicant or requester shall, as appropriate 
and as time allows, analyze the following types of DoD mitigation to 
determine if they identify feasible and affordable actions that may be 
taken to mitigate adverse impacts of projects on military operations and 
readiness:
    (1) Modifications to military operations.
    (2) Modifications to radars or other items of military equipment.
    (3) Modifications to military test and evaluation activities, 
military training routes, or military training procedures.
    (4) Providing upgrades or modifications to existing systems or 
procedures.
    (5) The acquisition of new systems by the DoD and other departments 
and agencies of the Federal Government.
    (b) In discussing mitigation to avoid an unacceptable risk to the 
national security of the United States, the applicant or requester, as 
the case may be, should consider the following possible actions:
    (1) Modification of the proposed structure, operating 
characteristics, or the equipment in the proposed project.
    (2) Changing the location of the proposed project.
    (3) Limiting daily operating hours or the number of days the 
equipment in the proposed structure is in use in order to avoid 
interference with military activities.
    (4) Providing a voluntary contribution of funds to offset the cost 
of measures undertaken by the Secretary of Defense to mitigate adverse 
impacts of the project on military operations and readiness.



Sec. 211.10  Reporting determinations to Congress.

    (a) Not later than 30 days after making a determination of 
unacceptable risk pursuant to Sec. 211.6, the senior officer shall 
submit to the congressional defense committees a report on such 
determination and the basis for such determination.
    (b) Such a report shall include--
    (1) An explanation of the operational impact that led to the 
determination.
    (2) A discussion of the mitigation options considered.
    (3) An explanation of why the mitigation options were not feasible 
or did not resolve the conflict.

[[Page 419]]



                  Subpart D_Communications and Outreach



Sec. 211.11  Communications with the Clearinghouse.

    All communications to the Clearinghouse by applicants, requesters, 
or members of the public should be addressed to: Executive Director, DoD 
Siting Clearinghouse, Office of the Deputy Under Secretary of Defense 
(Installations and Environment), Room 5C646, 3400 Defense Pentagon, 
Washington, DC 20301-3400, or, if by electronic mail, to 
[email protected]. Additional information about the 
Clearinghouse and means of contacting it are available at the following 
URL: http://www.acq.mil/ie/sch.



Sec. 211.12  Public outreach.

    (a) The DoD shall establish a Web site accessible to the public 
that--
    (1) Lists the applications that the DoD is currently considering.
    (2) Identifies the stage of the action, e.g., preliminary review, 
referred for mitigation discussions, determined to be an unacceptable 
risk.
    (3) Indicates how the public may provide comments to the DoD.
    (b) The Clearinghouse shall publish a handbook to provide 
applicants, requesters, and members of the public with necessary 
information to assist them in participating in the Mission Compatibility 
Evaluation Process.



PART 212_PROCEDURES AND SUPPORT FOR NON-FEDERAL ENTITIES AUTHORIZED
TO OPERATE ON DEPARTMENT OF DEFENSE (DOD) INSTALLATIONS--
Table of Contents



Sec.
212.1 Purpose.
212.2 Applicability.
212.3 Definitions.
212.4 Policy.
212.5 Responsibilities.
212.6 Procedures.

Appendix A to Part 212--Non-Federal Entities Having Statutory 
          Authorization for Particular Support

    Authority: 5 U.S.C. 301; 10 U.S.C. 2554; 10 U.S.C. 2606; and 36 
U.S.C. 300110

    Source: 73 FR 59506, Oct. 9, 2008, unless otherwise noted.



Sec. 212.1  Purpose.

    This part:
    (a) Implements 32 CFR part 213.
    (b) Updates responsibilities and procedures to define and 
reestablish a framework for non-Federal entities authorized to operate 
on Department of Defense (DoD) installations.



Sec. 212.2  Applicability.

    (a) This part applies to:
    (1) The Office of the Secretary of Defense, the Military 
Departments, the Office of the Chairman of the Joint Chiefs of Staff and 
the Joint Staff, the Combatant Commands, the Office of Inspector General 
of the Department of Defense, the Defense Agencies, the DoD Field 
Activities, and all other organizational entities within the Department 
of Defense (hereafter referred to collectively as the ``DoD 
Components'').
    (2) Non-Federal entities authorized to operate on DoD installations.
    (b) This part shall not apply to:
    (1) Military relief societies.
    (2) Banks or credit unions according to 32 CFR part 230.
    (3) Support provided under Innovative Readiness Training according 
to DoD Directive 1100.20. \1\
---------------------------------------------------------------------------

    \1\ Copies of unclassified DoD Directives, Instructions, 
Publications, and Administrative Instructions may be obtained at http://
www.dtic.mil/whs/directives/.
---------------------------------------------------------------------------



Sec. 212.3  Definitions.

    DoD installation: As used in this instruction, a base, camp, post, 
station, yard, center, homeport facility for any ship, or other activity 
under the jurisdiction of the Department of Defense, including any 
leased facility or, in the case of an activity in a foreign country, 
under the operational control of the Department of Defense. This term 
does not include any facility used primarily for civil works, rivers and 
harbor projects, or flood control projects.
    Non-Federal entities. A self-sustaining organization, incorporated 
or unincorporated, that is not an agency or instrumentality of the 
Federal government. This part addresses only those entities that operate 
on DoD installations with the express consent of the

[[Page 420]]

installation commander or higher authority. Membership of these 
organizations consists of individuals acting exclusively outside the 
scope of any official capacity as officers, employees, or agents of the 
Federal Government. Non-Federal entities include a State, interstate, 
Indian tribal, or local government, as well as private organizations.
    United States. As used in this part, the 50 States, the District of 
Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the 
Northern Mariana Islands, the U.S. Virgin Islands, Guam, American Samoa, 
Johnston Atoll, Kingman Reef, Midway Island, Nassau Island, Palmyra 
Island, Wake Island, and any other territory or possession of the United 
States, and associated navigable waters, including the territorial seas.



Sec. 212.4  Policy.

    It is DoD policy, consistent with 32 CFR part 213, that procedures 
be established for the operation of non-Federal entities on DoD 
installations to prevent official sanction, endorsement, or support by 
the DoD Components except as authorized in DoD 5500.7-R and applicable 
law. The Department recognizes that non-Federal entity support of 
Service members and their families can be important to their welfare. 
Non-Federal entities are not entitled to sovereign immunity and 
privileges accorded to Federal agencies and instrumentalities. The DoD 
Components shall take action to preclude unauthorized expenditures of 
appropriated funds, commissary surcharge, or nonappropriated funds (NAF) 
in support of these organizations.



Sec. 212.5  Responsibilities.

    (a) The Principal Deputy Under Secretary for Personnel and 
Readiness, under the Under Secretary of Defense for Personnel and 
Readiness and in coordination with the Deputy Under Secretary of Defense 
for Installations and Environment and subject to DoD Directive 4165.6, 
shall be responsible for implementing policy and oversight of non-
Federal entities on DoD installations.
    (b) The Heads of the DoD Components shall:
    (1) Implement this part.
    (2) Be aware of all non-Federal entities operating on installations 
under their jurisdiction.
    (3) Conduct reviews to ensure installation commanders periodically 
review facilities, programs, and services provided by non-Federal 
entities operating on DoD installations. Installation commanders will 
also review membership provisions and the original purpose for which 
each organization was originally approved. Substantial changes to those 
original conditions shall necessitate further review, documentation, and 
approval for continued permission to operate on the installation.



Sec. 212.6  Procedures.

    (a) To prevent the appearance of official sanction or support by the 
Department of Defense:
    (1) Non-Federal entities may not use the seals, logos, or insignia 
of the Department of Defense or any DoD Component, DoD organizational 
unit, or DoD installation on organization letterhead, correspondence, 
titles, or in association with organization programs, locations, or 
activities.
    (2) Non-Federal entities operating on DoD installations may use the 
name or abbreviation of the Department of Defense, a DoD Component, 
organizational unit, or installation in its name provided that its 
status as a non-Federal entity is apparent and unambiguous and there is 
no appearance of official sanction or support by the Department of 
Defense. The following applies:
    (i) The non-Federal entity must have approval from the appropriate 
DoD organization whose name or abbreviation is to be used before using 
the name or abbreviation.
    (ii) Any use of the name or abbreviation of a DoD Component, 
organizational unit, or installation must not mislead members of the 
public to assume a non-Federal entity is an organizational unit of the 
Department of Defense.
    (iii) A non-Federal entity must prominently display the following 
disclaimer on all print and electronic media mentioning the entity's 
name confirming that the entity is not a part of the Department of 
Defense: ``THIS IS A NON-FEDERAL ENTITY. IT IS

[[Page 421]]

NOT A PART OF THE DEPARTMENT OF DEFENSE OR ANY OF ITS COMPONENTS AND IT 
HAS NO GOVERNMENTAL STATUS.'' This disclaimer must also be provided in 
appropriate oral communications and public announcements when the name 
of the entity is used.
    (b) Activities of non-Federal entities covered by this part shall 
not in any way prejudice or discredit the DoD Components or other 
Federal Government agencies.
    (c) Subject to DoD Directive 4165.6 as it relates to real property, 
installation commanders shall approve written agreements that indicate 
permission to operate on the installation and any logistical support 
that will be provided. DoD personnel acting in an official capacity will 
not execute any charter that will serve as the legal basis for the non-
Federal entity. The nature, function, and objectives of a non-Federal 
entity covered by this part shall be delineated in articles of 
incorporation, a written constitution, bylaws, charters, articles of 
agreement, or other authorization documents before receiving approval 
from the installation commander to operate on the installation. That 
documentation shall also include:
    (1) Description of eligible membership in the non-Federal entity.
    (i) No person because of race, color, creed, sex, age, disability, 
or national origin shall be unlawfully denied membership, unlawfully 
excluded from participation, or otherwise subjected to unlawful 
discrimination by any non-Federal entity or other private organization 
covered by this part.
    (ii) Installation commanders will distribute information on 
procedures for individuals to follow when they suspect unlawful 
discrimination by the organization.
    (2) Designation of management responsibilities, including the 
accountability for assets, satisfaction of liabilities, disposition of 
any residual assets on dissolution, and other documentation that shows 
responsible financial management.
    (3) A certification indicating that members understand they are 
personally liable, as provided by law, if the assets of the non-Federal 
entity are insufficient to discharge all liabilities.
    (4) Guidance relating to professional scouting organizations 
operating at U.S. military installations located overseas can be found 
in DoD Instruction 1015.9.
    (i) In accordance with DoD 5500.7-R, which contains a policy on 
sponsorship of non-Federal entities by DoD personnel acting in an 
official capacity, DoD personnel acting in an official capacity shall 
not execute charters that serve as the legal basis for the creation of 
Boy Scouts organizations (including Boy Scouts, Cub Scout Packs, or 
Venturer Crews).
    (ii) In accordance with U.S. District Court for the Northern 
District of Illinois, Eastern Division, Decision No. 1999 CV 02424, 
while such chartering is not allowed, nothing in this part is intended 
to preclude, if otherwise authorized by law or regulation, DoD support 
to Boy Scouts or their official affiliates; Boy Scouts activities on DoD 
installations; or sponsorship of Boy Scout organizations by DoD 
personnel in their personal capacity. Existing charters executed by DoD 
personnel in their official capacity shall be terminated or amended to 
substitute sponsorship by an appropriate individual, volunteer, group, 
or organization, consistent with DoD policy. \2\
---------------------------------------------------------------------------

    \2\ Paragraph mandated by ``Partial Settlement Agreement Between 
Plaintiffs and Secretary Rumsfeld'', United States District Court for 
the Northern District of Illinois, Eastern Division, No. 1999 CV 02424 
(Eugene Winkler, et al., v. Chicago School Reform Board of Trustees, et 
al.)
---------------------------------------------------------------------------

    (d) A non-Federal entity covered by this part shall not offer 
programs or services on DoD installations that compete with appropriated 
or NAF activities, but may, when specifically authorized, supplement 
those activities.
    (1) Installation commanders, or higher authorities if the 
installation commander has not been delegated such authority, will 
determine if the services of a non-Federal entity conflict with or 
detract from local DoD programs. The cognizant commander has 
discretionary authority over the operations of non-Federal entities on 
DoD installations. Commanders are authorized to eliminate duplication of 
services, particularly when these services

[[Page 422]]

compete with the installation's revenue-generating activities.
    (2) Background checks are required for employees and volunteers of 
non-Federal entities who have contact with children under the age of 18 
in DoD- operated, -contracted, or community-based programs that are used 
to supplement or expand child care or youth services, according to DoD 
Instruction 1402.5.
    (e) Non-Federal entities covered by this part shall be self-
sustaining, primarily through dues, contributions, service charges, 
fees, or special assessment of members. There shall be no financial 
assistance to such an entity from a NAF Instrumentality (NAFI) in the 
form of contributions, repairs, services, dividends, or other donations 
of money or other assets. Fundraising and membership drives are governed 
by DoD 5500.7-R.
    (f) Non-Federal entities are not entitled to DoD support. However, 
support may be provided when it is consistent with and supportive of the 
military mission of the DoD Component concerned. Such support may be 
provided only when it can be offered within the capability of the 
installation commander without detriment to the commander's ability to 
fulfill the military mission, and when it is permitted under applicable 
Status of Forces Agreements. The DoD Components may provide logistical 
support to non-Federal entities with appropriated funds to the extent 
authorized by DoD 5500.7-R and applicable law. NAFI funds or assets 
shall not be directly or indirectly transferred to non-Federal entities 
according to DoD Instruction 1015.15.
    (g) Personal and professional participation in non-Federal entities 
by DoD employees is governed by DoD 5500.7-R. DoD personnel acting in an 
official capacity will not execute charters that serve as the legal 
basis for any non-Federal entity or other private organization.
    (h) Neither appropriated fund activities nor NAFIs may assert any 
claim to the assets, or incur or assume any obligation, of any non-
Federal entity covered by this part, except as may arise out of 
contractual relationships or as provided by law. Property shall not be 
abandoned on the installation by a non-Federal entity and may only be 
acquired by the DoD installation by purchase or through donation agreed 
to by the Department of Defense.
    (i) The non-Federal entity shall have adequate insurance, as defined 
by the DoD Component concerned, to protect against liability and 
property damage claims or other legal actions that may arise due to its 
activities, those of its members, or the operation of its equipment or 
devices. The DoD Components will not assume liability (through insurance 
or other means) for any activities or assets of non-Federal entities.
    (j) Non-Federal entities shall comply with applicable fire and 
safety regulations; environmental laws; local, State, and Federal tax 
codes; and any other applicable statutes or regulations.
    (k) Income from a non-Federal entity or its activities shall not 
accrue to individual members of a non-Federal entity except through 
wages and salaries as employees of the non-Federal entity or as award 
recognition for services rendered to the non-Federal entity or military 
community. This prohibition is not meant to preclude operation of 
investment clubs, in which the investment of members' personal funds 
result in a return on investment directly and solely to the individual 
members.
    (l) Employees of non-Federal entities are not employees of the 
United States or of an instrumentality of the United States. Applicable 
laws on labor standards for employment shall be observed, including 
worker's compensation insurance. Employees of non-Federal entities shall 
not participate in NAF employee benefit programs based upon their 
affiliation with the non-Federal entity.
    (m) Non-Federal entities that have statutory authorization for 
particular support are listed at Appendix A to this part.
    (n) Certain unofficial activities conducted on DoD installations do 
not need formal authorization because of the limited scope of their 
activities. Examples are office coffee funds, flower funds, and similar 
small, informal activities and funds. The DoD Components shall establish 
the basis upon which such informal activities and funds shall operate.

[[Page 423]]



   Sec. Appendix A to Part 212--Non-Federal Entities Having Statutory 
                  Authorization for Particular Support

------------------------------------------------------------------------
           Non-Federal entity                       Authority
------------------------------------------------------------------------
Certain banks and credit unions........  Chapter 1770 of title 12,
                                          United States Code (U.S.C.).
                                         Title 32, Code of Federal
                                          Regulations (CFR), part 230.
United Service Organization............  Section 220101 of title 36,
                                          U.S.C.
                                         Title 32, CFR, part 213.
                                         Memorandum of Understanding
                                          (MOU) between DoD and the
                                          United Service Organization.
Labor organizations....................  Title 5, U.S.C., Chapter 71.
                                         DoD 1400.25-M, subchapter 711.
Combined Federal Campaign..............  Executive Order 12353.
                                         Title 5, CFR, part 950.
                                         DoD Instruction 5035.1.
                                         DoD Instruction 5035.5.
American Registry of Pathology.........  Section 177 of title 10 U.S.C.
Henry M. Jackson Foundation for the      Section 178 of title 10 U.S.C.
 Advancement of Military Medicine.
American National Red Cross............  Section 2552 of title 10 U.S.C.
                                         Section 2602 of title 10 U.S.C.
                                         Secretary of The Army
                                          Memorandum. ``Support to the
                                          Red Cross During Times of
                                          Conflict''.
                                         Title 32, CFR, part 213.
                                         MOU between the Department of
                                          Justice and American Red
                                          Cross.
Boy Scouts Jamborees...................  Section 2554 of title 10 U.S.C.
Girl Scouts International Events         Section 2555 of title 10 U.S.C.
 (Transportation).
                                         DoD Instruction 1015.9.
Shelter for Homeless...................  Section 2556 of title 10 U.S.C.
National Military Associations;          Section 2558 of title 10 U.S.C.
 Assistance at National Conventions.
                                         DoD Directive 5410.18.
                                         DoD Instruction 5410.19.
National Veterans' Organizations (Beds   Section 2551 of title 10 U.S.C.
 and Barracks).
United Seamen's Service Organization...  Section 2604 of title 10 U.S.C.
                                         Title 32, CFR, part 213.
Scouting: Cooperation and Assistance in  Section 2606 of title 10 U.S.C.
 Foreign Areas.
                                         DoD Instruction 1015.9.
Civil Air Patrol.......................  Section 9441 of title 10 U.S.C.
                                         Section 9442 of title 10 U.S.C.
                                         Section 40301 of title 36
                                          U.S.C.
Assistance for certain youth and         Section 508 of title 32 U.S.C.
 charitable organizations.
                                         DoD Directive 1100.20.
Presidential Inaugural Ceremonies......  Section 2553 of title 10 U.S.C.
Specified Sporting Events (Olympics)...  Section 2564 of title 10 U.S.C.
                                         DoD Directive 2000.15.
Fire Protection Agreements.............  Section 1856 of title 42 U.S.C.
                                          et seq.
Armed Services Young Men's Christian     Section 2012 of title 10 U.S.C.
 Association.
                                         Section 2648 of title 10 U.S.C.
                                         Section 508 of title 32, U.S.C.
                                         MOU between DoD and the Armed
                                          Services YMCA.
Support for Youth Organizations........  Section 1058 of Public Law 109-
                                          163 (Note to Section 301 of
                                          title 5 U.S.C.).
                                         Section 8126 of Public Law 109-
                                          148 (Note to Section 101 of
                                          title 10 U.S.C. and Section
                                          301 of title 5 U.S.C.).
------------------------------------------------------------------------



PART 213_SUPPORT FOR NON-FEDERAL ENTITIES AUTHORIZED TO OPERATE ON DOD
INSTALLATIONS--Table of Contents



Sec.
213.1 Purpose.
213.2 Applicability and scope.
213.3 Definition.
213.4 Policy.
213.5 Responsibilities.

    Authority: 10 U.S.C. 2554 and 2606.

    Source: 72 FR 56012, Oct. 2, 2007, unless otherwise noted.



Sec. 213.1  Purpose.

    (a) Authorizes 32 CFR part 212.
    (b) Establishes policy and assigns responsibilities under DoD 
Directive

[[Page 424]]

5124.8 \1\ for standardizing support to non-Federal entities authorized 
to operate on DoD installations.
---------------------------------------------------------------------------

    \1\ Copies may be obtained at http://www.dtic.mil/whs/directives/.
---------------------------------------------------------------------------

    (c) Designates the Secretary of the Army as the DoD Executive Agent 
(DoD EA) according to DoD Directive 5101.1: \2\
---------------------------------------------------------------------------

    \2\ Copies may be obtained at http://www.dtic.mil/whs/directives/.
---------------------------------------------------------------------------

    (1) For DoD support to the Boy Scouts of America (BSA) and Girl 
Scouts of the United States of America (GSUSA) local councils and 
organizations in areas outside of the United States 10 U.S.C. 2606. DoD 
support will also cover the periodic national jamboree according to 10 
U.S.C. 2606.
    (2) To perform the annual audit of the American Red Cross (ARC) 
accounts and to prepare and submit the annual report to Congress 
according to 36 U.S.C. 300110.
    (3) To provide the ARC with the necessary deployment support.
    (d) Designates the Secretary of the Air Force as the DoD EA 
responsible for conducting the Armed Forces Entertainment (AFE) program.



Sec. 213.2  Applicability and scope.

    This part:
    (a) Applies to the Office of the Secretary of Defense, the Military 
Departments, the Chairman of the Joint Chiefs of Staff, the Combatant 
Commands, the Office of the Inspector General of the Department of 
Defense, the Defense Agencies, the DoD Field Activities, and all other 
organizational entities within the Department of Defense (hereafter 
referred to collectively as the ``DoD Components'') and non-Federal 
entities authorized to operate on DoD installations.
    (b) Shall not revise, modify, or rescind any Memorandum of 
Understanding (MOU) between a non-Federal entity and the U.S. Government 
or the Department of Defense or their implementing arrangements in 
existence as of the effective date of this Directive. Additionally, the 
Directive shall not revise, modify, or rescind any MOU between the 
Department of Justice (DoJ) and the Department of Defense that is in 
existence as of the effective date of this Directive. Any such 
agreements shall, as they expire, come up for renewal, or as 
circumstances otherwise permit, be revised to conform to this Directive 
and any implementing guidance.
    (c) Does not apply to banks or credit unions addressed in DoD 
Directive 1000.11 \3\ or the Civil Air Patrol according to 10 U.S.C. 
2554, 2606 and 9441.
---------------------------------------------------------------------------

    \3\ Copies may be obtained at http://www.dtic.mil/whs/directives/.
---------------------------------------------------------------------------



Sec. 213.3  Definition.

    Non-federal entities. A non-Federal entity is generally a self-
sustaining, non-Federal person or organization, established, operated, 
and controlled by any individual(s) acting outside the scope of any 
official capacity as officers, employees, or agents of the Federal 
Government. This Directive addresses only those entities that may 
operate on DoD installations with the express consent of the 
installation commander or higher authority under applicable regulations. 
Non-Federal entities may include elements of state, interstate, Indian 
tribal, and local government, as well as private organizations.



Sec. 213.4  Policy.

    It is DoD policy that:
    (a) DoD support for non-Federal entities shall be in accordance with 
relevant statutes as well as DoD 5500.7-R \4\. In accordance with DoD 
5500.7-R and to avoid preferential treatment, DoD support should be 
uniform, recognizing that non-Federal entity support of Service members 
and their families can be important to their welfare.
---------------------------------------------------------------------------

    \4\ Copies may be obtained at http://www.dtic.mil/whs/directives/.
---------------------------------------------------------------------------

    (b) Under DoD Directive 5124.8 procedures shall be established as 
Instructions and agreements for the operation of non-Federal entities on 
DoD installations and for the prohibition of official sanction, 
endorsement, or support by the DoD Components and officials, except as 
authorized by DoD 5500.7-R and applicable law. Instructions and 
agreements must be compatible with the primary mission of the Department 
and provide for Congressionally authorized support to non-Federal 
entities on DoD installations.

[[Page 425]]

    (c) In accordance with DoD 5500.7-R, installation commanders or 
higher authority may authorize, in writing, logistical support for 
events, including fundraising events, sponsored by non-Federal entities 
covered by this part.
    (d) Installation commanders or higher authority may coordinate with 
non-Federal entities in order to support appropriated or nonappropriated 
fund activities on DoD installations, so long as the support provided by 
the non-Federal entities does not compete with appropriated or 
nonappropriated fund activities.
    (e) Non-Federal entities are not entitled to sovereign immunity and 
the privileges given to Federal entities and instrumentalities.



Sec. 213.5  Responsibilities.

    (a) The Principal Deputy Under Secretary of Defense for Personnel 
and Readiness (PDUSD(P&R)), under the Under Secretary of Defense for 
Personnel and Readiness, shall:
    (1) Be responsible for implementing all policy matters and Office of 
the Secretary of Defense oversight of non-Federal entities on DoD 
installations.
    (2) Develop procedures and execute any necessary agreements to 
implement policy for the operation of non-Federal entities on DoD 
installations.
    (3) Assign responsibilities to the DoD Components to accomplish 
specific oversight and administrative responsibilities with respect to 
non-Federal entities operating on DoD installations.
    (4) Oversee the activities of the designated DoD EA, assessing the 
need for continuation, currency, effectiveness, and efficiency of the 
DoD EA according to 10 U.S.C. 2554 and 2606. Make recommendations for 
establishment of additional DoD EA assignments and arrangements as 
necessary.
    (b) The Secretary of the Army, as the designated DoD EA, and 
according to 10 U.S.C. 2554 and 2606, shall:
    (1) Perform the audit of the annual ARC accounts and prepare and 
submit the annual report according to 36 U.S.C. 300110 and this part.
    (2) Coordinate support to the BSA and GSUSA according to DoD 
Instruction 1015.9 \5\ and this part.
---------------------------------------------------------------------------

    \5\ Copies may be obtained at http://www.dtic.mil/whs/directives/.
---------------------------------------------------------------------------

    (3) Provide necessary deployment support to ARC according to an 
approved DoD and ARC MOU. Initially, the Army will cover costs, except 
those paid by the ARC. The Army will then be reimbursed, upon its 
request, by the entity directly benefiting from the ARC support.
    (4) Designate a point of contact to coordinate matters regarding the 
DoD EA responsibilities, functions, and authorities.
    (c) The Secretary of the Air Force, as the designated DoD EA with 
responsibility for conducting the AFE program, shall administer the AFE 
program according to 10 U.S.C. 2554 and 2606, DoD Instruction 1330.13 
\6\, and this part to include the following:
---------------------------------------------------------------------------

    \6\ Copies may be obtained at http://www.dtic.mil/whs/directives/.
---------------------------------------------------------------------------

    (1) Annually determine with the other DoD Components and the 
PDUSD(P&R) the scope of the program.
    (2) Budget, fund, and maintain accountability for approved 
appropriated fund expenses. Develop and implement supplemental guidance 
to identify allowable expenses and reimbursements.
    (3) Provide centralized services for selecting, declining, 
scheduling, and processing entertainment groups for overseas.
    (4) Designate a point of contact to coordinate matters regarding the 
DoD EA responsibilities, functions, and authorities.



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.

[[Page 426]]

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 
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

[[Page 427]]

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)) 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

[[Page 428]]

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 (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.

[[Page 429]]

    (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 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

[[Page 430]]

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 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

[[Page 431]]

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.)
    (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.

[[Page 432]]

    (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.
216.2 Applicability.
216.3 Definitions.
216.4 Policy.
216.5 Responsibilities.
216.6 Information requirements.

Appendix A of part 216--Military Recruiting Sample Letter of Inquiry
Appendix B of part 216--ROTC Sample Letter of Inquiry

    Authority: 10 U.S.C. 983.

    Source: 73 FR 16527, Apr. 28, 2008, unless otherwise noted.



Sec. 216.1  Purpose.

    This part:
    (a) Implements 10 U.S.C. 983.
    (b) Updates policy and responsibilities relating to the management 
of covered schools that have a policy of denying or effectively 
preventing military recruiting personnel access to their campuses or 
access to students on

[[Page 433]]

their campuses in a manner that is at least equal in quality and scope 
to the access to campuses and to students provided to any other 
employer, or access to student-recruiting information. The term ``equal 
in quality and scope'' means the same access to campus and students 
provided by the school to the any other nonmilitary recruiters or 
employers receiving the most favorable access. The focus is not on the 
content of a school's recruiting policy, but instead on the result 
achieved by the policy and compares the access provided military 
recruiters to that provided other recruiters. Therefore, it is 
insufficient to comply with the statute (10 U.S.C. 983) if the policy 
results in a greater level of access for other recruiters than for the 
military.
    (c) Updates policy and responsibilities relating to the management 
of covered schools that have an anti-ROTC policy.



Sec. 216.2  Applicability.

    This part applies to the Office of the Secretary of Defense, the 
Military Departments (including the Coast Guard when it is operating as 
a Military Service in the Navy), 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''). This part also applies, by agreement with the Department 
of Homeland Security (DHS), to the Coast Guard at all times, including 
when it is a service in the Department of Homeland Security. The 
policies herein also affect the Departments of Transportation, Homeland 
Security, Energy (National Nuclear Security Administration), the Central 
Intelligence Agency, and any department or agency in which regular 
appropriations are made in the Departments of Labor, Health and Human 
Services, Education, and Related Agencies Appropriations Act. 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 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 funds. ``Covered funds'' is defined in 10 U.S.C. 983 as 
any funds made available for the Departments of Defense, Transportation, 
Homeland Security, or National Nuclear Security Administration of the 
Department of Energy, the Central Intelligence Agency, or any department 
or agency in which regular appropriations are made in the Departments of 
Labor, Health and Human Services, and Education, as well as in Related 
Agencies Appropriations Act (excluding any Federal funds provided to an 
institution of higher education, or to an individual, to be available 
solely for student financial assistance, related administrative costs, 
or costs associated with attendance).
    (c) Covered school. An institution of higher education, or a 
subelement of an institution of higher education, subject to the 
following clarifications:
    (1) A determination (Sec. 216.5(a)) affecting only a subelement of 
a parent institution (see Sec. 216.3(f)) effects a limitation on the 
use of funds (see Sec. 216.4 (a)) applicable to the parent institution 
as a whole, including the institution's offending subelement and all of 
its subelements, if any.

[[Page 434]]

    (2) When an individual institution of higher education that is part 
of a single university system (e.g., University of (State) at (City)--a 
part of that state's university system) has a policy or practice that 
prohibits, or in effect prevents, access to campuses or access to 
students on campuses in a manner that is at least equal in quality and 
scope to the access to its campus and students as it provides to any 
other employer, or access to student-recruiting information by military 
recruiters, or has an anti-ROTC policy, as defined in this rule, it is 
only that individual institution within that university system that is 
affected by the loss of Federal funds. This limited effect applies even 
though another campus of the same university system may or may not be 
affected by a separate determination under Sec. 216.5 (a). The funding 
of a subelement of the offending individual institution of a single 
university system, if any, will also be withheld as a result of the 
policies or practices of that offending individual institution.
    (d) Enrolled. Students are ``enrolled'' when registered for at least 
one credit hour of academic credit at the covered school during the most 
recent, current, or next term. Students who are enrolled during the most 
recent term, but who are no longer attending the institution, are 
included.
    (e) Equal in quality and scope. The term means the same access to 
campus and students provided by the school to the any other nonmilitary 
recruiters or employers receiving the most favorable access. The focus 
is not on the content of a school's recruiting policy, but instead on 
the result achieved by the policy and compares the access provided 
military recruiters to that provided other recruiters. Therefore, it is 
insufficient to comply with the statute if the policy results in a 
greater level of access for other recruiters than for the military. The 
U.S. Supreme Court further explained that ``the statute does not call 
for an inquiry into why or how the `other employer' secured its access * 
* * We do not think that the military recruiter has received equal 
`access' [when a law firm is permitted on campus to recruit students and 
the military is not]--regardless of whether the disparate treatment is 
attributable to the military's failure to comply with the school's 
nondiscrimination policy.''
    (f) Institution of higher education. A domestic college, university, 
or other 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, other graduate schools, or a national laboratory connected or 
affiliated with that parent institution). For example, the School of Law 
of XYZ University is a subelement of its parent institution (XYZ 
University).
    (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.
    (i) Student. An individual who is 17 years of age or older and is 
enrolled at a covered school.
    (j) Student-recruiting information. For those students currently 
enrolled, the student's name, address, telephone listing, age (or year 
of birth), place of birth, level of education (e.g., freshman, 
sophomore, or degree awarded for a recent graduate), most recent 
educational institution attended, and current major(s).



Sec. 216.4  Policy.

    It is DoD policy that:
    (a) Under 10 U.S.C. 983, no covered funds may be provided by 
contract or grant (to include payment on such contracts or grants 
previously obligated) to a covered school if the Secretary of Defense 
determines that the covered school:
    (1) Has a policy or practice (regardless of when implemented) that 
either

[[Page 435]]

prohibits or in effect prevents the Secretary of Defense or Secretary of 
Homeland Security from obtaining, for military recruiting purposes, 
access to campuses or access to students on campuses that is at least 
equal in quality and scope, as defined in Sec. 216.3(d), to the access 
to campuses and to students provided to any other employer, or access to 
directory information on students;
    (2) Has failed to disseminate military visit information or alerts 
at least on par with nonmilitary recruiters since schools offering such 
services to nonmilitary recruiters must also send e-mails, post notices, 
etc., on behalf of military recruiters to comply with the Solomon 
Amendment;
    (3) Has failed to schedule visits at times requested by military 
recruiters that coincide with nonmilitary recruiters' visits to campus 
if this results in a greater level of access for other recruiters than 
for the military (e.g., offering non-military recruiters a choice of a 
variety of dates for on-campus interviews while only offering the 
military recruiters the final day of interviews), as schools must ensure 
that their recruiting policies operate such that military recruiters are 
given access to students equal to that provided to any other employer;
    (4) Has failed to provide military recruiters with a mainstream 
recruiting location amidst nonmilitary employers to allow unfettered 
access to interviewees since military recruiters must be given the same 
access as recruiters who comply with a school's nondiscrimination 
policy;
    (5) Has failed to enforce time, place, and manner policies 
established by the covered school such that the military recruiters 
experience an inferior or unsafe recruiting climate, as schools must 
allow military recruiters on campus and must assist them in whatever way 
the school assists other employers;
    (6) Has through policy or practice in effect denied students 
permission to participate, or has prevented students from participating, 
in recruiting activities; or
    (7) Has an anti-ROTC policy or practice, as defined in this rule, 
regardless of when implemented.
    (b) The limitations established in paragraph (a) of this section 
shall not apply to a covered school if the Secretary of Defense 
determines that the covered school:
    (1) Has ceased the policies or practices defined in paragraph (a) of 
this section;
    (2) Has a long-standing policy of pacifism (see Sec. 216.3(j)) 
based on historical religious affiliation;
    (3) When not providing requested access to campuses or to students 
on campus, certifies that all employers are similarly excluded from 
recruiting on the premises of the covered school, or presents evidence 
that the degree of access by military recruiters is the same access to 
campuses or to students on campuses provided to the nonmilitary 
recruiters;
    (4) When not providing any student-recruiting information, certifies 
that such information is not maintained by the covered school; or that 
such information already has been provided to the Military Service 
concerned for that current semester, trimester, quarter, or other 
academic term, or within the past 4 months (for institutions without 
academic terms); or
    (5) When not providing student-recruiting information for a specific 
student certifies that the student concerned has formally requested, in 
writing, that the covered school withhold this information from all 
third parties.
    (c) A covered school may charge military recruiters a fee for the 
costs incurred in providing access to student-recruiting information 
when that institution can certify that such charges are the actual 
costs, provided that such charges are reasonable, customary and 
identical to fees charged to other employers.
    (d) An evaluation to determine whether a covered school maintains a 
policy or practice covered by paragraphs (a)(1) through (a)(6) of this 
section shall be undertaken when:
    (1) Military recruiting personnel are prohibited, or in effect 
prevented, from the same access to campuses or access to students on 
campuses provided to nonmilitary recruiters, or are denied access to 
student-recruiting information;

[[Page 436]]

    (2) Information or alerts on military visits are not distributed at 
least on par with nonmilitary recruiters since schools offering such 
services to nonmilitary recruiters must also send e-mails, post notices, 
etc., on behalf of the military recruiter to comply with the Solomon 
Amendment;
    (3) Military recruiters are prohibited from scheduling their visits 
at requested times that coincide with nonmilitary recruiters' visits to 
its campus if this results in a greater level of access for other 
recruiters than for the military as schools must ensure their recruiting 
policy operates in such a way that military recruiters are given access 
to students equal to that provided to any other employer;
    (4) Military recruiters do not receive a mainstream recruiting 
location amidst nonmilitary employers to allow unfettered access to 
interviewees since military recruiters must be given the same access as 
recruiters who comply with the school's nondiscrimination policy;
    (5) The school has failed to enforce time, place, and manner 
policies established by that school such that military recruiters 
experience an unsafe recruiting climate, as schools must allow military 
recruiters on campus and must assist them in whatever way the school 
chooses to assist other employers;
    (6) Evidence is discovered of an institution-sponsored policy or 
practice that in effect denied students permission to participate, or 
prevented students from participating in recruiting activities.
    (7) The costs being charged by the school for providing student-
recruiting information are believed by the military recruiter to be 
excessive, and the school does not provide information sufficient to 
support a conclusion that such are the actual costs, provided that they 
are reasonable and customary, and are identical to those costs charged 
to other employers; or
    (8) The covered school is unwilling to declare in writing, in 
response to an inquiry from a representative of a DoD Component or a 
representative from the Department of Homeland Security, that the 
covered school does not have a policy or practice of prohibiting, or in 
effect preventing, the Secretary of a Military Department or Secretary 
of Homeland Security from the same access to campuses or access to 
students on campuses provided to nonmilitary recruiters, or access to 
student-recruiting information by military recruiters for purposes of 
military recruiting.
    (e) An evaluation to determine whether a covered school has an anti-
ROTC policy covered by paragraph (a)(7) of this section shall be 
undertaken when:
    (1) A Secretary of a Military Department or designee cannot obtain 
permission to establish, maintain, or efficiently operate a unit of the 
Senior ROTC; or
    (2) Absent a Senior ROTC unit at the covered school, students cannot 
obtain permission from a covered school to participate, or are 
effectively prevented from participating, in a unit of the Senior ROTC 
at another institution of higher education.



Sec. 216.5  Responsibilities.

    (a) The PDUSD(P&R), under the Under Secretary of Defense for 
Personnel and Readiness, shall:
    (1) Not later than 45 days after receipt of the information 
described in paragraphs (b)(3) and (c)(1) of this section:
    (i) Inform the Office of Naval Research (ONR) and the Director, 
Defense Finance and Accounting Service that a final determination will 
be made so those offices can make appropriate preparations to carry out 
their responsibilities should a covered school be determined ineligible 
to receive federal funds.
    (ii) Make a final determination under 10 U.S.C. 983, as implemented 
by this part, and notify any affected school of that determination and 
its basis, and that the school is therefore ineligible to receive 
covered funds as a result of that determination.
    (iii) Disseminate to Federal entities affected by the decision, 
including the DoD Components and the GSA, and to the Secretary of 
Education and the head of each other department and agency the funds of 
which are subject to the determination, the names of the affected 
institutions identified under paragraph (a)(1)(ii) of this section.

[[Page 437]]

    (iv) Notify the Committees on Armed Services of the Senate and the 
House of Representatives of the affected institutions identified under 
paragraph (a)(1)(ii) of this section.
    (v) Inform the affected school identified under paragraph (a)(1)(ii) 
of this section that its funding eligibility may be restored if the 
school provides sufficient new information that the basis for the 
determination under paragraph (a)(1)(ii) of this section no longer 
exists.
    (2) Not later than 45 days after receipt of a covered school's 
request to restore its eligibility:
    (i) Determine whether the funding status of the covered school 
should be changed, and notify the applicable school of that 
determination.
    (ii) Notify the parties reflected in paragraphs (a)(1)(i), 
(a)(1)(iii), and (a)(1)(iv) of this section when a determination of 
funding ineligibility (paragraph (a)(1)(ii) of this section) has been 
rescinded.
    (3) Publish in the Federal Register each determination of the 
PDUSD(P&R) that a covered school is ineligible for contracts and grants 
made under 10 U.S.C. 983, as implemented by this part.
    (4) Publish in the Federal Register at least once every 6 months a 
list of covered schools that are ineligible for contracts and grants by 
reason of a determination of the Secretary of Defense under 10 U.S.C. 
983, as implemented by this part.
    (5) Enter information into the Excluded Parties List System \1\ 
about each covered school that the PDUSD(P&R) determines to be 
ineligible for contracts and grants under 10 U.S.C. 983 and/or this 
part, generally within 5 days of making the determination.
---------------------------------------------------------------------------

    \1\ The Excluded Parties List System (EPLS) is the system that the 
General Services Administration maintains for Executive Branch agencies, 
with names and other pertinent information of persons who are debarred, 
suspended, or otherwise ineligible for Federal procurement and/or 
covered non-procurement transactions.
---------------------------------------------------------------------------

    (6) Provide ONR with an updated list of the names of institutions 
identified under paragraph (a)(1)(ii) of this section whenever the list 
changes due to an institution being added to or dropped from the list, 
so that ONR can carry out its responsibilities for post-award 
administration of DoD Components' contracts and grants with institutions 
of higher education.
    (7) Provide the Office of the Deputy Chief Financial Officer, DoD, 
and the Director, Defense Finance and Accounting Service with an updated 
list of the names of institutions identified under paragraph (a)(1)(ii) 
of this section whenever the list changes due to an institution being 
added or dropped from the list, so those offices can carry out their 
responsibilities related to cessation of payments of prior contract and 
grant obligations to institutions of higher education that are on the 
list.
    (8) Publish in the Federal Register the list of names of affected 
institutions that have changed their policies or practices such that 
they are determined no longer to be in violation of 10 U.S.C. 983 and 
this part.
    (b) The Secretaries of the Military Departments and the Secretary of 
Homeland Security shall:
    (1) Identify covered schools that, by policy or practice, prohibit, 
or in effect prevent, the same access to campuses or access to students 
on campuses provided to nonmilitary recruiters, or access to student-
recruiting information by military recruiters for military recruiting 
purposes.
    (i) When requests by military recruiters to schedule recruiting 
visits are unsuccessful, the Military Service concerned, and the Office 
of the Secretary of Homeland Security when the Coast Guard is operating 
as a service in the Department of Homeland Security, shall seek written 
confirmation of the school's present policy from the head of the school 
through a letter of inquiry. A letter similar to that shown in Appendix 
A of this part shall be used, but it should be tailored to the situation 
presented. If written confirmation cannot be obtained, oral policy 
statements or attempts to obtain such statements from an appropriate 
official of the school shall be documented. A copy of the documentation 
shall be provided to the covered school, which shall be informed of its 
opportunity to forward clarifying comments within 30

[[Page 438]]

days to accompany the submission to the PDUSD(P&R).
    (ii) When a request for student-recruiting information is not 
fulfilled within a reasonable period, normally 30 days, a letter similar 
to that shown in Appendix A shall be used to communicate the problem to 
the school, and the inquiry shall be managed as described in Sec. 
216.5.(b)(1)(ii). Schools may stipulate that requests for student-
recruiting information be in writing.
    (2) Identify covered schools that, by policy or practice, deny 
establishment, maintenance, or efficient operation of a unit of the 
Senior ROTC, or deny students permission to participate, or effectively 
prevent students from participating in a unit of the Senior ROTC at 
another institution of higher education. The Military Service concerned, 
and the Office of the Secretary of Homeland Security when the Coast 
Guard is operating as a service in the Department of Homeland Security, 
shall seek written confirmation of the school's policy from the head of 
the school through a letter of inquiry. A letter similar to that shown 
in Appendix B of this part shall be used, but it should be tailored to 
the situation presented. If written confirmation cannot be obtained, 
oral policy statements or attempts to obtain such statements from an 
appropriate official of the school shall be documented. A copy of the 
documentation shall be provided to the covered school, which shall be 
informed of its opportunity to forward clarifying comments within 30 
days to accompany the submission to the PDUSD(P&R).
    (3) Evaluate responses to the letter of inquiry, and other such 
evidence obtained in accordance with this part, and submit to the 
PDUSD(P&R) the names and addresses of covered schools that are believed 
to be in violation of policies established in Sec. 216.4. Full 
documentation shall be furnished to the PDUSD(P&R) for each such covered 
school, including the school's formal response to the letter of inquiry, 
documentation of any oral response, or evidence showing that attempts 
were made to obtain either written confirmation or an oral statement of 
the school's policies.
    (c) The Heads of the DoD Components and Secretary of Homeland 
Security shall:
    (1) Provide the PDUSD(P&R) with the names and addresses of covered 
schools identified as a result of evaluation(s) required under Sec. 
216.4(d) and (e).
    (2) Take immediate action to deny obligations of covered funds to 
covered schools identified under paragraph (a)(1)(ii) of this section, 
and to restore eligibility of covered schools identified under paragraph 
(a)(2) of this section.



Sec. 216.6  Information requirements.

    The information requirements identified at Sec. 216.5(b) and (c)(1) 
have been assigned Report Control Symbol DD-P&R-(AR)-2038 in accordance 
with DoD 8910.1-M \2\.
---------------------------------------------------------------------------

    \2\ Copies may be obtained at http://www.dtic.mil/whs/directives/.
---------------------------------------------------------------------------



   Sec. Appendix A to Part 216--Military Recruiting Sample Letter of 
                                 Inquiry

(Tailor letter to situation presented)
Dr. John Doe,
 President, ABC University, Anywhere, USA 12345-9876.
    Dear Dr. Doe: I understand that military recruiting personnel [have 
been unable to recruit or have been refused student-recruiting 
information \3\ at (subelement of) ABC University)] by a policy or 
practice of the school. Specifically, military recruiting personnel have 
reported [here state policy decisions or practices encountered]. [If 
preliminary information coming to the attention of a Military Service 
indicates that other Military Services' recruiting representatives have 
been similarly informed of the policy or experienced a similar practice 
affecting their ability for military recruiting purposes to have the 
access or information require, so state.]
---------------------------------------------------------------------------

    \3\ Student-recruiting information refers to a 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(s).
---------------------------------------------------------------------------

    Current Federal law (10 U.S.C. 983) denies the use of certain 
Federal funds through grants or contracts, to include payment on such 
contracts or grants previously obligated, (excluding any Federal funding 
to an institution of higher education, or to an individual, to be 
available solely for student financial assistance, related 
administrative costs, or costs associated with attendance) from 
appropriations of the Departments of Defense, Transportation, Labor, 
Health and Human Services, Education, and related agencies to 
institutions of higher education

[[Page 439]]

(including any subelements of such institutions) that have a policy or 
practice of denying military recruiting personnel access to campuses or 
access to students on campuses, in a manner that is at least equal in 
quality and scope (as explained in Sec. 216.3 of Title 32, Code of 
Federal Regulations, Part 216), as it provides to nonmilitary 
recruiters, or access to student recruiting information. Implementing 
regulations are codified at Title 32, Code of Federal Regulations, Part 
216.
    This letter provides you an opportunity to clarify your 
institution's policy regarding military recruiting on the campus of 
[University]. In that regard, I request, within the next 30 days, a 
written policy statement of the institution with respect to access to 
campus and students by military recruiting personnel. Your response 
should highlight any difference between access for military recruiters 
and access for recruiting by other potential employers.
    Based on this information and any additional facts you can provide, 
Department of Defense officials will make a determination as to your 
institution's eligibility to receive funds by grant or contract. That 
decision may affect eligibility for funding from appropriations of the 
Departments of Defense, Transportation, Labor, Health and Human 
Services, Education, and related agencies. Should it be determined that 
[University] as an institution of higher education (or any subelement of 
the institution) is in violation of the aforementioned statutes and 
regulations, such funding would be stopped, and the institution of 
higher education (including any subelements of the institution) would 
remain ineligible to receive such funds until and unless the Department 
of Defense determines that the institution has ceased the offending 
policies and practices.
    I regret that this action may have to be taken. Successful 
recruiting requires that Department of Defense recruiters have equal 
access to students on the campuses of colleges and universities [and 
student-recruiting information], and at the same time, have effective 
relationships with the officials and student bodies of those 
institutions. I hope it will be possible to identify and correct any 
policies or practices that inhibit military recruiting at your school. 
[My representative, (name), is] [I am] available to answer any of your 
questions by telephone at [telephone number]. I look forward to your 
reply.

 Sincerely,



       Sec. Appendix B to Part 216--ROTC Sample Letter of Inquiry

(Tailor letter to situation presented)
Dr. Jane Smith,
 President, ABC University, Anywhere, USA 12345-9876.
    Dear Dr. Smith: I understand that ABC University has [refused a 
request from a Military Department to establish a Senior ROTC unit at 
your institution] [refused to continue existing ROTC programs at your 
institution][prevented students from participation at a Senior ROTC 
program at another institution] by a policy or practice of the 
University.
    Current Federal law (10 U.S.C. 983) denies the use of certain 
Federal funds through grants or contracts, to include payment on such 
contracts or grants previously obligated, (excluding any Federal funding 
to an institution of higher education, or to an individual, to be 
available solely for student financial assistance, related 
administrative costs, or costs associated with attendance) from 
appropriations of the Departments of Defense, Transportation, Labor, 
Health and Human Services, Education, and related agencies to 
institutions of higher education (including any subelements of such 
institutions) that have a policy or practice of prohibiting or 
preventing the Secretary of Defense from maintaining, establishing, or 
efficiently operating a Senior ROTC unit. Implementing regulations are 
codified at Title 32, Code of Federal Regulations, Part 216.
    This letter provides you an opportunity to clarify your 
institution's policy regarding ROTC access on the campus of ABC 
University. In that regard, I request, within the next 30 days, a 
written statement of the institution with respect to [define the problem 
area(s)].
    Based on this information, Department of Defense officials will make 
a determination as to your institution's eligibility to receive the 
above-referenced funds by grant or contract. That decision may affect 
eligibility for funding from appropriations of the Departments of 
Defense, Transportation, Labor, Health and Human Services, Education, 
and related agencies. Should it be determined that [University] as an 
institution of higher education (or any subelement of the institution) 
is in violation of the aforementioned statutes and regulations, such 
funding would be stopped, and the institution of higher education 
(including any subelements of the institution) would remain ineligible 
to receive such funds until and unless the Department of Defense 
determines that the institution has ceased the offending policies and 
practices.
    I regret that this action may have to be taken. Successful officer 
procurement requires that the Department of Defense maintain a strong 
ROTC program. I hope it will be possible to [define the correction to 
the aforementioned problem area(s)]. [My representative, (name), is] [I 
am] available to answer any of your questions by telephone at [telephone 
number]. I look forward to your reply.

 Sincerely,

[[Page 440]]



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 
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

[[Page 441]]

nuclear detonation(s), did not experience fallout or enter a fallout 
area, and did not come in contact with radioactive samples or 
contaminated objects, they were judged to have received no dose.
    (2) Film badge data from badged personnel may be used to estimate 
individual doses for unbadged personnel. First, a group of participants 
must be identified that have certain common characteristics and a 
similar potential for exposure to radiation. Such characteristics are: 
Individuals must be doing the same kind of work, referred to as 
activity, and all members of the group must have a common relationship 
to the radiological environment in terms of time, location or other 
factors. Identification of these groups is based upon research of 
historical records, technical reports or correspondence. A military unit 
may consist of several groups or several units may comprise a single 
group. Using proven statistical methods, the badge data for each group 
is examined to determine if it adequately reflects the entire group, is 
valid for use in statistical calculations, or if the badge data indicate 
the group should be sub-divided into smaller groups. For a group that 
meets the tests described above, the mean dose, variance and confidence 
limits are determined. An estimated dose equal to 95% probability that 
the actual exposure did not exceed the estimate is assigned to unbadged 
personnel. This procedure is statistically sound and will insure that 
unbadged personnel are assigned doses much higher than the average/mean 
for the group.
    (3) Dose reconstruction is performed if film badge data are 
unavailable for all or part of the period or radiation exposure, if film 
badge data are partially available but cannot be used statistically for 
calculations, special activities are indicated for specific individuals, 
or if other types of radiation exposures are indicated. In dose 
reconstruction, the conditions of exposure are reconstructed 
analytically to arrive at a radiation dose. Such reconstruction is not a 
new concept; it is standard scientific practice used by health 
physicists when the circumstances of a radiation exposure require 
investigation. The underlying method is in each case the same. The 
radiation environment is characterized in time and space, as are the 
activities and geometrical position of the individual. Thus, the rate at 
which radiation is accrued is determined throughout the time of 
exposure, from which the total dose is integrated. An uncertainty 
analysis of the reconstruction provides a calculated mean dose with 
confidence limits. The specific method used in a dose reconstruction 
depends on what type of data are available to provide the required 
characterizations as well as the nature of the radiation environment. 
The radiation environment is not limited to the gamma radiation that 
would have been measured by a film badge, but also includes neutron 
radiation for personnel sufficiently close to a nuclear detonation, as 
well as beta and alpha radiation (internally) for personnel whose 
activities indicate the possibility of inhalation or ingestion of 
radioactive particles.



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.

[[Page 442]]

    (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.
    (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

[[Page 443]]

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 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

[[Page 444]]

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 
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)?

[[Page 445]]

    (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.



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:

[[Page 446]]

    (1) Research conducted in established or commonly accepted 
educational settings, involving normal educational practices, such as 
(i) research on regular and special education instructional strategies, 
or (ii) research on the effectiveness of or the comparison among 
instructional techniques, curricula, or classroom management methods.
    (2) Research involving the use of educational tests (cognitive, 
diagnostic, aptitude, achievement), survey procedures, interview 
procedures or observation of public behavior, unless:
    (i) Information obtained is recorded in such a manner that human 
subjects can be identified, directly or through identifiers linked to 
the subjects; and
    (ii) Any disclosure of the human subjects' responses outside the 
research could reasonably place the subjects at risk of criminal or 
civil liability or be damaging to the subjects' financial standing, 
employability, or reputation.
    (3) Research involving the use of educational tests (cognitive, 
diagnostic, aptitude, achievement), survey procedures, interview 
procedures, or observation of public behavior that is not exempt under 
paragraph (b)(2) of this section, if:
    (i) The human subjects are elected or appointed public officials or 
candidates for public office; or
    (ii) Federal statute(s) require(s) without exception that the 
confidentiality of the personally identifiable information will be 
maintained throughout the research and thereafter.
    (4) Research, involving the collection or study of existing data, 
documents, records, pathological specimens, or diagnostic specimens, if 
these sources are publicly available or if the information is recorded 
by the investigator in such a manner that subjects cannot be identified, 
directly or through identifiers linked to the subjects.
    (5) Research and demonstration projects which are conducted by or 
subject to the approval of department or agency heads, and which are 
designed to study, evaluate, or otherwise examine:
    (i) Public benefit or service programs;
    (ii) Procedures for obtaining benefits or services under those 
programs;
    (iii) Possible changes in or alternatives to those programs or 
procedures; or
    (iv) Possible changes in methods or levels of payment for benefits 
or services under those programs.
    (6) Taste and food quality evaluation and consumer acceptance 
studies,
    (i) If wholesome foods without additives are consumed or
    (ii) If a food is consumed that contains a food ingredient at or 
below the level and for a use found to be safe, or agricultural chemical 
or environmental contaminant at or below the level found to be safe, by 
the Food and Drug Administration or approved by the Environmental 
Protection Agency or the Food Safety and Inspection Service of the U.S. 
Department of Agriculture.
    (c) Department or agency heads retain final judgment as to whether a 
particular activity is covered by this policy.
    (d) Department or agency heads may require that specific research 
activities or classes of research activities conducted, supported, or 
otherwise subject to regulation by the department or agency but not 
otherwise covered by this policy, comply with some or all of the 
requirements of this policy.
    (e) Compliance with this policy requires compliance with pertinent 
federal laws or regulations which provide additional protections for 
human subjects.
    (f) This policy does not affect any state or local laws or 
regulations which may otherwise be applicable and which provide 
additional protections for human subjects.
    (g) This policy does not affect any foreign laws or regulations 
which may otherwise be applicable and which provide additional 
protections to human subjects of research.
    (h) When research covered by this policy takes place in foreign 
countries, procedures normally followed in the foreign countries to 
protect human subjects may differ from those set forth in this policy. 
(An example is a foreign institution which complies with guidelines 
consistent with the World Medical Assembly Declaration (Declaration of 
Helsinki amended 1989) issued either by sovereign states or by

[[Page 447]]

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.
    (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.

[[Page 448]]

``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 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

[[Page 449]]

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.
    (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]

[[Page 450]]



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.



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,

[[Page 451]]

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 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,

[[Page 452]]

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 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

[[Page 453]]

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 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

[[Page 454]]

    (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 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

[[Page 455]]

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.



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

[[Page 456]]

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]
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 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

[[Page 457]]

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.
    (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

[[Page 458]]

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.
    (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.

[[Page 459]]

    (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.
    (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

[[Page 460]]

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 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).

[[Page 461]]

    (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.
    (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

[[Page 462]]

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 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)

[[Page 463]]

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 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

[[Page 464]]

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 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

[[Page 465]]

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 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.

[[Page 466]]

    (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:
    (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.,

[[Page 467]]

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 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.

[[Page 468]]

    (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]



PART 222_DOD MANDATORY DECLASSIFICATION REVIEW (MDR) PROGRAM--
Table of Contents



Sec.
222.1 Purpose.
222.2 Applicability.
222.3 Definitions.
222.4 Responsibilities.
222.5 MDR processing procedures.

Appendix A to Part 222--Addressing MDR requests.

    Authority: 5 U.S.C. 552.

    Source: 76 FR 80745, Dec. 27, 2011, unless otherwise noted.



Sec. 222.1  Purpose.

    This part implements policy established in DoD Instruction 5200.01. 
It assigns responsibilities and provides procedures for members of the 
public to request a declassification review of information classified 
under the provisions of Executive Order 13526, or predecessor orders.



Sec. 222.2  Applicability.

    This part applies to the Office of the Secretary of Defense, the 
Military Departments, the Office of the Chairman of the Joint Chiefs of 
Staff and the Joint Staff, the Combatant Commands, the Office of the 
Inspector General of the Department of Defense, the Defense Agencies, 
the DoD Field Activities, and all other organizational entities within 
DoD (hereafter referred to collectively as the ``DoD Components'').



Sec. 222.3  Definitions.

    Unless otherwise noted, these terms and their definitions are for 
the purpose of this part.
    Foreign Government Information (FGI). Defined in DoD 5200.1-R 
(available at http://www.dtic.mil/whs/directives/corres/pdf/
520001r.pdf).
    Formal Control System. A system designed to ensure DoD Component 
accountability and compliance. For each MDR request, the system shall 
contain, at a minimum, a unique tracking number, requester's name and 
organizational affiliation, information requested, date of receipt, and 
date of closure.
    Formerly Restricted Data. Defined in DoD 5200.1-R.

[[Page 469]]

    MDR. The review of classified information for declassification in 
response to a declassification request that meets the requirements under 
section 3.5 of Executive Order 13526, ``Classified National Security 
Information,'' December 29, 2009.
    Restricted Data. Defined in DoD 5200.1-R.



Sec. 222.4  Responsibilities.

    (a) The Director, Washington Headquarters Services, shall process 
MDR requests for OSD, the Office of the Chairman of the Joint Chiefs of 
Staff and the Joint Staff, and DoD Components not listed in the Appendix 
A to this part.
    (b) Heads of the DoD Components. The Heads of the DoD Components 
listed in the Appendix A to this part shall:
    (1) Establish procedures for the processing of MDR requests and 
appeals for information originating within the Component.
    (2) Appoint an appellate authority to adjudicate MDR appeals for the 
Component.



Sec. 222.5  MDR processing procedures.

    (a) General. The DoD Components shall process MDR requests from the 
public for classified information originating within the DoD Component 
in accordance with DoD 5200.1-R and 32 CFR part 2001.
    (b) Information not subject to review for public release under the 
MDR includes:
    (1) Unclassified information (to include documents) or previously 
classified documents that are declassified prior to the receipt of the 
MDR request. These documents must be requested under the provisions of 5 
U.S.C. 552(b) (also known and hereinafter referred to as the ``Freedom 
of Information Act'' (FOIA) and 32 CFR part 286.
    (2) Information (to include documents) reviewed for declassification 
within 2 years preceding the date of receipt of the MDR request. If this 
is the case, the requester shall be provided the documents as previously 
released and advised of the right to appeal to the DoD Component within 
60 days unless the documents are already under appeal to the Interagency 
Security Classification Appeals Panel (ISCAP).
    (3) Information exempted from search and review by statute of 50 
U.S.C. 431, 432, 432a, 432b, and 432d.
    (4) Documents originated by the incumbent President; the incumbent 
President's White House Staff; committees, commissions, or boards 
appointed by the incumbent President; or other entities within the 
Executive Office of the President that solely advise and assist the 
incumbent President.
    (5) Information marked as Restricted Data or Formerly Restricted 
Data.
    (6) Information that is the subject of pending litigation.
    (c) MDR Requester Guidelines. Members of the public seeking the 
declassification of DoD documents under the provisions of section 3.5 of 
Executive Order 13526, and 50 U.S.C. 431, 432, 432a, 432b, and 432d 
shall:
    (1) Address the written request to the appropriate DoD Component 
listed in the appendix to this enclosure.
    (2) Identify the requested document or information with sufficient 
specificity to enable the DoD Component to locate it with a reasonable 
amount of effort. Information that would provide the sufficient 
specificity would include a document identifier such as originator, 
date, title, subject, the National Archives and Records Administration 
accession number, or other applicable unique document identifying 
number. Broad or topical MDR requests for records on a particular 
subject, such as ``any and all documents concerning'' a subject do not 
meet this standard.
    (3) Include a correct return mailing address with the request.
    (4) Include a statement that the requester understands that the 
request may incur processing charges in accordance with paragraph (k) of 
this section.
    (d) Receipt and Control. Upon receipt of an MDR request, the DoD 
Component shall send the requester an acknowledgement and open a file in 
a formal control system. The acknowledgement shall include the tracking 
number and date of receipt of the request.
    (e) Simultaneous MDR and FOIA Requests. DoD Components should be 
aware of possible requests under both the MDR and the FOIA. In 
accordance with 32 CFR part 286, if a requester asks for the same 
information under

[[Page 470]]

the FOIA and the MDR, the DoD Component shall ask the requester to 
select only one process. If the requester does not select a process, the 
DoD Component shall process the requested information under the FOIA.
    (f) MDR Document Review Process. (1) Requests normally will be 
processed on a first in first out basis by date of receipt.
    (2) Every effort shall be made to ensure that a response to an MDR 
request is provided to the requester within 1 year from the date of 
receipt.
    (3) The DoD Components shall conduct line-by-line reviews of 
documents responsive to an MDR request to determine if the information 
contained within the documents continues to adhere to the standards for 
classification according to Executive Order 13526 Classified National 
Security Information. This line-by-line review must take into account 
the unique sensitivity of FGI as outlined in paragraph (h) of this 
section. In accordance with section 3.6(b) of Executive Order 13526 
Classified National Security Information, classified information 
originating with another U.S. Government agency contained in records of 
the DoD Components will be referred to the originating agency for a 
declassification and release determination. Likewise, classified 
information in a DoD Component's records originating with another DoD 
Component will be referred to the originating Component. It is the 
responsibility of the DoD Component originally receiving the MDR request 
to manage these referrals and to incorporate the other agency's or DoD 
Component's determinations when preparing the final decision on the 
request. The review of each document will determine if the document:
    (i) No longer meets the standards for classification as established 
by Executive Order 13526 ``Classified National Security Information'', 
and is therefore declassified in full.
    (ii) Contains portions still meeting the standards for 
classification and is therefore declassified in part and denied in part.
    (iii) Still meets the standards for classification in its entirety 
and is therefore denied in full.
    (4) For documents meeting the criteria of paragraphs (f)(3)(i) and 
(f)(3)(ii) of this section, the DoD Components shall not release any 
unclassified information exempt from public release pursuant to 
Exemptions 2 through 9 of the FOIA. DoD 5400.7-R, ``DoD Freedom of 
Information Act Program'' provides a more detailed explanation of the 
FOIA exemptions.
    (5) When this process is complete, the DoD Components shall redact 
all information, both classified and unclassified, determined to be 
exempt from release as warranted under applicable law and authority. All 
of the remaining information within the documents, which is determined 
to be publicly releasable information, shall be provided promptly to the 
requester.
    (g) Public Access. In the interest of transparency, the DoD 
Components should make efforts to post documents released under the MDR 
program on DoD Component Web sites.
    (h) FGI. Every effort must be made to ensure that FGI is not subject 
to declassification without the prior consent of the originating 
government. Therefore, if a requested document originated with a foreign 
government or organization and was classified by that government or 
organization, the DoD Component shall conduct MDR of the document in 
accordance with DoD 5200.1-R and 32 CFR part 2001.
    (i) Denial of Information. (1) When classified information is 
denied, the DoD Component shall advise the requester, in writing:
    (i) That information currently and properly classified has been 
denied (whether a document in its entirety or partially) in accordance 
with the appropriate sections of Executive Order 13526 Classified 
National Security Information.
    (ii) Of the right to appeal the denial to the DoD Component within 
60 days of receipt of the denial.
    (iii) Of the mailing address for the appellate authority.
    (2) When unclassified information is withheld because it is 
determined to be exempt from release pursuant to Exemptions 2 through 9 
of the FOIA (whether or not classified information

[[Page 471]]

was also withheld within the same document), the DoD Component shall 
advise the requester that:
    (i) Section 3.5(c) of Executive Order 13526 Classified National 
Security Information allows for the denial of information when 
withholding it is authorized and warranted under applicable law.
    (ii) Unclassified information exempt from public release pursuant to 
one or more exemptions of the FOIA has been withheld.
    (3) For the denial of unclassified information, the requester shall 
not be given MDR appeal rights because the MDR applies only to the 
denial of classified information and because the request was not 
processed under the FOIA.
    (4) The DoD Component is not required to confirm or deny the 
existence or nonexistence of requested information whenever the fact of 
its existence or nonexistence is itself classified pursuant to Executive 
Order 13526 Classified National Security Information.
    (j) MDR Appeals. MDR appeals are for the denial of classified 
information only. DoD Components shall make an appellate decision within 
60 working days of receipt of an MDR appeal. If additional time is 
required to make a determination, the appellate authority shall notify 
the requester of the additional time needed and provide the requester 
with the reason for the extension. When the appellate review is 
complete, the appellate authority shall notify the requester in writing 
of the final determination and of the reasons for any denial. If the 
appellate authority determines that some information remains classified 
under the provisions of Executive Order 13526 Classified National 
Security Information, the requester will be advised of the right to 
appeal the final decision to the ISCAP within 60 days of the final 
Component decision, in accordance with section 5.3 of Executive Order 
13526 Classified National Security Information.
    (k) FEES. In responding to MDR requests, the DoD Components may 
charge fees as permitted by 32 CFR Part 2001. Fees for search, review, 
and reproduction shall be in accordance with the fee schedule in 
Appendix 2 of Chapter 4 of Volume 11A of DoD 7000.14-R (available at 
http://comptroller.defense.gov/fmr/11a/11a_04.pdf).

[76 FR 80745, Dec. 27, 2011; 77 FR 745, Jan. 6, 2012]



          Sec. Appendix A to Part 222--Addressing MDR Requests

    (a) General. The Department of Defense does not have a central 
repository for DoD records. MDR requests therefore should be addressed 
to the DoD Component that has custody of the requested record. If a 
requester is not sure which DoD Component has custody or if the DoD 
Component is not listed below, the MDR request should be directed to the 
Washington Headquarters Services in paragraph (b)(1) of this appendix.
    (b) DoD Component MDR Addresses:
    (1) OSD and the Office of the Chairman of the Joint Chiefs of Staff 
and the Joint Staff. Department of Defense, Washington Headquarters 
Services, Records and Declassification Division, Suite 02F09-02, 4800 
Mark Center Drive, Alexandria, VA 22350-3100. EXCEPTION: DoD Inspector 
General. DoD Office of Inspector General, 400 Army Navy Drive, 
Arlington, VA 22202-4704.
    (2) Department of the Army. U.S. Army Declassification Activity, 
Attention: AHRC-RDD, 8850 Richmond Highway, Suite 300, Alexandria, VA 
22309.
    (3) Department of the Navy.
    (i) Department of the Navy, Chief of Naval Operations, CNO N09N2, 
2000 Navy Pentagon, Washington, DC 20350-2000. (Collateral MDR).
    (ii) Department of the Navy, Chief of Naval Operations, CNO N2/N6, 
2000 Navy Pentagon, Washington, DC 20350-2000. (Sensitive Compartmented 
Information MDR).
    (4) Department of the Air Force. Department of the Air Force, HAF/
IMIO (MDR), 1000 Air Force Pentagon, Washington, DC 20330-1000.
    (5) United States Marine Corps. Commandant of the Marine Corps, HQMC 
Code PP&O, Security Division (PS), 3000 Marine Corps Pentagon, Room 
4A324, Washington, DC 20350-3000
    (6) Defense Advanced Research Projects Agency. Defense Advanced 
Research Projects Agency, 3701 N. Fairfax Drive, Arlington, VA 22203-
1714.
    (7) Defense Contract Audit Agency. Director, Defense Contract Audit 
Agency, Attention: CPS, 8725 John J. Kingman Road, Suite 2135, Fort 
Belvoir, VA 22060-6219.
    (8) Defense Information Systems Agency. Defense Information Systems 
Agency, Attention: Security Division, MPS 6, 5111 Leesburg Pike, Suite 
100, Falls Church, VA 22041.
    (9) Defense Intelligence Agency. Defense Intelligence Agency, 
Attention: DAN-1A (FOIA), Washington, DC 20340-5100.
    (10) Defense Logistics Agency. Defense Logistics Agency, Attention: 
DLA/DSS-S, 8725

[[Page 472]]

John J. Kingman Road, Suite 2533, Fort Belvoir, VA 22060-6221.
    (11) Defense Security Service. Defense Security Service, Office of 
FOIA & Privacy, 1340 Braddock Place, Alexandria, VA 22314-1651.
    (12) Defense Threat Reduction Agency. Defense Threat Reduction 
Agency, Attention: SCR 8725 John J. Kingman Road, Fort Belvoir, VA 
22060-6201.
    (13) Missile Defense Agency. Missile Defense Agency, Attention: MDA/
DS, 7100 Defense Pentagon, Washington, DC 20301-7100.
    (14) National Geospatial-Intelligence Agency. National Geospatial-
Intelligence Agency, Mail Stop D-10, 4600 Sangamore Road, Bethesda, MD 
20816-5003.
    (15) National Reconnaissance Office. National Reconnaissance Office, 
NRO-MSO-ASG-IMSC-IART', 14675 Lee Road, Chantilly, VA 20151-1715.
    (16) National Security Agency/Central Security Service. National 
Security Agency, Declassification Office, DJP5, 9800 Savage Road, Suite 
6884, Fort George G. Meade, MD 20755-6884.
    (17) North American Aerospace Defense Command. HQ NORAD/CSO, 250 
Vandenberg St. Ste B016, Peterson AFB, CO 80914.
    (18) U.S. Africa Command. US Africa Command, Unit 29951, ATTN: COS-
FOIA, APO AE 09751.
    (19) U.S. Central Command. U.S. Central Command, Attention: CCJ6-
RDD, 7115 South Boundary Blvd., MacDill AFB, FL 33621-5101.
    (20) U.S. European Command. U.S. European Command, Attention: ECJ1-
AX, Unit 30400, APO AE 09131.
    (21) U.S. Joint Forces Command. U.S. Joint Forces Command, Code 
J02SM, 1562 Mitscher Ave., Suite 200, Norfolk, VA 23511-2488.
    (22) U.S. Northern Command. U.S. Northern Command, HQ USNORTHCOM/
CSO, 250 Vandenberg Street, Suite B016, Peterson AFB, CO 80914-3804.
    (23) U.S. Pacific Command. U.S. Pacific Command, Attention: J151 
FOIA, Box 64017, Camp Smith, HI 96861-4017.
    (24) U.S. Southern Command. U.S. Southern Command, Attention: SCJ2-
SM-CFO (FOIA)''.3511 NW 91st Avenue, Miami, FL 33172-1217.
    (25) U.S. Special Operations Command. U.S. Special Operations 
Command, Attention: SOCS-SJS-SI (FOIA), 7701 Tampa Point Blvd., MacDill 
AFB, FL 33621-5323.
    (26) U.S. Strategic Command. U.S. Strategic Command, Attention: 
CS50, 901 SAC Blvd., STE 1C17, Offutt AFB, NE 68113-6000.
    (27) U.S. Transportation Command. U.S. Transportation Command, 
Chief, Command Information Management, ATTN: TCCSIM, 508 Scott Drive, 
Scott AFB IL 62225-5357.
    (28) Interagency Security Classification Appeals Panel http://
www.archives.gov/isoo/oversight-groups/iscap/index.html.
    (29) Principal Mandatory Declassification Review (MDR) Contacts at 
Federal Agencies http://www.archives.gov/isoo/contact/mdr-contact.html.



PART 223_DOD UNCLASSIFIED CONTROLLED NUCLEAR INFORMATION (UCNI)
--Table of Contents



Sec.
223.1 Purpose.
223.2 Applicability.
223.3 Definitions.
223.4 Policy.
223.5 Responsibilities.
223.6 Procedures-identifying and controlling DoD UCNI.
223.7 Procedures-determination of DoD UCNI.

    Authority: 10 U.S.C. 128 and 5 U.S.C. 552(b)(3).

    Source: 77 FR 43506, July 25, 2012, unless otherwise noted.



Sec. 223.1  Purpose.

    This part:
    (a) Updates policies, assigns responsibilities and prescribes 
procedures for the implementation of 10 United States Code (U.S.C.) 128, 
which is the statutory basis for controlling unclassified information on 
the physical protection of DoD special nuclear material (SNM), SNM 
equipment, and SNM facilities. Such information is referred to as DoD 
UCNI, to distinguish it from a similar Department of Energy (DOE) 
program.
    (b) Identifies the authority to be used for denying disclosure of 
DoD UCNI pursuant to 5 U.S.C. 552.
    (c) Supplements security classification guidance contained in DoD 
Instruction 5210.67,\1\ DOE classification guide CG-SS-4,\2\ and DoD/DOE 
joint classification guides by establishing procedures for identifying, 
controlling, and limiting the dissemination of unclassified information 
on the physical protection of DoD SNM.
---------------------------------------------------------------------------

    \1\ Copies available on the Internet at http://www.dtic.mil/whs/
directives/corres/pdf/521067p.pdf.
    \2\ Copies available to authorized recipients from the Director of 
Classification, Department of Energy.
---------------------------------------------------------------------------



Sec. 223.2  Applicability.

    This part applies to:
    (a) Office of the Secretary of Defense, the Military Departments, 
the Office of the Chairman of the Joint Chiefs of

[[Page 473]]

Staff and the Joint Staff, the Combatant Commands, the Office of the 
Inspector General of the Department of Defense, the Defense Agencies, 
the DoD Field Activities, and all other organizational entities within 
the Department of Defense (hereinafter referred to collectively as the 
``DoD Components'').
    (b) All SNM, regardless of form, whether in reactor cores or other 
items under the direct control of the DoD Components (hereinafter 
referred to as ``DoD SNM'').
    (c) Nuclear weapons containing SNM that are in DoD custody 
(hereinafter referred to as ``nuclear weapons in DoD custody'').
    (d) Contractors, consultants, and grantees of the Department of 
Defense.



Sec. 223.3  Definitions.

    These terms and their definitions are for the purposes of this part:
    (a) Atomic Energy Defense Programs. Activities, equipment, and 
facilities of the Department of Defense that are capable 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 (a)(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) Document or material. The physical medium on or in which 
information is recorded, or a product or substance that contains or 
reveals information, regardless of its physical form or characteristics.
    (c) DoD UCNI. Unclassified information on the physical protection of 
DoD SNM, SNM equipment, and SNM facilities, including unclassified 
information on the physical protection of nuclear weapons containing SNM 
that are in DoD custody.
    (d) 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.
    (e) Intelligence Community. An element or agency of the U.S. 
Government identified in or designated pursuant section 3.5(h) of 
Executive Order 12333, as amended.
    (f) Reviewing official. An individual appointed by the Assistant 
Secretary of Defense for Nuclear, Chemical, and Biological Defense 
Programs 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, 
document and material accounting, and control measures designed to 
deter, prevent, detect, and respond to unauthorized possession, use, or 
sabotage of DoD SNM, SNM equipment, SNM facilities, or nuclear weapons 
in DoD custody.
    (h) SNM. Defined in 42 U.S.C. 2014.
    (i) SNM 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.
    (j) SNM facility. A DoD facility that performs a function in support 
of Atomic Energy Defense Programs whose disruption could reasonably be 
expected to have a significant adverse effect on safeguarding DoD SNM, 
the health and safety of the public or the common defense and security.
    (k) 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 Sec. 223.6 of 
this part, to any person or entity other than an individual or entity 
authorized access to DoD UCNI in accordance with 10 U.S.C. 128 and this 
part.



Sec. 223.4  Policy.

    It is DoD policy that:
    (a) Unauthorized dissemination of unclassified information 
pertaining to

[[Page 474]]

security measures, including security plans, procedures, and equipment, 
for the physical protection of DoD SNM, SNM equipment, SNM facilities, 
or nuclear weapons in DoD custody is prohibited.
    (b) Unclassified information shall be protected as DoD UCNI 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 
significantly increasing the likelihood of the illegal production of 
nuclear weapons or the theft, diversion, or sabotage of DoD SNM, SNM 
equipment, SNM facilities, or nuclear weapons in DoD custody.
    (c) Unclassified information regarding physical protection of DoD 
SNM and nuclear weapons in DoD custody 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) This part and title 10 of the Code of Federal Regulations (CFR) 
part 1017 shall be used as guidance for handling DOE UCNI that is under 
DoD control.
    (e) This part does not prevent a determination that information 
previously determined to be DoD UCNI is classified information in 
accordance with Volume 1 of DoD Manual 5200.01 \3\ and other applicable 
standards of classification.
---------------------------------------------------------------------------

    \3\ Available on the Internet at http://www.dtic.mil/whs/directives/
corres/pdf/520001_vol1.pdf.
---------------------------------------------------------------------------



Sec. 223.5  Responsibilities.

    (a) The Under Secretary of Defense for Intelligence (USD(I)) shall 
oversee the DoD program for controlling DoD UCNI and coordinate DoD 
compliance with the DOE program for controlling DOE UCNI.
    (b) The Assistant Secretary of Defense for Nuclear, Chemical, and 
Biological Defense Programs (ASD(NCB)), under the authority, direction, 
and control of the Under Secretary of Defense for Acquisition, 
Technology, and Logistics, shall:
    (1) Identify information regarding nuclear weapons security and the 
protection of SNM at DoD nuclear reactor facilities as DoD UCNI and 
protect it from unauthorized dissemination, consistent with the 
requirements of 10 U.S.C. 128 and this part.
    (2) Advise the USD(I) on implementation of the DoD UCNI program.
    (3) Designate a DoD UCNI reviewing official, who shall be authorized 
to determine that materials or documents contain, do not contain, or no 
longer contain DoD UCNI.
    (c) The Director, Administration and Management shall provide 
guidance, as needed, to the Heads of the DoD Components regarding 5 
U.S.C. 552, as implemented by 32 CFR part 286, as it applies to the DoD 
UCNI program.
    (d) The Heads of the DoD Components shall identify DoD UCNI within 
their Component and protect it from unauthorized dissemination, 
consistent with the requirements of 10 U.S.C. 128 and this part.



Sec. 223.6  Procedures-identifying and controlling DoD UCNI.

    (a) General. (1) 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, SNM equipment, SNM facilities, or nuclear weapons 
in DoD custody. This is called the ``adverse effects test.''
    (2) DoD UCNI shall be identified, controlled, marked, transmitted, 
and safeguarded in the DoD Components, the Intelligence Community, and 
the North Atlantic Treaty Organization (NATO), and among DoD 
contractors, consultants, and grantees. Within NATO, DoD UCNI shall be 
marked, controlled, and safeguarded as ``NATO RESTRICTED'' information.
    (3) Contracts requiring access to or the preparation of unclassified 
information that is or could be DoD UCNI shall require compliance with 
this part and any applicable DoD Component

[[Page 475]]

regulations, and shall specify requirements for identifying, marking, 
handling, and safeguarding DoD UCNI.
    (b) Identifying DoD UCNI. (1) To be designated and protected as DoD 
UCNI, information must:
    (i) Be unclassified.
    (ii) Pertain to security measures, including plans, procedures, and 
equipment, for the physical protection of DoD SNM, SNM equipment, SNM 
facilities, or nuclear weapons in DoD custody.
    (iii) Meet the adverse effects test.
    (2) Information shall be protected as DoD UCNI if it qualifies for 
one or more of the categories listed in Sec. 223.7(c) and meets the 
criteria in paragraph (b)(1) of this section.
    (3) DoD personnel, in making a determination to protect unclassified 
information as DoD UCNI, shall consider the probability of illegal 
production of nuclear weapons or of theft, diversion, or sabotage of DoD 
SNM, SNM equipment, SNM facilities, or nuclear weapons in DoD custody if 
the information proposed for protection were made available for public 
disclosure and dissemination. The cognizant official shall consider how 
the unauthorized disclosure or dissemination of such information could 
assist a potential adversary in:
    (i) Selecting a target for an act of theft, diversion, or sabotage 
of nuclear weapons in DoD custody, DoD SNM, SNM equipment, or SNM 
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.
    (ii) Planning or committing an act of theft, diversion, or sabotage 
of nuclear weapons in DoD custody, DoD SNM, SNM equipment, or SNM 
facilities (e.g., design of security systems; building plans; methods 
and procedures for transfer, accountability, and handling of nuclear 
weapons or DoD SNM; or security plans, procedures, and capabilities).
    (iii) Measuring the success of an act of theft, diversion, or 
sabotage of nuclear weapons in DoD custody, DoD SNM, SNM equipment, or 
SNM facilities (e.g., actual or hypothetical consequences of the 
sabotage of specific vital equipment or facilities).
    (iv) 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).
    (v) Dispersing DoD SNM in the environment (e.g., location, form, and 
quantity of DoD SNM).
    (c) Where questions or disagreements arise on designation or 
continued protection of information as DoD UCNI, the reviewing official 
appointed by the ASD(NCB) shall make the final determination. If a 
determination cannot be made because applicable guidance is unclear or 
does not exist, the document or material in question shall be referred 
to the reviewing official for a determination.
    (d) Access to DoD UCNI. (1) No explicit designation or security 
clearance is required for access to DoD UCNI; however, a person granted 
access to DoD UCNI must have a need to know the specific DoD UCNI to 
which access is granted in the performance of official duties or of DoD-
authorized activities.
    (2) The individual granting access to DoD UCNI shall notify each 
person granted such access of applicable regulations, including the 
physical protection and access requirements, concerning the protection 
of DoD UCNI as well as any special dissemination limitations that apply 
to the specific DoD UCNI to which access is being granted, prior to 
dissemination of the DoD UCNI to the person.
    (3) The requirement to notify persons granted access to DoD UCNI of 
applicable regulations concerning protection and dissemination of 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.
    (e) Marking DoD UCNI. (1) An unclassified document with DoD UCNI 
shall be marked ``DOD UNCLASSIFIED CONTROLLED NUCLEAR INFORMATION'' (or 
abbreviated ``DOD UCNI'') at the bottom on: the outside of the front 
cover, if any; the outside of the back cover, if any; the first page; 
and

[[Page 476]]

each individual page containing DoD UCNI.
    (2) Within an unclassified document, an individual page containing 
DoD UCNI shall be marked to show which of its portions contain DoD UCNI. 
In marking sections, parts, paragraphs, or similar portions, the 
parenthetical term ``(DCNI)'' shall be used and placed at the beginning 
of the applicable portions.
    (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 or with the overall classification of the 
document. In marking sections, parts, paragraphs, or similar portions, 
the parenthetical term ``(U//DCNI)'' shall be used and placed at the 
beginning of those portions containing DoD UCNI. In a classified 
document, an individual page that has DoD UCNI, but no classified 
information, shall be marked ``UNCLASSIFIED//DOD UNCLASSIFIED CONTROLLED 
NUCLEAR INFORMATION'' (or ``UNCLASSIFIED//DOD UCNI'') at the top and 
bottom of the page, unless the page is marked with the overall 
classification of the document. The DoD UCNI information may be included 
in the same portion with other classified or unclassified information, 
if all relevant statutory and regulatory markings and citations are 
included. Volume 2 of DoD Manual 5200.01 \4\ provides additional 
guidance on marking classified documents.
---------------------------------------------------------------------------

    \4\ Available on the Internet at http://www.dtic.mil/whs/directives/
corres/pdf/520001_vol2.pdf.
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    (4) Other material (e.g., electronic media, photographs, films, 
tapes, or slides) containing DoD UCNI shall be conspicuously marked 
``DOD UNCLASSIFIED CONTROLLED NUCLEAR INFORMATION'' (or ``DOD UCNI''), 
in accordance with paragraphs (d)(1) through (d)(3) of this section, 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 
among the DoD Components, members of the Intelligence Community, NATO, 
and DoD contractors, consultants, and grantees on a need-to-know basis 
for the conduct of official business for the Department of Defense. 
Dissemination to NATO or other foreign or international entities 
requires prior review and approval by the appropriate dissemination 
entity.
    (2) Recipients shall be made aware of the status as DoD UCNI for all 
such information disseminated to them. Transmission of DoD UCNI shall be 
by means which preclude unauthorized disclosure or dissemination (e.g., 
secure phone, encrypted email).
    (3) Documents containing DoD UCNI shall be marked as prescribed in 
paragraph (d) of this section. Transmittal documents shall call 
attention to the presence of DoD UCNI attachments using an appropriate 
statement in the text or including at the bottom of the transmittal 
document a statement similar to: ``The attached document contains DoD 
Unclassified Controlled Nuclear Information (DoD UCNI).''
    (4) 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 adding the transmittal 
statement ``DEPARTMENT OF DEFENSE/UNCLASSIFIED CONTROLLED NUCLEAR 
INFORMATION/EXEMPT FROM MANDATORY DISCLOSURE PURSUANT TO 5 U.S.C. 
552(b)(3), AS AUTHORIZED BY 10 U.S.C. 128'' to the document cover before 
transfer.
    (5) When not commingled with classified information, DoD UCNI may be 
sent by first-class mail in a single, opaque envelope, or wrapping.
    (6) DoD UCNI shall not be discussed or transmitted over an 
unprotected telephone or telecommunications circuit (to include 
facsimile transmissions) except in case of an emergency.
    (7) Each part of electronically transmitted messages containing DoD 
UCNI portions shall be marked appropriately. Unclassified messages, 
including email, with DoD UCNI portions shall have the abbreviation 
``DOD UCNI'' at the top of the message, before the beginning of the 
text, and the

[[Page 477]]

parenthetical marking ``(DCNI)'' preceding each portion of text 
containing DoD UCNI information. Classified messages containing DoD UCNI 
portions shall be marked with the highest classification of information 
within the message; use the parenthetical marking ``(U//DCNI)'' 
preceding each portion of text containing DoD UCNI information.
    (8) DoD UCNI processed, stored, or produced on stand-alone or 
networked computers or other information technology systems shall 
enforce protection from unauthorized disclosure or dissemination, in 
accordance with the procedures in paragraph (f) of this section.
    (9) 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 and materials determined to contain DoD UCNI shall be 
safeguarded and controlled by measures designed to reduce the risk of 
access to DoD UCNI by unauthorized individuals. Particular attention 
should be paid to areas where DoD UCNI is used or stored if unescorted 
access by unauthorized individuals is possible.
    (2) At the close of business, DoD UCNI shall be stored to preclude 
disclosure. Storage of such information with other unclassified 
information in unlocked receptacles (e.g., desks, bookcases) is adequate 
if Government or Government-contractor internal building security is 
provided during non-duty 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 shall be stored in locked receptacles (e.g., locked file cabinet, 
locked desk drawer, safe).
    (3) Non-record copies of DoD UCNI shall be destroyed by shredding or 
burning or, if the sensitivity or volume of the information justifies 
it, in accordance with the procedures specified by Volume 3 of DoD 
Manual 5200.01 \5\ for classified information. Record copies of DoD UCNI 
shall be disposed of in accordance with the DoD Component's record 
management regulations. DoD UCNI on magnetic storage media shall be 
disposed of by overwriting to preclude its reconstruction. DoD UCNI in 
electronic form shall be deleted and also removed from any desktop trash 
or recycling files.
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    \5\ Available on the Internet at http://www.dtic.mil/whs/directives/
corres/pdf/520001_vol3.pdf.
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    (4) Unauthorized dissemination and 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 shall be informed of its unauthorized disclosure and the 
outcome of the investigative and administrative actions. Unauthorized 
disclosure of DoD UCNI does not constitute a compromise of classified 
information.
    (g) Retirement of Document or Material. (1) Any unclassified 
document or material that is not marked as containing DoD UCNI but that 
may contain DoD UCNI shall be marked upon retirement in accordance with 
the DoD Component's record management regulations.
    (2) A document or material marked as containing DoD UCNI is not 
required to be reviewed upon, or subsequent, to retirement. Retired 
documents or materials shall be reviewed in accordance with paragraph 
(h) of this section upon a request for their release made pursuant to 5 
U.S.C. 552.
    (h) Requests for Public Release of UCNI. (1) Pursuant to 10 U.S.C. 
128, information that qualifies as DoD UCNI is exempt from mandatory 
disclosure pursuant to 5 U.S.C. 552. Requests for the public release of 
DoD UCNI shall be denied, in accordance with procedures established in 
32 CFR part 286, pursuant to 5 U.S.C. 552(b)(3), citing 10 U.S.C. 128 as 
authority.
    (2) Requests for DOE UCNI contained within DoD documents shall also 
be denied pursuant to 5 U.S.C. 552(b)(3), but 42 U.S.C 2168 shall be 
cited, after formal FOIA consultation with the DOE, as the basis for 
invoking the exemption. Requests for DOE documents will

[[Page 478]]

be formally referred to DOE for final adjudication and response to the 
requestor.
    (3) The reviewing official designated by the ASD (NCB) shall review 
any retired DoD UCNI document or material upon a request for its release 
made pursuant to 5 U.S.C. 552.



Sec. 223.7  Procedures-determination of DoD UCNI.

    (a) Use of the Guidelines. (1) The guidelines in this section are 
the basis for determining what unclassified information regarding the 
physical protection of DoD SNM, SNM equipment, SNM facilities, or 
nuclear weapons in DoD custody, in a given technical or programmatic 
subject area are to be designated as DoD UCNI.
    (2) The decision to protect unclassified information as DoD UCNI 
shall be based on a determination that the unauthorized dissemination of 
such information could reasonably be expected to have an adverse effect 
on the health and safety of the public or the common defense and 
security by significantly increasing the likelihood of the illegal 
production of nuclear weapons or the theft, diversion, or sabotage of 
SNM, SNM equipment, SNM facilities, or nuclear weapons in DoD custody.
    (b) General Guidance. (1) Unclassified information relating to the 
physical protection of DoD SNM, SNM equipment, SNM facilities, or 
nuclear weapons in DoD custody is to be protected from public disclosure 
to prevent the adverse effects identified in paragraph (a)(2) of this 
section. Public availability of information that would not result in 
such adverse effects is not to be restricted.
    (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 information that has been, or is, widely and irretrievably 
disseminated in 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 
other material is not, or is no longer, DoD UCNI; case-by-case 
determinations are required.
    (c) Topical Guidance. DoD Components shall consider the topics 
discussed in this section during the preparation of unclassified 
information that addresses the physical protection of DoD SNM or nuclear 
weapons in DoD custody to determine if it qualifies for control as DoD 
UCNI.
    (1) Vulnerability Assessments. (i) General vulnerabilities that 
could be associated with specific DoD SNM, SNM equipment, SNM facility 
locations, or DoD nuclear weapons storage facilities.
    (ii) The fact that DoD SNM or nuclear weapons facility security-
related projects or upgrades are planned or in progress, if not 
observable from a public area.
    (iii) Identification and description of security system components 
intended to mitigate the consequences of an accident or act of sabotage 
at a DoD SNM or nuclear weapons facility.
    (2) Material Control and Accountability. (i) Total quantity or 
categories of DoD SNM at a facility.
    (ii) Control and accountability plans or procedures.
    (iii) Receipts that, cumulatively, would reveal quantities and 
categories of DoD SNM of potential interest to an adversary.
    (iv) Measured discards, decay losses, or losses due to fission and 
transmutation for a reporting period.
    (v) Frequency and schedule of DoD SNM inventories.
    (3) Facility Description. (i) Maps, conceptual design, and 
construction drawings of a DoD SNM or nuclear weapons facility showing 
construction characteristics of building(s) and associated electrical 
systems, barriers, and back-up power systems not observable from a 
public area.
    (ii) Maps, plans, photographs, or drawings of man-made or natural 
features in a DoD SNM or nuclear weapons facility not observable from a 
public area; e.g., tunnels, storm or waste sewers, water intake and 
discharge conduits, or other features having the

[[Page 479]]

potential for concealing surreptitious movement.
    (iii) Communications and computer network configurations and 
capabilities.
    (4) Intrusion Detection and Security Alarm Systems. (i) Information 
on the layout or design of security and alarm systems at a specific DoD 
SNM or nuclear weapons facility, if the information is not observable 
from a public area.
    (ii) The fact that a particular system make or model has been 
installed at a specific DoD SNM or nuclear weapons facility, if the 
information is not observable from a public area.
    (iii) Performance characteristics of installed systems.
    (5) Keys, Locks, Combinations, and Tamper-Indicating Devices. (i) 
Types and models of keys, locks, and combinations of locks used in DoD 
SNM or nuclear weapons facilities and during shipment.
    (ii) Method of application of tamper-indicating devices.
    (iii) Vulnerability information available from unclassified vendor 
specifications.
    (6) Threat Response Capability and Procedures. (i) Information about 
arrangements with local, State, and Federal law enforcement agencies of 
potential interest to an adversary.
    (ii) Information in ``non-hostile'' contingency plans of potential 
value to an adversary to defeat a security measure, e.g., fire, safety, 
nuclear accident, radiological release, or other administrative plans.
    (iii) Required response time of security forces.
    (7) Physical Security Evaluations. (i) Method of evaluating physical 
security measures not observable from public areas.
    (ii) Procedures for inspecting and testing communications and 
security systems.
    (8) In-Transit Security. (i) Fact that a shipment is going to take 
place.
    (ii) Specific means of protecting shipments.
    (iii) Number and size of packages.
    (iv) Mobile operating and communications procedures that an 
adversary could exploit.
    (v) 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.
    (vi) Description and specifications of transport vehicle 
compartments or security systems not visible to the public.
    (9) Information on Nuclear Weapon Stockpile and Storage 
Requirements, Nuclear Weapon Destruction and Disablement Systems, and 
Nuclear Weapon Physical Characteristics. Refer to DOE CG-SS-4 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 
meeting the adverse effects test shall be protected as DoD UCNI.



PART 226_SHELTER FOR THE HOMELESS--Table of Contents



Sec.
226.1 Purpose.
226.2 Applicability.
226.3 [Reserved]
226.4 Procedures.
226.5 Responsibilities.

    Authority: 10 U.S.C. 2546.

    Source: 52 FR 42638, Nov. 6, 1987, unless otherwise noted.



Sec. 226.1  Purpose.

    This part implements 10 U.S.C. 2556 by establishing DoD policy, 
assigning responsibilities, and prescribing procedures for providing 
shelter for the homeless on military installations.

[78 FR 21257, Apr. 10, 2013]



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'').

[[Page 480]]



Sec. 226.3  [Reserved]



Sec. 226.4  Procedures.

    It is DoD policy that:
    (a) 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. 2556 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 by this program. 
Shelter and incidental services provided under this part may be provided 
without reimbursement.
    (d) Services that may be provided by a Military Department incident 
to the furnishing of shelter under 10 U.S.C. 2556 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. 2556.
    (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).

[52 FR 42638, Nov. 6, 1987. Redesignated and amended at 78 FR 21257, 
Apr. 10, 2013]



Sec. 226.5  Responsibilities.

    (a) The Deputy Under Secretary of Defense (Installations and 
Environment) (DUSD(I&E)), under the authority, direction and control of 
the Under Secretary of Defense for Acquisition, Technology, and 
Logistics, shall administer the program and issue such supplemental 
guidance as is necessary.
    (b) The Under 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:

[[Page 481]]

    (1) Implement the Shelter for the Homeless program.
    (2) Appoint a senior manager to monitor the program within the 
Department and to provide any assistance that may be required to the 
Office of the Deputy Under Secretary of Defense (Installations and 
Environment) (ODUSD(I&E)). Such official, after consultation with the 
ODUSD(I&E), shall approve or disapprove all requests to establish a 
shelter in accordance with 10 U.S.C. 2556 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 
Program and the types of assistance that they may provide as authorized 
by 10 U.S.C. 2556.
    (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 DUSD(I&E). The Installation 
Commander's recommendation shall accompany each request.

[52 FR 42638, Nov. 6, 1987. Redesignated and amended at 78 FR 21257, 
Apr. 10, 2013]



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.



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

[[Page 482]]

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.



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

[[Page 483]]

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, 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.

[[Page 484]]

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.

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: 72 FR 42298, August 2, 2007, 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, and other multiple 
uses of the public lands.



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

[[Page 485]]

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 following classes of material remains (and illustrative 
examples), if they are at least 100 years of age, are of archaeological 
interest and shall be considered archaeological resources unless 
determined otherwise pursuant to paragraph (a)(4) or (a)(5) of this 
section:
    (i) Surface or subsurface structures, shelters, facilities, or 
features (including, but not limited to, domestic structures, storage 
structures, cooking structures, ceremonial structures, artificial 
mounds, earthworks, fortifications, canals, reservoirs, horticultural/
agricultural gardens or fields, bedrock mortars or grinding surfaces, 
rock alignments, cairns, trails, borrow pits, cooking pits, refuse pits, 
burial pits or graves, hearths, kilns, post molds, wall trenches, 
middens);
    (ii) Surface or subsurface artifact concentrations or scatters;
    (iii) Whole or fragmentary tools, implements, containers, weapons 
and weapon projectiles, clothing, and ornaments (including, but not 
limited to, pottery and other ceramics, cordage, basketry and other 
weaving, bottles and other glassware, bone, ivory, shell, metal, wood, 
hide, feathers, pigments, and flaked, ground, or pecked stone);
    (iv) By-products, waste products, or debris resulting from 
manufacture or use of human-made or natural materials;
    (v) Organic waste (including, but not limited to, vegetal and animal 
remains, coprolites);
    (vi) Human remains (including, but not limited to, bone, teeth, 
mummified flesh, burials, cremations);
    (vii) Rock carvings, rock paintings, intaglios and other works of 
artistic or symbolic representation;
    (viii) Rockshelters and caves or portions thereof containing any of 
the above material remains;
    (ix) All portions of shipwrecks (including, but not limited to, 
armaments, apparel, tackle, cargo);
    (x) Any portion or piece of any of the foregoing.
    (4) The following material remains shall not be considered of 
archaeological interest, and shall not be considered to be 
archaeological resources for purposes of the Act and this part, unless 
found in a direct physical relationship with archaeological resources as 
defined in this section:
    (i) Paleontological remains;
    (ii) Coins, bullets, and unworked minerals and rocks.
    (5) The Federal land manager may determine that certain material 
remains, in specified areas under the Federal land manager's 
jurisdiction, and under specified circumstances, are not or are no 
longer of archaeological interest and are not to be considered 
archaeological resources under this part. Any determination made 
pursuant to this subparagraph shall be documented. Such determination 
shall in no way affect the Federal land manager's obligations under 
other applicable laws or regulations.
    (6) For the disposition following lawful removal or excavations of 
Native American human remains and ``cultural items'', as defined by the 
Native American Graves Protection and Repatriation Act (NAGPRA; Pub. L. 
101-601; 104 Stat. 3050; 25 U.S.C. 3001-13), the Federal land manager is 
referred to NAGPRA and its implementing regulations.
    (b) 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;

[[Page 486]]

    (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).



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 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,

[[Page 487]]

or imprisoned not more than 5 years, or both.



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 archaeological 
resource.
    (3) No permit shall be required under this part or under section 3 
of the Act of June 8, 1906 (16 U.S.C. 432), for the 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.
    (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

[[Page 488]]

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 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.

[[Page 489]]



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 determines that a permit applied 
for under this part must be issued immediately because of an imminent 
threat of loss or destruction of an archaeological resource, the Federal 
land manager shall so notify the appropriate tribe.
    (b)(1) In order to identify sites of religious or cultural 
importance, the Federal land manager shall seek to identify all Indian 
tribes having aboriginal or historic ties to the lands under the Federal 
land manager's jurisdiction and seek to determine, from the chief 
executive officer or other designated official of any such tribe, the 
location 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.
    (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 
manager immediately upon the occurrence of such circumstances. Following 
the permittee's notification, the Federal land manager will notify and 
consult with the tribe or group as appropriate. In cases involving 
Native American human remains and other ``cultural items'', as defined 
by NAGPRA, the Federal land manager is referred to NAGPRA and its 
implementing



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:

[[Page 490]]

    (1) The applicant is appropriately qualified, as evidenced by 
training, education, and/or experience, and possesses demonstrable 
competence in archaeological theory and methods, and in collecting, 
handling, analyzing, evaluating, and reporting archaeological data, 
relative to the type and scope of the work proposed, and also meets the 
following minimum qualifications:
    (i) A graduate degree in anthropology or archaeology, or equivalent 
training and experience;
    (ii) The demonstrated ability to plan, equip, staff, organize, and 
supervise activity of the type and scope proposed;
    (iii) The demonstrated ability to carry research to completion, as 
evidenced by timely completion of theses, research reports, or similar 
documents;
    (iv) Completion of at least 16 months of professional experience 
and/or specialized training in archaeological field, laboratory, or 
library research, administration, or management, including at least 4 
months experience and/or specialized training in the kind of activity 
the individual proposes to conduct under authority of a permit; and
    (v) Applicants proposing to engage in historical archaeology should 
have had at least one year of experience in research concerning 
archaeological resources of the historic period. Applicants proposing to 
engage in prehistoric archaeology should have had at least one year of 
experience in research concerning archaeological resources of the 
prehistoric period.
    (2) The proposed work is to be undertaken for the purpose of 
furthering archaeological knowledge in the public interest, which may 
include but need not be limited to, scientific or scholarly research, 
and preservation of archaeological data;
    (3) The proposed work, including time, scope, location, and purpose, 
is not inconsistent with any management plan or established policy, 
objectives, or requirements applicable to the management of the public 
lands concerned;
    (4) Where the proposed work consists of archaeological survey and/or 
data recovery undertaken in accordance with other approved uses of the 
public lands or Indian lands, and the proposed work 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 (a) (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 will be delivered to the appropriate official of the approved 
university, museum, or other scientific or educational institution, 
which shall be named in the permit:
    (i) All artifacts, samples, collections, and copies of records, 
data, photographs, and other documents resulting from work conducted 
under the requested permit where the permit is for the excavation and/or 
removal of archaeological resources from public lands.
    (ii) All artifacts, samples and collections resulting from work 
under the requested permit for which the custody or disposition is not 
undertaken by the Indian owners, and copies of records, data, 
photographs, and other documents resulting from work conducted under the 
requested permit, where the permit is for the excavation and/or removal 
of archaeological resources from Indian lands.
    (b) When the area of the proposed work would cross jurisdictional 
boundaries, so that permit applications must be submitted to more than 
one Federal land manager, the Federal land manager shall coordinate the 
review and evaluation of applications and the issuance of permits.

[[Page 491]]



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 institutions in which any collected materials and data shall 
be deposited; and
    (4) Reporting requirements.
    (b) The Federal land manager may specify such terms and conditions 
as deemed necessary, consistent with this part, to protect public safety 
and other values and/or resources, to secure work areas, to safeguard 
other legitimate land uses, and to limit activities incidental to work 
authorized under a permit.
    (c) The Federal land manager shall include in permits issued for 
archaeological work on Indian lands such terms and conditions as may be 
requested by the Indian landowner and the Indian tribe having 
jurisdiction over the lands, and for archaeological work on public lands 
shall include such terms and conditions as may have been developed 
pursuant to 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 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.



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.

[[Page 492]]



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.



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 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.

[[Page 493]]

    (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 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;

[[Page 494]]

    (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 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

[[Page 495]]

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.



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 land manager 
may certify to the Secretary of the Treasury that a person is eligible 
to receive payment. Officers and employees of Federal, State, or local 
government who furnish information or render service in the performance 
of their official duties, and persons who have provided information 
under 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;

[[Page 496]]

    (ii) The purpose for which the information is sought; and
    (iii) The Governor's written commitment to adequately protect the 
confidentiality of the information.
    (b) [Reserved]



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.



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.



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 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

[[Page 497]]

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.



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.



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

[[Page 498]]

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 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

[[Page 499]]

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.



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

[[Page 500]]

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.
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    \1\ Copies may be obtained via Internet at http://www.dtic.whs/
directives.
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    (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 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).
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    (8) Provide procedural guidance to DoD Components, as required.

[[Page 501]]

    (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.
    (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

[[Page 502]]

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\
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    \3\ See footnote 1 to Sec. 231.1(a).
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    (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.
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    \4\ See footnote 1 to Sec. 231.1(a).
    \5\ See footnote 1 to Sec. 231.1(a).
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    (f) The Commanders of the Combatant Commands (or designees) shall:
    (1) Ensure the appropriate coordination of the following types of 
requests affecting financial institutions overseas.
    (i) Establish financial institutions in countries not presently 
served. Such requests will include a statement that the requirement has 
been coordinated with the U.S. Chief of Diplomatic Mission or U.S. 
Embassy and that the host country will permit the operation.
    (ii) Eliminate any or all financial institutions on DoD 
installations within a foreign country. Such requests will include a 
statement that the U.S. Chief of Diplomatic Mission has been informed 
and that appropriate arrangements to coordinate local termination 
announcements and procedures have been made with the U.S. Embassy.
    (2) Monitor and coordinate military banking operations within the 
command area. Personnel assigned to security assistance positions will 
not perform this function without the prior approval of the Director, 
Defense Security Cooperation Agency (DSCA).
    (g) The Commanders of Major Commands and subordinate installation 
commanders shall:
    (1) Monitor the banking and credit union program within their 
commands.
    (2) Coordinate requests to establish or construct bank and credit 
union offices or terminate logistical support as specified in this part 
to banks and credit unions within their commands. Personnel assigned to 
overseas security assistance positions will not monitor, coordinate, or 
assist in military banking operations without the prior approval of the 
DSCA.
    (3) Assign, as appropriate, responsibility for paragraphs (g)(1) and 
(g)(2) of this section, to comptroller or resource management personnel.
    (4) Cooperate with financial institution associations, leagues, and 
councils.
    (5) Recognize the right of all DoD personnel to organize and join 
credit unions and promote the credit union movement in DoD worldwide.
    (6) Permit DoD personnel to serve on volunteer boards or committees 
of on-base financial institutions, without compensation, when neither a 
conflict of duty nor a conflict of interest is involved, in accordance 
with DoD Directive 5500.7.
    (7) Allow DoD personnel to attend conferences and meetings that 
bring together representatives of on-base financial institutions, when 
neither a conflict of duty nor a conflict of interest is involved, in 
accordance with DoD Directive 1327.5, Subchapter 630 of the DoD Civilian 
Personnel Manual (DoD 1400.25-M), and Comptroller General Decision B-
212457.
    (8) Seek the provision of financial services only from existing on-
base financial institutions, proposing alternatives only where on-base 
financial institutions fail to respond favorably to a valid requirement.



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

[[Page 503]]

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.
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    \6\ See footnote 1 to Sec. 231.1(a).
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    (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 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

[[Page 504]]

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).
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    (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 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

[[Page 505]]

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.
    (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).
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    (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.

[[Page 506]]

    (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 uncollectible 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.
    (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

[[Page 507]]

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 
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,

[[Page 508]]

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 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

[[Page 509]]

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 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

[[Page 510]]

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 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.

[[Page 511]]

    (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.
    (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).

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

[[Page 512]]

    (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.
    (4) Assist, when requested by the banking office manager or the 
installation commander, in locating and collecting from individuals 
tendering uncollectible 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

[[Page 513]]

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.
    (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.

[[Page 514]]

    (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.
    (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.

[[Page 515]]

    (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 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\
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    \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

[[Page 516]]

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 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

[[Page 517]]

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 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

[[Page 518]]

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) 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)

[[Page 519]]

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 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

[[Page 520]]

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 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

[[Page 521]]

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.
    (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)

[[Page 522]]

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 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.

[[Page 523]]

    (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 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

[[Page 524]]

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, 
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.

[[Page 525]]

    (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 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.

[[Page 526]]

    (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.
    (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.

[[Page 527]]

    (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 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

[[Page 528]]

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), 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

[[Page 529]]

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 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.



         Sec. 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,

[[Page 530]]

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 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.

[[Page 531]]

    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 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



              Sec. 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.

[[Page 532]]

    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).



Sec. 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.



PART 232_LIMITATIONS ON TERMS OF CONSUMER CREDIT EXTENDED TO SERVICE
MEMBERS AND DEPENDENTS--Table of Contents



Sec.
232.1 Authority, purpose, and coverage.
232.2 Applicability.
232.3 Definitions.
232.4 Terms of consumer credit extended to covered borrowers.
232.5 Identification of covered borrower.
232.6 Mandatory loan disclosures.
232.7 Preemption.
232.8 Limitations.
232.9 Penalties and remedies.
232.10 Servicemembers Civil Relief Act protections unaffected.
232.11 Effective date and transition

    Authority: 10 U.S.C. 987.

    Source: 72 FR 50591, August 31, 2007, unless otherwise noted.



Sec. 232.1  Authority, purpose, and coverage.

    (a) Authority. This part is issued by the Department of Defense to 
implement 10 U.S.C. 987.
    (b) Purpose. The purpose of this part is to impose limitations on 
the cost and terms of certain defined extensions of consumer credit to 
Service members and their dependents, and to provide additional consumer 
disclosures for such transactions.
    (c) Coverage. This part defines the types of consumer credit 
transactions, creditors, and borrowers covered by the regulation, 
consistent with the provisions of 10 U.S.C. 987. In addition, the 
regulation:
    (1) Provides the maximum allowable amount of all charges, and the 
types of charges, that may be associated with a covered extension of 
consumer credit;
    (2) Requires creditors to disclose to covered borrowers the cost of 
the transaction as a total dollar amount and as an annualized percentage 
rate referred to as the Military Annual Percentage Rate or MAPR, which 
must be disclosed before the borrower becomes obligated on the 
transaction. The disclosures required by this regulation differ from and 
are in addition to the

[[Page 533]]

disclosures that must be provided to consumers under the Federal Truth 
in Lending Act;
    (3) Provides for the method creditors shall use in calculating the 
MAPR, and;
    (4) Contains such other criteria and limitations as the Secretary of 
Defense has determined appropriate, consistent with the provisions of 10 
U.S.C. 987.



Sec. 232.2  Applicability.

    This part applies to consumer credit extended by creditors to a 
covered borrower, as those terms are defined in this part.



Sec. 232.3  Definitions.

    Terms used in this part are defined as follows:
    (a) Closed-end credit means consumer credit other than ``open-end 
credit'' as that term is defined in Regulation Z (Truth in Lending), 12 
CFR part 226.
    (b) Consumer credit means closed-end credit offered or extended to a 
covered borrower primarily for personal, family or household purposes, 
as described in paragraph (b)(1) of this section.
    (1) Except as provided in paragraph (b)(2) of this section, consumer 
credit means the following transactions:
    (i) Payday loans. Closed-end credit with a term of 91 days or fewer 
in which the amount financed does not exceed $2,000 and the covered 
borrower:
    (A) Receives funds from and incurs interest and/or is charged a fee 
by a creditor, and contemporaneously with the receipt of funds, provides 
a check or other payment instrument to the creditor who agrees with the 
covered borrower not to deposit or present the check or payment 
instrument for more than one day, or;
    (B) Receives funds from and incurs interest and/or is charged a fee 
by a creditor, and contemporaneously with the receipt of funds, 
authorizes the creditor to initiate a debit or debits to the covered 
borrower's deposit account (by electronic fund transfer or remotely 
created check) after one or more days. This provision does not apply to 
any right of a depository institution under statute or common law to 
offset indebtedness against funds on deposit in the event of the covered 
borrower's delinquency or default.
    (ii) Vehicle title loans. Closed-end credit with a term of 181 days 
or fewer that is secured by the title to a motor vehicle, that has been 
registered for use on public roads and owned by a covered borrower, 
other than a purchase money transaction described in paragraph 
(b)(2)(ii) of this section.
    (iii) Tax refund anticipation loans. Closed-end credit in which the 
covered borrower expressly grants the creditor the right to receive all 
or part of the borrower's income tax refund or expressly agrees to repay 
the loan with the proceeds of the borrower's refund.
    (2) For purposes of this part, consumer credit does not mean:
    (i) Residential mortgages, which are any credit transactions secured 
by an interest in the covered borrower's dwelling, including 
transactions to finance the purchase or initial construction of a 
dwelling, refinance transactions, home equity loans or lines of credit, 
and reverse mortgages;
    (ii) Any credit transaction to finance the purchase or lease of a 
motor vehicle when the credit is secured by the vehicle being purchased 
or leased;
    (iii) Any credit transaction to finance the purchase of personal 
property when the credit is secured by the property being purchased;
    (iv) Credit secured by a qualified retirement account as defined in 
the Internal Revenue Code; and
    (v) Any other credit transaction that is not consumer credit 
extended by a creditor, is an exempt transaction, or is not otherwise 
subject to disclosure requirements for purposes of Regulation Z (Truth 
in Lending), 12 CFR part 226.
    (c) Covered borrower means a person with the following status at the 
time he or she becomes obligated on a consumer credit transaction 
covered by this part:
    (1) A regular or reserve member of the Army, Navy, Marine Corps, Air 
Force, or Coast Guard, serving on active duty under a call or order that 
does not specify a period of 30 days or fewer, or such a member serving 
on Active Guard and Reserve duty as that term is defined in 10 U.S.C. 
101(d)(6), or
    (2) The member's spouse, the member's child defined in 38 U.S.C. 
101(4), or an individual for whom the member

[[Page 534]]

provided more than one-half of the individual's support for 180 days 
immediately preceding an extension of consumer credit covered by this 
part.
    (d) Credit means the right granted by a creditor to a debtor to 
defer payment of debt or to incur debt and defer its payment.
    (e) Creditor means a person who is engaged in the business of 
extending consumer credit with respect to a consumer credit transaction 
covered by this part. For the purposes of this section, ``person'' 
includes a natural person, organization, corporation, partnership, 
proprietorship, association, cooperation, estate, trust, and any other 
business entity and who otherwise meets the definition of ``creditor'' 
for purposes of Regulation Z.
    (f) Dwelling means a residential structure that contains one to four 
units, whether or not the structure is attached to real property. The 
term includes an individual condominium unit, cooperative unit, mobile 
home, and manufactured home.
    (g) Electronic fund transfer (EFT) has the same meaning for purposes 
of this part as in Regulation E (Electronic Fund Transfers) issued by 
the Board of Governors of the Federal Reserve System, 12 CFR part 205.
    (h) Military annual percentage rate (MAPR). The MAPR is the cost of 
the consumer credit transaction expressed as an annual rate. The MAPR 
shall be calculated based on the costs in this definition but in all 
other respects it shall be calculated and disclosed following the rules 
used for calculating the Annual Percentage Rate (APR) for closed-end 
credit transactions under Regulation Z (Truth in Lending), 12 CFR part 
226.
    (1) The MAPR includes the following cost elements associated with 
the extension of consumer credit to a covered borrower if they are 
financed, deducted from the proceeds of the consumer credit, or 
otherwise required to be paid as a condition of the credit:
    (i) Interest, fees, credit service charges, credit renewal charges;
    (ii) Credit insurance premiums including charges for single premium 
credit insurance, fees for debt cancellation or debt suspension 
agreements; and
    (iii) Fees for credit-related ancillary products sold in connection 
with and either at or before consummation of the credit transaction.
    (2) The MAPR does not include:
    (i) Fees or charges imposed for actual unanticipated late payments, 
default, delinquency, or similar occurrence;
    (ii) Taxes or fees prescribed by law that actually are or will be 
paid to public officials for determining the existence of, or for 
perfecting, releasing, or satisfying a security interest;
    (iii) Any tax levied on security instruments or documents evidencing 
indebtedness if the payment of such taxes is a requirement for recording 
the instrument securing the evidence of indebtedness; and
    (iv) Tax return preparation fees associated with a tax refund 
anticipation loan, whether or not the fees are deducted from the loan 
proceeds.
    (i) Regulation Z means any of the rules, regulations, or 
interpretations thereof, issued by the Board of Governors of the Federal 
Reserve System to implement the Truth in Lending Act, as amended, from 
time to time, including any interpretation or approval issued by an 
official or employee duly authorized by the Board of Governors of the 
Federal Reserve System to issue such interpretations or approvals. Words 
that are not defined in this regulation have the meanings given to them 
in Regulation Z (12 CFR part 226) issued by the Board of Governors of 
the Federal Reserve System (the ``Board''), as amended from time to 
time, including any interpretation thereof by the Board or an official 
or employee of the Federal Reserve System duly authorized by the Board 
to issue such interpretations. Words that are not defined in this 
regulation or Regulation Z, or any interpretation thereof, have the 
meanings given to them by State or Federal law, or contract.



Sec. 232.4  Terms of consumer credit extended to covered borrowers.

    (a) Neither a creditor who extends consumer credit to a covered 
borrower nor an assignee of the creditor shall require the member or 
dependent to pay a military annual percentage rate (MAPR) with respect 
to such extension of credit, except as--

[[Page 535]]

    (1) Agreed to under the terms of the credit agreement or promissory 
note;
    (2) Authorized by applicable State or Federal law; and
    (3) Not specifically prohibited by this part.
    (b) A creditor described in paragraph (a) of this section or an 
assignee may not impose an MAPR greater than 36 percent in connection 
with an extension of consumer credit to a covered borrower.



Sec. 232.5  Identification of covered borrower.

    (a) This part shall not apply to a consumer credit transaction if 
the conditions described in paragraphs (a)(1) and (a)(2) of this section 
are met:
    (1) Prior to becoming obligated on the transaction, each applicant 
is provided with a clear and conspicuous ``covered borrower 
identification statement'' substantially similar to the following 
statement and each applicant signs the statement indicating that he or 
she is or is not a covered borrower:

Federal law provides important protections to active duty members of the 
Armed Forces and their dependents. To ensure that these protections are 
provided to eligible applicants, we require you to sign one of the 
following statements as applicable:
I AM a regular or reserve member of the Army, Navy, Marine Corps, Air 
Force, or Coast Guard, serving on active duty under a call or order that 
does not specify a period of 30 days or fewer.
________________________________________________________________________

I AM a dependent of a member of the Armed Forces on active duty as 
described above, because I am the member's spouse, the member's child 
under the age of eighteen years old, or I am an individual for whom the 
member provided more than one-half of my financial support for 180 days 
immediately preceding today's date.
________________________________________________________________________

--OR--

I AM NOT a regular or reserve member of the Army, Navy, Marine Corps, 
Air Force, or Coast Guard, serving on active duty under a call or order 
that does not specify a period of 30 days or fewer (or a dependent of 
such a member).
________________________________________________________________________

Warning: It is important to fill out this form accurately. Knowingly 
making a false statement on a credit application is a crime

    (2) The creditor has not determined, pursuant to the optional 
verification procedures in paragraphs (b) or (c) of this section, that 
any such applicant is a covered borrower.
    (b) The creditor may, but is not required to, verify the status of 
an applicant as a covered borrower by requesting the applicant to 
provide a current (previous month) military leave and earning statement, 
or a military identification card (DD Form 2 for members, DD Form 1173 
for dependents), as described in DoD Instruction 1003.1, Identification 
(ID) Cards for Members of the Uniformed Services, Their Dependents, and 
Other Eligible Individuals, December 5, 1997. Upon such request, 
activated members of the National Guard or Reserves shall also provide a 
copy of the military orders calling the covered member to military 
service and any orders further extending military service.
    (c) The creditor may, but is not required to, verify the status of 
an applicant as a covered borrower by accessing the information 
available at http://www.dmdc.osd.mil/mla/owa/home. Searches require the 
service member's full name, Social Security number, and date of birth.
    (d) This part shall not apply to a consumer credit transaction in 
which the creditor rolls over, renews, repays, refinances, or 
consolidates consumer credit in accordance with Sec. 232.8(a)(1) if 
Sec. 232.5(a)(1) and Sec. 232.5(a)(2) applied to the previous 
transaction.



Sec. 232.6  Mandatory loan disclosures.

    (a) Required information. With respect to any extension of consumer 
credit (including any consumer credit originated or extended through the 
internet) to a covered borrower, a creditor shall provide to the member 
or dependent the following information clearly and conspicuously before 
consummation of the consumer credit transaction:
    (1) The MAPR applicable to the extension of consumer credit, and the 
total dollar amount of all charges included in the MAPR.
    (2) Any disclosures required by Regulation Z (Truth in Lending), 12 
CFR part 226.

[[Page 536]]

    (3) A clear description of the payment obligation of the covered 
borrower, as applicable. A payment schedule provided pursuant to 
paragraph (a)(2) of this section satisfies this requirement.
    (4) A statement that ``Federal law provides important protections to 
regular or reserve members of the Army, Navy, Marine Corps, Air Force, 
or Coast Guard, serving on active duty under a call or order that does 
not specify a period of 30 days or fewer, and their dependents. Members 
of the Armed Forces and their dependents may be able to obtain financial 
assistance from Army Emergency Relief, Navy and Marine Corps Relief 
Society, the Air Force Aid Society, or Coast Guard Mutual Aid. Members 
of the Armed Forces and their dependents may request free legal advice 
regarding an application for credit from a service legal assistance 
office or financial counseling from a consumer credit counselor.''
    (b) Method of disclosure. (1) Written disclosures. The creditor 
shall provide the disclosures required by paragraph (a) in writing in a 
form the covered borrower can keep.
    (2) Oral disclosures. The creditor also shall provide the 
disclosures required by paragraphs (a)(1), (a)(3) and (a)(4) of this 
section orally before consummation. In mail and internet transactions, 
the creditor satisfies this requirement if it provides a toll-free 
telephone number on or with the written disclosures that consumers may 
use to obtain oral disclosures and the creditor provides oral 
disclosures when the covered borrower contacts the creditor for this 
purpose.
    (c) When disclosures are required for refinancing or renewal of 
covered loan. The refinancing or renewal of a covered loan requires new 
disclosures under Sec. 232.6 only when the transaction would be 
considered a new transaction that requires disclosures under the Truth 
in Lending Act, as implemented by the Federal Reserve Board's Regulation 
Z, 12 CFR part 226.



Sec. 232.7  Preemption.

    (a) Inconsistent laws. 10 U.S.C. 987 as implemented by this part 
preempts any State or Federal law, rule or regulation, including any 
State usury law, to the extent such law, rule or regulation is 
inconsistent with this part, except that any such law, rule or 
regulation is not preempted by this part to the extent that it provides 
protection to a covered borrower greater than those protections provided 
by 10 U.S.C. 987 and this part.
    (b) Different treatment under State law of covered borrowers is 
prohibited. States may not:
    (1) Authorize creditors to charge covered borrowers rates of 
interest that are higher than the legal limit for residents of the 
State, or
    (2) Permit the violation or waiver of any State consumer lending 
protection that is for the benefit of residents of the State on the 
basis of the covered borrower's nonresident or military status, 
regardless of the covered borrower's domicile or permanent home of 
record, provided that the protection would otherwise apply to the 
covered borrower.



Sec. 232.8  Limitations.

    (a) 10 U.S.C. 987 makes it unlawful for any creditor to extend 
consumer credit to a covered borrower with respect to which:
    (1) The creditor rolls over, renews, repays, refinances, or 
consolidates any consumer credit extended to the covered borrower by the 
same creditor with the proceeds of other consumer credit extended by 
that creditor to the same covered borrower, unless the new transaction 
results in more favorable terms to the covered borrower, such as a lower 
MAPR. This part shall not apply to a transaction permitted by this 
paragraph when the same creditor extends consumer credit to a covered 
borrower to refinance or renew an extension of credit that was not 
covered by this part because the consumer was not a covered borrower at 
the time of the original transaction.
    (2) The covered borrower is required to waive the covered borrower's 
right to legal recourse under any otherwise applicable provision of 
State or Federal law, including any provision of the Servicemembers 
Civil Relief Act (50 U.S.C. App. 10 U.S.C. 527 et seq.).
    (3) The creditor requires the covered borrower to submit to 
arbitration or

[[Page 537]]

imposes other onerous legal notice provisions in the case of a dispute.
    (4) The creditor demands unreasonable notice from the covered 
borrower as a condition for legal action.
    (5) The creditor uses a check or other method of access to a 
deposit, savings, or other financial account maintained by the covered 
borrower, except that, in connection with a consumer credit transaction 
with an MAPR consistent with Sec. 232.4(b):
    (i) The creditor may require an electronic fund transfer to repay a 
consumer credit transaction, unless otherwise prohibited by Regulation E 
(Electronic Fund Transfers) 12 CFR part 205;
    (ii) The creditor may require direct deposit of the consumer's 
salary as a condition of eligibility for consumer credit, unless 
otherwise prohibited by law; or
    (iii) The creditor may, if not otherwise prohibited by applicable 
law, take a security interest in funds deposited after the extension of 
credit in an account established in connection with the consumer credit 
transaction.
    (6) The creditor requires as a condition for the extension of 
consumer credit that the covered borrower establish an allotment to 
repay the obligation.
    (7) The covered borrower is prohibited from prepaying the consumer 
credit or is charged a penalty fee for prepaying all or part of the 
consumer credit.
    (b) For purposes of this section, an assignee may not engage in any 
transaction or take any action that would be prohibited for the 
creditor.



Sec. 232.9  Penalties and remedies.

    (a) Misdemeanor. A creditor or assignee who knowingly violates 10 
U.S.C. 987 as implemented by this part shall be fined as provided in 
title 18, United States Code, or imprisoned for not more than one year, 
or both.
    (b) Preservation of other remedies. The remedies and rights provided 
under 10 U.S.C. 987 as implemented by this part are in addition to and 
do not preclude any remedy otherwise available under State or Federal 
law or regulation to the person claiming relief under the statute, 
including any award for consequential damages and punitive damages.
    (c) Contract void. Any credit agreement, promissory note, or other 
contract with a covered borrower that fails to comply with 10 U.S.C. 987 
as implemented by this regulation or which contains one or more 
provisions prohibited under 10 U.S.C. 987 as implemented by this 
regulation is void from the inception of the contract.
    (d) Arbitration. Notwithstanding 9 U.S.C. 2, or any other Federal or 
State law, rule, or regulation, no agreement to arbitrate any dispute 
involving the extension of consumer credit to a covered borrower 
pursuant to this part shall be enforceable against any covered borrower, 
or any person who was a covered borrower when the agreement was made.



Sec. 232.10  Servicemembers Civil Relief Act protections unaffected.

    Nothing in this part may be construed to limit or otherwise affect 
the applicability of Section 207 and any other provisions of the 
Servicemembers Civil Relief Act (50 U.S.C. App. 527).



Sec. 232.11  Effective date and transition.

    Applicable consumer credit--This part shall only apply to consumer 
credit that is extended to a covered borrower and consummated on or 
after October 1, 2007.



PART 233_FEDERAL VOTING ASSISTANCE PROGRAM (FVAP)--Table of Contents



Sec.
233.1 Purpose
233.2 Applicability
233.3 Definitions
233.4 Policy
233.5 Responsibilities
233.6 Procedures

    Authority: EO 12642; 10 U.S.C. 1566a; 42 U.S.C 1973gg-5; 42 U.S.C. 
1973ff--1973ff-6

    Source: 77 FR 57487, Sept. 18, 2012, unless otherwise noted.



Sec. 233.1  Purpose.

    This part:
    (a) Establishes policy and assigns responsibilities for the FVAP in 
accordance with Executive Order 12642 and the Uniformed and Overseas 
Citizens

[[Page 538]]

Absentee Voting Act (UOCAVA), 42 U.S.C. 1973ff-1973ff-6.
    (b) Establishes policy and assigns responsibilities for the 
development and implementation of installation voter assistance (IVA) 
offices in accordance with 10 U.S.C. 1566a.
    (c) Establishes policy and assigns responsibilities for the 
development and implementation, jointly with each State, of procedures 
for persons to apply to register to vote at recruitment offices of the 
Military Services in accordance with 42 U.S.C. 1973gg-5.



Sec. 233.2  Applicability.

    This part applies to:
    (a) The Office of the Secretary of Defense, the Military Departments 
(including the Coast Guard at all times, including when it is a Service 
in the Department of Homeland Security by agreement with that 
Department), the Office of the Chairman of the Joint Chiefs of Staff and 
the Joint Staff, the Combatant Commands, the Office of the Inspector 
General of the Department of Defense (IG DoD), the Defense Agencies, the 
DoD Field Activities, and all other organizational entities within the 
DoD (hereinafter referred to collectively as the ``DoD Components'').
    (b) The Commissioned Corps of the Public Health Service (PHS), under 
agreement with the Department of Health and Human Services, and the 
Commissioned Corps of the National Oceanic and Atmospheric 
Administration (NOAA), under agreement with the Department of Commerce. 
The term ``uniformed services'' refers to the Army, the Navy, the Air 
Force, the Marine Corps, the Coast Guard, and their Reserve Components, 
as well as the Commissioned Corps of the PHS and the NOAA.
    (c) Other Federal Executive departments and agencies with employees 
assigned outside the United States that provide assistance to the FVAP 
under 42 U.S.C. 1973ff(c). Recommended procedures for these departments 
and agencies are contained in Sec. 233.6(c) of this part.



Sec. 233.3  Definitions.

    Terms used in this part are defined in Joint Publication 1-02 
(available at http://www.dtic.mil/doctrine/dod_dictionary/) and this 
section. These terms and their definitions are for the purpose of this 
part.
    Eligible voter. Any of the following:
    (1) Absent uniformed services voter:
    (i) A member of a uniformed service on active duty who, by reason of 
such active duty, is absent from the place of residence where the member 
is otherwise qualified to vote.
    (ii) A member of the merchant marine who, by reason of service in 
the merchant marine, is absent from the place of residence where the 
member is otherwise qualified to vote.
    (iii) A spouse or dependent of a member referred to in the first two 
sentences of this definition who, by reason of the active duty or 
service of the member, is absent from the place of residence where the 
spouse or dependent is otherwise qualified to vote.
    (2) Overseas voter:
    (i) An absent uniformed services voter who, by reason of active duty 
or service, is absent from the United States on the date of the election 
involved;
    (ii) A person who resides outside of the United States and is 
qualified to vote in the last place in which the person was domiciled 
before leaving the United States; or
    (iii) A person who resides outside of the United States and (but for 
such residence) would be qualified to vote in the last place in which 
the person was domiciled before leaving the United States.
    Federal office. The offices of President or Vice President; 
Presidential Elector; or of Senator or Representative in; or Delegate or 
Resident Commissioner to Congress.
    Installation voter assistance (IVA) offices. The office designated 
by the installation commander to provide voter assistance to military 
personnel, voting-age military dependents, Government employees, 
contractors, and other civilian U.S. citizens with access to the 
installation. IVA offices also serve as voter registration agencies 
pursuant to 42 U.S.C. 1973gg-5(a)(2).
    Installation voter assistance officer (IVAO). An individual 
responsible for voting assistance coordination at the installation 
level.

[[Page 539]]

    Metrics. A systematic means of measuring essential management 
information for reporting, control, and process improvement.
    Recruitment offices of the Military Services. Any office of a 
military service open to the public and engaged in the recruitment of 
persons for appointment or enlistment in an Active Component of the 
Military Services. This does not include Army National Guard and Air 
National Guard recruiting offices.
    Senior service voting representative (SSVR). A uniformed member at 
the 0-7 grade, or higher, or a member of the Senior Executive Service 
responsible for implementing the FVAP in his or her respective 
component.
    Service voting action officer (SVAO). An individual at a uniformed 
service headquarters level responsible for voting assistance operations 
for his or her respective component.
    State. As defined in 42 U.S.C. 1973ff-6.
    State election. Any non-Federal election held solely, or in part, 
for selecting, nominating, or electing any candidate for any State 
office, such as Governor, Lieutenant Governor, State Attorney General, 
or State Legislator, or on issues of Statewide interest.
    Uniformed services. As defined in 42 U.S.C. 1973ff-6(7).
    Unit voting assistance officer (UVAO). An individual responsible for 
voting assistance at the unit level.
    Voter registration agency. An office designated pursuant to 42 
U.S.C. 1973gg-5 to perform voter registration activities. Pursuant to 42 
U.S.C. 1973gg-5(c), a recruitment office of the Military Services is 
considered to be a voter registration agency. All IVA offices are also 
designated as voter registration agencies pursuant to 42 U.S.C. 1973gg-
5(a)(2).



Sec. 233.4  Policy.

    It is DoD policy that:
    (a) The FVAP shall ensure that eligible voters receive, pursuant to 
42 U.S.C. 1973ff(b)(5), information about registration and voting 
procedures and materials pertaining to scheduled elections, including 
dates, offices, constitutional amendments, and other ballot proposals.
    (b) The right of U.S. citizens to vote is a fundamental right that 
is afforded protection by the U.S. Constitution. Every eligible voter 
shall:
    (1) Be given an opportunity to register and vote in any election for 
which he or she is eligible.
    (2) Be able to vote in person or by absentee.
    (c) All persons assisting in the voting process shall take all 
necessary steps to prevent discrimination, fraud, intimidation or 
coercion, and unfair registration and voting assistance procedures. This 
includes, but is not limited to, preventing actions such as:
    (1) Using military authority to influence the vote of any other 
member of the uniformed services or to require any member to march to 
any polling place or place of voting as proscribed by 18 U.S.C. 592, 18 
U.S.C. 593, and 18 U.S.C. 609. This subsection does not, in any way, 
prohibit free discussion about political issues or candidates for public 
office as stated in 18 U.S.C. 609.
    (2) Polling any member of the uniformed services before or after he 
or she votes, as proscribed in 18 U.S.C. 596.
    (d) The FVAP shall conduct official surveys authorized by 42 U.S.C. 
1973ff to report to the President and the Congress on the effectiveness 
of the assistance provided to eligible voters (including a separate 
statistical analysis of voter participation and a description of 
Federal-State cooperation).
    (e) DoD personnel involved in assisting in the voter registration or 
absentee voting process shall use the names of persons applying or 
declining to register to vote only for voter registration purposes and 
shall not release such information for any other purpose.
    (f) Military or civilian personnel employed in recruitment offices 
of the Military Services shall be subject to the restrictions outlined 
in Sec. 233.6(b) of this part.
    (g) An installation commander may permit non-partisan voter 
registration activities on an installation by State and county 
officials, or groups recognized in accordance with section 501(c)(19) of 
the Internal Revenue Code, subject to all applicable military 
installation rules and regulations governing such activities on military 
installations.

[[Page 540]]



Sec. 233.5  Responsibilities.

    (a) The Under Secretary of Defense for Personnel and Readiness 
(USD(P&R)) shall:
    (1) Execute the responsibilities of the Presidential designee in 
accordance with DoD Directive 5124.02 (available at http://www.dtic.mil/
whs/directives/corres/pdf/512402p.pdf).
    (2) Administer the FVAP in accordance with Executive Order 12642, 10 
U.S.C. 1566a, 42 U.S.C. 1973gg-5, and 42 U.S.C. 1973ff--1973ff-6.
    (3) Coordinate and implement actions that may be necessary to 
discharge Federal responsibilities assigned in DoD Directive 5124.02, 
Executive Order 12642, 10 U.S.C. 1566, 42 U.S.C. 1973gg-5, 42 U.S.C. 
1973ff--1973ff-6, Section 1604 of Public Law 107-107, ``The National 
Defense Authorization Act for Fiscal Year 2002,'' and Section 567 of 
Public Law 108-375, ``The National Defense Authorization Act for Fiscal 
Year 2005''.
    (4) Develop policy and procedures to implement DoD responsibilities 
under 42 U.S.C. 1973gg-5 (also known as the ``National Voter 
Registration Act (NVRA)'').
    (5) Grant or deny any hardship exemption waivers submitted by a 
State pursuant to 42 U.S.C. 1973ff-1(g) (after consultation with the 
Attorney General's designee) and inform the State of the results of the 
waiver request.
    (6) Ensure that the Director, Department of Defense Human Resources 
Activity (DoDHRA) designates a civilian Director of the FVAP, who shall 
be responsible for all aspects of the FVAP, and shall have the necessary 
authority to administer that responsibility, as described in Sec. 
233.6(a) of this part.
    (b) The Director, DoDHRA, under the authority, direction, and 
control of the USD(P&R), shall:
    (1) In coordination with the USD(P&R), designate an office by name 
for the execution of the FVAP.
    (2) Ensure that the Director, FVAP carries out the responsibilities 
identified in Procedures.
    (c) The IG DoD, in addition to the responsibilities in paragraph (d) 
of this section, shall:
    (1) Provide to Congress an independent analysis of and report on the 
utilization and effectiveness of voting assistance programs, and the 
level of compliance with voting assistance programs of the Military 
Departments, in accordance with 10 U.S.C. 1566.
    (2) Provide the Director, FVAP, along with the respective senior 
service representative, with copies of supporting data collected during 
the reviews and analyses conducted under paragraphs (b)(1) and (2) of 
this section.
    (d) The Chief, National Guard Bureau, in addition to the 
responsibilities in paragraph (d) of this section shall:
    (1) Designate in writing a uniformed officer or a civilian employee 
of the appropriate grade as the SSVR to manage the voting assistance 
program within the National Guard.
    (2) Designate a SVAO, preferably a civilian employee (GS-12 or 
higher), to assist the SSVR and who shall be responsible for voting 
assistance operations within the National Guard.
    (3) The Adjutants General of the National Guard of the States and 
Territories shall inform the State or territory chief election official 
when National Guard units are mobilized or placed in a Federal status.
    (e) The Heads of the DoD Components and the Uniformed Services shall 
disseminate voting information and assist eligible voters, as required, 
in their respective organization, following the procedures in Sec. 
233.6(b) of this part.
    (f) The Combatant Commanders, in addition to the responsibilities in 
paragraph (d) of this section, shall:
    (1) Ensure that deployed forces have access to Federal voting 
information and assistance, particularly in remote locations. To the 
extent practicable, provide uniformed services members under their 
command with access to computers with Internet capability and other 
necessary resources including, but not limited to, printers and scanners 
for absentee voting purposes.
    (2) Emphasize, within the operational chain of command, the 
importance that they and the DoD attach to participation by uniformed 
service members in the Federal, State, and local election process and 
make every reasonable effort to assist the Military Services in 
discharging the responsibilities outlined elsewhere in this part.

[[Page 541]]



Sec. 233.6  Procedures.

    (a) FVAP Procedures. The Director, FVAP, shall:
    (1) Manage, coordinate, and perform the Presidential designee's 
responsibilities pursuant to 42 U.S.C. 1973ff.
    (3) Encourage and assist States and other U.S. jurisdictions to 
adopt the mandatory and recommended provisions of 42 U.S.C. 1973ff-1 and 
ensure they are aware of the requirements of 42 U.S.C. 1973ff.
    (4) Establish and maintain contact with State election officials, 
State legislators, and with other State and local government officials 
to improve the absentee voting process for the Uniformed and Overseas 
Citizens Absentee Voting Act (UOCAVA) citizens. Consult with the Defense 
State Liaison Office which is the DoD office for contact and 
coordination with Federal, State, and local government entities for 
legislative and other policy matters involving voting assistance and 
elections pursuant to 42 U.S.C. 1973ff et seq.
    (5) Obtain, from each State, current voter registration and absentee 
voting information and disseminate it to other Federal Executive 
departments, agencies, DoD Components and voters qualified to vote, 
pursuant to 42 U.S.C. 1973ff(b)(5).
    (6) Establish and maintain a voting assistance program to assist all 
eligible voters as covered by 42 U.S.C. 1973ff et seq., and to assist 
those persons to vote.
    (7) Establish and maintain an FVAP Web site that provides:
    (i) Information to citizens on the voter registration and absentee 
voting process.
    (ii) Information on the means of electronic transmission of election 
materials allowed by each State.
    (iii) A method to assist citizens in the voter registration process 
and how to request an absentee ballot.
    (iv) A list of State contact information in accordance with 42 
U.S.C. 1973ff-1(e)(4).
    (v) The ability to print a Standard Form (SF) 186, ``Federal Write-
In Absentee Ballot,'' and a list of all candidates in a Federal 
election.
    (vi) A portal that hosts Service-specific information regarding 
voting assistance programs, including links to IVA offices; the contact 
information for voting assistance officers (installation, major command 
and commissioned units) within the DoD Component; procedures to order 
voting materials; and links to other Federal and State voting Web sites.
    (vii) Absentee ballot data reported under 42 U.S.C. 1973ff(b)(6) and 
(b)(11) and 42 U.S.C. 1973ff-4A.
    (viii) Other information as deemed necessary by Director, FVAP.
    (8) Survey U.S. citizens including, but not limited to uniformed 
services and their dependents as well as overseas U.S. civilians covered 
by 42 U.S.C. 1973ff et seq., voting assistance officers (VAOs), and 
election officials to gather necessary statistical information and 
prepare the reports to the President and the Congress required by 42 
U.S.C. 1973ff(6) and 42 U.S.C. 1973ff-4A.
    (9) Prescribe the standard oath to be used with any document 
pursuant to 42 U.S.C. 1973ff(7).
    (10) Coordinate with the Military Postal Service Agency, as 
addressed in DoD 4525.6-M (available at http://www.dtic.mil/whs/
directives/corres/pdf/452506m.pdf), to implement measures to ensure a 
postmark or other proof of mailing date is provided on each absentee 
ballot collected at any overseas location or vessel at sea, and that 
voting materials are moved expeditiously to the maximum extent 
practicable by military postal authorities.
    (11) As a component of a comprehensive marketing and voter education 
initiative, establish a means to inform absent uniformed services 
members of absentee voting information and resources 90, 60, and 30 days 
before each Federal election pursuant to 42 U.S.C. 1973ff-2B(a)(2).
    (12) Develop standards, working with the U.S. Election Assistance 
Commission and the Chief State election official of each State, for the 
States to report data on the number of absentee ballots transmitted and 
received during a regularly scheduled general election for Federal 
office pursuant to 42 U.S.C. 1973ff(b)(11). Provide a means to store the 
collected data and make the data available to the public.
    (13) Establish procedures, in consultation with the Attorney 
General, regarding hardship exemption waivers

[[Page 542]]

submitted by a State pursuant to 42 U.S.C. 1973ff-1(g).
    (14) Prescribe the required voting program metrics to be used by the 
DoD Components and uniformed services to be used in evaluating their 
individual voting assistance programs, and report on compliance with 
those metrics. To the extent practicable, establish and maintain an 
online portal to collect and consolidate voting program metrics.
    (15) Provide technology programs to assist uniformed service and 
overseas voters in registering to vote, applying for an absentee ballot, 
receiving an absentee ballot, and to the extent required by section 1604 
of Public Law (Pub. L.) 107-107, as amended by section 567 of Public Law 
108-375, returning a voted ballot.
    (16) Develop and coordinate with the States the implementation and 
operational procedures for persons to apply to register to vote at 
recruitment offices of the Military Services. Assist the Deputy 
Assistant Secretary of Defense for Military Personnel Policy with the 
implementation of section 42 U.S.C. 1973gg-5(c) as it applies to 
recruitment offices within the DoD.
    (17) In coordination with the Services, develop multiple types of 
training materials for use by IVA offices, IVAOs, UVAOs, and recruiters 
to provide voter registration and absentee ballot assistance and at 
recruitment offices of the Military Services to provide voter 
registration assistance. Conduct voting assistance training during even-
numbered years worldwide.
    (18) Analyze the impact of providing voter registration assistance 
and make recommendations for improvements in Federal and State 
procedures, forms, and laws affected by 42 U.S.C. 1973ff et seq.
    (19) Maintain multiple lines of support for use by uniformed 
services and overseas voters, personnel assigned to recruitment offices 
of the Military Services and State election officials to provide 
assistance outlined pursuant to 42 U.S.C. 1973ff.
    (b) DoD Component and Uniformed Services Procedures. The DoD 
Components and the uniformed services shall:
    (1) Develop written voting-related policies to support all eligible 
uniformed services personnel and their family members including those in 
deployed, dispersed, and tenant organizations. Establish the ratio and 
maximum number of voters who may be represented by a VAO.
    (2) Ensure command support at all levels for the FVAP.
    (3) Designate in writing a uniformed officer of flag grade or a 
civilian employee in the Senior Executive Service in each uniformed 
service as the SSVR to manage the respective Service voting programs.
    (4) Designate a SVAO, preferably a civilian employee (General 
Schedule (GS)-12 or higher), to assist the SSVR and who shall be 
responsible for voting assistance operations within his or her Service.
    (i) If the SVAO is a military member, he or she should be at least 
of pay grade O-4 (if an officer) or E-8 (if enlisted) and shall be a 
permanently assigned member within the SSVR's organization.
    (ii) The chief or director of each Reserve Component shall designate 
an SVAO to coordinate with the SSVR and the Director, FVAP to maintain a 
contingency absentee voting program for the National Guard and Reserve 
units and personnel who have been activated and deployed.
    (5) Establish IVA offices on each military installation and maintain 
an updated list of IVA offices, including location, address, hours of 
operation, phone number and email address, published on the Service 
voting assistance Web site. At the discretion of the installation 
commander, satellite offices may be established under the primary IVA 
office.
    (i) The IVA office will provide voter assistance to military 
personnel, their dependents, civilian Federal employees, and all 
qualified voters who have access to such installation offices. IVA 
offices shall also serve as voter registration agencies under 42 U.S.C. 
1973gg-5(a)(2).
    (ii) The IVA office shall be established within the installation 
headquarters organization reporting directly to the installation 
commander, even if geographically located in another office.

[[Page 543]]

    (iii) The IVA office should be located in a well-advertised, fixed 
location, consistent throughout the Service, and should be physically 
co-located with an existing office that receives extensive visits by 
Service personnel, family members, and DoD civilians. The IVA office 
shall be staffed during the hours the installation office is open with 
trained personnel to provide direct assistance in registration and 
voting procedures, including the assistance required under 42 U.S.C. 
1973gg-5(a)(4).
    (iv) The IVA office shall:
    (A) Be included in the administrative in-processing and out-
processing activities required of reporting and detaching personnel.
    (B) Ensure that uniformed services members, their voting-age 
dependents, and overseas DoD civilians are provided proper voting 
assistance at the IVA office, including the opportunity to update their 
voter registration information through the submission of a revised SF 
76, ``Federal Post Card Application (FPCA)'' or National Mail Voter 
Registration Form.
    (C) Ensure that voting assistance is provided to all personnel, 
military and civilian, reporting for duty on the installation, detaching 
from duty, deploying, and returning from deployment of 6 months or 
longer.
    (1) SF 76s shall be used to notify local election officials of the 
change of mailing address for absentee ballot delivery purposes.
    (2) Uniformed services members who are being released from active 
duty shall be advised to notify their local election office that they 
are no longer covered under 42 U.S.C. 1973ff and shall be provided the 
opportunity to submit a National Mail Voter Registration Form.
    (D) Ensure that all small and geographically separated units are 
provided voting assistance.
    (E) Provide written information on voter registration and absentee 
ballot procedures. This can be met by providing the applicant with the 
SF 76, SF 186, (if applicable), or the National Mail Voter Registration 
Form, the attached instructions for those forms, and the State-specific 
instructions from the Voting Assistance Guide (available at http://
www.fvap.gov) for absent uniformed services voters, voting-age dependent 
voters, and overseas civilians. Citizens may also be provided with all 
of the necessary resources including, but not limited to, access to a 
computer system connected to the Internet, a printer, and a scanner to 
use the FPCA wizard available at the FVAP Web site, www.fvap.gov.
    (1) SF 76 and SF 186 (if applicable) shall be provided to absent 
uniformed services personnel and their family members (within and 
outside of the United States) and to Federal civilian employees and 
other U.S. citizens who have access to an IVA office outside the United 
States.
    (2) The National Mail Voter Registration Form shall be provided to 
Federal civilian employees and other U.S. citizens who have access to 
the IVA office within the United States, and to uniformed services 
voters who currently reside in their voting districts.
    (F) Provide direct assistance to individuals in completing the forms 
necessary to register to vote, update their voter registration 
information, and request absentee ballots.
    (G) Collect from the voter and transmit the completed SF 76 or 
National Mail Voter Registration Form for the applicant, within 5 
calendar days, to the appropriate local election office.
    (H) Maintain voting program metrics as coordinated with and 
prescribed by the Director, FVAP and furnish a report, via their SVAO, 
to the Director, FVAP each calendar quarter or as requested.
    (6) Designate VAOs, in writing, at every level of command; assign 
one VAO on each installation and in each major command to coordinate the 
programs conducted by subordinate units and tenant commands.
    (i) For continuity, individuals assigned as IVAOs should serve for 
18 months beginning in October of the year immediately prior to a 
regularly scheduled general election for Federal offices and concluding 
in March of the year immediately following a regularly scheduled general 
election for Federal offices.
    (ii) Ensure that VAOs are available and equipped to assist voters 
for all elections. VAOs shall be provided the

[[Page 544]]

time and resources needed to perform their voting assistance duties.
    (iii) When uniformed services personnel (including noncommissioned 
officers) are designated as VAOs this part authorizes them to administer 
oaths in connection with voter registration and voting.
    (7) Designate IVAOs, preferably civilians (GS-12 or higher) with 
access to the installation commander. If a uniformed services member is 
assigned as the IVAO, that officer should hold the pay grade of O-4 or 
higher; however, it is preferable to assign an enthusiastic volunteer 
who is outside this rank and grade guidance rather than assign a less 
enthusiastic member who meets the criterion.
    (i) The IVAO shall complete FVAP training before assuming the duties 
of the IVAO.
    (ii) The IVAO shall work closely with the IVA office to coordinate 
the unit-level voting assistance programs implemented on that 
installation.
    (iii) Each IVAO shall notify installation personnel of the last date 
before a general election for Federal offices by which absentee ballots 
must be mailed to reasonably be delivered in time to State and local 
election officials and of general mail delivery deadlines recommended by 
the Military Postal Service Agency.
    (8) Designate and assign, in writing, a UVAO, at the O-2/E-7 level 
or above, within each unit of 25 or more permanently assigned members. 
It is preferable to assign an enthusiastic volunteer who is outside this 
rank and grade guidance rather than assign a less enthusiastic member 
who meets the criterion.
    (i) A UVAO shall complete FVAP training prior to assuming the duties 
of the UVAO as specified in this rule. Unit commanders shall, to the 
extent practicable, provide funding to enable their UVAOs to attend in-
person training.
    (ii) An additional UVAO should be assigned for each additional 50 
members above the 25-member base.
    (iii) UVAOs shall ensure that all small and geographically separated 
units are assisted.
    (iv) UVAOs may advise and assist the IVA office in fulfilling the 
voter assistance functions for deploying personnel, personnel returning 
from deployment, and personnel recording a change of address. However, 
the individual in charge of the IVA office is responsible to require 
that UVAOs have fully complied with the voter assistance 
responsibilities as described in 42 U.S.C. 1973ff.
    (9) Require that uniformed services members and their voting-age 
dependents have ready access to absentee voter registration, ballot 
request and absentee ballot submission information, deadlines, and 
recommended mailing dates to meet those deadlines. This information must 
be available online and in written format for those citizens who do not 
have access to online documents.
    (10) Expeditiously obtain and disseminate to eligible voters, voting 
information and related materials, such as the Voting Assistance Guide, 
SF 76, and SF 186.
    (11) Provide sufficient registration and ballot request materials to 
support all elections.
    (12) Establish within each military installation and major command a 
VAO network and communications capability to quickly disseminate voting 
information throughout the installation or major command. Establish a 
DoD Component-wide means to communicate effectively with and 
expeditiously disseminate voting information to Commanders, VAOs, and 
uniformed services and overseas DoD civilian members of the DoD 
Component and their voting age dependents. This communication effort 
should be coordinated with the FVAP.
    (13) Develop a DoD Component-wide communications plan to provide 
information on the absentee voting process (including State registration 
and absentee ballot deadlines and the effective deadlines for mailing 
from overseas and remote locations to meet those State deadlines), 
encourage voting participation, schedule voting communications from 
Component leaders, and program the distribution of voting materials.
    (14) Develop a distribution system to deliver SF 76s directly to all 
eligible voters either through in-hand delivery or through electronic 
means.

[[Page 545]]

    (15) The delivery of SF 76s shall be accomplished:
    (i) By January 15 of each calendar year to eligible voters and, to 
the extent practicable, their voting-age dependents.
    (ii) By July 15 of even-numbered years to eligible voters and, to 
the extent practicable, voting-age dependents.
    (iii) Before graduation and detachment from recruit training. These 
SF 76s shall be used to notify local election officials of the change of 
mailing address for absentee ballot delivery purposes.
    (16) Require the Inspectors General of the Military Departments to 
review their voting assistance program annually, and at every level of 
command, to ensure compliance with 10 U.S.C. 1566a, 42 U.S.C. 1973gg-5, 
42 U.S.C. 1973ff--1973ff-6, 18 U.S.C. 592, 18 U.S.C. 609, DoD 8910.1-M 
(available at http://www.dtic.mil/whs/directives/corres/pdf/
891001m.pdf), and DoD 4525.6-M. A copy of this report shall be submitted 
to the IG DoD along with supporting statistical information to the 
Director, FVAP, by January 31 of the following year pursuant to 10 
U.S.C.
    (17) Continually evaluate command voting assistance programs. 
Program metrics shall be reported to the Director, FVAP, as prescribed 
by paragraph n. in Enclosure 3.
    (18) Establish and maintain a direct link from the DoD Component's 
Web site to the Web site designated by the Director, FVAP.
    (19) Develop comprehensive command-wide voting awareness, assistance 
programs, and activities in accordance with the requirement of paragraph 
(15)(i) of this section to annually deliver SF76s by January 15. ``Armed 
Forces Voters Week'' will be advertised to encourage voter registration 
drives.
    (20) Establish and maintain a standard email address of the form 
Vote@(unit).(Service).mil, Vote.(unit)@(Service).mil or similar format 
to contact all UVAOs within that Service.
    (21) Annually train all uniformed service members (including 
activated National Guard and Reserve personnel) on absentee registration 
and voting procedures.
    (i) All basic training and command courses shall emphasize and 
advertise voting assistance programs to encourage service members to 
register and subsequently vote by offering instruction on voting rights 
and responsibilities and procedures on absentee registration and voting.
    (ii) Provide training and voting assistance for units preparing for 
deployment where voting materials and accessibility to register may be 
limited due to at-sea or remote area deployment.
    (iii) Retain records of training conducted, including dates and 
attendees, at the unit level for at least 1 calendar year.
    (22) Require that all major command, installation, and UVAOs attend 
an FVAP voting assistance workshop during even-numbered years with 
elections for Federal offices. If the installation is not scheduled to 
receive FVAP workshop training, installation and UVAOs should attend 
training at a nearby installation. VAOs at remote locations can access 
the FVAP Web site for training. Documentation of VAO training at the 
installation or base level shall be stored within local personnel 
records.
    (23) To the greatest extent practicable, ensure voters who are 
eligible to cast absentee ballots on DoD facilities are able to do so in 
a private and independent manner.
    (24) Protect the privacy of the contents of absentee ballots while 
under DoD control. Voters who vote locally at polling sites should be 
provided time to vote during working hours.
    (25) File an annual after-action report to the Director, FVAP, in 
the format and manner specified by the Director, FVAP.
    (26) Assist the FVAP in conducting official surveys in the manner 
specified by the Director, FVAP.
    (27) Refrain from contacting State and local government officials 
about voting policy matters. The Director, Defense State Liaison Office, 
in consultation with the Director, FVAP, shall be the DoD representative 
for coordination with Federal, State, and local government entities for 
legislative and other policy matters involving

[[Page 546]]

voting assistance and elections pursuant to 42 U.S.C. 1973ff et seq.
    (i) IVAOs, major command voting assistance officers, and SVAOs are 
encouraged to discuss voting policy concerns with FVAP, and may work 
with FVAP on such issues at the Director, FVAP's request.
    (ii) IVAOs, major command voting assistance officers, and SVAOs may 
contact local election officials to help resolve any specific problem 
involving voter registration or absentee voting on behalf of the voter, 
or to engage appropriate local election official assistance for a voter 
registration drive or similar event on an installation.
    (28) Consolidate and provide quarterly statistical information and 
records on voter registration assistance provided by the UVAOs and the 
IVA offices in a format prescribed by the Director, FVAP.
    (29) Ensure all personnel assigned to transition assistance program 
offices are informed of the policies in this part and are trained to 
provide materials educating transitioning personnel on their civilian 
voting rights and responsibilities. Transition assistance program 
offices shall work with the Director, FVAP, to provide pre-printed 
notices that transitioning personnel may use to inform their election 
offices that they no longer will vote absentee in accordance with the 
provisions of 42 U.S.C. 1973ff.
    (30) Ensure all personnel assigned to recruitment offices are 
informed of the policies in this part and are trained to provide voter 
registration assistance. Ensure the recruitment offices of the Military 
Services:
    (i) Provide each prospective enlistee with the National Mail Voter 
Registration Form, available at http://www.eac.gov/voter/
Register_to_Vote, and DD Form 2645, Voter Registration Information Form, 
available at http://www.dtic.mil/whs/directives/infomgt/forms/forminfo/
forminfopage2084.html, unless the applicant, in writing, declines to 
register to vote.
    (ii) Distribute the National Mail Voter Registration Form to each 
eligible citizen and provide assistance in completing the form unless 
the applicant refuses such assistance.
    (iii) Provide each eligible citizen or prospective enlistee who does 
not decline to register to vote the same degree of assistance for the 
completion of the National Mail Voter Registration Form as is provided 
by the office for the completion of its own forms, e.g., the application 
for enlistment, unless the person refuses such assistance.
    (iv) Transmit all completed registration applications within 5 
calendar days to the appropriate State election officials.
    (v) Maintain statistical information and records on voter 
registration assistance provided by recruitment offices in the format 
prescribed by the Director, FVAP, for a period of two years, in 
accordance with 42 U.S.C. 1973gg(6)(i).
    (31) Ensure that inspections of recruitment offices of the Military 
Services by the Service Inspectors General are in compliance with this 
part.
    (32) As discussed in DoD 4525.6-M, the Director, Military Postal 
Service Agency shall:
    (i) Implement measures in consultation with the FVAP, to the maximum 
extent practicable, to ensure that a postmark or other proof of mailing 
date is provided on each absentee ballot collected at any overseas 
location or vessel at sea and that voting materials are moved 
expeditiously, to the maximum extent practicable, by military postal 
authorities.
    (ii) Develop an outreach plan to inform overseas uniformed services 
voters regarding the ballot collection and delivery service to be 
implemented prior to each general election for Federal office.
    (iii) Establish alternative deadlines for collecting and forwarding 
absentee ballots from overseas locations as required by 42 U.S.C. 
1973ff.
    (33) Revise all voting assistance program instructions and 
procedures to incorporate the provisions of this part.
    (c) Executive Department and Agency Procedures. (1) Federal 
Executive departments and agencies, including, but not limited to, the 
Department of State, the Department of Commerce, and the Department of 
Health and Human Services, are encouraged to adopt regulations and 
procedures that conform to this part to the maximum

[[Page 547]]

extent practicable, consistent with their organizational missions. By 
doing so, the FVAP will be able to assist the Executive departments, 
agencies, and their voting constituencies to the maximum extent.
    (2) The head of each Government department, agency, or other entity 
shall distribute balloting materials and develop a non-partisan program 
of information and education for all employees and family members 
pursuant to 42 U.S.C. 1973ff(c).
    (i) The department or agency is responsible for providing voter 
assistance with assistance available from the FVAP.
    (ii) Each department or agency with employees or family members 
covered by 42 U.S.C. 1973ff shall designate an individual to coordinate 
and administer a voting assistance program for the department or agency 
to include, where practicable, the responsibilities in this part. The 
name, address, and telephone number of this individual shall be provided 
to the Director, FVAP.
    (iii) The Secretary of State shall designate a voting action officer 
at the Department of State headquarters to oversee the Department's 
program as well as a U.S. citizen at each U.S. embassy or consulate to 
assist, to the fullest extent practicable, other U.S. citizens residing 
outside of the United States who are eligible to vote. The Secretary of 
State shall provide annually, or as requested by the Director, FVAP, 
estimates of the numbers of U.S. citizens currently residing in each 
country with an established embassy.
    (iv) Each embassy and consulate should have sufficient quantities of 
materials to include SF 76s, and SF 186s, needed by U.S. citizens to 
register and vote. Embassies and consulates will also inform and educate 
U.S. citizens regarding their right to register and vote, and will 
publicize voter assistance programs.
    (v) The Department of State's voting action officer shall coordinate 
with the Director, FVAP, in the development and conduct of voting 
events, programs to inform and educate U.S. citizens outside of the 
United States, and provision of voting information and resources for 
assistance.
    (vi) Department of State and the Military Service voting action 
officers shall assist, as requested, embassy and consulate VAOs with 
post-election surveys of civilians outside of the United States.



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: 72 FR 29251, May 25, 2007, unless otherwise noted.



Sec. 234.1  Definitions.

    As used in this part.
    Authorized person. An employee or agent of the Pentagon Force 
Protection Agency, 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. Pursuant to 10 U.S.C. 674, the 
Pentagon Reservation also includes the area of land known as Raven Rock 
Mountain Complex (``RRMC''), located in Adams County, Pennsylvania, and 
Site ``C,'' which is

[[Page 548]]

located in Washington County, Maryland, and other related facilities. 
The Pentagon Reservation shall include 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.



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.



Sec. 234.3  Admission to property.

    (a) Access to the Pentagon Reservation or facilities thereon shall 
be restricted in accordance with AI Number 30 \1\ and other applicable 
Department of Defense rules and regulations 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. Forward written requests for 
copies of the document to Washington Headquarters Services, Executive 
Services Division, Freedom of Information Division, 1155 Defense 
Pentagon, Washington, DC 20301-1155.
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    (b) All persons entering or upon the Pentagon Reservation shall, 
when required and/or requested, display identification to authorized 
persons.
    (c) All packages, briefcases, and other containers brought into, on, 
or being removed from facilities or restricted areas on the Pentagon 
Reservation are subject to inspection and search by authorized persons. 
Persons entering on facilities or restricted areas who refuse to permit 
an inspection and search will be denied entry.
    (d) Any person or organization desiring to conduct activities 
anywhere on the Pentagon Reservation shall file an application for 
permit with the applicable Building Management Office or Installation 
Commander. Such application shall be made on a form provided by the 
Department of Defense and shall be submitted in the manner specified by 
the Department of Defense. Violation of the conditions of a permit 
issued in accordance with this section

[[Page 549]]

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 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.



Sec. 234.8  Preservation of property.

    Willfully destroying or damaging private or government property is 
prohibited. The throwing of articles of any kind from or at buildings or 
persons, improper disposal of rubbish, and open fires are also 
prohibited.



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 or Installation Commander. When permitted, the use, 
possession, storage and transportation shall be in accordance with 
applicable Federal and State law.

[[Page 550]]

    (b) Using or possessing fireworks or firecrackers is prohibited.
    (c) Violation of the conditions established by the applicable 
Building Management Office or Installation Commander or of the terms and 
conditions of a permit issued in accordance with this section is 
prohibited and may result in the loss of access to the Pentagon 
Reservation.



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 
Pentagon Force Protection Agency or the Installation Commander to carry, 
transport, or use a weapon in support of a security, law enforcement, or 
other lawful purpose while on the Pentagon Reservation.



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, the Installation 
Commander, or the Heads of the Military Departments, or their designees. 
Written notice of such authorizations shall be provided to the Pentagon 
Force Protection Agency.
    (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.



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).



Sec. 234.14  Posting of materials.

    Posting or affixing materials, such as pamphlets, handbills, or 
fliers on the

[[Page 551]]

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 or Installation Commander under Sec. 
234.3(d).



Sec. 234.15  Use of visual recording devices.

    (a) The use of cameras or other visual recording devices on the 
Pentagon Reservation is prohibited, unless the use of such items are 
approved by the Pentagon Force Protection Agency, the Installation 
Commander, or the Office of the Assistant to the Secretary of Defense 
for Public Affairs.
    (b) It shall be unlawful to make any photograph, sketch, picture, 
drawing, map or graphical representation of the Pentagon Reservation 
without first obtaining permission of the Pentagon Force Protection 
Agency, Installation Commander, or the Office of the Assistant to the 
Secretary of Defense for Public Affairs.



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 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

[[Page 552]]

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.



Sec. 234.18  Enforcement of parking regulations.

    Parking regulations for the Pentagon Reservation shall be enforced 
in accordance with the Pentagon Reservation Parking Program and State 
law; violating such provisions is prohibited. A vehicle parked in any 
location without authorization, or parked contrary to the directions of 
posted signs or markings, shall be subject to removal at the owner's 
risk and expense, in addition to any penalties imposed. The Department 
of Defense assumes no responsibility for the payment of any fees or 
costs related to such removal which may be charged to the owner of the 
vehicle by the towing organization. This section may be supplemented 
from time to time with the approval of the Director, Washington 
Headquarters Services, or his designee, or the Installation Commander, 
by the issuance and posting of such parking directives as may be 
required, and when so issued and posted such directive shall have the 
same force and effect as if made a part hereof.



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: 71 FR 66459, Nov. 15, 2006, unless otherwise noted.



Sec. 235.1  Purpose.

    This part implements 10 U.S.C. 2489a, consistent with DoD 
Instruction 1330.09, \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.
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Sec. 235.2  Applicability and scope.

    This part:

[[Page 553]]

    (a) Applies to the Office of the Secretary of Defense, the Military 
Departments, the Chairman of the Joint Chiefs of Staff, the Combatant 
Commands, the Office of the Inspector General of the Department of 
Defense, the Defense Agencies, the DoD Field Activities, and all other 
organizational entities within the Department of Defense (hereafter 
referred to as the ``DoD Components'').
    (b) Shall not confer rights on any person.



Sec. 235.3  Definitions.

    For the purpose of this part, the following definitions apply:
    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, facilities operated by the Army and Air Force Exchange 
Service, the Navy Exchange Service Command, the Navy Resale and Services 
Support Office, Marine Corps Exchanges, and ship stores.
    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.

    It is DoD policy that:
    (a) No sexually explicit material may be offered for sale or rental 
on property under the DoD jurisdiction, and no member of the Armed 
Forces or DoD civilian officer or employee, acting in his or her 
official capacity, shall offer for sale or rental any sexually explicit 
material.
    (b) Material shall not be deemed sexually explicit because of any 
message or point of view expressed therein.



Sec. 235.5  Responsibilities.

    (a) The Principal Deputy Under Secretary of Defense for Personnel 
and Readiness (PDUSD((P&R)), under the Under Secretary of Defense for 
Personnel and Readiness, shall:
    (1) Monitor and ensure compliance with this part.
    (2) Establish a Resale Activities Board of Review (the ``Board'') 
and approve senior representatives from the Army and Air Force Exchange 
Service, the Navy Exchange Service Command, and the Marine Corps 
Exchange Service; and approve a senior representative from each of the 
Military Departments, if designated by the Military Department 
concerned, to serve as board members on the Resale Activities Board.
    (3) Appoint a Chair of the Board.
    (4) Monitor the activities of the Board and ensure that the Board 
discharges its responsibilities as set forth in 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 periodically review material offered or to be 
offered for sale or rental on property under DoD jurisdiction and 
determine whether any such material is sexually explicit in accordance 
with this part.
    (b) If the Board determines that any material offered for sale or 
rental on property under DoD jurisdiction is sexually explicit, such 
material shall be withdrawn from all retail outlets where it is sold or 
rented and returned to distributors or suppliers, and shall not be 
purchased absent further action by the Board.
    (c) The Board shall convene as necessary to determine whether any 
material offered or to be offered for sale or

[[Page 554]]

rental on property under DoD jurisdiction is sexually explicit. The 
Board members shall, to the extent practicable, maintain and update 
relevant information about material offered or to be offered for sale or 
rental on property under DoD jurisdiction.
    (d) If any purchasing agent or manager of a retail outlet has reason 
to believe that material offered or to be offered for sale or rental on 
property under DoD jurisdiction may be sexually explicit as defined 
herein, and such material is not addressed by the Board's guidance 
issued pursuant to paragraph (e) of this section, he or she shall 
request a determination from the Board about such material prior to 
purchase or as soon as possible.
    (e) At the conclusion of each review and, as necessary, the Board 
shall issue guidance to purchasing agents and managers of retail outlets 
about the purchase, withdrawal, and return of sexually explicit 
material. The Board may also provide guidance 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.
    (f) Material which has been determined by the Board to be sexually 
explicit may be submitted for reconsideration every 5 years. If 
substantive changes in the publication standards occur earlier, the 
purchasing agent or manager of a retail outlet under DoD jurisdiction 
may request a review.



Sec. 235.7  Information requirements.

    The Chair of the Board shall submit to the PDUSD(P&R) an annual 
report documenting the activities, decisions, and membership of the 
Board. Negative reports are required. The annual report shall be due on 
October 1st of each year and is not subject to the licensing internal 
information requirements of DoD 8910.1-M. \2\
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PART 236_DEPARTMENT OF DEFENSE (DoD)_DEFENSE INDUSTRIAL BASE (DIB)
VOLUNTARY CYBER SECURITY AND INFORMATION ASSURANCE (CS/IA) ACTIVITIES
--Table of Contents



Sec.
236.1 Purpose.
236.2 Definitions.
236.3 Policy.
236.4 Procedures.
236.5 Cyber security information sharing.
236.6 General provisions.
236.7 DIB participant eligibility requirements.

    Authority: 10 U.S.C. 2224; 44 U.S.C. 3506; 44 U.S.C. 3544.

    Source: 78 FR 62435, Oct. 22, 2013, unless otherwise noted.



Sec. 236.1  Purpose.

    Cyber threats to DIB unclassified information systems represent an 
unacceptable risk of compromise of DoD information and pose an imminent 
threat to U.S. national security and economic security interests. DoD's 
voluntary DIB CS/IA program enhances and supplements DIB participants' 
capabilities to safeguard DoD information that resides on, or transits, 
DIB unclassified information systems.



Sec. 236.2  Definitions.

    As used in this part:
    (a) Attribution information means information that identifies the 
DIB participant, whether directly or indirectly, by the grouping of 
information that can be traced back to the DIB participant (e.g., 
program description, facility locations).
    (b) Compromise means disclosure of information to unauthorized 
persons or a violation of the security policy of a system in which 
unauthorized intentional, or unintentional, disclosure, modification, 
destruction, loss of an object, or the copying of information to 
unauthorized media may have occurred.
    (c) Covered defense information means unclassified information that:
    (1) Is:
    (i) Provided by or on behalf of the DoD to the DIB participant in 
connection with an official DoD activity; or

[[Page 555]]

    (ii) Collected, developed, received, transmitted, used, or stored by 
the DIB participant in support of an official DoD activity; and
    (2) Is:
    (i) Controlled Technical Information means technical information 
with military or space application (see 10 U.S.C. 130(c)) that is 
subject to controls on the access, use, reproduction, modification, 
performance, display, release, disclosure, or dissemination. Controlled 
technical information is to be marked with one of the distribution 
statements B through F, in accordance with Department of Defense 
Instruction 5230.24, ``Distribution Statements of Technical Documents.'' 
The term does not include information that is lawfully publicly 
available without restrictions. ``Technical Information'' means 
technical data or computer software, as those terms are defined in 
Defense Federal Acquisition Regulation Supplement clause 252.227-7013, 
``Rights in Technical Data--Noncommercial Items'' (48 CFR 252.227-7013). 
Examples of technical information include research and engineering data, 
engineering drawings, and associated lists, specifications, standards, 
process sheets, manuals, technical reports, technical orders, catalog-
item identifications, data sets, studies and analyses and related 
information, and computer software executable code and source code;
    (ii) Information subject to export control under the International 
Traffic in Arms Regulations (ITAR) (http://pmddtc.state.gov/
regulations_laws/itar_official.html), or the Export Administration 
Regulations (EAR). (15 CFR part 730);
    (iii) Information designated as Critical Program Information (CPI) 
in accordance with DoD Instruction 5200.39, ``Critical Program 
Information (CPI) Protection within the Department of Defense'';
    (iv) Critical Information (Operations Security) includes specific 
facts identified through the Operations Security process about friendly 
intentions, capabilities, and activities vitally needed by adversaries 
for them to plan and act effectively so as to guarantee failure or 
unacceptable consequences for friendly mission accomplishment (part of 
Operations Security process as described in 5205.02-M, ``DoD Operations 
Security (OPSEC Program Manual)'';
    (v) Personally Identifiable Information (PII) that can be used to 
distinguish or trace an individual's identity in accordance with DoD 
Directive 5400.11, ``DoD Privacy Program'';
    (vi) Information bearing current and prior designations indicating 
controlled unclassified information (e.g., For Official Use Only, 
Sensitive But Unclassified, and Limited Official Use, DoD Unclassified 
Controlled Nuclear Information, Sensitive Information) that has not been 
cleared for public release in accordance with DoD Directive 5230.29, 
``Clearance of DoD Information for Public Release'' (see also DoD 
5200.01 M Volume 4, ``DoD Information Security Program: Controlled 
Unclassified Information (CUI)''), ; or
    (vii) Any other information that is exempt from mandatory public 
disclosure under DoD Directive 5400.07, ``DoD Freedom of Information Act 
(FOIA) Program'', and DoD Regulation 5400.7-R, ``DoD Freedom of 
Information Program''.
    (d) Covered DIB systems means an information system that is owned or 
operated by or for a DIB participant and that processes, stores, or 
transmits covered defense information.
    (e) Cyber incident means actions taken through the use of computer 
networks that result in an actual or potentially adverse effect on an 
information system and/or the information residing therein.
    (f) Cyber intrusion damage assessment means a managed, coordinated 
process to determine the effect on defense programs, defense scientific 
and research projects, or defense warfighting capabilities resulting 
from compromise of a DIB participant's unclassified computer system or 
network.
    (g) Defense Industrial Base (DIB) means the Department of Defense, 
Government, and private sector worldwide industrial complex with 
capabilities to perform research and development, design, produce, and 
maintain military weapon systems, subsystems, components, or parts to 
satisfy military requirements.
    (h) DIB participant means a DIB company that has met all of the 
eligibility

[[Page 556]]

requirements to participate in the voluntary DIB CS/IA information 
sharing program as set forth in this part (see Sec. 236.7).
    (i) Government means the United States Government.
    (j) Government Furnished Information (GFI) means information 
provided by the Government under the voluntary DIB CS/IA program, 
including but not limited to cyber threat information and information 
assurance practices.
    (k) Information means any communication or representation of 
knowledge such as facts, data, or opinions in any medium or form, 
including textual, numerical, graphic, cartographic, narrative, or 
audiovisual.
    (l) Information system means a discrete set of information resources 
organized for the collection, processing, maintenance, use, sharing, 
dissemination, or disposition of information.
    (m) Threat means any circumstance or event with the potential to 
adversely impact organization operations (including mission, functions, 
image, or reputation), organization assets, individuals, other 
organizations, or the Nation through an information system via 
unauthorized access, destruction, disclosure, modification of 
information and/or denial of service.
    (n) U.S. based means provisioned, maintained, or operated within the 
physical boundaries of the United States.
    (o) U.S. citizen means a person born in the United States or 
naturalized.



Sec. 236.3  Policy.

    It is DoD policy to:
    (a) Establish a comprehensive approach for enhancing and 
supplementing DIB information assurance capabilities to safeguard 
covered defense information on covered DIB systems.
    (b) Increase the Government and DIB situational awareness of the 
extent and severity of cyber threats to DoD information.



Sec. 236.4  Procedures.

    (a) The Government and each DIB participant will execute a voluntary 
standardized agreement, referred to as a Framework Agreement (FA), to 
share, in a timely and secure manner, on a recurring basis, and to the 
greatest extent possible, cyber security information relating to 
information assurance for covered defense information on covered DIB 
systems.
    (b) Each such FA between the Government and a DIB participant must 
comply with and implement the requirements of this part, and will 
include additional terms and conditions as necessary to effectively 
implement the voluntary information sharing activities described in this 
part with individual DIB participants.
    (c) DoD's DIB CS/IA Program Office is the overall point of contact 
for the program. The DoD Cyber Crime Center's DoD-DIB Collaborative 
Information Sharing Environment (DC3/DCISE) is the operational focal 
point for cyber threat information sharing and incident reporting under 
the DIB CS/IA program.
    (d) The Government will maintain a Web site or other Internet-based 
capability to provide potential DIB participants with information about 
eligibility and participation in the program, to enable the online 
application or registration for participation, and to support the 
execution of necessary agreements with the Government. http://
dibnet.dod.mil/.
    (e) Prior to receiving GFI from the Government, each DIB participant 
shall provide the requisite points of contact information, to include 
security clearance and citizenship information, for the designated 
personnel within their company (e.g., typically 3-10 company designated 
points of contact) in order to facilitate the DoD-DIB interaction in the 
DIB CS/IA program. The Government will confirm the accuracy of the 
information provided as a condition of that point of contact being 
authorized to act on behalf of the DIB participant for this program.
    (f) GFI will be issued via both unclassified and classified means. 
DIB participant handling and safeguarding of classified information 
shall be in compliance with the National Industrial Security Program 
Operating Manual (NISPOM) (DoD 5220.22-M). The Government shall specify 
transmission and distribution procedures for all GFI, and shall inform 
DIB participants of any

[[Page 557]]

revisions to previously specified transmission or procedures.
    (g) Except as authorized in this part or in writing by the 
Government, DIB participants may use GFI to safeguard covered defense 
information only on covered DIB systems that are U.S. based; and share 
GFI only within their company or organization, on a need to know basis, 
with distribution restricted to U.S. citizens. However, in individual 
cases, upon request of a DIB participant that has determined that it 
requires the ability to share the information with a non U.S. citizen, 
or to use the GFI on a non-U.S. based covered DIB system, and can 
demonstrate that appropriate information handling and protection 
mechanisms are in place, the Government may authorize such disclosure or 
use under appropriate terms and conditions.
    (h) DIB participants shall maintain the capability to electronically 
disseminate GFI within the Company in an encrypted fashion (e.g., using 
Secure/Multipurpose Internet Mail Extensions (S/MIME), secure socket 
layer (SSL), Transport Layer Security (TLS) protocol version 1.2, DoD-
approved medium assurance certificates).
    (i) The DIB participants shall not share GFI outside of their 
company or organization, regardless of personnel clearance level, except 
as authorized in this part or otherwise authorized in writing by the 
Government.
    (j) If the DIB participant utilizes a third-party service provider 
(SP) for information system security services, the DIB participant may 
share GFI with that SP under the following conditions and as authorized 
in writing by the Government:
    (1) The DIB participant must identify the SP to the Government and 
request permission to share or disclose any GFI with that SP (which may 
include a request that the Government share information directly with 
the SP on behalf of the DIB participant) solely for the authorized 
purposes of this program;
    (2) The SP must provide the Government with sufficient information 
to enable the Government to determine whether the SP is eligible to 
receive such information, and possesses the capability to provide 
appropriate protections for the GFI;
    (3) Upon approval by the Government, the SP must enter into a 
legally binding agreement with the DIB participant (and also an 
appropriate agreement with the Government in any case in which the SP 
will receive or share information directly with the Government on behalf 
of the DIB participant) under which the SP is subject to all applicable 
requirements of this part and of any supplemental terms and conditions 
in the DIB participant's FA with the Government, and which authorizes 
the SP to use the GFI only as authorized by the Government.
    (k) The DIB participant may not sell, lease, license, or otherwise 
incorporate the GFI into its products or services, except that this does 
not prohibit a DIB participant from being appropriately designated an SP 
in accordance with paragraph (j) of this section.



Sec. 236.5  Cyber security information sharing.

    (a) GFI. The Government shall share GFI with DIB participants or 
designated SPs in accordance with this part.
    (b) Initial incident reporting. The DIB participant shall report to 
DC3/DCISE cyber incidents involving covered defense information on a 
covered DIB system. These initial reports will be provided within 72 
hours of discovery. DIB participants also may report other cyber 
incidents to the Government if the DIB participant determines the 
incident may be relevant to information assurance for covered defense 
information or covered DIB systems or other information assurance 
activities of the Government.
    (c) Follow-up reporting. After an initial incident report, the 
Government and the DIB participant may voluntarily share additional 
information that is determined to be relevant to a reported incident, 
including information regarding forensic analyses, mitigation and 
remediation, and cyber intrusion damage assessments.
    (d) Cyber intrusion damage assessment. Following analysis of a cyber 
incident, DC3/DCISE may provide information relevant to the potential or 
known compromise of DoD acquisition program information to the Office of 
the

[[Page 558]]

Secretary of Defense's Damage Assessment Management Office (OSD DAMO) 
for a cyber intrusion damage assessment. The Government may provide DIB 
participants with information regarding the damage assessment.
    (e) DIB participant attribution information. The Government 
acknowledges that information shared by the DIB participants under this 
program may include extremely sensitive proprietary, commercial, or 
operational information that is not customarily shared outside of the 
company, and that the unauthorized use or disclosure of such information 
could cause substantial competitive harm to the DIB participant that 
reported that information. The Government shall take reasonable steps to 
protect against the unauthorized use or release of such information 
(e.g., attribution information and other nonpublic information) received 
from a DIB participant or derived from such information provided by a 
DIB participant, including applicable procedures (see Sec. 236.5(h)). 
The Government will restrict its internal use and disclosure of 
attribution information to only Government personnel and Government 
support contractors that are bound by appropriate confidentiality 
obligations and restrictions relating to the handling of this sensitive 
information and are engaged in lawfully authorized activities.
    (f) Non-attribution information. The Government may share non-
attribution information that was provided by a DIB participant (or 
derived from information provided by a DIB participant) with other DIB 
participants in the DIB CS/IA program, and may share such information 
throughout the Government (including with Government support contractors 
that are bound by appropriate confidentiality obligations) for cyber 
security and information assurance purposes for the protection of 
Government information or information systems.
    (g) Electronic media. Electronic media/files provided by DIB 
participants to DC3 under paragraphs (b), (c) and (d) of this section 
are maintained by the digital and multimedia forensics laboratory at 
DC3, which implements specialized handling procedures to maintain its 
accreditation as a digital and multimedia forensics laboratory. DC3 will 
maintain, control, and dispose of all electronic media/files provided by 
DIB participants to DC3 in accordance with established DoD policies and 
procedures.
    (h) Freedom of Information Act (FOIA). Agency records, which may 
include qualifying information received from non-federal entities, are 
subject to request under the Freedom of Information Act (5 U.S.C. 552) 
(FOIA), which is implemented in the Department of Defense by DoD 
Directive 5400.07 and DoD Regulation 5400.7-R (see 32 CFR Parts 285 and 
286, respectively). Pursuant to established procedures and applicable 
regulations, the Government will protect sensitive nonpublic information 
under this Program against unauthorized public disclosure by asserting 
applicable FOIA exemptions, and will inform the non-Government source or 
submitter (e.g., DIB participants) of any such information that may be 
subject to release in response to a FOIA request, to permit the source 
or submitter to support the withholding of such information or pursue 
any other available legal remedies.



Sec. 236.6  General provisions.

    (a) Confidentiality of information that is exchanged under this 
program will be protected to the maximum extent authorized by law, 
regulation, and policy.
    (b) The Government and DIB participants will conduct their 
respective activities under this program in accordance with applicable 
laws and regulations, including restrictions on the interception, 
monitoring, access, use, and disclosure of electronic communications or 
data. The Government and the DIB participant each bear responsibility 
for their own actions under this program.
    (c) Prior to sharing any information with the Government under this 
program pursuant to the FA, the DIB participant shall perform a legal 
review of its policies and practices that support its activities under 
this program, and shall make a determination that such policies, 
practices, and activities comply with applicable legal requirements.
    (d) This voluntary DIB CS/IA program is intended to safeguard 
covered

[[Page 559]]

defense information. None of the restrictions on the Government's use or 
sharing of information under the DIB CS/IA program shall limit the 
Government's ability to conduct law enforcement, counterintelligence 
activities, or other activities in the interest of national security; 
and participation does not supersede other regulatory or statutory 
requirements.
    (e) Participation in the DIB CS/IA program is voluntary and does not 
obligate the DIB participant to utilize the GFI in, or otherwise to 
implement any changes to, its information systems. Any action taken by 
the DIB participant based on the GFI or other participation in this 
program is taken on the DIB participant's own volition and at its own 
risk and expense.
    (f) A DIB participant's voluntary participation in this program is 
not intended to create any unfair competitive advantage or disadvantage 
in DoD source selections or competitions, or to provide any other form 
of unfair preferential treatment, and shall not in any way be 
represented or interpreted as a Government endorsement or approval of 
the DIB participant, its information systems, or its products or 
services.
    (g) The DIB participant and the Government may each unilaterally 
limit or discontinue participation in this program at any time. 
Termination shall not relieve the DIB participant or the Government from 
obligations to continue to protect against the unauthorized use or 
disclosure of GFI, attribution information, contractor proprietary 
information, third-party proprietary information, or any other 
information exchanged under this program, as required by law, 
regulation, contract, or the FA.
    (h) Upon termination of the FA, and/or change of Facility Security 
Clearance status below Secret, GFI must be returned to the Government or 
destroyed pursuant to direction of, and at the discretion of, the 
Government.
    (i) Participation in this program does not abrogate the Government's 
or the DIB participants' rights or obligations regarding the handling, 
safeguarding, sharing, or reporting of information, or regarding any 
physical, personnel, or other security requirements, as required by law, 
regulation, policy, or a valid legal contractual obligation.



Sec. 236.7  DIB participant eligibility requirements.

    To be eligible to participate in this program, a DIB company must:
    (a) Have or acquire DoD-approved medium assurance certificates to 
enable encrypted unclassified information sharing between the Government 
and DIB participants;
    (b) Have an existing active Facility Security Clearance (FCL) 
granted under the National Industrial Security Program Operating Manual 
(NISPOM) (DoD 5220.22-M) with approved safeguarding for at least Secret 
information, and continue to qualify under the NISPOM for retention of 
its FCL and approved safeguarding (http://www.dtic.mil/whs/directives/
corres/pdf/522022m.pdf);
    (c) Have or acquire a Communication Security (COMSEC) account in 
accordance with the NISPOM Chapter 9, Section 4 (DoD 5220.22-M), which 
provides procedures and requirements for COMSEC activities;
    (d) Obtain access to DoD's secure voice and data transmission 
systems supporting the DIB CS/IA program,
    (e) Own or operate covered DIB system(s), and
    (f) Execute the standardized FA with the Government (available 
during the application process), which implements the requirements set 
forth in Sec. Sec. 236.4 through 236.6.



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.

    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)

[[Page 560]]

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 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;

[[Page 561]]

    (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 
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

[[Page 562]]

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 239_HOMEOWNERS ASSISTANCE PROGRAM_APPLICATION PROCESSING--
Table of Contents



Sec.
239.1 Purpose.
239.2 Applicability and scope.
239.3 Policy.
239.4 Definitions.
239.5 Benefit elections.
239.6 Eligibility.
239.7 Responsibilities.
239.8 Funding.
239.9 Application processing procedures.
239.10 Management controls.
239.11 Appeals.
239.12 Tax documentation.
239.13 Program performance reviews.
239.14 On-site inspections.
239.15 List of HAP field offices.

    Authority: 42 U.S.C. 3374, as amended by Section 1001, ARRA, Public 
Law 111-5.

    Source: 75 FR 69873, Nov. 16, 2010, unless otherwise noted.



Sec. 239.1  Purpose.

    This part:
    (a) Continues to authorize the Homeowners Assistance Program (HAP) 
under Section 3374 of title 42, United States Code (U.S.C.), to assist 
eligible military and civilian Federal employee homeowners when the real 
estate market is adversely affected directly related to the closure or 
reduction-in-scope of operations due to Base Realignment and Closure 
(BRAC). Additionally, in accordance with section 1001, American Recovery 
and Reinvestment Act of 2009 (ARRA), Public Law 111-5, this part 
temporarily expands authority provided in section 3374, of title 42 
U.S.C., to provide assistance to: Wounded, Injured, or Ill members of 
the Armed Forces (30 percent or greater disability), wounded Department 
of Defense (DoD) and Coast Guard civilian homeowners reassigned in 
furtherance of medical treatment or rehabilitation or due to medical 
retirement in connection with their disability, surviving spouses of 
fallen warriors, Base Realignment and Closure (BRAC) 2005 impacted 
homeowners relocating during the mortgage crisis, and Service member 
homeowners undergoing Permanent Change of Station (PCS) moves during the 
mortgage crisis. This authority is referred to as ``Expanded HAP.''
    (b) Establishes policy, authority, and responsibilities for managing 
Expanded HAP and defines eligibility for financial assistance.
    (c) In accordance with this part, the Under Secretary of Defense for 
Acquisition, Technology, and Logistics (USD(AT&L)) has overall 
responsibility and, through the Deputy Under Secretary of Defense for 
Installations and Environment (DUSD(I&E)), provides oversight for this 
program. The Army, acting as the DoD Executive Agent for administering 
the HAP, uses the Headquarters, U.S. Army Corps of Engineers (HQUSACE) 
to implement the program.



Sec. 239.2  Applicability and scope.

    This part applies to the Office of the Secretary of Defense, the 
Military Departments (including the U.S. Coast Guard), the Chairman of 
the Joints Chiefs of Staff, the Combatant Commands, the Inspector 
General of the Department of Defense, the Defense Agencies, DoD Field 
Activities, and all other organizational entities within the Department 
of Defense (hereafter referred to collectively as the ``DoD 
Components''). This part for Expanded HAP is applicable until September 
30, 2012, or as otherwise extended by law.

[[Page 563]]



Sec. 239.3  Policy.

    It is DoD policy, in implementing section 3374 of title 42, United 
States Code, as amended by section 1001 of the ARRA (Pub. L. 111-5), 
that those eligible (see section 239.6 of this part) to participate in 
the HAP and Expanded HAP are treated fairly and receive available 
benefit as quickly as practicable.



Sec. 239.4  Definitions.

    (a) Armed Forces. The Army, Navy, Air Force, Marine Corps, and Coast 
Guard (see section 101(a) of title 10, U.S.C., as stipulated in section 
1001(p) of Public Law 111-5).
    (b) Closing costs. Sellers' closing costs typically include: loan 
payoff fees; the real estate commission; title insurance; all or part of 
transfer taxes and escrow fees, if there are any; attorney's fees where 
applicable; and other fees set by local custom. HAP pays sellers' 
closing costs that are customary for the region where the home is 
located. Applicant's realtor or lender can provide the applicant with 
the normal closing costs for his/her region. HAP will reimburse the 
seller for limited contributions made to the buyer's portion of closing 
costs, including appraisal cost and realtor fees.
    (c) Deficiency judgment. Judicial recognition of personal liability 
under applicable state law against a Service member whose property was 
foreclosed on or who otherwise passed title to another person for a 
primary residence through a sale that realized less than the full 
outstanding mortgage balance.
    (d) Deployment. Performing service in a training exercise or 
operation at a location or under circumstances that make it impossible 
or infeasible for the member to spend off-duty time in the housing in 
which the member resides when on garrison or installation duty at the 
member's permanent duty station, or home port, as the case may be.
    (e) Eligible mortgage. A mortgage secured by the primary residence 
that was incurred to acquire or improve the primary residence. For a 
mortgage refinancing the original mortgage(s) or for a mortgage incurred 
subsequent to purchasing the property, funds from the refinanced or 
subsequent mortgages must be traced to the purchase of the primary 
residence or have been used to improve the primary residence. Home 
improvements that are documented (even if not financed through a 
subsequent mortgage or line of credit) may be added to the purchase 
price of the primary residence. Funds from a refinanced or subsequent 
mortgage that were used for other purposes are not eligible and may not 
be considered. Benefits will be calculated using the amount of $729,750 
for primary residences with an eligible mortgage that exceeds $729,750. 
The total benefit payable (excluding allowable closing costs) shall not 
exceed $729,750. The ARRA expanded HAP calculates PFMV as the purchase 
price plus improvements. Improvements are identified in the Internal 
Revenue Publication 523 (http://www.irs.gov/publications/p523/
ar02.html) which outlines items considered home improvements and 
distinguishes improvements from repairs and maintenance.
    (f) Forward deployment. Performing service in an area where the 
Secretary of Defense or the Secretary's designee has determined that 
Service members are subject to hostile fire or imminent danger under 
section 310(a)(2) of title 37, U.S.C.
    (g) Primary residence. The one- or two-family dwelling from which 
employees or members regularly commute (or commuted) to their primary 
place of duty. Under Sec. 239.6(a) and (b) of this part, the relevant 
property for which compensation might be offered must have been the 
primary residence of the member or civilian employee at the time of the 
relevant wound, injury, or illness. The first field grade officer (or 
civilian equivalent) in the member or employee's chain of command may 
certify primary residence status.
    (h) Prior Fair Market Value (PFMV). The PFMV is the purchase price 
of the primary residence. Benefits will be calculated using the amount 
of $729,750 as the PFMV for primary residences with a PFMV that exceeds 
$729,750.
    (i) Purchase. Purchase occurs when the applicant enters into a 
contract for the purchase of the property. In the absence of a contract 
for purchase, the purchase occurs when the applicant closes on the 
property.

[[Page 564]]

    (j) Reasonable effort to sell. Applicant's primary residence must be 
listed, actively marketed, and available for purchase for a minimum of 
120 days. With regard to marketing, applicant must demonstrate that the 
asking price was within the current market value of the home as 
determined by the HQUSACE automated value model (AVM) for no less than 
30 days. It is the applicant's responsibility to explain marketing 
efforts by detailing how the asking price was gradually reduced until it 
reached the true current fair market value (e.g., maintaining a log 
containing date and asking price recorded over period of time indicating 
number of visits by prospective buyers and offers to purchase). If an 
applicant is unable to sell the primary residence, the HQUSACE will 
determine whether efforts to sell were reasonable.
    (k) Permanent Change of Station (PCS). The assignment or transfer of 
a member to a different permanent duty station (PDS), to include 
relocation to place of retirement, when retirement is mandatory, under a 
competent authorization/order that does not specify the duty as 
temporary, provide for further assignment to a new PDS, or direct the 
military service member return to the old PDS.



Sec. 239.5  Benefit elections.

    Section 3374 of title 42, U.S.C., as amended by section 1001 of the 
ARRA, Public Law 111-5, authorizes the Secretary of Defense, under 
specified conditions, to acquire title to, hold, manage, and dispose of, 
or, in lieu thereof, to reimburse for certain losses upon private sale 
of, or foreclosure against, any property improved with a one- or two-
family dwelling owned by designated individuals.
    (a) General benefits. (1) If an applicant is unable to sell the 
primary residence after demonstrating reasonable efforts to sell (see 
Definitions, Sec. 239.4(i) of this part), the Government may purchase 
the primary residence for the greater of:
    (i) The applicable percentage (identified by applicant type in Sec. 
239.5(a)(4) of this part) of the Prior Fair Market Value (PFMV) of the 
primary residence, or
    (ii) The total amount of the eligible mortgage(s) that remains 
outstanding; however, the benefit payable (excluding allowable closing 
costs) shall not exceed $729,750.
    (2) If an applicant sells, has sold, or otherwise has transferred 
title of the primary residence, the benefit calculation shall be the 
amount of closing costs plus an amount not to exceed the difference 
between the applicable percentage of the PFMV and the sales price.
    (3) If an applicant is foreclosed upon, the benefit will pay all 
legally enforceable liabilities directly associated with the foreclosed 
mortgage (e.g., a deficiency judgment).
    (4) Applicable percentages. (i) If an applicant is eligible under 
Sec. 239.6(a)(1) or (2) of this part, and sells the primary residence, 
the applicable percentage shall be 95 percent of the PFMV. In addition, 
closing costs incurred on the sale may be reimbursed.
    (ii) If an applicant is eligible under Sec. 239.6(a)(1) or (2) of 
this part, and is unable to sell the primary residence after 
demonstrating reasonable efforts to sell, the applicable percentage 
shall be 90 percent of the PFMV. Closing costs incurred on the sale may 
be reimbursed.
    (iii) If an applicant is eligible under Sec. 239.6(a)(3) or (4) of 
this part and sells the primary residence, the applicable percentage 
shall be 90 percent of the PFMV. In addition, closing costs incurred on 
the sale may be reimbursed.
    (iv) If an applicant is eligible under Sec. 239.6(a)(3) or (4) of 
this part and is unable to sell the primary residence after 
demonstrating reasonable efforts to sell, the applicable percentage 
shall be 75 percent of the PFMV. As noted under paragraph (a)(1) of this 
section, however, the applicant may instead be eligible for payment of 
the eligible mortgage outstanding.
    (b) Rules applicable to all benefit calculations. (1) Prior to 
making any payment, the Government must determine that title to the 
property has been transferred or will be transferred as the result of 
making such payment. If the Government determines that making a benefit 
payment will not result in the transfer of title to the property, no 
payment will be made.

[[Page 565]]

    (2) A short sale will be treated as a private sale. If an applicant 
remains personally liable for a deficiency between the outstanding 
mortgage and the sale price, the amount of this deficiency may be 
included in the benefit, provided that the total amount of the benefit 
does not exceed the difference between 90 percent of the PFMV and the 
sales price.
    (c) Payment of benefits. (1) Private sale: Where a benefit payment 
exceeds funds required to clear the mortgage and pay closing costs, the 
amount exceeding the mortgage and closing costs will be paid directly to 
the applicant. In the case of a short sale, if an applicant remains 
personally liable for a deficiency between the outstanding mortgage and 
the sale price, that deficiency shall be paid directly to the lender on 
behalf of the applicant. If the applicant was fully released from 
liability after a short sale, no benefit shall be paid to either the 
applicant or lender.
    (2) Government purchase: Benefit is paid directly to the lender in 
exchange for government possession of the property. Since the benefit 
reimburses the applicant a percentage of the applicant's purchase price, 
if the benefit exceeds the mortgage payoff amount, the applicant will 
receive a benefit payment for the difference between the mortgage payoff 
and the total benefit payment. If the applicant has a buyer for the 
home, the payment of real estate commissions when an applicant's 
mortgage exceeds the property's current fair market value (i.e., upside 
down) will be accomplished as follows:
    (i) Commission will be at the normal and customary rate for the area 
(normally six percent) on the price agreed upon by the applicant and the 
buyer and to whom the Government will then sell the home. While the 
commission payment is the responsibility of the applicant, the 
Government will make the commission payment for the applicant when the 
home is sold by the Government to the applicant's buyer contingent upon 
both the Government acquisition and Government sale contract 
transactions being completed and recorded. Commissions will be paid to 
the broker listing the property. The allocation of dollars to real 
estate agents will be the responsibility of the listing broker.
    (ii) After Government acquisition, the Government will then sell the 
property to the buyer found by the applicant.
    (iii) No other payment of fees or commissions will be made without 
the prior approval of HQUSACE.
    (3) Foreclosure: In the case of a foreclosure, benefit is paid to 
lien holder for legally enforceable liabilities.
    (d) Tax Implications. 26 U.S.C. 132(n) exempts Expanded HAP benefits 
from Federal taxes and is not subject to withholding.



Sec. 239.6  Eligibility.

    (a) Eligibility by Category. Those eligible for benefits under the 
Expanded HAP include the following categories of persons:
    (1) Wounded, Injured, or Ill. (i) Members of the Armed Forces:
    (A) Who receive a disability rating of 30% or more for an unfitting 
condition (using the Department of Veterans Affairs Schedule for Ratings 
Disabilities), or who are eligible for Service member's Group Life 
Insurance Traumatic Injury Protection Program, or whose treating 
physician (in a grade of at least captain in the Navy or Coast Guard or 
colonel in Army, Marine Corps, or Air Force) certifies that the member 
is likely, by a preponderance of the evidence, to receive a disability 
rating of 30 percent or more for an unfitting condition (using the 
Department of Veterans Affairs Schedule for Ratings Disabilities) for 
wounds, injuries, or illness incurred in the line of duty while 
deployed, on or after September 11, 2001, and
    (B) Who are reassigned in furtherance of medical treatment or 
rehabilitation, or due to retirement in connection with such disability, 
and
    (C) Who need to market the primary residence for sale due to the 
wound, injury, or illness. (For example, the need to be closer to a 
hospital or a family member caregiver or the need to find work more 
accommodating to the disability.)
    (ii) Civilian employees of DoD or the United States Coast Guard 
(excluding temporary employees or contractors,

[[Page 566]]

but including employees of non-appropriated fund instrumentalities):
    (A) Who suffer a wound, injury, or illness (not due to own 
misconduct), on or after September 11, 2001, in the performance of 
duties while forward deployed in support of the Armed Forces, whose 
treating physician provides written documentation that the individual, 
by a preponderance of the evidence, meets the criteria for a disability 
rating of 30 percent or more. As described in paragraph (a)(1) of this 
section, this documentation will be certified by a physician in the 
grade of at least captain in the Navy or Coast Guard or colonel in Army, 
Marine Corps, or Air Force.
    (B) Who relocate from their primary residence in furtherance of 
medical treatment, rehabilitation, or due to medical retirement 
resulting from the wound, injury, or illness, and
    (C) Who need to market the primary residence for sale due to the 
wound, injury, or illness. (For example, the need to be closer to a 
hospital or a family member caregiver or the need to find work more 
accommodating to the disability.)
    (2) Surviving spouse. The surviving spouse of a Service member or of 
a civilian employee:
    (i) Whose spouse dies as the result of a wound, injury, or illness 
incurred in the line of duty while deployed (or forward deployed for 
civilian employees) on or after September 11, 2001, and
    (ii) Who relocates from the member's or civilian employee's primary 
residence within two years of the death of spouse.
    (3) BRAC 2005 members and civilian employees. Members of the Armed 
Forces and civilian employees of the Department of Defense and the 
United States Coast Guard (not including temporary employees or 
contractors) and employees of non-appropriated fund instrumentalities 
meeting the assignment requirements of Sec. 239.6(b)(4)(i)(A) of this 
part and who have not previously received HAP benefit payments:
    (i) Whose position is eliminated or transferred because of the 
realignment or closure; and
    (ii) Who accepts employment or is required to relocate because of a 
transfer beyond the normal commuting distance from the primary residence 
(50 miles). The new residence must be within 50 miles of the new duty 
station.
    (4) Permanently reassigned members of the Armed Forces. Members who 
have not previously received HAP benefit payments and who are reassigned 
under permanent PCS orders:
    (i) Dated between February 1, 2006, and September 30, 2012 (subject 
to availability of funds),
    (ii) To a new duty station or home port outside a 50-mile radius of 
the member's former duty station or home port.
    (b) Eligibility based on economic impact, timing, price, orders, and 
submission of application. (1) Minimum economic impact. (i) BRAC 2005 
Members and Civilian Employees as well as permanently reassigned members 
of the Armed Forces whose primary residence have suffered at least a 10 
percent personal home value loss from the date of purchase to date of 
sale. Market value of the home will be verified by the USACE.
    (ii) Applicants qualifying as Wounded, Injured, or Ill or as 
surviving spouse do not need to show minimum economic impact.
    (2) Timing of purchase and sale. (i) BRAC 2005 Members and Civilian 
Employees must have been the owner-occupant of their primary residence 
before May 13, 2005, the date of the BRAC 2005 announcement or have 
vacated the owned residence as a result of being ordered into on-post 
housing after November 13, 2004. An owner-occupant is someone who has 
both purchased and resides in the residence.
    (ii) Permanently reassigned members of the Armed Forces must have 
purchased their primary residence before July 1, 2006.
    (iii) Wounded, injured, or ill members and employees and Surviving 
Spouses are eligible for compensation without respect to the date of 
purchase.
    (iv) BRAC 2005 Members and Civilian employees and permanently 
reassigned members must have sold their primary residence between July 
1, 2006 and September 30, 2012.
    (3) Maximum home prior fair market value and eligible mortgage. When 
calculating benefits, both the PFMV and the

[[Page 567]]

eligible mortgage will be capped at $729,750.
    (4) Date of assignment; report date; basis for relocation. (i) Date 
of assignment, report date. (A) BRAC 2005 Members and Civilian Employees 
must have been assigned to an installation or unit identified for 
closure or realignment under the 2005 round of the Base Realignment and 
Closure Act of 1990 on May 13, 2005; transferred from such an 
installation or unit, or employment terminated as a result of a 
reduction in force, after November 13, 2004; or transferred from such an 
installation or activity on an overseas tour after May 13, 2002. BRAC 
2005 Members transferred from such an installation or activity after May 
13, 2005, are also eligible if, in connection with that transfer the 
member was informed of a future, programmed reassignment to the 
installation.
    (B) For initial implementation, permanently reassigned members of 
the Armed Forces must have received qualifying orders to relocate dated 
between February 1, 2006, and September 30, 2010. These dates may be 
extended to September 30, 2012, at the discretion of the DUSD(I&E) based 
on availability of funds.
    (ii) Basis for relocation: Permanently reassigned members of the 
Armed Forces who are reassigned or who otherwise relocate for the 
following reasons are not eligible for Expanded HAP benefits:
    (A) Members who voluntarily retire prior to reaching their mandatory 
retirement date.
    (B) Members who are a new accession into the Armed Forces or who are 
otherwise entering active duty.
    (C) Members who are voluntarily separated or discharged.
    (D) Members whose separation or discharge is characterized as less 
than honorable.
    (E) Members who request and receive voluntary release from active 
duty (REFRAD).
    (F) Members who are REFRAD for misconduct or poor performance.
    (c) Applications will be processed according to eligibility category 
in the following order: (1) Wounded, injured, and ill. Within this 
category, applications will generally be processed in chronological 
order of the wound, injury, or illness.
    (2) Surviving spouses. Within this category, applications will 
generally be processed in chronological order of the date of death of 
the member or employee.
    (3) BRAC 2005 members and civilian employees. Within this category, 
applications will generally be processed in chronological order of the 
date of job elimination.
    (4) Permanently reassigned members of the Armed Forces. Within this 
category, applications will generally be processed beginning with the 
earliest report-not-later-than date of PCS orders.



Sec. 239.7  Responsibilities.

    (a) The DUSD(I&E), under the authority, direction, and control of 
the USD(AT&L), shall, in relation to the Expanded HAP:
    (1) Prescribe and monitor administrative and operational policies 
and procedures.
    (2) Determine applicable personnel benefits and policies, in 
coordination with the Under Secretary of Defense (Comptroller) and the 
Under Secretary of Defense for Personnel and Readiness.
    (3) Serve as senior appeals authority for appeals submitted by 
applicants.
    (b) The Under Secretary of Defense (Comptroller) shall, in relation 
to the Expanded HAP:
    (1) Implement policies and prescribe procedures for financial 
operations.
    (2) Review and approve financial plans and budgets.
    (3) Issue financing and obligation authorities.
    (4) Administer the DoD Homeowners Assistance Fund.
    (c) The Deputy Assistant Secretary of the Army for Installations and 
Housing (DASA(I&H)), subject to review by the DUSD(I&E), as the DoD 
Executive Agent for administering, managing, and executing the HAP, 
shall:
    (1) Establish detailed policies and procedures for execution of the 
program.
    (2) Maintain necessary records, prepare reports, and conduct audits.
    (3) Publish regulations and forms.
    (4) Disseminate information on the program.

[[Page 568]]

    (5) Forward copies of completed responses to congressional inquiries 
and appeals to the DUSD(I&E) for information.
    (6) Serve as the initial approval authority for HAP appeals. The 
DASA(I&H) may approve appeals and shall forward recommendations for 
Expanded HAP denial to the DUSD(I&E) for decision.
    (d) The Heads of the DoD Components and the Commandant of the Coast 
Guard, by agreement of the Secretary of Homeland Security, shall:
    (1) Designate at least one representative at the headquarters level 
to work with DASA(I&H) and HQUSACE HAP offices.
    (2) Require each installation to establish a liaison with the 
nearest HAP field office to obtain guidance or assistance on the HAP.
    (3) Supply the HQUSACE HAP office a copy of any internal regulation, 
instruction, or guidance published relative to the Expanded HAP program.
    (4) Disseminate information on the Expanded HAP and, upon request, 
supply HAP field offices with data pertaining to the Expanded HAP.
    (e) HQUSACE. (1) Real Estate Community of Practice (CEMP-CR). The 
Director of Real Estate, acting for the Chief of Engineers, has been 
delegated authority and responsibility for the execution of HAP. CEMP-
CR, as the central office for HAP, is responsible for the following:
    (i) Supervision, interagency coordination, development of 
procedures, policy guidance, and processing of appeals forwarded from 
the districts and HQUSACE Major Subordinate Commands (MSC).
    (ii) Maintaining an Expanded HAP central office and Expanded HAP 
field offices.
    (iii) Processing appeals from the MSC where applicant agreement 
cannot be reached. Such appeals will be forwarded, in turn, to DASA(I&H) 
for consideration.
    (2) Districts. Districts designated by the Director of Real Estate, 
and their Chiefs of Real Estate, have been delegated the authority to 
administer, manage, and execute the HAP on behalf of all applicants. 
Districts (as identified in Sec. 239.9 of this part) are responsible 
for the following:
    (i) Accepting applications (DD Form 1607) for HAP and Expanded HAP 
benefits.
    (ii) Determining the eligibility of each applicant for Expanded HAP 
assistance using the criterion established by the DUSD(I&E).
    (iii) Determining and advising each applicant on the most 
appropriate type of assistance.
    (iv) Determining amounts to be paid, consistent with DoD policy, and 
making payments or authorizing and arranging for acquisition or transfer 
of the applicant's property.
    (v) Maintaining, managing, and disposing of acquired properties or 
contracting for such services with private contractors.
    (vi) Processing all appeals, except where applicant agreement cannot 
be reached. Such appeal cases will be forwarded, in turn, to the MSC, 
CEMP-CR, and DASA(I&H) for consideration.
    (3) HQUSACE Major Subordinate Commands (MSC). MSCs have been 
delegated the authority to perform oversight and review of district 
program management and based upon that review, or in response to 
specific requests, to provide local policy guidance to the districts and 
recommend program changes or forward appeals to CEMP-CR for 
consideration.



Sec. 239.8  Funding.

    (a) Revolving fund account. The revolving fund account contains 
money appropriated in accordance with the ARRA, and receipts from the 
management, rental, or sale of the properties acquired.
    (b) Appropriation, receipts, and allocation. Funds required for 
administration of the program will be made available by DoD to the 
HQUSACE. Funds provided will be used for purchase or reimbursement as 
provided herein and to defray expenses connected with the acquisition, 
management, and disposal of acquired properties, including payment of 
mortgages or other indebtedness, as well as the cost of staff services, 
contract services, Title Insurance, and other indemnities.
    (c) Obligation of funds. For government acquisition of homes under 
the

[[Page 569]]

authority of this Rule, funds will be committed prior to the 
Government's offer to purchase is conveyed to the applicant. The 
obligation will occur upon timely receipt of the accepted offer returned 
by the applicant.



Sec. 239.9  Application processing procedures.

    (a) Acceptance of applications. The district will accept 
applications (DD Form 1607) for HAP and Expanded HAP benefits submitted 
through the U.S. Mail or other delivery system direct to the appropriate 
district office. See Sec. 239.15 of this part for a list of District 
field offices.
    (1) Applications for benefits by members of the Armed Forces due to 
eligibility pursuant to Sec. 239.6(a)(4) of this part because of 
permanent reassignment must be submitted directly to the U.S. Army Corps 
of Engineers field office identified in Sec. 239.15 of this part by 
U.S. Mail or commercial delivery service, and must be postmarked or 
deposited with the commercial delivery service no later than September 
30, 2012. Applications postmarked or deposited after September 30, 2012, 
will not be accepted.
    (2) Applications of eligible personnel for benefits due to 
eligibility pursuant to Sec. 239.6(a)(3) of this part because of BRAC 
2005 must be submitted directly to the U.S. Army Corps of Engineers 
field office identified in Sec. 239.15 of this part by U.S. Mail or 
commercial delivery service, and must be postmarked or deposited with 
the commercial delivery service no later than September 30, 2012. 
Applications postmarked or deposited after September 30, 2012, will not 
be accepted.
    (b) Application Form (DD Form 1607). Should the DD form 1607 not 
provide all the information required to process Expanded HAP 
applications, Districts must provide applicants appropriate supplemental 
instructions.
    (c) Assignment of application numbers. (1) Assignment of application 
numbers. When a District receives an application, it will assign the 
application number and develop and maintain an individual file for each 
property. Applications for programs located in another District will not 
be assigned a number, but will be forwarded immediately to the District 
having jurisdiction. An application number, once assigned, will not be 
reassigned regardless of the disposition of the original application. 
Reactivation or reopening of a withdrawn application does not require a 
new application or application number.
    (2) Method of assignment. An application will be numbered in the 
following manner:
    (i) Agency code. Code to indicate the Federal agency accountable for 
installation being closed or applicant support:
    (A) 1--Army
    (B) 2--Air Force
    (C) 3--Navy
    (D) 4--Marine Corps
    (E) 5--Defense Agencies
    (F) 6--Non-Defense Agencies
    (G) 7--U.S. Coast Guard
    (ii) District code.
    (A) Sacramento: L2
    (B) Savannah: K6
    (C) Fort Worth: M2
    (iii) Applicant category code (military/civilian/wounded/surviving 
spouse/PCS):
    (A) 1 = Civilian (BRAC)
    (B) 2 = Military (BRAC)
    (C) 3 = Non-appropriated Fund Instrumentalities
    (D) 4 = Military Wounded
    (E) 5 = Civilian Wounded
    (F) 6 = Surviving Spouse (military deceased)
    (G) 7 = Surviving Spouse (civilian employee deceased)
    (H) 8 = Military PCS
    (iv) State: State abbreviation.
    (v) Installation number: The five digit ZIP Code of the applicant's 
present (former, if they have already moved) installation, offices, or 
unit address. Examples are:
    (A) For a BRAC 05 applicant moving from the closing Saint Louis, 
Missouri, DFAS office to Minneapolis, Minnesota, use the ZIP Code of the 
city from which he or she is moving, e.g., 63101, for St. Louis, 
Missouri.
    (B) For wounded warrior or surviving spouse who moved from primary 
residence, use present installation or home town.
    (C) For Service members who are eligible based on PCS criteria, use 
ZIP

[[Page 570]]

Code of installation from which they depart.
    (vi) Application Number: Sequential beginning with 0001.

    Example 1: 
    2 K6 2 NH0 3 8 0 30 0 0 1
    Air Force-SAS Dist.-Mil BRAC-NH-Pease AFB-Applicant 
    Example 2: 
    1-K 6- 4- NY-1 3 6 0 2-0 0 0 2
    Army-SAS Dist-Mil Wounded-NY-Ft Drum-Applicant 

    (d) Real Estate Values. (1) Because the PFMV is the purchase price 
for Expanded HAP, no appraisal of the property is required. Supporting 
documentation to establish purchase price must be furnished by the 
applicant. Generally, Form HUD-1 will suffice.
    (2) Districts are responsible for ensuring primary residence values 
are appropriate and applicants receive deserved benefit payments. 
Districts will use the CoreLogic AVM to determine the valuation of 
individual primary residences.

[75 FR 69873, Nov. 16, 2010, as amended at 77 FR 39628, July 5, 2012]



Sec. 239.10  Management controls.

    (a) Management systems. Headquarters, USACE has an existing 
information management system that manages all information related to 
the HAP program.
    (1) HAPMIS. The Homeowners Assistance Program Management Information 
System (HAPMIS) provides program management assistance to field offices 
and indicators to managers at field offices, regional headquarters and 
HQUSACE at the Service Member level of detail. The Privacy Act applies 
to this program and the management information system to protect the 
privacy of Expanded HAP applicant information.
    (2) CEFMS. The Corps of Engineers Financial Management System 
(CEFMS) provides detailed funds execution and tracking, to include:
    (i) Funds issued to field offices for execution accountability.
    (ii) Funds committed and obligated by applicant category, 
installation, state and county.
    (b) System of Records Notice (SORN). The Privacy Act limits agencies 
to maintaining ``only such information about an individual as is 
relevant and necessary to accomplish a purpose of the agency required to 
be accomplished by statute or Executive order of the President.'' 5 
U.S.C. 552a(e)(1). The SORN for the Homeowners Assistance Program can be 
found at http://www.defenselink.mil/privacy/notices/army/A0405-
10q_CE.shtml. The Privacy Impact Assessment for the system can be 
reviewed at: http://www.army.mil/ciog6/privacy.html. Individuals seeking 
to determine whether information about them is contained in this system 
should address written inquiries to the Chief of Engineers, Headquarters 
U.S. Army Corps of Engineers, Attn: CERE-R, 441 G Street, NW., 
Washington, DC 20314-1000.



Sec. 239.11  Appeals.

    Applicant appeals will be processed at the district level and 
forwarded through HQUSACE for review. The HQUSACE may approve an appeal 
but must forward any recommendation for denial to the DASA(I&H) for 
review and consideration. DASA(I&H) may approve an appeal but must 
forward recommendations for denial to the DUSD(I&E) for decision. The 
DUSD(I&E) is the senior appeals authority for appeals submitted by 
applicants.



Sec. 239.12  Tax documentation.

    For disbursed funds, tax documents (if necessary) will be certified 
by HQUSACE Finance Center and distributed to applicants and the Internal 
Revenue Service (IRS) annually.



Sec. 239.13  Program performance reviews.

    HQUSACE will prepare monthly program performance reviews using the 
HAPMIS; HQUSACE Annual Management Command Plan and Management Control 
Checklist. In addition, program monitoring will also be conducted 
(through HAPMIS and CEFMS reports) at the Headquarters Department of the 
Army and at the DUSD(I&E) levels.



Sec. 239.14  On-site inspections.

    The HQUSACE and its major subordinate commands may conduct periodic 
on-site inspections of district offices

[[Page 571]]

and monitor program execution through HAPMIS and CEFMS reports.



Sec. 239.15.  List of HAP Field Offices.

                            HAP FIELD OFFICE

    U.S. Army Engineer District, Savannah, Corps of Engineers, Attn: 
CESAS-RE-HM, 100 West Oglethorpe Avenue, Savannah, Georgia 31401-3604, 
1-800-861-8144, Internet Address: http://www.sas.usace.army.mil.

                           HAP CENTRAL OFFICE

    Homeowners Assistance Program, HQ U.S. Army Corps of Engineers Real 
Estate Directorate, Military Division, 441 G Street NW., Washington, DC 
20314-1000.

[77 FR 39629, July 5, 2012]



PART 240_DOD INFORMATION ASSURANCE SCHOLARSHIP PROGRAM (IASP)--
Table of Contents



Sec.
240.1 Purpose.
240.2 Applicability.
240.3 Definitions.
240.4 Policy.
240.5 Responsibilities.
240.6 Retention program.
240.7 Recruitment program.

    Authority: 10 U.S.C. 2200, 10 U.S.C. 7045.

    Source: 77 FR 14955, Mar. 14, 2012, unless otherwise noted.



Sec. 240.1  Purpose.

    This part implements policy, responsibilities and procedures for 
executing the DoD Information Assurance Scholarship Program (IASP).



Sec. 240.2  Applicability.

    This part applies to the Office of the Secretary of Defense, the 
Military Departments, the Office of the Chairman of the Joint Chiefs of 
Staff and the Joint Staff, the Combatant Commands, the Office of the 
Inspector General of the Department of Defense, the Defense Agencies, 
the DoD Field Activities, and all other organizational entities within 
the Department of Defense (hereafter referred to collectively as the 
``DoD Components''). The term ``Military Services,'' as used herein, 
refers to the Army, the Navy, the Air Force, and the Marine Corps.



Sec. 240.3  Definitions.

    The following definitions are used in this part:
    CAE. A collective term that refers to both CAE/IAE and CAE-R.
    CAE/IAE. An institution of higher education that has met established 
criteria for IA education and has been jointly designated by the 
Department of Homeland Security and the NSA as a national center of 
excellence.
    CAE-R. An institution of higher education which has met established 
criteria for IA research and has been jointly designated by the 
Department of Homeland Security and the NSA as a national center of 
excellence.
    IA. For the purpose of this part, the term ``IA'' includes computer 
security, network security, cybersecurity, cyber operations, and other 
relevant IT related to information assurance pursuant to 10 U.S.C. 
2200e.
    IT. For the purpose of this part, the term ``IT'' refers to any 
equipment or interconnected system or subsystem of equipment that is 
used in the automatic acquisition, storage, manipulation, management, 
movement, control, display, switching, interchange, transmission, or 
reception of data or information. ``IT'' includes computers, ancillary 
equipment, software, firmware, and similar procedures, services 
(including support services), and related resources.
    Institution of Higher Education. For the purpose of this part and as 
defined in 20 U.S.C. 1001, an ``institution of higher education'' refers 
to an educational institution in any state that:
    (1) Admits as regular students only individuals who possess a 
certificate of graduation from a school providing secondary education, 
or the recognized equivalent of such a certificate;
    (2) Is legally authorized to provide a program of education beyond 
secondary education;
    (3) Provides an educational program that awards bachelor's degrees, 
or provides no less than a 2-year program that is acceptable for full 
credit toward a degree;
    (4) Is a public or other nonprofit institution; and

[[Page 572]]

    (5) Is accredited by a nationally recognized accrediting agency or 
association, or if not so accredited, is an institution that has been 
granted preaccreditation status by such an agency or association that 
has been recognized by the Secretary of Education for the granting of 
preaccreditation status, and the Secretary has determined that there is 
satisfactory assurance that the institution will meet the accreditation 
standards of such an agency or association within a reasonable time.
    Partner University. A CAE that has joined in academic partnership 
with the NDU IRMC to award master's and doctoral degrees through the DoD 
IASP.
    Principal Investigator. The primary point of contact at each CAE, 
responsible for publicizing the DoD IASP to potential recruitment 
students and working with students during the application process. 
Principal investigators also serve as the primary contact for 
recruitment students and retention students who have transferred from 
the IRMC to a partner university.
    Recruitment Program. The portion of the DoD IASP available to 
qualified non-DoD students currently enrolled or accepted for enrollment 
at a designated CAE.
    Recruitment Students. Non-DoD students currently enrolled at a 
designated CAE who are active participants in the DoD IASP recruitment 
program.
    Retention Program. The portion of the DoD IASP available to full-
time, active duty Service personnel and permanent civilian employees of 
the DoD Components.
    Retention Students. Full-time active duty Service personnel and 
permanent civilian employees of the DoD Components who are active 
participants in the DoD IASP retention program.



Sec. 240.4  Policy.

    It is DoD policy that:
    (a) The Department of Defense shall recruit, develop, and retain a 
highly skilled cadre of professionals to support the critical IA and 
information technology (IT) management, technical, digital and 
multimedia forensics, cyber, and infrastructure protection functions 
required for a secure network-centric environment.
    (b) The DoD IASP shall be used to attract new entrants to the DoD IA 
and IT workforce and to retain current IA and IT personnel necessary to 
support the DoD's diverse warfighting, business, intelligence, and 
enterprise information infrastructure requirements.
    (c) The academic disciplines, with concentrations in IA eligible for 
IASP support include, but are not limited to: biometrics, business 
management or administration, computer crime investigations, computer 
engineering, computer programming, computer science, computer systems 
analysis, cyber operations, cybersecurity, database administration, data 
management, digital and multimedia forensics, electrical engineering, 
electronics engineering, information security (assurance), information 
systems, mathematics, network management/operations, software 
engineering, and other similar disciplines as approved by DoD Chief 
Information Officer (DoD CIO).
    (d) Subject to availability of funds, the DoD may provide grants to 
institutions of higher education for faculty, curriculum, and 
infrastructure development and academic research to support the DoD IA/
IT critical areas of interest.



Sec. 240.5  Responsibilities.

    (a) The Department of Defense Chief Information Officer (DoD CIO) 
shall:
    (1) Establish overall policy and guidance to conduct and administer 
the DoD IASP pursuant to Deputy Secretary of Defense Memorandum, 
``Delegation of Authority and Assignment of Responsibility under section 
922 of the Floyd D. Spence National Defense Authorization Act for Fiscal 
Year 2001,'' October 30, 2000.
    (2) Develop an annual budget recommendation to administer the DoD 
IASP and provide academic scholarships and grants in accordance with 10 
U.S.C. 2200 and 7045.
    (3) Oversee program administration and execution by the Director, 
National Security Agency (DIRNSA).
    (4) Chair the DoD IASP Steering Committee, established pursuant to 
DoD Instruction 5105.18, to oversee and provide program direction over:

[[Page 573]]

    (i) Student eligibility criteria.
    (ii) Grant and capacity building selection criteria for awards to 
CAEs.
    (iii) Final approval for the allocation of individual DoD IASP 
scholarships and grants.
    (iv) Communications and marketing plans.
    (v) DoD IASP metrics and analysis of performance results, including 
student and CAE/IAE feedback.
    (b) The DIRNSA, under the authority, direction, and control of the 
Under Secretary of Defense for Intelligence, shall:
    (1) Serve as the DoD IASP Executive Administrator to:
    (i) Implement the DoD IASP and publish in writing all of the 
criteria, procedures, and standards required for program implementation. 
Responsibilities are to:
    (A) Implement the scholarship application and selection procedures 
for recruitment and retention students.
    (B) Establish procedures for recruiting students to meet service 
obligations through employment with a DoD Component upon graduation from 
their academic program.
    (C) Ensure that all students' academic eligibility is maintained, 
service obligations are completed, and that reimbursement obligations 
for program disenrollment are fulfilled.
    (D) Establish procedures for CAEs and employing DoD Components to 
report on students' progress.
    (E) Maintain appropriate accounting for all funding disbursements.
    (F) Execute the debt collection process on the behalf of the DoD and 
in accordance with Volume 5 of DoD 7000.14-R for scholarship recipients 
who fail to complete a period of obligated service resulting from their 
participation in the DoD IASP. This includes, but is not limited to, 
exercising the authority under 10 U.S.C. 2200a(e), consistent with the 
relevant provisions of 37 U.S.C. 303a(e), to determine an amount owed 
and to take necessary actions to collect the amount owed, and to act 
upon requests for waivers, in whole or in part, when determined to be 
appropriate.
    (ii) Subject to availability of funds, make grants on behalf of the 
DoD CIO to institutions of higher education to support the 
establishment, improvement, and administration of IA education programs 
pursuant to 10 U.S.C. 2200, 2200b, and 7045.
    (A) Develop and implement the annual solicitation for proposals for 
grants.
    (B) Coordinate the review process for grant proposals.
    (C) Distribute grant funding and maintain appropriate accounting.
    (D) Establish annual reporting procedures for grant recipients 
(CAEs) to detail the resulting accomplishments of their grant 
implementations.
    (E) Obtain written documentation from grant recipients (CAEs) on how 
grant funding was utilized and the resulting accomplishments.
    (2) Provide representation to the DoD IASP Steering Committee and 
provide briefings and reports, as required, to effect proper oversight 
by the DoD CIO and the DoD IASP Steering Committee.
    (3) Maintain databases to support the analysis of performance 
results.
    (c) The Chancellor of the Information Resources Management College 
(IRMC) of the National Defense University, under the authority, 
direction and control of the Chairman of the Joint Chiefs of Staff, 
shall:
    (1) Establish partner university agreements with CAEs to provide 
master's and doctoral degree opportunities to current, former, and 
future IRMC students who are awarded retention scholarships.
    (2) Maintain records of DoD IASP student enrollments and graduates 
and provide data to the DoD IASP Executive Administrator and the DoD CIO 
as required.
    (3) Serve as the liaison between IRMC retention students, their 
follow-on partner university, and the DoD IASP Executive Administrator.
    (4) Provide academic representation to the DoD IASP Steering 
Committee and provide briefings and reports, as required, on the IRMC 
portion of the DoD IASP retention program.
    (d) The Heads of the DoD Components shall:
    (1) Determine the requirement for DoD IASP usage as a primary 
vehicle to recruit and retain IA and IT personnel.

[[Page 574]]

    (2) Identify the office of primary responsibility for administering 
the DoD IASP within their DoD Component.
    (3) Establish DoD Component-specific nomination, selection, and 
post-academic assignment criteria for DoD IASP retention students.
    (i) Nominated personnel shall be high performing employees who are 
rated at the higher levels of the applicable performance appraisal 
system and demonstrate sustained quality performance with the potential 
for increased responsibilities. All individuals must be US citizens and 
be able to obtain a security clearance.
    (ii) Nominations must fulfill specific personnel development 
requirements for both the individual nominee and the nominating 
organization.
    (iii) Salaries of retention scholarship recipients shall be paid by 
the nominating DoD Component. When deemed necessary, DoD Components are 
responsible for personnel backfill while recipients are in school.
    (iv) Payback assignments of graduated students shall provide 
relevant, follow-on utilization of academic credentials in accordance 
with DoD Component mission requirements.
    (v) Retention students shall fulfill post-academic service 
obligations pursuant to 10 U.S.C. 2200 and 7045. Members of the Military 
Services shall serve on active duty while fulfilling designated DoD 
Component service obligations. DoD civilian employees shall sign a 
continued service agreement that complies with section 2200 of title 10, 
United States Code, prior to commencement of their education, to 
continue service within the Department of Defense upon conclusion of 
their education, for a period equal to three times the length of the 
education period. The period of obligated service is in addition to any 
other period for which the recipient is obligated to serve on active 
duty or in the civil service, as the case may be. Individuals, who fail 
to complete the degree program satisfactorily, or to fulfill the service 
commitment, shall be required to reimburse the United States pursuant to 
10 U.S.C. 2200a(e) for payments paid to them through the DoD IASP unless 
a waiver, in whole or in part, is granted by the DoD IASP Executive 
Administrator. Head of Components are responsible to ensure enforcement 
of these agreements.
    (4) Determine annual billet requirements for recruitment students 
(the number of DoD IASP recruitment scholars who will be placed in full-
time employment positions with the Component upon graduation). This is 
required to ensure that IASP recruitment graduates have placement upon 
graduation. DoD Components who identify billet requirements for 
recruitment students shall:
    (i) Assess DoD Component skill requirements to determine skill gaps 
and providing the annual recruitment student requirement to the DoD IASP 
Executive Administrator.
    (ii) Participate in the selection process for recruitment students.
    (iii) Coordinate and process security clearances for selected 
recruitment scholarship recipients.
    (iv) Allocate billets for an internship period (if applicable).
    (v) Assign mentors to recruitment students.
    (vi) Determine post-academic billet assignments for recruitment 
students prior to the end of the students' academic program.
    (5) Participate in the evaluation processes to assess and recommend 
improvements to the DoD IASP.



Sec. 240.6  Retention program.

    (a) The DoD IASP retention program is open to qualified DoD civilian 
employees and Service members. Active duty military officers and 
permanent DoD civilian employees may apply for a master's or doctoral 
degree program; enlisted personnel may apply for a master's program. DoD 
Components may further restrict the eligibility of applicants based on 
Component requirements.
    (b) There are three DoD academic institutions participating in the 
DoD IASP: the Air Force Institute of Technology (AFIT) at Wright-
Patterson Air Force Base in Dayton, Ohio; the IRMC of the National 
Defense University (NDU) at Fort McNair in Washington, DC; and the Naval 
Postgraduate School (NPS) in Monterey, California. Students at AFIT and 
NPS attend full-

[[Page 575]]

time programs. Participants may attend the IRMC either full or part-time 
to complete the first part of their required courses and then select a 
follow-on partner university to complete their remaining degree 
requirements either full or part-time. There are no part-time doctoral 
programs. All candidates must meet the eligibility requirements for 
their selected program, which are outlined in DoD IASP Academic Programs 
for Retention Students.
    (1) Military officers and DoD civilian employees may apply to attend 
any one of the three DoD academic institutions.
    (2) Enlisted personnel may attend AFIT or the NPS, which is 
authorized to enroll enlisted DoD IASP participants pursuant to 10 
U.S.C. 2200 and 7045.
    (c) Students must select a degree program in one of the academic 
disciplines listed in Sec. 240.4(c) and in accordance with DoD 
Component requirements.
    (d) Scholarship funding for AFIT, IRMC, the partner universities, 
and NPS includes full tuition costs and required fees and books. All 
travel costs and necessary position back-fill for individuals selected 
for the program must be paid by the nominating DoD Component. Retention 
students shall continue to receive their military pay or civilian salary 
from their DoD Component throughout their course of study.
    (e) DoD Component nominations are due by January 31st each year. The 
student nomination process is outlined in the DoD IASP Nomination 
Process for Retention Students.
    (f) Retention students shall fulfill post-academic service 
obligations pursuant to 10 U.S.C. 2200a and 7045. Service members shall 
serve on active duty while fulfilling designated DoD Component service 
obligations. DoD civilian employees shall sign a continued service 
agreement that complies with 10 U.S.C. 2200a, prior to commencement of 
their education, to continue service within the DoD upon conclusion of 
their education, for a period equal to three times the length of the 
education period. The period of obligated service is in addition to any 
other period for which the recipient is obligated to serve on active 
duty or in the civil service, as the case may be. Individuals who fail 
to complete the degree program satisfactorily or to fulfill the service 
commitment shall be required to reimburse the United States pursuant to 
10 U.S.C. 2200a(e) for payments made to them through the DoD IASP unless 
a waiver, in whole or in part, is granted by the DoD IASP Executive 
Administrator.
    (g) DoD IASP retention participants are obligated to remain in good 
standing in their degree programs, to continue in service as civilian 
employees or members of the Military Services, and where applicable, to 
repay program costs for failure to complete the degree program 
satisfactorily, or to fulfill the service commitment pursuant to 10 
U.S.C. 2200 and 7045, DoD policy, and the policies of the respective DoD 
Component.



Sec. 240.7  Recruitment program.

    (a) Annually, in November, the DoD IASP Executive Administrator 
announces a solicitation for proposal from CAEs interested in 
participating in the DoD IASP. Graduate students and rising junior or 
senior undergraduates accepted at or enrolled in one of these 
institutions may apply for full scholarships to complete a bachelor's, 
master's, or a doctoral degree, or graduate (post-baccalaureate) 
certificate program in one of the disciplines defined in Sec. 240.4(c). 
Student application requirements are included in the solicitation 
proposal released by NSA.
    (b) DoD Component recruitment student requirements are due to the 
DoD IASP Executive Administrator each year by January 31st.
    (c) The student selection process occurs annually in April. The 
selection process is outlined in the DoD IASP Nomination Process for 
Recruitment Students.
    (d) Recruitment students are provided scholarships, covering the 
full cost of tuition and selected books and fees. Students are also 
provided a stipend to cover room and board expenses.
    (e) Recruitment students may be required to complete a student 
internship, depending on the length of their individual scholarship. For 
example, if a scholar receives a scholarship their junior year, an 
internship is required.

[[Page 576]]

If they receive the scholarship their senior year, an internship is not 
required. DoD Components typically use the authority granted in 5 CFR 
213.3102(r) to arrange the internship.
    (f) Pursuant to 10 U.S.C. 2200a, all recruitment students shall sign 
a service agreement prior to commencement of their education and incur a 
service commitment, which commences after the award of the DoD IASP 
authorized degree on a date to be determined by the relevant DoD 
Component. The obligated service in DoD shall be as a civilian employee 
of the Department or as an active duty enlisted member or officer in one 
of the Military Services.
    (1) Individuals selecting employment in the civil service shall 
incur a service obligation of 1 year of service to the DoD upon 
graduation for each year or partial year of scholarship they receive, in 
addition to an internship, if applicable. Pursuant to the authority 
granted in 10 U.S.C. 2200a(g) and the Under Secretary of Defense for 
Personnel and Readiness Memorandum, ``Implementation Authority to Employ 
Individuals Completing Department of Defense Scholarship or Fellow 
Programs,'' April 5, 2010. DoD Components may appoint DoD IASP graduates 
to IT positions as members of the excepted service. Upon satisfactory 
completion of 2 years of substantially continuous service, DoD 
Components may then convert these individuals to career or career-
conditional appointments without competition.
    (2) Individuals enlisting or accepting a commission to serve on 
active duty in one of the Military Services shall incur a service 
obligation of a minimum of 4 years on active duty in that Service upon 
graduation. The Military Services may establish a service obligation 
longer than 4 years, depending on the occupational specialty and type of 
enlistment or commissioning program selected.
    (g) Individuals in the recruitment program who fail to complete the 
degree program satisfactorily or to fulfill the service commitment upon 
graduation shall be required to reimburse the United States pursuant to 
10 U.S.C. 2200a(e) for payments made to them through the DoD IASP unless 
a waiver, in whole or in part, is granted by the DoD IASP Executive 
Administrator.



PART 241_PILOT PROGRAM FOR TEMPORARY EXCHANGE OF INFORMATION TECHNOLOGY
PERSONNEL--Table of Contents



Sec.
241.1 Purpose.
241.2 Definitions.
241.3 Assignment authority.
241.4 Eligibility.
241.5 Written agreements.
241.6 Length of detail.
241.7 Termination.
241.8 Terms and conditions.
241.9 Costs and reimbursements.
241.10 Small business considerations.
241.11 Numerical limitation.
241.12 Reporting requirements.
241.13 Implementation.

    Authority: Pub. L. 111-84, sec. 1110, as amended.

    Source: 77 FR 36917, June 20, 2012, unless otherwise noted.



Sec. 241.1  Purpose.

    (a) The purpose of this part is to implement section 1110 of the 
National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 111-
84), which authorizes DoD to implement a Pilot Program for the Temporary 
Exchange of Information Technology (IT) Personnel. This statute 
authorizes the temporary assignment of DoD IT employees to private 
sector organizations. This statute also gives DoD the authority to 
accept private sector IT employees assigned under the Pilot. This 
program is referred to as the Information Technology Exchange Program 
(ITEP) pilot.
    (b) DoD Component authorized approving official may approve 
assignments as a mechanism for improving the DoD workforce's competency 
in using IT to deliver government information and services. DoD 
Component authorized approving official may not make assignments under 
this part to circumvent personnel ceilings, or as a substitute for other 
more appropriate personnel decisions or actions. Approved assignments 
must meet the strategic program goals of the DoD Components. The 
benefits to the DoD

[[Page 577]]

Components and the private sector organizations are the primary 
considerations in initiating assignments; not the desires or personal 
needs of an individual employee.



Sec. 241.2  Definitions.

    In this part:
    Detail means the assignment of a DoD employee to a private sector 
organization without a change of position; or the assignment of a 
private sector employee to a DoD Component without a change of position.
    DoD employee means a Federal civilian employee of the DoD.
    Exceptional employee means performance meets or exceeds all 
standards established at the fully successful level or above and makes 
significant contributions towards achieving the organizational goals. 
Participating organizations should target highly motivated, disciplined 
employees.
    Information technology (IT) as defined means use of computers, 
ancillary equipment (including imaging peripherals, input, output, and 
storage devices necessary for security and surveillance), peripheral 
equipment designed to be controlled by the central processing unit of a 
computer, software, firmware and similar procedures, services (including 
support services), and related resources. IT includes the planning, 
organizing, staffing, directing, integrating, or controlling of 
information technology, including occupational specialty areas such as 
systems administration, IT project management, network services, 
operating systems, software application, cyber security, enterprise 
architecture, policy and planning, internet/web services, customer 
support, data management and systems analysis.
    Private sector organization means nonpublic or commercial 
individuals and businesses, nonprofit organizations, academia, 
scholastic institutions, and nongovernmental organizations.
    Small business concern means a business concern that satisfies the 
definitions and standards by the Administrator of the Small Business 
Administration (SBA) as defined by 5 U.S.C. 3703(e)(2)(A).



Sec. 241.3  Assignment authority.

    The Secretary of Defense may with the agreement, of the private 
sector organization concerned, arrange for the temporary assignment of a 
DoD employee to a private sector organization or accept a private sector 
employee from a private sector organization to a DoD Component.



Sec. 241.4  Eligibility.

    (a) To be eligible for an ITEP detail, a DoD or private sector 
employee must:
    (1) Work in the field of IT;
    (2) Be equivalent at the GS-11 level or above
    (3) Be considered an exceptional employee, meet or exceed successful 
performance levels and makes significant contributions towards achieving 
organizational goals;
    (4) Be expected to assume increased IT responsibilities in the 
future;
    (5) Be currently employed by an organization interested in 
participating in the ITEP pilot; and
    (6) Obtain supervisor and company approval before an employee can 
participate in an ITEP detail.
    (b) In addition to meeting the requirements of paragraph (a) of this 
section, the DoD employee must be serving under a career or career-
conditional appointment or an appointment of equivalent tenure in the 
excepted service.
    (c) The private sector employee must meet citizenship requirements 
for Federal employment in accordance with 5 CFR 7.3 and 338.101, as well 
as any other statutory requirements. When a position requires a security 
clearance, the person must possess, or be able to obtain an appropriate 
security clearance.
    (d) Proposed assignment meets applicable requirements of section 
209(b) of the E-Government Act of 2002.



Sec. 241.5  Written agreements.

    (a) Before a detail begins, the DoD Component authorized approving 
official, private sector organization authorized approving official and 
the employee to be assigned to the ITEP detail must sign a three-party 
agreement. Prior to the agreement being signed the relevant legal office 
for the

[[Page 578]]

DoD Component shall review and approve the agreement. The agreement must 
include, but is not limited to the following elements:
    (1) The duties to be performed and length of detail;
    (2) Describe the core IT competencies and technical skills that the 
detailee will be expected to enhance or acquire;
    (3) Identification of the supervisor of detailee.
    (b) The agreement shall require DoD employees, upon completion of 
the assignment serve in the civil service for a period equal to the 
length of the detail; and
    (c) Provide that if the employee of the DoD or of the private sector 
organization (as the case may be) fails to carry out the agreement, such 
employee shall be liable to the United States for payment of all 
expenses of the assignment, unless that failure was for good and 
sufficient reason as determined by the Secretary of Defense.



Sec. 241.6  Length of details.

    (a) A detail shall be for a period of not less than 3 months and not 
more than 1 year, and may be extended in 3-month increments for a total 
of not more than 1 additional year by DoD Components and private sector 
organizations authorized approving officials.
    (b) This extension may be granted in 3-month increments not to 
exceed 1 year. No assignment may commence after September 30, 2018.

[77 FR 36917, June 20, 2012, as amended at 79 FR 27488, May 14, 2014]



Sec. 241.7  Termination.

    An assignment may, at any time and for any reason be terminated by 
the DoD or the private sector organization concerned.



Sec. 241.8  Terms and conditions.

    (a) A DoD employee assigned under this part:
    (1) Remains a Federal employee without loss of employee rights and 
benefits attached to that status. These include, but are not limited to:
    (i) Consideration for promotion;
    (ii) Leave accrual;
    (iii) Continuation of retirement benefits and health, life, and 
long-term care insurance benefits; and
    (iv) Pay increases the employee otherwise would have received if he 
or she had not been assigned;
    (2) Remains covered for purposes of the Federal Tort Claims Act, and 
for purposes of injury compensation as described in 5 U.S.C. chapter 81; 
and
    (3) Is subject to any action that may impact the employee's position 
while he or she is assigned.
    (b) An employee of a private sector organization:
    (1) May continue to receive pay and benefits from the private sector 
organization from which such employee is assigned;
    (2) Is deemed to be an employee of the DoD for the purposes of:
    (i) Chapter 73 of title 5, United States Code (Suitability, 
Security, and Conduct);
    (ii) Sections 201 (Bribery of Public Officials and Witnesses), 203 
(Compensation to Members of Congress, Officers and Employees Against and 
Other Matters Affecting the Government), 205 (Activities of Officers and 
Employees in Claims Against Other Matters Affecting the Government), 207 
(Restrictions on Former Officers, Employees, and Elected Officials of 
the Executive and Legislative Branches), 208 (Acts Affecting a Personal 
Financial Interest), 209 (Salary of Government Officials and Employees 
Payable only by the United States), 603 (Making Political 
Contributions), 606 (Intimidation to Secure Political Contributions), 
607, (Place of Solicitation), 643 (Accounting Generally for Public 
Money), 654 (Officer or Employee of the United States Converting 
Property of Another, 1905 (Disclosure of Confidential Information 
Generally), and 1913 (Lobbying with Appropriated Moneys) of title 18, 
United States Code;
    (iii) Sections 1343, 1344, and 1349(b) of title 31, United States 
Code;
    (iv) The Federal Tort Claims Act and any other Federal tort 
liability statute;
    (v) The Ethics in Government Act of 1978;
    (vi) Section 1043 of the Internal Revenue Code of 1986; and
    (vii) Section 27 of the Office of Federal Procurement Policy Act; 
and

[[Page 579]]

    (3) May not have access to any trade secrets or to any other 
nonpublic information which is of commercial value to the private sector 
organization from which he or she is assigned;
    (4) Is subject to such regulations as the President may prescribe;
    (5) Is covered by 5 U.S.C. chapter 81, Compensation for Work 
Injuries; and
    (6) Does not have any right or expectation for Federal employment 
solely on the basis of his or her assignment.



Sec. 241.9  Costs and reimbursements.

    (a) Payment of Salary and Allowances. The lending organization (DoD 
or private sector organization) has full responsibility for payment of 
all salary and allowances to their employee participating in an ITEP 
pilot. Both DoD and private sector employees participating in the ITEP 
pilot are entitled to all benefits afforded to similar employees of 
their respective lending organizations, including medical care, 
according to subscribed plans and Worker's Compensation for injuries 
sustained in the line of duty.
    (b) Business Training and Travel Expenses. The engaging organization 
(recipient of the ITEP pilot participant) may pay for any business 
training and travel expenses incurred by the employee while 
participating in the ITEP pilot.
    (c) Prohibition. A private sector organization may not charge the 
DoD or any agency of the Federal Government, as direct or indirect costs 
under a Federal contract, for the costs of pay or benefits paid by that 
organization to an employee assigned to a DoD Component.



Sec. 241.10  Small business consideration.

    The DoD CIO on behalf of the Secretary of Defense shall:
    (a) Ensure that, of the assignments made each year, at least 20 
percent are from small business concerns (as defined by 5 U.S.C. 
3703(e)(2)(A)).
    (b) Take into consideration the questions of how assignments might 
be used to help meet the needs of the DoD with respect to the training 
of employees in IT.



Sec. 241.11  Numerical limitation.

    The ITEP Pilot is an opportunity for the exchange of knowledge, 
experience and skills between DoD and the private sector. The DoD has 
the flexibility to send their employees to the private sector or receive 
private sector employees, or participate in a one-for-one exchange. In 
no event may more than 10 employees participate in assignments under 
this section at any given time.



Sec. 241.12  Reporting requirements.

    (a) For each of fiscal years 2010 through 2018, the Secretary of 
Defense shall submit annual reports to the congressional defense 
committees, not later than 1 month after the end of the fiscal year 
involved, a report on any activities carried out during such fiscal 
year, including the following information:
    (1) Respective organizations to and from which an employee is 
assigned;
    (2) Positions those employees held while they were so assigned;
    (3) Description of the tasks they performed while they were so 
assigned; and
    (4) Discussion of any actions that might be taken to improve the 
effectiveness of the Pilot program, including any proposed changes in 
the law.
    (b) These reports will be prepared and submitted by DoD CIO in 
coordination with DoD Components participating in the Pilot, to the 
appropriate congressional committees.

[77 FR 36917, June 20, 2012, as amended at 79 FR 27488, May 14, 2014]



Sec. 241.13  Implementation.

    The DoD CIO is responsible for administering, coordinating and 
implementing the Pilot Program for the Temporary Exchange of Information 
Personnel, referred to as the Information Technology Exchange Program 
(ITEP) pilot. The DoD CIO will coordinate with DoD Components.

[[Page 580]]



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.
    (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

[[Page 581]]

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 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

[[Page 582]]

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 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

[[Page 583]]

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:
    (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:

[[Page 584]]

    (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 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]

[[Page 585]]



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
    (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

[[Page 586]]

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;
    (2) Deprive a person of a right to a fair trial or an impartial 
adjudication;
    (3) Constitute an unwarranted invasion of personal privacy;
    (4) Disclose the identity of a confidential source and, in the case 
of a record compiled by a criminal law enforcement authority in the 
course of a criminal investigation, or by an agency conducting a lawful 
national security intelligence investigation, confidential information 
furnished only by the confidential source;
    (5) Disclose investigative techniques and procedures; or
    (6) Endanger the life or physical safety of law enforcement 
personnel;
    (h) Disclose information contained in or related to examination, 
operating, or condition reports prepared by, on behalf of, or for the 
use of an agency responsible for the regulation or supervision of 
financial institutions;
    (i) Disclose information the premature disclosure of which would be 
likely to significantly frustrate implementation of a proposed agency 
action, except that this subsection shall not apply in any instance 
where the agency has already disclosed to the public the content or 
nature of its proposed action, or where the agency is required by law to 
make such disclosure on its

[[Page 587]]

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 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.
    (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

[[Page 588]]

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 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,

[[Page 589]]

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.
    (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,

[[Page 590]]

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 accordance with these Procedures, and 
shall keep a complete record of its proceedings.
    (iv) The Secretary shall furnish to every Regent prior to each 
meeting of the Board a copy of the Minutes of the preceding meeting.
    (v) The Secretary shall give notice of the time and place of 
committee meetings, and if desired by the committee or its chairman, the 
Secretary or an assistant shall attend the meeting and keep a record of 
the meeting.
    (vi) The Secretary shall prepare and distribute expeditiously the 
minutes of all meetings of standing committees to all Regents.
    (vii) The Secretary shall keep at the office of the University a 
copy of these General Procedures and Delegations, and the Public Meeting 
Procedures of the Board of Regents as periodically amended.
    (viii) During the Secretary's absence or inability to act, an 
Assistant Secretary, appointed by the Chairman, shall act in the 
Secretary's place.



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.
    (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.

[[Page 591]]



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.
    (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.

[[Page 592]]

    (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 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

[[Page 593]]

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.



PART 245_PLAN FOR THE EMERGENCY SECURITY CONTROL OF AIR TRAFFIC (ESCAT)
--Table of Contents



Sec.

                            Subpart A_General

245.1 Purpose.
245.2 Applicability.
245.3 Responsibilities.

       Subpart B_Explanation of Terms, Acronyms and Abbreviations

245.5 Terms.
245.6 Abbreviations and acronyms.

                        Subpart C_The ESCAT Plan

245.8 Purpose.
245.9 Authority.
245.10 Scope.
245.11 General description of the ESCAT plan.
245.12 Amplifying instructions.
245.13 Responsibilities.

            Subpart D_Procedures for Implementation of ESCAT

245.15 Appropriate military authority.
245.16 ATCSCC.
245.17 U.S. civil and military air traffic control facilities.
245.18 Transportation security operations center (TSOC).

[[Page 594]]

            Subpart E_ESCAT Air Traffic Priority List (EATPL)

245.20 Purpose.
245.21 ESCAT air traffic priority list.
245.22 Policy for application of EATPL.

       Subpart F_Procedure for Movement of Air Traffic Under ESCAT

245.24 Aircraft assigned an EATPL number 1 or 2.
245.25 Aircraft assigned an EATPL number other than 1 or 2.
245.26 Aircraft being recovered.
245.27 Data entry.

                        Subpart G_Test Procedures

245.29 Purpose.
245.30 ESCAT test procedures restrictions.
245.31 ESCAT test.

                        Subpart H_Authentication

245.33 Approval.

    Authority: 5 U.S.C. 301, 552.

    Source: 71 FR 61889, Oct. 20, 2006, unless otherwise noted.



                            Subpart A_General



Sec. 245.1  Purpose.

    This part:
    (a) Is authorized by the Communications Act of 1934, as amended, 5 
U.S.C. 301, 552, Executive Order 12656 (``Assignment of Emergency 
Preparedness Responsibilities'', November 18, 1988), as amended.
    (b) Defines the jointly developed and agreed upon responsibilities 
of the Department of Transportation/Federal Aviation Administration 
(DOT/FAA), Department of Homeland Security/Transportation Security 
Administration (DHS/TSA), and Department of Defense (DoD) authorities 
for the security control of civil and military air traffic. It 
implements policy, assigns responsibilities, and prescribes procedures 
for implementation and performance of the ESCAT Plan. The Emergency 
Security Control of Air Traffic (ESCAT) is an emergency preparedness 
plan that prescribes the joint action to be taken by appropriate 
elements of the DoD, the DOT and the DHS in the interests of national 
security to control air traffic under emergency conditions.



Sec. 245.2  Applicability.

    This part applies to the Office of the Secretary of Defense, the 
Military Departments, the Organization of the Joint Chiefs of Staff, the 
Combatant Commands, the DOT, the FAA, the DHS, and the TSA.



Sec. 245.3  Responsibilities.

    The Assistant Secretary of Defense for Networks and Information 
Integration will ensure the responsibilities of the DoD are implemented. 
The DOT and the DHS shall implement the procedures and actions requested 
by the Department of Defense.



       Subpart B_Explanation of Terms, Acronyms and Abbreviations



Sec. 245.5  Terms.

    For the purpose of this part, the words ``will'' and ``shall'' 
denote mandatory action by the affected person(s) or agency(ies).
    Air control measures. Airspace and/or flight restrictions that may 
be issued in support of National Defense or Homeland Security 
initiatives.
    Air defense. All defensive measures designed to destroy attacking 
enemy aircraft or missiles as well as enemy operated aircraft or 
missiles in the Earth's envelope of atmosphere, or to nullify or reduce 
the effectiveness of such attack.
    Air defense area (ADA). Airspace of defined dimensions designated by 
the appropriate agency within which the ready control of airborne 
vehicles is required in the interest of national security.
    Air defense emergency (ADE). An emergency condition, declared by the 
appropriate military authority, that exists when attack upon the 
continental United States, Alaska, Hawaii, other U.S. territories and 
possessions or Canada by hostile aircraft or missiles is considered 
probable, is imminent, or is taking place.
    Air defense identification zone (ADIZ). Airspace of defined 
dimensions within which the ready identification, location, and control 
of airborne vehicles are required.

[[Page 595]]

    Air defense liaison officer (ADLO). FAA representative at a North 
American Aerospace Defense Command (NORAD) air defense facility (NORAD 
Region or NORAD Air Defense Sector).
    Air defense region. A geographical subdivision of an air defense 
area.
    Air defense sector. A geographical subdivision of an air defense 
region.
    Air traffic control system command center (ATCSCC). FAA Command 
Center responsible for the efficient operation of the National Airspace 
System, ensuring safe and efficient air travel within the United States.
    Anchor annex flight. Classified DoD mission.
    Appropriate military authority. The military commander with the 
authority to direct the implementation of this part. The appropriate 
military authorities are designated in part 245.11, (a)(1), (a)(2), 
(a)(3) and (b)(1), (b)(2), (b)(3).
    Chief of the Defense Staff (CDS). Canada's counterpart to the 
Chairman, Joint Chiefs of Staff.
    Civil reserve air fleet (CRAF). Those aircraft allocated, or 
identified for allocation, to the DoD under section 101 of the Defense 
Production Act of 1950 (50 U.S.C. App. 2071), or made available (or 
agreed to be made available) for use by the DoD under a contract made 
under this title, as part of the program developed by the DoD through 
which the DoD augments its airlift capability by use of civil aircraft.
    Combatant Command. A command with a broad continuing mission under a 
single commander established and so designated by the President, through 
the Secretary of Defense and with the advice and assistance of the 
Chairman of the Joint Chiefs of Staff. The Combatant Commands typically 
have geographic or functional responsibilities. For the purposes of this 
part, the term ``combatant command'' also includes NORAD.
    Continental United States (CONUS). All U.S. territory of the 48 
contiguous states (does not include Alaska and Hawaii), including the 
adjacent territorial waters within 12 miles of the coast of the 48 
contiguous states.
    Contingency operations. A military operation that:
    (1) Is designated by the Secretary of Defense as an operation in 
which members of the armed forces are or may become involved in military 
actions, operations, or hostilities against an enemy of the United 
States or against an opposing military force; or
    (2) Results in the call or order to, or retention on, active duty of 
members of the uniformed services under section 688, 12301 (a), 12302, 
12304, 12305, or 12406 of title 10 U.S.C., chapter 15, as amended by 
E.O. 13286, February 28 2003, or any other provision of law during a war 
or during a national emergency declared by the President or Congress.
    Defense emergency. An emergency condition that exists when:
    (1) A major attack is made upon U.S. forces overseas or on allied 
forces in any theater and is confirmed by either the commander of a 
command established by the Secretary of Defense or higher authority; or
    (2) An overt attack of any type is made upon the United States and 
is confirmed either by the commander of a command established by the 
Secretary of Defense or higher authority.
    Dispersal. Relocation of forces for the purpose of increasing 
survivability.
    Diversion. A change made in a prescribed route or destination for 
operational or tactical reasons.
    Domestic event network (DEN). A 24/7 FAA sponsored, telephonic 
conference call network that includes all of the Air Route Traffic 
Control Centers (ARTCC) in the U.S. It also includes various other 
governmental agencies that monitor the DEN. The purpose of the DEN is to 
provide timely notification to the appropriate authorities that there is 
an emerging air-related problem or incident within the CONUS.
    ESCAT air traffic priority list (EATPL). A list comprised of eight 
priorities designed to control the volume of air traffic when ESCAT has 
been implemented.
    National Airspace System (NAS). The NAS consists of the overall 
environment for the safe operation of aircraft that are subject to the 
FAA's jurisdiction. It includes: air navigation facilities, equipment 
and services, airports or landing areas; aeronautical charts,

[[Page 596]]

information and services; rules, regulations and procedures, technical 
information, and manpower and material. Included are system components 
used by the DoD.
    National emergency. A condition declared by the President or the 
Congress by virtue of powers previously vested in them that authorize 
certain emergency actions to be undertaken in the national interest. 
Actions to be taken may include partial, full, or total mobilization of 
national resources.
    Navigational aids (NAVAIDs). Aids to navigation, including but are 
not limited to, Global Positioning System (GPS), Tactical Air Navigation 
(TACAN), VHF Omnidirectional range (VOR), VHF Omnidirectional range/
Tactical Air Navigation (VORTAC), Radar, and Long Range Navigation 
(LORAN). GPS also includes its Federal government-provided 
augmentations, i.e., the FAA Wide Area Augmentation System (WAAS) and 
Local Area Augmentation System (LAAS), United States Coast Guard (USCG) 
Maritime Differential GPS (MDGPS) and USCG Nationwide Differential GPS 
(NDGPS).
    North American Aerospace Defense Command (NORAD). A combined 
military command established by the Governments of Canada and the United 
States responsible for North American aerospace warning and control. 
Headquartered in Colorado Springs, CO, NORAD is subdivided into three 
geographic regions: Alaska NORAD Region (ANR), Canadian NORAD Region 
(CANR) and the CONUS NORAD Region (CONR).
    Security assurance check. Measures taken by DoD/DHS, as appropriate, 
to ensure aircraft, cargo and crew security has not been compromised by 
hostile organizations or individuals who are or may be engaged in 
espionage, sabotage, subversion, terrorism or other criminal activities.
    Security control authorization (SCA). Authorization for an EATPL 
category eight aircraft to take off when ESCAT has been implemented, 
which will be coordinated between DHS and the appropriate military 
authority.
    Special Use Airspace (SUA). Airspace of defined dimensions 
identified by an area on the surface of the earth wherein activities 
must be confined because of their nature, and/or wherein limitation may 
be imposed upon aircraft operations that are not part of those 
activities. Types of special use airspace include Military Operations 
Areas, Prohibited Areas, Restricted Areas and Warning Areas.

[71 FR 61889, Oct. 20, 2006; 71 FR 66110, Nov. 13, 2006]



Sec. 245.6  Abbreviations and acronyms.

AADC--Area Air Defense Commander
ADE--Air Defense Emergency
ADIZ--Air Defense Identification Zone
ADLO--Air Defense Liaison Officer
AMC--Air Mobility Command
ANR--Alaska NORAD Region
AOR--Area of Responsibility
ARTCC--Air Route Traffic Control Center
ATC--Air Traffic Control
ATCSCC--Air Traffic Control System Command Center
CARDA--Continental U.S. Airborne Reconnaissance for Damage Assessment
CDS--Chief of the Defence Staff (Canada)
CERAP--Center-RAPCON
CJCS--Chairman, Joint Chiefs of Staff
CONR--CONUS NORAD Region
CONUS--Continental United States
CRAF--Civil Reserve Air Fleet
DEN--Domestic Event Network
DHS--Department of Homeland Security
DND--Department of National Defence (Canada)
DoD--Department of Defense
DOT--Department of Transportation
EATPL--ESCAT Air Traffic Priority List
E.O.--Executive Order
ESCAT--Emergency Security Control of Air Traffic
FAA--Federal Aviation Administration
IFR--Instrument Flight Rules
LEA--Law Enforcement Agencies
LIFEGUARD--Civilian air ambulance flights
LNO--Liaison Officer
MEDEVAC--Medical air evacuation flight
NAS--National Airspace System
NEADS--Northeast Air Defense Sector (NORAD)
NORAD--North American Aerospace Defense Command

[[Page 597]]

PACAF--Pacific Air Forces
SCA--Security Control Authorization
SEADS--Southeast Air Defense Sector (NORAD)
SUA--Special Use Airspace
TSA--Transportation Security Administration
USNORTHCOM--U.S. Northern Command
USPACOM--U.S. Pacific Command
VFR--Visual Flight Rules
WADS--Western Air Defense Sector (NORAD)

[71 FR 61889, Oct. 20, 2006; 71 FR 66110, Nov. 13, 2006]



                        Subpart C_The ESCAT Plan



Sec. 245.8  Purpose.

    This part establishes responsibilities, procedures, and instructions 
for the security control of civil and military air traffic in order to 
provide effective use of airspace under various emergency conditions.



Sec. 245.9  Authority.

    (a) E.O. 12656, 18 November 1988, which assigns emergency 
preparedness functions to Federal departments and agencies.
    (b) E.O. 13074, Amendment to E.O. 12656, February 9, 1998.
    (c) E.O. 13286, Amendment of E.O. 13276, 13274, 13271, 13260, 13257, 
13254, and 13231, and Other Actions, in Connection With the Transfer of 
Certain Functions to the Secretary of Homeland Security, February 28, 
2003.
    (d) Title 10 U.S.C.--Armed Forces.
    (e) Title 49 U.S.C., Subtitle VII--Aviation Programs.
    (f) Communications Act of 1934, as amended.
    (g) Aviation and Transportation Security Act of 2001 (Pub. L. 107-
71), establishes the TSA and transfers civil aviation security 
responsibilities from FAA to TSA.
    (h) Homeland Security Act of 2002 (Pub. L. 107-296), establishes DHS 
and transfers the transportation security functions of the DOT and 
Secretary of Transportation and the TSA to DHS.
    (i) DoD Directive 5030.19, \1\ ``DoD Responsibilities on Federal 
Aviation and National Airspace System Matters,'' outlines DoD/ NORAD 
responsibilities for the development of plans and policies in concert 
with the DOT, FAA and USCG for the establishment of a system for 
identification and emergency security control of air traffic.
---------------------------------------------------------------------------

    \1\ Copies may be obtained at http://www.dtic.mil/whs/directives/
corres/dir2.html.
---------------------------------------------------------------------------



Sec. 245.10  Scope.

    This part applies to all U.S. territorial airspace and other 
airspace over which the FAA has air traffic control jurisdiction by 
international agreement.



Sec. 245.11  General description of the ESCAT plan.

    The part defines the authorities, responsibilities, and procedures 
to identify and control air traffic within a specified air defense area 
during air defense emergencies, defense emergency, or national emergency 
conditions.
    (a) For the purpose of this part, the appropriate military 
authorities are as follows:
    (1) Contiguous 48 U.S. states, including Washington, DC; Alaska; and 
Canada--Commander NORAD or individual NORAD Region/Sector commanders.
    (2) Hawaii, Guam, Wake Island, other U.S. Pacific Territories, and 
Pacific oceanic airspace over which FAA has air traffic control 
jurisdiction by international agreement--Commander, U.S. Pacific Command 
(USPACOM) or designated AADC.
    (3) Puerto Rico and U.S. Virgin Islands--Commander, NORAD.
    (b) This part provides for security control of both civil and 
military air traffic. It is intended to meet threat situations such as:
    (1) An emergency resulting in the declaration of an Air Defense 
Emergency by the appropriate military authority. Under this condition, 
NORAD and USPACOM Commanders have authority to implement ESCAT and may 
consider executing this part.
    (2) An adjacent Combatant Command is under attack and an Air Defense 
Emergency has not yet been declared. Under these conditions, NORAD and 
USPACOM Commanders may direct implementation of ESCAT for their own AORs 
individually, if airspace control measures are warranted and agreed upon 
by DoD/DHS/DOT.

[[Page 598]]

    (3) Emergency conditions exist that either threaten national 
security or national interests vital to the U.S., but do not warrant 
declaration of Defense Emergency or Air Defense Emergency. Under these 
conditions, NORAD and USPACOM Commanders may direct implementation of 
ESCAT for their own AORs individually, if airspace control measures are 
warranted and agreed upon by DoD/DHS/DOT.



Sec. 245.12  Amplifying instructions.

    (a) Prior to any formal ESCAT implementation, the appropriate 
military authority will consult with DOT through the FAA Administrator 
and DHS through the TSA Administrator to discuss the air traffic 
management, airspace and/or security measures required. Every effort 
will be made to obtain the approval of the Secretary of Defense prior to 
ESCAT declaration, time and circumstance permitting. Any ESCAT 
implementation will be passed as soon as possible through the Chairman 
of the Joint Chiefs of Staff to the Secretary of Defense.
    (b) ESCAT may be implemented in phases to facilitate a smooth 
transition from normal air traffic identification and control procedures 
to the more restrictive identification and control procedures specific 
to the situation.
    (c) Once ESCAT is implemented, the appropriate military authority 
will consult regularly with DOT (through the FAA Administrator) and DHS 
(through the TSA Administrator) as appropriate, regarding any changes in 
the air traffic management, airspace, and/or security measures required.
    (d) Interference with normal air traffic should be minimized.
    (e) The process for implementation of measures for mitigation of 
hostile use of NAVAID signals, when required, will be subject to 
separate agreement between DoD and other Departments and Agencies.
    (f) Upon the formal declaration of ESCAT, the appropriate military 
authority has the final authority regarding the extent of measures 
necessary for successful mission completion.
    (g) The rules/procedures governing Special Use Airspace (SUA) will 
remain in effect until notified by the appropriate military authority. 
The appropriate military authority will address SUA use in the ESCAT 
activation message.
    (h) Appropriate Combatant Commanders, in conjunction with their FAA 
and TSA Liaisons, will prepare supplements to this part for their area 
of responsibility. These supplements are to consider the special 
requirement of organized civil defense and disaster relief flights, 
agricultural and forest fire flights, border patrol flights, and other 
essential civil air operations so that maximum use of these flights, 
consistent with air defense requirements, will be made when ESCAT is in 
effect.
    (i) Flight operations vital to national defense, as determined by 
appropriate military commanders, will be given priority over all other 
military and civil aircraft.
    (j) Prior to or subsequent to the declaration of an Air Defense 
Emergency, Defense Emergency, or National Emergency, there may be a 
requirement to disperse military aircraft for their protection. If such 
dispersal plans are implemented when any part of this part has been 
placed in effect, operations will be in accordance with the requirements 
of that portion of the ESCAT plan that is in effect. If any part of the 
ESCAT plan is ordered while dispersal is in progress, dispersal 
operations will be revised as required to comply with ESCAT.
    (k) Direct communications are authorized between appropriate 
agencies and units for the purpose of coordinating and implementing the 
procedures in this part.
    (l) To ensure implementation actions can be taken expeditiously, 
ESCAT tests will be conducted periodically, but at least annually in 
accordance with Sec. 245.31 of this part.
    (m) The area of responsibility of the appropriate military authority 
does not always align with ARTCC boundaries, especially in the NORAD 
area where one ARTCC's boundaries may lie within two or more CONUS NORAD 
Sectors. For NORAD and USPACOM, the FAA ARTCCs/CERAPs are aligned as 
follows:

[[Page 599]]



------------------------------------------------------------------------
           Command/region/sector                       ARTCC's
------------------------------------------------------------------------
CONR South East Air Defense Sector (SEADS)  Atlanta, Fort Worth,
                                             Houston, Indianapolis,
                                             Jacksonville, Kansas City,
                                             Memphis, Miami, Washington,
                                             San Juan CERAP.
CONR North East Air Defense Sector (NEADS)  Boston, Chicago, Cleveland,
                                             Minneapolis, New York,
                                             Indianapolis, Kansas City,
                                             Atlanta, Memphis,
                                             Washington.
CONR Western Air Defense Sector (WADS)....  Albuquerque, Denver, Los
                                             Angeles, Oakland, Salt Lake
                                             City, Seattle, Fort Worth,
                                             Houston, Kansas City,
                                             Minneapolis.
ANR (Alaskan NORAD Region)................  Anchorage.
PACOM.....................................  Honolulu CERAP, Oakland,
                                             Anchorage.
------------------------------------------------------------------------

    (n) Commander NORAD, acting for the DoD, will process and distribute 
administrative and organizational changes as they occur; however, this 
part will be reviewed at least once every two years by DHS/TSA, DOT/FAA, 
and DoD and reissued or changed as required. Recommended changes should 
be forwarded to: Headquarters North American Air Defense Command, 
Commander NORAD/J3, ATTN: NJ33C, 250 Vandenberg Street, Suite B106, 
Peterson AFB, CO 80914-3818.



Sec. 245.13  Responsibilities.

    (a) The NORAD and USPACOM Commanders will:
    (1) Establish the military requirements for ESCAT.
    (2) Implement the plan as appropriate by declaring ESCAT (including 
the timing and scope) within their AOR.
    (3) Terminate the plan as appropriate by discontinuing ESCAT 
(including the timing and scope) within their AOR.
    (4) Coordinate with the Secretary of Defense or his designee, the 
CJCS, other Combatant Commands, the Department of Transportation, the 
Department of Homeland Security and the Canadian Minister of National 
Defence, as appropriate, regarding procedures for ESCAT implementation.
    (b) The DOT (through the FAA Administrator) will:
    (1) Establish the necessary FAA directives/plans including special 
ATC procedures to implement this part.
    (2) Maintain liaison with Combatant Commands whose AORs include FAA 
areas of authority through the appropriate LNO, or FAA ADLO offices.
    (3) Administer this part in accordance with established 
requirements.
    (4) Ensure authorized FAA ADLO positions at NORAD facilities are 
staffed.
    (5) Publish a common use document describing ESCAT and its purpose 
for use by civil aviation.
    (6) Ensure FAA participation with the Combatant Commands in the 
testing of this part.
    (7) Ensure the FAA Air Traffic Organization Service Units will:
    (i) Disseminate information and instructions implementing this part 
within their AORs.
    (ii) Place in effect procedures outlined in this part.
    (iii) Assist appropriate military authorities in making supplemental 
agreements to this part as may be required.
    (iv) Ensure each ARTCC/CERAP has a plan for diverting or landing 
expeditiously all aircraft according to the ESCAT priorities imposed 
upon implementation of ESCAT. Ensure a review and verification of the 
diversion plan is accomplished each calendar year.
    (8) Ensure the ATCSCC/ARTCC/CERAPs will:
    (i) Participate with Combatant Commanders in the training/testing of 
this part at all operational level.
    (ii) Ensure dissemination of information and instructions 
implementing this part within their AORs.
    (iii) Place in effect procedures outlined in this part.
    (iv) Develop a plan for diverting or landing expeditiously all 
aircraft according to the ESCAT priorities imposed upon implementation 
of ESCAT. Review the diversion plan each calendar year.
    (c) The DHS (through the TSA Administrator) will:
    (1) Establish the necessary TSA directives/plans including special 
security procedures to implement this part.
    (2) Maintain liaison with Combatant Commands whose AORs include TSA 
geographic areas of authority through the appropriate Federal Security 
Directors or other field offices.
    (3) Administer this part in accordance with established 
requirements.
    (4) Ensure authorized TSA liaison positions at NORAD facilities are 
staffed.
    (5) Issue security directives describing ESCAT and its purpose for 
use by airport and aircraft operators.

[[Page 600]]

    (6) Ensure TSA participation with the Combatant Commands in the 
testing of this part.
    (7) Ensure TSA Federal Security Directors and field offices:
    (i) Disseminate information and instructions implementing this part 
within their AOR.
    (ii) Implement procedures outlined in this part.
    (iii) Assist appropriate military authorities in making supplemental 
agreements to this part, as necessary.
    (d) The Commanders of Combatant Commands will:
    (1) Ensure that departing North American strategic flights are 
coordinated with appropriate NORAD and FAA/NAVCANADA authorities.
    (2) Ensure training/testing of this part at all levels within their 
command, as appropriate.



            Subpart D_Procedures for Implementation of ESCAT



Sec. 245.15  Appropriate military authority.

    Appropriate military authority will take the following actions:
    (a) Notify or coordinate, as appropriate, the extent or termination 
of ESCAT implementation with DOT and DHS.
    (b) Disseminate the extent of ESCAT implementation through the Noble 
Eagle Conferences and the FAA DEN.
    (c) Specify what restrictions are to be implemented. Some examples 
of restrictions to be considered include:
    (1) Defining the affected area.
    (2) Defining the type of aircraft operations that are authorized.
    (3) Defining the routing restrictions on flights entering or 
operating within appropriate portions of the affected area.
    (4) Defining restrictions for the volume of air traffic within the 
affected area, using the EATPL, paragraph 245.22 of this part) and 
Security Control Authorizations, as required.
    (5) Setting altitude limitations on flight operations in selected 
areas.
    (6) Restricting operations to aircraft operators regulated under 
specified security programs (e.g., the Aircraft Operator Standard 
Security Program (AOSSP), and the Domestic Security Integration Program 
(DSIP).
    (d) Revise or remove restrictions on the movement of air traffic as 
the tactical situation permits.



Sec. 245.16  ATCSCC.

    ATCSCC will direct appropriate ARTCCs/CERAPs to implement ESCAT 
restrictions as specified by the appropriate military authority. ARTCCs/
CERAPs will take the following actions when directed to implement ESCAT:
    (a) Provide the appropriate military authority feedback through the 
ATCSCC on the impact of restrictions and when the restrictions have been 
imposed.
    (b) Impose restrictions on air traffic as directed.
    (c) Disseminate ESCAT implementation instructions to U.S. civil and 
military air traffic control facilities and advise adjacent air traffic 
control facilities.



Sec. 245.17  U.S. civil and military air traffic control facilities.

    U.S. civil and military air traffic control facilities will:
    (a) Maintain current information on the status of restrictions 
imposed on air traffic.
    (b) Process flight plans in accordance with current instructions 
received from the ARTCC. All flights must comply with the airspace 
control measures in effect, the EATPL, or must have been granted a 
Security Control Authorization.
    (c) Disseminate instructions and restrictions to air traffic as 
directed by the ARTCCs.



Sec. 245.18  Transportation security operations center (TSOC).

    TSOC will direct appropriate FSDs and field offices to implement 
ESCAT restrictions as specified by the appropriate military authority. 
FSDs and field offices will take the following actions when directed to 
implement ESCAT:
    (a) Provide the appropriate military authority feedback through the 
TSOC on the impact of restrictions and when the restrictions have been 
implemented.

[[Page 601]]

    (b) Impose restrictions on civil aviation as directed by DOT/DHS.
    (c) Disseminate ESCAT implementation instructions to U.S. civil 
aircraft operators and airports.



            Subpart E_ESCAT Air Traffic Priority List (EATPL)



Sec. 245.20  Purpose.

    When ESCAT is implemented, a system of traffic priorities may be 
required to make optimum use of airspace, consistent with air defense 
requirements. The EATPL is a list of priorities that may be used for the 
movement of air traffic in a defined area. Priorities shall take 
precedence in the order listed and subdivisions within priorities are 
equal.



Sec. 245.21  ESCAT air traffic priority list.

    (a) Priority One. (1) The President of the United States, Prime 
Minister of Canada and respective cabinet or staff members essential to 
national security, and other members as approved or designated by the 
Secretary of Defense and Chief of the Defence Staff.
    (2) Aircraft engaged in active continental defense missions, 
including anti-submarine aircraft, interceptors, air refueling tanker 
aircraft, and airborne early-warning and control aircraft (e.g., E-3, E-
2, P-3).
    (3) Military retaliatory aircraft, including direct tanker support 
aircraft, executing strategic missions.
    (4) Airborne command elements which provide backup to command and 
control systems for the combat forces.
    (5) Anchor annex flights.
    (b) Priority Two. (1) Forces being deployed or in direct support of 
U.S. military offensive and defensive operations including the use of 
activated Civil Reserve Air Fleet (CRAF) aircraft as necessary, and/or 
other U.S. and foreign flag civil air carrier aircraft under mission 
control of the U.S. military.
    (2) Aircraft operating in direct and immediate support of strategic 
missions.
    (3) Search and rescue aircraft operating in direct support of 
military activities.
    (4) Aircraft operating in direct and immediate support of special 
operations missions.
    (5) Federal flight operations in direct support of homeland 
security, e.g., Law Enforcement Agencies (LEA) and aircraft performing 
security for high threat targets such as Nuclear Power Plants, Dams, 
Chemical Plants, and other areas identified as high threat targets.
    (c) Priority Three. (1) Forces being deployed or performing pre-
deployment training/workups (e.g., Navy Field Carrier Landing Practice) 
in support of the emergency condition.
    (2) Aircraft deployed in support of CONUS installation/base defense, 
i.e., aircraft operating in direct/immediate security support, or 
deploying ground forces for perimeter defense.
    (3) Search and rescue aircraft not included in Priority Two.
    (4) Flight inspection aircraft flights in connection with emergency 
restoration of airway and airport facilities in support of immediate 
emergency conditions.
    (5) Continental U.S. Airborne Reconnaissance for Damage Assessment 
(CARDA) missions in support of immediate emergency conditions.
    (d) Priority Four. (1) Dispersal of tactical military aircraft.
    (2) Dispersal of U.S. civil air carrier aircraft allocated to the 
CRAF Program.
    (3) Repositioning of FAA/DoD/DND flight inspection aircraft.
    (4) Flight inspection activity in connection with airway and airport 
facilities.
    (5) Specific military tactical pilot currency or proficiency in 
support of homeland defense.
    (6) Military tactical aircraft post-maintenance test flights.
    (7) Federal aircraft post maintenance check flights in support of 
homeland security.
    (e) Priority Five. (1) Air transport of military commanders, their 
representatives, DoD/DND-sponsored key civilian personnel, non-DoD/DND 
or other Federal key civilian personnel who are of importance to 
national security.
    (2) Dispersal of non-tactical military aircraft for their 
protection.
    (3) Aircraft contracted to and/or operated by Federal agencies

[[Page 602]]

    (f) Priority Six. (1) State and local LEA directly engaged in law 
enforcement missions.
    (2) Flight operations in accordance with approved Federal and State 
emergency plans.
    (3) LIFEGUARD and MEDEVAC aircraft in direct support of emergency 
medical services.
    (4) Flight operations essential to the development, production, and 
delivery of equipment, personnel, materials, and supplies essential to 
national security.
    (5) Other essential CARDA missions not covered in Priority Three.
    (g) Priority Seven. Other military flight operations.
    (h) Priority Eight. Other flight operations not specifically listed 
in priorities 1 through 7.



Sec. 245.22  Policy for application of EATPL.

    (a) The originator of an aircraft flight operation under the EATPL 
shall be responsible for determining and verifying that the mission 
meets the appropriate definition and priority in accordance with the 
list described in Sec. 245.22 of this part , and ensuring a security 
check of crew, cargo and aircraft has been completed prior to take off.
    (b) The individual filing the flight plan will be responsible for 
including the priority number as determined by the originator of the 
aircraft flight operation, in the remarks section of the flight plan.
    (c) Situations may occur that cannot be controlled by the EATPL. 
Aircraft emergencies and inbound international flights that have reached 
the point of no return, including foreign air carrier flights en route 
to safe haven airports in accordance with specific international 
agreements are examples of such situations. These events must be treated 
individually through coordination between ATC and appropriate military 
authorities in consideration of the urgency of the in-flight situation 
and existing tactical military conditions.
    (d) Exceptions to EATPL. (1) DoD aircraft in priorities three 
through seven that do not meet EATPL restrictions may request an 
exemption from the appropriate military authority. For the contiguous 48 
U.S. states, Alaska, Puerto Rico, U.S. Virgin Islands and Canada, 
requests shall be submitted to the appropriate NORAD Sector. For Hawaii, 
Guam, Wake Island, other U.S. Pacific Territories, and Pacific oceanic 
airspace over which FAA has air traffic control jurisdiction by 
international agreement, requests shall be submitted to the designated 
AADC.
    (2) For Federal, State, local government agencies and aircraft in 
priority eight, a Security Control Authorization may be granted on a 
case-by-case basis. Requests for SCAs will be coordinated through TSA. 
TSA will forward those requests that it recommends for approval to the 
appropriate military authority. Aircraft with a SCA shall have a 
Security Assurance Check prior to take off. Refer to specific SCA 
procedures provided in separate agreement between the appropriate 
military authority and TSA.

[71 FR 61889, Oct. 20, 2006; 71 FR 66110, Nov. 13, 2006]



       Subpart F_Procedure for Movement of Air Traffic Under ESCAT



Sec. 245.24  Aircraft assigned an EATPL number 1 or 2.

    Aircraft assigned an EATPL number 1 or 2 will not be delayed, 
diverted, or rerouted by Combatant Commanders. However, commanders may 
recommend that this traffic be rerouted to avoid critical or critically 
threatened areas.



Sec. 245.25  Aircraft assigned an EATPL number other than 1 or 2.

    Aircraft assigned an EATPL number other than 1 or 2 may be delayed, 
diverted, or rerouted by Combatant Commanders to prevent degradation of 
the air defense system.



Sec. 245.26  Aircraft being recovered.

    Aircraft being recovered will be expedited to home or an alternate 
base. Search and Rescue aircraft may be expedited on their missions. 
Such aircraft may be diverted to avoid critical areas or takeoff may be 
delayed to prevent saturation of airspace.

[[Page 603]]



Sec. 245.27  Data entry.

    Aircraft will file IFR or VFR flight plans, assigned a discrete 
transponder code, and must be in direct radio communication with ATC. 
The appropriate EATPL number will be entered in the remarks section of 
the flight plan. The EATPL number will be passed with flight plan data 
from one ATC facility to the next, and to the appropriate air defense 
control facilities.



                        Subpart G_Test Procedures



Sec. 245.29  Purpose.

    The purpose of establishing training/test procedures is to specify 
procedures that will allow all participants to determine the time 
required and assure the capability to notify all agencies/personnel, 
down to the lowest action level, that ESCAT has been implemented. To 
ensure the proper level of participation, the appropriate military 
authority will provide, at a minimum, 30 days notice of a test to the 
appropriate civil agencies. Testing shall be conducted at least 
annually.



Sec. 245.30  ESCAT test procedures restrictions.

    (a) Aircraft will not be grounded or diverted.
    (b) Test messages will not be broadcast over air/ground frequencies.
    (c) Radio communications will not be interrupted.
    (d) Navigation Aids will not be affected.



Sec. 245.31  ESCAT test.

    For ESCAT testing, the responsible military commander will notify 
the ATCSCC using the following sample statement:
    (a) Exercise, Exercise, Exercise, this is CONUS NORAD Region with a 
NORAD exercise message for ------ (State exercise name) ------.
    Simulate implementing ESCAT for ------ (Specified Area) ------.
    The following air control measures are being implemented. (Some 
examples are: Flight restricted zones, Temporary Flight Restrictions, 
and/or other specific air control measures for operators.) ----------, 
----------, ----------, ----------.
    All aircraft not previously mentioned as exemptions are restricted 
from flight in the affected area until further notice.

     and/or

    EATPL Priorities -------- through -------- are being implemented.
    ATCSCC will advise the appropriate military commander when the 
affected FAA ATC facilities have reported simulating ESCAT.
    This is an exercise message for ------ (State exercise name) ------. 
Exercise, Exercise, Exercise.
    (b) ATCSCC will notify ARTCC(s)/CERAP(s).
    (c) ARTCC(s)/CERAP(s) will notify all appropriate U.S. civil and 
military approach control facilities and FSS. Upon completion of all 
actions, the implementation completion time will be forwarded to the 
ATCSCC.
    (d) ATCSCC will provide completion times to the appropriate military 
authority.
    (e) Tests should normally be conducted in conjunction with scheduled 
headquarters NORAD approved exercises. Individual NORAD Regions and 
Sectors may conduct tests when test objectives are local in nature and 
prior coordination has been effected with the ATCSCC.
    (g) A narrative summary of each test will be prepared by the ATCSCC 
and copies sent to the appropriate military authority. Each military 
authority will, in turn, forward copies of the summary to HQ NORAD and 
DHS.



                        Subpart H_Authentication



Sec. 245.33  Approval.

    Authentication will be accomplished via secure communications means 
between the appropriate military authority and the ATCSCC for the 
implementation of ESCAT. Implementation will be validated with a call 
back via secure communications to the appropriate military authority. 
Further dissemination of information may be accomplished over non-secure 
communications.

[[Page 604]]



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 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

[[Page 605]]

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.
    (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

[[Page 606]]

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-qualified military personnel for 
positions in the S&S in accordance with appendix C to this part.
    (2) Enter into appropriate MOAs, as provided by the Unified 
Commanders and, as required by the Office of the Secretary of Defense 
(OSD), to provide APF and/or NAF support when required by adverse 
conditions as defined in Sec. 246.3(a).

[[Page 607]]

    (d) The Secretary of the Army shall:
    (1) Provide administrative and logistic support, as the DoD 
Executive Agent, to the S&S organizations.
    (2) Support NAF and APF accounting and reporting procedures required 
by DoD Instruction 7000.12 \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. 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.

[[Page 608]]

    (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 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

[[Page 609]]

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.
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    \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.



                  Sec. 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 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.

[[Page 610]]



     Sec. 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.
---------------------------------------------------------------------------

    \3\ See footnote 1 to A.1. of this appendix.
---------------------------------------------------------------------------

    4. For transportation of military personnel incident to mission-
essential travel, required military training, participation in 
contingency operations, in military field exercises, such as 
``REFORGER'' or ``TEAM SPIRIT,'' or to areas of armed conflict.
    5. In times of armed conflict or national contingency deployment, as 
directed by the Chairman of the Joint Chiefs of Staff for production and 
free distribution of the Stars and Stripes to forces as designated. The 
other Military Services shall reimburse the Department of the Army for 
services as authorized in the MOA. The Unified Commands shall endeavor 
to provide the Stars and 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

[[Page 611]]

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 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

[[Page 612]]

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.
---------------------------------------------------------------------------

    \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\.
---------------------------------------------------------------------------

    \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.
    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.

[[Page 613]]



     Sec. 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.



            Sec. 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

[[Page 614]]

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.
---------------------------------------------------------------------------

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

    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

[[Page 615]]

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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \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 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

[[Page 616]]

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.



 Sec. 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.
    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-

[[Page 617]]

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.
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    \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.
    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;

[[Page 618]]

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.
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    \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).
    (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.

[[Page 619]]

    (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 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

[[Page 620]]

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:
    (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).

[[Page 621]]

    (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.
    (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

[[Page 622]]

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\
---------------------------------------------------------------------------

    \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 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.

[[Page 623]]

    (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 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:

[[Page 624]]

    (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.



      Sec. 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.
---------------------------------------------------------------------------

    \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 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

[[Page 625]]

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.
---------------------------------------------------------------------------



              Sec. 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., 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.

[[Page 626]]

    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 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.

[[Page 627]]

    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 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

[[Page 628]]

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 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:

[[Page 629]]

    (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 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.

[[Page 630]]

    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.

                           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:

[[Page 631]]

    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.
    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:

[[Page 632]]

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 weight
              Factor                    (percent)        Maximum 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
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
 

    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:_______________________________________________________________
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____________________________________________________________


[[Page 633]]

________________________________________________________________________

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



 Sec. 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:
    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

[[Page 634]]

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.
---------------------------------------------------------------------------



        Sec. 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.



 Sec. 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.
    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.

[[Page 635]]

    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 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

[[Page 636]]

with United States laws and the requirements of national security.
    (b) Permit DoD Components to conduct scientific and technical 
conferences, and to permit DoD Component personnel to attend and 
participate in scientific and technical conferences that are of 
demonstrable value to the Department of Defense, and consult with 
professional societies and associations in organizing meetings of the 
societies and associations that are mutually beneficial.
    (c) Allow the publication and public presentation of unclassified 
contracted fundamental research results. The mechanism for control of 
information generated by DoD-funded contracted fundamental research in 
science, technology, and engineering performed under contract or grant 
at colleges, universities, and non-government laboratories is security 
classification. No other type of control is authorized unless required 
by law.
    (d) Release information at meetings in a manner consistent with 
statutory and regulatory requirements for protecting the information. 
Such requirements include, but are not limited to, protection of 
classified, unclassified export-controlled, proprietary, privacy, and 
foreign government provided information.
    (e) Provide timely review of DoD employee and contractor papers 
intended for presentation at scientific and technical conferences and 
meetings, and if warranted and authorized by contract in the case of 
contractor employees, prescribe limitations on these presentations. 
Dissemination restrictions shall be used only when appropriate authority 
exists.
    (f) Assist DoD contractors and, when practical, others in 
determining the sensitivity of or the applicability of export controls 
to technical data proposed for public disclosure.
    (g) Approve release of classified or controlled unclassified DoD 
information to foreign representatives when such release promotes mutual 
security or advances the interests of an international military 
agreement or understanding in accordance with foreign disclosure 
policies of the Department of Defense. Presentation of such information 
at technical meetings attended by foreign representatives is appropriate 
when the release is made under the terms of existing security 
arrangements and when the Department of Defense and receiving government 
have established an understanding or agreement in that specific 
scientific or technical area.
    (h) Refrain from interfering with the planning and organizing of 
meetings sponsored and conducted by non-government organizations. The 
type and level of DoD participation in such meetings will be determined 
taking account of such factors as benefit to the Department of Defense 
and how the meetings are being conducted.



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 637]]

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 638]]

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 639]]

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 640]]


    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 administratively by OSD, the Military Departments, the 
Organization of the Joint Chiefs of Staff, the Defense Agencies, and the 
Unified and Specified Commands (hereafter referred to collectively as 
``DoD Components'').
    (b) This part does not:
    (1) Modify or supplant the regulations promulgated under E.O. 12470 
or the Arms Export Control Act governing the export of technical data, 
that is, 15 CFR part 379 of the Export Administration Regulations (EAR) 
and 22 CFR part 125 of the International Traffic in Arms Regulations 
(ITAR).
    (2) Introduce any additional controls on the dissemination of 
technical data by private enterprises or individuals beyond those 
specified by export control laws and regulations or in contracts or 
other mutual agreements, including certifications made pursuant to 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 641]]

    (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 642]]

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 643]]

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 644]]

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 645]]

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 646]]

    (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:
---------------------------------------------------------------------------

    \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 647]]

    (4) If the export is in furtherance of a contract with an agency of 
the U.S. Government or a contract between an agency of the U.S. 
Government and foreign persons, provided the contract calls for the 
export of relevant unclassified technical data, and such data are being 
exported only by the prime contractor. Such data shall not disclose the 
details of development, engineering, design, production, or manufacture 
of any arms, ammunition, or implements of war on the U.S. Munitions 
List. (This exemption does not permit the prime contractor to enter into 
subsidiary technical assistance or manufacturing license agreements, or 
any arrangement which calls for the exportation of technical data 
without compliance with part 124 of this subchapter.)
    (5) If it relates to firearms not in excess of caliber .50 and 
ammunition for such weapons, except technical data containing advanced 
designs, processes, and munufacturing techniques.
    (6) If it consists of technical data, other than design, 
development, or production information relating to equipment, the export 
of which has been previously authorized to the same recipient.
    (7) If it consists of operations, maintenance and training manuals, 
and aids relating to equipment, the export of which has been authorized 
to the same recipient. \5\
---------------------------------------------------------------------------

    \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 requirements 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 648]]

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 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.

[[Page 649]]



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 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.

[[Page 650]]



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:
    (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 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 260_VENDING FACILITY PROGRAM FOR THE BLIND ON DOD-CONTROLLED
FEDERAL PROPERTY--Table of Contents



Sec.
260.1 Purpose.
260.2 Applicability.
260.3 Definitions.
260.4 Policy.

[[Page 651]]

260.5 Responsibilities.
260.6 Procedures.
260.7 Information requirements.

    Source: 74 FR 62235, Nov. 27, 2009, unless otherwise noted.



Sec. 260.1  Purpose.

    This part:
    (a) Assigns responsibilities in compliance with 20 U.S.C. 107 et 
seq. and 34 CFR part 395 and establishes the following policies within 
the Department of Defense:
    (1) Uniform policies for application of priority accorded the blind 
to operate vending facilities;
    (2) Requirements for satisfactory vending facility sites on DoD-
controlled property; and
    (3) Vending machine income-sharing requirements on DoD-controlled 
property
    (b) Prescribes requirements and operating procedures for the vending 
facility program for the blind on DoD-controlled property.
    (c) Does NOT apply to full food services, mess attendant services, 
or services supporting the operation of a military dining facility.



Sec. 260.2  Applicability.

    This part applies to:
    (a) Office of the Secretary of Defense, the Military Departments, 
the Office of the Chairman of the Joint Chiefs of Staff and the Joint 
Staff, the Combatant Commands, the Office of the Inspector General of 
the Department of Defense, the Defense Agencies, the Department of 
Defense Field Activities, and all other organizational entities in the 
Department of Defense (hereafter referred to collectively as the ``DoD 
Components'').
    (b) Vending facility sites on DoD-controlled property.



Sec. 260.3  Definitions.

    Blind licensee. A blind person licensed by the State licensing 
agency to operate a vending facility on DoD-controlled property.
    Cafeteria. A food dispensing facility capable of providing a broad 
variety of prepared foods and beverages (including hot meals) primarily 
through the use of a line where the customer serves himself or herself 
from displayed selections. A cafeteria may be fully automatic, or some 
limited waiter or waitress service may be available and provided within 
a cafeteria and table or booth seating facilities are always provided. 
The DoD Component food dispensing facilities that conduct cafeteria-type 
operations during part of their normal operating day and full table-
service operations during the remainder of their normal operating day 
are not ``cafeterias'' if they engage primarily in full table service 
operations.
    Direct competition. The presence and operation of a DoD Component 
vending machine or a vending facility on the same DoD-controlled 
property as a vending facility operated by a blind vendor. Vending 
machines or vending facilities operated in areas serving employees, the 
majority of whom normally do not have access (in terms of uninterrupted 
ease of approach and the amount of time required to patronize the 
vending facility) to the vending facility operated by a blind vendor, 
shall not be considered to be in direct competition with the vending 
facility operated by a blind vendor.
    DoD-controlled property. Federal property that is owned, leased, or 
occupied by DoD.
    Federal employees. Civilian appropriated fund and nonappropriated 
fund employees of the United States.
    Federal property. Any building, land, or other real property owned, 
leased, or occupied by DoD in the United States.
    Individual location, installation, or facility. A single building or 
a self-contained group of buildings. A self-contained group of buildings 
refers to two or more buildings that must be located in close proximity 
to each other and between which a majority of the Federal employees 
working in such buildings regularly move from one building to another in 
the normal course of their official business during a normal working 
day.
    License. A written instrument issued by a State licensing agency to 
a blind person, authorizing that person to operate a vending facility on 
DoD-controlled property.
    Military dining facility. A facility owned, operated, or leased and 
wholly controlled by DoD and used to provide dining services to members 
of the

[[Page 652]]

Armed Forces, including a cafeteria, military mess hall, military troop 
dining facility, or any similar dining facility operated for the purpose 
of providing meals to members of the Armed Forces.
    Normal working hours. An 8-hour work period between the approximate 
hours of 0800 and 1800, Monday through Friday.
    On-site official. The individual in command of an installation or 
separate facility or location. For the Pentagon Reservation only, the 
Washington Headquarters Services (WHS) Director of the Defense 
Facilities Directorate is designated as the on-site official.
    Permit. The official approval given a State licensing agency by a 
department, agency, or instrumentality responsible for DoD-controlled 
property whereby the State licensing agency is authorized to establish a 
vending facility.
    Satisfactory site. An area fully accessible to vending facility 
patrons and having sufficient electrical, plumbing, heating, and 
ventilation outlets for the location and operation of a vending facility 
in compliance with applicable health laws and building requirements. A 
``satisfactory site'' shall have a minimum of 250 square feet available 
for sale of items and for storage of articles necessary for the 
operation of a vending facility.
    State. A state, the District of Columbia, the Commonwealth of Puerto 
Rico, a territory, or possession of the United States.
    State licensing agency. The State agency designated by the Secretary 
of Education, to issue licenses to blind persons for the operation of 
vending facilities on Federal and other property.
    Substantial alteration or renovation. A permanent material change in 
the floor area of a building that would render it appropriate for the 
location and operation of a vending facility by a blind vendor.
    United States. The several States, the District of Columbia, the 
Commonwealth of Puerto Rico, and the territories and possessions of the 
United States.
    Vending facility. Automatic vending machines, cafeterias, snack 
bars, cart service, shelters, counters, and such other appropriate 
auxiliary equipment that may be operated by blind licensees and that are 
necessary for the sale of newspapers, periodicals, confections, tobacco 
products, foods, beverages, and other articles and services to be 
dispensed automatically or manually and that are prepared on or off the 
premises according to applicable health laws. Also includes facilities 
providing the vending or exchange of chances for any lottery authorized 
by State law and conducted by an agency of a State within such State.
    Vending machine. For the purposes of assigning vending machine 
income, a coin or currency operated machine that dispenses articles or 
services except that those machines operated by the United States Postal 
Service for the sale of postage stamps or other postal products and 
services, machines providing services of a recreational nature, and 
telephones shall not be considered to be vending machines.
    Vending machine income. (1) DoD Component receipts from the DoD 
Component vending machine operations on DoD-controlled property, where 
the machines are operated by any DoD Component activity, less costs 
incurred; or
    (2) Commissions received by any DoD Component activity from a 
commercial vending firm that provides vending machines on DoD-controlled 
property.
    (3) ``Costs incurred'' include costs of goods, including reasonable 
service and maintenance costs in accordance with customary business 
practices of commercial vending concerns, repair, cleaning, 
depreciation, supervisory and administrative personnel, normal 
accounting, and accounting for income-sharing.
    Vendor. A blind licensee who is operating a vending facility on DoD-
controlled property.



Sec. 260.4  Policy.

    It is DoD policy that a DoD Component having accountability for real 
property shall extend priority on such property to the blind when 
implementing the Randolph-Sheppard Act, as set out in the following 
paragraphs:
    (a) The blind shall be given priority in the establishment and 
operation of vending facilities.

[[Page 653]]

    (b) The blind shall be given priority in the award of contracts to 
operate cafeterias.
    (c) In conjunction with acquisition or substantial alteration or 
renovation of a building, satisfactory sites shall be provided for 
operation of blind vending facilities.
    (d) Specified income from vending machines operated on DoD-
controlled property by a DoD Component either directly or by contract 
shall be given to State licensing agencies.



Sec. 260.5  Responsibilities.

    (a) The Principal Deputy Under Secretary of Defense for Personnel 
and Readiness (PDUSD(P&R)), under the Under Secretary of Defense for 
Personnel and Readiness, shall establish policies and procedures and 
monitor the Vending Facility Program.
    (b) The Heads of the DoD Components, in monitoring their respective 
programs, shall:
    (1) Approve or disapprove State licensing agency applications for 
permits and the provision of satisfactory sites;
    (2) Issue policies and procedures to designate and establish 
responsibilities of the on-site official;
    (3) Suspend or terminate a permit to operate a vending facility 
after consulting with the PDUSD(P&R) where circumstances warrant.
    (4) Ensure appropriate real property outgrants are accomplished in 
accordance with DoDI 4165.70, ``Real Property Management,'' \1\ and 
consistent with the Randolph-Sheppard Act (20 U.S.C. 107) and the 
implementing regulations (34 CFR part 395).
---------------------------------------------------------------------------

    \1\ Available from http://www.dtic.mil/whs/directives/corres/html/
416570.htm.
---------------------------------------------------------------------------

    (5) The On-Site Official shall be the point of contact with State 
licensing agencies and shall:
    (i) Consult with State licensing agencies on articles and services 
to be provided;
    (ii) Establish appropriate limitations on the location or operation 
of a vending facility upon finding that the granting of a priority under 
the Act would adversely affect the interests of the United States. The 
On-Site Official shall justify this limitation in writing through the 
Head of the DoD Component concerned and the PDUSD(P&R) to the Secretary 
of Education for determination of whether the limitation is warranted.
    (iii) Notify State licensing agencies of acquisition or substantial 
alteration or renovation of property;
    (iv) Negotiate with State licensing agencies on other matters and 
adhere to guidance provided in Sec. 260.6 of this part.



Sec. 260.6  Procedures.

    The DoD Components in control of the maintenance, operation, and 
protection of Federal property shall take necessary action to ensure the 
requirements set forth in this Section are implemented for these 
properties.
    (a) The blind have a priority to operate vending facilities on DoD 
property, whenever feasible, in light of appropriate space and potential 
patronage. Implementation of this priority is not required when:
    (1) The number of people using the property is or will be 
insufficient to support a vending facility; or
    (2) The Secretary of Education determines that the limitation on the 
placement or operation of a vending facility is warranted pursuant to 
260.5(b)(5)(ii), which is binding on the DoD Component. Notice of the 
Secretary of Education's determination will be published in the Federal 
Register.
    (b) Applications for permits by the State licensing agency to 
operate vending facilities (except cafeterias) on DoD-controlled 
property must be submitted in writing to the Head of the DoD Component 
concerned through the on-site official. When an application is not 
approved, the Head of the DoD Component concerned shall advise the State 
licensing agency in writing and shall indicate the reasons for the 
disapproval. Permits shall describe the location of the vending facility 
and shall be subject to the following requirements:
    (1) The permit shall be issued in the name of the State licensing 
agency.
    (2) The permit shall be issued for an indefinite period of time 
subject to suspension or termination upon failure to comply with agreed-
upon terms. It

[[Page 654]]

shall be subject to termination by either party on 60 days' written 
notice to the other party, in cases of:
    (i) Inactivation of the installation or activity.
    (ii) Loss of use of a building or other facility housing the vending 
facility.
    (iii) Change in the DoD Component's requirements for service.
    (iv) Inability of the State licensing agency to continue to operate 
the vending facility.
    (3) The permit shall provide:
    (i) No charge shall be made by the DoD Component to the State 
licensing agency for normal repair and maintenance of the building, 
cleaning areas adjacent to the designated vending facility boundaries, 
or trash removal from a designated collection point (not to include any 
hazardous waste).
    (ii) The State licensing agency shall be responsible for cleaning 
and maintaining the vending facility appearance and its security within 
the designated boundaries of such facility and for all costs of every 
kind in conjunction with vending facility equipment, merchandise, and 
other products to be sold, except as provided in paragraph (b)(3)(v) of 
this section. Neither party shall be responsible for loss or damage to 
the other's property, unless caused by its acts or omissions. The State 
licensing agency shall also be responsible for the acts or omissions of 
the blind vendor, the vendor's employees, or agents.
    (iii) Articles sold at such vending facilities may consist of 
newspapers, periodicals, publications, confections, tobacco products, 
foods, beverages, chances for any lottery authorized by State law and 
conducted by an agency of a State within such State, and other articles 
or services traditionally found in blind-operated vending facilities 
operated under 20 U.S.C. 107, as determined by the State licensing 
agency, in consultation with the on-site official, to be suitable for a 
particular location. Articles and services may be automatically or 
manually dispensed.
    (iv) Vending facilities shall be operated in compliance with 
applicable Federal, state, interstate and local laws and regulations, 
including those concerning health and sanitation, the environment, and 
building codes.
    (v) Installation, modification, relocation, removal, and renovation 
of vending facilities shall be subject to the prior approval of the on-
site official and the State licensing agency. The initiating party shall 
pay the costs of installation, modification, removal, relocation, or 
renovation. In any case of suspension or termination of a permit to 
operate a vending facility on the basis of noncompliance by either 
party, the costs of removal from the building shall be borne by the non-
complying party.
    (4) The permit shall state that no charge shall be made to the State 
Licensing Authority for the cost of normal cleaning, maintenance, and 
repair of the building structure in and adjacent to the vending facility 
areas, and no charge shall be made to the DoD for the cost of sanitation 
and the maintenance of vending facilities and vending machines in an 
orderly condition at all times, and the installation, maintenance, 
repair, replacement, servicing, and removal of vending facility 
equipment.
    (5) In the event the blind licensee fails to provide satisfactory 
service or otherwise fails to comply with the requirements of the permit 
issued to the State licensing agency, the on-site official shall, after 
coordinating with the Head of the DoD Component, notify the State 
licensing agency of this deficiency in writing and request corrective 
action within a specified reasonable time. The notice shall indicate 
that failure to correct the deficiency shall result in temporary 
suspension or termination of the permit, as appropriate. Suspension or 
termination action shall be taken by the Head of the DoD Component 
concerned after consultation with the PDUSD(P&R).
    (c) Any DoD Component-acquired (purchased, rented, leased, or 
constructed), substantially altered, or renovated building is required 
to have one or more satisfactory sites for a blind-operated vending 
facility, except as provided in paragraph (c)(1) of this section.
    (1) A determination that a building contains a satisfactory site or 
sites is presumed if the State licensing agency and the on-site official 
consult and

[[Page 655]]

agree that the site or sites provided are satisfactory.
    (i) The Heads of the DoD Components shall notify the appropriate 
State licensing agency \2\ by certified or registered mail, return 
receipt requested, of buildings to be acquired or substantially altered 
or renovated. This notification shall be provided at least 60 days in 
advance of the intended acquisition date or the initiation of actual 
construction, alteration, or renovation. As a practical matter, the 
State licensing agency should be contacted early in the planning or 
design stage of a project. This notification shall:
---------------------------------------------------------------------------

    \2\ See the U.S. Department of Education Web site, Office of Special 
Education and Rehabilitative Services at http://www.ed.gov.
---------------------------------------------------------------------------

    (A) State that a satisfactory site(s) for the location and operation 
of a blind vending facility is (are) included in the plans for the 
building.
    (B) Include a copy of a single line drawing indicating the proposed 
location of such site(s).
    (C) Advise the State licensing agency that, subject to the approval 
of the DoD Component, it shall be offered the opportunity to select the 
location and type of vending facility to be operated by a blind vendor 
prior to completion of the final space layout of the building.
    (ii) Advise that the State licensing agency must respond within 30 
days to the DoD Component, acknowledging receipt of the correspondence 
from the DoD Component and indicating whether it is interested in 
establishing a vending facility and, if interested, signifying its 
agreement or alternate selection of a location and its selection of type 
of vending facility. A copy of the written notice to the State licensing 
agency and the State licensing agency's response, if any, shall be 
provided to the Secretary of Education.
    (iii) If the State licensing agency's response to the DoD Component 
indicates it does not desire to establish and operate a vending facility 
and sets forth any specific basis other than the insufficiency of 
patrons to support a vending facility, or if the State licensing agency 
does not respond within 30 days, then a site meeting the anticipated 
needs of the DoD Component shall be incorporated. Each such site shall 
have a minimum of 250 square feet for sale of items and for storage of 
articles necessary for the operation of a vending facility.
    (iv) If the State licensing agency indicates that the number of 
persons using the property is or will be insufficient to support a 
vending facility, then a satisfactory site to be operated under the 
auspices of the State licensing agency shall not be incorporated. The 
On-Site Official shall, through the Head of the DoD component, notify 
the Secretary of Education of the State licensing agency's response.
    (2) The requirement to provide a satisfactory site shall not apply:
    (i) When fewer than 100 Federal employees (as defined in Sec. 260.3 
of this part) are located in the building during normal working hours; 
or
    (ii) When the building contains fewer than 15,000 square feet to be 
used for Federal Government purposes and the Federal Government space is 
used to provide services to the general public.
    (iii) The provisions of paragraphs (c)(2)(i) and (c)(2)(ii) of this 
section do not preclude arrangements under which blind vending 
facilities may be established in buildings of a size or with an employee 
population less than that specified. For example, if a building is to be 
constructed that will contain only 30 Federal employees, upon agreement 
of the on-site official and the State licensing agency, the DoD 
Component may decide to provide a satisfactory site for a blind vending 
facility.
    (3) When a DoD Component is leasing all or part of a privately owned 
building in which the lessor or any of its tenants have an existing 
restaurant or other food facility in a part of the building not covered 
by the lease and operation of a vending facility would be in substantial 
direct competition with such restaurant or other food operation, the 
requirement to provide a satisfactory site does not apply.
    (d) Vending machine income generated by the Department of Defense 
shall be shared with State licensing agencies as prescribed in paragraph 
(d)(1) of this section. The on-site official is responsible for 
collecting and accounting for such vending machine

[[Page 656]]

income (as defined in Sec. 260.3 of this part) and for ensuring 
compliance with the requirements of this paragraph.
    (1) The vending machine income-sharing requirements are as follows:
    (i) One hundred percent of the vending machine income from vending 
machines in direct competition with blind-operated vending facilities 
shall be provided to the State licensing agency.
    (ii) Fifty percent of the vending machine income from vending 
machines not in direct competition with blind-operated vending 
facilities shall be provided to the State licensing agency.
    (iii) Notwithstanding paragraph (d)(1)(ii) of this section, thirty 
percent of the vending machine income from vending machines not in 
direct competition with blind-operated vending facilities and located 
where at least fifty percent of the total hours worked on the premises 
occurs during other than normal working hours (as defined in Sec. 260.3 
of this part) shall be provided to the State licensing agency.
    (2) The determination of whether a vending machine is in direct 
competition with the blind-operated vending facility is the 
responsibility of the on-site official subject to the concurrence of the 
State licensing agency.
    (3) These vending machine income-sharing requirements do not apply 
to:
    (i) Income from vending machines operated by or for the military 
exchanges or ships' store systems; or
    (ii) Income from vending machines, not in direct competition with a 
blind-operated vending facility, at any individual location, 
installation, or facility where the total of the vending machine income 
from all such machines at such location, installation, or facility does 
not exceed $3,000 annually.
    (4) The payment to State licensing agencies under these income-
sharing requirements must be made quarterly on a fiscal year basis.
    (e) Pursuant to 34 CFR 395.37, whenever any State licensing agency 
for the blind determines that any DoD activity is failing to comply with 
the provisions of 20 U.S.C. 107 and all informal attempts to resolve the 
issues have been unsuccessful, the State licensing agency may file a 
complaint with the Secretary of Education.



Sec. 260.7  Information requirements.

    Within 90 days after the end of each fiscal year, the DoD Components 
shall forward to the PDUSD(P&R) the total number of applications for 
vending facility locations received from State licensing agencies, the 
number accepted, the number denied, the number still pending, the total 
amount of vending machine income collected (as defined in Sec. 260.3 of 
this part, excluding income exempt from the income sharing requirements 
by Sec. 260.6(d)(3) of this part), and the amount of such vending 
machine income disbursed to State licensing agencies in each State. 
These reporting requirements have been assigned Report Control Symbol 
DD-P&R(A)2210, according to DoD 8910.1-M, ``Department of Defense 
Procedures for Management of Information Requirements.'' \3\
---------------------------------------------------------------------------

    \3\ Available from http://www.dtic.mil/whs/directives/corres/pdf/
891001m.pdf.
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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

[[Page 657]]

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 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.

[[Page 658]]

    (3) Within 15 feet of a fire hydrant, 5 feet of a driveway or 30 
feet of a stop sign or traffic control device.
    (4) At any place which would result in the vehicle being double 
parked.
    (5) At curbs painted yellow.
    (6) In a direction facing on-coming traffic.
    (7) In a manner which would obstruct traffic.
    (8) In a parking space marked as not intended for his or her use.
    (9) Where directed not to do so by a uniformed guard.
    (10) Except in an area specifically designated for parking or 
standing.
    (11) Except within a single space marked for such purposes, when 
parking or standing in an area with marked spaces.
    (12) At any place in violation of any posted sign.
    (13) In excess of 24 hours, unless permission has been granted by 
the Security Office.
    (b) No person shall park bicycles, motorbikes or similar vehicles in 
areas not designated for that purpose.
    (c) Visitors shall park in areas identified for that purpose by 
posted signs and shall register their vehicles at the front desk of 
Erskine Hall, Ruth Building or Fremont Building.
    (d) No person, except visitors, shall park a motor vehicle on the 
Brookmont site without having a valid parking permit displayed on such 
motor vehicle in compliance with the instructions of the issuing 
authority.



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

[[Page 659]]

States has entered into agreements for the Interchange of Patent Rights 
and Technical Information for Defense Purposes with Australia, Belgium, 
Denmark, France, the Federal Republic of Germany, Greece, Italy, Japan, 
The Netherlands, Norway, Portugal, Spain, Turkey, and the United 
Kingdom. The agreements, which are published in the Treaties and Other 
International Act Series, are basically similar in substance but are not 
identical. Under the agreements:
    (1) Each government undertakes to facilitate the interchange of 
privately owned patent rights and of technical information through the 
medium of commercial relationships, to the extent permitted by the laws 
and security requirements of the contracting governments.
    (2) When technical information is supplied by one government to the 
other for information only, the recipient government undertakes to treat 
the information as disclosed in confidence and to use its best endeavors 
to ensure that the information is not dealt with in any manner likely to 
prejudice the rights of the owner to obtain patent or similar statutory 
protection.
    (3) When technical information supplied by one government to the 
other discloses an invention which is the subject of a patent or patent 
application held in secrecy in the country of origin, the recipient 
government undertakes to accord similar treatment to a corresponding 
patent application filed in that country.
    (4) When privately owned technical information is released by one 
government to the other and the recipient government uses or disclosed 
the information, the owner shall, subject to the extent that the owner 
may be entitled thereto under the applicable law and subject to 
arrangements between the contracting governments regarding the 
assumption as between them of liability for compensation, receive 
prompt, just and effective compensation for such use and for any damages 
resulting from such use or disclosure.
    (5) Each government is entitled to use for defense purposes without 
cost any invention which the other government (including government 
corporations) owns or to which it has the right to grant a license to 
use, except to the extent that there may be liability to any private 
owner of an interest in the invention.
    (b) Each of these agreements establishes a Technical Property 
Committee consisting of a representative of each contracting government, 
whose function it is to consider and make recommendations to the 
contracting governments on all matters relating to the subject of the 
agreement and to assist where appropriate in the negotiation of 
commercial or other agreements for the use of patent rights and 
technical information in the military assistance program.
    (1) The Patent Advisor assigned to the Defense Staff of the U.S. 
Mission to the North Atlantic Treaty Organization and European Regional 
Organizations (USRO), Paris, France, is the United States representative 
to the Technical Property Committees in Europe. The J-4, Hq. United 
States Forces Japan, Tokyo, Japan is the United States representative to 
the United States-Japanese Technical Property Committee. A member of the 
Office of 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

[[Page 660]]

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 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

[[Page 661]]

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 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

[[Page 662]]

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 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

[[Page 663]]

institutions and independent auditors when requested.
    (ii) Assume all or some of the cognizant agency responsibilities 
(see paragraph (a)(2) of this section), as deemed necessary.
    (4) For other State and local governments, institutions of higher 
education, and other nonprofit institutions, receive and distribute 
copies of single audit reports to appropriate DoD Components for 
appropriate action and followup by designated program officials.
    (5) For audit reports that contain conditions affecting DoD 
programs, institute followup efforts to ensure that corrective actions 
have been taken by DoD organizations responsible for managing associated 
programs or funds.
    (b) The Heads of the DoD Components shall:
    (1) Designate an official to coordinate with the IG, DoD, on matters 
dealing with audits of financial assistance provided by the DoD 
Component to State and local governments, institutions of higher 
education, and other nonprofit institutions.
    (2) Ensure input of accurate award data for Federal financial 
assistance to the appropriate DoD management information system.
    (3) Ensure that the State or local government, institution of higher 
education, or other nonprofit institution takes appropriate actions to 
correct audit deficiencies involving financial assistance provided by 
the DoD Component.
    (4) For State and local governments, institutions of higher 
education, and other nonprofit institutions for which the OMB has 
assigned DoD cognizance, do the following:
    (i) Coordinate with the IG, DoD, on requests from other Federal 
Agencies for audits of State and local governments, institutions of 
higher education, and other nonprofit institutions, in addition to those 
required by OMB Circulars A-128 and A-133.
    (ii) Seek the views of other interested agencies when a coordinated 
audit approach is to be used and before completing a coordinated 
program.
    (iii) Help coordinate the audit work and reporting responsibilities 
among independent public accountants, State auditors, and both resident 
and non-resident Federal auditors to achieve the most cost-effective 
audit.



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

[[Page 664]]

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 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

[[Page 665]]

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 
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.

[[Page 666]]

military members and U.S. Government employees) domiciled outside the 
United States.
    (2) Any partnership, association, corporation, or other organization 
created or organized under the laws of a foreign country, excepting 
branches or agencies thereof located in the United States.
    (3) Any branch, subsidiary, or allied organization within a foreign 
country of a partnership, association, corporation, or other 
organization created or organized under the laws of a foreign country or 
the United States.
    (4) Any government of a foreign country and any subdivision, agency, 
or instrumentality thereof, including all foreign ``Official'' 
institutions, even though located in the United States.
    (5) Any private relief, philanthropic, or other organization of a 
multinational or regional character with headquarters abroad.
    (6) Any official multinational organization, defined as any 
international or regional organization (or affiliated agency thereof) 
created by treaty or convention between sovereign states.
    (f) 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.

[[Page 667]]



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 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) Limitation 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:

[[Page 668]]



----------------------------------------------------------------------------------------------------------------
                                                                                                         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.
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,

[[Page 669]]

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 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:

[[Page 670]]

    (1) Was captured and incarcerated by North Vietnam as a result of 
his participation in operations conducted under OPLAN 34A or its 
predecessor operation; or
    (2) Served as a Vietnamese operative under OP 35, and was captured 
and incarcerated by North Vietnamese forces as a result of the 
participation by the person in operations in Laos or along the Lao-
Vietnamese border pursuant to OP 35, and
    (i) Was captured and incarcerated by the North Vietnamese, and 
remained in captivity after 1973 (or died in captivity) after 
participation in OP 35, and
    (ii) Has not previously received payment for the United States 
Government after 1972 from the period spent in captivity.
    (b) In the case of a decedent who would have been eligible for a 
payment under this part if alive, payment will be made to the survivors 
of the decedent in the following order:
    (1) To the surviving spouse of an eligible person; or
    (2) If there is no surviving spouse of an eligible person, to the 
surviving children of an eligible person, in equal shares; or
    (3) If there is no surviving spouse of an eligible person and no 
surviving children of an eligible person, to the surviving parents of an 
eligible person, in equal shares (step parents take equal shares the 
same as natural parents); or
    (4) If there is no surviving spouse of an eligible person, no 
surviving children of an eligible person, and no surviving parents of an 
eligible person, to the surviving siblings of an eligible person, in 
equal shares. (Half siblings take equal shares in the same manner as 
full siblings.)
    (c) A payment may not be made under this part to, or with respect 
to, a person who the Commission determines, based on the available 
evidence, served in the People's Army of North Vietnam or provided 
active assistance to the Government of North Vietnam or forces opposed 
to the Government of South Vietnam or the United States during any 
period from 1958 through 1975.
    (d) The Commission will make reasonable efforts to publicize the 
availability of payments involved in this procedure, using existing 
public affairs channels.

[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.,

[[Page 671]]

CIA, INS) for review of their records, as needed to acquire 
documentation that may aid in determining the eligibility of claimants 
to receive payments.
    (5) Present any information or comments resulting from the research 
and review of cases, plus any reasonably available and probative 
information, to the Commission with a recommendation on the eligibility 
of applicants.
    (6) If eligibility is favorably approved by the Commission, forward 
written requests to DFAS to effectuate payments.
    (7) Prepare notification letters, on behalf of the Commission, for 
forwarding to claimants notifying them of the final determination 
concerning approval or disapproval of their applications.
    (8) In coordination with the Army Budget Office and OSD, determine 
appropriate fund cite that will be used for payments.
    (9) Assist in the preparation of required Reports to Congress.
    (10) Determine administrative budgetary support requirements and 
submit funding request to OSD.
    (11) Provide clerical and administrative support to the Commission.
    (12) Create and maintain a system of records to manage all 
information generated by the processing of Applications for Compensation 
of Vietnamese Commandos under this part and to create an administrative 
record of actions by the Commission. All information received or 
originated from other Departments and agencies of the U.S. government 
will be retained, stored, and further disseminated only in accordance 
with pertinent law (e.g., 5 U.S.C. section 552(FOIA) and 5 U.S.C. 
section 552a (Privacy Act)) and conditions set by those originating 
Departments and agencies.
    (c) Claims will be processed expeditiously. Within 18 months of 
actual receipt by the Commission of an Application for Compensation of 
Vietnamese Commandos, the Commission will determine the eligibility of 
the applicant. The standard for finding eligibility is whether the 
information reasonably available to the Commission indicates that the 
applicant is more likely than not to be eligible for a payment under 
this part. The burden of making a showing of eligibility shall be on the 
applicant. Upon determination of eligibility, the payment should be 
promptly accomplished.
    (d) Applicants may request to appear in person before the 
Commission, which will retain discretion whether to grant such requests. 
The Commission may request the personal appearance or interview of any 
applicant as a condition of further consideration of his or her 
application if such appearance would significantly aid the Commission in 
its determination. All appearances shall be at the expense of the 
applicant.



                            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

[[Page 672]]

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 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

[[Page 673]]

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.
    (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.



Sec. 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:

[[Page 674]]

    (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:________________________________________________________________

 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:__________________________________________________________


[[Page 675]]

________________________________________________________________________
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:____________________________________________________

________________________________________________________________________

(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:______________________________________________________________


[[Page 676]]

________________________________________________________________________
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 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;

[[Page 677]]

    (e) The affidavits of two or more eyewitnesses to the ceremony; or
    (f) In jurisdictions where ``common law'' marriages are recognized, 
an affidavit by the surviving spouse setting forth all of the facts and 
circumstances concerning the alleged marriage, such as the agreement 
between the parties at the beginning of their cohabitation, places and 
dates of residences, and whether children were born as the result of the 
relationship. This evidence should be supplemented by affidavits from 
two or more persons who know as the result of personal observation the 
reputed relationship which existed between the parties to the alleged 
marriage, including the period of cohabitation, places of residences, 
whether the parties held themselves out as husband and wife and whether 
they were generally accepted as such in the communities in which they 
lived.
    (g) If you cannot obtain any of the above evidence of your marriage, 
you must submit any other evidence that would reasonably support a 
belief that a valid marriage actually existed.
    (10) In addition, submit the following documents about ourself:
    (a) Identification. A document with your current legal name and 
address plus two or more sworn affidavits from individuals having 
personal knowledge of your identity (these should be submitted in 
addition to the document with current name and address).
    (b) One document of date of birth. A birth certificate, or if 
unavailable, other proof of birth (e.g. passport).
    (c) One document of name change. If your current legal name is the 
same as that during the marriage, this section does not apply. Spouses 
whose current legal name is different than that used when married should 
submit a document or affidavits to corroborate the name change.
    (d) One document of evidence of guardianship. If you are executing 
this document as the guardian of the spouse, you must submit evidence of 
your authority. If you are a legally-appointed guardian, submit a 
certificate executed by the proper official of the court appointment. If 
you are not such a legally-appointed guardian, submit an affidavit 
describing your relationship to the spouse and the extent to which you 
are responsible for the care of the spouse or your position as an 
officer of the institution in which the spouse is institutionalized.

                       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

[[Page 678]]

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:
    (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

[[Page 679]]

supports the existence of a parent-child relationship between the 
deceased person and the natural parent (see ``If a Natural Parent,'' 
above).
    (b) One document as evidence that you had established a parent-child 
relationship with the deceased person; and
    (c) One of the following documents as evidence that you were married 
to the natural parent of the deceased person:
    (i) A copy of the public records of marriage, certified or attested, 
or an abstract of the public records, containing sufficient information 
to identify the parties, the date and place of marriage, and the number 
of prior marriages by either party if shown on the official record, 
issued by the officer having custody of the record or other public 
official authorized to certify the record, or a certified copy of the 
religious record of marriage;
    (ii) An official report from a public agency as to a marriage which 
occurred while either parent was employed by such agency;
    (iii) An affidavit of the clergyman or magistrate who officiated;
    (iv) The certified copy of a certificate of marriage attested to by 
the custodian of the records;
    (v) The affidavits of two or more eyewitnesses to the ceremony; or
    (vi) In jurisdictions where ``common law'' marriages are recognized, 
an affidavit by the parent setting forth all of the facts and 
circumstances concerning the alleged marriage, such as the agreement 
between the parties at the beginning of their cohabitation, places and 
dates of residences, and whether children were born as the result of the 
relationship. This evidence should be supplemented by affidavits from 
two or more persons who know as a result of personal observation the 
reputed relationship which existed between the parties to the alleged 
marriage, including the period of cohabitation, places of residences, 
whether the parties held themselves out as husband and wife and whether 
they were generally accepted as such in the communities in which they 
lived.
    (vii) If you cannot obtain any of the above evidence of your 
marriage to the natural parent, you must submit any other evidence that 
would reasonably support a belief that a valid marriage actually 
existed.
    (16) In addition, submit the following documents about yourself:
    (a) Identification. A document with your current legal name and 
address plus two or more sworn affidavits from individuals having 
personal knowledge of your identity (these should be submitted in 
addition to the document with current name and address).
    (b) One document of date of birth. A Birth certificate, or if 
unavailable, other proof of birth (e.g., passport).
    (c) One document of name change. If your current legal name is the 
same as that shown on documents attesting to your birth, this section 
does not apply. Persons whose current legal name is different than that 
used on such documents should submit a document or affidavit to 
corroborate the name change.
    (d) One document of evidence of guardianship. If you are executing 
this document as the guardian of the person identified as a surviving 
parent of the deceased person described in Part A, above, you must 
submit evidence of your authority. If you are a legally-appointed 
guardian, submit a certificate executed by the proper official of the 
court appointment. If you are not such a legally-appointed guardian, 
submit an affidavit describing your relationship to the parent and the 
extent to which you are responsible for the care of the parent, or your 
position as an officer of the institution in which the parent is 
institutionalized.

                   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

[[Page 680]]

death, giving the place, date, and cause of death.
    (18) One of the following documents as evidence of the death of all 
of the children (if any), of the deceased individual described in Part 
A, above:
    (a) A certified copy of extract from the public records of death, 
coroner's report of death, or verdict of a coroner's jury;
    (b) A certificate by the custodian of the public record of death;
    (c) A statement of the funeral director or attending physician or 
intern of the institution where death occurred;
    (d) A certified copy, or extract from an official report or finding 
of death made by an agency or department of the United States 
government; or
    (e) If death occurred outside the United States, an official report 
of death by a United States Consul or other employee of the State 
Department, or a copy of public record of death in the foreign country.
    (f) If you cannot obtain any of the above evidence of death of the 
children of the deceased individual described in Part A, above, you must 
submit other convincing evidence, such as signed sworn statements of two 
or more persons with personal knowledge of the death, giving the place, 
date, and cause of death.
    (19) One of the following documents as evidence of the death of the 
parents of the deceased in individual described in Part A, above:
    (a) A certified copy of extract from the public records of death, 
coroner's report of death, or verdict of a coroner's jury;
    (b) A certificate by the custodian of the public record of death;
    (c) A statement of the funeral director or attending physician or 
intern of the institution where death occurred;
    (d) A certified copy, or extract from an official report or finding 
of death made by an agency or department of the United States 
government; or
    (e) If death occurred outside the United States, an official report 
of death by a United States Consul or other employee of the State 
Department, or a copy of public record of death in the foreign country.
    (f) If you cannot obtain any of the above evidence of death of the 
parents of the deceased individual described in Part A, above, you must 
submit other convincing evidence, such as signed sworn statements of two 
or more persons with personal knowledge of the death, giving the place, 
date, and cause of death.
    Each surviving sibling should submit the following:
    (20) One document as evidence of your relationship to your sibling 
(the deceased individual described in Part A, above), as follows:
    (a) Birth certificate showing that at least one of your deceased 
parents was also the natural parent of the deceased person described in 
Part A, above;
    (b) If the birth certificate does not show the deceased individual 
described in Part A, above, as your sibling, a certified copy of:
    (i) An acknowledgement in writing signed by the deceased person;
    (ii) The public record of birth or a religious record showing that 
the deceased person was named as your sibling.
    (iii) Affidavit of a person who knows that the deceased person was 
your sibling; or
    (iv) Public records, such as records of school or welfare agencies, 
which show that the deceased individual was named as your sibling.
    (v) If you cannot obtain any of the above evidence of your sibling 
relationship to the deceased individual described in Part A, above, you 
must submit any other evidence that would reasonably support a belief 
that a valid sibling relationship actually existed.
    (21) In addition, submit the following documents about yourself:
    (a) Identification. A document with your current legal name and 
address plus two or more sworn affidavits from individuals having 
personal knowledge of your identity (these should be submitted in 
addition to the document with current name and address).
    (b) One document of date of birth. A Birth certificate, or if 
unavailable, other proof of birth (e.g., passport).
    (c) One document of name change. If your current legal name is the 
same as that shown on documents attesting to your birth, this section 
does not apply. Persons whose 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:___________________________________________________________________


[[Page 681]]

________________________________________________________________________
Sworn 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 FR 68195, Dec. 10, 1998]



PART 272_ADMINISTRATION AND SUPPORT OF BASIC RESEARCH BY THE
DEPARTMENT OF DEFENSE--Table of Contents



Sec.
272.1 Purpose.
272.2 Applicability.
272.3 Definition of basic research.
272.4 Policy.
272.5 Responsibilities.

Appendix A to Part 272--Principles for the Conduct and Support of Basic 
          Research.

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

    Source: 70 FR 55726, Sept. 23, 2005, unless otherwise noted.



Sec. 272.1  Purpose.

    This part implements the:
    (a) Policy on the support of scientific research in Executive Order 
10521, ``Administration of Scientific Research by Agencies of the 
Federal Government'' (3 CFR, 1954-1958 Comp., p. 183), as amended; and
    (b) Guiding principles for the government-university research 
partnership in Executive Order 13185, ``To Strengthen the Federal 
Government-University Research Partnership'' (3 CFR 2000 Comp., p. 341).



Sec. 272.2  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 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'').



Sec. 272.3  Definition of basic research.

    Basic research is systematic study directed toward greater knowledge 
or understanding of the fundamental aspects of phenomena and of 
observable facts without specific applications towards processes or 
products in mind. It includes all scientific study and experimentation 
directed toward increasing fundamental knowledge and understanding in 
those fields of the physical, engineering, environmental, and life 
sciences related to long-term national security needs. It is farsighted 
high payoff research that provides the basis for technological progress.



Sec. 272.4  Policy.

    It is DoD policy that:
    (a) Basic research is essential to the Department of Defense's 
ability to carry out its missions because it is:
    (1) A source of new knowledge and understanding that supports DoD 
acquisition and leads to superior technological capabilities for the 
military; and
    (2) An integral part of the education and training of scientists and 
engineers critical to meeting future needs of the Nation's defense 
workforce.
    (b) The Department of Defense shall:
    (1) Conduct a vigorous program of high quality basic research in the 
DoD Component laboratories; and
    (2) Support high quality basic research done by institutions of 
higher education, other nonprofit research institutions, laboratories of 
other Federal agencies, and industrial research laboratories.
    (c) The DoD Components' conduct and support of basic research shall 
be consistent with the principles stated in Appendix A to this part.



Sec. 272.5  Responsibilities.

    (a) The Director of Defense Research and Engineering, under the 
Under Secretary of Defense for Acquisition, Technology, and Logistics 
(USD(AT&L)), shall:
    (1) Provide technical leadership and oversight, issue guidance for 
plans and programs; develop policies; conduct analyses and studies; and 
make recommendations for DoD basic research.

[[Page 682]]

    (2) Recommend approval, modification, or disapproval of the DoD 
Components' basic research programs and projects to eliminate 
unpromising or unnecessarily duplicative programs, and to stimulate the 
initiation or support of promising ones.
    (3) Recommend, through the USD(AT&L) to the Secretary of Defense, 
appropriate funding levels for DoD basic research.
    (4) Develop and maintain a metrics program to measure and assess the 
quality and progress for DoD basic research, a required element of which 
is an independent technical review:
    (i) At least biennially; and
    (ii) With participation by all the Military Departments and all the 
other DoD Components that have basic research programs.
    (5) Monitor the implementation of this part and issue any additional 
direction and guidance that may be necessary for that purpose.
    (b) The Directors of the Defense Agencies supporting basic research 
and the Secretaries of the Military Departments, within their 
organizational purview, shall implement this part.



 Sec. Appendix A to Part 272--Principles for the Conduct and Support of 
                             Basic Research

    1. Basic research is an investment. The DoD Components are to view 
and manage basic research investments as a portfolio, with assessments 
of program success based on aggregate returns. There should be no 
expectation that every individual research effort will succeed because 
basic research essentially is an exploration of the unknown and specific 
outcomes are not predictable.
    2. Basic research is a long-term activity that requires continuity 
and stability of support. Individual basic research efforts sometimes 
return immediate dividends, with transitions directly from research 
laboratories to defense systems in the field. However, most often the 
full benefits of basic research are not apparent until much later. 
Therefore, the DoD Components must engage in long-term planning and 
funding of basic research to the maximum possible extent.
    3. Balance is essential in the portfolio of basic research 
investments. A wide range of scientific and engineering fields is of 
potential interest to the Department of Defense and the DoD Components. 
It is important to develop a balanced portfolio that includes 
investments not only in established research areas with promise for 
evolutionary advances, but also in areas that entail higher risk and 
offer potential for revolutionary advances with correspondingly higher 
benefits.
    4. Coordination with other Federal agencies is important. The DoD 
Components are to consider other Federal agencies' basic research 
investments when making investment decisions, both to avoid unintended 
overlapping of support and to leverage those agencies' investments as 
appropriate.
    5. Merit review is used to select basic research projects for 
support. It is crucial that the Department of Defense invest in the 
highest quality research for defense needs. Merit review relies on the 
informed advice of qualified individuals who are independent of the 
individuals proposing to do the research. The principal merit review 
factors used in selecting among possible projects are technical merit 
and potential long-term relevance to defense missions.



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.
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.

[[Page 683]]



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 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-postponements.

    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.

[[Page 684]]

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:
RIGHT TO FINANCIAL PRIVACY ACT OF 1978--Table of Contents



Sec.
275.1 Purpose.
275.2 Applicability and scope.
275.3 Definitions.
275.4 Policy.
275.5 Responsibilities.

Appendix A to Part 275--Obtaining Basic Identifying Account Information
Appendix B to Part 275--Obtaining Customer Authorization
Appendix C to Part 275--Obtaining Access by Administrative or Judicial 
          Subpoena or by Formal Written Request
Appendix D to Part 275--Obtaining Access by Search Warrant
Appendix E to Part 275--Obtaining Access for Foreign Intelligence, 
          Foreign Counterintelligence, and International Terrorist 
          Activities or Investigations
Appendix F to Part 275--Obtaining Emergency Access
Appendix G to Part 275--Releasing Information Obtained From Financial 
          Institutions
Appendix H to Part 275--Procedures for Delay of Notice
Appendix I to Part4 275--Format for Obtaining Basic Identifying Account 
          Information
Appendix J to Part 275--Format for Customer Authorization
Appendix K to Part 275--Format for Formal Written Request
Appendix L to Part 275--Format for Customer Notice for Administrative or 
          Judicial Subpoena or for a Formal Written Request
Appendix M to Part 275--Format for Certificate of Compliance With the 
          Right to Financial Privacy Act of 1978
Appendix N to Part 275--Obtaining Access to Financial Records Overseas

    Authority: 12 U.S.C. 3401, et seq.

    Source: 71 FR 26221, May 4, 2006, unless otherwise noted.



Sec. 275.1  Purpose.

    This part:
    (a) Updates policies and responsibilities, and prescribes procedures 
for obtaining access to financial records maintained by financial 
institutions.
    (b) Implements 12 U.S.C. Chapter 35 by providing guidance on the 
requirements and conditions for obtaining financial records.



Sec. 275.2  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) Only to financial records maintained by financial institutions.



Sec. 275.3  Definitions.

    (a) Administrative Summons or Subpoena. A statutory writ issued by a 
Government Authority.
    (b) 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

[[Page 685]]

institution is acting or has acted as fiduciary for an account 
maintained in the name of that person.
    (c) Financial Institution (for intelligence activity purposes only. 
(1) An insured bank (includes a foreign bank having an insured branch) 
whose deposits are insured under the Federal Deposit Insurance Act.
    (2) A commercial bank or trust company.
    (3) A private banker.
    (4) An agency or branch of a foreign bank in the United States.
    (5) Any credit union.
    (6) A thrift institution.
    (7) A broker or dealer registered with the Securities and Exchange 
Commission.
    (8) A broker or dealer in securities or commodities.
    (9) An investment banker or investment company.
    (10) A currency exchange.
    (11) An issuer, redeemer, or cashier of travelers' checks, checks, 
money orders, or similar instruments.
    (12) An operator of a credit card system.
    (13) An insurance company.
    (14) A dealer in precious metals, stones, or jewels.
    (15) A pawnbroker.
    (16) A loan or finance company.
    (17) A travel agency.
    (18) A licensed sender of money or any other person who engages as a 
business in the transmission of funds, including any person who engages 
as a business in an informal money transfer system or any network of 
people who engage as a business in facilitating the transfer of money 
domestically or internationally outside of the conventional financial 
institutions system.
    (19) A telegraph company.
    (20) A business engaged in vehicle sales, including automobile, 
airplane, and boat sales.
    (21) Persons involved in real estate closings and settlements.
    (22) The United States Postal Service.
    (23) An agency of the United States Government or of a State or 
local government performing a duty or power of a business described in 
this definition.
    (24) A casino, gambling casino, or gaming establishment with an 
annual gaming revenue of more than $1,000,000 which is licensed as a 
casino, gambling casino, or gaming establishment under the laws of a 
State or locality or is an Indian gaming operation conducted pursuant 
to, and as authorized by, the Indian Gaming Regulatory Act.
    (25) Any business or agency that engages in any activity which the 
Secretary of the Treasury, by regulation determines to be an activity in 
which any business described in this definition is authorized to engage; 
or any other business designated by the Secretary of the Treasury whose 
cash transactions have a high degree of usefulness in criminal, tax, or 
regulatory matters.
    (26) Any futures commission merchant, commodity trading advisor, or 
commodity pool operator registered, or required to register, under the 
Commodity Exchange Act that is located inside any State or territory of 
the United States, the District of Columbia, Puerto Rico, Guam, American 
Samoa, the Commonwealth of the Northern Mariana Islands, or the United 
States Virgin Islands.
    (d) Financial Institution (other than for intelligence activity 
purposes). Any office of a bank, savings bank, credit card issuer, 
industrial loan company, trust company, savings association, building 
and loan, or 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.
    (e) Financial Record. An original, its copy, or information known to 
have been derived from the original record held by a financial 
institution that pertains to a customer's relationship with the 
financial institution.
    (f) Government Authority. Any agency or Department of the United 
States, or any officer, employee, or agent thereof, to include DoD law 
enforcement offices, personnel security elements, and/or intelligence 
organizations.
    (g) Intelligence Activities. The collection, production, and 
dissemination of foreign intelligence and counterintelligence, to 
include investigation or

[[Page 686]]

analyses related to international terrorism, by DoD intelligence 
organizations.
    (h) Intelligence Organizations. Any element of a DoD Component 
authorized by the Secretary of Defense to conduct intelligence 
activities.
    (i) 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.
    (j) Law Enforcement Office. Any element of a DoD Component 
authorized by the Head of the DoD Component conducting law enforcement 
inquiries.
    (k) Person. An individual or a partnership consisting of five or 
fewer individuals.
    (l) Personnel Security Element. Any element of a DoD Component 
authorized by the Secretary of Defense conducting personnel security 
investigations.
    (m) Personnel Security Investigation. An investigation required for 
determining a person's eligibility for access to classified information, 
acceptance or retention in the Armed Forces, assignment or retention in 
sensitive duties, or other designated duties requiring such 
investigation. Personnel security investigations include investigations 
conducted for the purpose of making personnel security determinations. 
They also include investigations of allegations that may arise 
subsequent to favorable adjudicative action and require resolution to 
determine a person's current eligibility for access to classified 
information or assignment or retention in a sensitive position.



Sec. 275.4  Policy.

    It is DoD policy that:
    (a) Authorization of the customer to whom the financial records 
pertain shall be sought unless doing so compromises or harmfully delays 
either a legitimate law enforcement inquiry or a lawful intelligence 
activity. If the person declines to consent to disclosure, the 
alternative means of obtaining the records authorized by subpart B shall 
be utilized.
    (b) The provisions of 12 U.S.C. Chapter 35 do not govern obtaining 
access to financial records maintained by military banking contractors 
located outside the United States, the District of Columbia, Guam, 
American Samoa, Puerto Rico, and the Virgin Islands. The guidance set 
forth in Appendix N of subpart B may be used to obtain financial 
information from these contractor operated facilities.



Sec. 275.5  Responsibilities.

    (a) The Director of Administration and Management, Office of the 
Secretary of Defense shall:
    (1) Exercise oversight to ensure compliance with this part.
    (2) Provide policy guidance to affected DoD Components to implement 
this part.
    (b) The Secretaries of the Military Departments and the Heads of the 
affected DoD Components shall:
    (1) Implement policies and procedures to ensure implementation of 
this part when seeking access to financial records.
    (2) Adhere to the guidance and procedures contained in this part.



    Sec. Appendix A to Part 275--Obtaining 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. The notice (paragraph B of Appendix C to this part), challenge 
(paragraph D of Appendix C to this part), and transfer (paragraph B. of 
Appendix G to this part) requirements of this part shall not apply when 
a Government authority is seeking only the above specified basic 
identifying information concerning a customer's account.
    C. A format for obtaining basic identifying account information is 
set forth in Appendix I to this part.



      Sec. Appendix B to Part 275--Obtaining Customer Authorization

    A. A DoD law enforcement office or personal security element seeking 
access to a

[[Page 687]]

person's financial records shall, when feasible, obtain the customer's 
consent.
    B. Any authorization obtained under paragraph A. of this appendix, 
shall:
    1. Be in writing, signed, and dated.
    2. Identify the particular financial records that are being 
disclosed.
    3. State that the customer may revoke the authorization at any time 
before disclosure.
    4. Specify the purposes for disclosure and to which Governmental 
authority the records may be disclosed.
    5. Authorize the disclosure for a period not in excess of 3 months.
    6. Contain a ``State of Customer Rights'' as required by 12 U.S.C. 
Chapter 35 (see Appendix J to this part).
    7. Contain a Privacy Act Statement as required by 32 CFR part 310 
for a personnel security investigation.
    C. Any customer's authorization not containing all of the elements 
listed in paragraph B. of this appendix, shall be void. A customer 
authorization form, in a format set forth in Appendix J to this part, 
shall be used for this purpose.
    D. A copy of the customer's authorization shall be made a part of 
the law enforcement or personnel security file where the financial 
records are maintained.
    E. A certificate of compliance stating that the applicable 
requirements of 12 U.S.C. Chapter 35 have been met (Appendix M to this 
part), along with the customer's authorization, shall be provided to the 
financial institution as a prerequisite to obtaining access to financial 
records.



   Sec. Appendix C to Part 275--Obtaining Access by Administrative or 
             Judicial Subpoena or by Formal Written Request

    A. Access to information contained in financial records from a 
financial institution may be obtained by Government authority when the 
nature of the records is reasonably described and the records are 
acquired by:
    1. Administrative Summons or Subpoena. a. Within the Department of 
Defense, the Inspector General, DoD, has the authority under the 
Inspector General Act to issue administrative subpoenas for access to 
financial records. No other DoD Component official may issue summons or 
subpoenas for access to these records.
    b. The Inspector General, DoD shall issue administrative subpoenas 
for access to financial records in accordance with established 
procedures but subject to the procedural requirements of this appendix.
    2. Judicial Subpoena.
    3. Formal Written Request.
    a. Formal requests may only be used if an administrative summons or 
subpoena is not reasonably available to obtain the financial records.
    b. A formal written request shall be in a format set forth in 
Appendix K to this part and shall:
    1. State that the request is issued under 12 U.S.C. Chapter 35 and 
the DoD Component's implementation of this part.
    2. Describe the specific records to be examined.
    3. State that access is sought in connection with a legitimate law 
enforcement inquiry.
    4. Describe the nature of the inquiry.
    5. Be signed by the head of the law enforcement office or a 
designee.
    B. A copy of the administrative or judicial subpoena or formal 
request, along with a notice specifying the nature of the law 
enforcement inquiry, shall be served on the person or mailed to the 
person's last known mailing address on or before the subpoena is served 
on the financial institution unless a delay of notice has been obtained 
under Appendix H of this part.
    C. The notice to the customer shall be in a format similar to 
Appendix L to this part and shall be personally served at least 10 days 
or mailed at least 14 days prior to the date on which access is sought.
    D. The customer shall have 10 days to challenge a notice request 
when personal service is made and 14 days when service is by mail.
    E. No access to financial records shall be attempted before the 
expiration of the pertinent time period while awaiting receipt of a 
potential customer challenge, or prior to the adjudication of any 
challenge made.
    F. The official who signs the customer notice shall be designated to 
receive any challenge from the customer.
    G. When a customer fails to file a challenge to access to financial 
records within the above pertinent time periods, or after a challenge is 
adjudicated in favor of the law enforcement office, the head of the 
office, or a designee, shall certify in writing to the financial 
institution that such office has complied with the requirements of 12 
U.S.C. Chapter 35. No access to any financial records shall be made 
before such certification (Appendix M to this part) is provided the 
financial institution.



     Sec. Appendix D to Part 275--Obtaining Access By Search Warrant

    A. A Government authority may obtain financial records by using a 
search warrant obtained under Rule 41 of the Federal Rules of Criminal 
Procedure.
    B. Unless a delay of notice has been obtained under provisions of 
Appendix H to this part, the law enforcement office shall, no later than 
90 days after serving the search warrant, mail to the customer's last 
known address a copy of the search warrant together with the following 
notice:

[[Page 688]]

    ``Records or information concerning your transactions held by the 
financial institution named in the attached search warrant were obtained 
by this [DoD office or activity] on [date] for the following purpose: 
[state purpose]. You may have rights under the Right to Financial 
Privacy Act of 1978.''
    C. In any state or territory of the United States, or in the 
District of Columbia, Puerto Rico, Guam, American Samoa, or the Virgin 
Islands, search authorizations signed by installation commanders, 
military judges, or magistrates shall not be used to gain access to 
financial records.



Sec. Appendix E to Part 275--Obtaining Access for Foreign Intelligence, 
 Foreign Counterintelligence, and International Terrorist Activities or 
                             Investigations

    A. Financial records may be obtained from a financial institution 
(as identified at Sec. 275.3) by an intelligence organization, as 
identified in DoD Directive 5240.1 \1\, authorized to conduct 
intelligence activities, to include investigation or analyses related to 
international terrorism, pursuant to DoD Directive 5240.1 and Executive 
Order 12333.
---------------------------------------------------------------------------

    \1\ Copies may be obtained at http://www.dtic.mil/whs/directives/.
---------------------------------------------------------------------------

    B. The provisions of this part do not apply to the production and 
disclosure of financial records when requests are submitted by 
intelligence organizations except as may be required by this Appendix.
    C. When a request for financial records is made under paragraph A. 
of this appendix, a Component official designated by the Secretary of 
Defense, the Secretary of a Military Department, or the Head of the DoD 
Component authorized to conduct foreign intelligence or foreign 
counterintelligence activities shall certify to the financial 
institution that the requesting Component has complied with the 
provisions of U.S.C. chapter 35. Such certification in a format similar 
to Appendix M to this part shall be made before obtaining any records.
    D. An intelligence organization requesting financial records under 
paragraph A. of this appendix, may notify the financial institution from 
which records are sought 12 U.S.C. 3414(3) prohibits disclosure to any 
person by the institution, its agents, or employees that financial 
records have been sought or obtained. An intelligence organization 
requesting financial records under paragraph A. of this appendix, shall 
maintain an annual tabulation of the occasions in
    E. An intelligence organization requesting financial records under 
paragraph A. of this appendix, shall maintain an annual tabulation of 
the occasions in which this access procedure was used.



         Sec. Appendix F to Part 275--Obtaining Emergency Access

    A. Except as provided in paragraphs B. and C. of this appendix, 
nothing in this part shall apply to a request for financial records from 
a financial institution when a determination is made that a delay in 
obtaining access to such records would create an imminent danger of:
    1. Physical injury to any person.
    2. Serious property damage.
    3. Flight to avoid prosecution.
    B. When access is made to financial records under paragraph A of 
this appendix, a Component official designated by the Secretary of 
Defense or the Secretary of a Military Department shall:
    1. Certify in writing, in a format set forth in Appendix M to this 
part, to the financial institution that the Component has complied with 
the provisions of 12 U.S.C. chapter 35, as a prerequisite to obtaining 
access.
    2. Submit for filing with the appropriate court a signed sworn 
statement setting forth the grounds for the emergency access within 5 
days of obtaining access to financial records.
    C. When access to financial records are obtained under paragraph A. 
of this appendix, a copy of the request, along with the following 
notice, shall be served on the person or mailed to the person's last 
known mailing address as soon as practicable after the records have been 
obtained unless a delay of notice has been obtained under appendix H of 
this part.
    ``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.



    Sec. Appendix G to Part 275--Releasing Information Obtained From 
                         Financial Institutions

    A. Financial records obtained under 12 U.S.C. chapter 35 shall be 
marked: ``This record was obtained pursuant to the Right to Financial 
Privacy Act of 1978, 12 U.S.C. 3401 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 this part shall not be 
transferred to another

[[Page 689]]

Agency or Department outside the Department of Defense unless the head 
of the transferring law enforcement office, personnel security element, 
or intelligence organization, or designee, certifies in writing that 
there is reason to believe that the records are relevant to a legitimate 
law enforcement inquiry, or intelligence or counterintelligence activity 
(to include investigation or analyses related to international 
terrorism) within the jurisdiction of the receiving Agency or 
Department. Such certificates shall be maintained with the DoD Component 
along with a copy of the released records.
    C. Subject to paragraph D. of this appendix, unless a delay of 
customer notice has been obtained under Appendix H of this part, the law 
enforcement office or personnel security element shall, within 14 days, 
personally serve or mail to the customer, at his or her last known 
address, a copy of the certificate required by paragraph B., along with 
the following notice:
    ``Copies of or information contained in your financial records 
lawfully in possession of [name of Component] have been furnished to 
[name of Agency or Department] pursuant to the Right to Financial 
Privacy Act of 1978 for the following purposes: [state the nature of the 
law enforcement inquiry with reasonable specificity]. If you believe 
that this transfer has not been made to further a legitimate law 
enforcement inquiry, you may have legal rights under the Financial 
Privacy Act of 1978 or the Privacy Act of 1974.''
    D. If a request for release of information is from a Federal Agency, 
as identified in E.O. 12333, authorized to conduct foreign intelligence 
or foreign counterintelligence activities, the transferring DoD 
Component shall release the information without notifying the customer, 
unless permission to provide notification is given in writing by the 
requesting Agency.
    E. Whenever financial data obtained under this part is incorporated 
into a report of investigation or other correspondence; precautions must 
be taken to ensure that:
    1. The reports or correspondence are not distributed outside the 
Department of Defense except in compliance with paragraph B.; and
    2. The report or other correspondence contains an appropriate 
warning restriction on the first page or cover. Such a warning could 
read as follows:
    ``Some of the information contained herein (cite specific paragraph) 
is financial record information which was obtained pursuant to the Right 
to Privacy Act of 1978, 12 U.S.C. 3401 et seq. This information may not 
be released to another Federal Agency or Department outside the 
Department of Defense except for those purposes expressly authorized by 
Act.''



       Sec. Appendix H to Part 275--Procedures for Delay of Notice

    A. The customer notice required when seeking an administrative 
subpoena or summons (paragraph B. of appendix C to this part), obtaining 
a search warrant (paragraph B. of appendix D to this part), seeking a 
judicial subpoena (paragraph B. to appendix C to this part), making a 
formal written request (paragraph B. to appendix C to this part), 
obtaining emergency access (paragraph C. of appendix F to this part), or 
transferring information (paragraph C. of appendix G to this part), may 
be delayed for an initial period of 90 days and successive periods of 90 
days. The notice required when obtaining a search warrant (paragraph B. 
of appendix D to this part) may be delayed for a period of 180 days and 
successive periods of 90 days. A delay of notice may only be made by an 
order of an appropriate court if the presiding judge or magistrate finds 
that:
    1. The investigation is within the lawful jurisdiction of the 
Government authority seeking the records.
    2. There is reason to believe the records being sought are relevant 
to a law enforcement inquiry.
    3. There is reason to believe that serving the notice will result 
in:
    a. Endangering the life or physical safety of any person.
    b. Flight from prosecution.
    c. Destruction of or tampering with evidence.
    d. Intimidation of potential witnesses.
    e. Otherwise seriously jeopardizing an investigation or official 
proceeding or unduly delaying a trial or ongoing official proceeding to 
the same degree as the circumstances in paragraphs A.2.a. through A.2.d. 
of this appendix.
    B. When a delay of notice is appropriate, legal counsel shall be 
consulted to obtain such a delay. Application for delays of notice shall 
be made with reasonable specificity.
    C. Upon the expiration of a delay of notification obtained under 
paragraph A. of this appendix for a search warrant, the law enforcement 
office obtaining such records shall mail to the customer a copy of the 
search warrant, along with the following notice:
    ``Records or information concerning your transactions held by the 
financial institution named in the attached search warrant were obtained 
by this [agency or department] on [date].
    Notification was delayed beyond the statutory 180-day delay period 
pursuant to a determination by the court that such notice would 
seriously jeopardize an investigation concerning [state with reasonable 
specificity]. You may have rights under the Right to Financial Privacy 
Act of 1978.''
    D. Upon the expiration of all other delays of notification obtained 
under paragraph A.

[[Page 690]]

of this appendix, the customer shall be served with or mailed a copy of 
the legal process or formal request, together with the following notice 
which shall state with reasonable specificity the nature of the law 
enforcement inquiry.
    ``Records or information concerning your transactions which are held 
by the financial institution named in the attached process or request 
were supplied to or requested by the Government authority named in the 
process or request on (date). Notification was withheld pursuant to a 
determination by the (title of the court ordering the delay) under the 
Right to Financial Privacy Act of 1978 that such notice might (state the 
reason). The purpose of the investigation or official proceeding was 
(state the purpose).''



  Sec. Appendix I to Part 275--Format for Obtaining Basic Identifying 
                           Account Information

[Official Letterhead]

[Date]

Mr./Mrs. XXXXXXXXXX
Chief Teller [as appropriate]
First National Bank
Anywhere, VA 00000-0000

Dear Mr./Mrs. XXXXXXXXXX

    In connection with a legitimate law enforcement inquiry and pursuant 
to section 3413(g) of the Right to Financial Privacy Act of 1978, 12 
U.S.C. 3401 et. seq., you are requested to provide the following account 
information:
    [Name, address, account number, and type of account of any customer 
or ascertainable group of customers associated with a financial 
transaction or class of financial transactions.
    I hereby certify, pursuant to section 3403(b) of the Right of 
Financial Privacy Act of 1978, that the provisions of the Act have been 
complied with as to this request for account information.
    Under section 3417(c) of the Act, good faith reliance upon this 
certification relieves your institution and its employees and agents of 
any possible liability to the customer in connection with the disclosure 
of the requested financial records.

[Official Signature Block]



     Sec. Appendix J to Part 275--Format for Customer Authorization

    Pursuant to section 3404(a) of the Right to Financial Privacy Act of 
1978, I, [Name of customer], having read the explanation of my rights on 
the reverse side, hereby authorize the [Name and address of financial 
institution] to disclose these financial records: [List the particular 
financial records] to [DoD Component] for the following purpose(s): 
[Specify the purpose(s)].
    I understand that the authorization may be revoked by me in writing 
at any time before my records, as described above, are disclosed, and 
that this authorization is valid for no more than three months from the 
date of my signature.

 Signature:_____________________________________________________________

 Date:__________________________________________________________________

[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.

                Authorization To Access Financial Records

    You may be asked to authorize the financial institution to make your 
financial records available to the Government. You may withhold your 
authorization, and your authorization is not required as a condition of 
doing business with any financial institution. If you provide 
authorization, it can be revoked in writing at any time before your 
records are disclosed. Furthermore, any authorization you provide 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 Authorization

    Without your authorization, a Federal Agency that wants to see your 
financial records may do so ordinarily only by means of a lawful 
administrative subpoena or summons, search warrant, judicial subpoena, 
or formal written request for that purpose. Generally, the Federal 
Agency must give you advance notice of its request for your records 
explaining why the information is being sought and telling you how to 
object in court.
    The Federal Agency must also send you copies of court documents to 
be prepared by you with instructions for filling them out. While these 
procedures will be kept as simple as possible, you may want to consult 
an attorney before making a challenge to a Federal Agency's request.

                               Exceptions

    In some circumstances, a Federal Agency may obtain financial 
information about you without advance notice or your authorization. In 
most of these cases, the Federal Agency will be required to go to court 
for permission to obtain your records without

[[Page 691]]

giving you notice beforehand. In these instances, the court will make 
the Government show that its investigation and request for your records 
are proper. When the reason for the delay of notice no longer exists, 
you will be notified that your records were obtained.

                         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)



     Sec. Appendix K to Part 275--Format for Formal Written Request

[Official Letterhead]

Mr./Mrs. XXXXXXXXXX
President (as appropriate)
City National Bank and Trust Company
Anytown, VA 00000-0000

Dear Mr./Mrs. XXXXXXXXX

    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 records which are 
required for [Describe the nature or purpose of the inquiry].
    A copy of this request was [personally served upon or mailed to the 
subject on [date] who has [10 or 14] days in which to challenge this 
request by filing an application in an appropriate United States 
District Court if the subject desires to do so.
    Upon the expiration of the above mentioned time period and absent 
any filing or challenge by the subject, you will be furnished a 
certification certifying in writing that the applicable provisions of 
the Act have been complied with prior to obtaining the requested 
records. Upon your receipt of a Certificate of Compliance with the Right 
to Financial Privacy Act of 1978, you will be relieved of any possible 
liability to the subject in connection with the disclosure of the 
requested financial records.

[Official Signature Block]



      Sec. Appendix L to Part 275--Format for Customer Notice for 
   Administrative or Judicial Subpoena or for a Formal Written Request

[Official Letterhead]

[Date]

Mr./Ms. XXXXX X. XXXX
1500 N. Main Street
Anytown, VA 00000-0000

Dear Mr./Ms. XXXX:

    Information or records concerning your transactions held by the 
financial institution named in the attached [administrative subpoena or 
summons] [judicial subpoena] [request] are being sought by the [Agency/
Department] in accordance with the Right to Financial Privacy Act of 
1978, Title 12, United States Code, Section 3401 et seq., and 
[Component's implementing document], for the following purpose(s):

[List the purpose(s)]

    If you desire that such records or information not be made 
available, you must:
    1. Fill out the accompanying motion paper and sworn statement or 
write one of your own, stating that you are the customer whose records 
are being requested by the Government and either giving the reasons you 
believe that the records are not relevant to the legitimate law 
enforcement inquiry stated in this notice or any other legal basis for 
objecting to the release of the records.
    2. File the motion and statement by mailing or delivering them to 
the clerk of any one of the following United States District Courts:

[List applicable courts]

    3. Serve the Government authority requesting the records by mailing 
or delivering a copy of your motion and statement to: [Give title and 
address].
    4. Be prepared to come to court and present your position in further 
detail.
    5. You do not need to have a lawyer, although you may wish to employ 
one to represent you and protect your rights.
    If you do not follow the above procedures, upon the expiration of 10 
days from the date

[[Page 692]]

of personal service or 14 days from the date of mailing of this notice, 
the records or information requested therein may be made available. 
These records may be transferred to other Government authorities for 
legitimate law enforcement inquiries, in which event you will be 
notified after the transfer.

[Signature]
[Name and title of official]
[DoD Component]
[Telephone]

                             Attachments--3

    1. Copy of request
    2. Motion papers
    3. Sworn statement



 Sec. Appendix M to Part 275--Format for Certificate of Compliance With 
               the Right to Financial Privacy Act of 1978

[Official Letterhead]

[Date]

Mr./Mrs. XXXXXXXXX
Manager
Army Federal Credit Union
Fort Anywhere, VA 00000-0000

Dear Mr./Mrs. XXXXXXXXX

    I certify, pursuant to section 3403(b) of the Right to Financial 
Privacy Act of 1978, 12 U.S.C. 3401 et. seq., that the applicable 
provisions of that statute have been complied with as to the [Customer's 
authorization, administrative subpoena or summons, search warrant, 
judicial subpoena, formal written request, emergency access, as 
applicable] presented on [date], for the following financial records of 
[customer's name]:

[Describe the specific records]

    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.

[Official Signature Block]



   Sec. Appendix N to Part 275--Obtaining Access to Financial Records 
                                Overseas

    A. The provisions of 12 U.S.C. Chapter 35 do not govern obtaining 
access to financial records maintained by military banking contractors 
overseas or other financial institutions in offices located on DoD 
installations outside the United States, the District of Columbia, Guam, 
American Samoa, Puerto Rico, or the Virgin Islands.
    B. Access to financial records held by such contractors or 
institutions is preferably obtained by customer authorization. However, 
in those cases where it would not be appropriate to obtain this 
authorization or where such authorization is refused and the financial 
institution is not otherwise willing to provide access to its records:
    1. A law enforcement activity may seek access by the use of a search 
authorization issued pursuant to established Component procedures; Rule 
315, Military Rules of Evidence (Part III, Manual for Courts-Martial); 
and Article 46 of the Uniform Code of Military Justice.
    2. An intelligence organization may seek access pursuant to 
Procedure 7 of DoD 5240.1-R.
    3. Information obtained under this appendix shall be properly 
identified as financial information and transferred only where an 
official need-to-know exists. Failure to identify or limit access in 
accordance with this paragraph does not render the information 
inadmissible in courts-martial or other proceedings.
    4. Access to financial records maintained by all other financial 
institutions overseas by law enforcement activities shall be in 
accordance with the local foreign statutes or procedures governing such 
access.



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'').

[[Page 693]]



Sec. 277.3  Policy.

    It is DoD policy to redress fraud in DoD programs and operations 
through the nonexclusive use of Pub. L. 99-509. All DoD Components shall 
comply with the requirements of this part in using this new remedy. 
Changes or modifications to this part by implementing organizations are 
prohibited. Implementing regulations are authorized only to the extent 
necessary to effectively carry out the requirements of this part.



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.



         Sec. 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.

[[Page 694]]

    b. For the respective Military Departments, the Secretary of the 
Military Department or an official or employee of the Military 
Department designated in regulations promulgated by the Secretary to act 
on behalf of the Secretary.

                               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;

[[Page 695]]

    d. May not perform duties inconsistent with the duties and 
responsibilities of a presiding officer;
    e. Is entitled to pay prescribed by the Office of Personnel 
Management (OPM) independently of ratings and recommendations made by 
the authority and in accordance with 5 U.S.C., chapters 51 and 53, 
subchapter III;
    f. Is not subject to a performance appraisal pursuant to 5 U.S.C., 
chapter 43; and
    g. May be removed, suspended, furloughed, or reduced in grade or pay 
only for good cause established and determined by the Merit Systems 
Protection Board (MSPB) on the record after opportunity for hearing by 
such Board.

                           18. Representative

    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 representation, certification, affirmation, document, 
record, accounting, or bookkeeping entry made:
    a. With respect to a claim or to obtain the approval or payment of a 
claim (including relating to eligibility to make a claim); or
    b. With respect to (including relating to eligibility for):
    (1) A contract with, or a bid or proposal for a contract with; or
    (2) A grant, loan, or benefit from the authority, or any State, 
political subdivision of a State, or other party; if the U.S. Government 
provides any portion of the money or property under such contract or for 
such grant, loan, or benefit, or if the U.S. Government will reimburse 
such State, political subdivision, or party for any portion of the money 
or property under such contract or for such grant, loan, or benefit.

              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

[[Page 696]]

of whether such property, service, or money is actually delivered or 
paid.
    e. If the Government has made any payment (including transferred 
property or provided services) on a claim, a person subject to a civil 
penalty under subparagraph a.(1) of this section shall also be subject 
to an assessment of not more than twice the amount of such claim or that 
portion thereof that is determined to be in violation of subparagraph 
a.(1) of this section. Such assessment shall be in lieu of damages 
sustained by the Government because of such claim.

                              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 subsection 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

[[Page 697]]

is liable under section C., above, the reviewing official shall transmit 
to the Attorney General or his or her designated point of coordination 
within the Department of Justice a written notice of the reviewing 
official's intention to issue a complaint under section G., below.
    2. Such notice shall include the following:
    a. A statement of the reviewing official's reasons for issuing a 
complaint;
    b. A statement specifying the evidence that supports the allegations 
of liability;
    c. A description of the claims or statements upon which the 
allegations of liability are based;
    d. An estimate of the amount of money or the value of property, 
services, or other benefits requested or demanded in violation of 
section C., above.
    e. A statement of any exculpatory or mitigating circumstances that 
may relate to the claims or statements known by the reviewing official 
or the investigating official; and
    f. A statement that there is a reasonable prospect of collecting an 
appropriate amount of penalties and assessments.

                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 698]]

                                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 699]]

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 700]]

    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,

[[Page 701]]

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 702]]

                           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.

[[Page 703]]

    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 704]]

    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 705]]

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 706]]

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 707]]

                             VV. Delegations

    The General Counsel for the Department of Defense is designated to 
carry out the responsibilities of the authority head of the Department 
of Defense for the issuance of additional implementing regulations that 
are necessary to implement PFCRA and this part to decide cases upon 
appeal, and to hire or designate employees of the Department of Defense 
to decide cases on appeal. The General Counsel, Department of Defense, 
is also designated to appoint presiding officers for the Department of 
Defense, and may assist in the appointment of presiding officers on 
detail from other Agencies for all authorities within the Department of 
Defense.



PART 279_RETROACTIVE STOP LOSS SPECIAL PAY COMPENSATION--
Table of Contents



Sec.
279.1 Purpose.
279.2 Eligibility.
279.3 Payment.
279.4 Claims process.
279.5 Recordkeeping.
279.6 Reporting.

    Authority: Sec. 310, Pub. L. 111-32, as amended.

    Source: 75 FR 19879, Apr. 16, 2010; 75 FR 21506, Apr. 26, 2010, 
unless otherwise noted.



Sec. 279.1  Purpose.

    This part provides for Retroactive Stop Loss Special Pay as 
authorized and appropriated in section 310 of Public Law 111-32 and as 
described in this part.



Sec. 279.2  Eligibility.

    (a) The Secretaries concerned shall employ the Retroactive Stop Loss 
Special Pay authority and appropriated funding to compensate Service 
members, including members of the Reserve components, former and retired 
members under the jurisdiction of the Secretary who, at any time during 
the period beginning on September 11, 2001, and ending on September 30, 
2009, served on active duty while the Service members' enlistment or 
period of obligated service was extended, or whose eligibility for 
retirement was suspended pursuant to any provision of law authorizing 
the President to extend any period of obligated service, or suspend 
eligibility for retirement, of a Service member in time of war or of 
national emergency declared by Congress or the President (commonly 
referred to as a ``stop loss authority'').
    (b) Service members described in paragraph (a) of this section, who 
voluntarily reenlisted or extended their service or suspended their 
retirement and received a bonus for such reenlistment or extension of 
service are not eligible to receive the Retroactive Stop Loss Special 
Pay.
    (c) Service members who were discharged or released from the Armed 
Forces under other than honorable conditions are not permitted to 
receive Retroactive Stop Loss Special Pay under section 310 of Public 
Law 111-32.



Sec. 279.3  Payment.

    (a) The amount of compensation shall be $500 per month for each 
month or any portion of a month during the period specified above that 
the member was retained on active duty as a result of application of the 
Stop Loss Authority. The Military Departments are to determine and 
certify who is eligible to receive the Retroactive Stop Loss Special Pay 
and provide this information to the Defense Finance and Accounting 
Service (DFAS) for payment. Except as noted in this section, retroactive 
Stop Loss Special Pay is payable to a member under this section in 
addition to any other amounts payable or paid to the member by law or 
policy.
    (b) Payment rules are:
    (1) Service members will not receive a payment under ``The 
Supplemental Appropriations Act, 2009'', section 310 of Public Law 111-
32 and ``Consolidated Security, Disaster Assistance, and Continuing 
Appropriations Act, 2009'', section 8116 of Public Law 110-329, for the 
same month or portion of a month during which the member was retained on 
active duty under Stop Loss Authority as outlined in the Secretary of 
Defense Memorandum dated March 19, 2009, Subject: Stop Loss Special Pay.
    (2) By law, Reserve Component members retained under Stop Loss 
Authority will receive Retroactive Stop Loss Special Pay only for 
service on active duty. As such, Reserve Component members may have 
periods before mobilization and after demobilization while under Stop 
Loss Authority where

[[Page 708]]

no Retroactive Stop Loss Special Pay can be paid.
    (3) If an eligible member dies before the payment is made, the 
Secretary of the Military Department concerned shall make the payment in 
accordance with section 2771 of title 10, United States Code.
    (4) Retroactive Stop Loss Special Pay is subject to all applicable 
taxes.



Sec. 279.4  Claims process.

    (a) The last day for submission of claims to the Secretaries of the 
Military Departments for Retroactive Stop Loss Special Pay is October 
21, 2010. The Secretaries concerned are not authorized to make payments 
on claims that are submitted after October 21, 2010.
    (b) The additional period between the date of Under Secretary of 
Defense for Personnel and Readiness Memorandum, Subject: Retroactive 
Stop Loss Special Pay Compensation signed on September 23, 2009 and 
October 21, 2009 is provided for the Military Departments to:
    (1) Identify and formally notify members or former members that 
official records indicate their potential eligibility for Retroactive 
Stop Loss Special Pay. This notification should reflect the estimated 
number of eligible months and the projected special pay amount along 
with guidance about how to submit a claim. Special care should be taken 
to work with family members of eligible Service members who are 
deceased. These family members may not be knowledgeable of the process 
and will require additional assistance after filing their claim.
    (2) Make a public announcement of the Retroactive Stop Loss Special 
Pay Authority highlighting the scope of the program, who qualifies for 
the benefits, and how to submit a claim to a Service point of contact. 
The Service contact information will be provided in all public releases 
by the Office of Secretary of Defense (OSD) Public Affairs Office, as 
well as by each of the Services Public Affairs Offices.
    (3) Establish and publish evidentiary requirements beyond those 
listed in this paragraph to support an unrecorded extension under Stop 
Loss Authority. Official documents may include but are not limited to:
    (i) DD 214 Form, Certificate of Release or Discharge from Active 
Duty and/or DD 215, Correction to DD 214.
    (ii) Personnel record or enlistment or reenlistment document 
recording original expiration of service date.
    (iii) Approved retirement memorandum or orders establishing 
retirement prior to actual date of retirement as stipulated in DD Form 
214 or DD Form 215.
    (iv) Approved resignation memorandum or transition orders 
establishing a separation date prior to actual date of separation as 
stipulated in DD Form 214 or DD Form 215.
    (v) Signed documentation or affidavit from knowledgeable officials 
from the individual's chain of command.
    (4) Establish claim and appellate procedures, websites, points of 
contact for assistance or other outreach mechanisms to inform and 
expedite claims. Publish information on use of Board for Correction of 
Military/Naval Records.
    (5) Claim is submitted and adjudicated by the Service, then sent 
forward to the Defense Finance and Accounting Service (DFAS) for 
payment. Upon arrival DFAS will route claim to Debt Claims Management 
who will process the claim. Payments are then routed through Dispersing 
and then to Standards and Compliance. Then Dispersing will make payment 
to the former Service member or estate. Standards and Compliance will 
build and route reports for OSD and personnel centers.



Sec. 279.5  Recordkeeping.

    The Military Departments will maintain a by-name accounting of 
claims that will allow aggregate summaries to depict:
    (a) The number of claims filed.
    (b) The number of claims approved.
    (c) The number of claims denied and the reasons why (especially with 
regard to subparagraph (h) of section 310 of Pub. L. 111-32).
    (d) The number of appeals.
    (e) The number of claims pending and the reasons why.
    (f) The amount of funding that has been obligated, to include mean 
and

[[Page 709]]

median payments provided per claimant, the number of claims and payments 
made in accordance with section 2771 of title 10, United States Code for 
deceased claimants.
    (g) The mean and median processing times from receipt of claim to 
payment.



Sec. 279.6  Reporting.

    The Department of Defense shall provide a consolidated report to the 
congressional defense committees on the implementation of section 310 of 
Public Law 111-32. As such, the Under Secretary of Defense for Personnel 
and Readiness, in coordination with the Under Secretary of Defense 
(Comptroller), will establish data formats and narrative requirements 
for a cumulative quarterly report beginning January 21, 2010, to monitor 
the program and the remaining balance of funding appropriated for this 
purpose.



PART 281_SETTLING PERSONNEL AND GENERAL CLAIMS AND PROCESSING ADVANCE
DECISION REQUESTS--Table of Contents



Sec.
281.1 Purpose.
281.2 Applicability and scope.
281.3 Definitions.
281.4 Policy.
281.5 Responsibilities.

Appendix to Part 281--Claims Description.

    Authority: 10 U.S.C. 2575, 2771, 4712, 9712; 24 U.S.C. 420; 31 
U.S.C. 3529, 3702; 32 U.S.C. 714; 37 U.S.C. 554.

    Source: 71 FR 57426, Sept. 29, 2006, unless otherwise noted.



Sec. 281.1  Purpose.

    This part establishes policy and assigns responsibilities for 
settling personnel and general claims (under 31 U.S.C. 3702; 10 U.S.C. 
2575, 2771, 4712, and 9712; 24 U.S.C. 420; 37 U.S.C. 554, and 32 U.S.C. 
714) and for processing requests for an advance decision under 31 U.S.C. 
3529.



Sec. 281.2  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. 281.3  Definitions.

    Armed Forces. The Army, the Navy, the Air Force, the Marine Corps, 
and the Coast Guard.
    Claim. A demand for money or property under 31 U.S.C. 3702; 10 
U.S.C. 2575, 2771, 4712, and 9712; 24 U.S.C. 420; 37 U.S.C. 554, and 32 
U.S.C. 714.
    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, 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.
    Settlement. A claim and the amount due that is administratively 
determined to be valid.
    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. 281.4  Policy.

    It is DoD policy that:
    (a) The claim settlement and advance decision authorities that, by 
statute or

[[Page 710]]

delegation, are vested in the Department of Defense or the Secretary of 
Defense shall be exercised by the officials designated in this part. The 
appendix to this part describes the claims included under these 
functional authorities.
    (b) Claims shall be settled and advance decisions shall be rendered 
in accordance with pertinent statutes and regulations, and after 
consideration of other relevant authorities.



Sec. 281.5  Responsibilities.

    (a) The General Counsel of the Department of Defense shall:
    (1) Settle claims that the Secretary of Defense is authorized to 
settle under 31 U.S.C. 3702; 10 U.S.C. 2575, 2771, 4712, and 9712; 24 
U.S.C. 420; 37 U.S.C. 554, and 32 U.S.C. 714.
    (2) Consider, and grant or deny, a request under 31 U.S.C. 3702 to 
waive the time limit for submitting certain claims.
    (3) Render advance decisions under 31 U.S.C. 3529 that the Secretary 
of Defense is authorized to render, and oversee the submission of 
requests for an advance decision arising from the activity of a DoD 
Component that are addressed to officials outside the Department of 
Defense.
    (4) Develop overall claim settlement and advance decision policies; 
and promulgate procedures for settling claims, processing requests for 
an advance decision (including overseeing the submission of requests for 
an advance decision arising from the activity of a DoD Component that 
are addressed to officials outside the Department of Defense), and 
rendering advance decisions. Procedures for settling claims shall 
include an initial determination process and a process to appeal an 
initial determination.
    (b) The Heads of the DoD Components shall:
    (1) Establish procedures within their organization for processing 
claims and for submitting requests for an advance decision arising from 
it's activity in accordance with this part and responsibilities 
promulgated under paragraph (a)(4) of this section.
    (2) Pay claims under 10 U.S.C. 2771 and 32 U.S.C. 714, if 
applicable.
    (3) Ensure compliance with this part and policies and 
responsibilities promulgated under (a)(4) of this section.
    (c) The Heads of the Non-DoD Components, concerning claims arising 
from that Component's activity under 31 U.S.C. 3702, 10 U.S.C. 2575, 10 
U.S.C. 2771 or 37 U.S.C. 554, shall:
    (1) Establish procedures within their organization for processing 
claims and for submitting requests for an advance decision in accordance 
with this part and responsibilities promulgated under paragraph (a)(4) 
of this section.
    (2) Pay claims under 10 U.S.C. 2771, if applicable.



              Sec. Appendix to Part 281--Claims Description

    The Secretary of Defense is authorized to perform the claim 
settlement and advance decision functions for claims under the following 
statutes:
    (a) 31 U.S.C. 3702, concerning claims in general when there is no 
other settlement authority specifically provided for by law. \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 refunds 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 
Air Force or of deceased residents of the Armed Forces Retirement Home.

[[Page 711]]

    (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. \2\



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, 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

[[Page 712]]

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.



                  Sec. 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.
    (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

[[Page 713]]

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.



             Sec. 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.
---------------------------------------------------------------------------



             Sec. 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:
    (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,

[[Page 714]]

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.



             Sec. 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:
    (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

[[Page 715]]

    (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).



                  Sec. 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 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

[[Page 716]]

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.
    (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

[[Page 717]]

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 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:

[[Page 718]]

    (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.



      Sec. 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.
    (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.

[[Page 719]]

    (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.



PART 283_WAIVER OF DEBTS RESULTING FROM ERRONEOUS PAYMENTS OF PAY
AND ALLOWANCES--Table of Contents



Sec.
283.1 Purpose.
283.2 Applicability and scope.
283.3 Definitions.
283.4 Policy.
283.5 Responsibilities.

    Authority: 10 U.S.C. 2575, 2771, 4712, 9712; 24 U.S.C. 420; 31 
U.S.C. 3529, 3702; 32 U.S.C. 714; 37 U.S.C. 554.

    Source: 71 FR 57427, Sept. 29, 2006, unless otherwise noted.



Sec. 283.1  Purpose.

    This part establishes policy and assigns responsibilities for 
considering applications for the waiver of debts resulting from 
erroneous payments of pay and allowances (including travel and 
transportation allowances) to or on behalf of members of the Uniformed 
Services and civilian DoD employees under 10 U.S.C. 2774, 32 U.S.C. 716, 
5 U.S.C. 5584.



Sec. 283.2  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 Inspector General of the Department of Defense, 
the Defense Agencies, the DoD Field Activities, and all other 
organizational entities in the Department of Defense (hereafter referred 
to collectively as the ``DoD Components'').
    (b) The Coast Guard, when it is not operating as a Service in the 
Navy under the agreement with the Department of Homeland Security, and 
the Commissioned Corps of the Public Health Service (PHS) and the 
National Oceanic and Atmospheric Administration (NOAA) under agreements 
with the Departments of Health and Human Services and Commerce 
(hereafter referred to collectively as the ``non-DoD Components'').



Sec. 283.3  Definitions.

    Debt. An amount an individual owes the Government as the result of 
erroneous payments of pay and allowances (including travel and 
transportation allowances) to or on behalf of members of the Uniformed 
Services or civilian DoD employees.
    Erroneous Payment. A payment that is not in strict conformity with 
applicable laws or regulations.
    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.
    Waiver Application. A request that the United States relinquishes 
its claim against an individual for a debt resulting from erroneous 
payments of pay or allowances (including travel and transportation 
allowances) under 10 U.S.C. 2774, 32 U.S.C. 716, or 5 U.S.C. 5584.



Sec. 283.4  Policy.

    It is DoD policy that:
    (a) The officials designated in this part exercise waiver authority 
that, by statute or delegation, is vested in the Department of Defense.
    (b) Waiver applications shall be processed in accordance with all 
pertinent statutes and regulations, and after consideration of other 
relevant authorities.



Sec. 283.5  Responsibilities.

    (a) The General Counsel of the Department of Defense shall:
    (1) If the aggregate amount of the debt is more than $1,500, deny or 
grant all or part of a waiver application.
    (2) Decide appeals in accordance with procedures promulgated under 
paragraph (a)(3) of this section.
    (3) Develop overall waiver policies and promulgate procedures for 
considering waiver applications, including an initial determination 
process and a process to appeal an initial determination.
    (b) The Heads of the DoD Components shall:

[[Page 720]]

    (1) Consistent with responsibilities promulgated under paragraph 
(a)(3) of this section, establish procedures within the DoD Component 
for the submission of waiver applications relating to debts resulting 
from the DoD Component's activity, which shall be referred to the 
appropriate official for consideration as set forth in paragraphs (a), 
(d), (e), or (f) of this section.
    (3) Ensure compliance with this part and policies and procedures 
promulgated under paragraph (a)(3) of this section.
    (c) The Heads of the Non-DoD Components concerning debts resulting 
from that Component's activity shall:
    (1) If the aggregate amount of the debt is $1,500 or less, deny or 
grant all or part of a waiver application pursuant to 10 U.S.C. 2774.
    (2) If the aggregate amount of the debt is more than $1,500:
    (i) Deny a waiver application in its entirety; or
    (ii) Refer a waiver application for consideration with a 
recommendation that all or part of the application be granted, in 
accordance with procedures promulgated under paragraph (a)(3) of this 
section.
    (d) The Under Secretary of Defense (Comptroller)/Chief Financial 
Officer concerning debts (except those described in paragraphs (e) and 
(f) of this section) resulting from DoD Component activity shall:
    (1) If the aggregate amount of the debt is $1,500 or less, deny or 
grant all or part of a waiver application pursuant to enclosure 2 of DoD 
Directive 5118.3. \1\
---------------------------------------------------------------------------

    \1\ Available at http://www.dtic.mil/whs/directives/.
---------------------------------------------------------------------------

    (2) If the aggregate amount of the debt is more than $1,500:
    (i) Deny a waiver application in its entirety; or
    (ii) Refer a waiver application for consideration with a 
recommendation that all or part of the application be granted, in 
accordance with procedures promulgated under paragraph (a)(3) of this 
section.
    (e) The Director, Department of Defense Education Activity, under 
the Under Secretary of Defense for Personnel and Readiness concerning 
debts of civilian employees resulting from that Component's activity 
shall:
    (1) If the aggregate amount of the debt is $1,500 or less, deny or 
grant all or part of a waiver application pursuant to enclosure 2 of DoD 
Directive 1342.6. \2\
---------------------------------------------------------------------------

    \2\ Available at http://www.dtic.mil/whs/directives/.
---------------------------------------------------------------------------

    (2) If the aggregate amount of the debt is more than $1,500:
    (i) Deny a waiver application in its entirety; or
    (ii) Refer a waiver application for consideration with a 
recommendation that all or part of the application be granted, in 
accordance with procedures promulgated under paragraph (a)(3) of this 
section.
    (f) The Director, National Security Agency, under the Under 
Secretary of Defense for Intelligence concerning debts resulting from 
that Component's activity shall:
    (1) If the aggregate amount of the debt is $1,500 or less, deny or 
grant all or part of a waiver application.
    (2) If the aggregate amount of the debt is more than $1,500:
    (i) Deny a waiver application in its entirety; or
    (ii) Refer a waiver application for consideration with a 
recommendation that all or part of the application be granted, in 
accordance with procedures promulgated under paragraph (a)(3) of this 
section.



PART 284_WAIVER PROCEDURES FOR DEBTS RESULTING FROM ERRONEOUS PAYMENTS
OF PAY AND ALLOWANCES--Table of Contents



Sec.
284.1 Purpose.
284.2 Applicability and scope.
284.3 Definitions.
284.4 Policy.
284.5 Responsibilities.

Appendix A to part 284--Overview of Waiver Application Process.
Appendix B to part 284--Standards for Waiver Determinations.
Appendix C to part 284--Submitting a Waiver Application.
Appendix D to part 284--Processing a Waiver Application When the Debt is 
          $1,500 or Less.

[[Page 721]]

Appendix E to part 284--Processing a Waiver Application When the Debt is 
          More than $1,500.
Appendix F to part 284--Appeals.

    Authority: 10 U.S.C. 2575, 2771, 4712, 9712; 24 U.S.C. 420; 31 
U.S.C. 3529, 3702; 32 U.S.C. 714; 37 U.S.C. 554.

    Source: 71 FR 59375, Oct. 10, 2006, unless otherwise noted.



Sec. 284.1  Purpose.

    This part implements policy under 32 CFR part 283 and prescribes 
procedures for considering waiver applications under 10 U.S.C. 2774, 32 
U.S.C. 716, and 5 U.S.C. 5584.



Sec. 284.2  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 Inspector General of the Department of Defense, 
the Defense Agencies, the Department of Defense Field Activities, and 
all other organizational entities within the Department of Defense 
(hereafter referred to collectively as the ``DoD Components'').
    (b) The Coast Guard, when it is not operating as a Service in the 
Navy under agreement with the Department of Homeland Security, the 
Commissioned Corps of the Public Health Service (PHS) and the National 
Oceanic and Atmospheric Administration (NOAA) under agreements with the 
Departments of Health and Human Services and Commerce, respectively 
(hereafter referred to collectively as the ``non-DoD Components'').
    (c) Certain functions for considering waiver applications that, by 
statute or delegation, are vested in the Department of Defense or the 
Secretary of Defense.



Sec. 284.3  Definitions.

    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.
    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 that notifies the individual of 
the debt that is the subject of a waiver application.
    Debt. An amount an individual owes the Government as the result of 
erroneous payments of pay and allowances (including travel and 
transportation allowances) to or on behalf of members of the Uniformed 
Services or civilian DoD employees.
    Employee. A person who is or was an officer or employee as defined 
in 5 U.S.C. 2104 and 2105.
    Erroneous payment. A payment that is not in compliance with 
applicable laws or regulations.
    Final action. A finding by the appropriate official under this part 
concerning a waiver application from which there is no right to appeal 
or request reconsideration, or for which the time limit prescribed in 
this part for submitting an appeal or request for reconsideration has 
expired without such a submission.
    Member. A member or former member of the Uniformed Services.
    Waiver application. A request that the United States relinquish its 
claim against an individual for a debt resulting from erroneous payments 
of pay or allowances (including travel and transportation allowances) 
under 10 U.S.C. 2774, 32 U.S.C. 716, and 5 U.S.C. 5584.



Sec. 284.4  Policy.

    It is DoD policy under 32 CFR part 283 that waiver applications for 
debts resulting from erroneous payments of pay and allowances (hereafter 
referred to as ``waiver applications'') be processed according to all 
pertinent statutes, regulations, and other relevant authorities.



Sec. 284.5  Responsibilities.

    (a) The General Counsel of the Department of Defense (GC, DoD) or 
designee shall consult on, or render opinions concerning, questions of 
law or equity that arise in the course of the performance of the 
Director, Defense Office of Hearings and Appeals' (DOHA) 
responsibilities under paragraph (b) of this section when requested by 
the Director.
    (b) The Director, Defense Office of Hearings and Appeals or 
designee, under

[[Page 722]]

the GC, DoD (as the Director, Defense Legal Services Agency), shall:
    (1) Deny or grant all or part of a waiver application, if the 
aggregate amount of the debt is more than $1,500.
    (2) Consider an appeal of an initial determination and affirm, 
modify, reverse, or remand the initial determination, according to this 
part and relevant GC, DoD opinions.
    (3) Process waiver applications and appeals according to this part.
    (c) The Heads of the DoD Components or designee shall process waiver 
applications according to this part.
    (d) The Heads of the Non-DoD Components or designee concerning debts 
of Uniformed Services personnel resulting from the Component's activity; 
the Director, Department of Defense Education Activity (DoDEA) or 
designee, concerning debts of civilian employees resulting from that 
Component's activity; the Director, National Security Agency (NSA) or 
designee, concerning debts resulting from that Component's activity; and 
the Director, Defense Finance and Accounting Service (DFAS) or designee, 
under the Under Secretary of Defense (Comptroller)/Chief Financial 
Officer (USD(C)/CFO), concerning debts resulting from all other DoD 
Components' activities shall:
    (1) Deny or grant all or part of a waiver application, if the 
aggregate amount of the debt is $1,500 or less.
    (2) If the aggregate amount of the debt is more than $1,500:
    (i) Deny a waiver application in its entirety, or
    (ii) Refer a waiver application for consideration with a 
recommendation that part or all of the application be granted, according 
to this part.
    (3) Process waiver applications, when the aggregate amount of the 
debt is more than $1,500, and appeals according to this part.
    (4) Resolve a debt according to the final action that results from 
the waiver application process provided for in this part.



   Sec. Appendix A to Part 284--Overview of Waiver Application Process

                 A. Standards for Waiver Determinations

    The standards that must be applied in determining whether all or 
part of a waiver application should be granted or denied are at Appendix 
B to this part.

                   B. Submitting a Waiver Application

    The DoD Components shall ensure, if applicable, the submission and 
filing of waiver applications/appeals satisfy the requirements of 5 
U.S.C. 552a. The procedures an applicant must follow to submit a waiver 
application are at Appendix C to this part.

   C. Processing A Waiver Application When The Debt Is $1,500 Or Less

    The procedures a DoD Component must follow in processing a waiver 
application when the debt is $1,500 or less are at Appendix D to this 
part. \1\
---------------------------------------------------------------------------

    \1\ Contact the appropriate non-DoD Component for the procedures it 
follows in processing a waiver application.
---------------------------------------------------------------------------

  D. Processing a Waiver Application When the Debt Is More Than $1,500

    The procedures a DoD Component must follow in processing a waiver 
application when the debt is more than $1,500 are at Appendix E to this 
part.

                               E. Appeals

    The DoD Components shall ensure, if applicable, the submission and 
filing of waiver applications/appeals satisfy the requirements of 5 
U.S.C. 552 and 552a. The procedures for appealing initial determinations 
are at Appendix F to this part.

         F. Refund of Repaid Debts That Are Subsequently Waived

    When a final action waives all or part of a debt that has been 
repaid, the waiver application shall be interpreted as an application 
for a refund and the Component concerned shall, to the extent of the 
waiver, refund the amount repaid.

                             G. Publication

    The Director, DOHA or designee shall make redacted copies of 
responses to requests for reconsideration available for public 
inspection and copying at the DOHA's public reading room and on the 
worldwide web according to 5 U.S.C. 552 and 552a.



    Sec. Appendix B to Part 284--Standards for Waiver Determinations

                              A. Standards

    1. Generally, persons who receive a payment erroneously from the 
Government acquire no right to the money. They are bound in equity and 
good conscience to make restitution. If a benefit is bestowed by 
mistake, no matter how careless the act of the Government may have been, 
the recipient must

[[Page 723]]

make restitution. In theory, restitution results in no loss to the 
recipient because the recipient received something for nothing. However, 
10 U.S.C. 2774, 32 U.S.C. 716, and 5 U.S.C. 5584 provide authority to 
waive, under certain conditions debts individuals owe the Government 
that are the result of erroneous payments of pay and allowances 
(including travel and transportation allowances). A waiver is not a 
matter of right. It is available to provide relief as a matter of 
equity, if the circumstances warrant.
    2. Debts may be waived only when collection would be against equity 
and good conscience and would not be in the best interests of the United 
States. There must be no indication the erroneous payment was solely or 
partially the result of the fraud, misrepresentation, fault, or lack of 
good faith of the applicant.
    3. The fact that an erroneous payment is solely the result of 
administrative error or mistake on the part of the Government is not 
sufficient basis in and of itself for granting a waiver.
    4. A waiver usually is not appropriate when a recipient knows, or 
reasonably should know, that a payment is erroneous. The recipient has a 
duty to notify an appropriate official and to set aside the funds for 
eventual repayment to the Government, even if the Government fails to 
act after such notification.
    5. A waiver generally is not appropriate when a recipient of a 
significant unexplained increase in pay or allowances, or of any other 
unexplained payment of pay or allowances, does not attempt to obtain a 
reasonable explanation from an appropriate official. The recipient has a 
duty to ascertain the reason for the payment and to set aside the funds 
in the event that repayment should be necessary.
    6. A waiver may be inappropriate in cases where a recipient 
questions a payment (which ultimately is determined to be erroneous) and 
is mistakenly advised by an appropriate official that the payment is 
proper, if under the circumstances the recipient knew or reasonably 
should have known that the advice was erroneous.
    7. Financial hardship is not a factor for consideration in 
determining whether a waiver is appropriate.
    8. Waiver determinations under these standards depend on the facts 
in each case.



      Sec. Appendix C to Part 284--Submitting a Waiver Application

                       A. Who May Apply for Waiver

    Any person (``applicant'') from whom collection is sought for a debt 
resulting from erroneous payments of pay or allowances (including travel 
and transportation allowances) may submit a waiver application under 10 
U.S.C. 2774, 32 U.S.C. 716, and 5 U.S.C. 5584. Additionally, an 
authorized official of the Component concerned, or the Director, DOHA or 
designee may initiate a waiver application during the processing of a 
claim under 32 CFR part 281.

                 B. Where To Submit A Waiver Application

    An applicant must submit a waiver application to the Component 
concerned according to the guidance provided by that Component. A waiver 
application submitted somewhere other than to the Component concerned 
does not stop the calculation of the time limit as discussed in 
paragraph F to this Appendix. It is the applicant's responsibility to 
submit the waiver application properly.

                    C. Format of a Waiver Application

    An applicant must submit a waiver application in the format 
prescribed by the Component concerned. It must be written and signed by 
the applicant (in the case of an application on behalf of a minor or 
incompetent person, there are additional requirements explained at 
paragraph E to this Appendix) or by the applicant's authorized agent or 
attorney (there are additional requirements explained at paragraph D to 
this Appendix). In addition, the waiver application should include:
    1. The applicant's mailing address.
    2. The applicant's telephone number.
    3. The applicant's social security number when required by the 
Component concerned.
    4. The amount for which waiver is requested.
    5. An explanation why a waiver should be granted under the standards 
explained at Appendix B to this part.
    6. Copies of documents referred to in the application.
    7. Statements (that are attested to be true and correct to the best 
of the individual's knowledge and belief) of the applicant or other 
persons in support of the application.

          D. Waiver Application Submitted by Agent or Attorney

    In addition to the requirements in paragraph C to this Appendix, a 
waiver application submitted by the applicant's agent or attorney must 
include or have attached a duly executed power of attorney or other 
documentary evidence of the agent's or attorney's right to act for the 
applicant.

  E. Waiver Application Submitted on Behalf of a Minor or Incompetent 
                                 Person

    In addition to the requirements in paragraph C to this Appendix:
    1. If a guardian or committee has not been appointed, a waiver 
application submitted on behalf of a minor or incompetent person must:

[[Page 724]]

    i. State the applicant's relationship to the minor or incompetent 
person.
    ii. Provide the name and address of the person having care and 
custody of the minor or incompetent person.
    iii. Include an affirmation that any moneys received shall be 
applied to the use and benefit of the minor or incompetent person, and 
that the appointment of a guardian or committee is not contemplated.
    2. If a guardian or committee has been appointed, a waiver 
application on behalf of a minor or incompetent person must include or 
have attached a certificate of the court showing the appointment and 
qualification of the guardian or committee.

                 F. When To Submit a Waiver Application

    An applicant must submit a waiver application so that it is received 
by the Component concerned within three years after the erroneous 
payment is discovered. The date of discovery is the date it is 
definitely determined by an appropriate official that an erroneous 
payment has been made. The time limit is set by 10 U.S.C. 2774, 32 
U.S.C. 716, and 5 U.S.C. 5584, whichever applies. It may not be extended 
or waived. Although the issue of timeliness is usually raised on initial 
submission (as explained in paragraph B to Appendix D in this part), the 
issue may be raised at any point during the waiver application 
consideration process.



 Sec. Appendix D to Part 284--Processing a Waiver Application When the 
                         Debt Is $1,500 or Less

                     A. Initial Component Processing

    Upon receipt of a waiver application, the Component concerned must:
    1. Date stamp the application on the date received.
    2. Determine whether the application was received within three years 
after the discovery of the erroneous payment. If the application was not 
timely, follow the procedures in paragraph B to this Appendix.
    3. Investigate the circumstances relating to the erroneous payment.
    4. Refer the application to the appropriate determining official 
(see paragraph C to this Appendix) for consideration and an initial 
determination.

                     B. Untimely Waiver Applications

    When the Component concerned determines that a waiver application 
was not received within three years after the erroneous payment was 
discovered, the Component must send the applicant a notice of untimely 
receipt.
    1. The notice must:
    i. Cite the applicable statute and explain the reasons for the 
finding of untimely receipt.
    ii. State that the application was not received within the statutory 
time limit and may not be considered unless that finding is reversed on 
appeal.
    iii. Explain that the applicant may submit a rebuttal to the finding 
of untimely receipt (as explained in paragraph B.2.).
    iv. State that the statutory time limit may not be extended or 
waived.
    2. An applicant may submit a written rebuttal, signed by the 
applicant or the applicant's agent or attorney, to a notice of untimely 
receipt. The Component concerned must receive the rebuttal within 30 
days of the date of the notice and may grant an extension of up to an 
additional 30 days for good cause shown. The rebuttal should:
    i. Explain the points of, and reasons for, disagreement with the 
notice.
    ii. Have any documents referred to in the rebuttal attached.
    iii. Include or have attached statements (that are attested to be 
true and correct to the best of the individual's knowledge and belief) 
by the applicant or other persons in support of the rebuttal.
    3. If the applicant does not submit a rebuttal within the time 
permitted, the notice of untimely receipt is a final action and the 
Component must return the application to the applicant with a notice 
that the finding is final and the application may not be considered.
    4. If the applicant submits a timely rebuttal, the Component must 
consider the rebuttal.
    i. If the Component finds that the application was received within 
the required time limit, the Component must reverse its finding of 
untimely receipt, notify the applicant in writing, and process the 
application on its merits.
    ii. If the Component does not reverse the finding of untimely 
receipt, the Component must forward the record, including the 
application, notice of untimely receipt, and rebuttal, to the 
appropriate determining official (see paragraph C.1. to this Appendix) 
for an initial determination on the issue of untimely receipt. The 
Component does not need to investigate the merits of the application 
before forwarding the record.
    5. After making an initial determination on the issue of untimely 
receipt, the determining official must follow the procedures in 
paragraph D to this Appendix. In addition, if the determining official 
finds that the application was timely, the official may:
    i. Return the application to the Component concerned for processing 
on its merits according to this part, or
    ii. Consider the application and make an initial determination on 
its merits according to paragraph C.2. to this Appendix.

[[Page 725]]

                        C. Initial Determinations

    The standards in Appendix B to this part must be applied when 
considering the merits of a waiver application. After making an initial 
determination, the determining official must follow the procedures at 
paragraph D to this Appendix.
    1. The officials listed and referred to in this part as determining 
officials shall consider waiver applications and take the appropriate 
action described in paragraph C.2. to this Appendix. These officials are 
identified as follows:
    i. The Head of a non-DoD Component or designee for debts of 
Uniformed Services personnel resulting from that Component's activity.
    ii. The Director, DoDEA or designee for debts of civilian employees 
resulting from that Component's activity.
    iii. The Director, NSA or designee for debts resulting from that 
Component's activity.
    iv. The Director, DFAS or designee for debts resulting from the DoD 
Component activity not included in paragraphs C.1.ii. and C.1.iii. to 
this Appendix.
    2. The officials listed in paragraph C.1. to this Appendix may make 
an initial determination for the following:
    i. Whether or not a waiver application was received within three 
years after the discovery of the erroneous payment.
    ii. Deny a waiver application in its entirety.
    iii. Grant all or part of a waiver application.

              D. Processing After An Initial Determination

    After making an initial determination, the determining official 
must:
    1. Notify the applicant. The notification must explain:
    i. The determination and the reasons for it.
    ii. The appropriate Component action to resolve the debt as a 
consequence of the determination if it is or becomes a final action (the 
finality of an initial determination is explained at paragraph E to this 
Appendix).
    iii. The appeal process (as explained in Appendix F to this part) if 
the determination does not grant the entire application or does not 
contain a finding of timely receipt.
    2. Notify the Component concerned if the determining official is not 
an official of the Component concerned when and if the determination is 
a final action. The notice must explain:
    i. The determination and its reasons.
    ii. The appropriate Component action to resolve the debt as a 
consequence of the determination.

                E. When an Initial Determination Is Final

    A final action is an initial determination that grants the entire 
waiver application or finds that the application was timely received. 
Also, an initial determination (including one of untimely receipt) is a 
final action if the determining official does not receive an appeal 
within 30 days of the date of the initial determination (plus any 
extension of up to 30 additional days granted by the determining 
official for good cause shown).



 Sec. Appendix E to Part 284--Processing a Waiver Application When the 
                        Debt Is More Than $1,500

                     A. Initial Component Processing

    Upon receipt of a waiver application, the Component concerned must:
    1. Date stamp the application on the date received.
    2. Determine whether the application was received within three years 
after the discovery of the erroneous payment. If the application was not 
timely, follow the procedures in paragraph B in this part.
    3. Investigate the circumstances relating to the erroneous payment.
    4. Refer the waiver application to the appropriate determining 
official (see paragraph C to this Appendix) who after applying the 
standards in Appendix B in this part may either:
    i. Deny the application in its entirety, if appropriate, and follow 
the procedures in Appendix D to this part, or
    ii. Refer the application with a recommendation that part or all of 
the application be granted to the DOHA for consideration and an initial 
determination under paragraph C to this Appendix. The determining 
official must send the entire record and prepare and submit a 
recommendation and administrative report (as explained in paragraphs D 
and E to this Appendix) with the application.

                     B. Untimely Waiver Applications

    When the Component concerned determines that a waiver application 
was not received within three years after the erroneous payment was 
discovered, the Component must send the applicant a notice of untimely 
receipt.
    1. The notice must:
    i. Cite the applicable statute and explain the reasons for the 
finding of untimely receipt.
    ii. State that the application was not received within the statutory 
time limit and may not be considered unless that finding is reversed on 
appeal.
    iii. Explain that the applicant may submit a rebuttal to the finding 
of untimely receipt (as explained in paragraph B.2. to this Appendix.).
    iv. State that the statutory time limit may not be extended or 
waived.

[[Page 726]]

    2. An applicant may submit a written rebuttal, signed by the 
applicant or the applicant's agent or attorney, to a notice of untimely 
receipt. The Component concerned must receive the rebuttal within 30 
days of the date of the notice and may grant an extension of up to an 
additional 30 days for good cause shown. The rebuttal should:
    i. Explain the points of, and reasons for, disagreement with the 
notice.
    ii. Have any documents referred to in the rebuttal attached.
    iii. Include or have attached statements (that are attested to be 
true and correct to the best of the individual's knowledge and belief) 
by the applicant or other persons in support of the rebuttal.
    3. If the applicant does not submit a rebuttal within the time 
permitted, the notice of untimely receipt is a final action and the 
Component must return the application to the applicant with a notice 
that the finding is final and the application may not be considered.
    4. If the applicant submits a timely rebuttal, the Component must 
consider the rebuttal:
    i. If the Component finds that the application was received within 
the required time limit, the Component must reverse its finding of 
untimely receipt, notify the applicant in writing, and process the 
application on its merits.
    ii. If the Component does not reverse the finding of untimely 
receipt, the Component must forward the record, including the 
application, notice of untimely receipt, and rebuttal, to the 
appropriate determining official (see paragraph C.1. of Appendix D to 
this part) for an initial determination on the issue of untimely 
receipt. The Component does not need to investigate the merits of the 
application before forwarding the record.
    5. After making an initial determination on the issue of untimely 
receipt, the determining official must follow the procedures in Appendix 
D to this part. In addition, if the determining official finds that the 
application was timely, the official may:
    i. Return the application to the Component concerned for processing 
on the merits according to this part, or
    ii. Make a recommendation to the DOHA to grant all or part of the 
application as described in paragraph D to this Appendix.

                        C. Initial Determinations

    The standards in Appendix B to this part must be applied when 
considering the merits of a waiver application. After making an initial 
determination, the DOHA must follow the procedures at paragraph F to 
this Appendix and may take the following actions regarding waiver 
applications referred under paragraph A.4.ii. or B.5.ii. to this 
Appendix:
    1. Make an initial determination denying a waiver application in its 
entirety; or
    2. Make an initial determination granting all or part of a waiver 
application.

  D. Recommendation to the DOHA To Grant All or Part of an Application

    Referrals to the DOHA must include the entire record along with the 
recommendation and administrative report described in paragraph E to 
this Appendix. The record and the report must be sent to: Defense Office 
of Hearings and Appeals, Claims Division, P.O. Box 3656, Arlington, VA 
22203-1995.

               E. Recommendation and Administrative Report

    The recommendation and administrative report required by paragraph D 
to this Appendix must describe the recommended action (and its reasons) 
and the following:
    1. The names and mailing addresses of each employee, member, or 
other person from whom collection is sought, or a statement that the 
person cannot reasonably be located.
    2. The aggregate amount of the debt, including an itemization 
showing the elements of the aggregate amount.
    3. The date the erroneous payment was discovered.
    4. The date the recipient was notified of the error and a statement 
of the erroneous amounts paid before and after receipt of such notice.
    5. A summary of the facts and circumstances describing how the 
erroneous payment occurred; the recipient's knowledge of the erroneous 
nature of the payment; the steps taken by the recipient to bring the 
matter to the attention of the appropriate official; and the Component's 
response, if any.
    6. A finding of whether there is any indication of fraud, 
misrepresentation, fault, or lack of good faith on the part of the 
applicant and the reasons for such a finding.
    7. Legible copies or the originals of supporting documents, such as 
leave and earnings statements, notifications of personnel actions, 
travel authorizations and vouchers, and military orders.
    8. Statements (that are attested to be true and correct to the best 
of the individual's knowledge and belief) of the applicant or other 
persons in support of the application.

              F. Processing After an Initial Determination

    After making an initial determination, the DOHA must:
    1. Notify the applicant if all or part of the waiver application is 
denied. The notification must explain:
    i. The determination and the reasons for it.
    ii. The appropriate Component action to resolve the debt as a 
consequence of the determination if it is or becomes a final action

[[Page 727]]

(the finality of an initial determination is explained at paragraph G to 
this Appendix).
    iii. The appeal process (as explained in Appendix F to this part) if 
the determination does not grant the entire application or does not 
contain a finding of timely receipt.
    2. Notify the Component concerned when and if the determination is a 
final action. The notice must explain:
    i. The determination and its the reasons.
    ii. The appropriate Component action to resolve the debt as a 
consequence of the determination.

                G. When an Initial Determination Is Final

    A final action is an initial determination that grants the entire 
waiver application or finds that the application was timely received. 
Also, an initial determination (including one of untimely receipt) is a 
final action if the determining official does not receive an appeal 
within 30 days of the date of the initial determination (plus any 
extension of up to 30 additional days granted by the determining 
official for good cause shown).



                  Sec. Appendix F to Part 284--Appeals

                            A. Who May Appeal

    An applicant may appeal if an initial determination denies all or 
part of a waiver application or finds that the application was not 
received by the Component concerned within the time limit required by 
statute.

                  B. When and Where To Submit an Appeal

    1. When the determining official is not in the DOHA, the determining 
official must receive an applicant's appeal within 30 days of the date 
of the initial determination. The determining official may extend this 
period for up to an additional 30 days for good cause shown. No appeal 
may be accepted after this time has expired. The appeal shall be 
processed under the procedures in paragraphs C through K to this 
Appendix.
    2. When the determining official is in the DOHA, the DOHA must 
receive an applicant's appeal within 30 days of the date of the initial 
determination. The DOHA may extend this period for up to an additional 
30 days for good cause shown. No appeal may be accepted after this time 
has expired. The appeal shall be considered to be a request for 
reconsideration and shall be processed under the procedures in 
paragraphs L through Q of this Appendix.

                         C. Content of an Appeal

    No specific format for an appeal is required however it must be 
written and signed by the applicant, the applicant's authorized agent, 
or the applicant's attorney. In addition, it should:
    1. Provide the applicant's mailing address.
    2. Provide the applicant's telephone number.
    3. Provide the applicant's social security number when required by 
the Component concerned.
    4. Identify specific:
    i. Errors or omissions of material and relevant facts.
    ii. Legal or equitable (under the standards in Appendix B to this 
part) considerations that were overlooked or misapplied.
    iii. Conclusions that were arbitrary, capricious, or an abuse of 
discretion.
    5. Present evidence of the correct or additional facts alleged.
    6. Explain the reasons why the findings or conclusions should be 
reversed or modified.
    7. Have attached copies of documents referred to in the appeal.
    8. Include or have attached statements (that are attested to be true 
and correct to the best of the individual's knowledge and belief) by the 
applicant or other persons in support of the appeal.

                    D. Determining Official's Review

    The determining official must review an applicant's appeal, and 
affirm, modify, or reverse the initial determination.
    1. When the determining official grants the entire waiver appeal or 
grants the application to the extent requested in the appeal after 
review of an appeal in a case involving a debt in the aggregate amount 
of $1,500 or less, the determining official must notify the applicant in 
writing and the Component concerned if the determining official is not 
an official of the Component concerned. The notice must explain the 
appropriate action to resolve the debt. This is a final action.
    2. When the determining official finds that the application was 
received within the time limit required by statute after review of an 
appeal concerning the untimely receipt of the waiver application, the 
determining official must notify the applicant in writing and take the 
appropriate action under paragraph B.5. of Appendix D to this part or 
paragraph B.5. of Appendix E to this part, as appropriate.
    3. In all other cases, the determining official must forward the 
appeal to the DOHA according to paragraph E. of this Appendix. The 
determining official must prepare a recommendation and administrative 
report (as explained in paragraph F to this Appendix) and send a copy of 
the administrative report to the applicant with a notice that the 
applicant may submit a rebuttal to the determining official (as 
explained in paragraph G to this Appendix).
    4. The determining official must date stamp the applicant's rebuttal 
on the date it is received.

[[Page 728]]

                   E. Submission of Appeal to the DOHA

    The determining official must send the entire record along with the 
recommendation and administrative report required by paragraph F to this 
Appendix no earlier than 31 days after the date of the administrative 
report or the day after the applicant's rebuttal period, as extended, 
expires, to the following address: Defense Office of Hearings and 
Appeals, Claims Division, P.O. Box 3656, Arlington, Virginia 22203-1995.

               F. Recommendation and Administrative Report

    The recommendation and administrative report required by paragraph 
D.3. to this Appendix must describe the recommended action (and its 
reasons) and include:
    1. The names and mailing addresses of each employee, member, or 
other person from whom collection is sought, or a statement that the 
person cannot reasonably be located.
    2. The aggregate amount of the debt, including an itemization 
showing the elements of the aggregate amount.
    3. The date the erroneous payment was discovered.
    4. The date the recipient was notified of the error and a statement 
of the erroneous amounts paid before and after receipt of such notice.
    5. A summary of the facts and circumstances describing how the 
erroneous payment occurred; the recipient's knowledge of the erroneous 
nature of the payment; the steps taken by the recipient to bring the 
matter to the attention of the appropriate official; and the Component's 
response;
    6. A finding of whether there is any indication of fraud, 
misrepresentation, fault, or lack of good faith on the part of the 
applicant and the reasons for such a finding.
    7. Legible copies or the originals of supporting documents, such as 
leave and earnings statements, notifications of personnel actions, 
travel authorizations and vouchers, and military orders.
    8. Statements (that are attested to be true and correct to the best 
of the individual's knowledge and belief) of the applicant or other 
persons in support of the application.

                         G. Applicant's Rebuttal

    An applicant may submit a written rebuttal, signed by the applicant 
or the applicant's agent or attorney, in response to the recommendation 
and administrative report. The rebuttal must be received by the 
determining official within 30 days of the date of the recommendation 
and administrative report. The determining official may grant an 
extension of up to an additional 30 days for good cause shown. The 
rebuttal should include:
    1. An explanation of the points and reasons for disagreeing with the 
report.
    2. The file reference number.
    3. Any documents referred to in the rebuttal.
    4. Statements (that are attested to be true and correct to the best 
of the individual's knowledge and belief) by the applicant or other 
persons in support of the rebuttal.

                         H. DOHA Appeal Decision

    Except as provided in paragraph P to this Appendix, the DOHA must 
base its decision on the written record, including the recommendation 
and administrative report and any rebuttal by the applicant. The written 
decision must:
    1. Affirm, modify, reverse, or remand the initial determination and 
decide the application on its merits or return the application to the 
Component concerned for investigation and processing for an initial 
determination on the merits according to Appendix D to this part.
    2. State the amount of the waiver application that is granted and 
the amount denied and/or that the application was or was not received 
within the statutory time limit, as appropriate.
    3. Explain the reasons for the decision.

                 I. Processing After the Appeal Decision

    After issuing an appeal decision, the DOHA must:
    1. Send the applicant the decision and notify the applicant of:
    i. The appropriate Component action to resolve the debt as a 
consequence of the decision if it is or becomes a final action (as 
explained in paragraph J to this Appendix).
    ii. The procedures under this Appendix to request reconsideration 
(as explained in paragraphs K through M to this Appendix), if the 
decision does not grant the waiver application to the extent requested, 
or does not contain a finding of timely receipt, when applicable.
    2. Notify the Component concerned of the decision and the 
appropriate Component action to resolve the debt as a consequence of the 
decision.

                  J. Finality of a DOHA Appeal Decision

    An appeal decision that grants the waiver application to the extent 
requested on appeal, or that finds that the application was timely 
received, when applicable, is a final action when issued. An appeal 
decision is a final action if the DOHA does not receive a request for 
reconsideration within 30 days of the date of the appeal decision (plus 
any extension of up to 30 additional days granted by the DOHA for good 
cause shown).

    Note: In the case of a DOHA appeal decision issued before the 
effective date of this

[[Page 729]]

part that denied all or part of the waiver application, 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.5. to this appendix. The 
provisions of paragraph M to this appendix apply.

                   K. Who May Request Reconsideration

    An applicant may request reconsideration of a DOHA appeal decision.

        L. 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. \2\ 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 to this Appendix.
---------------------------------------------------------------------------

    \2\ Request for reconsideration by the GC, DoD must be received by 
the DOHA within 60 days of the effective date of this Instruction as 
explained in paragraph J of this appendix for appeal decisions issued 
before the effective date of this Instruction.
---------------------------------------------------------------------------

               M. Content of a Request for Reconsideration

    The requirements of paragraph C to this Appendix for the content of 
an appeal apply to a request for reconsideration.

            N. DOHA's Review of a Request for Reconsideration

    No earlier than 31 days after the date of the appeal decision or the 
day after the last period for submitting a request, as extended, 
expires, the DOHA must:
    1. Consider a request for reconsideration.
    2. Affirm, modify, or reverse the appeal decision.
    3. Prepare a response that explains the reasons for the finding.
    4. Send the response to the applicant and the Component concerned 
and notify them of the appropriate action on the debt.

             O. Finality of a DOHA Reconsideration Decision

    The response is a final action. It is precedent in the consideration 
of all waiver applications covered by this part unless otherwise stated 
in the document.

      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.

[[Page 730]]



             SUBCHAPTER N_FREEDOM OF INFORMATION ACT PROGRAM





PART 285_DOD FREEDOM OF INFORMATION ACT (FOIA) PROGRAM--Table of Contents



Sec.
285.1 Purpose.
285.2 Applicability and scope.
285.3 Policy.
285.4 Responsibilities.
285.5 Information requirements.

    Authority: 5 U.S.C. 552.

    Source: 72 FR 71793, Dec. 19, 2007, unless otherwise noted.



Sec. 285.1  Purpose.

    This part:
    (a) Updates policies and responsibilities for implementing the DoD 
FOIA Program in accordance with 5 U.S.C. 552 (commonly known as the 
``FOIA'').
    (b) Continues to authorize 32 CFR part 286 to implement the FOIA 
Program.
    (c) Implements E.O. 13392 within the Department of Defense.
    (d) Continues to delegate authorities and responsibilities for the 
effective administration of the FOIA Program consistent with DoD 
Directive 5105.53 \1\.
---------------------------------------------------------------------------

    \1\ Copies of DoD Directives, Instructions, and Publications may be 
obtained at http://www.dtic.mil/whs/directives/.
---------------------------------------------------------------------------



Sec. 285.2  Applicability.

    This part applies to:
    (a) The Office of the Secretary of Defense (OSD), the Military 
Departments, the Office of 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) National Security Agency/Central Security Service records, 
unless the records are exempt according to 50 U.S.C. 402.
    (c) Defense Intelligence Agency, National Reconnaissance Office, and 
National Geospatial-Intelligence Agency records, unless the records are 
exempt according to 50 U.S.C. 403-5e, 10 U.S.C. 424 and 455, or other 
applicable law.



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 the DoD responsibility to protect national security and other 
sensitive DoD information.
    (b) Allow a requester to obtain records from the Department of 
Defense that are available through other public information services 
without invoking the FOIA.
    (c) Make available, according to the procedures established by DoD 
32 CFR part 286, DoD records requested by a member of the public who 
explicitly or implicitly cites the FOIA.
    (d) Answer promptly all other requests for DoD information and 
records under established procedures and practices.
    (e) Release DoD records to the public unless those records are 
exempt from 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 according to the 
procedures set forth in 32 CFR part 310 and this part, as amplified by 
DoD 32 CFR part 286.
    (g) Provide FOIA requesters with citizen-centered ways to learn 
about the FOIA process, about DoD records that are publicly available, 
and about the status of a FOIA request and appropriate information about 
the DoD response.



Sec. 285.4  Responsibilities.

    (a) The Director, Administration and Management (DA&M) shall:
    (1) Serve as the DoD Chief FOIA Officer in accordance with E.O. 
13392.
    (2) Direct and oversee the DoD FOIA Program to ensure compliance 
with the

[[Page 731]]

policies and procedures that govern administration of the program.
    (3) Designate the FOIA Public Liaisons for the Department of Defense 
in accordance E.O. 13392. The FOIA Public Liaisons for OSD, the Office 
of the Chairman of the Joint Chiefs of Staff, and the Combatant Commands 
shall be appointed from the Defense Freedom of Information Policy Office 
(DFOIPO).
    (4) Prepare and submit to the Attorney General the DoD Annual 
Freedom of Information Act Report as required by 5 U.S.C. 552 and other 
reports as required by E.O. 13392.
    (5) Serve as the appellate authority for appeals to the decisions of 
the respective Initial Denial Authorities within OSD, the Office of the 
Chairman of the Joint Chiefs of Staff, the DoD Field Activities (listed 
in DoD 32 CFR part 286), and the Combatant Commands. The DA&M may 
delegate this responsibility to an appropriate member of the DA&M or 
Washington Headquarters Services (WHS) staff.
    (6) Prepare and maintain a DoD issuance and other discretionary 
information to ensure timely and reasonably uniform implementation of 
the FOIA in the Department of Defense.
    (b) The Director, WHS, under the authority, direction, and control 
of the DA&M, shall administer the FOIA Program, inclusive of training, 
for OSD and the Office of the Chairman of the Joint Chiefs of Staff.
    (c) The General Counsel of the Department of Defense shall:
    (1) Provide uniformity in the legal interpretation of this part.
    (2) Ensure affected OSD legal advisors, public affairs officers, and 
legislative affairs officers are aware of releases through litigation 
channels that may be of significant public, media, or Congressional 
interest or of interest to senior DoD officials.
    (3) Establish procedures to centralize processing of FOIA litigation 
documents when deemed necessary.
    (d) The Under Secretary of Defense for Intelligence shall establish 
uniform procedures regarding the declassification of national security 
information made pursuant to requests invoking the FOIA.
    (e) The Heads of the DoD Components shall:
    (1) Internally administer the DoD FOIA Program; publish any 
instructions necessary for the administration of this part within their 
Components that are not prescribed by this part or by other DA&M 
issuances in the Federal Register.
    (2) Serve as, or appoint another Component official as, the FOIA 
appellate authority for the Component.
    (3) Establish one or more FOIA Requester Service Centers as 
prescribed by E.O. 13392.
    (4) Submit names of personnel to the DA&M for designation as FOIA 
Public Liaisons.
    (5) Ensure their respective chains of command, affected legal 
advisors, public affairs officers, and legislative affairs officers are 
aware of releases through the FOIA, inclusive of releases through 
litigation channels, that may be of significant public, media, or 
Congressional interest or of interest to senior DoD officials.
    (6) Conduct training on the provisions of this part, 5 U.S.C. 552, 
and DoD 32 CFR part 286 for officials and employees who implement the 
FOIA.
    (7) Submit to DFOIPO inputs to the DoD FOIA Annual Report prescribed 
in DoD 32 CFR part 286 and E.O. 13392.
    (8) Make the records specified in 5 U.S.C. 552(a)(2) unless such 
records are published and copies are offered for sale, available for 
public inspection and copying in an appropriate facility or facilities 
according to rules published in the Federal Register. These records 
shall be made available to the public in both hard copy and electronic 
formats.
    (9) Maintain and make current indices of all records available for 
public inspection and copying as required by 5 U.S.C. 552(a)(2).



Sec. 285.5  Information requirements.

    Reporting requirements are in DoD 32 CFR part 286 and have been 
assigned Report Control Symbol DD-DA&M(A)1365 in accordance with DoD 
8910.1-M.

[[Page 732]]



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 [Reserved]

               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
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

[[Page 733]]

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 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

[[Page 734]]

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 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

[[Page 735]]

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 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

[[Page 736]]

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 
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.

[[Page 737]]

    (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) (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

[[Page 738]]

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 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

[[Page 739]]

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 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.

[[Page 740]]

    (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.
    (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

[[Page 741]]

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.
    (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

[[Page 742]]

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.
    (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,

[[Page 743]]

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. 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

[[Page 744]]

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 requester if 
withholding is both authorized by DoD 5400.11-R \4\ and by a FOIA 
exemption.
---------------------------------------------------------------------------

    \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 statutes, 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

[[Page 745]]

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.
    (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

[[Page 746]]

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.
    (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.

[[Page 747]]

    (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, 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.

[[Page 748]]

    (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 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\
---------------------------------------------------------------------------

    \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.

[[Page 749]]

    (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 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

[[Page 750]]

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 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 [Reserved]



               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

[[Page 751]]

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 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

[[Page 752]]

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.
    (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

[[Page 753]]

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 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:

[[Page 754]]

    (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 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

[[Page 755]]

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 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

[[Page 756]]

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.
    (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

[[Page 757]]

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.
    (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]

[[Page 758]]



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 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

[[Page 759]]

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 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

[[Page 760]]

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 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\ x 11 or 11 x 14. 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:

[[Page 761]]

    (i) Disclosure of the information ``is in the public interest 
because it is likely to contribute significantly to public 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

[[Page 762]]

decision regarding significance requires objective judgment, rather than 
subjective determination, and must be applied carefully to determine 
whether 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:

[[Page 763]]

    (A) Notify the requester to provide additional justification to 
warrant the category claimed, and that a search for responsive records 
will not be initiated 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

[[Page 764]]

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 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.

[[Page 765]]

    (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 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

[[Page 766]]

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 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).

[[Page 767]]

    (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 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

[[Page 768]]

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 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

[[Page 769]]

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 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.

[[Page 770]]

(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 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

[[Page 771]]

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
    (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.

[[Page 772]]

    (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.
    (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:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                  Employee                     Number (months worked)    Work-years                                  Note
--------------------------------------------------------------------------------------------------------------------------------------------------------
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:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                   Employee                     Number (hours worked)    Work-years                                  Note
--------------------------------------------------------------------------------------------------------------------------------------------------------
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.

[[Page 773]]

    (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 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.



 Sec. 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.

[[Page 774]]

    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.
    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.
---------------------------------------------------------------------------



          Sec. 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)

[[Page 775]]

Deputy Under Secretary of Defense (Advanced Technology)
Deputy Under Secretary of Defense (Acquisition Reform)
Deputy Under Secretary of Defense (Environmental Security)
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.

[[Page 776]]

    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.
    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 777]]

Appendix C to Part 286--DD Form 2086, ``Record of Freedom of Information 
                         (FOI) Processing Cost''
[GRAPHIC] [TIFF OMITTED] TR25NO98.000


[[Page 778]]


[GRAPHIC] [TIFF OMITTED] TR25NO98.001


[[Page 779]]





  Sec. 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 780]]


[GRAPHIC] [TIFF OMITTED] TR25NO98.003


[[Page 781]]





 Sec. Appendix E to Part 286--DD Form 2564, ``Annual Report Freedom of 
                            Information Act''
[GRAPHIC] [TIFF OMITTED] TR25NO98.004


[[Page 782]]


[GRAPHIC] [TIFF OMITTED] TR25NO98.005



  Sec. 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 783]]

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 784]]

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 785]]

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 786]]

    (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 787]]

    (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 788]]

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 789]]

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

[[Page 790]]

record, if that decision becomes a matter of special concern because it 
involves either an issue of public concern or DoD-wide consequences.
    (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

[[Page 791]]

or exemptions cited which provide the basis for denying the requested 
records.
    (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.

[[Page 792]]

    (b) Requests for audit reports. Audit reports prepared by DCAA are 
the property of and are prepared for the use of 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

[[Page 793]]

threshold of $15.00 or a specific justification for any waiver or 
reduction of fees sought based on public interest 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

[[Page 794]]

within the order of receipt upon a showing of exceptional need or 
urgency. Exceptional need or urgency is 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.

[[Page 795]]

    (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.
    (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

[[Page 796]]

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 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.

[[Page 797]]

    (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 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.



      Sec. 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

[[Page 798]]

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 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

[[Page 799]]

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]



       Sec. 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.

[[Page 800]]

    (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.
    (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]



           Sec. 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\.
---------------------------------------------------------------------------

    \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,

[[Page 801]]

pursuant to the FOIA, and that special handling instructions do or do 
not apply.
    (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

[[Page 802]]

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 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]



            Sec. 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

[[Page 803]]

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 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

[[Page 804]]

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 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

[[Page 805]]

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 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

[[Page 806]]

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 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

[[Page 807]]

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 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

[[Page 808]]

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) 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

[[Page 809]]

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 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

[[Page 810]]

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 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

[[Page 811]]

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.
    (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

[[Page 812]]

as trade secrets, inventions, discoveries, or other proprietary data. 
See 32 CFR part 286h, ``Release of Acquisition-Related Information.''
    (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.

[[Page 813]]

    (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 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

[[Page 814]]

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.
    (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

[[Page 815]]

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 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

[[Page 816]]

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 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.



  Sec. 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

[[Page 817]]

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 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

[[Page 818]]

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 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

[[Page 819]]

subject to this regulation. There is no obligation to create, compile, 
or obtain a record to satisfy an FOIA request.
    (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

[[Page 820]]

requests should contain at least the following information:
    (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

[[Page 821]]

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 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:

[[Page 822]]

    (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 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.



    Sec. 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


[[Page 823]]

        ................................................................
    d. See Chapter VI of DoD 5400.7-R for further guidance on fees.



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

[[Page 824]]

from public release. There are nine exemptions that permit an agency to 
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 825]]

    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 declassification 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 826]]

    (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 827]]

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 828]]

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 829]]

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 830]]

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 831]]

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 832]]

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 833]]

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 834]]

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 835]]

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 836]]

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 837]]

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 838]]

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 839]]

    (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 840]]

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 841]]

    (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 842]]

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.



        Sec. 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.
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    \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 843]]

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 844]]

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.



                 Sec. 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 845]]

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 846]]

    (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 847]]

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 848]]

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 849]]

    (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 writing addressed to the Chief, Information 
Access and Release Center, National Reconnaissance Office, 14675 Lee

[[Page 850]]

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 part 361) including 
investigative and industrial security records.

[[Page 851]]

    (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 at the Defense 
Investigative Service,

[[Page 852]]

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 853]]

    (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 854]]

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 855]]

    (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 856]]

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 857]]

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 858]]

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 859]]

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 860]]

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 861]]

    (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 862]]

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.



PART 300_DEFENSE LOGISTICS AGENCY FREEDOM OF INFORMATION ACT PROGRAM
--Table of Contents



                      Subpart A_General Provisions

Sec.
300.1 Purpose.
300.2 DLA FOIA regulatory precedence.
300.3 Definitions.
300.4 Policy.

                          Subpart B_Exemptions

300.5 General.

                    Subpart C_FOIA Request Processing

300.6 General.
300.7 FOIA request processing procedures.
300.8 Initial determinations.
300.9 Appeals.
300.10 Judicial actions.

                     Subpart D_Fees and Fee Waivers

300.11 General.

Appendix A to Part 300--Access to DLA Records

     Authority: 5 U.S.C. 552.

    Source: 79 FR 30466, May 28, 2014, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 300.1  Purpose.

    This part provides policies and procedures for the Defense Logistics 
Agency (DLA) implementation of the Freedom of Information Act (FOIA) (5 
U.S.C. 552). This part supplements and implements the Department of 
Defense (DoD) FOIA Program Directive (32 CFR part 285) and DoD FOIA 
Program Regulation (32 CFR part 286). This part applies to DLA 
Components and takes precedence over all DLA regulations that supplement 
the FOIA program.



Sec. 300.2  DLA FOIA regulatory precedence.

    This part is published in accordance with the authority contained in 
5 U.S.C. 552 and 32 CFR parts 285 and 286. It supplements 32 CFR part 
286 to accommodate specific requirements of DLA's FOIA Program. For all 
FOIA issues not covered by this part, the rules set forth in 32 CFR part 
286 will govern.



Sec. 300.3  Definitions.

    Definitions not included in this subpart may be found in 32 CFR part 
286, subpart A. The following terms and meanings apply for the purposes 
of this part:
    (a) Administrative appeal. A written request by a member of the 
public, made under the FOIA, to DLA's Appellate Authority requesting 
reversal of an adverse determination. An appeal may be mailed, emailed 
to [email protected], or faxed to 703-767-6091. Appeals are to be 
addressed to the Appellate Authority, Defense Logistics Agency, Suite 
1644, 8725 John J. Kingman Road, Fort Belvoir, Virginia 22060-6221.
    (b) Adverse determination. Adverse determinations include, but are 
not limited to decisions that: Withhold all or part of a requested 
record; deny a fee category claim by a requester; deny a request for 
waiver or reduction of fees; deny requesters challenge of fee estimates; 
denies a request for expedited processing; state that no records were 
located; do not provide a response within the statutory time limit; or 
what the requester believes is adverse in nature.
    (c) Appellate authority. The General Counsel, DLA, who upon receipt 
of an administrative appeal, reviews the initial determination and may 
uphold, reverse or amend any adverse determination.
    (d) Consultation. The process whereby a DoD Component receives a 
FOIA request for a record in which another DoD Component or Federal 
agency has a clear and substantial interest in the subject matter, the 
responsive record is sent to another DoD Component or Federal agency to 
obtain recommendations on the releasability of the document and is 
returned to the originator for further action.
    (e) Defense Freedom of Information Policy Office (DFOIPO). The 
office responsible for the formulation and implementation of DoD policy 
guidance for FOIA. For information about DFOIPO

[[Page 863]]

refer to http://www.dod.mil/pubs/foi/dfoipo/.
    (f) Direct costs. Expenditures made in searching for, reviewing, and 
duplicating documents in response to a FOIA request. Direct costs 
include, for example, the salary of the employee performing the work 
(the basic rate of pay plus 16 percent of that rate to cover benefits) 
and the costs of operating duplicating machinery. Not included in direct 
costs are overhead expenses such as the cost of space, heating, or 
lighting the facility in which the records are stored.
    (1) Search. This term includes all time spent looking, both manually 
and electronically, for records that are responsive to a FOIA request, 
such as:
    (i) Searching for responsive emails or electronic documents located 
on individually-assigned computers or servers;
    (ii) Time taken by a programmer to create a program to run a 
requested report from a database; or
    (iii) Searching through hardcopy files to include records stored at 
a Federal Records Center. The term ``search'' also includes a page-by-
page and line-by-line identification of a record to determine if it, or 
portions, are responsive to the request.
    (2) Duplication. The process of making a copy of a document in 
response to a FOIA request. Copies can take the form of paper, 
microfiche, audiovisual or machine-readable documentation (e.g., 
magnetic tape or compact disc), among others. Personnel time spent 
performing tasks to enable a computer system to output information in a 
particular digital form or format for a requester is considered search 
time. Search time is calculated according to 32 CFR part 286, subpart F.
    (3) Review. The examination of documents located in response to a 
FOIA request to determine if any of the statutory exemptions permit 
withholding. Review also includes the time taken to redact documents, 
preparing them for release and reviewing submitter responses under 
Executive Order 12600. Review does not include the time spent resolving 
general legal or policy issues regarding the application of exemptions.
    (g) DLA component. DLA Components consist of Headquarters 
Organizations, Primary Level Field Activities, Defense Business 
Services, Regional Commands, and other Organizational entities. A 
description of DLA Components can be found at www.dla.mil.
    (h) DLA FOIA Requester Service Center. DLA Office's authorized to 
receive and process FOIA requests and where a FOIA requester can gain 
information concerning DLA's FOIA Program, the status of the person's 
FOIA request, or information about the agency's FOIA response. Refer to 
Appendix A of this part for locations of FOIA Requester Service Centers 
or for additional information refer to DLA's public Web site at 
www.dla.mil/FOIA-Privacy.
    (i) Electronic records. Records (including email) created, stored, 
and retrieved by electronic means.
    (j) Federal agency. This term is defined at 5 U.S.C. 551(1) and 5 
U.S.C. 552(f)(1).
    (k) FOIA officer. DLA employee who is responsible for processing 
FOIA requests and is a point of contact for the FOIA program. The FOIA 
Officer grants or denies requests for fee waivers or expedited 
processing and makes requester category determinations.
    (l) FOIA Public Liaison. The member of DLA's Headquarters FOIA staff 
to whom a FOIA requester can raise concerns about the service the 
requester received from a DLA FOIA Requester Service Center. The FOIA 
Public Liaison is available to assist in reducing delays, increasing 
transparency; increasing understanding of the status of requests and 
assists with resolving disputes.
    (m) FOIA request. A written request for DLA records that reasonably 
describes the record(s) sought, enabling a DLA employee familiar with 
the files to locate the record(s) with a reasonable amount of effort; 
indicates a willingness to pay processing fees or requests a fee waiver; 
and includes a postal mailing address and contact information. A 
willingness to pay fees is not required when, based upon the request, 
fees will not be assessed (e.g. an ``other'' requester requests a 
document that is certain to be less than 100 pages and will take less 
than two hours of search time). Written requests may be received by U.S. 
Postal Service or other commercial delivery means, by

[[Page 864]]

facsimile, or electronically. A FOIA request meeting these conditions, 
arriving at DLA's FOIA Requester Service Center in possession of the 
requested records, is considered perfected or properly received at which 
time the statutory time limit for response begins. In no case shall the 
statutory time limit for processing a perfected request begin later than 
ten business days after receipt by any of DLA's FOIA Request Service 
Centers.
    (n) Initial denial authority (IDA). By this regulation, the 
Director, DLA, delegates to Heads of DLA Components the authority to 
withhold information requested under the FOIA pursuant to one or more of 
the nine FOIA exemptions and to confirm that no records were located in 
response to a request. The designation of IDA may be further delegated 
by the Heads of DLA Components to their Deputies. DLA Components shall 
limit the number of IDAs appointed. In designating its IDAs, a DLA 
Component shall balance 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. IDAs may also 
deny a fee category claim by a requester, deny a request for expedited 
processing, deny a request for a waiver or reduction of fees, or review 
a fee estimate, although these determinations are usually made by the 
FOIA Officer.
    (o) Referral. The process of transferring records found in response 
to a FOIA request to another DLA or DoD Component, or any Federal agency 
for review and direct response to the requester. This process is used 
when documents located during a search are found to have originated or 
there is a substantial interest in the record with another DLA or DoD 
Component, or Federal agency.
    (p) Requester category. One of three categories that agencies place 
requesters in for the purpose of determining fees for search, review and 
duplication. The three categories are:
    (1) Commercial;
    (2) Non-commercial scientific or educational institutions or news 
media; and
    (3) All others.



Sec. 300.4  Policy.

    DLA adopts and supplements the DoD FOIA Program policy and 
procedures codified at 32 CFR part 286, subpart A, General Provisions 
and subpart B, FOIA Reading Rooms and 32 CFR part 285.
    (a) General. As a matter of policy, DLA 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. The public has a 
right to information concerning the activities of its Government. DLA 
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 DLA record requested by 
a member of the public who follows rules established herein shall be 
withheld only when it is exempt from mandatory public disclosure under 
the FOIA.
    (b) Customer Service. Executive Order 13392, Improving Agency 
disclosure of Information, December 14, 2005, requires agencies to 
emphasize a new citizen-centered approach to the FOIA that is results-
oriented. Because FOIA requesters are seeking a service from the Federal 
Government, all DLA Components shall respond courteously and 
professionally to FOIA requesters. Additionally, the Components shall 
provide the public with information about agency records that are 
already publicly available, as well as information about the status of a 
person's FOIA request and an estimated date on which DLA's Component 
will complete the request. Refer to Appendix A of this part for DLA FOIA 
Requester Service Center contact information.
    (1) To meet the requirements of Executive Order 13392, each FOIA 
Requester Service Center shall have an internet Web site that serves to 
educate the public on the FOIA process. At a minimum, each Web site 
shall have the address, telephone number, facsimile number, and 
electronic mail address to which FOIA requests can be sent; a link to 
DoD's FOIA handbook; the

[[Page 865]]

name and contact information of DLA's FOIA Officer and Public Liaison; 
and information on how a requester can obtain the status of a request. 
Additionally, each FOIA Requester Service Center Web site will have 
links to DLA's Headquarters FOIA/Privacy Web site reading room.
    (2) [Reserved]
    (c) Creating a Record. (1) There is no obligation to create nor 
compile a record to satisfy an FOIA request. A DLA activity, however, 
may compile a new record when doing so would result in a more useful 
response to the requester or be less burdensome to the activity provided 
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. Fee assessments shall be in accordance 
with part 286, subpart F, of this title.
    (2) A record must exist and be in the possession and control of DLA 
at the time the search begins to be considered subject to this part and 
the FOIA.
    (3) When processing FOIA requests for electronic data, if DLA's 
Component has the capability to respond to the request, and the effort 
is reasonable and 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. For example: Processing a request that would cause a 
significant interference with the operation of DLA's Component's 
automated system or require a significant amount of programming effort.
    (d) Consultations and Referrals. The rules published in part 32 CFR 
part 286, subpart A, Sec. Sec. 286.4(i) and 286.22(e), Policy, apply to 
this rule.
    (e) Forms. This part authorizes the use of forms developed by DoD 
and DLA for the express use of the FOIA Program. Refer to www.dla.mil 
for a list of all forms prescribed by this part.



                          Subpart B_Exemptions



Sec. 300.5  General.

    Refer to the DoD FOIA Program regulations codified at 32 CFR part 
286, subpart C, Exemptions.



                    Subpart C_FOIA Request Processing



Sec. 300.6  General.

    DLA adopts and supplements the DoD FOIA Program regulations codified 
at 32 CFR part 286, subpart E, Release and Processing Procedures.
    (a) Requests from the public. (1) Individuals seeking DLA 
information should address their FOIA requests to one of the FOIA 
Requester Service Center addresses listed in Appendix A of this part.
    (2) When personally identifying information in a record is requested 
by the subject of the record or the subject's representative, and the 
information is contained within a Privacy Act system of records, the 
request will be processed under both the FOIA and the Privacy Act. Due 
to the dual nature of the processing, the FOIA time limits will be used. 
DLA Components must comply with the provisions of 32 CFR 310.17(c) to 
confirm the identity of the requester.
    (b) [Reserved]



Sec. 300.7  FOIA request processing procedures.

    (a) Receipt and Control. Requests received after 5:00 p.m. EST will 
be considered received the following business day. Upon receipt of a 
request for records, the FOIA Officer must:
    (1) Open a file in DLA's specified control system designed to ensure 
accountability and compliance with the FOIA. The control system will 
include the data elements needed to compile the statistics required in 
the annual Department of Justice FOIA report or other reports required 
by another authority. Each request shall automatically be assigned a 
unique tracking number.
    (2) Screen the request for defects in the description, the requester 
category, the fee declaration, and full postal address. The FOIA Officer 
will notify the

[[Page 866]]

requester of any such defects and provide assistance to help remedy the 
defects. The FOIA Officer will place the request on-hold until the 
request is perfected. When a DLA FOIA Requester Service Center receives 
a request for records that clearly belong to an agency outside of DoD, 
the requester shall be told these are not agency records and, if 
possible, provide the name of the agency that may hold the records. No 
referral of the request is made outside of DoD.
    (3) Once a request is perfected, DLA may make one request for 
additional information unrelated to fees and toll the 20 working-day 
period while awaiting the information. Tolling the 20 working-day period 
is not limited for fee related issues.
    (4) DLA will provide the requester with the FOIA tracking number and 
the track in which the FOIA was placed (see Sec. 300.7(b)). Each DLA 
FOIA Requester Service Center has a telephone line to inform the 
requester of the status of their request (see Appendix A of this part).
    (5) DLA uses the date-of-search cut-off (this cut-off is the day 
before the search begins) to ensure that as many records as possible 
will be captured by the agency's search. A FOIA request may not be on-
going or open-ended in nature. DLA Components are responsible for 
providing records in possession and control of DLA at the time the 
search for records begins. DLA Components are not required to expend DLA 
funds to establish data links that provide real-time or near-real-time 
data to a FOIA requester.
    (b) Multi-track Processing. DLA components shall process requests 
with all due diligence according to their order of receipt. A DLA 
component uses three processing tracks by distinguishing between simple, 
complex, and expedited requests based on the need to search and collect 
from multiple directorates/locations; the need to search for, collect 
and appropriately examine a voluminous amount of records; and/or the 
need to consult with other DLA or DoD Components having a substantial 
interest in the releasability of the record. Requesters are notified in 
the acknowledgement letter of the track the request is placed in. 
Requests placed in the simple track will typically be completed within 
the statutory time limit for responding to requests. Requests placed in 
the complex track may be narrowed or modified in order to qualify for 
faster processing within the specified limits of DLA's simple track. 
Expedited processing must be requested and a requester who seeks 
expedited processing must submit a statement, certified to be true and 
correct to the best of that person's knowledge and belief, explaining in 
detail the basis for requesting expedited processing. Within ten 
calendar days of its receipt of a request for expedited processing, the 
proper component shall decide whether to grant expedited processing and 
shall notify the requester of the decision. If a request for expedited 
processing is granted, the request shall be given priority and processed 
as soon as practicable. If a request for expedited processing is denied, 
any appeal of that decision shall be acted on expeditiously. Refer to 
the DoD FOIA Handbook for information on multi-track processing (http://
www.dod.mil/pubs/foi/dfoipo/foiaHandbook.html#long).
    (c) Payments in Arrears. Where a requester has previously failed to 
pay a fee charged within 30 calendar days, DLA may require the requester 
to pay the full amount owed, plus any applicable interest, before 
beginning to process a new or pending request from the requester (see 
OMB Fee Guidelines (http://www.dod.gov/pubs/foi/dfoipo/docs/
OMBGuidelines--FOIAFees.pdf)). Interest will be at the rate prescribed 
in 31 U.S.C. 3717, and confirmed with the servicing Financial Operations 
Office.
    (d) Misdirected Requests. A misdirected request is a request 
received by DLA's FOIA Office for records maintained by another DLA or 
DoD Component. Misdirected requests shall be forwarded promptly, but in 
any event not later than ten days after the request is first received by 
any component of the agency that is designated in this regulation to 
receive requests (see Appendix A of this part). The receiving FOIA 
Office shall route the request to the proper DLA or DoD FOIA Office and 
the response time will commence on the date that the request is received 
by the proper FOIA Office, but not later

[[Page 867]]

than ten working days after the request is first received by any DLA or 
DoD FOIA Office. Misdirected FOIA requests are not forwarded outside of 
DoD.



Sec. 300.8  Initial determinations.

    (a) The initial determination is whether to make a record available 
in response to a FOIA request. A full release may be made by an official 
knowledgeable of the record, with authority to determine that no harm 
would come from release. Adverse determinations (refer to Sec. 
300.3(b)) must be made by the designated Initial Denial Authority (IDA) 
except for determinations made regarding the requester category and 
requests for fee waivers or expedited processing. By this regulation, 
the Director, DLA, delegates to Heads of DLA Components (see Sec. 
300.3(h)) the designation of IDA. The designation of IDA may be further 
delegated by the Heads of DLA Components to their Deputies. The IDA 
shall review all recommendations for withholding information and whether 
the criteria for withholding under one or more FOIA exemptions are met. 
DLA has IDAs throughout the agency; and each IDA will make the 
determination for records within their area of functional 
responsibility. If a request involves records from more than one 
functional area, consultation will be done with all responsible IDAs but 
will be signed by the IDA assigned the primary responsibility for 
processing the request.
    (b) The FOIA requires that any reasonably segregable portion of a 
record must be released after appropriate application of the Act's nine 
exemptions. Segregation is not reasonable when it would produce an 
essentially meaningless set of words and phrases, or even sentences 
which taken separately or together have minimal or no information 
content.
    (c) If information is withheld in whole or part, DLA will provide in 
a response letter the exemption under which the withholding is made, a 
description of the type of information redacted, the name and title or 
position of the IDA and the administrative appeal rights. When 
information is withheld in full, DLA will provide an estimate of the 
volume withheld. This estimate should be in number of pages or in some 
other reasonable form of estimation. When information is withheld in 
part, DLA will show the redacted amount of information and the exemption 
under which the redaction is made on the released portion of the record, 
unless including that indication would harm an interest protected by the 
exemption under which the redaction is made.



Sec. 300.9  Appeals.

    When an IDA makes an adverse determination (see Sec. 300.3(b)) the 
requester may appeal that decision in writing to the designated 
appellate authority (see Sec. 300.3(a)). An appeal must be made in 
writing to DLA's Appellate Authority and must be postmarked within the 
appeal time limits of the DoD FOIA Program Regulation at 32 CFR 286.24. 
The appeal should be accompanied by copies of the initial request and 
the denial letter.



Sec. 300.10  Judicial actions.

    DLA adopts the DoD FOIA Program regulations codified at 32 CFR part 
286, subpart E, Release and Processing Procedures.



                     Subpart D_Fees and Fee Waivers



Sec. 300.11  General.

    DLA adopts the rules and rates published in 32 CFR part 286, subpart 
F, Fee Schedule. In addition, DLA considers fees charged by a Federal 
Records Center to retrieve and re-file records a part of the direct 
costs charged to requesters.



           Sec. Appendix A to Part 300--Access to DLA Records

    (a) General. (1) The Defense Logistics Agency, established pursuant 
to authority vested in the Secretary of Defense, is an agency of DoD 
under the direction, authority, and control of the Assistant Secretary 
of Defense for Logistics and Materiel Readiness, and is subject to DoD 
policies, directives, and instructions.
    (2) DLA is comprised of several Components and each DLA Component is 
responsible for maintaining its own records; therefore, FOIA requests 
should be addressed to the FOIA Requester Service Center that has 
custody of the record sought. (See paragraph

[[Page 868]]

(c) of this appendix.) DLA FOIA Officers will assist requesters in 
determining the correct DLA Requester Service Center to address 
requests. (See paragraph (c) of this appendix and DLA's public Web site 
at www.dla.mil.)
    (3) On DLA's public Web site is an index to assist in locating DLA 
records by category, organization, keyword search, or by contract 
prefix. The index is titled ``Index of Information at DLA FOIA Service 
Centers'' at www.dla.mil/FOIA-Privacy/servindex/pages/category.aspx.
    (b) Requester Requirements. (1) Requesters are responsible for 
submitting a perfected request as defined in Sec. 300.3(m), FOIA 
Request.
    (2) Addressing Requests. Address requests to DLA's FOIA Requester 
Service Center most likely to hold the records (see paragraph (c) of 
this appendix for the contact information of DLA FOIA Requester Service 
Centers designated to receive FOIA requests). If DLA's FOIA Requester 
Service Center is undeterminable, address requests to DLA Headquarters 
FOIA Requester Service Center for proper routing.
    (3) Availability of DLA Publications. Many unrestricted DLA 
regulations, manuals, and handbooks are available online. Visit DLA's 
FOIA/Privacy Web site for more information at http://www.dla.mil/foia-
privacy/.
    (c) Locations of DLA FOIA Requester Service Centers. Refer to the 
FOIA/Privacy Web page at http://www.dla.mil/FOIA-Privacy/pages/
foiapocs.aspx for current points of contact at each of the DLA's FOIA 
Requester Service Centers.
    (1) Defense Logistics Agency Headquarters, ATTN: DGA, 8725 John J. 
Kingman Rd., Ste 1644, Fort Belvoir, VA 22060-6221, Fax: 703-767-6091, 
Email: [email protected] for broad functional areas, such as 
Office of the Director, General Counsel, Small Business Programs, DLA 
Office of Inspector General, Legislative Affairs, Equal Employment 
Opportunity Office, Installation Support, Human Resources, Logistics 
Operations, Information Operations, Acquisition, and Financial 
Operations. This FOIA Requester Service Center also processes FOIA 
requests for the following locations:
    (i) DLA Transaction Service, Wright-Patterson AFB, Ohio--Editing/
routing of logistics transactions, network interoperability and 
eBusiness services.
    (ii) DLA Strategic Materials, Fort Belvoir, Va.--Manages the 
strategic and critical raw material stockpile that supports national 
defense needs.
    (iii) DLA Europe & Africa, Kaiserslautern, Germany--Focal point for 
U.S. European Command's and U.S. Africa Command's theater of operations.
    (iv) DLA Pacific, Camp Smith, Hawaii--Focal point for U.S. Pacific 
Command's theater of operations.
    (v) DLA Central, MacDill AFB, Fla.--Focal point for U.S. Central 
Command's theater of operations.
    (2) DLA Energy, 8725 John J. Kingman Rd., Ste 3729, Fort Belvoir, VA 
22060-6222, Fax: 703-767-5022, Email: [email protected], 
energy support and services, and bulk petroleum.
    (3) DLA Land and Maritime, ATTN: GC, 3990 E. Broad Street, Columbus, 
OH 43218-3990, Fax: 614-692-4385, Email: [email protected] 
and land weapons system supply chains.
    (4) DLA Aviation, 8000 Jefferson Davis Highway, Richmond, VA 23297-
5000, Fax: 804-279-4137, Email: [email protected] supply 
chain.
    (5) DLA Troop Support, 700 Robbins Avenue, Bldg 36, Philadelphia, PA 
19111-5096, Fax: 215-737-2151, Email: 
[email protected], clothing, and 
textiles, medical, and construction and equipment supply chains.
    (6) DLA Distribution, ATTN: DDC-GC, Mission Drive, Bldg 81, New 
Cumberland, PA 17070-5000, Fax: 717-770-5685, Email: [email protected]
Worldwide network of 25 distribution depots and nine map support 
offices.
    (7) DLA Disposition Services and DLA Logistics Information Service, 
74 Washington Avenue North, Battle Creek, MI 49017-3084, Fax: 269-961-
4534, Email: [email protected].
    (i) Disposition Services: Reutilization, transfer, demilitarization, 
and environmental disposal and reuse.
    (ii) Logistics Information Service: Manages a wide range of 
logistics information and identification systems.
    (8) DLA Document Services, 5450 Carlisle Pike, Bldg 9, P.O. Box 
2020, Mechanicsburg, PA 17055-0788, Fax: 717-605-3999, Email: 
[email protected] document production, printing services, 
digital conversion and document storage.

[[Page 869]]



                      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.
310.14 Notification when information is lost, stolen, or compromised.

                Subpart C_Collecting Personal Information

310.15 General considerations.
310.16 Forms.

                     Subpart D_Access by Individuals

310.17 Individual access to personal information.
310.18 Denial of individual access.
310.19 Amendment of records.
310.20 Reproduction fees.

Subpart E_Disclosure of Personal Information to Other Agencies and Third 
                                 Parties

310.21 Conditions of disclosure.
310.22 Non-consensual conditions of disclosure.
310.23 Disclosures to commercial enterprises.
310.24 Disclosures to the public from medical records.
310.25 Disclosure accounting.

                          Subpart F_Exemptions

310.26 Use and establishment of exemptions.
310.27 Access exemption.
310.28 General exemption.
310.29 Specific exemptions.

                   Subpart G_Publication Requirements

310.30 Federal Register publication.
310.31 Exemption rules.
310.32 System notices.
310.33 New and altered record systems.
310.34 Amendment and deletion of system notices.

                     Subpart H_Training Requirements

310.35 Statutory training requirements.
310.36 OMB training guidelines.
310.37 DoD training programs.
310.38 Training methodology and procedures.
310.39 Funding for training.

                            Subpart I_Reports

310.40 Requirement for reports.
310.41 Suspense for submission of reports.
310.42 Reports control symbol.

                          Subpart J_Inspections

310.43 Privacy Act inspections.
310.44 Inspection reporting.

                    Subpart K_Privacy Act Violations

310.45 Administrative remedies.
310.46 Civil actions.
310.47 Civil remedies.
310.48 Criminal penalties.
310.49 Litigation status sheet.
310.50 Lost, stolen, or compromised information.

             Subpart L_Computer Matching Program Procedures

310.51 General.
310.52 Computer matching publication and review requirements.
310.53 Computer matching agreements (CMAs).

Appendix A to Part 310--Safeguarding Personally Identifiable Information 
          (PII)
Appendix B to Part 310--Sample Notification Letter
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 Amendments or Deletions to System Notices 
          in Federal Register Format
Appendix H to Part 310--Litigation Status Sheet

    Authority: Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).

[[Page 870]]


    Source: 72 FR 18758, Apr. 13, 2007, unless otherwise noted.



                          Subpart A_DoD Policy



Sec. 310.1  Reissuance.

    This part consolidates into a single location (32 CFR part 310) 
Department of Defense (DoD) policies and procedures for implementing the 
Privacy Act of 1974, as amended (5 U.S.C. 552a) by authorizing the 
development, publication and maintenance of the DoD Privacy Program set 
forth by DoD Directive 5400.11 \1\ and 5400.11-R, \2\ both entitled: 
``DoD Privacy Program.''
---------------------------------------------------------------------------

    \1\ Copies may be obtained at http://www.dtic.mil/whs/directives.
    \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 OMB Circular A-130.
    (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 Office of the Inspector General of the 
Department of Defense (IG, DoD), the Defense Agencies, the DoD Field 
Activities, and all other organizational entities in the Department of 
Defense (hereinafter referred to collectively as ``the DoD 
Components'').
    (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 made under the Freedom of Information 
Act. They are processed in accordance with DoD 5400.7-R. \3\
---------------------------------------------------------------------------

    \3\ See footnote 1 to Sec. 310.3(c)(1).
---------------------------------------------------------------------------

    (2) 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 policies established 
by OPM ``Privacy Procedures for Personnel Records'' (5 CFR 297).
    (3) Requests for personal information from the General Accounting 
Office. These are processed in accordance with DoD Directive 7650.1. \4\
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    \4\ See footnote 1 to Sec. 310.3(c)(1).
---------------------------------------------------------------------------

    (4) Requests for personal information from Congress. These are 
processed in accordance with DoD Directive 5400.4 except those specific 
provisions in Subpart E--Disclosure of Personal Information to Other 
Agencies and Third Parties.



Sec. 310.4  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 purposes of disclosing records subject to the 
Privacy Act among the DoD Components, the Department of Defense is a 
considered a single agency. For all other purposes to include requests 
for access and amendment, denial of access or amendment, appeals from 
denials, and record keeping as relating to release of records to non-DoD 
Agencies, each DoD Component is considered an agency within the meaning 
of the Privacy Act.
    (c) Computer Matching Program. The computerized comparison of two or 
more automated systems of records or a system of records with non-
Federal records. Manual comparison of systems of records or a system of 
records with non-Federal records are not covered.
    (d) Confidential source. A person or organization who has furnished 
information to the Federal Government under an express promise, if made 
on or after September 27, 1975, that the person's or the organization's 
identity shall be held in confidence or under an implied promise of such 
confidentiality if this

[[Page 871]]

implied promise was made on or before September 26, 1975.
    (e) 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.
    (f) Federal benefit program. A program administered or funded by the 
Federal Government, or by any agent or State on behalf of the Federal 
Government, providing cash or in-kind assistance in the form of 
payments, grants, loans, or loan guarantees to individuals.
    (g) Federal personnel. Officers and employees of the Government of 
the United States, members of the uniformed services (including members 
of the Reserve Components), individuals entitled to receive immediate or 
deferred retirement benefits under any retirement program of the United 
States (including survivor benefits).
    (h) 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. Members of the United States Armed Forces are 
``individuals.'' Corporations, partnerships, sole proprietorships, 
professional groups, businesses, whether incorporated or unincorporated, 
and other commercial entities are not ``individuals'' when acting in an 
entrepreneurial capacity with the Department of Defense but are 
``individuals'' otherwise (e.g., security clearances, entitlement to DoD 
privileges or benefits, etc.).
    (i) Individual access. Access to information pertaining to the 
individual by the individual or his or her designated agent or legal 
guardian.
    (j) Lost, stolen, or compromised information. Actual or possible 
loss of control, unauthorized disclosure, or unauthorized access of 
personal information where persons other than authorized users gain 
access or potential access to such information for an other than 
authorized purpose where one or more individuals will be adversely 
affected. Such incidents also are known as breaches.
    (k) Maintain. To maintain, collect, use, or disseminate records 
contained in a system of records.
    (l) Non-Federal agency. Any state or local government, or agency 
thereof, which receives records contained in a system of records from a 
source agency for use in a computer matching program.
    (m) Official use. Within the context of this part, this term is used 
when officials and employees of a DoD Component have a demonstrated a 
need for the record or the information contained therein in the 
performance of their official duties, subject to DoD 5200.1-R. \5\
---------------------------------------------------------------------------

    \5\ See footnote 1 to Sec. 310.1.
---------------------------------------------------------------------------

    (n) Personal information. Information about an individual that 
identifies, links, 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; other 
demographic, biometric, personnel, medical, and financial information, 
etc. Such information also is known as personally identifiable 
information (i.e., information which can be used to distinguish or trace 
an individual's identity, such as their name, social security number, 
date and place of birth, mother's maiden name, biometric records, 
including any other personal information which is linked or linkable to 
a specified individual).
    (o) 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.
    (p) Member of the public. Any individual or party acting in a 
private capacity to include Federal employees or military personnel.
    (q) Recipient agency. Any agency, or contractor thereof, receiving 
records contained in a system of records from a source agency for use in 
a computer matching program.
    (r) Record. Any item, collection, or grouping of information, 
whatever the storage media (e.g., paper, electronic,

[[Page 872]]

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.
    (s) Risk assessment. An analysis considering information 
sensitivity, vulnerabilities, and cost in safeguarding personal 
information processed or stored in the facility or activity.
    (t) 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.
    (u) Source agency. Any agency which discloses records contained in a 
system of records to be used in a computer matching program, or any 
state or local government, or agency thereof, which discloses records to 
be used in a computer matching program.
    (v) 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.
    (w) System of records. A group of records under the control of a DoD 
Component from which personal information about an individual is 
retrieved by the name of the individual or by some other identifying 
number, symbol, or other identifying particular assigned, that is unique 
to the individual.



Sec. 310.5  Policy.

    It is DoD policy that:
    (a) The privacy of an individual is a personal and fundamental right 
that shall be respected and protected.
    (1) The Department's need to collect, maintain, use, or disseminate 
personal information about individuals for purposes of discharging its 
statutory responsibilities shall be balanced against the right of the 
individual to be protected against unwarranted invasions of their 
privacy.
    (2) The legal rights of individuals, as guaranteed by Federal law, 
regulation, and policy, shall be protected when collecting, maintaining, 
using, or disseminating personal information about individuals.
    (3) DoD personnel, to include contractors, have an affirmative 
responsibility to protect an individual's privacy when collecting, 
maintaining, using, or disseminating personal information about an 
individual.
    (4) Departmental legislative, regulatory, or other policy proposals 
shall be evaluated to ensure that privacy implications, including those 
relating to the collection, maintenance, use, or dissemination of 
personal information, are assessed, to include, when required and 
consistent with the Privacy Provision of the E-Government Act of 2002 
(44 U.S.C. 3501, Note), the preparation of a Privacy Impact Assessment.
    (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, transfer, or use, including working 
at authorized alternative worksites.
    (c) No record shall be maintained on how an individual exercises 
rights guaranteed by the First Amendment to the Constitution, except as 
follows:
    (1) When specifically authorized by statute;

[[Page 873]]

    (2) When 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 and 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 obtain a copy of those records 
or a part thereof.
    (3) Correct or amend such records once it has been determined 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. When disclosures are made, the individual shall be permitted, 
to the extent authorized by references 5 U.S.C. 552a and/or DoD 5400.11-
R, to seek an accounting of such disclosures from the DoD Component 
making the release.
    (g) Disclosure of records pertaining to personnel of the National 
Security Agency, the Defense Intelligence Agency, the National 
Reconnaissance Office, and the National Geospatial-Intelligence Agency 
shall be prohibited to the extent authorized by Public Law 86-36 (1959) 
and 10 U.S.C. 424. Disclosure of records pertaining to personnel of 
overseas, sensitive, or routinely deployable units shall be prohibited 
to the extent authorized by 10 U.S.C. 130b. Disclosure of medical 
records is prohibited except as authorized by DoD 6025.18-R. \6\
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    \6\ See footnote 1 to Sec. 310.1.
---------------------------------------------------------------------------

    (h) Computer matching programs between the DoD Components and the 
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 established rules of conduct 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.
    (j) DoD personnel, including but not limited to family members, 
retirees, contractor employees, and volunteers, shall be notified, in a 
timely manner, consistent with the requirements of DoD 5400.11-R, if 
their personal information, whether or not included in a system of 
records, is lost, stolen, or compromised.
    (k) DoD Field Activities shall receive Privacy Program support from 
the Director, Washington Headquarters Services.



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 Circular A-130.
    (3) Publish DoD 5400.11-R and other guidance, including 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 (see Sec. 310.9).
    (5) Supervise and oversee the activities of the Defense Privacy 
Office (see Sec. 310.9).

[[Page 874]]

    (b) The Director, WHS, under the DA&M, shall provide Privacy Program 
support for DoD Field Activities.
    (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 (310.9).
    (d) The Secretaries of the Military Departments and the Heads of the 
Other DoD Components, except as noted in Sec. 310.5(k), 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 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, OMB Circular 
A-130, and DoD 5400.11-R, for assigned, employed and detailed, to 
include contractor, personnel and individuals having primary 
responsibility for implementing the DoD Privacy Program.
    (4) Ensure all Component legislative proposals, policies, or 
programs having privacy implications, such as the DoD Privacy Impact 
Assessment Program, are evaluated to ensure consistency with the 
information privacy principles of this part and DoD 5400.11-R.
    (5) Assess the impact of technology on the privacy of personal 
information and, when feasible, adopt privacy-enhancing technology both 
to preserve and protect personal information contained in Component 
systems of records and to permit auditing of compliance with the 
requirements of this part and DoD 5400.11-R.
    (6) Ensure 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.
    (7) Submit reports, consistent with the requirements of DoD 5400.11-
R, as mandated by 5 U.S.C. 552a and OMB Circular A-130, and DoD 
Directive 5500.1, and as otherwise directed by the DPO.
    (e) The Secretaries of the Military Departments shall provide 
support to the Combatant Commands, as identified in DoD Directive 
5100.3, \7\ in the administration of the DoD Privacy Program.
---------------------------------------------------------------------------

    \7\ See footnote 1 to Sec. 310.1.
---------------------------------------------------------------------------



Sec. 310.7  Information requirements.

    The reporting requirements in Sec. 310.6(d)(7) 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 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

[[Page 875]]

the system of records shall be aware of their responsibilities and are 
properly trained to safeguard 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 DPO for publication in the Federal 
Register.
    (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 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 DA&M, OSD, who shall serve as the Chair; the Director of 
the DPO, DA&M, 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 Health Affairs; the 
Assistant Secretary of Defense for Networks and Information Integration 
(ASD) (NII)/Chief Information Officer (CIO); the Director, Executive 
Services and Communications Directorate, WHS; the GC, DoD; and the 
Director for Information Technology Management Directorate (ITMD), WHS. 
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 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 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 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 DPO, DA&M, 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) (NII)/CIO; the GC, DoD; the Inspector General, DoD; the ITMD, 
WHS; and the Director, Defense Manpower Data Center. The designees also 
may be the principal points of contact 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.
    (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, under 5 U.S.C. 552a, 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, DPO, DA&M, who shall serve as 
the Chair and the Executive Secretary; the

[[Page 876]]

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. This 
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.
    (d) The DPO--(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 DoD legislative, regulatory, and other policy proposals 
which implicate information privacy issues relating to the Department's 
collection, maintenance, use, or dissemination of personal information, 
to include any testimony and comments having such implications under DoD 
Directive 5500.1.
    (vi) 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 OMB 
and the Congress, consistent with 5 U.S.C. 552a, OMB Circular A-130, and 
DoD 5400.11-R.
    (vii) 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.
    (viii) Develop, coordinate, and maintain all DoD computer matching 
agreements, to include the submission of required match notices for 
publication in the Federal Register and the provision of advance 
notification to the OMB and the Congress, consistent with 5 U.S.C. 552a, 
OMB Circular A-130, and DoD 5400.11-R.
    (ix) Provide advice and support to the DoD Components to ensure:
    (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 either a manual and/or automated system of records or 
transferred by electronic or non-electronic means; and
    (C) Specific procedures and safeguards shall be developed and 
implemented when personal data is collected and maintained for research 
purposes.
    (x) Serve as the principal POC for coordination of privacy and 
related matters with the OMB and other Federal, State, and local 
governmental agencies.
    (xi) Compile and submit the ``Biennial Matching Activity Report'' to 
the OMB as required by OMB Circular A-

[[Page 877]]

130 and DoD 5400.11-R, and the Quarterly and Annual Federal Information 
Security Management Agency (FISMA) Privacy Reports, as required by 44 
U.S.C. 3544(c), such other reports as may be required.
    (xii) 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 310.4(r)) 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 retrieved by name or other personal 
identifier to become a system of records for the purpose of this part.
    (i) When records are contained in an automated (Information 
Technology) system that is capable of being manipulated to retrieve 
information about an individual, this does not automatically transform 
the system into a system of records as defined in this part.
    (ii) In determining whether an automated system is a system of 
records that is subject to this part, retrieval policies and practices 
shall be evaluated. If DoD Component policy is to retrieve personal 
information by the name or other unique personal identifier, it is a 
system of records. If DoD Component policy prohibits retrieval by name 
or other identifier, but the actual practice of the Component is to 
retrieve information by name or identifier, even if done infrequently, 
it is a system of records.
    (2) If records are retrieved by name or personal identifier, a 
system notice must be submitted in accordance with Sec. 310.33.
    (3) If records are not retrieved by name or personal identifier but 
then are rearranged in such a manner that they are retrieved by name or 
personal identifier, a new systems notice must be submitted in 
accordance with Sec. 310.33.
    (4) 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. 310.34.
    (c) Relevance and necessity. Information or records about an 
individual shall only be maintained in a system of records that is 
relevant and necessary to accomplish a DoD Component 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 authorizes maintaining personal 
information in each system of records. The existence 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. If a statute or Executive 
Order does not expressly direct the creation of a system of records, but 
the establishment of a system of records is necessary in order to 
discharge the requirements of the statute or Executive Order, the 
statute or Executive Order shall be cited as authority.
    (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.

[[Page 878]]

    (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 alteration or amendment is prepared (see Sec. 310.33 
and Sec. 310.34).
    (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 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; 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 for which 
retention is no longer justified. Also delete 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. 3303a, 
Examination by Archivist of Lists and Schedules of Records Lacking 
Preservation Value; Disposal of Records.''



Sec. 310.11  Standards of accuracy.

    (a) Accuracy of information maintained. Maintain all personal 
information 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 determinations 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 the information to be disclosed is 
accurate, relevant, timely, and complete for the purpose it is being 
maintained (see Sec. 310.21(d)).



Sec. 310.12  Government contractors.

    (a) Applicability to government contractors. (1) When a DoD 
Component contract requires the operation or maintenance of a system of 
records or a portion of a system of records or requires the performance 
of any activities associated with maintaining a system of records, 
including the collection, use, and dissemination of records, 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 criminal provisions 
of 5 U.S.C 552a(i) during the performance of the contract. Consistent 
with the Federal Acquisition Regulation (FAR), Part 24.1, contracts 
requiring the maintenance or operation of a system of records or the 
portion of a system of records shall include in the solicitation and 
resulting contract such terms as are prescribed by the FAR.
    (2) If the contractor must use, have access to, or disseminate 
individually identifiable information subject to this part in order to 
perform any part of a contract, and the information would have been 
collected, maintained, used, or disseminated by the DoD Component but 
for the award of the contract, these contractor activities are subject 
to this part.
    (3) The restriction in paragraphs (a)(1) and (2) of this section 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

[[Page 879]]

    (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 commingled with training 
records of other students (for example, admission forms, transcripts, 
academic counseling 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. 3711(e).
    (v) Maintained by the contractor incident to normal business 
practices and operations.
    (4) The DoD Components shall publish instructions that:
    (i) Furnish DoD Privacy Program guidance to their personnel who 
solicit, award, or administer Government contracts;
    (ii) Inform prospective contractors of their responsibilities, and 
provide training as appropriate, regarding the DoD Privacy Program; and
    (iii) Establish an internal system of contractor performance review 
to ensure compliance with the DoD Privacy Program.
    (b) Contracting procedures. The Defense Acquisition Regulations 
Council shall develop 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 Sec. 310.12(b).
    (d) Disclosure of records to contractors. Disclosure of records 
contained in a system of records by a DoD Component to a contractor for 
use in the performance of a DoD contract is considered a disclosure 
within the Department of Defense (see Sec. 310.21(b)). The contractor 
is considered the agent of the contracting DoD Component and to be 
maintaining and receiving the records for that Component.



Sec. 310.13  Safeguarding personal information.

    (a) General responsibilities. DoD Components shall establish 
appropriate administrative, technical and physical safeguards to ensure 
that the records in each system of records are protected from 
unauthorized access, alteration, or disclosure and that their 
confidentiality is preserved and protected. Records shall be protected 
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 Freedom of 
Information Exemption Numbers 6 and 7 of 286.12, subpart C of 32 CFR 
part 286 (``DoD Freedom of Information Act Program'') as ``For Official 
Use Only,'' and safeguard them accordingly, in accordance with DoD 
5200.1-R even if they are not actually marked ``For Official Use Only.''
    (3) Personal information that does not meet the criteria discussed 
in paragraph (b)(2) of this section shall be accorded 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 processed in an information 
technology system to protect against threats unique to an automated 
environment (see appendix A).
    (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 are those 
approved by the Component or the National Institute of Standards and 
Technology. For paper records, disposal methods, such as tearing, 
burning, melting, chemical decomposition, pulping, pulverizing, 
shredding, or mutilation are acceptable. For electronic records, and 
media, disposal methods, such as overwriting, degaussing, 
disintegration,

[[Page 880]]

pulverization, burning, melting, incineration, shredding or sanding, are 
acceptable.
    (2) Disposal methods are considered adequate if the personal data is 
rendered unrecognizable or beyond reconstruction.



Sec. 310.14  Notification when information is lost, stolen, or compromised.

    (a) If records containing personal information are lost, stolen, or 
compromised, the potential exists that the records may be used for 
unlawful purposes, such as identity theft, fraud, stalking, etc. The 
personal impact on the affected individual may be severe if the records 
are misused. To assist the individual, the Component shall promptly 
notify the individual of any loss, theft, or compromise (See also, Sec. 
310.50 for reporting of the breach to Senior Component Official for 
Privacy and the Defense Privacy Office).
    (1) The notification shall be made whenever a breach occurs that 
involves personal information pertaining to a service member, civilian 
employee (appropriated or non-appropriated fund), military retiree, 
family member, DoD contractor, other persons that are affiliated with 
the Component (e.g., volunteer), and/or any other member of the public 
on whom information is maintained by the Component or by a contractor on 
behalf of the Component.
    (2) The notification shall be made as soon as possible, but not 
later than 10 working days after the loss, theft, or compromise is 
discovered and the identities of the individuals ascertained.
    (i) The 10 day period begins to run after the Component is able to 
determine the identities of the individuals whose records were lost.
    (ii) If the Component is only able to identify some but not all of 
the affected individuals, notification shall be given to those that can 
be identified with follow-up notifications made to those subsequently 
identified.
    (iii) If the Component cannot readily identify the affected 
individuals or will not be able to identify the individuals, the 
Component shall provide a generalized notice to the potentially impacted 
population by whatever means the Component believes is most likely to 
reach the affected individuals.
    (3) When personal information is maintained by a DoD contractor on 
behalf of the Component, the contractor shall notify the Component 
immediately upon discovery that a loss, theft or compromise has 
occurred.
    (i) The Component shall determine whether the Component or the 
contractor shall make the required notification.
    (ii) If the contractor is to notify the impacted population, it 
shall submit the notification letters to the Component for review and 
approval. The Component shall coordinate with the Contractor to ensure 
the letters meet the requirements of Sec. 310.14.
    (4) Subject to paragraph (a)(2) of this section, the Component shall 
inform the Deputy Secretary of Defense of the reasons why notice was not 
provided to the individuals or the affected population within the 10-day 
period.
    (i) If for good cause (e.g., law enforcement authorities request 
delayed notification as immediate notification will jeopardize 
investigative efforts), notice can be delayed, but the delay shall only 
be for a reasonable period of time. In determining what constitutes a 
reasonable period of delay, the potential harm to the individual must be 
weighed against the necessity for delayed notification.
    (ii) The required notification shall be prepared and forwarded to 
the Senior Component Official for Privacy who shall forward it to the 
Defense Privacy Office. The Defense Privacy Office, in coordination with 
the Office of the Under Secretary of Defense for Personnel and 
Readiness, shall forward the notice to the Deputy Secretary.
    (5) The notice to the individual, at a minimum, shall include the 
following:
    (i) The individuals shall be advised of what specific data was 
involved. It is insufficient to simply state that personal information 
has been lost. Where names, social security numbers, and dates of birth 
are involved, it is critical that the individual be advised that these 
data elements potentially have been compromised.
    (ii) The individual shall be informed of the facts and circumstances 
surrounding the loss, theft, or compromise. The description of the loss 
should be sufficiently detailed so that

[[Page 881]]

the individual clearly understands how the compromise occurred.
    (iii) The individual shall be informed of what protective actions 
the Component is taking or the individual can take to mitigate against 
potential future harm. The Component should refer the individual to the 
Federal Trade Commission's public Web site on identity theft at http://
www.consumer.gov/idtheft/con--steps.htm. The site provides valuable 
information as to what steps individuals can take to protect themselves 
if their identities potentially have been or are stolen.
    (iv) A sample notification letter is at appendix B.
    (b) The notification shall be made whether or not the personal 
information is contained in a system of records (See Sec. 310.10(a)).



                Subpart C_Collecting Personal Information



Sec. 310.15  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 result in adverse determination 
about an individual's rights, privileges, or benefits under any Federal 
program.
    (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 the SSN be furnished or if the SSN is furnished to a 
DoD Component maintaining a system of records in existence that was 
established and in operation before January 1, 1975, and the SSN was 
required under a statute or regulation adopted prior to this date for 
purposes of verifying the identity of an individual, this restriction 
does not apply.
    (2) When an individual is requested to provide his or her SSN, he or 
she must be told:
    (i) What uses 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.
    (4) E.O. 9397,''Numbering System for Federal Accounts Relating to 
Individual Persons'', November 30, 1943, authorizes solicitation and use 
of SSNs as a numerical identifier for Federal personnel that are 
identified in most Federal record systems. However, it does not 
constitute authority for mandatory disclosure of the SSN.
    (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. The notification in paragraph (b)(2) of this section shall be 
provided the individual when originally soliciting his or her SSN. The 
notification is not required if an individual is requested to furnish 
his SSN for identification purposes and the SSN is solely used to verify 
the SSN that is contained in the records. However, if the SSN is 
solicited and retained for any purposes other than verifying the 
existing SSN in the records, the requesting official shall provide the 
individual the notification required by paragraph (b)(2) of this 
section.
    (6) Components shall ensure that the SSN is only collected when 
there is a demonstrated need for collection. If collection is not 
essential for the purposes for which the record or records are being 
maintained, it should not be solicited.
    (7) DoD Components shall continually review their use of the SSN to 
determine whether such use can be eliminated, restricted, or concealed 
in Component business processes, systems and paper and electronic forms. 
While use of the SSN may be essential for program integrity and national 
security when information about an individual is disclosed outside the 
DoD, it may not be as critical when the information is being used for 
internal Departmental purposes.

[[Page 882]]

    (c) Collecting personal information from third parties. When 
information being solicited is of an objective nature and is not subject 
to being altered, the information should first be collected from the 
individual. But it may not be practicable to collect personal 
information first 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 supervisor comments as to 
job knowledge, duty performance, or other opinion-type evaluations;
    (3) When obtaining information first from the individual may impede 
rather than advance an investigative inquiry into the actions of the 
individual; and
    (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 records, a Privacy Act Statement is required regardless of the 
medium used to collect the information (forms, personal interviews, 
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 incorporated 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 Federal statute or Executive Order that authorizes 
collection of the requested information (See Sec. 310.10(d)).
    (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. 310.22(d));
    (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 (but see Sec. 310.16(a)).
    (5) The individual normally is not required to sign the Privacy Act 
Statement.
    (6) The individual shall be provided 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 the DoD Component is authorized to 
impose a penalty on the individual for failure to provide the requested 
information. If a penalty cannot be imposed, disclosing the information 
is always voluntary.



Sec. 310.16  Forms.

    (a) DoD Forms. (1) DoD Instruction 7750.7 \8\ provides guidance for 
preparing Privacy Act Statements for use with forms (see also paragraph 
(b) of this section).
---------------------------------------------------------------------------

    \8\ See footnote 1 to Sec. 310.1.
---------------------------------------------------------------------------

    (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;

[[Page 883]]

    (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 must have a Privacy Act 
Statement. Always ensure the statement prepared by the originating 
Agency is adequate for the purpose for which the form shall 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.
    (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. 310.17  Individual access to personal information.

    (a) Individual access. (1) The access provisions of this part are 
intended for use by individuals who seek access to records about 
themselves that are maintained in a system of records. Release of 
personal information to individuals under this part is not considered 
public release of the information.
    (2) Make available to the individual to whom the record pertains all 
of the personal information contained in the system of records except 
where access may be denied pursuant to an exemption claimed for the 
system (see subpart F to this part). However, when the access provisions 
of this subpart are not available to the individual due to a claimed 
exemption, the request shall be processed to provide information that is 
disclosable pursuant to the DoD Freedom of Information Act program (see 
32 CFR, part 286).
    (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 
procedural rules or the system notice.
    (c) Verification of identity. (1) Before granting access to personal 
data, an individual may be required to provide reasonable proof 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 that 
normally would be available under the DoD Freedom of Information Act 
Program (see 32 CFR, part 286).
    (iii) When an individual seeks personal access to records pertaining 
to themselves in person, proof of identity is normally provided by 
documents that an individual ordinarily possesses, such as employee and 
military identification cards, driver's license, other licenses, permits 
or passes used for routine identification purposes.
    (iv) 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 and information that 
is ordinarily only known to the individual. If the information sought is 
of a sensitive nature, additional identifying data may be required. An 
unsworn declaration under penalty of perjury (28 U.S.C. 1746, ``Unsworn 
Declaration under Penalty of Perjury'') or notarized signatures are 
acceptable as a means of proving the identity of the individual.
    (A) If an unsworn declaration is executed within the United States, 
its territories, possessions, or commonwealths, it shall read ``I 
declare (or certify, verify, or state) under penalty of perjury that the 
foregoing is true and correct. Executed on (date). (Signature).''
    (B) If an unsworn declaration is executed outside the United States, 
it shall read ``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

[[Page 884]]

correct. Executed on (date). (Signature).''
    (v) 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.
    (vi) 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. 
310.15(b).)
    (vii) The individual is not required to explain or justify his or 
her need for access to any record under this part.
    (viii) Only a denial authority may deny access and the denial must 
be in writing and contain the information required by 310.18.
    (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 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. 310.19(b)is 
considered to be the original. See paragraph (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 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 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) Access to medical records is not 
only governed by the access provisions of this part but also by the 
access provisions of DoD 6025.18-R. The Privacy Act, as implemented by 
this part, however, provides greater access to an individual's medical 
record than that authorized by DoD 6025.18-R.
    (2) Medical records in a system of records shall be disclosed to the 
individual to whom they pertain, even if a minor, but when it is 
believed that access to such records could have an adverse effect on the 
mental or physical health of the individual or may result in harm to a 
third party, the following special procedures apply.
    (i) If a determination is made in consultation with a medical doctor 
that release of the medical information may be harmful to the mental or 
physical health of the individual or to a third party, the Component 
shall:
    (A) Send the record to a physician named by the individual; and
    (B) 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).
    (ii) The Component shall not require the physician to request the 
records for the individual.
    (3) 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 under the Privacy Act (see paragraph (a) of Sec. 310.18).
    (4) If records are provided the designated physician, but the 
physician declines or refuses to provide the records to the individual, 
the DoD Component is under an affirmative duty to take action to deliver 
the records to the individual by whatever means deemed appropriate. Such 
action should be taken expeditiously especially if there has been a 
significant delay between the time the records were furnished the 
physician and the decision by the physician not to release the records.

[[Page 885]]

    (5) Access to a minor's medical records may be granted to his or her 
parents or legal guardians. However, access is subject to the 
restrictions as set forth at paragraph C9.7.3 of DoD 6025.18-R.
    (6) All members of the Military Services and all married persons are 
not considered minors regardless of age, and the parents of these 
individual do not have access to their medical records without written 
consent of the individual.
    (g) Access to information compiled in anticipation of civil action 
(see Sec. 310.27).
    (h) Non-Agency 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 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 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) may transform these notes into ``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.
    (i) Relationship between the Privacy Act (5 U.S.C. 552a) and the 
FOIA (5 U.S.C. 552). 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. 
The below guidelines are provided to ensure requesters are given the 
maximum amount of information as authorized under both statutes. (1) 
Process requests for individual access as follows:
    (i) If the records are required to be released under the Privacy 
Act, the FOIA (32 CFR part 286) does not bar release even if a FOIA 
exemption could be invoked if the request had been processed solely 
under FOIA. Conversely, if the records are required to be released under 
the FOIA, the Privacy Act does not bar disclosure.
    (ii) 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 records processed under the provisions of this part 
and the FOIA (32 CFR part 286). If the system of records is exempt from 
the access provisions of this part, and if the records, or any portion 
thereof, are exempt under the FOIA, the requester shall be advised and 
informed of the appropriate Privacy and FOIA exemption. Only if the 
records can be denied under both statutes may the Department withhold 
the records from the individual. Appeals shall be processed under both 
Acts.
    (iii) Requesters who seek records about themselves that are not 
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 the FOIA (32 CFR part 286), because the access provisions of this 
part do not apply. Appeals shall be processed under the FOIA.
    (iv) 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 
this part and the FOIA (32 CFR part 286). If the system of records is 
exempt from the access provisions of this part, and if the records, or 
any portion thereof, are exempt under the FOIA, the requester

[[Page 886]]

shall be advised and informed of the appropriate Privacy and FOIA 
exemption. Appeals shall be processed under both Acts.
    (v) 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 and FOIA, will have their requests processed under the FOIA 
(32 CFR part 286), because the access provisions of this part do not 
apply. Appeals shall be processed under the FOIA.
    (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 or imply either Act or cite 
the wrong Act or part.
    (3) Explain to the requester which Act(s) was(were) used when 
granting or denying access under either Act.
    (j) Time limits. DoD Components normally shall acknowledge requests 
for access within 10 working days after receipt and provide access 
within 30 working days.
    (k) Privacy case file. Establish a Privacy Act case file when 
required. (See paragraph (p) of Sec. 310.19.)



Sec. 310.18  Denial of individual access.

    (a) Denying individual access. (1) An individual may be denied 
access to a record pertaining to him or her only if the record:
    (i) Was compiled in reasonable anticipation of a civil action or 
proceeding (see Sec. 310.27).
    (ii) Is in a system of records that has been exempted from the 
access provisions of this part under one of the permitted exemptions. 
(See Sec. 310.28 and Sec. 310.29.)
    (iii) 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. (See Sec. 310.26(c).).
    (iv) Is contained in a system of records for which access may be 
denied under some other Federal statute that excludes the record from 
coverage of the Privacy Act (5 U.S.C. 552a).
    (2) Where a basis for denial exists, do not deny the record, or 
portions of the record, if denial does not serve a 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. 310.17) or to pay fees (see Sec. 310.20).
    (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 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:
    (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;

[[Page 887]]

    (B) The date of the appeal determination;
    (C) The name, title, and signature of the appeal authority; and
    (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 appeal 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 appeal 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 the 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 5 CFR part 297 as well as applicable Component 
procedures.
    (3) When a DoD Component refuses to grant access to a record in an 
OPM system, the Component shall advise the individual that his or her 
appeal must be directed to the Assistant Director for Workforce 
Information, Personnel Systems and Oversight Group, U.S. Office of 
Personnel Management, 1900 E Street, NW., Washington, DC, in accordance 
with the procedures of 5 CFR part 297.



Sec. 310.19  Amendment of records.

    (a) Individual review and correction. Individuals are encouraged to 
review the personal information being maintained about them by the DoD 
Components periodically and to avail themselves of the procedures 
established by this part and other 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 records has been exempted specifically from the 
amendment procedures of this part under paragraph (b) of Sec. 310.26. 
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 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 identification procedures shall not be used to discourage 
legitimate requests or to burden needlessly or delay the amendment 
process. (See paragraph (c) of Sec. 310.17.)

[[Page 888]]

    (e) Limits on attacking evidence previously submitted. (1) The 
amendment process is not intended to permit the alteration of records 
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; and
    (2) The relevancy, timeliness, completeness, and necessity of the 
recorded information.
    (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 record, 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 DoD 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:
    (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;
    (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

[[Page 889]]

    (iv) The individual may seek a judicial review of the decision not 
to amend.
    (3) If the record is amended, ensure:
    (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 (l) of this section); and
    (iii) The requester is notified 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 the DoD Components. (1) 
The records in all systems of records controlled by the 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 5 CFR part 297. The Component denial authority may deny 
a request. However, when an amendment request is denied, the DoD 
Component shall advise the individual that his or her appeal must be 
directed to the Assistant Director for Workforce Information, Personnel 
Systems and Oversight Group, U.S. Office of Personnel Management, 1900 E 
Street, Washington, DC 20415 in accordance with the procedures of 5 CFR 
297.
    (m) Statements of disagreement submitted by individuals. (1) If the 
appellate 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 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 programmed to accept 
statements of disagreement shall be annotated or coded so 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.
    (o) The DoD Component statement of reasons for refusing to amend. 
(1) A statement of reasons for refusing to amend may be included with 
any record for which a statement of disagreement is filed.
    (2) Include in this statement only the reasons furnished to the 
individual for not amending the record. Do not comment on or respond to 
comments contained in the statement of disagreement. Normally, both 
statements are filed together.
    (3) When disclosing information for which a statement of reasons has 
been filed, a copy of the statement may be released whenever the record 
and the statement of disagreement are disclosed.
    (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:

[[Page 890]]

    (i) The request for amendment and 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 that 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 (p)(5) 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 the 
original record in the basic record system if the request for amendment 
is granted and the record has been amended.
    (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 the Component's statement of reasons for refusing to 
amend (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 or partial 
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) 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.



Sec. 310.20  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).
    (iii) No fees shall be charged when the record may be obtained 
without charge under any other Regulation, Directive, or statute.
    (iv) 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;
    (3) Copying records for the 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 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. A DoD Component may, however, set 
aside this automatic fee waiver provision when, on the basis of good 
evidence, it determines the waiver of fees is not in the public 
interest.
    (2) Decisions to waive 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. 310.22(i)). 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

[[Page 891]]

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 32 CFR part 286.



Subpart E_Disclosure of Personal Information to Other Agencies and Third 
                                 Parties



Sec. 310.21  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 unless the records are contained in a system for which 
an exemption to the access provisions of this part has been claimed.
    (2) Requests by other individuals (third parties) for the records of 
individuals that are contained in a system of records shall be processed 
under 32 CFR part 286 except for requests by the parents of a minor or 
the legal guardian of an individual for access to the records pertaining 
to the minor or individual.
    (b) Disclosures among the DoD Components. For the purposes of 
disclosure and disclosure accounting, the Department of Defense is 
considered a single agency (see Sec. 310.22(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 authorized pursuant to one of the specific non-
consensual conditions of disclosure as set forth in Sec. 310.22.
    (d) Validation before disclosure. Except for releases made in 
accordance with 32 CFR part 286, the following steps shall be taken 
before disclosing any records to any recipient outside the Department of 
Defense, other than a Federal agency or the individual to whom it 
pertains:
    (1) Ensure 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 
this 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.



Sec. 310.22  Non-consensual conditions of disclosure.

    (a) Disclosures within the Department of Defense. (1) Records 
pertaining to an individual may be disclosed to a DoD official or 
employee provided:
    (i) The requester has a need for the record in the performance of 
his or her assigned duties. The requester shall articulate in sufficient 
detail why the records are required so the custodian of the records may 
make an informed decision regarding their release;
    (ii) The intended use of the record generally relates to the purpose 
for which the record is maintained; and
    (iii) Only those records as are minimally required to accomplish the 
intended use are disclosed. The entire record is not released if only a 
part of the record will be responsive to the request.
    (2) Rank, position, or title alone does not authorize access to 
personal information about others.
    (b) Disclosures required by the FOIA. (1) All records must be 
disclosed if their release is required by FOIA (5 U.S.C. 552), as 
implemented by 32 CFR part 286. The FOIA requires records be made 
available to the public unless withholding is authorized pursuant to one 
of nine exemptions or one of three law enforcement exclusions under the 
Act.
    (i) The DoD Component must be in receipt of a FOIA request and a 
determination made that the records are not

[[Page 892]]

withholdable pursuant to a FOIA exemption or exclusion before the 
records may be disclosed.
    (ii) Records that have traditionally been released to the public by 
the Components may be disclosed whether or not a FOIA request has been 
received.
    (2) The standard for exempting most personal records, such as 
personnel, medical, and similar records, is FOIA Exemption 6 (32 CFR 
part 286.12(e)). Under that exemption, records can be withheld when 
disclosure, if other than to the individual about whom the information 
pertains, would result in a clearly unwarranted invasion of the 
individual's personal privacy.
    (3) The standard for exempting personal records compiled for law 
enforcement purposes, including personnel security investigation 
records, is FOIA Exemption 7(C) (32 CFR part 286.12(g)). Under that 
exemption, records can be withheld when disclosure, if other than to the 
individual about whom the information pertains, would result in an 
unwarranted invasion of the individual's personal privacy.
    (4) If records or information are exempt from disclosure pursuant to 
the standards set forth in paragraphs (b)(2) and/or (b)(3) of this 
section, and the records are contained in a system of records (See Sec. 
310.10(a) of subpart B, the Privacy Act (5 U.S.C. 552a) prohibits 
release.
    (5) Personal information that is normally releasable--(i) DoD 
civilian employees. (A) Some examples of personal information regarding 
DoD civilian employees that normally may be released without a clearly 
unwarranted invasion of personal privacy include:
    (1) Name.
    (2) Present and past position titles.
    (3) Present and past grades.
    (4) Present and past annual salary rates.
    (5) Present and past duty stations.
    (6) Office and duty telephone numbers.
    (7) Position descriptions.
    (B) All disclosures of personal information regarding Federal 
civilian employees shall be made in accordance with OPM release policies 
(see 5 CFR part 293.311).
    (ii) Military members. (A) 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:
    (1) Full name.
    (2) Rank.
    (3) Date of rank.
    (4) Gross salary.
    (5) Past duty assignments.
    (6) Present duty assignment.
    (7) Future assignments that are officially established.
    (8) Office or duty telephone numbers.
    (9) Source of commission.
    (10) Promotion sequence number.
    (11) Awards and decorations.
    (12) Attendance at professional military schools.
    (13) Duty status at any given time.
    (14) Home of record (identification of the state only).
    (15) Length of military service.
    (16) Basic Pay Entry Date.
    (17) Official Photo.
    (B) All disclosures of personal information regarding military 
members shall be made in accordance with 32 CFR part 286.
    (iii) Civilian employees not under the authority of OPM. (A) While 
it is not possible to identify categorically those items of personal 
information that must be released regarding civilian employees not 
subject to 5 CFR parts 293, 294, and 297, such as nonappropriated fund 
employees, normally the following items may be released without a 
clearly unwarranted invasion of personal privacy:
    (1) Full name.
    (2) Grade or position.
    (3) Date of grade.
    (4) Gross salary.
    (5) Present and past assignments.
    (6) Future assignments, if officially established.
    (7) Office or duty telephone numbers.
    (B) All releases of personal information regarding civilian 
personnel in this category shall be made in accordance with 32 CFR part 
286.
    (6) When military or civilian personnel are assigned, detailed, or 
employed by the National Security Agency, the Defense Intelligence 
Agency,

[[Page 893]]

the National Reconnaissance Office, or the National Geospatial-
Intelligence agency, information about such personnel may only be 
disclosed as authorized by Public Law 86-36 (``National Security Agency-
Officers and Employees'') and 10 U.S.C 424 (``Disclosure of 
Organizational and Personnel Information: Exemption for Specified 
Intelligence Agencies''). When military and civilian personnel are 
assigned, detailed or employed by an overseas unit, a sensitive unit, or 
to a routinely deployable unit, information about such personnel may 
only be disclosed as authorized by 10 U.S.C. 130b (``Personnel in 
Overseas, Sensitive, or Routinely Deployed Units: Nondisclosure of 
Personally Identifying Information'').
    (7) Information about military or civilian personnel that otherwise 
may be disclosable consistent with Sec. 310.22(b)(5) may not be 
releasable if a requester seeks listings of personnel currently or 
recently assigned/detailed/employed within a particular component, unit, 
organization or office with the Department of Defense if the disclosure 
of such a list would pose a privacy or security threat.
    (c) Disclosures for established routine uses. (1) Records may be 
disclosed outside the Department of Defense pursuant to a routine use 
that has been established for the system of records that contains the 
records.
    (2) A routine use shall:
    (i) Be compatible with the purpose for which the record was 
collected;
    (ii) Identify the persons or organizations to whom the record may be 
released;
    (iii) Identify specifically the intended uses of the information by 
the persons or organization; and
    (iv) Have been published in the Federal Register (see Sec. 
310.32(i)).
    (3) If a Federal statute or an E.O. of the President directs records 
contained in a system of records be disclosed outside the Department of 
Defense, the statute or E.O. serves as authority for the establishment 
of a routine use.
    (4) New or altered routine uses must be published in the Federal 
Register at least 30 days before any records may be disclosed pursuant 
to the terms of the routine use (see subpart G of this part).
    (5) In addition to the specific routine uses established for each of 
the individual system notices, blanket routine uses have been 
established (see appendix 3) that are applicable to all DoD system of 
records. However, in order for the blanket routine uses to apply to a 
specific system of records, the system notice shall expressly state that 
the blanket routine uses apply. These blanket routine uses are published 
only at the beginning of the listing of system notices for each 
Component in the Federal Register.
    (d) Disclosures to the Bureau of the Census. Records in DoD 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 pursuant to the 
provisions of 13 U.S.C. 6 (``Information from other Federal Departments 
and Agencies'').
    (e) Disclosures for statistical research or reporting. (1) Records 
may be disclosed for statistical research or reporting but only after 
the intended recipient provides, in writing, the purpose for which the 
records are sought and assurances that the records will be used only for 
statistical research or reporting purposes.
    (2) The records shall be transferred to the requester in a form that 
is not individually identifiable. DoD Components disclosing records 
under this provision are required to assure information being disclosed 
cannot reasonably be used in any way to make determinations about 
individuals.
    (3) The records will not be used, in whole or in part, to make any 
determination about the rights, benefits, or entitlements of specific 
individuals.
    (4) The written statement by the requester shall be made part of the 
Component's accounting of disclosures (See paragraph (a) of 310.25).
    (f) Disclosures to the National Archives and Records Administration 
(NARA), General Services Administration (GSA). (1) Records may be 
disclosed to the NARA if they:
    (i) Have historical or other value to warrant continued 
preservation; or

[[Page 894]]

    (ii) For evaluation by the Archivist of the United States, or his or 
her designee, 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 records 
are owned by the Component and remain under the control of the 
transferring Component. FRC personnel are considered agents of the 
Component that retains control over the records. No disclosure 
accounting is required for the transfer of records to the FRCs.
    (g) Disclosures for law enforcement purposes. (1) Records may be 
disclosed 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) Blanket requests for any and all records pertaining to an 
individual shall not be honored absent justification.
    (3) When a record is released to a law enforcement activity under 
this subparagraph, the disclosure accounting (see Sec. 310.25) for the 
release shall not be made available to the individual to whom the record 
pertains if the law enforcement activity requests that the disclosure 
not be disclosed.
    (4) The blanket routine use for law enforcement (appendix C, section 
A) applies to all DoD Component systems notices (see paragraph (b)(6) of 
this section). This permits Components, on their own initiative, to 
report indications of violations of law found in a system of records to 
a law enforcement activity.
    (5) Disclosures may be made to Federal, State, or local, but not 
foreign law enforcement agencies. Disclosures to Foreign law enforcement 
agencies may be made if a routine use has been established for the 
system of records from which the records are to be released.
    (h) Emergency disclosures. (1) Records may be disclosed 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, the Component shall notify the 
individual who is the subject of the record. Notification sent to the 
last known address of the individual as known to the Component is 
sufficient.
    (3) The specific data to be disclosed is at the discretion of the 
Component.
    (4) Emergency medical information may be released by telephone.
    (i) Disclosures to Congress. (1) Records may be disclosed 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. Disclosure is only authorized when in 
response to an official request on behalf of either House, committee, 
subcommittee, or joint committee.
    (2) Requests from members of Congress who are seeking records in 
their individual capacity or on behalf of a constituent.
    (i) Requests made in their individual capacity. Request for records 
shall be processed under the provisions of DoD 5400.7-R.
    (ii) Requests made on behalf of constituents.
    (A) The blanket routine use for ``Congressional Inquiries'' (see 
appendix C, section D) applies to all systems. When an individual 
requests the assistance of the Congressional member, the blanket routine 
use permits the disclosure of records pertaining to the individual 
without the express written consent of the individual.
    (B) 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.
    (C) When a Congressional inquiry indicates that the request is being 
made

[[Page 895]]

on the basis of a request from the individual to whom the record 
pertains, consent can be inferred even if the constituent request is not 
provided the Component. The verbal statement by a Congressional staff 
member is acceptable to establish that a request has been received by 
the Member of Congress from the person to whom the records pertain.
    (D) If the constituent inquiry is being made on behalf of someone 
other than the individual to whom the record pertains, the Member of 
Congress shall be provided only that information releasable under DoD 
5400.7-R. Advise the Congressional member that the written consent of 
the individual to whom the record pertains is required before any 
additional information may be disclosed. Do not contact individuals to 
obtain their consents for release to Congressional members unless a 
Congressional office specifically requests that this be done.
    (E) Nothing in paragraph (i)(2)(ii)(A) 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.
    (3) See paragraph (e) of Sec. 310.20 for the policy on assessing 
fees for Members of Congress.
    (4) Make a disclosure accounting each time a record is disclosed to 
either House of Congress, to any committee, joint committee, or 
subcommittee of Congress, or to any congressional member.
    (j) Disclosures to the General Accountability Office. Records may be 
disclosed to the Comptroller General, or any of his authorized 
representatives, in the course of the performance of the duties of the 
General Accountability Office.
    (k) 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.
    (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 information as to when the process is to be 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 a reasonable effort to notify.
    (5) Make a disclosure accounting each time a record is disclosed 
under a court order or compulsory legal process.
    (l) Disclosures to consumer reporting agencies. (1) Certain personal 
information may be disclosed to consumer reporting agencies as provided 
in the Federal Claims Collection Act (31 U.S.C. 3711(e)).
    (2) Under the provisions of paragraph (l)(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 (31 U.S.C. 3711(e)) requires 
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.



Sec. 310.23  Disclosures to commercial enterprises.

    (a) General policy. (1) Make releases of personal information to 
commercial enterprises under the criteria established by 32 CFR part 
286.
    (2) The relationship of commercial enterprises to their clients or 
customers and to the Department of Defense is not changed by this part.
    (3) The DoD policy on personal indebtedness for military personnel 
is contained 32 CFR part 112, ``Indebtedness of Military Personnel,'' 
and for civilian employees in 5 CFR part 735.
    (b) Release of personal information. (1) Any information that must 
be released under 32 CFR part 286, the ``DoD Freedom of Information Act 
Program,''

[[Page 896]]

may be released to a commercial enterprise without the individual's 
consent (see paragraph (b) of Sec. 310.22).
    (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 shall 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 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 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 of 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 requests from commercial enterprises for official 
evaluation of personal characteristics, such as evaluation of personal 
financial habits.



Sec. 310.24  Disclosures to the public from medical records.

    (a) Disclosures from medical records are not only governed by the 
requirement of this part but also by the disclosure provisions of DoD 
6025.18-R.''
    (b) Any medical records that are subject to both this part and DoD 
6025.18-R may only be disclosed if disclosure is authorized under both. 
If disclosure is permitted under this part (e.g., pursuant to a routine 
use), but the disclosure is not authorized under DoD 6025.18-R, 
disclosure is not authorized. If a disclosure is authorized under DoD 
6025.18-R (e.g., releases outside the Department of Defense), but the 
disclosure is not authorized under this part, disclosure is not 
authorized.



Sec. 310.25  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 5 U.S.C. 552, the FOIA.
    (2) In all other cases a disclosure accounting is required even if 
the individual has consented to the disclosure of the information.
    (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. 310.19(i)); and
    (iii) Provide a method of determining compliance with paragraph (c) 
of Sec. 310.21.
    (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 shall provide readily the necessary disclosure 
information (see paragraph (a)(3) of this section).
    (d) Accounting for mass disclosures. When numerous similar records 
are released, identify the category of records disclosed and include the 
data required by paragraph (b) of this section in a 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.

[[Page 897]]

    (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 (g) of Sec. 310.22 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. 
310.26(b).
    (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.



                          Subpart F_Exemptions



Sec. 310.26  Use and establishment of exemptions.

    (a) Types of exemptions. (1) There are three types of exemptions 
permitted by the Privacy Act (5 U.S.C. 552a).
    (i) An access exemption that exempts records compiled in reasonable 
anticipation of a civil action or proceeding from the access provisions 
of the Act.
    (ii) General exemptions that authorize the exemption of a system of 
records from all but certain specifically identified provisions of the 
Act (see appendix D).
    (iii) Specific exemptions that allow a system of records to be 
exempted only from certain designated provisions of the Act (see 
appendix D).
    (2) Nothing in the Act permits exemption of any system of records 
from all provisions of the Act.
    (b) Establishing exemptions. (1) The access exemption is self-
executing. It does not require an implementing rule to be effective.
    (2) Neither a general nor a specific exemption is established 
automatically for any system of records. The Heads of the DoD Components 
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. 310.30(e).)
    (3) Only the Head of the DoD Component or an authorized designee may 
claim an exemption for a system of records.
    (4) A system of records is considered exempt only from those 
provision of the Privacy Act (5 U.S.C. 552a) that are identified 
specifically in the Component exemption rule for the system and that are 
authorized by the Privacy Act.
    (5) To establish an exemption rule, see Sec. 310.31.
    (c) Blanket exemption for classified material. (1) Component rules 
shall include 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 systems 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 system of records 
maintained.
    (d) Provisions from which exemptions may be claimed. 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).
    (e) Use of exemptions. (1) Use exemptions only for the specific 
purposes set forth in the exemption rules (see paragraph (b) of Sec. 
310.31).
    (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 32 CFR part 286.
    (f) Exempt records in non-exempt systems. (1) Exempt records 
temporarily in the custody of another Component are considered the 
property of the originating Component. Access to these records is 
controlled by the system notices and rules of the originating Component.

[[Page 898]]

    (2) Exempt records that have been incorporated into a nonexempt 
system of records are still exempt but only to the extent to which the 
provisions of the Act for which an exemption has been claimed are 
identified and an exemption claimed for the system of records from which 
the record is obtained and only when the purposes underlying the 
exemption for the record are still valid and necessary to protect the 
contents of the record.
    (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 shall govern.



Sec. 310.27  Access exemption.

    (a) An individual is not entitled to access information that is 
compiled in reasonable anticipation of a civil action or proceeding.
    (b) The term ``civil action or proceeding'' is intended to include 
court proceedings, preliminary judicial steps, and quasi-judicial 
administrative hearings or proceedings (i.e., adversarial proceedings 
that are subject to rules of evidence).
    (c) Any information prepared in anticipation of such actions or 
proceedings, to include information prepared to advise the DoD Component 
officials of the possible legal or other consequences of a given course 
of action, is protected.
    (d) The exemption is similar to the attorney work-product privilege 
except that it applies even when the information is prepared by 
nonattorneys.
    (e) The exemption does not apply to information compiled in 
anticipation of criminal actions or proceedings.



Sec. 310.28  General exemption.

    (a) Use of specific exemptions. A DoD Component is not 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.
    (b) 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.
    (c) To qualify for the (j)(2) exemption, the system of records must 
be maintained by a DoD Component, or element thereof, that performs as 
its principal function any activity pertaining to the enforcement of 
criminal laws, such as the U.S. Army Criminal Investigation Command, the 
Naval Investigative Service, the Air Force Office of Special 
Investigations, and military police activities. However, where DoD 
offices perform multiple functions, but have an investigative component, 
such as the DoD Inspector General Defense Criminal Investigative Service 
or Criminal Law Divisions of Staff Judge Advocates Offices, the 
exemption may be claimed. Law enforcement includes police efforts to 
detect, prevent, control, or reduce crime, to apprehend or identify 
criminals; and the activities of military trial counsel, correction, 
probation, pardon, or parole authorities.
    (d) Information that may be protected under the (j)(2) exemption 
includes:
    (1) 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);
    (2) Reports and other records compiled during criminal 
investigations, including supporting documentation.
    (3) 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 pre-sentence and parole reports.
    (e) The (j)(2) exemption does not apply to:
    (1) 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 
except as indicated in paragraph (c) of this section.
    (2) Investigative records compiled by any activity concerning 
employee suitability, eligibility, qualification, or for individual 
access to classified material

[[Page 899]]

regardless of the principal mission of the compiling DoD Component.



Sec. 310.29  Specific exemptions.

    (a) Use of specific exemptions. The specific exemption established 
by 5 U.S.C. 552a(k) of the Privacy Act may be claimed to protect records 
that meet the following criteria (parenthetical references are to the 
appropriate subsection of the Act:
    (1) (k)(1). Information subject to 5 U.S.C. 552(b)(1), (DoD 5200.1-
R) (see also paragraph (c) of this section).
    (2) (k)(2). Investigatory information compiled for law-enforcement 
purposes, other than information that is covered by the general 
exemption (see Sec. 310.28). If an individual is denied any right, 
privilege or benefit 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 shall be provided access 
to the information except to the extent that disclosure would reveal the 
identity of a confidential source. This exemption provides limited 
protection of investigative reports maintained in a system of records 
used in personnel or administrative actions.
    (i) The information must be compiled for some investigative law 
enforcement purpose, such as a criminal investigation by a DoD office, 
whose principal function is not law enforcement, or a civil 
investigation.
    (ii) The exemption does not apply to investigations conducted solely 
for the purpose of a routine background investigation (see paragraph 
(a)(5) of this section), but will apply if the investigation is for the 
purpose of investigating DoD personnel who are suspected of violating 
statutory or regulatory authority.
    (iii) The exemption can continue to be claimed even after the 
investigation has concluded and there is no future likelihood of further 
enforcement proceedings.
    (3) (k)(3). Records maintained in connection with providing 
protective services to the President and other individuals under 18 
U.S.C. 3056, ``Powers, Authorities, and Duties of United States Secret 
Service.''
    (4) (k)(4). Records maintained solely for statistical research or 
program evaluation purposes and that are not used to make decisions on 
the rights, benefits, or entitlement of an individual except for census 
records that may be disclosed under 13 U.S.C. 6, ``Information for other 
Federal Departments and Agencies.
    (5) (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.
    (i) This exemption permits protection of confidential sources used 
in background investigations, employment inquiries, and similar 
inquiries that are for personnel screening to determine suitability, 
eligibility, or qualifications.
    (ii) This exemption is applicable not only to investigations 
conducted prior to the hiring of an employee, but it also applies to 
investigations conducted to determine continued employment suitability 
or eligibility.
    (6) (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) (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)(1), (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, also may be protected from disclosure.
    (2) Ensure promises of confidentiality are not automatically given 
but are used sparingly. Establish appropriate procedures and identify 
fully categories of individuals who may make

[[Page 900]]

such promises. Promises of confidentiality shall be made only when they 
are essential to obtain the information sought (see 5 CFR part 736).
    (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.



                   Subpart G_Publication Requirements



Sec. 310.30  Federal Register publication.

    (a) What must be published in the Federal Register. (1) Four types 
of documents relating to the Privacy Program must be published in the 
Federal Register:
    (i) DoD Component Privacy Procedural rules;
    (ii) DoD Component exemption rules; and
    (iii) System notices.
    (iv) Match notices (See subpart L to this part).
    (2) See DoD 5025.1-M, \9\ ``Directive Systems Procedures'' and 
Administrative Instruction (AI) No. 102, \10\ ``Office of the Secretary 
of Defense Federal Register System'' for information pertaining to the 
preparation of documents for publication in the Federal Register.
---------------------------------------------------------------------------

    \9\ See footnote 1 to Sec. 310.1.
    \10\ See footnote 1 to Sec. 310.1.
---------------------------------------------------------------------------

    (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 AI 102.
    (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 CFR. System notices are not published in the CFR.
    (d) Submission of rules for publication. (1) Submit to the DPO, 
ODA&M, all proposed rules implementing this part in proper format (see 
DoD 5025.1-M and AI 102) for publication in the Federal Register.
    (2) This part has been published as a final rule in the Federal 
Register. Therefore, incorporate it into your Component rules rather 
than by republication (see AI 102).
    (3) DoD Component procedural rules that simply implement this 
Regulation need only be published as final rules in the Federal Register 
(see DoD 5025.1-M and AI 102). If the Component procedural rule 
supplements this part in any manner, they must be published as a 
proposed rule before being published as a final rule.
    (4) Amendments to Component rules are submitted like the basic 
rules.
    (5) The DPO 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.
    (2) Submit exemption rules in proper format to the DPO. All 
exemption rules are coordinated with the DoD Office of General Counsel. 
After coordination, the DPO shall submit the rules to the Federal 
Register for publication.
    (3) Exemption rules require publication both as proposed rules and 
final rules (see AI 102).
    (4) Sec. 310.31(b) 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) System notices 
are not subject to formal rulemaking procedures. However, the Privacy 
Act (5 U.S.C. 552a) requires a system notice be published in the Federal 
Register of the existence and character of a new or altered system of 
records. Until publication of the notice, DoD Components shall not begin 
to operate the system of records (i.e., collect and use the 
information). The notice procedures require:
    (i) The system notice describes what kinds of records are in the 
system, on whom they are maintained, what uses

[[Page 901]]

are made of the records, and how an individual may access, or contest, 
the records contained in the system.
    (ii) The public be given 30 days to comment on any proposed routine 
uses before any disclosures are made pursuant to the routine use; and
    (iii) The notice contain the date on which the system shall become 
effective.
    (2) Submit system notices to the DPO in the Federal Register format 
(see AI 102 and appendix E to this part). The DPO transmits the notices 
to the Federal Register for publication.
    (3) Sec. 310.32 discusses the specific elements required in a 
system notice.



Sec. 310.31  Exemption rules.

    (a) General procedures. Subpart F of this part 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 identifier and title of the system for which 
the exemption is claimed. (See Sec. 310.32(b) and (c));
    (ii) The specific sections of the Privacy Act under which the 
exemption for the system is 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 sections 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)(l)-(5)) (see appendix D)); and
    (iv) The specific reasons why an exemption is being claimed from 
each section of the Act identified.
    (2) Do not claim an exemption for classified material for individual 
systems of records. The blanket exemption applies. (See paragraph (c) of 
Sec. 310.26.)



Sec. 310.32  System notices.

    (a) Contents of the system notices. (1) The following data captions 
are included in each system notice:
    (i) Systems identifier. (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).
    (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 and the purposes of such uses. (see paragraph (i) of 
this section).
    (ix) Disclosure to Consumer Reporting Agencies. This element is 
optional but required when disclosing to consumer reporting agencies 
(See paragraph (l) of Sec. 310.22.)
    (x) Policies and practices for storing, retrieving, accessing, 
retaining, and disposing of records in the system. (see paragraph (j) of 
this section).
    (xi) Systems manager(s) and address. (see paragraph (k) of this 
section).
    (xii) Notification procedure. (see paragraph (l) of this section).
    (xiii) Record access procedures. (see paragraph (m) of this 
section).
    (xiv) Contesting records procedures. (see paragraph (n) of this 
section).
    (xv) Record source categories. (see paragraph (o) of this section).
    (xvi) Exemptions claimed for the system. (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 of this part.
    (b) System identifier. The system identifier must appear on all 
system notices and is limited to 21 positions, unless an exception is 
granted by the DPO, including Component code, file number and symbols, 
punctuation, and spacing.
    (c) System name. (1) The name of the system reasonably identifies 
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

[[Page 902]]

thereof, such as, ``Joint Uniform Military Pay System (JUMPS).'' Do not 
use acronyms not commonly known unless they are preceded by an 
explanation.
    (3) The system name may not exceed 55 character positions, unless an 
exception is granted by the DPO, including punctuation and spacing.
    (4) The system name should not be the name of the database or the IT 
system if the name does not meet the criteria in paragraph (c)(1) of 
this section.
    (d) System location. (1) For systems maintained in a single location 
provide the exact office name, organizational identity, and address.
    (2) For geographically or organizationally decentralized systems, 
specify each level of organization or element that maintains a segment 
of the system, to include their mailing address, or indicate the 
official mailing addresses are published as an Appendix to the 
Component's compilation of system of records notices, or provide an 
address where a complete listing of locations can be obtained.
    (3) Use the standard U.S. Postal Service two-letter State 
abbreviation symbols and 9-digit 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, non-technical 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, non-
technical terms the types of records maintained in the system.
    (2) Only documents actually maintained 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 system. (1) Cite the specific 
provision of the Federal statute or E.O. that authorizes the maintenance 
of the system.
    (2) Include with citations for statutes the popular names, when 
appropriate (for example, Section 2103 of title 51, United States Code, 
``Tea-Tasters Licensing Act''), and for E.O.s, the official title (for 
example, E.O. No. 9397, ``Numbering System for Federal Accounts Relating 
to Individual Persons'').
    (3) If direct statutory authority or an Executive Order does not 
exist, indirect statutory authority may be cited if the authority 
requires the operation or administration of a program, the execution of 
which will require the collection and maintenance of a system of 
records.
    (4) If direct or indirect authority does not exist, the Department 
of Defense, as well as the Army, Navy, and Air Force general 
``housekeeping'' statutes (i.e., 5 U.S.C. 301 (``Departmental 
Regulations''), 10 U.S.C. 3013 (``Secretary of the Army''), 5013 
(``Secretary of the Navy''), and 8013 (``Secretary of the Air Force'') 
may be cited if the Secretary, or those offices to which responsibility 
has been delegated, are required to collect and maintain systems of 
records in order to discharge assigned responsibilities. If the 
housekeeping statute is cited, the regulatory authority implementing the 
statute within the Department or Component also shall be identified.
    (5) If the social security number is being collected and maintained, 
E.O. 9397 (``Numbering Systems for Federal Accounts Relating to 
Indivdiual Persons'') shall be cited.
    (h) Purpose or Purposes. (1) List the specific purposes for 
maintaining the system of records by the Component.
    (2) All internal uses of the information within the Department or 
Component shall be identified. Such uses are the so-called ``internal 
routine uses.''
    (i) Routine uses. (1) Except as otherwise authorized by subpart E of 
this part, disclosure of information from a system of records to any 
person or entity outside the Department of Defense (see Sec. 310.21(b)) 
may only be made pursuant to a routine use that has been established for 
the specific system of records. Such uses are the so-called ``external 
routine uses.''
    (2) Each routine use shall include to whom the information is being 
disclosed and what use and purpose the information will be used. Routine 
uses shall be written as follows:

[[Page 903]]

    (i) ``To* * *.[person or entity outside of DoD that will receive the 
information] to* * *.[what will be done with the information] for the 
purpose(s) of * * *[what objective is sought to be achieved].''
    (ii) To the extent practicable, general statements, such as ``to 
other Federal agencies as required'' or ``to any other appropriate 
Federal agency'' shall be avoided.
    (3) Blanket routine uses (appendix C to this part) have been adopted 
that apply to all Component system notices. The blanket routine uses 
appear at the beginning of each Component's compilation of its system 
notices.
    (i) Each system notice shall contain a statement whether or not the 
blanket routine uses apply to the system.
    (ii) Each notice may state that none of the blanket routine uses 
apply or that one or more do not apply.
    (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 
compact disks, diskettes,'' ``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, SSN, or some other unique personal identifier assigned 
the individual).
    (3) Safeguards. Identify the system safeguards (such as storage in 
safes, vaults, locked cabinets or rooms, use of guards, visitor 
registers, personnel screening, or password protected IT systems). Also 
identify personnel who have access to the systems. 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, also state the length of time the records 
are maintained by the Component, when they are transferred to a FRC, 
time of retention at the Records 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. If 
records are eventually destroyed as opposed to being retired, identify 
the method of destruction (e.g., shredding, burning, pulping, etc).
    (k) System manager or managers and address. (1) List the title and 
address of the official 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) 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.
    (2) 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 notification; and
    (iv) A description of any proof of identity required. (see Sec. 
310.17(c)).
    (3) When appropriate, the individual may be referred to a Component 
official who shall provide this information to him or her.
    (m) Record access procedures. (1) Describe how an individual can 
gain access to the 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.

[[Page 904]]

Provide sufficient information in the notice to allow an individual to 
exercise his or her rights without referral to the formal rules.
    (2) 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) A description of any proof of identity required. (see Sec. 
310.17(c)).
    (iii) When appropriate, the individual may be referred to a 
Component official who shall provide the records to him or her.
    (n) Contesting record procedures. (1) Describe how an individual may 
contest the content of a record pertaining to him or her in the system.
    (2) The detailed procedures for contesting a record need not be 
identified if the Component procedural rules are readily available to 
the public. (For example, ``The Office of the Secretary of Defense'' 
rules for contesting contents are contained in 32 CFR 311.) All 
Component procedural rules are set forth at a Departmental public Web 
site (http://www.defenselink.mil/privacy/cfr-rules.html).
    (3) The individual may also be referred to the system manager to 
determine these procedures.
    (o) Record source categories. (1) Describe where (the individual, 
other Component documentation, other Federal agencies, etc) the 
information contained in the system was obtained.
    (2) Specific individuals or institutions need not be identified by 
name, particularly if these sources have been granted confidentiality. 
(see Sec. 310.29(b)).
    (p) Exemptions claimed for the System. (1) If no exemption has been 
claimed for the system, indicate ``None.''
    (2) If an exemption is claimed, cite the exemption as well as 
identifying the CFR section containing the exemption rule for the 
system.
    (q) Maintaining the Master DoD System Notice Registry. (1) The DPO 
maintains a master registry of all DoD record systems notices.
    (2) The DPO also posts all DoD system notices to a public Web site 
(see http://www.defenselink.mil/privacy/notices).



Sec. 310.33  New and altered record systems.

    (a) Criteria for a new record system. (1) If a Component is 
maintaining a system of records as contemplated by Sec. 310.10(a), and 
a system notice has not been published for it in the Federal Register, 
the Component shall establish a system notice consistent with the 
requirements of this subpart.
    (2) If a notice for a system of records has been canceled or deleted 
but a determination is subsequently made that the system will be 
reinstated or reused, the system may not be operated (i.e., information 
collected or used) until a new notice is 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 Sec. 310.34(a).)
    (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 (see Sec. 310.32(e)) and may require 
changes to the ``Purpose(s)'' caption (see Sec. 310.32(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 the System'' caption is considered an 
alteration.

[[Page 905]]

    (ii) Adding a new data element that is clearly within the scope of 
the categories of records described in the existing notice is an 
amendment. (see Sec. 310.34(a)). An amended notice may not be required 
if the data element is clearly covered by the record category identified 
in the existing system notice.
    (iii) All changes under this criterion require a change to the 
``Categories of Records in the System'' caption of the notice. (see 
Sec. 310.32(f)).
    (3) An alteration of how 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. 
310.32(j)(2)).
    (iii) If the records are no longer retrieved by name or personal 
identifier cancel the system notice. (see Sec. 310.10(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.
    (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. 310.32(h)) and may require a change in 
the ``Authority for maintenance of the system'' caption (see Sec. 
310.32).
    (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 applications, such as operating systems and system 
utilities, that 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 IT 
system constitute an amendment if system security is preserved. (see 
Sec. 310.34).
    (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. 
310.32(j)(i)).
    (c) Reports of new and altered systems. (1) Components shall submit 
a report for all new or altered systems to the DPO consistent with the 
requirements of this subpart and in the format prescribed at appendix F 
of this part.
    (i) Components shall include the following when submitting an 
alteration for a system notice for publication in the Federal Register:
    (A) The system identifier and name. (see Sec. 310.32(b) and (c)).
    (B) A description of the nature and specific changes proposed.
    (ii) The full text of the system notice need not be submitted if the 
master registry contains a current system notice for the system. (see 
Sec. 310.32(q)).
    (2) The DPO coordinates all reports of new and altered systems with 
the Office of the Assistant Secretary of Defense (Legislative Affairs), 
Department of Defense.
    (3) The DPO prepares and sends a transmittal letter that forwards 
the report, as well as the new or altered system notice, to OMB and 
Congress.
    (4) The DPO shall publish in the Federal Register a system notice 
for new or altered systems.
    (d) Time restrictions on the operation of a new or altered system. 
(1) The reports, and the new or altered system notice, must be provided 
OMB and Congress at least 40 days prior to the operation of the new or 
altered system. The 40 day review period begins on the date the

[[Page 906]]

transmittal letters are signed and dated.
    (2) The system notice must be published in the Federal Register 
before a Component begins to operate the system (i.e., collect and use 
the information). If the new system has routine uses or the altered 
system adds a new routine use, no records may be disclosed pursuant to 
the routine use until the public has had 30 days to comment on the 
proposed use.
    (3) The time periods run concurrently.
    (e) Exemptions for new systems. See Sec. 310.30(e) for the 
procedures to follow in submitting exemption rules for a new system of 
records or for submitting an exemption rule for an existing system of 
records.



Sec. 310.34  Amendment and deletion of system notices.

    (a) Criteria for an amended system notice. (1) Certain minor changes 
to published systems notices are considered amendments and not 
alterations. (see Sec. 310.33(b)).
    (2) Amendments do not require a report of an altered system (see 
Sec. 310.33(c)), but must be published in the Federal Register.
    (b) System notices for amended systems. Components shall include the 
following when submitting an amendment for a system notice for 
publication in the Federal Register:
    (1) The system identifier and name. (see Sec. 310.32 (b) and (c)).
    (2) A description of the nature and specific changes proposed.
    (3) The full text of the system notice need not be submitted if the 
master registry contains a current system notice for the system. (see 
Sec. 310.32(q)).
    (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 DPO for transmittal to the 
Federal Register for publication.
    (2) Multiple deletions and amendments may be combined into a single 
submission.



                     Subpart H_Training Requirements



Sec. 310.35  Statutory training requirements.

    The Privacy Act (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. 310.36  OMB training guidelines.

    The OMB guidelines (OMB Privacy Guidelines, 40 FR 28948 (July 9, 
1975) require all agencies additionally to:
    (a) Instruct their personnel in their rules of conduct and other 
rules and procedures adopted in implementing the Act, to ensure that 
they are reminded of their specific responsibilities for safeguarding 
personally identifiable information, the rules for acquiring and using 
such information, and the penalties for non-compliance.
    (b) Incorporate training on the special requirements of the Act into 
both formal and informal (on-the-job) training programs.



Sec. 310.37  DoD training programs.

    (a) The training shall include information regarding information 
privacy laws, regulations, policies and procedures governing the 
Department's collection, maintenance, use, or dissemination of personal 
information. The objective is to establish a culture of sensitivity to, 
and knowledge about, privacy issues involving individuals throughout the 
Department.
    (b) To meet these training requirements, Components may establish 
three general levels of training for those persons, to include 
contractor personnel, who are involved in any way with the design, 
development, operation, or maintenance of privacy protected systems of 
records. These are:

[[Page 907]]

    (1) Orientation. Training that provides basic understanding of this 
part 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 medical, personnel, and intelligence 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, 
contractors that will either operate systems of records on behalf of the 
Component or will have access to such systems incident to performing the 
contract, and anyone responsible for implementing or carrying out 
functions under this part.
    (3) Management. Training designed to identify for responsible 
managers (such as, senior system managers, denial authorities, and 
decision-makers) considerations that they shall take into account when 
making management decisions regarding operational programs and 
activities having privacy implications.
    (c) Include Privacy Act training in other courses of training when 
appropriate. Stress individual responsibilities and advise individuals 
of their rights and responsibilities under this part to ensure that it 
is understood that, where personally identifiable information is 
involved, individuals should handle and treat the information as if it 
was their information.



Sec. 310.38  Training methodology and procedures.

    (a) Each DoD Component is responsible for the development of 
training procedures and methodology.
    (b) The DPO shall assist the Components in developing these training 
programs and may develop privacy training programs for use by all DoD 
Components.
    (c) Components shall conduct training as frequently as believed 
necessary so that personnel who are responsible for or are in receipt of 
information protected by 5 U.S.C. 552a are sensitive to the requirements 
of this part, especially the access, use, and dissemination 
restrictions. Components shall give consideration to whether annual 
training and/or annual certification should be mandated for all or 
specified personnel whose duties and responsibilities require daily 
interaction with personally identifiable information.
    (d) Components shall conduct training that reaches the widest 
possible audience. Web-based training and video conferencing have been 
effective means to provide such training.



Sec. 310.39  Funding for training.

    Each DoD Component shall fund its own privacy training program.



                            Subpart I_Reports



Sec. 310.40  Requirement for reports.

    The DPO shall establish requirements for DoD Privacy Reports and the 
DoD Components may be required to provide data.



Sec. 310.41  Suspense for submission of reports.

    The suspenses for submission of all reports shall be established by 
the DPO.



Sec. 310.42  Reports control symbol.

    Any report established by this subpart in support of the Privacy 
Program shall be assigned Report Control Symbol DD-COMP(A)1379.



                          Subpart J_Inspections



Sec. 310.43  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. Programs shall be reviewed as frequently as considered 
necessary by

[[Page 908]]

Components or the Component Inspector General.



Sec. 310.44  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 available to the Privacy Program officials concerned upon 
request.



                    Subpart K_Privacy Act Violations



Sec. 310.45  Administrative remedies.

    Any individual who believes 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. 310.46  Civil actions.

    An individual may file a civil suit against a DoD Component if the 
individual believes his or her rights under the Act have been violated. 
(See 5 U.S.C. 552a(g).)



Sec. 310.47  Civil remedies.

    In addition to specific remedial actions, the Privacy Act provides 
for the payment of damages, court costs, and attorney fees in some 
cases.



Sec. 310.48  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 information from a system of records, knowing 
dissemination is prohibited to anyone not entitled to receive the 
information (see subpart E of this part); or
    (2) Maintains a system of records without publishing the required 
public notice in the Federal Register. (See subpart G of this part.)
    (b) Any person who knowingly and willfully 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. 310.49  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 the DPO. 
The litigation status sheet at appendix H to this part 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 of the status sheet. 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 DPO with the litigation status sheet reporting that 
judgment or opinion.



Sec. 310.50  Lost, stolen, or compromised information.

    (a) When a loss, theft, or compromise of information occurs (see 
Sec. 310.14), the breach shall be reported to:
    (1) The United States Computer Emergency Readiness Team (US CERT) 
within one hour of discovering that a breach of personally identifiable 
information has occurred. Components shall establish procedures to 
ensure that US CERT reporting is accomplished in accordance with the 
guidance set forth at http://www.us-cert.gov.
    (i) The underlying incident that led to the loss or suspected loss 
of PII (e.g., computer incident, theft, loss of material, etc.) shall 
continue to be reported in accordance with established procedures (e.g., 
to designated Computer Network Defense (CND) Service Providers 
(reference (z)), law enforcement authorities, the chain of command, 
etc.).
    (ii) [Reserved]
    (2) The Senior Component Official for Privacy within 24 hours of 
discovering that a breach of personally identifiable

[[Page 909]]

information has occurred. The Senior Component Official for Privacy, or 
their designee, shall notify the Defense Privacy Office of the breach 
within 48 hours upon being notified that a loss, theft, or compromise 
has occurred. The notification shall include the following information:
    (i) Identify the Component/organization involved.
    (ii) Specify the date of the breach and the number of individuals 
impacted, to include whether they are DoD civilian, military, or 
contractor personnel; DoD civilian or military retirees; family members; 
other Federal personnel or members of the public, etc.
    (iii) Briefly describe the facts and circumstances surrounding the 
loss, theft, or compromise.
    (iv) Briefly describe actions taken in response to the breach, to 
include whether the incident was investigated and by whom; the 
preliminary results of the inquiry if then known; actions taken to 
mitigate any harm that could result from the breach; whether the 
affected individuals are being notified, and if this will not be 
accomplished within 10 working days, that action will be initiated to 
notify the Deputy Secretary (see Sec. 310.14); what remedial actions 
have been, or will be, taken to prevent a similar such incident in the 
future, e.g., refresher training conducted, new or revised guidance 
issued; and any other information considered pertinent as to actions to 
be taken to ensure that information is properly safeguarded.
    (2) The Component shall determine whether administrative or 
disciplinary action is warranted and appropriate for those individuals 
determined to be responsible for the loss, theft, or compromise.



             Subpart L_Computer Matching Program Procedures



Sec. 310.51  General.

    (a) A computer matching program covers two kinds of matching 
programs (see OMB Matching Guidelines, 54 FR 25818 (June 19, 1989)). If 
covered, the matches are subject to the requirements of this subpart. 
The covered programs are:
    (1) Matches using records from Federal personnel or payroll systems 
of records, or
    (2) Matches involving Federal benefits program if:
    (i) To determine eligibility for a Federal benefit,
    (ii) To determine compliance with benefit program requirements, or
    (iii) To effect recovery of improper payments or delinquent debts 
under a Federal benefit program.
    (b) The requirements of this part do not apply if matches are:
    (1) Performed solely to produce aggregated statistical data without 
any personal identifiers. Personally identifying data can be used for 
purposes of conducting the match. However, the results of the match 
shall be stripped of any data that would identify an individual. Under 
no circumstances shall match results be used to take action against 
specific individuals.
    (2) Performed to support research or statistical projects. 
Personally identifying data can be used for purposes of conducting the 
match and the match results may contain identifying data about 
individuals. However, the match results shall not be used to make a 
decision that affects the rights, benefits, or privileges of specific 
individuals.
    (3) Performed by an agency, or a component thereof, whose principal 
function is the enforcement of criminal laws, subsequent to the 
initiation of a specific criminal or civil law enforcement investigation 
of a named individual or individuals.
    (i) The match must flow from an investigation already underway which 
focuses on a named person or persons. ``Fishing expeditions'' in which 
the subjects are generically identified, such as ``program 
beneficiaries'' are not covered.
    (ii) The match must be for the purpose of gathering evidence against 
the named individual or individuals.
    (4) Performed for tax information-related purposes.
    (5) Performed for routine administrative purposes using records 
relating to Federal personnel.
    (i) The records to be used in the match must predominantly relate to 
Federal personnel (i.e., the percentage of records in the system of 
records that

[[Page 910]]

are about Federal personnel must be greater than of any other category).
    (ii) The purpose of the match must not be for purposes of taking any 
adverse financial, personnel, disciplinary, or other unfavorable action 
against an individual.
    (6) Performed using only records from systems of records maintained 
by an agency.
    (i) The purpose of the match must not be for purposes of taking any 
adverse financial, personnel, disciplinary, or other unfavorable action 
against an individual.
    (ii) A match of DoD personnel using records in a system of records 
for purposes of identifying fraud, waste, and abuse is not covered.
    (7) Performed to produce background checks for security clearances 
of Federal or contractor personnel or performed for foreign counter-
intelligence purposes.



Sec. 310.52  Computer matching publication and review requirements.

    (a) DoD Components shall identify the systems of records that will 
be used in the match to ensure the publication requirements of subpart G 
have been satisfied. If the match will require disclosure of records 
outside the Department of Defense, Components shall ensure a routine use 
has been established, and that the publication and review requirements 
have been met, before any disclosures are made (see subpart G of this 
part).
    (b) If a computer matching program is contemplated, the DoD 
Component shall contact the DPO and provide information regarding the 
contemplated match. The DoD DPO shall ensure that any proposed computer 
matching program satisfies the requirements of the Privacy Act (5 U.S.C. 
552a) and OMB Matching Guidelines (54 FR 25818 (June 19, 1989)).
    (c) A computer matching agreement (CMA) shall be prepared by the 
Component, consistent with the requirements of Sec. 310.53 of this 
subpart and submitted to the DPO. If the CMA satisfies the requirements 
of the Privacy Act (5 U.S.C. 552a) and OMB Matching Guidelines (54 FR 
25818 (June 19, 1989)), as well as this subpart, it shall be forwarded 
to the Defense Data Integrity Board (DIB) for approval or disapproval.
    (1) If the CMA is approved by the DIB, the DPO shall prepare and 
forward a report to both Houses of Congress and to OMB as required by, 
and consistent with, OMB Circular A-130, ``Management of Federal 
Information Resources,'' February 8, 1996, as amended. Congress and OMB 
shall have 40 days to review and comment on the proposed match. Any 
comments received must be resolved before matching can take place.
    (2) If the CMA is approved by the DIB, the DPO shall prepare and 
forward a match notice as required by OMB Circular A-130, ``Management 
of Federal Information Resources,'' February 8, 1996, as amended, for 
publication in the Federal Register. The public shall be given 30 days 
to comment on the proposed match. Any comments received must be resolved 
before matching can take place.



Sec. 310.53  Computer matching agreements (CMAs).

    (a) If a match is to be conducted internally within DoD, a 
memorandum of understanding (MOU) shall be prepared. It shall contain 
the same elements as a CMA, except as otherwise indicated in paragraph 
(b)(4)(ii) of this section.
    (b) A CMA shall contain the following elements:
    (1) Purpose. Why the match is being proposed and what will be 
achieved by conducting the match.
    (2) Legal authority. What is the Federal or state statutory or 
regulatory basis for conducting the match. The Privacy Act does not 
constitute independent authority for matching. Other legal authority 
shall be identified.
    (3) Justification and expected results. Explain why computer 
matching as opposed to some other administrative means is being proposed 
and what the expected results will be, including a specific estimate of 
any savings (see paragraph (b)(13) of this section).
    (4) Records description. Identify:
    (i) The system of records or non-Federal records. For DoD systems of 
records, provide the Federal Register citation for the system notice;

[[Page 911]]

    (ii) The specific routine use in the system notice if records are to 
be disclosed outside the Department of Defense (see Sec. 310.22(c)). If 
records are disclosed within the Department of Defense for an internal 
match, disclosures are permitted pursuant to paragraph (a) of Sec. 
310.22.
    (iii) The number of records involved;
    (iv) The data elements to be included in the match;
    (v) The projected start and completion dates of the match. CMAs 
remain in effect for 18 months but can be renewed for an additional 12 
months provided:
    (A) The match will be conducted without any change, and
    (B) Each party to the match certifies in writing that the program 
has been conducted in compliance with the CMA or MOU.
    (vi) How frequently will the records be matched.
    (5) Records accuracy assessment. Provide an assessment by the source 
and recipient agencies as to the quality of the information that will be 
used for the match. The poorer the quality, the more likely that the 
program will not be cost-effective.
    (6) Notice procedures. Identify what direct and indirect means will 
be used to inform individuals that matching will take place.
    (i) Direct notice. Indicate whether the individual is advised that 
matching may be conducted when he or she applies for a Federal benefit 
program. Such an advisory should normally be part of the Privacy Act 
Statement that is contained in the application for benefits. Individual 
notice sometimes is provided by a separate notice that is furnished the 
individual upon receipt of the benefit.
    (ii) Indirect notice. Indicate whether the individual is advised 
that matching may be conducted by constructive notice. Indirect or 
constructive notice is achieved by publication of a routine use in the 
Federal Register when the matching is between agencies or is achieved by 
publication of the match notice in the Federal Register.
    (7) Verification procedures. Explain how information produced as a 
result of the match will be independently verified to ensure any adverse 
information obtained is that of the individual identified in the match.
    (8) Due process procedures. Describe what procedures will be used to 
notify individuals of any adverse information uncovered as a result of 
the match and to give such individuals an opportunity to either explain 
the information or how to contest the information. No adverse action 
shall be taken against the individual until the due process procedures 
have been satisfied.
    (i) Unless other statutory or regulatory authority provides for a 
longer period of time, the individual shall be given 30 calendar days 
from the date of the notice to respond to the notice.
    (ii) If an individual contacts the agency within the notice period 
and indicates his or her acceptance of the validity of the adverse 
information, the agency may take final action. If the period expires 
without a response, the agency may take final action.
    (iii) If the agency determines that there is a potentially 
significant effect on public health or safety, it may take appropriate 
action notwithstanding the due process provisions.
    (9) Security procedures. Describe the administrative, technical, and 
physical safeguards that will be established to preserve and protect the 
privacy and confidentiality of the records involved in the match. The 
level of security must be commensurate with the level of the sensitivity 
of the records.
    (10) Records usage, duplication, and redisclosure restrictions. 
Describe any restrictions imposed by the source agency or by statute or 
regulation on the collateral uses of the records. Recipient agencies may 
not use the records obtained for matching purposes for any other purpose 
absent a specific statutory requirement or where the disclosure is 
essential to the conduct of the matching program.
    (11) Disposition procedures. Clearly state that the records used in 
the match will be retained only for the time required for conducting the 
match. Once the matching purpose has been achieved, the records will be 
destroyed unless the records must be retained as directed by other legal 
authority. Unless the source agency requests that the records be 
returned,

[[Page 912]]

identify the means by which destruction will occur, i.e., shredding, 
burning, electronic erasure, etc.
    (12) Comptroller General access. Include a statement that the 
Comptroller General may have access to all records of the recipient 
agency to monitor or verify compliance with the terms of the CMA.
    (13) Cost-benefit analysis. (i) A cost-benefit analysis shall be 
conducted for the proposed computer matching program unless:
    (A) The Data Integrity Board waives the requirement, or
    (B) The matching program is required by a specific statute.
    (ii) The analysis must demonstrate that the program is likely to be 
cost-effective. This analysis is to ensure agencies are following sound 
management practices. The analysis provides an opportunity to examine 
the programs and to reject those that will only produce marginal 
results.



   Sec. Appendix A to Part 310--Safeguarding Personally Identifiable 
                            Information (PII)

(See Sec. 310.13 of Subpart B)

                               A. General

    1. The IT 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 IT systems consistent with the requirements of 
DoD Directive 8500.1 and DoD Instruction 8500.2.
    2. Personally identifiable 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. IT 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 5200.1-R.)

              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 OMB Circular A-130 and DoD Instruction 8500.2.)
    2. Tailor safeguards to the type of system, the nature of the 
information involved, and the specific threat to be countered.

                  C. Minimum Administrative Safeguards

    The minimum safeguarding standards as set forth in Sec. 310.13(b) 
apply to all personal data within any IT system. In addition:
    1. Consider the following when establishing IT 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 media products 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 the requirements of DoD 5200.1-R satisfies this requirement.
    3. Mark and protect all computer products containing classified data 
in accordance with the requirements of DoD 5200.1-R and DoD Directive 
8500.1.
    4. Mark and protect all computer products containing ``For Official 
Use Only'' material in accordance with the requirements of DoD 5200.1-R.
    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 personnel involved in processing information subject to 
this Regulation in proper safeguarding procedures.

                         D. Physical Safeguards

    1. For all unclassified facilities, areas, and devices that process 
information subject to this Regulation, 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 Regulation that control 
adequately access to these areas.
    3. Safeguard on-line devices directly coupled to IT systems that 
contain or process information from systems of records to prevent 
unauthorized disclosure, use, or alteration.

[[Page 913]]

    4. Dispose of paper records following appropriate record destruction 
procedures. (See Sec. 310.13(c) and DoD 5200.1-R.)

                         E. Technical Safeguards

    1. Components are to ensure that all PII not explicitly cleared for 
public release is protected according to Confidentially Level Sensitive, 
as established in DoD Instruction 8500.2. In addition, all DoD 
information and data owners shall conduct risk assessments of 
compilations of PII and identify those needing more stringent protection 
for remote access or mobile computing.
    2. Encrypt unclassified personal information in accordance with 
current Information Assurance (IA) policies and procedures, as issued.
    3. Remove personal data stored on magnetic storage media by methods 
that preclude reconstruction of the data.
    4. Ensure that personal information is not inadvertently disclosed 
as residue when transferring magnetic media between activities.
    5. Only DoD authorized devices shall be used for remote access. Any 
remote access, whether for user or privileged functions, must conform to 
IA controls specified in DoD Instruction 8500.2.
    6. Remote access for processing PII should comply with the latest IA 
policies and procedures.
    7. Minimize access to data fields necessary to accomplish an 
employee's task-normally, access shall be granted only to those data 
elements (fields) required for the employee to perform his or her job 
rather than granting access to the entire database.
    8. Do not totally rely on proprietary software products to protect 
personnel data during processing or storage.

                          F. Special Procedures

    1. Managers shall:
    a. Prepare and submit for publication all system notices and 
amendments and alterations thereto. (See Sec. 310.30(f).)
    b. Identify required controls and individuals authorized access to 
PII and maintain updates to the access authorizations.
    c. When required, ensure Privacy Impact Assessments are prepared 
consistent with the requirements of the DoD Deputy Chief Information 
Officer Memorandum, ``DoD Privacy Impact Assessment Guidance,'' October 
28, 2005.
    d. Train all personnel whose official duties require access to the 
system of records in the proper safeguarding and use of the information 
and ensure that they receive Privacy Act training.

                           G. Record Disposal

    1. Dispose of records subject to this Regulation so as to prevent 
compromise. (See Sec. 310.13(c).) Magnetic tapes or other magnetic 
medium may be cleared by degaussing, overwriting, or erasing. (See DoD 
Memorandum, ``Disposition of Unclassified DoD Computer Hard Drives,'' 
June 4, 2001.)
    2. Do not use respliced waste computer products containing personal 
data.



         Sec. Appendix B to Part 310--Sample Notification Letter

(See Sec. 310.14 of subpart C)

Dear Mr. John Miller:

    On January 1, 2006, a Department of Defense (DoD) laptop computer 
was stolen from the parked car of a DoD employee in Washington, DC after 
normal duty hours while the employee was running a personal errand. The 
laptop contained personally identifying information on 100 DoD employees 
who were participating in the xxx Program. The compromised information 
is the name, social security number, residential address, date of birth, 
office and home email address, office and home telephone numbers of the 
Program participants.
    The theft was immediately reported to local and DoD law enforcement 
authorities who are now conducting a joint inquiry into the loss.
    We believe that the laptop was the target of the theft as opposed to 
any information that the laptop might contain. Because the information 
in the laptop was password protected and encrypted, we also believe that 
the probability is low that the information will be acquired and used 
for an unlawful purpose. However, we cannot say with certainty that this 
might not occur. We therefore believe that you should consider taking 
such actions as are possible to protect against the potential that 
someone might use the information to steal your identity.
    You should be guided by the actions recommended by the Federal Trade 
Commission at its Web site at http://www.consumer.gov/idtheft/con--
steps.htm. The FTC urges that you immediately place an initial fraud 
alert on your credit file. The Fraud alert is for a period of 90 days, 
during which, creditors are required to contact you before a new credit 
card is issued or an existing card changed. The site also provides other 
valuable information that can be taken now or in the future if problems 
should develop.
    The DoD takes this loss very seriously and is reviewing its current 
policies and practices with a view of determining what must be changed 
to preclude a similar occurrence in the future. At a minimum, we will be 
providing additional training to personnel to ensure that they 
understand that personally identifiable information must at all times be 
treated in a manner that preserves and protects the confidentiality of 
the data.

[[Page 914]]

    We deeply regret and apologize for any inconvenience and concern 
this theft may cause you.
    Should you have any questions, please call ------------.

Sincerely,

Signature Block
(Directorate level or higher)



          Sec. Appendix C to Part 310--DoD Blanket Routine Uses

(See paragraph (c) of Sec. 310.22 of 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 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, may be 
disclosed to the Office of Management and Budget 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 Department of Defense 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, 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 reductions, 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 a 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

[[Page 915]]

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

    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

    A record from a system of records maintained by a 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

    A record from a system of records maintained by a 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 a 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 Purposes

    A record from a system of records maintained by a Component may be 
disclosed as a routine use outside the Department of Defense (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 that protect the national security of the United States.

   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. 310.26 )

------------------------------------------------------------------------
           Exemptions
--------------------------------        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 NARA.
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 GAO.
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.

[[Page 916]]

 
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.............  (j)(2) General exemption for criminal
                                  law enforcement records.
Yes...........  No.............  (k)(1) Exemption for classified
                                  material.
N/A...........  No.............  (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 GSA records
                                  centers.
Yes...........  No.............  (l)(2) Records archived before
                                  September 27, 1975.
Yes...........  No.............  (l)(3) Records archived on or after
                                  September 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. 310.26.



Sec. Appendix E to Part 310--Sample of New or Altered System of Records 
                    Notice in Federal Register Format

(See paragraph (f) of Sec. 310.30)

                      New system of records notice

                          DEPARTMENT OF DEFENSE

                         Office of the Secretary

                 Privacy Act of 1974; System of Records

AGENCY: Office of the Secretary, DoD.
ACTION: Notice to add a system of records.
SUMMARY: The Office of the Secretary of Defense proposes to add a system 
of records to its inventory of record systems subject to the Privacy Act 
of 1974 (5 U.S.C. 552a), as amended.

[[Page 917]]

DATES: The changes will be effective on (insert date thirty days after 
publication in the Federal Register) unless comments are received that 
would result in a contrary determination.
ADDRESSES: Send comments to OSD Privacy Act Coordinator, Records 
Management Section, Washington Headquarters Services, 1155 Defense 
Pentagon, Washington, DC 20301-1155.
FOR FURTHER INFORMATION CONTACT: Ms. Mary Smith at (703) 000-0000.
SUPPLEMENTARY INFORMATION: The Office of the Secretary of Defense 
notices for systems of records subject to the Privacy Act of 1974 (5 
U.S.C. 552a), as amended, have been published in the Federal Register 
and are available from the address above.
    The proposed systems reports, as required by 5 U.S.C. 552a(r) of the 
Privacy Act of 1974, as amended, were submitted on January 20, 2006, to 
the House Committee on Government Reform, the Senate Committee on 
Homeland Security and Governmental Affairs, and the Office of Management 
and Budget (OMB) pursuant to paragraph 4c of Appendix I to OMB Circular 
No. A-130, ``Federal Agency Responsibilities for Maintaining Records 
About Individuals,'' dated February 8, 1996 (February 20, 1996, 61 FR 
6427).

    Dated: February 1, 2006.

John Miller,

OSD Federal Register Liaison Officer, Department of Defense.

                                NSLRB 01

    System name: The National Security Labor Relations Board (NSLRB).
    System location: National Security Labor Relations Board (NSLRB), 
1401 Wilson Boulevard, Arlington, VA 22209-2325.
    Categories of individuals covered by the system: Current and former 
civilian Federal Government employees who have filed unfair labor 
practice charges, negotiability disputes, exceptions to arbitration 
awards, and impasses with the National Security Labor Relations Board 
(NSLRB) pursuant to the National Security Personnel System (NSPS).
    Categories of records in the system: Documents relating to the 
proceedings before the Board, including the name of the individual 
initiating NSLRB action, statements of witnesses, reports of interviews 
and hearings, examiner's findings and recommendations, a copy of the 
original decision, and related correspondence and exhibits.
    Authority for maintenance of the system: The National Defense 
Authorization Act for FY 2004, Public Law 108-136, Section 1101; 5 
U.S.C. 9902(m), Labor Management Relations in the Department of Defense; 
and 5 CFR 9901.907, National Security Labor Relations Board.
    Purpose(s): To establish a system of records that will document 
adjudication of unfair labor practice charges, negotiability disputes, 
exceptions to arbitration awards, and impasses filed with the National 
Security Labor Relations Board.
    Routine uses of records maintained in the system, including 
categories of users and the purposes of such uses: In addition to those 
disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy 
Act, these records or information contained therein may specifically be 
disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 
552a(b)(3) as follows:
    To the Federal Labor Relations Authority (FLRA) or the Equal 
Employment Opportunity Commission, when requested, for performance of 
functions authorized by law.
    To disclose, in response to a request for discovery or for 
appearance of a witness, information that is relevant to the subject 
matter involved in a pending judicial or administrative proceeding.
    To provide information to officials of labor organizations 
recognized under 5 U.S.C. 71 when relevant and necessary to their duties 
of exclusive representation concerning personnel policies, practices, 
and matters affecting work conditions.
    The DoD ``Blanket Routine Uses'' set forth at the beginning of OSD's 
compilation of systems of records notices apply to this system.
    Policies and practices for storing, retrieving, accessing, 
retaining, and disposing of records in the system:
    Storage: Records are maintained on electronic storage media and 
paper.
    Retrievability: Records will be retrieved in the system by the 
following identifiers: assigned case number; individual's name; labor 
organizations filing the unfair labor practice charges; negotiability 
disputes; exceptions to arbitration awards; date, month, year or filing; 
complaint type; and the organizational component from which the 
complaint arises.
    Safeguards: Records are maintained in a controlled facility. 
Physical entry is restricted by the use of locks, guards, and is 
accessible only to authorized personnel. Access to records is limited to 
person(s) responsible for servicing the record in performance of their 
official duties and who are properly screened and cleared for need-to-
know. Access to computerized data is restricted by passwords, which are 
changed periodically.
    Retention and disposal: Records are disposed of 5 years after final 
resolution of case.
    System manager(s) and address: Executive Director, National Security 
Personnel System, Program Executive Office, 1401 Wilson Boulevard, 
Arlington, VA 22209-2325.
    Notification procedure: Individuals seeking to determine whether 
this system of records contains information about themselves

[[Page 918]]

should address written inquiries to the Executive Director, National 
Security Personnel System, Program Executive Office, 1401 Wilson 
Boulevard, Arlington, VA 22209-2325.
    Request should contain name; assigned case number; approximate case 
date (day, month, and year); case type; the names of the individuals 
and/or labor organizations filed the unfair labor practice charges; 
negotiability disputes; exceptions to arbitration awards; and impasses.
    Record access procedures: Individuals seeking access to records 
about themselves contained in this system of records should address 
written inquiries to the Executive Director, National Security Personnel 
System, Program Executive Office, 1401 Wilson Boulevard, Arlington, VA 
22209-2325.
    Request should contain name; assigned case number; approximate case 
date (day, month, and year); case type; the names of the individuals 
and/or labor organizations filed the unfair labor practice charges; 
negotiability disputes; exceptions to arbitration awards; and impasses.
    Contesting record procedures: The OSD's rules for accessing records, 
for contesting contents and appealing initial agency determinations are 
published in OSD Administrative Instruction No. 81; 32 CFR part 311; or 
may be obtained from the system manager.
    Record source categories: Individual; other officials or employees; 
and departmental and other records containing information pertinent to 
the NSLRB action.
    Exemptions claimed for the system: None.

                     Altered System of Record Notice

                          DEPARTMENT OF DEFENSE

                        Defense Logistics Agency

                 Privacy Act of 1974; Systems of Records

AGENCY: Defense Logistics Agency.
ACTION: Notice to alter a system of records.
SUMMARY: The Defense Logistics Agency proposes to alter a system of 
records notice in its inventory of record systems subject to the Privacy 
Act of 1974 (5 U.S.C. 552a), as amended. The alteration adds two routine 
uses, revises the purpose category, and makes other administrative 
changes to the system notice.
DATES: This action will be effective without further notice on (insert 
date thirty days after publication in the Federal Register) unless 
comments are received that would result in a contrary determination.

ADDRESSES: Send comments to the Privacy Act Officer, Headquarters, 
Defense Logistics Agency, ATTN: DSS-B, 8725 John J. Kingman Road, Suite 
2533, Fort Belvoir, VA 22060-6221.

FOR FURTHER INFORMATION CONTACT: Ms. Mary Smith at (703) 000-0000.

SUPPLEMENTARY INFORMATION: The Defense Logistics Agency notices for 
systems of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), 
as amended, have been published in the Federal Register and are 
available from the address above.
    The proposed system report, as required by 5 U.S.C. 552a(r) of the 
Privacy Act of 1974, as amended, was submitted on January 29, 2004, to 
the House Committee on Government Reform, the Senate Committee on 
Governmental Affairs, and the Office of Management and Budget (OMB) 
pursuant to paragraph 4c of Appendix I to OMB Circular No. A-130, 
`Federal Agency Responsibilities for Maintaining Records About 
Individuals,' dated February 8, 1996 (February 20, 1996, 61 FR 6427).

    Dated: February 2, 2004.

John Miller,

Alternate OSD Federal Register Liaison Officer, Department of Defense.

                              S253.10 DLA-G

    System name: Invention Disclosure (February 22, 1993, 58 FR 10854).
    Changes:

                                * * * * *

    System identifier: Replace `S253.10 DLA-G' with `S100.70'.

                                * * * * *

    Categories of individuals covered by the system: Delete `to the DLA 
General Counsel' at the end of the sentence and replace with `to DLA.'

                                * * * * *

    Categories of records in the system: Delete entry and replace with 
`Inventor's name, Social Security Number, address, and telephone 
numbers; descriptions of inventions; designs or drawings, as 
appropriate; evaluations of patentability; recommendations for employee 
awards; licensing documents; and similar records. Where patent 
protection is pursued by DLA, the file may also contain copies of 
applications, Letters Patent, and related materials.'

                                * * * * *

    Authority for maintenance of the system: Delete entry and replace 
with `5 U.S.C. 301, Departmental Regulations; 5 U.S.C. 4502, General 
provisions; 10 U.S.C. 2320, Rights in technical data; 15 U.S.C. 3710b, 
Rewards for scientific, engineering, and technical personnel of federal 
agencies; 15 U.S.C. 3711d, Employee activities; 35 U.S.C. 181-185, 
Secrecy of Certain Inventions and Filing Applications in Foreign 
Countries; E.O. 9397

[[Page 919]]

(SSN); and E.O. 10096 (Inventions Made by Government Employees) as 
amended by E.O. 10930.'

                                * * * * *

    Purpose(s): Delete entry and replace with `Data is maintained for 
making determinations regarding and recording DLA interest in the 
acquisition of patents; for documenting the patent process; and for 
documenting any rights of the inventor. The records may also be used in 
conjunction with the employee award program, where appropriate.'

                                * * * * *

    Routine uses of records maintained in the system, including 
categories of users and the purpose of such uses: Add two new 
paragraphs: `To the U.S. Patent and Trademark Office for use in 
processing applications and performing related functions and 
responsibilities under Title 35 of the U.S. Code.
    To foreign government patent offices for the purpose of securing 
foreign patent rights.'

                                * * * * *

    Safeguards: Delete entry and replace with `Access is limited to 
those individuals who require the records for the performance of their 
official duties. Paper records are maintained in buildings with 
controlled or monitored access. During non-duty hours, records are 
secured in locked or guarded buildings, locked offices, or guarded 
cabinets. The electronic records systems employ user identification and 
password or smart card technology protocols.'

                                * * * * *

    Retention and disposal: Delete entry and replace with `Records 
maintained by Headquarters and field Offices of Counsel are destroyed 26 
years after file is closed. Records maintained by field level Offices of 
Counsel where patent applications are not prepared are destroyed 7 years 
after closure.'

                                * * * * *

    Record source categories: Delete entry and replace with `Inventors, 
reviewers, evaluators, officials of U.S. and foreign patent offices, and 
other persons having a direct interest in the file.'

                                * * * * *

                                 S100.70

    System name: Invention Disclosure.
    System location: Office of the General Counsel, HQ DLA-DG, 8725 John 
J. Kingman Road, Stop 2533, Fort Belvoir, VA 22060-6221, and the offices 
of counsel of the DLA field activities. Official mailing addresses are 
published as an appendix to DLA's compilation of systems of records 
notices.
    Categories of individuals covered by the system: Employees and 
military personnel assigned to DLA who have submitted invention 
disclosures to DLA.
    Categories of records in the system: Inventor's name, Social 
Security Number, address, and telephone numbers; descriptions of 
inventions; designs or drawings, as appropriate; evaluations of 
patentability; recommendations for employee awards; licensing documents; 
and similar records. Where patent protection is pursued by DLA, the file 
may also contain copies of applications, Letters Patent, and related 
materials.
    Authority for maintenance of the system: 5 U.S.C. 301, Departmental 
Regulations; 5 U.S.C. 4502, General provisions; 10 U.S.C. 2320, Rights 
in technical data; 15 U.S.C. 3710b, Rewards for scientific, engineering, 
and technical personnel of federal agencies; 15 U.S.C. 3711d, Employee 
activities; 35 U.S.C. 181-185, Secrecy of Certain Inventions and Filing 
Applications in Foreign Countries; E.O. 9397 (SSN); and E.O. 10096 
(Inventions Made by Government Employees) as amended by E.O. 10930.
    Purpose(s): Data is maintained for making determinations regarding 
and recording DLA interest in the acquisition of patents, for 
documenting the patent process, and for documenting any rights of the 
inventor. The records may also be used in conjunction with the employee 
award program, where appropriate.
    Routine uses of records maintained in the system, including 
categories of users and the purposes of such uses: In addition to those 
disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy 
Act, these records or information contained therein may specifically be 
disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 
552a(b)(3) as follows:
    To the U.S. Patent and Trademark Office for use in processing 
applications and performing related functions and responsibilities under 
Title 35 of the U. S. Code.
    To foreign government patent offices for the purpose of securing 
foreign patent rights.
    Information may be referred to other government agencies or to non-
government agencies or to non-government personnel (including 
contractors or prospective contractors) having an identified interest in 
a particular invention and the Government's rights therein.
    The DoD `Blanket Routine Uses' set forth at the beginning of DLA's 
compilation of systems of records notices apply to this system.

[[Page 920]]

    Policies and practices for storing, retrieving, accessing, 
retaining, and disposing of records in the system:
    Storage: Records are maintained in paper and computerized form.
    Retrievability: Filed by names of inventors.
    Safeguards: Access is limited to those individuals who require the 
records for the performance of their official duties. Paper records are 
maintained in buildings with controlled or monitored access. During non-
duty hours, records are secured in locked or guarded buildings, locked 
offices, or guarded cabinets. The electronic records systems employ user 
identification and password or smart card technology protocols.
    Retention and disposal: Records maintain by the HQ and field Offices 
of Counsel are destroyed 26 years after file is closed. Records 
maintained by field level Offices of Counsel where patent applications 
are not prepared are destroyed 7 years after closure.
    System manager(s) and address: Office of the General Counsel, 
Headquarters, Defense Logistics Agency, ATTN: DG, 8725 John J. Kingman 
Road, Stop 2533, Fort Belvoir, VA 22060-6221.
    Notification procedure: Individuals seeking to determine whether 
information about themselves is contained in this system should address 
written inquiries to the Privacy Officer, Headquarters, Defense 
Logistics Agency, ATTN: DSS-B, 8725 John J. Kingman Road, Stop 6220, 
Fort Belvoir, VA 22060-6221, or the Privacy Officers at DLA field 
activities. Official mailing addresses are published as an appendix to 
DLA's compilation of systems of records notices.
    Record access procedures: Individuals seeking access to information 
about themselves contained in this system should address written 
inquiries to the Privacy Officer, Headquarters, Defense Logistics 
Agency, ATTN: DSS-B, 8725 John J. Kingman Road, Stop 6220, Fort Belvoir, 
VA 22060-6221, or the Privacy Officers at the DLA field activities. 
Official mailing addresses are published as an appendix to DLA's 
compilation of systems of records notices.
    Individuals should provide information that contains full name, 
current address and telephone numbers of requester.
    For personal visits, each individual shall provide acceptable 
identification, e.g., driver's license or identification card.
    Contesting record procedures: The DLA rules for accessing records, 
contesting contents, and appealing initial agency determinations are 
contained in 32 CFR part 323, or may be obtained from the Privacy Act 
Officer, Headquarters, Defense Logistics Agency, ATTN: DSS-B, 8725 John 
J. Kingman Road, Stop 6220, Fort Belvoir, VA 22060-6221.
    Record source categories: Inventors, reviewers, evaluators, 
officials of U.S. and foreign patent offices, and other persons having a 
direct interest in the file.
    Exemptions claimed for the system: None.



  Sec. Appendix F to Part 310--Format for New or Altered System Report

(See paragraph (c) of Sec. 310.33)

    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 shall be prepared by the Defense Privacy 
Office and shall contain assurances that the new or altered system does 
not duplicate any existing Component systems, DoD-wide systems or 
government-wide systems. The narrative statement, and the system notice, 
shall be attached thereto.

                         B. Narrative Statement

    The statement shall include information on the following:
    1. System Identifier and name;
    2. Responsible official;
    3. Purpose of establishing the system [for a new system only] or 
Nature of the changes proposed for the system [for altered system only];
    4. Authority for maintenance of the System;
    5. Probable or potential effects on the privacy of individuals;
    6. Is the system, in whole or part, being maintained by a 
contractor;
    7. Steps taken to minimize risk of unauthorized access;
    8. Routine use compatibility;
    9. OMB information collection requirements; and
    10. Supporting documentation.

           Attachment 1--Sample Format for Narrative Statement

                          DEPARTMENT OF DEFENSE

                            [Component Name]

        Narrative Statement on a [New/Altered] System of Records

                      Under the Privacy Act of 1974

    1. System Identifier and Name. This caption sets forth the 
identification and name of the system (see subparagraphs (b)(c) of Sec. 
310.32).
    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 the Defense Privacy Office.
    3. Purpose of establishing the system or nature of the changes 
proposed for the system: Describe the purpose of the new system or how 
an existing system is being changed.

[[Page 921]]

    4. Authority for maintenance of the system. See paragraph (g) of 
Sec. 310.32.
    5. Probable or potential effects on the privacy of individuals. What 
effect, if any, will the new or altered system impact the personal 
privacy of the affected individuals.
    6. Is the system, in whole or in part, being maintained by a 
contractor. If yes, Components shall ensure that the contract has 
incorporated the Federal Acquisition privacy clause (see paragraph 
(a)(1) of Sec. 310.12).
    7. Steps taken to minimize risk of unauthorized access. Describe 
actions taken to reduce the vulnerability of the system to potential 
threats. See Appendix A to this part.
    8. Routine use compatibility. Provide assurances that any records 
contained in the system that are disclosed outside the DoD shall be for 
a use that is compatible with the purpose for which the record was 
collected. Advise whether or not the blanket routine uses apply to this 
system.
    9. OMB collection requirements. If information is to be collected 
from members of the public, the requirements of reference ( ) apply and 
OMB must be advised.
    10. Supporting documentation. The following are typical enclosures 
that may be required:
    a. An advance copy of the system notice for a new or altered system 
that is proposed for publication.
    b. An advance copy of a proposed exemption rule if the new or 
altered system is to be exempted in accordance with subpart F.
    c. Any other supporting documentation that may be pertinent or 
helpful in understanding the need for the system or clarifying its 
intended use.

                Attachment 2--SAMPLE NARRATIVE STATEMENT

                          DEPARTMENT OF DEFENSE

                         Office of the Secretary

             Narrative Statement on a New System of Records

                      Under the Privacy Act of 1974

    1. System identifier and name: NSLRB 01, entitled ``The National 
Security Labor Relations Board (NSLRB).''
    2. Responsible official: Mr. John Miller, National Security Labor 
Relations Board (NSLRB), 0000 Smith Boulevard, Arlington, VA 22209, 
Telephone (703) 000-0000.
    3. Purpose of establishing the system: The Office of the Secretary 
of Defense is proposing to establish a system of records that will 
document adjudication of unfair labor practice charges, negotiability 
disputes, exceptions to arbitration awards, and impasses filed with the 
National Security Labor Relations Board.
    4. Authority for the maintenance of the system: The National Defense 
Authorization Act for FY 2004, Pub Law 108-136, Section 1101; 5 U.S.C. 
9902(m), Labor Management Relations in the Department of Defense; and 5 
CFR 9901.907, National Security Labor Relations Board.
    5. Probable or potential effects on the privacy of individuals: None
    6. Is the system, in whole or in part, being maintained by a 
contractor? No
    7. Steps taken to minimize risk of unauthorized access: Records are 
maintained in a controlled facility. Physical entry is restricted by the 
use of locks, guards, and is accessible only to authorized personnel. 
Access to records is limited to person(s) responsible for servicing the 
record in performance of their official duties and who are properly 
screened and cleared for need-to-know. Access to computerized data is 
restricted by passwords, which are changed periodically.
    8. Routine use compatibility: Any release of information contained 
in this system of records outside of the DoD will be compatible with 
purposes for which the information is collected and maintained. The DoD 
``Blanket Routine Uses'' apply to this system of records.
    9. OMB information collection requirements: None.
    10. Supporting documentation: None.



 Sec. Appendix G to Part 310--Sample Amendments or Deletions to System 
                   Notices in Federal Register Format

(See Sec. 310.34)

                       Amendment of system notice

                          DEPARTMENT OF DEFENSE

                         Department of the Army

                 Privacy Act of 1974; System of Records

AGENCY: Department of the Army, DoD.
ACTION: Notice to Amend a System of Records.
SUMMARY: The Department of the Army is proposing to amend a system of 
records notice in its existing inventory of records systems subject to 
the Privacy Act of 1974, (5 U.S.C. 552a), as amended.
DATES: This proposed action will be effective without further notice on 
(insert date thirty days after publication in Federal Register) unless 
comments are received which result in a contrary determination.
ADDRESSES: Department of the Army, Freedom of Information/Privacy 
Division, U.S. Army Records Management and Declassification Agency, 
ATTN: AHRC-PDD-FPZ, 7701 Telegraph Road, Casey Building, Suite 144, 
Alexandria, VA 22325-3905.

FOR FURTHER INFORMATION CONTACT: Ms. Mary Smith at (703) 000-0000.

[[Page 922]]

SUPPLEMENTARY INFORMATION: The Department of the Army systems of records 
notices subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended, 
have been published in the Federal Register and are available from the 
address above.
    The specific changes to the records systems being amended are set 
forth below followed by the notices, as amended, published in their 
entirety. The proposed amendments are not within the purview of 
subsection (r) of the Privacy Act of 1974, (5 U.S.C. 552a), as amended, 
which requires the submission of a new or altered system report.

    Dated: February 3, 2006.

John Miller,

OSD Federal Register Liaison Officer, Department of Defense.

                              A0055 USEUCOM

    System name: Europe Command Travel Clearance Records (August 23, 
2004, 69 FR 51817).
    Changes:

                                * * * * *

    System name: Delete system identifier and replace with: ``A0055 
USEUCOM DoD''.

                                * * * * *

                            A0055 USEUCOM DoD

    System name: Europe Command Travel Clearance Records.
    System location: Headquarters, United States European Command, 
Computer Network Operations Center, Building 2324, P.O. Box 1000, APO AE 
09131-1000.
    Categories of individuals covered by the system: Military, DoD 
civilians, and non-DoD personnel traveling under DoD sponsorship (e.g., 
contractors, foreign nationals and dependents) and includes temporary 
travelers within the United States European Command's (USEUCOM) area of 
responsibility as defined by the DoD Foreign Clearance Guide Program.
    Categories of records in the system: Travel requests, which contain 
the individual's name; rank/pay grade; Social Security Number; military 
branch or department; passport number; Visa Number; office address and 
telephone number, official and personal email address, detailed 
information on sites to be visited, visitation dates and purpose of 
visit.
    Authority for the maintenance of the system: 10 U.S.C. 3013, 
Secretary of the Army; 10 U.S.C. 5013, Secretary of the Navy; 10 U.S.C. 
8013, Secretary of the Air Force; DoD 4500.54-G, Department of Defense 
Foreign Clearance Guide; Public Law 99-399, Omnibus Diplomatic Security 
and Antiterrorism Act of 1986; 22 U.S.C. 4801, 4802, and 4805, Foreign 
Relations and Intercourse; E.O. 12333, United States Intelligence 
Activities; Army Regulation 55-46, Travel Overseas; and E.O. 9397 (SSN).
    Purpose(s): To provide the DoD with an automated system to clear and 
audit travel within the United States European Command's area of 
responsibility and to ensure compliance with the specific clearance 
requirements outline in the DoD Foreign Clearance Guide; to provide 
individual travelers with intelligence and travel warnings; and to 
provide the Defense Attach[eacute] and other DoD authorized officials 
with information necessary to verify official travel by DoD personnel.
    Routine uses of records maintained in the system, including 
categories of users and the purposes of such uses: In addition to those 
disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy 
Act, these records or information contained therein may specifically be 
disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 
552a(b)(3) as follows:
    To the Department of State Regional Security Officer, U.S. Embassy 
officials, and foreign police for the purpose of coordinating security 
support for DoD travelers.
    The DoD `Blanket Routine Uses' set forth at the beginning of the 
Army's compilation of systems of records notices also apply to this 
system.
    Policies and practices for storing, retiring, accessing, retaining, 
and disposing of records.
    Storage: Electronic storage media.
    Retrievability: Retrieved by individual's surname, Social Security 
Number and/or passport number.
    Safeguards: Electronic records are located in the United States 
European Command's Theater Requirements Automated Clearance System 
(TRACS) computer database with built in safeguards. Computerized records 
are maintained in controlled areas accessible only to authorized 
personnel with an official need to know access. In addition, automated 
files are password protected and in compliance with the applicable laws 
and regulations. Another built in safeguard of the system is records are 
access to the data through secure network.
    Retention and disposal: Records are destroyed 3 months after travel 
is completed.
    System manager(s) and address: Special Assistant for Security 
Matters, Headquarters, United States European Command, Unit 30400, P.O. 
Box 1000, APO AE 09131-1000.
    Notification procedures: Individuals seeking to determine whether 
information about themselves is contained in this system of records 
should address written inquiries to the Special Assistant for Security 
Matters, Headquarters, United States European Command, Unit 30400, P.O. 
Box 1000, APO AE 09131-1000.

[[Page 923]]

    Requests should contain individual's full name, Social Security 
Number, and/or passport number.
    Record access procedures: Individuals seeking to access information 
about themselves that is contained in this system of records should 
address written inquiries to the Special Assistant for Security Matters, 
Headquarters, United States European Command, Unit 30400, P.O. Box 1000, 
APO AE 09131-1000.
    Requests should contain individual's full name, Social Security 
Number, and/or passport number.
    Contesting record procedures: The Army's rules for accessing records 
and for contesting contents and appealing initial agency determinations 
are contained in Army Regulation 340-21; 32 CFR part 505; or may be 
obtained from the system manager.
    Record source categories: From individuals.
    Exemptions claimed for the system: None.

                        Deletion of System Notice

                          DEPARTMENT OF DEFENSE

                         Office of the Secretary

                 Privacy Act of 1974; System of Records

AGENCY: Office of the Secretary, DoD.

ACTION: Notice to delete systems of records.

SUMMARY: The Office of the Secretary of Defense is deleting a system of 
records notice from its existing inventory of records systems subject to 
the Privacy Act of 1974, (5 U.S.C. 552a), as amended.
DATES: This proposed action will be effective without further notice on 
(insert date thirty days after publication in Federal Register) unless 
comments are received which result in a contrary determination.
ADDRESSES: OSD Privacy Act Coordinator, Records Management Section, 
Washington Headquarters Services, 1155 Defense Pentagon, Washington, DC 
20301-1155.
FOR FURTHER INFORMATION CONTACT: Ms. Mary Smith at (703) 000-0000.
SUPPLEMENTARY INFORMATION: The Office of the Secretary of Defense 
systems of records notices subject to the Privacy Act of 1974, (5 U.S.C. 
552a), as amended, have been published in the Federal Register and are 
available from the address above.
    The specific changes to the records system being amended are set 
forth below followed by the notice, as amended, published in its 
entirety. The proposed amendments are not within the purview of 
subsection (r) of the Privacy Act of 1974, (5 U.S.C. 552a), as amended, 
which requires the submission of a new or altered system report.

    Dated: April 2, 2006.

John Miller,

OSD Federal Register Liaison Officer, Department of Defense.

                                DODDS 27

System name: DoD Domestic and Elementary School Employee File (May 9, 
2003, 68 FR 24935).
Reason: The records contained in this system of records are covered by 
OPM/GOVT-1 (General Personnel Records), a government-wide system notice.



          Sec. Appendix H to Part 310--Litigation Status Sheet

    (See Sec. 310.49)

                         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
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
d. Court's Finding
e. Disciplinary Action (as appropriate)



PART 311_OFFICE OF THE SECRETARY OF DEFENSE AND JOINT STAFF PRIVACY 
PROGRAM--Table of Contents



Sec.
311.1 Purpose.
311.2 Applicability.
311.3 Definitions.
311.4 Policy.
311.5 Responsibilities.
311.6 Procedures.
311.7 OSD/JS Privacy Office Processes.
311.8 Procedures for exemptions.

    Authority: 5 U.S.C. 552a.

    Source: 74 FR 56114, Oct. 30, 2009, unless otherwise noted.

[[Page 924]]



Sec. 311.1  Purpose.

    This part revises 32 CFR part 311 to update Office of the Secretary 
of Defense (OSD) and Joint Staff (JS) policy, assigns responsibilities, 
and prescribes procedures for the effective administration of the 
Privacy Program in OSD and the JS. This part supplements and implements 
part 32 CFR part 310, the DoD Privacy Program.



Sec. 311.2  Applicability.

    This part:
    (a) Applies to OSD, the Office of the Chairman of the Joint Chiefs 
of Staff and the Joint Staff, and all other activities serviced by 
Washington Headquarters Services (WHS) that receive privacy program 
support from OSD/JS Privacy Office, Executive Services Directorate 
(ESD), WHS (hereafter referred to collectively as the ``WHS-Serviced 
Components).''
    (b) Covers systems of records maintained by the WHS-Serviced 
Components and governs the maintenance, access, change, and release 
information contained in those systems of records, from which 
information about an individual is retrieved by a personal identifier.



Sec. 311.3  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) Computer matching program. A program that matches the personal 
records in computerized databases of two or more Federal agencies.
    (c) 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.
    (d) 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. Members of the United States Armed Forces are 
``individuals.'' Corporations, partnerships, sole proprietorships, 
professional groups, businesses, whether incorporated or unincorporated, 
and other commercial entities are not ``individuals'' when acting in an 
entrepreneurial capacity with the Department of Defense but are 
``individuals'' otherwise (e.g., security clearances, entitlement to DoD 
privileges or benefits, etc.).
    (e) Individual access. Access to information pertaining to the 
individual by the individual or his or her designated agent or legal 
guardian.
    (f) Maintain. To maintain, collect, use, or disseminate records 
contained in a system of records.
    (g) Personal information. Information about an individual that 
identifies, links, 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; other 
demographic, biometric, personnel, medical, and financial information, 
etc. Such information also is known as personally identifiable 
information (i.e., information which can be used to distinguish or trace 
an individual's identity, such as their name, social security number, 
date and place of birth, mother's maiden name, biometric records, 
including any other personal information which is linked or linkable to 
a specified individual).
    (h) 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 WHS-Serviced 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.
    (i) System manager. A WHS-Serviced Component official who has 
overall responsibility for a system of records. The system manager may 
serve at any level in OSD. Systems managers are indicated in the 
published systems of records notices. If more than one official is 
indicated as a system manager, initial responsibility resides with the 
manager at the appropriate level (i.e., for local records, at the local 
activity).

[[Page 925]]

    (j) System of records. A group of records under the control of a 
WHS-Serviced Component from which personal information about an 
individual is retrieved by the name of the individual or by some other 
identifying number, symbol, or other identifying particular assigned, 
that is unique to the individual.



Sec. 311.4  Policy.

    It is DoD policy, in accordance with 32 CFR part 310, that:
    (a) Personal information contained in any system of records 
maintained by any DoD organization shall be safeguarded. To the extent 
authorized by section 552a of title 5, United States Code, commonly 
known and hereafter referred to as the ``Privacy Act'' and Appendix I of 
Office of Management and Budget Circular No. A-130 (available at http://
www.whitehouse.gov/omb/assets/omb/circulars/a130/a130trans4.pdf), an 
individual shall be permitted to know what existing records pertain to 
him or her consistent with 32 CFR part 310.
    (b) Each office maintaining records and information about 
individuals shall ensure that this data is protected from unauthorized 
collection, use, dissemination and/or disclosure of personal 
information. These offices shall permit individuals to have access to 
and have a copy made of all or any portion of records about them, except 
as provided in 32 CFR 310.17 and 310.18. The individuals will also have 
an opportunity to request that such records be amended as provided by 32 
CFR 310.19 . Individuals requesting access to their records shall 
receive concurrent consideration under section 552 of title 5, United 
States Code (commonly known and hereafter referred to as the ``Freedom 
of Information Act'').
    (c) Necessary records of a personal nature that are individually 
identifiable will be maintained in a manner that complies with the law 
and DoD policy. Any information collected by WHS-Serviced Components 
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, 
consistent with the Privacy Act.



Sec. 311.5  Responsibilities.

    (a) The Director, WHS, under the authority, direction, and control 
of the Director, Administration and Management, shall:
    (1) Direct and administer the OSD/JS Privacy Program for the WHS-
Serviced Components.
    (2) Ensure implementation of and compliance with standard and 
procedures established in 32 CFR part 310.
    (3) Coordinate with the WHS General Counsel on all WHS-Serviced 
Components denials of appeals for amending records and review actions to 
confirm denial of access to records.
    (4) Provide advice and assistance to the WHS-Serviced Components on 
matters pertaining to the Privacy Act.
    (5) Direct the OSD/JS Privacy Office to implement all aspects of 32 
CFR part 310 as directed in Sec. 311.7 of this part.
    (b) The Heads of the WHS-Serviced Components shall:
    (1) Designate an individual in writing as the point of contact for 
Privacy Act matters and advise the Chief, OSD/JS Privacy Office, of 
names of officials so designated.
    (2) Designate an official in writing to deny initial requests for 
access to an individual's records or changes to records and advise the 
Chief, OSD/JS Privacy Office of names of officials so designated.
    (3) Provide opportunities for appointed personnel to attend periodic 
Privacy Act training.
    (4) Report any new record system, or changes to an existing system, 
to the Chief, OSD/JS Privacy Office at least 90 days before the intended 
use of the system.
    (5) Formally review each system of records notice on a biennial 
basis and update as necessary.
    (6) In accordance with 32 CFR 310.12, include appropriate Federal 
Acquisition Regulation clause (48 CFR 24.104) in all contracts that 
provide for contractor personnel to access WHS-Serviced Component 
records systems covered by the Privacy Act.
    (7) Review all implementing guidance prepared by the WHS-Serviced 
Components as well as all forms or other methods used to collect 
information about individuals to ensure compliance with 32 CFR part 310.

[[Page 926]]

    (8) Establish administrative processes in WHS-Serviced Component 
organizations to comply with the procedures listed in this part and 32 
CFR part 310.
    (9) Coordinate with WHS General Counsel on all proposed denials of 
access to records.
    (10) Provide justification to the OSD/JS Privacy Office when access 
to a record is denied in whole or in part.
    (11) Provide the record to the OSD/JS Privacy Office 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 if an appeal seems 
likely.
    (12) Maintain an accurate administrative record documenting the 
actions resulting in a denial for access to a record or for the 
correction of a record. The administrative record should be maintained 
so it can be relied upon and submitted as a complete record of 
proceedings if litigation occurs in accordance with 32 CFR part 310.
    (13) Ensure all personnel are aware of the requirement to take 
appropriate Privacy Act training as required by 32 CFR part 310 and the 
Privacy Act.
    (14) Forward all requests for access to records received directly 
from an individual to the OSD/JS Freedom of Information Act Requester 
Service Center for processing under 32 CFR part 310 and 32 CFR part 286.
    (15) Maintain a record of each disclosure of information (other than 
routine use) from a system of records as required by 32 CFR part 310.



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 32 CFR 310.4.
    (2) The Heads of the WHS-Serviced Component shall submit notices for 
new or revised systems of records to the Chief, OSD/JS Privacy Office, 
for review at least 90 days prior to desired implementation.
    (3) The Chief, OSD/JS Privacy Office shall forward completed notices 
to the Defense Privacy Office (DPO) for review in accordance with 32 CFR 
310.30. Publication in the Federal Register starts a 30-day comment 
window which provides the public with an opportunity to submit written 
data, views, or arguments to the DPO for consideration before a system 
of record is established or modified.
    (b) Access to Systems of Records Information. (1) As provided in 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 the provisions in 32 CFR 310.31. If an individual is 
accompanied by a third party, the individual shall be required to 
furnish a signed access authorization granting the third party access 
according to 32 CFR 310.17.
    (2) Individuals seeking access to records that pertain to 
themselves, and that are filed by name or other personal identifier, may 
submit the request in person or by mail, in accordance with these 
procedures:
    (i) Any individual making a request for access to records in person 
shall provide personal identification to the appropriate system owner, 
as identified in the system of records notice published in the Federal 
Register, to verify the individual's identity according to 32 CFR 
310.17.
    (ii) Any individual making a request for access to records by mail 
shall address such request to the OSD/JS FOIA Requester Service Center, 
Office of Freedom of Information, 1155 Pentagon, Washington, DC 20301-
1155. To verify his or her identity, the requester shall include either 
a signed notarized statement or an unsworn declaration in the format 
specified by 32 CFR part 286.
    (iii) All requests for records shall describe the record sought and 
provide 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).
    (iv) All requesters shall comply with the procedures in 32 CFR part 
310 for inspecting and/or obtaining copies of requested records.
    (v) If the requester is not satisfied with the response, he or she 
may file a written appeal as provided in paragraph (f)(8) of this 
section. The requester must provide proof of identity

[[Page 927]]

by showing a driver's license or similar credentials.
    (3) There is no requirement that an individual be given access to 
records that are not in a group of records that meet the definition of a 
system of records in the Privacy Act. (For an explanation of the 
relationship between the Privacy Act and the Freedom of Information Act, 
and for guidelines to ensure requesters are given the maximum amount of 
information authorized by both Acts, see 32 CFR part 310.17
    (4) 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.
    (5) No verification of identity shall be required of an individual 
seeking access to records that are otherwise available to the public.
    (6) Individuals shall not be denied access to a record in a system 
of records about themselves because those records are exempted from 
disclosure under 32 CFR part 286. 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 32 CFR 310.26.
    (7) Individuals shall not be denied access to their records for 
refusing to disclose their Social Security Number (SSN), 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 (Privacy Act, note).
    (c) Access to Records or Information Compiled for Law Enforcement 
Purposes.
    (1) Requests are processed under 32 CFR part 310 and 32 CFR part 286 
to give requesters a greater degree of access to records on themselves.
    (2) Records (including those in the custody of law enforcement 
activities) that have been incorporated into a system of records 
exempted from the access conditions of 32 CFR part 310, will be 
processed in accordance with 32 CFR 286.12. Individuals shall not be 
denied access to records solely because they are in the exempt system. 
They will have the same access that they would receive under 32 CFR part 
286. (See also 32 CFR 310.17.)
    (3) Records systems exempted from access conditions will be 
processed under 32 CFR 310.26 or 32 CFR 286.12, depending upon which 
regulation gives the greater degree of access. (See also 32 CFR 310.17.)
    (4) Records systems exempted from access under 32 CFR 310.27 that 
are temporarily in the hands of a non-law enforcement element for 
adjudicative or personnel actions, shall be referred to the originating 
agency. The requester will be informed in writing of this referral.
    (d) Access to Illegible, Incomplete, or Partially Exempt Records. 
(1) 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.
    (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 makes it necessary to 
prepare an extract for release, the extract shall be prepared so that 
the requester will understand it.
    (4) The requester shall be informed of all deletions or changes to 
records.
    (e) Access to Medical Records. (1) Medical records shall be 
disclosed to the individual and may be transmitted to a medical doctor 
named by the individual concerned.
    (2) The individual may be charged reproduction fees for copies or 
records as outlined in 32 CFR 310.20.
    (f) Amending and Disputing Personal Information in Systems of 
Records.
    (1) The Head of a WHS-Serviced Component, or designated official, 
shall allow individuals to request amendment to their records to the 
extent that such records are not accurate, relevant, timely, or 
complete.
    (2) Requests shall be submitted in person or by mail to the office 
designated in the system of records notice. They should contain, as a 
minimum, identifying information to locate the record, a description of 
the items to be

[[Page 928]]

amended, and the reason for the change. Requesters shall be required to 
provide verification of their identity as stated in paragraphs (b)(2)(i) 
and (b)(2)(ii) of this section to ensure that they are seeking to amend 
records about themselves and not, inadvertently or intentionally, the 
records of others.
    (3) Requests shall not be rejected nor required to be resubmitted 
unless additional information is essential to process the request.
    (4) The appropriate system manager shall mail a written 
acknowledgment to an individual's request to amend a record within 10 
workdays after receipt. Such acknowledgment 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 and 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.
    (5) The Head of a WHS-Serviced Component, or designated official, 
shall promptly take one of three actions on requests to amend the 
records:
    (i) If the WHS-Serviced 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, regulations, or 
administrative procedures and inform the requester of the action taken 
in accordance with 32 CFR 310.19. The WHS-Serviced 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 WHS-Serviced 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 to submit an appeal as described in paragraph (f)(8) 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.
    (6) When personal information has been disputed by the requestor, 
the Head of a WHS-Serviced Component, or designated official, shall:
    (i) Determine whether the requester has adequately supported his or 
her claim that the record is inaccurate, irrelevant, untimely, or 
incomplete.
    (ii) Limit the review of a record to those items of information that 
clearly bear on any determination to amend the record, and shall ensure 
that all those elements are present before a determination is made.
    (7) If the Head of a WHS-Serviced Component, or designated official, 
after an initial review of a request to amend a record, disagrees with 
all or any portion of the request to amend 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 OSD/JS Privacy Office.
    (8) If an individual disagrees with the initial WHS-Serviced 
Component determination, he or she may file an appeal. If the record is 
created and maintained by a WHS-Serviced Component, the appeal should be 
sent to the Chief, OSD/JS Privacy Office, WHS, 1155 Defense Pentagon, 
Washington, DC 20301-1155.
    (9) If, after review, the Chief, OSD/JS Privacy Office, determines 
the system of records should not be amended as requested, the Chief, 
OSD/JS Privacy Office, shall provide a copy of any statement of 
disagreement to the extent that disclosure accounting is maintained in 
accordance with 32 CFR 310.25 and shall advise the individual:
    (i) Of the reason and authority for the denial.
    (ii) Of his or her right to file a statement of the reason for 
disagreeing with the OSD/JS Privacy Office's decision.

[[Page 929]]

    (iii) Of the procedures for filing a statement of disagreement.
    (iv) That the statement filed shall be made available to anyone the 
record is disclosed to, together with a brief statement by the WHS-
Serviced Component summarizing its reasons for refusing to amend the 
records.
    (10) If the Chief, OSD/JS Privacy Office, determines that the record 
should be amended in accordance with the individual's request, the WHS-
Serviced Component shall amend the record, advise the individual, and 
inform previous recipients where a disclosure accounting has been 
maintained in accordance with 32 CFR 310.25.
    (11) All appeals should be processed within 30 workdays after 
receipt by the proper office. If the Chief, OSD/JS Privacy Office, 
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.
    (g) Disclosure of Disputed Information. (1) If the OSD/JS Privacy 
Office determines the record should not be amended and the individual 
has filed a statement of disagreement under paragraph (f)(8) of this 
section, the WHS-Serviced Component shall annotate the disputed record 
so 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 disclosure accounting has been made, the 
WHS-Serviced Component shall advise previous recipients that the record 
has been disputed and shall provide a copy of the individual's statement 
of disagreement in accordance with 32 CFR 310.21.
    (i) This statement shall be maintained to permit ready retrieval 
whenever the disputed portion of the record is disclosed.
    (ii) When information that is the subject of a statement of 
disagreement is subsequently disclosed, the WHS-Serviced Component 
designated official shall note which information is disputed and provide 
a copy of the individual's statement.
    (2) The WHS-Serviced 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 WHS-Serviced Component summary will be treated as 
part of the individual's record; however, it will not be subject to the 
amendment procedure outlined in paragraph (f) of this section.
    (h) Penalties. (1) Civil Action. An individual may file a civil suit 
against the WHS-Serviced Component or its employees if the individual 
feels certain provisions of the Privacy Act have been violated.
    (2) Criminal Action. (i) Criminal penalties may be imposed against 
an officer or employee of a WHS-Serviced Component for these offenses 
listed in the Privacy Act:
    (A) Willful unauthorized disclosure of protected information in the 
records;
    (B) Failure to publish a notice of the existence of a record system 
in the Federal Register; and
    (C) Requesting or gaining access to the individual's record under 
false pretenses.
    (ii) An officer or employee of a WHS-Serviced Component may be fined 
up to $5,000 for a violation as outlined in paragraphs (h)(2)(i)(A) 
through (h)(2)(i)(C) of this section.
    (i) Litigation Status Sheet. Whenever a complaint citing the Privacy 
Act is filed in a U.S. District Court against the Department of Defense, 
a WHS-Serviced Component, or any employee of a WHS-Serviced Component, 
the responsible system manager shall promptly notify the OSD/JS Privacy 
Office, which shall notify the DPO. The litigation status sheet in 
Appendix H of 32 CFR part 310 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 OSD/JS Privacy Office 
with the litigation status sheet reporting that judgment or opinion.
    (j) Computer Matching Programs. 32 CFR 310.52 prescribes that all 
requests

[[Page 930]]

for participation in a matching program (either as a matching agency or 
a source agency) be submitted to the DPO for review and compliance. The 
WHS-Serviced Components shall submit a courtesy copy to the OSD/JS 
Privacy Office at the time of transmittal to the DPO.



Sec. 311.7  OSD/JS Privacy Office Processes.

    The OSD/JS Privacy Office shall:
    (a) Exercise oversight and administrative control of the OSD/JS 
Privacy Program for the WHS-Serviced Components.
    (b) Provide guidance and training to the WHS-Serviced Components as 
required by 32 CFR 310.37.
    (c) Collect and consolidate data from the WHS-Serviced Components 
and submit reports to the DPO, as required by 32 CFR 310.40 or otherwise 
requested by the DPO.
    (d) Coordinate and consolidate information for reporting all record 
systems, as well as changes to approved systems, to the DPO for final 
processing to the Office of Management and Budget, the Congress, and the 
Federal Register, as required by 32 CFR part 310.
    (e) In coordination with DPO, serve as the appellate authority for 
the WHS-Serviced Components when a requester appeals a denial for access 
as well as when a requester appeals a denial for amendment or initiates 
legal action to correct a record.
    (f) Refer all matters about amendments of records and general and 
specific exemptions under 32 CFR 310.19, 310.28 and 310.29 to the proper 
WHS-Serviced Components.



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

[[Page 931]]

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.
    (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

[[Page 932]]

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 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.
    (3)-(15) [Reserved]
    (16) System identifier and name: DWHS E06, Enterprise Correspondence 
Control System (ECCS).
    (i) Exemption: During the staffing and coordination of actions to, 
from, and within components in conduct of daily business, exempt 
materials from other systems of records may in turn become part of the 
case record in this document control 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) and (k)(1) through (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.
    (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

[[Page 933]]

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 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).

[[Page 934]]

    (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 (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

[[Page 935]]

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).
    (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

[[Page 936]]

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 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 decisionmaking 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

[[Page 937]]

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.
    (16) System identifier and name: DMDC 15 DoD, Armed Services 
Military Accession Testing.
    (i) Exemption: Testing or examination material used solely to 
determine individual qualifications for appointment or promotion in the 
Federal service or military 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. Therefore, portions of the 
system of records may be exempt pursuant to 5 U.S.C. 552a(d).
    (ii) Authority: 5 U.S.C. 552a(k)(6).
    (iii) Reasons: (A) An exemption is required for those portions of 
the Skill Qualification Test system pertaining to individual item 
responses and scoring keys to preclude compromise of the test and to 
ensure fairness and objectivity of the evaluation system.
    (B) From subsection (d)(1) when access to those portions of the 
Skill Qualification Test records would reveal the individual item 
responses and scoring keys. Disclosure of the individual item responses 
and scoring keys will compromise the objectivity and fairness of the 
test as well as the validity of future tests resulting in the Department 
being unable to use the testing battery as an individual assessment 
tool.
    (17) System identifier and name: DMDC 11, Investigative Records 
Repository.
    (i) Exemptions: (A) 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.
    (B) 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).
    (C) 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.
    (D) 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. 552(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), 
and (f).
    (ii) Authority: 5 U.S.C. 552a(k)(2), (k)(3), or (k)(5).
    (iii) Reasons: (A) From subsection (c)(3) because it will enable the 
Department 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

[[Page 938]]

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).
    (B) 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 source's identity would be 
held in confidence (or prior to the effective date of the Act, under an 
implied promise).
    (C) From subsections (d) and (f) because requiring OSD 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 OSD 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.
    (18) System identifier and name: DMDC 12 DoD, Joint Personnel 
Adjudication System (JPAS).
    (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.
    (ii) Authority: 5 U.S.C. 552a(k)(5).
    (iii) Reasons: (A) from subsections (c)(3) and (d) when access to 
accounting disclosure 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 subsection (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. 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.
    (19) System identifier and name: DA&M 01, Civil Liberties Program 
Case Management System.
    (i) Exemptions: Records contained in this System of Records may be 
exempted from the requirements of subsections (c)(3); (d)(1), (2), (3), 
and (4); (e)(1) and (e)(4)(G), (H), and (I); and (f) of the Privacy Act 
pursuant to 5 U.S.C. 552a(k)(1). Records may be exempted from these 
subsections or, additionally, from the requirements of subsections 
(c)(4); (e)(2), (3), and (8) of the Privacy Act of 1974 consistent with 
any exemptions claimed under 5 U.S.C. 552a (j)(2) or (k)(1), (k)(2), or 
(k)(5) by the originator of the record, provided the reason for the 
exemption remains valid and necessary. An exemption rule for this system 
has been promulgated in accordance with the requirements of 5 U.S.C. 
553(b)(1), (2), and (3), (c) and (e) and is published at 32 CFR part 
311.
    (ii) Authority: 5 U.S.C. 552a (j)(2), (k)(1), (k)(2), or (k)(5).
    (iii) Reasons: (A) From subsections (c)(3) (accounting of 
disclosures) because an accounting of disclosures from records 
concerning the record subject would specifically reveal an intelligence 
or investigative interest on

[[Page 939]]

the part of the Department of Defense and could result in release of 
properly classified national security or foreign policy information.
    (B) From subsections (d)(1), (2), (3) and (4) (record subject's 
right to access and amend records) because affording access and 
amendment rights could alert the record subject to the investigative 
interest of law enforcement agencies or compromise sensitive information 
classified in the interest of national security. In the absence of a 
national security basis for exemption, records in this system may be 
exempted from access and amendment to the extent necessary to honor 
promises of confidentiality to persons providing information concerning 
a candidate for position. Inability to maintain such confidentiality 
would restrict the free flow of information vital to a determination of 
a candidate's qualifications and suitability.
    (C) From subsection (e)(1) (maintain only relevant and necessary 
records) 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. It is only after the information is evaluated in light of 
other information that its relevance and necessity becomes clear. In the 
absence of a national security basis for exemption under subjection 
(k)(1), records in this system may be exempted from the relevance 
requirement pursuant to subjection (k)(5) because it is not possible to 
determine in advance what exact information may assist in determining 
the qualifications and suitability of a candidate for position. 
Seemingly irrelevant details, when combined with other data, can provide 
a useful composite for determining whether a candidate should be 
appointed.
    (D) From subsections (e)(4)(G) and (H) (publication of procedures 
for notifying subject of the existence of records about them and how 
they may access records and contest contents) because the system is 
exempted from subsection (d) provisions regarding access and amendment, 
and from the subsection (f) requirement to promulgate agency rules. 
Nevertheless, the Office of the Secretary of Defense has published 
notice concerning notification, access, and contest procedures because 
it may, in certain circumstances, determine it appropriate to provide 
subjects access to all or a portion of the records about them in this 
system of records.
    (E) From subsection (e)(4)(I) (identifying sources of records in the 
system of records) because identifying sources could result in 
disclosure of properly classified national defense or foreign policy 
information, intelligence sources and methods, and investigatory 
techniques and procedures. Notwithstanding its proposed exemption from 
this requirement the Office of the Secretary of Defense identifies 
record sources in broad categories sufficient to provide general notice 
of the origins of the information it maintains in this system of 
records.
    (F) From subsection (f) (agency rules for notifying subjects to the 
existence of records about them, for accessing and amending records, and 
for assessing fees) because the system is exempt from subsection (d) 
provisions regarding access and amendment of records by record subjects. 
Nevertheless, the Office of the Secretary of Defense has published 
agency rules concerning notification of a subject in response to his 
request if any system of records named by the subject contains a record 
pertaining to him and procedures by which the subject may access or 
amend the records. Notwithstanding exemption, the Office of the 
Secretary of Defense may determine it appropriate to satisfy a record 
subject's access request.
    (20) System identifier and name: DMDC 13 DoD, Defense Clearance and 
Investigations Index.
    (i) Exemptions: 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

[[Page 940]]

the provisions of 5 U.S.C. 552a(k)(2) may be exempt from the following 
subjections of 5 U.S.C. 552a(c)(3); (d); (e)(1); (e)(4)(G), (H), and (I) 
and (f).
    (ii) Authority: 5 U.S.C. 552a(k)(2).
    (iii) Reasons: (A) From subsection (c)(3) because it will enable OSD 
components 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).
    (B) 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).
    (C) From subsections (d) and (f) because requiring OSD to grant 
access to records and agency rules for access and amendment of records 
would unfairly impede the investigation of allegations of unlawful 
activities. To require OSD 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.

[74 FR 58205, Nov. 12, 2009, as amended at 74 FR 55778, Oct. 29, 2009; 
76 FR 22612, Apr. 22, 2011; 76 FR 57645, Sept. 16, 2011; 76 FR 58104, 
Sept. 20, 2011; 77 FR 15586, Mar. 16, 2012; 77 FR 15588, 15589, Mar. 16, 
2012; 77 FR 16676, Mar. 22, 2012]



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.
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]

[[Page 941]]



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 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.

[[Page 942]]

    (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).



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

[[Page 943]]

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.
    (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

[[Page 944]]

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 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.

[[Page 945]]

    (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).
    (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

[[Page 946]]

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).
    (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.

[[Page 947]]

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 original records will identify the 
specific reasons why the records are exempt from specific provisions of 
5 U.S.C. 552a.
    (j) System identifier: CIG 23
    (1) System name: Public Affairs Files.
    (2) Exemption: During the course of processing a General Counsel 
action, exempt materials from other systems of records may in turn 
become part of the case records in this system. To the extent that 
copies of exempt records from those `other' systems of records are 
entered into the Public Affairs Files, the Office of the Inspector 
General hereby claims the same exemptions for the records from those 
`other' systems that are entered into this system, as claimed for the 
original primary systems of records 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 (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 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

[[Page 948]]

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.

[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; 71 FR 64632, Nov. 3, 2006]

    Effective Date Note: At 79 FR 25506, May 5, 2014, Sec. 312.12 was 
amended by adding paragraph (k), effective July 14, 2014. For the 
convenience of the user, the added text is set forth as follows:



Sec. 312.12  Exemptions.

                                * * * * *

    (k) System identifier: CIG-29.
    (1) System Name: Privacy and Civil Liberties Complaint Reporting 
System.
    (2) Exemptions: Any portion of this record system which falls within 
the provisions of 5 U.S.C. 552a (j)(2), (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), (e)(4)(H), (e)(4)(I).
    (3) Authority: 5 U.S.C. 552a(j)(2), (k)(2), and (k)(5).
    (4) Reasons: To ensure the integrity of the privacy and civil 
liberties process. 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 the 
investigation by concealing, destroying, or fabricating evidence or 
documents. In addition, disclosures can subject sources and witnesses to 
harassment or intimidation which may cause individuals not to seek 
redress for wrongs through privacy and civil liberties channels for fear 
of retribution or harassment. There is a clear need to protect national 
security information from inadvertent disclosure.



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

[[Page 949]]

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).

    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

[[Page 950]]

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 records 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 
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.

[[Page 951]]

    (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
    (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

[[Page 952]]

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 
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

[[Page 953]]

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]



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.
---------------------------------------------------------------------------

    \1\ Copies may be obtained from http://www.deskbook.osd.mil.
    \2\ Copies may be obtained from http://web7.whs.osd.mil.

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

[[Page 954]]



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 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\
---------------------------------------------------------------------------

    \3\ Copies may be obtained from http://www.deskbook.osd.mil.
---------------------------------------------------------------------------

    (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

[[Page 955]]

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.
    (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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    (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.

[[Page 956]]

    (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.
    (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

[[Page 957]]

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.



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).
---------------------------------------------------------------------------

    \1\ Copies may be obtained: http://www.whitehouse.gov/OMB/circulars.
---------------------------------------------------------------------------

    (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.

[[Page 958]]

    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''.
---------------------------------------------------------------------------

    \2\ Copies may be obtained: http://web7.whs.osd.mil/corres.htm.
---------------------------------------------------------------------------

    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

[[Page 959]]

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 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.

[[Page 960]]

    (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 Program oversight 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, and amended 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 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.

[[Page 961]]

    (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.
    (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,

[[Page 962]]

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. 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.
    (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 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 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, and 
disclosures 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

[[Page 963]]

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 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

[[Page 964]]

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 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

[[Page 965]]

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.



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.)

[[Page 966]]

    (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 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).
    (d) System identifier and name: HDTRA 021, Freedom of Information 
Act and Privacy Act Request Case Files.
    (1) Exemption: During the processing of a Freedom of Information Act 
or 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 Defense Threat Reduction Agency 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.
    (2) Authority: 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), (k)(3), (k)(4), 
(k)(5), (k)(6) and (k)(7).
    (3) 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.

[65 FR 18894, Apr. 10, 2000, as amended at 71 FR 64633, Nov. 3, 2006]

[[Page 967]]



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 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.

[[Page 968]]



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 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.

[[Page 969]]



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 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:

[[Page 970]]

    (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 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 identifier and name: LDIA 13-0001, Conflict Management 
Programs.
    (1) Exemptions: Any portion of this record system which falls within 
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), 
(e)(4)(H), (e)(4)(I)
    (2) Authority: 5 U.S.C. 552a (k)(2) and (k)(5)
    (3) Reasons: Claiming these exemptions ensures the integrity of the 
conflict management process. The execution requires that information be 
provided in a free and open manner without fear of retribution or 
harassment

[[Page 971]]

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 the 
investigation by concealing, destroying, or fabricating evidence or 
documents. In addition, disclosures can subject sources and witnesses to 
harassment or intimidation which may cause individuals to not seek 
redress for wrongs through available channels for fear of retribution or 
harassment.
    (e) System identifier and name: LDIA 0660, Security and 
Counterintelligence Files.
    (1) Exemption: Any portion of this record system which falls within 
the provisions of 5 U.S.C. 552a(k)(2), (k)(5) and (k)(6) 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), (k)(5) and (k)(6).
    (3) Reasons: 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; and protects 
information used for medical, psychological evaluations, security 
questionnaires and polygraph testing.
    (f) [Reserved]
    (g) System identifier and name: LDIA 10-0001, Equal Opportunity, 
Diversity and Alternate Dispute Resolution Records.
    (1) Exemption: 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.
    The specific sections of 5 U.S.C. 552a from which the system is to 
be exempted are 5 U.S.C. 552a (c)(3) and (c)(4), (d), (e)(1), (e)(2), 
(e)(3), (e)(4)(G), (H), and (I), (e)(5), (f), and (g).
    (2) Authority: 5 U.S.C. 552a(k)(2).
    (3) 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 prospective interest by DIA 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 (c)(4), (d), and (f) because providing access 
to 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

[[Page 972]]

implied promise that the identity of the source would be held in 
confidence. This exemption will protect the identities of certain 
sources that would be otherwise unwilling to provide information to the 
Government. The exemption of the individual's right of access to his/her 
records and the reasons therefore necessitate the exemptions of this 
system of records from the requirements of the other cited provisions.
    (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 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 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 investigation. 
The effect would be somewhat adverse to established investigative 
methods and techniques.
    (vi) From subsections (e)(4)(G), (H), and (I) because it will 
provide protection against notification of investigatory material 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). 
In addition, 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 (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 the individual and record amendment procedures for this 
record system.
    (ix) 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.
    (h) System identifier and name: LDIA 10-0002, Foreign Intelligence 
and Counterintelligence Operation Records.
    (1) 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) The specific sections of 5 U.S.C. 552a from which the system is 
to be exempted are 5 U.S.C. 552a (c)(3) and (c)(4), (d), (e)(1), (e)(2), 
(e)(3), (e)(4)(G), (H), and (I), (e)(5), (f), and (g).
    (2) Authority: 5 U.S.C. 552a(k)(2).

[[Page 973]]

    (3) 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 prospective interest by DIA 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 (c)(4), (d), and (f) because providing access 
to 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 that would be otherwise unwilling to provide information to the 
Government. The exemption of the individual's right of access to his/her 
records and the reasons therefore necessitate the exemptions of this 
system of records from the requirements of the other cited provisions.
    (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 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 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 investigation. 
The effect would be somewhat adverse to established investigative 
methods and techniques.
    (vi) From subsections (e)(4)(G), (H), and (I) because it will 
provide protection against notification of investigatory material 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). 
In addition, 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 (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

[[Page 974]]

criminal offender precludes the applicability of established agency 
rules relating to verification of record, disclosure of the record to 
the individual and record amendment procedures for this record system.
    (ix) 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.
    (i) System identifier and name: LDIA 0900, Accounts Receivable, 
Indebtedness and Claims.
    (1) Exemption: During the course of accounts receivable, 
indebtedness or claims actions, 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 DIA 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.
    (2) Authority: 5 U.S.C. 552a(k)(2) through (k)(7).
    (3) 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.
    (j) System identifier and name: LDIA 0010, Information Requests-
Freedom of Information Act (FOIA) and Privacy Act.
    (1) Exemption: During the course of information requests-FOIA and 
Privacy Act actions, exempt records/material from other systems of 
records may become part of this system of records. For such records/
material, DIA hereby claims the same exemptions as is claimed for the 
systems from which such records/material are derived.
    (2) Authority: 5 U.S.C. 552a(k)(2) through (k)(7).
    (3) Reasons: Records in a system of records are only exempted from 
pertinent provisions of 5 U.S.C. 552a to the extent such provisions are 
identified and an exemption claimed. In general, exemptions claimed 
protect properly classified information relating to national defense and 
foreign policy; avoid interference during the conduct of criminal, 
civil, or administrative actions or investigations; ensure protective 
services provided the President and others are not compromised; protect 
the identity of confidential sources incident to Federal employment, 
military service, contract, and security clearance determinations; 
preserve the confidentiality and integrity of Federal testing materials; 
and safeguard evaluation materials used for military promotions when 
furnished by a confidential source. The exemption rule(s) for the 
systems of records from which the records/materials was derived will 
identify the specific reasons why the records/materials are exempt from 
provisions of 5 U.S.C. 552a.
    (k) System identifier and name: LDIA 12-0002, Privacy and Civil 
Liberties Case Management System.
    (1) Exemptions: Any portion of this record system which falls within 
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), 
(e)(4)(H), (e)(4)(I).
    (2) Authority: 5 U.S.C. 552a(k)(2)and (k)(5).
    (3) The reasons for asserting these exemptions is to ensure the 
integrity of the privacy and civil liberties process.

[[Page 975]]

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 the investigation by concealing, 
destroying, or fabricating evidence or documents. In addition, 
disclosures can subject sources and witnesses to harassment or 
intimidation which may cause individuals not to seek redress for wrongs 
through privacy and civil liberties channels for fear of retribution or 
harassment.
    (l) System identifier and name: LDIA 0209, Litigation Case Files.
    (1) Exemptions: 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 552(k)(2). However, if an 
individual is denied any right, privilege, or benefit for which he would 
otherwise be entitled by Federal law or which he would otherwise be 
eligible, as a result of 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 
exemption provides limited protection of investigative reports 
maintained in a system of records used in personnel or administrative 
actions. 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 record system which falls 
within 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)(1)(2)(3)(4)(5), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I). Exempt 
materials from other systems of records may in turn become part of the 
case records in this system. To the extent that copies of exempt records 
from those `other' systems of records are entered into this case record, 
the Defense Intelligence Agency hereby claims the same exemptions for 
the records from those `other' systems that are entered into this 
system, as claimed for the original primary systems of records, which 
they are a part.
    (2) Authority: 5 U.S.C. 552a(j)(2), (k)(2), (k)(3), (k)(4), (k)(5), 
(k)(6), and (k)(7).
    (3) Reasons: The reason for asserting these exemptions (k)(2) and 
(k)(5) is to ensure the integrity of the litigation process.
    (m) System identifier and name: LDIA 10-0004 Occupational, Safety, 
Health, and Environmental Management Records.
    (1) Exemptions: Any portion of this record system which falls within 
the provisions of 5 U.S.C. 552a(k)(2)(k)(4) and (k)(5) may be exempt 
from the following subsections of 5 U.S.C. 552a: (c)(3); (d)(1), (d)(2), 
(d)(3), (d)(4), (d)(5); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); (f)(1), 
(f)(2), (f)(2), (f)(3), (f)(4), (f)(5).
    (2) Authority: 5 U.S.C. 552a(k)(2) and (k)(5).
    (3) The reasons for asserting these exemptions are to ensure the 
integrity of an investigative or administrative process and to protect 
statistical records. 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 during an 
investigation or administrative action. Disclosures from this system can 
enable individuals to conceal their wrongdoing or mislead the course of 
the investigation by concealing, destroying, or fabricating evidence or 
documents. In addition, disclosures can subject sources and witnesses to 
harassment or intimidation which may cause individuals to not to seek 
redress for concerns about occupational safety, health, environmental 
issues and accident reporting. Information is used to comply regulatory 
reporting requirements.

[56 FR 56595, Nov. 6, 1991, as amended at 76 FR 49659, Aug. 11, 2011; 77 
FR 15591, Mar. 16, 2012; 77 FR 57014, 57016, Sept. 17, 2012; 78 FR 69551 
and 69552, Nov. 20, 2013;]

[[Page 976]]



PART 320_NATIONAL GEOSPATIAL-INTELLIGENCE AGENCY (NGA) 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.



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.

[[Page 977]]

    (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 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)

[[Page 978]]

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.
    (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, NGA 
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.

[[Page 979]]

    (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.



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.

[[Page 980]]

    (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 
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.

[[Page 981]]

    (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.



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

[[Page 982]]

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. 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.
    (c) System identifier and name: NGA-004, NGA Threat Mitigation 
Records.
    (1) Exemptions: Exempt materials from JUSTICE/FBI-019 Terrorist 
Screening Records System may become part of the case records in this 
system of records. To the extent that copies of exempt records from 
JUSTICE/FBI-019, Terrorist Screening Records System are entered into 
these Threat Mitigation case records, NGA hereby claims the same 
exemptions (j)(2) and (k)(2), for the records as claimed in JUSTICE/FBI-
019, Terrorist Screening Records system of records of which they are a 
part.
    (2) Authority: 5 U.S.C. 552a(j)(2) and (k)(2).
    (3) Reasons: (i) Pursuant to 5 U.S.C. 552a(j)(2) and (k)(2), NGA is 
claiming the following exemptions for certain records within the Threat 
Mitigation Records system: 5 U.S.C. 552a(c)(3) and (4); (d)(1), (2), 
(3), and (4); (e)(1), (2), (3), (4)(G) through (I), (5), and (8); (f), 
and (g).
    (ii) In addition to records under the control of NGA, the Threat 
Mitigation system of records may include records originating from 
systems of records of other law enforcement and intelligence agencies 
which may be exempt from certain provisions of the Privacy Act. However, 
NGA does not assert exemption to any provisions of the Privacy Act with 
respect to information submitted by or on behalf of individuals.
    (iii) To the extent the Threat Mitigation system contains records 
originating from other systems of records, NGA will rely on the 
exemptions claimed for those records in the originating system of 
records. Exemptions for certain records within the Threat Mitigation 
system from particular subsections of the Privacy Act are justified for 
the following reasons:

[[Page 983]]

    (A) From subsection (c)(3) (Accounting for Disclosures) because 
giving a record subject access to the accounting of disclosures from 
records concerning him or her could reveal investigative interest on the 
part of the recipient agency that obtained the record pursuant to a 
routine use. Disclosure of the accounting could therefore present a 
serious impediment to law enforcement efforts on the part of the 
recipient agency because the individual who is the subject of the record 
would learn of third agency investigative interests and could take steps 
to evade detection or apprehension. Disclosure of the accounting also 
could reveal the details of watch list matching measures under the 
Threat Mitigation system, as well as capabilities and vulnerabilities of 
the watch list matching process, the release of which could permit an 
individual to evade future detection and thereby impede efforts to 
ensure security.
    (B) From subsection (c)(4) because portions of this system are 
exempt from the access and amendment provisions of subsection (d).
    (C) From subsections (d)(1), (2), (3), and (4) because these 
provisions concern individual access to and amendment of certain records 
contained in this system, including law enforcement counterterrorism, 
investigatory and intelligence records. Compliance with these provisions 
could alert the subject of an investigation of the fact and nature of 
the investigation, and/or the investigative interest of intelligence or 
law enforcement agencies; compromise sensitive information related to 
national security; interfere with the overall law enforcement process by 
leading to the destruction of evidence, improper influencing of 
witnesses, fabrication of testimony, and/or flight of the subject; 
identify a confidential source or disclose information which would 
constitute an unwarranted invasion of another's personal privacy; reveal 
a sensitive investigative or intelligence technique; or constitute a 
potential danger to the health or safety of law enforcement personnel, 
confidential informants, and witnesses. Amendment of these records would 
interfere with ongoing counterterrorism, law enforcement, or 
intelligence investigations and analysis activities and impose an 
impossible administrative burden by requiring investigations, analyses, 
and reports to be continuously reinvestigated and revised.
    (D) From subsection (e)(1) because it is not always possible for NGA 
or other agencies to know in advance what information is both relevant 
and necessary for it to complete an identity comparison between 
individuals and a known or suspected terrorist. In addition, because NGA 
and other agencies may not always know what information about an 
encounter with a known or suspected terrorist will be relevant to law 
enforcement for the purpose of conducting an operational response.
    (E) From subsection (e)(2) because application of this provision 
could present a serious impediment to counterterrorism, law enforcement, 
or intelligence efforts in that it would put the subject of an 
investigation, study or analysis on notice of that fact, thereby 
permitting the subject to engage in conduct designed to frustrate or 
impede that activity. The nature of counterterrorism, law enforcement, 
or intelligence investigations is such that vital information about an 
individual frequently can be obtained only from other persons who are 
familiar with such individual and his/her activities. In such 
investigations, it is not feasible to rely upon information furnished by 
the individual concerning his own activities.
    (F) From subsection (e)(3), to the extent that this subsection is 
interpreted to require NGA to provide notice to an individual if NGA or 
another agency receives or collects information about that individual 
during an investigation or from a third party. Should the subsection be 
so interpreted, exemption from this provision is necessary to avoid 
impeding counterterrorism, law enforcement, or intelligence efforts by 
putting the subject of an investigation, study or analysis on notice of 
that fact, thereby permitting the subject to engage in conduct intended 
to frustrate or impede that activity.
    (G) From subsections (e)(4)(G) and (H) (Agency Requirements) and (f) 
(Agency Rules), because this system is

[[Page 984]]

exempt from the access provisions of 5 U.S.C. 552a(d).
    (H) From subsection (e)(5) because many of the records in this 
system coming from other system of records are derived from other agency 
record systems and therefore it is not possible for NGA to ensure their 
compliance with this provision, however, NGA has implemented internal 
quality assurance procedures to ensure that data used in the matching 
process is as thorough, accurate, and current as possible. In addition, 
in the collection of information for law enforcement, counterterrorism, 
and intelligence purposes, it is impossible to determine in advance what 
information is accurate, relevant, timely, and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light. The restrictions imposed by (e)(5) would limit the ability of 
those agencies' trained investigators and intelligence analysts to 
exercise their judgment in conducting investigations and impede the 
development of intelligence necessary for effective law enforcement and 
counterterrorism efforts. However, NGA has implemented internal quality 
assurance procedures to ensure that the data used in the matching 
process is as thorough, accurate, and current as possible.
    (I) From subsection (e)(8) because to require individual notice of 
disclosure of information due to compulsory legal process would pose an 
impossible administrative burden on NGA and other agencies and could 
alert the subjects of counterterrorism, law enforcement, or intelligence 
investigations to the fact of those investigations when not previously 
known.
    (J) From subsection (f) (Agency Rules) because portions of this 
system are exempt from the access and amendment provisions of subsection 
(d).
    (K) From subsection (g) to the extent that the system is exempt from 
other specific subsections of the Privacy Act.
    (d) System identifier and name: NGA-003, National Geospatial-
Intelligence Agency Enterprise Workforce System.
    (1) Exemptions: 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 to paragraph (d)(1):
    When claimed, this exemption allows limited protection of 
investigative reports maintained in a system of records used in 
personnel or administrative actions.
(2) Authority: 5 U.S.C. 552a (k)(2).

    (3) Reasons: Pursuant to 5 U.S.C. 552a (k)(2), the Director of NGA 
has exempted this system from the following provisions of the Privacy 
Act, subject to the limitation set forth in 5 U.S.C. 552a(c)(3); (d); 
(e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f). Exemptions from these 
particular subsections are justified, on a case-by-case basis to be 
determined at the time a request is made, for the following reasons:
    (i) From subsection (c)(3) and (c)(4) (Accounting for Disclosures) 
because release of the accounting of disclosures could alert the subject 
of an investigation of an actual or potential criminal, civil, or 
regulatory violation to the existence of that investigation and reveal 
investigative interest on the part of NGA as well as the recipient 
agency. Disclosure of the accounting would therefore present a serious 
impediment to law enforcement efforts and/or efforts to preserve 
national security. Disclosure of the accounting would also permit the 
individual who is the subject of a record to impede the investigation, 
to tamper with witnesses or evidence, and to avoid detection or 
apprehension, which would undermine the entire investigative process.
    (ii) From subsection (d) (Access to Records) because access to the 
records contained in this system of records could inform the subject of 
an investigation of an actual or potential criminal, civil, or 
regulatory violation to the existence of that investigation and reveal 
investigative interest on the part of NGA or another agency. Access

[[Page 985]]

to the records could permit the individual who is the subject of a 
record to impede the investigation, to tamper with witnesses or 
evidence, and to avoid detection or apprehension. Amendment of the 
records could interfere with ongoing investigations and law enforcement 
activities and would impose an unreasonable administrative burden by 
requiring investigations to be continually reinvestigated. In addition, 
permitting access and amendment to such information could disclose 
security-sensitive information that could be detrimental to homeland 
security.
    (iii) From subsection (e)(1) (Relevancy and Necessity of 
Information) because in the course of investigations into potential 
violations of Federal law, the accuracy of information obtained or 
introduced occasionally may be unclear, or the information may not be 
strictly relevant or necessary to a specific investigation. In the 
interests of effective law enforcement, it is appropriate to retain all 
information that may aid in establishing patterns of unlawful activity.
    (iv) From subsection (e)(2) (Collection of Information from 
Individuals) because requiring that information be collected from the 
subject of an investigation would alert the subject to the nature or 
existence of the investigation, thereby interfering with that 
investigation and related law enforcement activities.
    (v) From subsection (e)(3) (Notice to Subjects) because providing 
such detailed information could impede law enforcement by compromising 
the existence of a confidential investigation or reveal the identity of 
witnesses or confidential informants.
    (vi) From subsections (e)(4)(G), (e)(4)(H), and (e)(4)(I) (Agency 
Requirements) and (f) (Agency Rules), because portions of this system 
are exempt from the individual access provisions of subsection (d) for 
the reasons noted above, and therefore NGA is not required to establish 
requirements, rules, or procedures with respect to such access. 
Providing notice to individuals with respect to existence of records 
pertaining to them in the system of records or otherwise setting up 
procedures pursuant to which individuals may access and view records 
pertaining to themselves in the system would undermine investigative 
efforts and reveal the identities of witnesses, and potential witnesses, 
and confidential informants.
    (vii) From subsection (e)(5) (Collection of Information) because 
with the collection of information for law enforcement purposes, it is 
impossible to determine in advance what information is accurate, 
relevant, timely, and complete. Compliance with subsection (e)(5) would 
preclude NGA personnel from using their investigative training and 
exercise of good judgment to both conduct and report on investigations.
    (viii) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with NGA's ability to cooperate with law 
enforcement who would obtain, serve, and issue subpoenas, warrants, and 
other law enforcement mechanisms that may be filed under seal and could 
result in disclosure of investigative techniques, procedures, and 
evidence.
    (ix) From subsection (g)(1) (Civil Remedies) to the extent that the 
system is exempt from other specific subsections of the Privacy Act.
    (e) System identifier and name: NGA-008, National Geospatial-
Intelligence Agency Polygraph Records System.
    (1) Exemptions: 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 to paragraph (e)(1):
    When claimed, this exemption allows limited protection of 
investigative reports maintained in a system of records used in 
personnel or administrative actions.
(2) Authority: 5 U.S.C. 552a (k)(2).

    (3) Reasons: Pursuant to 5 U.S.C. 552a (k)(2), the Director of NGA 
has exempted this system from the following provisions of the Privacy 
Act, subject to the limitation set forth in 5 U.S.C.

[[Page 986]]

552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f). 
Exemptions from these particular subsections are justified, on a case-
by-case basis to be determined at the time a request is made, for the 
following reasons:
    (i) From subsection (c)(3) and (c)(4) (Accounting for Disclosures) 
because release of the accounting of disclosures could alert the subject 
of an investigation of an actual or potential criminal, civil, or 
regulatory violation to the existence of that investigation and reveal 
investigative interest on the part of NGA as well as the recipient 
agency. Disclosure of the accounting would therefore present a serious 
impediment to law enforcement efforts and/or efforts to preserve 
national security. Disclosure of the accounting would also permit the 
individual who is the subject of a record to impede the investigation, 
to tamper with witnesses or evidence, and to avoid detection or 
apprehension, which would undermine the entire investigative process.
    (ii) From subsection (d) (Access to Records) because access to the 
records contained in this system of records could inform the subject of 
an investigation of an actual or potential criminal, civil, or 
regulatory violation to the existence of that investigation and reveal 
investigative interest on the part of NGA or another agency. Access to 
the records could permit the individual who is the subject of a record 
to impede the investigation, to tamper with witnesses or evidence, and 
to avoid detection or apprehension. Amendment of the records could 
interfere with ongoing investigations and law enforcement activities and 
would impose an unreasonable administrative burden by requiring 
investigations to be continually reinvestigated. In addition, permitting 
access and amendment to such information could disclose security-
sensitive information that could be detrimental to homeland security.
    (iii) From subsection (e)(1) (Relevancy and Necessity of 
Information) because in the course of investigations into potential 
violations of Federal law, the accuracy of information obtained or 
introduced occasionally may be unclear, or the information may not be 
strictly relevant or necessary to a specific investigation. In the 
interests of effective law enforcement, it is appropriate to retain all 
information that may aid in establishing patterns of unlawful activity.
    (iv) From subsection (e)(2) (Collection of Information from 
Individuals) because requiring that information be collected from the 
subject of an investigation would alert the subject to the nature or 
existence of the investigation, thereby interfering with that 
investigation and related law enforcement activities.
    (v) From subsection (e)(3) (Notice to Subjects) because providing 
such detailed information could impede law enforcement by compromising 
the existence of a confidential investigation or reveal the identity of 
witnesses or confidential informants.
    (vi) From subsections (e)(4)(G), (e)(4)(H), and (e)(4)(I) (Agency 
Requirements) and (f) (Agency Rules), because portions of this system 
are exempt from the individual access provisions of subsection (d) for 
the reasons noted above, and therefore NGA is not required to establish 
requirements, rules, or procedures with respect to such access. 
Providing notice to individuals with respect to existence of records 
pertaining to them in the system of records or otherwise setting up 
procedures pursuant to which individuals may access and view records 
pertaining to themselves in the system would undermine investigative 
efforts and reveal the identities of witnesses, and potential witnesses, 
and confidential informants.
    (vii) From subsection (e)(5) (Collection of Information) because 
with the collection of information for law enforcement purposes, it is 
impossible to determine in advance what information is accurate, 
relevant, timely, and complete. Compliance with subsection (e)(5) would 
preclude NGA personnel from using their investigative training and 
exercise of good judgment to both conduct and report on investigations.
    (viii) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with NGA's ability to cooperate with law 
enforcement who would obtain, serve, and issue subpoenas, warrants, and 
other law enforcement mechanisms that may be

[[Page 987]]

filed under seal and could result in disclosure of investigative 
techniques, procedures, and evidence.
    (ix) From subsection (g)(1) (Civil Remedies) to the extent that the 
system is exempt from other specific subsections of the Privacy Act.

[66 FR 52681, Oct. 17, 2001, as amended at 67 FR 55724, Aug. 30, 2002; 
78 FR 32555, May 31, 2013; 78 FR 69290, 69292, Nov. 19, 2013]

    Effective Date Note: At 79 FR 26121, May 7, 2014, Sec. 320.12 was 
amended by revising paragraph (c), effective July 16, 2014. For the 
convenience of the user, the revised text is set forth as follows:



Sec. 320.12  Exemptions.

                                * * * * *

    (c) System identifier and name: NGA-004, NGA Threat Mitigation 
Records. (1) Exemptions: Exempt materials from JUSTICE/FBI--019 
Terrorist Screening Records System may become part of the case records 
in this system of records. To the extent that copies of exempt records 
from JUSTICE/FBI--019, Terrorist Screening Records System are entered 
into these Threat Mitigation case records, NGA hereby claims the same 
exemptions (j)(2) and (k)(2), for the records as claimed in JUSTICE/
FBI--019, Terrorist Screening Records system of records of which they 
are a part.
    (2) 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).
    (3) 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.
    (4) Authority: 5 U.S.C. 552a(j)(2), (k)(1), (k)(2) and (k)(5).
    (5) Reasons: (i) Pursuant to 5 U.S.C. 552a(j)(2), (k)(2), and (k)(5) 
NGA is claiming the following exemptions for certain records within the 
Threat Mitigation Records system: 5 U.S.C. 552a(c)(3) and (4); (d)(1), 
(2), (3), and (4); (e)(1), (2), (3), (4)(G) through (I), (5), and (8); 
(f), and (g). Additionally, pursuant to 5 U.S.C. 552a(k)(1) and (k)(2), 
NGA has exempted this system from the following provisions of the 
Privacy Act, subject to the limitation set forth in 5 U.S.C. 552a(c)(3); 
(d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f). Exemptions from 
these particular subsections are justified, on a case-by-case basis to 
be determined at the time a request is made.
    (ii) In addition to records under the control of NGA, the Threat 
Mitigation system of records may include records originating from 
systems of records of other law enforcement and intelligence agencies 
which may be exempt from certain provisions of the Privacy Act. However, 
NGA does not assert exemption to any provisions of the Privacy Act with 
respect to information submitted by or on behalf of individuals.
    (iii) To the extent the Threat Mitigation system contains records 
originating from other systems of records, NGA will rely on the 
exemptions claimed for those records in the originating system of 
records. Exemptions for certain records within the Threat Mitigation 
system from particular subsections of the Privacy Act are justified for 
the following reasons:
    (A) From subsection (c)(3) (Accounting for Disclosures) because 
giving a record subject access to the accounting of disclosures from 
records concerning him or her could reveal investigative interest on the 
part of the recipient agency that obtained the record pursuant to a 
routine use. Disclosure of the accounting could therefore present a 
serious impediment to law enforcement efforts on the part of the 
recipient agency because the individual who is the subject of the record 
would learn of third agency investigative interests and could take steps 
to evade detection or apprehension. Disclosure of the accounting also 
could reveal the details of watch list matching measures under the 
Threat Mitigation system, as well as capabilities and vulnerabilities of 
the watch list matching process, the release of which could permit an 
individual to evade future detection and thereby impede efforts to 
ensure security.
    (B) From subsection (c)(4) because portions of this system are 
exempt from the access and amendment provisions of subsection (d).
    (C) From subsection (d) (Access to Records) because access to the 
records contained in this system of records could inform the subject of 
an investigation of an actual or potential criminal, civil, or 
regulatory violation to the existence of that investigation and reveal 
investigative interest on the part of Department of Homeland Security or 
another agency. Access to the records could permit the individual who is 
the subject of a record to impede the investigation, to tamper with 
witnesses or evidence, and to avoid detection or apprehension. Amendment 
of the records could interfere with ongoing investigations and law 
enforcement activities and would impose an unreasonable administrative 
burden by requiring investigations to be continually reinvestigated. In 
addition, permitting access and amendment to such information could 
disclose security-sensitive information that could be detrimental to 
national security.

[[Page 988]]

    (D) From subsection (e)(1) because it is not always possible for NGA 
or other agencies to know in advance what information is both relevant 
and necessary for it to complete an identity comparison between 
individuals and a known or suspected terrorist. In addition, because NGA 
and other agencies may not always know what information about an 
encounter with a known or suspected terrorist will be relevant to law 
enforcement for the purpose of conducting an operational response.
    (E) From subsection (e)(2) because application of this provision 
could present a serious impediment to counterterrorism, law enforcement, 
or intelligence efforts in that it would put the subject of an 
investigation, study or analysis on notice of that fact, thereby 
permitting the subject to engage in conduct designed to frustrate or 
impede that activity. The nature of counterterrorism, law enforcement, 
or intelligence investigations is such that vital information about an 
individual frequently can be obtained only from other persons who are 
familiar with such individual and his/her activities. In such 
investigations, it is not feasible to rely upon information furnished by 
the individual concerning his own activities.
    (F) From subsection (e)(3), to the extent that this subsection is 
interpreted to require NGA to provide notice to an individual if NGA or 
another agency receives or collects information about that individual 
during an investigation or from a third party. Should the subsection be 
so interpreted, exemption from this provision is necessary to avoid 
impeding counterterrorism, law enforcement, or intelligence efforts by 
putting the subject of an investigation, study or analysis on notice of 
that fact, thereby permitting the subject to engage in conduct intended 
to frustrate or impede that activity.
    (G) From subsections (e)(4)(G) and (H) and (I) (Agency Requirements) 
and (f) (Agency Rules), because this system is exempt from the access 
provisions of 5 U.S.C. 552a(d).
    (H) From subsection (e)(5) because many of the records in this 
system coming from other system of records are derived from other agency 
record systems and therefore it is not possible for NGA to ensure their 
compliance with this provision, however, NGA has implemented internal 
quality assurance procedures to ensure that data used in the matching 
process is as thorough, accurate, and current as possible. In addition, 
in the collection of information for law enforcement, counterterrorism, 
and intelligence purposes, it is impossible to determine in advance what 
information is accurate, relevant, timely, and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light. The restrictions imposed by (e)(5) would limit the ability of 
those agencies' trained investigators and intelligence analysts to 
exercise their judgment in conducting investigations and impede the 
development of intelligence necessary for effective law enforcement and 
counterterrorism efforts. However, NGA has implemented internal quality 
assurance procedures to ensure that the data used in the matching 
process is as thorough, accurate, and current as possible.
    (I) From subsection (e)(8) because to require individual notice of 
disclosure of information due to compulsory legal process would pose an 
impossible administrative burden on NGA and other agencies and could 
alert the subjects of counterterrorism, law enforcement, or intelligence 
investigations to the fact of those investigations when not previously 
known.
    (J) From subsection (f) (Agency Rules) because portions of this 
system are exempt from the access and amendment provisions of subsection 
(d).
    (K) From subsection (g) to the extent that the system is exempt from 
other specific subsections of the Privacy Act.

                                * * * * *



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

[[Page 989]]

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.
    (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

[[Page 990]]

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.
    (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

[[Page 991]]

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.



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:

[[Page 992]]

    (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.
    (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

[[Page 993]]

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 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

[[Page 994]]

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 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.

[[Page 995]]

    (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 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

[[Page 996]]

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.
    (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

[[Page 997]]

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 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

[[Page 998]]

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 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) [Reserved]

[64 FR 49660, Sept. 14, 1999, as amended at 70 FR 38009, July 1, 2005; 
76 FR 22808, Apr. 25, 2011]



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 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

[[Page 999]]

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 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

[[Page 1000]]

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 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.

[[Page 1001]]

    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 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

[[Page 1002]]

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.
    (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

[[Page 1003]]

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.
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    (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.
    (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.

[[Page 1004]]

    (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 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.

[[Page 1005]]

    (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 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

[[Page 1006]]

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.
    (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

[[Page 1007]]

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 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.

[[Page 1008]]

    (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 
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.

[[Page 1009]]

    (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 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.

[[Page 1010]]

    (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.
    (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

[[Page 1011]]

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.
    (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

[[Page 1012]]

(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)).
    (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

[[Page 1013]]

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 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

[[Page 1014]]

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 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.

[[Page 1015]]

    (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 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

[[Page 1016]]

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 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.

[[Page 1017]]

    (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.
    (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 1018]]

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.
    (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.

[[Page 1019]]

    (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, 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

[[Page 1020]]

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 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

[[Page 1021]]

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) ID: GNSA 29 (General Exemption)
    (1) System name: NSA/CSS Office of Inspector General Investigations 
and Complaints.
    (2) Exemption: 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 
any 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.

    Note: When claimed, this exemption allows limited protection of 
investigative reports maintained in a system of records used in 
personnel or administrative actions.
    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) through (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 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
    (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

[[Page 1022]]

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 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

[[Page 1023]]

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 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

[[Page 1024]]

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. 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.

[[Page 1025]]

    (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).
    (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 1026]]

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.
    (r) [Reserved]
    (s) GNSA 25.
    (1) System name: NSA/CSS Operations Travel Records.
    (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 identify 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).
    (3) Authority: 5 U.S.C. 552a(k)(2)(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 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.
    (t) GNSA 26.
    (1) System Name: NSA/CSS Accounts Receivable, Indebtedness 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

[[Page 1027]]

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 identify 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).
    (3) Authority: 5 U.S.C. 552a(k)(2)(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 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.
    (u) ID: GNSA 28 (General Exemption)
    (1) System name: Freedom of Information Act, Privacy Act and 
Mandatory Declassification Review Records.
    (2) Exemption: During the processing of letters and other 
correspondence to the National Security Agency/Central Security Service, 
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 National Security Agency/Central Security Service 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(k)(2) through (k)(7).
    (4) Reasons: During the course of a FOIA/Privacy Act and/or MDR 
action, exempt materials from other system of records may become part of 
the case records in this system of records. To the extent that copies of 
exempt records from those other systems of records are entered into 
these case records, NSA/CSS hereby claims the same exemptions for the 
records as claimed in the original primary system of records of which 
they are a part. The exemption rule for the original records will 
identify the specific reasons why

[[Page 1028]]

the records are exempt from specific provisions of 5 U.S.C. 552a.

[68 FR 28757, May 27, 2003, as amended at 69 FR 62408, Oct. 26, 2004; 74 
FR 55779 and 55780, Oct. 29, 2009; 76 FR 22615, 22616, Apr. 22, 2011; 77 
FR 15596, 15597, Mar. 16, 2012; 77 FR 19095, Mar. 30, 2012]



PART 323_DEFENSE LOGISTICS AGENCY PRIVACY PROGRAM--Table of Contents



Sec.
323.1 Purpose.
323.2 Applicability.
323.3 Policy.
323.4 Responsibilities.
323.5 Access to systems of records information.
323.6 Exemption rules.

    Authority: Privacy Act of 1974, Pub. L. 93-579, Stat. 1896 (5 U.S.C. 
552a).

    Source: 78 FR 25854, May 3, 2013, unless otherwise noted.



Sec. 323.1  Purpose.

    This part sets out Defense Logistics Agency policy, assigns 
responsibilities, and prescribes procedures for the effective 
administration of the DLA Privacy Program.



Sec. 323.2  Applicability.

    This part:
    (a) Applies to Defense Logistics Agency Headquarters (DLA HQ) and 
all other organizational entities within the Defense Logistics Agency 
(hereafter referred to as ``DLA Components'').
    (b) Shall be made applicable by contract or other legally binding 
action to U.S. Government contractors whenever a DLA contract requires 
the performance of any activities associated with maintaining a system 
of records, including the collection, use, and dissemination of records 
on behalf of DLA.



Sec. 323.3  Policy.

    DLA adopts and supplements the DoD Privacy Program policy and 
procedures codified at 32 CFR 310.4 through 310.53, and appendices A 
through H of 32 CFR part 310.



Sec. 323.4  Responsibilities.

    (a) General Counsel. The General Counsel, DLA, under the authority 
of the Director, Defense Logistics Agency:
    (1) Implements the DLA Privacy Program and is hereby designated as 
the Component Senior Official for Privacy.
    (2) Serves as the DLA Final Denial Appellate Authority.
    (3) Provides advice and assistance on all legal matters arising out 
of, or incident to, the implementation and administration of the DLA 
Privacy Program.
    (4) Serves as the DLA focal point on Privacy Act litigation with the 
Department of Justice; and will advise the Defense Privacy and Civil 
Liberties Office on the status of DLA privacy litigation. This 
responsibility may be delegated.
    (5) Serves as a member of the Defense Privacy Board Legal Committee. 
This responsibility may be delegated.
    (6) Supervises and administers the DLA FOIA and Privacy Act Office 
(DGA) and assigned staff. This responsibility may be delegated.
    (7) May exempt DLA systems of records.
    (b) Initial Denial Authority (IDA) at Headquarters DLA. By this 
part, the DLA Director designates the Head of each Headquarters DLA 
Component as an IDA. Each Head may further delegate this responsibility 
to their Deputy. For the DLA General Counsel's Office, the Deputy 
General Counsel shall serve as the Initial Denial Authority (IDA).
    (c) DLA Privacy Act Office. The DLA Privacy Act Office (DGA) staff:
    (1) Formulates policies, procedures, and standards necessary for a 
uniform DLA Privacy Program.
    (2) Serves as the DLA representative on the Defense Privacy Board 
and the Defense Data Integrity Board.
    (3) Provides advice and assistance on privacy matters.
    (4) Develops or compiles the rules, notices, and reports required 
under 32 CFR part 310.
    (5) Assesses the impact of technology on the privacy of personal 
information.
    (6) Conducts Privacy training for personnel assigned, employed, and 
detailed, including contractor personnel and individuals having primary 
responsibility for implementing the DLA Privacy Program.

[[Page 1029]]

    (7) Develops forms used within the DLA Privacy Program. This part 
serves as the prescribing document for forms developed for the DLA 
Privacy Program.
    (d) DLA Components Heads. The DLA Components Heads:
    (1) Designate an individual as the point of contact for Privacy 
matters for their DLA Component and advise DGA of the name of official 
so designated. This individual also will serve as the Privacy Officer 
for the co-located tenant DLA organizations.
    (2) Designate an official to serve as the initial denial authority 
for initial requests for access to an individual's records or amendments 
to records, and will advise DGA of the names of the officials so 
designated.
    (e) DLA Acquisition Management Directorate (J-7). The DLA 
Acquisition Management Directorate (J-7) shall be responsible for:
    (1) Developing the specific DLA policies and procedures to be 
followed when soliciting bids, awarding contracts or administering 
contracts that are subject to 32 CFR 310.12.
    (2) Establishing an appropriate contract surveillance program to 
ensure contractors comply with the procedures established in accordance 
with 32 CFR 310.12.



Sec. 323.5  Access to systems of records information.

    (a) Individuals who wish to gain access to records contained in a 
system of records about themselves will submit their request in writing 
to the DLA FOIA/Privacy Act Office, Headquarters, Defense Logistics 
Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, 
VA 22060-6221. Any written request must:
    (1) Identify the particular ``system(s) of records'' to be searched;
    (2) Contain the information listed under the ``Notification 
procedure'' or ``Record access procedures'' elements of the applicable 
system of records notice;
    (3) Verify identity when the information sought is of a sensitive 
nature by submitting an unsworn declaration in accordance with 28. 
U.S.C. 1746 or notarized signature;
    (4) Adequately explain a request for expedited processing, if 
applicable;
    (5) State whether they agree to pay fees associated with the 
processing of your request; and
    (6) Contain a written release authority if records are to be 
released to a third party. Third parties could be, but are not limited 
to, a law firm, a Congressman's office, a union official, or a private 
entity.
    (b) Amendment and/or Access denials will be processed in accordance 
with 32 CFR 310.18 and 310.19.
    (c) If an individual disagrees with the initial agency determination 
regarding notification, access, or amendment, he may appeal by writing 
to the General Counsel, Defense Logistics Agency, ATTN: DGA, Suite 1644, 
8725 John J. Kingman Road, Fort Belvoir, VA 22060-6221 or by emailing 
the appeal to [email protected] or by faxing the appeal to (703) 767-6091.



Sec. 323.6  Exemption rules.

    (a) The Director, DLA or designee may claim an exemption from any 
provision of the Privacy Act from which an exemption is allowed.
    (b) An individual is not entitled to access information that is 
compiled in reasonable anticipation of a civil action or proceeding. The 
term ``civil action or proceeding'' is intended to include court 
proceedings, preliminary judicial steps, and quasi-judicial 
administrative hearings or proceedings (i.e., adversarial proceedings 
that are subject to rules of evidence). Any information prepared in 
anticipation of such actions or proceedings, to include information 
prepared to advise DLA officials of the possible legal or other 
consequences of a given course of action, is protected. The exemption is 
similar to the attorney work-product privilege except that it applies 
even when the information is prepared by non-attorneys. The exemption 
does not apply to information compiled in anticipation of criminal 
actions or proceedings.
    (c) Exempt Records Systems. All systems of records maintained by the 
Defense Logistics Agency will be exempt from the access provisions of 5 
U.S.C. 552a(d) and the notification of access

[[Page 1030]]

procedures of 5 U.S.C. 522a(e)(4)(H) pursuant to 5 U.S.C. 552a(k)(1) to 
the extent that the system contains any information properly classified 
under Executive Order 13526 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 DLA 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.
    (d) System Identifier: S170.04 (Specific exemption).
    (1) System name: Debarment and Suspension 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). If 
an individual, however, 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. 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) The specific sections of 5 U.S.C. 552a from which the system 
is exempt are 5 U.S.C. 552a(c)(3), (d)(1) through (d)(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: (i) From 5 U.S.C. 552a(c)(3), as 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 
an investigation or prosecutive interest by DLA or other agencies. This 
seriously could compromise case preparation by prematurely revealing its 
existence and nature; compromise or interfere with witnesses or making 
witnesses reluctant to cooperate; and lead to suppression, alteration, 
or destruction of evidence.
    (ii) From 5 U.S.C. 552a(d)(1) through (4) and (f), as 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 an 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 to satisfy 
any Government claim arising from the investigation or proceeding.
    (iii) From 5 U.S.C. 552a(e)(1), as 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 5 U.S.C. 552a(e)(4)(G) and (H), as there is no necessity 
for such publication since the system of records would 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 5 U.S.C. 552a(e)(4)(I), as to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system

[[Page 1031]]

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, nevertheless, will 
continue to publish such a notice in broad generic terms as is its 
current practice.
    (e) System Identifier: S500.10 (Specific exemption).
    (1) System name: Personnel Security Files.
    (2) Exemption: (i) Investigatory material compiled solely for the 
purpose of determining suitability, eligibility, or qualifications for 
federal civilian employment, 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 5 U.S.C. 552a(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 would 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 may 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 5 U.S.C. 552a(e)(1), as 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) System Identifier: S500.20 (Specific exemption).
    (1) System name: Defense Logistics Agency (DLA) Criminal Incident 
Reporting System (DCIRS).
    (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). If 
an individual, however, 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. NOTE: When claimed, this exemption allows limited 
protection of investigative reports maintained in a system of records 
used in personnel or administrative actions.
    (ii) The specific sections of 5 U.S.C. 552a from which the system is 
to be exempted are 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H), 
(I), and (f).
    (3) Authority: 5 U.S.C. 552a(k)(2).
    (4) Reasons: (i) From subsection (c)(3), as 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; compromising or interfering with witnesses or making witnesses 
reluctant to cooperate; and leading to suppression, alteration, or 
destruction of evidence.
    (ii) From 5 U.S.C. 552a(d) and (f), as providing access to this 
information could result in the concealment, destruction or fabrication 
of evidence and jeopardize the safety and wellbeing of informants, 
witnesses and their families, and law enforcement personnel and their 
families. Disclosure of this information also could reveal and

[[Page 1032]]

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 that would be otherwise unwilling to provide information to the 
Government. The exemption of the individual's right of access to his/her 
records and the reasons therefore necessitate the exemptions of this 
system of records from the requirements of the other cited provisions.
    (iii) From 5 U.S.C. 552a(e)(1), as 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 5 U.S.C. 552a(e)(4)(G), (H), and (I), as it will provide 
protection against notification of investigatory material 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 in jeopardy 
confidential informants 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).
    (g) System Identifier: S500.30 (Specific exemption).
    (1) System name: Incident Investigation/Police Inquiry 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). If 
an individual, however, 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. 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) The specific sections of 5 U.S.C. 552a from which the system 
is exempt are 5 U.S.C. 552a(c)(3), (d)(1) through (d)(4), (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 5 U.S.C. 552a(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; compromising or interfering with witnesses or 
making witnesses reluctant to cooperate; and leading to suppression, 
alteration, or destruction of evidence.
    (ii) From 5 U.S.C. 552a(d)(1) through (d)(4), and (f), as 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

[[Page 1033]]

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 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 to satisfy any Government claim arising from the 
investigation or proceeding.
    (iii) From 5 U.S.C. 552a(e)(1), as 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 5 U.S.C. 552a(e)(4)(G) and (H), as this system of records 
is compiled for law enforcement purposes and is exempt from the access 
provisions of 5 U.S.C. 552a(d) and (f).
    (v) From 5 U.S.C. 552a(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, nevertheless, will 
continue to publish such a notice in broad generic terms as is its 
current practice.
    (h) System Identifier: S500.60 (Specific exemption).
    (1) System name: Defense Logistics Agency Enterprise Hotline Program 
Records.
    (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). If 
an individual, however, 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. 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) The specific sections of 5 U.S.C. 552a from which the system 
is exempt are 5 U.S.C. 552a(c)(3), (d)(1) through (4), (e)(1), 
(e)(4)(G), (H), (I), and (f).
    (3) Authority: 5 U.S.C. 552a(k)(2) and (k)(5).
    (4) Reasons: (i) From subsection (c)(3), as 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 making witnesses 
reluctant to cooperate; and lead to suppression, alteration, or 
destruction of evidence.
    (ii) From 5 U.S.C. 552a(d)(1) through (4) and (f), as 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 interfere seriously 
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 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

[[Page 1034]]

impossible to reach to satisfy any Government claim arising from the 
investigation or proceeding.
    (iii) From 5 U.S.C. 552a(e)(1), as 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 5 U.S.C. 552a(e)(4)(G) and (H), as this system of records 
is compiled for law enforcement purposes and is exempt from the access 
provisions of 5 U.S.C. 552a(d) and (f).
    (v) From 5 U.S.C. 552a(e)(4)(I), as 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.
    (i) System Identifier: S510.30 (Specific/General Exemption).
    (1) System name: Freedom of Information Act/Privacy Act Requests and 
Administrative Appeal Records.
    (2) Exemption: During the processing of a Freedom of Information 
Act/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 Defense Logistics Agency 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) through (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.



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.

[[Page 1035]]



                      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 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

[[Page 1036]]

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 (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

[[Page 1037]]

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.
    (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.

[[Page 1038]]

    (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 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.

[[Page 1039]]



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, 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.

[[Page 1040]]

    (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 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.



        Sec. 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\.
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    \4\ Copies available from the Office of Personnel Management, 1900 
E. Street, Washington, DC 20415.
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          Sec. 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

[[Page 1041]]

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. 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

[[Page 1042]]

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. 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.

[[Page 1043]]



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.
    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 of the 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.

[[Page 1044]]

    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 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:

[[Page 1045]]

    (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.
    (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 for the 
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

[[Page 1046]]

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 (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

[[Page 1047]]

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.
    (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 Privacy Act 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 of a 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

[[Page 1048]]

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.
    (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 to the system of 
records, or are engaged in developing or supervising procedures for 
handling records,

[[Page 1049]]

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 individuals responsible 
for forms or methods used to collect personal information from 
individuals will:
    (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.

[[Page 1050]]

    (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 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 relevant to 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.

[[Page 1051]]



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 
voluntary or 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.



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 
copy of 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.

[[Page 1052]]



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 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.

[[Page 1053]]

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, 
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 correction to 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

[[Page 1054]]

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
    (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

[[Page 1055]]

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 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

[[Page 1056]]

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 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).

[[Page 1057]]

    (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.
    (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

[[Page 1058]]

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.
    (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.

[[Page 1059]]

    (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 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;

[[Page 1060]]

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 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

[[Page 1061]]

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 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

[[Page 1062]]

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 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

[[Page 1063]]

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.
    (k) QNRO-27.
    (1) System name: Legal Records.
    (2) Exemption: Any portion of this system of records which falls 
within 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 (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. 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.

[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; 74 FR 55784, Oct. 
29, 2009]



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.



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

[[Page 1064]]

A-130; \1\ and 32 CFR part 310; and to promote uniformity in the DeCA 
Privacy Act Program.
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    \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 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

[[Page 1065]]

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.
---------------------------------------------------------------------------

    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.
    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

[[Page 1066]]

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 receive 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 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:

[[Page 1067]]

    (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\
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \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 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.

[[Page 1068]]

    (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:
    (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;

[[Page 1069]]

    (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.
    (3) Non agency records. (i) Uncirculated personal notes and records 
that are not given or circulated to any person or organization (example, 
personal

[[Page 1070]]

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\
---------------------------------------------------------------------------

    \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 that the system contains any information 
properly classified under Executive Order 12958 and which is required by 
the Executive Order to be withheld

[[Page 1071]]

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.
    (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.

[[Page 1072]]

    (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:
---------------------------------------------------------------------------

    \6\ See footnote 3 to Sec. 327.5.
---------------------------------------------------------------------------

    (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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \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,
    (viii) Office or duty telephone numbers,
    (ix) Source of commission,
    (x) Promotion sequence number,
    (xi) Awards and decorations,

[[Page 1073]]

    (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
    (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

[[Page 1074]]

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.



        Sec. 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)



    Sec. 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:
    (i) Event cycle 2: Processing PA Requests.

[[Page 1075]]

    (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 1076]]

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).



         Sec. 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 1077]]

    (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.



PART 329_NATIONAL GUARD BUREAU PRIVACY PROGRAM--Table of Contents



Sec.
329.1 Purpose.
329.2 Applicability.
329.3 Definitions.
329.4 Policy.
329.5 Responsibilities.
329.6 Procedures.
329.7 Exemptions.

    Authority: Pub. L. 93-579, 88 Stat. 1986 (5 U.S.C. 552a).

    Source: 79 FR 6809, Feb. 5, 2014, unless otherwise noted.



Sec. 329.1  Purpose.

    This part implements the policies and procedures outlined in 5 
U.S.C. 552a, Office of Management and Budget (OMB) Circular No. A-130, 
and 32 CFR part 310. This part provides the responsibilities, guidance, 
and procedures for the National Guard Bureau (NGB) to comply with 
Federal and DoD Privacy requirements.



Sec. 329.2  Applicability.

    (a) This part applies to the NGB and the records under control of 
the Chief, NGB, as defined by DoD Directive (DoDD) 5105.77, entitled 
``National Guard Bureau.'' (Available at http://

www.dtic.mil/whs/directives/corres/pdf

/510577p.pdf)
    (b) This rule will cover the privacy policies and procedures 
associated with records created and under the control of the Chief, NGB 
that are not otherwise covered by existing DoD, Air Force, or Army 
rules.



Sec. 329.3  Definitions.

    All terms used in this part which are defined in 5 U.S.C. 552a shall 
have the same meaning herein.
    Access. Allowing individuals to review or receive copies of their 
records.
    Accuracy. Within sufficient tolerance for error to assure the 
quality of the record in terms of its use in making a determination.
    Agency. Any Executive department, military department, Government 
corporation, Government controlled corporation, or other establishment 
in the executive branch of the [federal] Government (including the 
Executive Office of the President), or any independent regulatory agency 
(as defined by 5 U.S.C. 552a).
    Amendment. The process of adding, deleting, or changing information 
in a System of Records (SOR) to make the

[[Page 1078]]

data accurate, relevant, timely, and/or complete.
    Appellate authority. The individual with authority to deny requests 
for access or amendment of records under 5 U.S.C. 552a.
    Breach. A loss of control, compromise, unauthorized disclosure, 
unauthorized acquisition, unauthorized access, or any similar term 
referring to situations where a person other than authorized users (with 
an official need to know), and for an other than authorized purpose has 
access or potential access to personally identifiable information, 
whether physical or electronic. A breach can include identifiable 
information in any form. (As defined by DoD Director of Administration 
and Management Memo, 5 Jun 2009 entitled ``Safeguarding Against and 
Responding to the Breach of Personally Identifiable Information 
(PII).'') (Available at

http://www.dod.mil/pubs/foi/privacy/docs/

DA--M6--5--2009Responding--toBreach--

of--PII.pdf)
    Chief, National Guard Bureau (CNGB). A principal advisor to the 
Secretary of Defense, through the Chairman of the Joint Chiefs of Staff, 
on matters involving non-federalized National Guard forces and on other 
matters as determined by the Secretary of Defense; and the principal 
adviser to the Secretary of the Army and the Chief of Staff of the Army, 
and to the Secretary of the Air Force and the Chief of Staff of the Air 
Force, on matters relating to the National Guard, the Army National 
Guard of the United States, and the Air National Guard of the United 
States. The CNGB also represents the National Guard on the Joint Chiefs 
of Staff.
    Completeness. All elements necessary for making a determination are 
present before such determination is made.
    Computer matching program. A program that matches the personal 
records in computerized database of two or more Federal agencies.
    Denial authority. The individual with authority to deny requests for 
access or amendment of records under 5 U.S.C. 552a.
    Determination. Any decision affecting an individual which, in whole 
or in part, is based on information contained in the record and which is 
made by any person or agency.
    Directorate/Division. The terms directorate and division are used to 
refer to suborganizations within the NGB. The Joint Staff and Air Guard 
Readiness Center uses the term ``Directorate'' to refer to their 
suborganizations and the Army Guard Readiness Center uses the term 
``Division'' to refer to their suborganizations.
    Disclosure. Giving information from a system, by any means, to 
anyone other than the record subject.
    Disclosure accounting. A record of all disclosures made from a SOR, 
except for disclosures made to Department of Defense personnel for use 
in performance of their official duties or disclosures made as required 
by 5 U.S.C. 552.
    Federal Register (FR). A daily publication of notices and rules 
issued by Federal Agencies and the President printed on a daily Federal 
workday.
    Individual. A citizen of the United States or an alien lawfully 
admitted for permanent residence. (As defined by 5 U.S.C. 552a)
    Maintain. Maintain, collect, use or disseminate. (As defined by 5 
U.S.C. 552a)
    Memorandum of Agreement. A written understanding (agreement) between 
parties to cooperatively work together on an agreed upon project or meet 
an agreed objective.
    Memorandum of Understanding. A written agreement between parties 
describing a bilateral or multilateral agreement between parties.
    Necessary. A threshold of need for an element of information greater 
than mere relevance and utility.
    Personal information. Information about an individual other than 
items of public record.
    Personally Identifiable Information (PII). Personal information. 
Information about an individual that identifies, links, relates, or is 
unique to, or describes him or her. Information which can be used to 
distinguish or trace an individual's identity which is linked or 
linkable to a specified individual.
    Privacy Act (5 U.S.C. 552a) Request. An oral (in person) or written 
request by an individual to access his or her records in a SOR.

[[Page 1079]]

    Privacy Act (5 U.S.C. 552a) Statement (PAS). A statement given to an 
individual when soliciting personal information that will be maintained 
in a SOR that advises them of the authority to collect information, the 
principal purpose(s) that the information will be used for, the routine 
uses on how the information will be disclosed outside of the agency, and 
whether it is mandatory or voluntary to provide the information and any 
consequences for not providing the information.
    Privacy Impact Assessment (PIA). A written assessment of an 
information system that addresses the information to be collected, the 
purpose and intended use; with whom the information will be shared; 
notice or opportunities for consent to individuals; how the information 
will be secured; and whether a new SOR is being created under 5 U.S.C. 
552a. Privacy Impact Assessments are required for all information 
systems and electronic collections that collect, maintain, use, or 
disseminate personally identifiable information about members of the 
public (this includes contractors and family members), under Public Law 
107-347, Section 208 of the E-Government Act of 2002. DoD Regulation 
5400.16-R, entitled ``Department of Defense Privacy Impact Assessment 
(PIA)'' (Available at

http://www.dtic.mil/whs/directives/corres

/pdf/540016p.pdf), provides additional requirements for PIAs, including 
a requirement to write a PIA on any information systems or electronic 
collection of PII on Federal personnel.
    Protected Health Information (PHI). Any information about health 
status, provision of health care, or payment for health care that can be 
linked to a specific individual.
    Record. Any item, collection, or grouping of information about an 
individual that is maintained by an agency, including, but not limited 
to, the individual's education, financial transactions, medical history, 
and criminal or employment history and that contains his name, or the 
identifying number, symbol, or other identifying particular assigned to 
the individual, such as a finger or voice print or a photograph (As 
defined by 5 U.S.C. 552a).
    Relevance. Limitation to only those elements of information that 
clearly bear of the determination(s) for which the records are intended.
    Routine use. The disclosure of a record outside the DoD for a use 
that is compatible with the purpose for which the information was 
collected and maintained by the DoD. The routine use must be included in 
the published system notice for the SOR involved. The DoD Blanket 
Routine Uses, found in 32 CFR part 310, Appendix C are applicable to all 
SORNs published by DoD.
    System Manager. The official who is responsible for managing a SOR, 
including policies and procedures to operate and safeguard it. Local 
System Managers operate record systems or are responsible for the 
records that are maintained in decentralized locations but are covered 
by a SORN published by another DoD activity or a Government-Wide SORN.
    System of Records (SOR). A group of any records under the control of 
any agency from which information is retrieved by the name of the 
individual or by some identifying number, symbol, or other identifying 
particular assigned to the individual.
    System of Records Notice (SORN). The official public notice 
published in the FR of the existence and content of the SOR. As required 
by 5 U.S.C. 552a and 32 CFR part 310, appendix E. The notice shall 
include:
    (1) System ID.
    (2) The name and location of the system.
    (3) The categories of individuals on whom records are maintained in 
the system.
    (4) The categories of records maintained in the system.
    (5) Each routine use of the records contained in the system, 
including the categories of users and the purpose of such use.
    (6) The policies and practices of the agency regarding storage, 
retrievability, access controls, retention, and disposal of the records.
    (7) The title and business address of the agency official who is 
responsible for the SOR.
    (8) The agency procedures whereby an individual can be notified at 
his request if the SOR contains a record pertaining to him.

[[Page 1080]]

    (9) The agency procedures whereby an individual can be notified at 
his request how he can gain access to any record pertaining to him 
contained in the SOR, and how he can contest its contents.
    (10) The categories of sources of records in the system.
    (11) Exemptions claimed for the system.
    Timeliness. Sufficiently current to ensure that any determination 
based on the record will be accurate and fair.



Sec. 329.4  Policy.

    In accordance with 32 CFR part 310, it is NGB's policy that:
    (a) Personal information contained in any SOR maintained by any NGB 
organization will be safeguarded to the extent authorized by 5 U.S.C. 
552a, Appendix I of Office of Management and Budget Circular No. A-130, 
and any other applicable legal requirements.
    (b) NGB will collect, maintain, use, and disseminate personal 
information only when it is relevant and necessary to achieve a purpose 
required by a statute or Executive Order.
    (c) NGB will collect personal information directly from the 
individuals to whom it pertains to the greatest extent possible and will 
provide individuals a PAS at the time of collection when the information 
being collected will be filed and/or retrieved by the subject's name or 
other unique identifier. The PAS will contain the following elements, as 
required by 5 U.S.C. 552a:
    (1) The statutory authority or Executive Order that allows for the 
solicitation,
    (2) The intended use/purpose that will be made of the information 
collected,
    (3) The routine uses that may be made of the information collected; 
and
    (4) Whether it is mandatory or voluntary for the individual to 
disclose the requested information and the non-punitive effects on the 
individual for not providing all or any part of the requested 
information. Collection can only be mandatory if the statutory authority 
or Executive Order cited provides a penalty for not providing the 
information.
    (d) NGB offices maintaining records and information about 
individuals will ensure that such data is protected from unauthorized 
access, use, dissemination, disclosure, alteration, and/or destruction. 
Offices will establish safeguards to ensure the security of personal 
information is protected from threats or hazards that might result in 
substantial harm, embarrassment, inconvenience, or unfairness to the 
individual using guidelines found in 32 CFR part 310, subpart B, 32 CFR 
part 310, appendix A, and DoD Manual (DoDM) 5200.01, Volume 4, entitled 
``DoD Information Security Program: Controlled Unclassified Information 
(CUI).''

(Available at http://www.dtic.mil/whs/

directives/corres/pdf/520001--vol4.pdf)
    (e) NGB offices shall permit individuals to access and have a copy 
of all or any portion of records about them, unless an exemption for the 
system has been properly established (see 5 U.S.C. 552a, 32 CFR part 
310, subparts D and F, and Sec. 329.7 of this part). Individuals 
requesting access to their record will also receive concurrent 
consideration under 5 U.S.C. 552 and 32 CFR part 286.
    (f) NGB offices will permit individuals an opportunity to request 
that records about them be corrected or amended (see 5 U.S.C. 552a, 32 
CFR part 310, subpart D, and Sec. 329.6 of this part).
    (g) Any records about individuals that are maintained by the NGB 
will be maintained with such accuracy, relevance, timeliness, and 
completeness as is reasonably necessary to assure fairness to the 
individual before making any determination about the individual or 
before making the record available to any recipient pursuant to a 
routine use.
    (h) NGB will keep no record that describes how individuals exercise 
their rights guaranteed by the First Amendment, 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.
    (i) NGB will notify individuals whenever records pertaining to them 
are made available under compulsory legal processes, if such process is 
a matter of public record.
    (j) NGB will assist individuals in determining what records 
pertaining to them are being collected, maintained, used, or 
disseminated.

[[Page 1081]]

    (k) NGB offices and personnel, including contractors, maintaining 
and having access to records and information about individuals will 
manage them and conduct themselves so as to avoid the civil liability 
and criminal penalties provided for under 5 U.S.C. 552a.



Sec. 329.5  Responsibilities.

    (a) Chief of the National Guard Bureau (CNGB). The CNGB, under the 
authority, direction, and control of the Secretary of Defense (SecDef), 
approves and establishes overall policy, direction, and guidance for the 
NGB privacy program and promulgates privacy policy for the non-
Federalized National Guard.
    (b) NGB Chief Counsel. The NGB Chief Counsel, under the authority, 
direction, and control of the CNGB, shall:
    (1) Serve as the National Guard Component Senior Official for 
Privacy (CSOP) pursuant to part 32 CFR part 310, subpart A.
    (2) Direct and administer the Privacy Program for the NGB as well as 
the National Guard of the States, Territories, and the District of 
Columbia as it pertains to the maintenance of records protected by 5 
U.S.C. 552a, other Federal laws on privacy, and OMB and DoD Privacy 
policies.
    (3) Ensure implementation of and compliance with standards and 
procedures established by 5 U.S.C. 552a, OMB A-130, 32 CFR part 310, and 
this part.
    (4) Serve as the appellate authority on denials of access or 
amendment.
    (5) Direct the implementation all aspects of 5 U.S.C. 552a, OMB A-
130, 32 CFR part 310, this part, and other Federal laws on privacy, and 
OMB and DoD Privacy policies.
    (c) Chief of the Office of Information and Privacy (OIP). The Chief 
of the OIP, under the authority, direction, and control of the NGB Chief 
Counsel, shall:
    (1) Oversee the National Guard's compliance with 5 U.S.C. 552a, OMB 
A-130, 32 CFR part 310, this part, and other Federal laws on privacy, 
and OMB and DoD Privacy policies.
    (2) Issue policy and guidance as it relates to 5 U.S.C. 552a and 
other Federal and DoD Privacy requirements.
    (3) Collect, consolidate, and submit Privacy reports to the Defense 
Privacy and Civil Liberties Office (DPCLO), or the respective service 
(Air Force or Army) that the reporting of information pertains to. This 
includes, but is not limited to:
    (i) Personally Identifiable Information (PII) Breach Reports 
required by 32 CFR part 310, subpart B,
    (ii) Quarterly Training Reports, SORN Reviews, and Privacy 
Complaints; and,
    (iii) Reports pursuant Public Law 17-347.
    (4) Submit all approved SORNs to the DPCLO or the respective service 
that has the statutory authority to publish the SORN for publication in 
the FR.
    (5) Refer inquiries about access, amendments of records, and general 
and specific exemptions listed in a SORN to the appropriate System 
Manager.
    (6) Review all instructions, directives, publications, policies, 
Memorandums of Agreement (MOA), Memorandums of Understanding (MOU), data 
sharing agreements, data transfer agreements, data use agreements, 
surveys (including web-based or electronic), and forms that involve or 
discuss the collection, retention, access, use, sharing, or maintenance 
of PII are to ensure compliance with this part.
    (7) Make training resources available to NGB personnel, including 
contractors, regarding 5 U.S.C. 552a, OMB A-130, 32 CFR part 310, 
compliance with this part, and other Federal and DoD Privacy 
requirements.
    (d) Chief of Administrative Law. The Chief of Administrative Law 
shall serve as the initial denial authority (IDA) to deny official 
requests for access or amendment to an individual's record pursuant to a 
published NGB SORN under 5 U.S.C. 552a or amendments to such records.
    (e) Chief of Litigation and Employment Law. The Chief of Litigation 
and Employment Law will notify the Chief of the OIP of any complaint 
citing 5 U.S.C. 552a is filed in a U.S. District Court against the NGB, 
or any employee of NGB using the procedures outlined in Sec. 329.6 of 
this part.
    (f) NGB Comptroller/Director of Administration and Management 
(DA&M). The

[[Page 1082]]

NGB Comptroller/DA&M shall ensure appropriate Federal Acquisition 
Regulation (FAR) (Available at https://www.acquisition.gov/far/) and 
Defense Federal Acquisition Regulation Supplement (DFARS) (Available at 
http://www.acq.osd.mil/dpap/dars/dfarspgi/

current/index.html) clauses (FAR Subpart 24.1 related to 5 U.S.C. 552a 
and FAR subpart 24.2 related to 5 U.S.C. 552, as well as DFARS clauses 
52.224-1 and/or 52.224-2) are included in all contracts that provide for 
contractor personnel to have access or maintain records, including 
records in information systems, that are covered by 5 U.S.C. 552a or 
that contain PII.
    (g) NGB Directorates/Divisions. All NGB directorates/divisions 
maintaining records containing PII or that have personnel that have 
access to PII shall:
    (1) Ensure that a SORN is published in the FR before collection of 
any information subject to 5 U.S.C. 552a is scheduled to begin.
    (2) Ensure System Managers comply with all responsibilities outlined 
in paragraph (h) of this section. This includes referring any proposed 
denials of access or amendment under 5 U.S.C. 552a to the Chief of the 
OIP within 10 working days.
    (3) Evaluate Privacy requirements for information systems and 
electronic collection or maintenance of PII in the early stages of 
system acquisition/development. This includes completing a PIA in 
accordance with the requirements of Public Law 107-347, section 208 of 
the E-Government Act of 2002, and DoD 5400.16-R.
    (4) Ensure personnel, including contractors, who have access to PII 
complete appropriate Privacy training as required by 5 U.S.C. 552a, 32 
CFR part 310, subpart H, and Part II of DoD Policy ``Safeguarding 
Against and Responding to Breaches of PII'' (http://www.dod.mil/pubs/
foi/privacy/docs/DA--

M6--5--2009Responding--toBreach--of--

PII.pdf) as follows:
    (i) Orientation Training: Training that provides individuals with a 
basic understanding of the requirements of 5 U.S.C. 552a as it applies 
to the individual's job performance. The training is for all personnel, 
as appropriate, and should be a prerequisite to all other levels of 
training.
    (ii) 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, special 
investigators, paperwork managers, public affairs officials, information 
technology professionals, and any other personnel responsible for 
implementing or carrying out functions under this part.
    (iii) Management Training: Training that provides managers and 
decision makers considerations that they should take into account when 
making management decisions regarding the Privacy program.
    (iv) Privacy Act (5 U.S.C. 552a) SOR Training: All individuals who 
work with a Privacy Act (5 U.S.C. 552a) SOR are trained on the 
provisions of the 5 U.S.C. 552a SORN(s) they work with, 32 CFR part 310, 
and this part.
    (5) Ensure all instructions, directives, publications, policies, 
MOAs, MOUs, data sharing agreements, data transfer agreements, data use 
agreements, surveys (including Web-based or electronic surveys), and 
forms that involve the collection, retention, use, access, sharing, or 
maintenance of PII are coordinated with the Chief of the OIP.
    (6) Ensure that any suspected or confirmed breaches of PII, or 
potential breaches of PII, are immediately reported to the Chief of the 
OIP in accordance with NGB Memorandum 380-16/33-361. (Available at 
http://www.

nationalguard.mil/sitelinks/links/NGB

%20Memorandum%20380-16%2033-361,

%20PII%20Incident%20Response%20

Handling.pdf).
    (7) Ensure policies and administrative processes within their 
directorates are evaluated to ensure compliance with the procedures in 
this part.
    (h) System Managers. System Managers will:
    (1) Report any changes to their existing SORN(s) to the Chief of the 
OIP for publishing in the FR at least 90 working days before the 
intended change to the system.

[[Page 1083]]

    (2) Review their published SORN(s) on a biennial basis and submit 
updates to the Chief of the OIP as necessary.
    (3) Ensure appropriate training is provided for all users, to 
include contractors, which have access to records covered by their 
published system notice.
    (4) Ensure safeguards are in place to protect all records containing 
PII (electronic, paper, etc.) from unauthorized access, use, disclosure, 
alteration, and/or destruction using guidelines found in 32 CFR part 
310, subpart B, 32 CFR part 310, appendix A, and DoDM 5200.01, Volume 4.
    (5) Assist in responding to any complaints and inquiries regarding 
the collection or maintenance of, or access to information covered by 
their published SORN(s).
    (6) Process all 5 U.S.C. 552a requests for access and amendment, as 
outlined in Sec. 329.6 of this part.
    (7) Maintain a record of disclosures for any records covered by a 
SORN using a method that complies with 32 CFR part 310, subpart E when 
disclosing records outside of the agency (DoD). Such disclosures will 
only be made when permitted by a Routine Use published in the SORN.
    (i) As required by 5 U.S.C. 552a and 32 CFR part 310, subpart E, the 
disclosure accounting will be maintained for 5 years after the 
disclosure, or for the life of the record, whichever is longer. The 
record may be maintained with the record disclosed, or in a separate 
file within the office's official record keeping system.
    (ii) Pursuant to 5 U.S.C. 552a and 32 CFR part 310, subpart E, the 
disclosure accounting will include the release date, a description of 
the information released, the reason for the release; and, the name and 
address of the recipient.



Sec. 329.6  Procedures.

    (a) Publication of notice in the FR. (1) A SORN shall be published 
in the FR of any record system meeting the definition of a SOR, as 
defined by 5 U.S.C. 552a.
    (2) System Managers shall submit notices for new or revised SORNs 
through their Director to the Chief of the OIP for review at least 90 
working days prior to implementation.
    (3) The Chief of the OIP shall forward complete SORNs to the Defense 
Privacy and Civil Liberties Office (DPCLO), or the respective service 
that has the statutory authority to publish the SORN, for review and 
publication in the FR in accordance with 32 CFR part 310, subpart G. 
Following the OMB comment period, the public is given 30 days to submit 
written data, views, or arguments for consideration before a SOR is 
established or modified.
    (b) Access to Systems of Records Information. (1) As provided by 5 
U.S.C. 552a, records shall be disclosed to the individual they pertain 
to and under whose individual name or identifier they are filed, unless 
exempted by the provisions in 32 CFR part 310, subpart F, and Sec. 
329.7 of this part. If an individual is accompanied by a third party, or 
requests a release to a third party, the individual shall be required to 
furnish a signed access authorization granting the third party access 
conditions according to 32 CFR part 310, subpart D.
    (2) Individuals seeking access to records that pertain to 
themselves, and that are filed by their name or other personal 
identifier, may submit the request in person, by mail, or by email. All 
requests for access must be in accordance with these procedures:
    (i) Any individual making a request for access to records in person 
shall show personal identification to the appropriate System Manager, as 
identified in the SORN published in the FR, to verify his or her 
identity, according to 32 CFR part 310, subpart D.
    (ii) Any individual making a request for access to records by mail 
or email shall address such request to the System Manager. If the System 
Manager is unknown, the individual may inquire to NGB-JA/OIP: AHS-Bldg 
2, Suite T319B, 111 S. George Mason Drive, Arlington, VA 22204-1382, or 
email ng.ncr.arng.mbx.ngb-privacy-office@mail

.mil for assistance in locating the System Manager.
    (iii) Requests for access shall include a mailing address where the 
records should be sent and include either a signed notarized statement 
or a signed unsworn declaration to verify his or her identity to ensure 
that they are

[[Page 1084]]

seeking to access records about themselves and not, inadvertently or 
intentionally, the records of others. The Privacy Act (5 U.S.C. 552a) 
provides a penalty of a misdemeanor and a fine of not more than $5,000 
for any person who knowingly and willfully requests or obtains any 
record concerning an individual from an agency under false pretenses. If 
making a declaration, it shall read as follows:
    (A) Inside the U.S.: ``I declare (or certify, verify, or state) 
under penalty of perjury that the foregoing is true and correct. 
Executed on (date). (Signature).''
    (B) Outside the U.S.: ``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).''
    (iv) All requests for records shall describe the record sought and 
provide sufficient information to enable the records to be located (e.g. 
identification of the SORN, approximate date the record was initiated, 
originating organization, and type of document).
    (v) All requesters shall comply with the procedures in 32 CFR part 
310, subpart D for inspecting and/or obtaining copies of requested 
records.
    (vi) Requestors affiliated with the DoD may not use official 
government supplies or equipment to include mailing addresses, work 
phones/faxes, or DoD-issued email accounts to make requests. If requests 
are received using DoD equipment, the requestor will be advised to make 
a new request, using non-DoD equipment, and processing of their request 
will begin only after such new request is received.
    (3) The System Manager shall mail a written acknowledgement of the 
request for access to the individual within 10 working days of receipt. 
The acknowledgement shall identify the request and may, if necessary, 
request any additional information needed to access the record, advising 
the requestor that they have 20 calendar days to reply. No 
acknowledgement is necessary if the request can be reviewed and 
processed, to include notification to the individual of a grant or 
denial of access, within the 10 working day period. Whenever practical, 
the decision to grant or deny access shall be made within 30 working 
days. For requests presented in person, written acknowledgement may be 
provided at the time the request is presented.
    (4) When a request for access is received, System Managers shall 
promptly take one of three actions on requests to access records:
    (i) If no portions of the record are exempt, pursuant to the 
published SORN, 32 CFR part 310, subpart F, and Sec. 329.7 of this 
part, the request for access shall be granted and the individual will be 
provided access to all records about him or her. If there is information 
within the record not about the record subject (e.g. third party 
information) that information will be removed and referred to the Chief 
of the OIP for processing under 5 U.S.C. 552, pursuant to 32 CFR part 
286.
    (ii) If the System Manager finds that the record, or portions of the 
record, is exempt from access pursuant to the published SORN, 32 CFR 
part 310, subpart F, and Sec. 329.7 of this part, they will refer the 
recommended denial to the Chief of the OIP, through their Director, 
within 10 working days of receipt. The referral will include the 
following:
    (A) Written recommendation for denial explaining which portion(s) of 
the record should be exempt from access and a discussion for why the 
record, or portions of the record, should be denied.
    (B) The record, or portions of the record, being recommended for 
denial. If only portions of records are recommended for denial they must 
be clearly marked or highlighted.
    (C) The original request and any correspondence with the requestor.
    (D) A clean copy of the record.
    (iii) If the request for access pertains to a record controlled and 
maintained by another Federal agency, but in the temporary custody of 
the NGB, the records are the property of the originating Component. 
Access to these records is controlled by the system notice and rules for 
the originating component/agency. Such requests shall be referred to the 
originating component/agency and the requestor will be notified in 
writing of the referral and contact information for the component/
agency.

[[Page 1085]]

    (5) The Chief of the OIP will use the following procedures for 
processing any recommended denials of access:
    (i) The specific reason for denial cited by the System Manager will 
be evaluated and a recommendation will be presented to the denial 
authority.
    (ii) If the request for access is denied, a written letter will be 
sent to the requestor using procedures outlined in 32 CFR part 310, 
subpart D. The requestor will be advised they have 60 calendar days to 
appeal the decision to deny access. Appeals should be sent to: NGB Chief 
Counsel, 1636 Defense Pentagon, Room 1D164, Washington, DC 20301-1636. 
The requester must provide proof of identity or a sworn declaration with 
their appeal, as outlined in 32 CFR part 310, subpart D.
    (iii) If the request for access should be granted, the access 
request will be directed back to the System Manager to process.
    (6) The Chief Counsel will use the following procedures for any 
appeals received:
    (i) The Chief Counsel will notify the Chief of the OIP that an 
appeal has been received and will request the administrative record of 
the initial denial.
    (ii) The Chief of the OIP will provide an exact copy of all records 
from the initial denial to the Chief Counsel within 10 working days.
    (iii) The Chief Counsel will review the appeal and make a final 
determination on whether to grant or deny the appeal.
    (A) If the appellate authority denies the appeal, he or she will 
provide a formal written notification to the requestor using the 
procedures outlined in 32 CFR part 310, subpart D and will provide a 
copy of the response to the Chief of the OIP.
    (B) If the appellate authority grants the appeal, he or she will 
notify the Chief of the OIP and the Directorate that recommended the 
denial that the individual is being given access to the record. The 
Chief Counsel will provide a subsequent notification to the requestor 
advising that his or her appeal has been granted, and will provide the 
requestor access to his or her record.
    (iv) All appeals should be processed within 30 working days after 
receipt by the Chief Counsel. If the Chief Counsel 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.
    (7) There is no requirement that an individual be given access to 
records that are not in a group of records that meet the definition of a 
SOR in 5 U.S.C. 552a.
    (8) No verification of identity shall be required of an individual 
seeking access to records that are otherwise available to the public.
    (9) Individuals shall not be denied access to a record in a SOR 
about themselves because those records are exempted from disclosure 
under 32 CFR part 285. Individuals may only be denied access to a record 
in a SOR about themselves when those records are exempted from the 
access provisions of 32 CFR part 310, subpart F, and this part.
    (10) Individuals shall not be denied access to their records for 
refusing to disclose their Social Security Number (SSN), 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 the SSN (reference 5 U.S.C. 552a, note, 
Executive Order 9397, as amended).
    (c) Access to Records or Information Compiled for Law Enforcement 
Purposes.
    (1) All requests by individuals to access records about themselves 
are processed under 5 U.S.C. 552, 5 U.S.C. 552a as well as 32 CFR part 
286, 32 CFR part 310, subpart D to give requesters a greater degree of 
access to records on themselves, regardless of which Act is cited by the 
requestor for processing.
    (2) Records (including those in the custody of law enforcement 
activities) that have been incorporated into a SOR exempted from the 
access conditions of 5 U.S.C. 552a and 32 CFR part 310, subpart D will 
be processed in accordance with 5 U.S.C. 552a, 32 CFR part 310, subpart 
D, and this part. Individuals shall not be denied access to records 
solely because they are in an exempt system. They will have the same 
access that they would receive under 5 U.S.C. 552 and 32 CFR part 286.

[[Page 1086]]

    (3) Records systems exempted from access conditions will be 
processed under 5 U.S.C. 552 and 32 CFR part 286, or 5 U.S.C. 552a and 
32 CFR part 310, subpart D, depending upon which gives the greater 
degree of access.
    (4) If a non-law enforcement element has temporary custody of a 
record otherwise exempted from access under 32 CFR part 310, subpart F 
for the purpose of adjudication or personnel actions, they shall refer 
any such access request, along with the records, to the originating 
agency and notify the requestor of the referral.
    (d) Access to illegible, incomplete, or partially exempt records. 
(1) An individual shall not be denied access to his or her record or a 
copy of the record solely because the physical condition or the format 
of the record does not make it readily available (e.g. record is in a 
deteriorated state or on a magnetic tape). The document will be prepared 
as an extract, or it will be exactly recopied.
    (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 by the System Manager.
    (3) When the physical condition of the record makes it necessary to 
prepare an extract for release, the extract shall be prepared so that 
the requestor will understand it.
    (4) The requester shall be given access to any deletions or changes 
to records that are accessible.
    (e) Access to medical records. (1) Medical records and other 
protected health information (PHI) shall be disclosed to the individual 
pursuant to Chapter 11 of DoD 6025.18-R, DoD Health Information Privacy 
Regulation (Available at

http://www.dtic.mil/whs/directives/corres

/pdf/602518r.pdf) and 32 CFR part 310, subpart D.
    (2) The individual may be charged reproduction fees for copies or 
records as outlined in 32 CFR part 310, subpart D.
    (f) Amending and disputing personal information in systems of 
records. (1) The System Manager shall allow individuals to request 
amendments to the records covered by their system notice to the extent 
that such records are not accurate, relevant, timely, or complete. 
Amendments are limited to correcting factual matters and not matters of 
official judgment, such as performance ratings, promotion potential, and 
job performance appraisals.
    (2) Individuals seeking amendment to records that pertain to 
themselves, and that are filed or retrieved by their name or other 
personal identifier, may submit a request for amendment in person, by 
mail, or by email. All requests for amendment must be in accordance with 
the following:
    (i) Any individual making a request for amendment to records in 
person shall show personal identification to the appropriate System 
Manager, as identified in the SORN published in the FR, to verify his or 
her identity, as outlined in 32 CFR part 310, subpart D.
    (ii) Any individual making a request for amendment to records by 
mail or email shall address such request to the System Manager. If the 
System Manager is unknown, they may inquire to NGB-JA/OIP: AHS-Bldg 2, 
Suite T319B, 111 S. George Mason Drive, Arlington VA 22204-1382, or 
email [email protected] for assistance in 
locating the System Manager.
    (iii) Requests for amendment shall include a mailing address where 
the decision on the request for amendment can be sent and include either 
a signed notarized statement or a signed unsworn declaration to verify 
his or her identity to ensure that they are seeking to amend records 
about themselves and not, inadvertently or intentionally, the records of 
others. The Privacy Act (5 U.S.C. 552a) provides a penalty of a 
misdemeanor and a fine of not more than $5,000 for any person who 
knowingly and willfully requests or obtains any record concerning an 
individual from an agency under false pretenses. The declaration shall 
read as follows:
    (A) Inside the US: ``I declare (or certify, verify, or state) under 
penalty of perjury that the foregoing is true and correct. Executed on 
(date). (Signature).''
    (B) Outside the US: ``I declare (or certify, verify, or state) under 
penalty of perjury under the laws of the United States of America that 
the foregoing is

[[Page 1087]]

true and correct. Executed on (date). (Signature).''
    (iv) All requests for amendment must include all information 
necessary to make a determination on the request for amendment, as 
outlined in 32 CFR part 310, subpart D.
    (v) Requestors affiliated with the DoD may not use official 
government supplies or equipment to include mailing addresses, work 
phones/faxes, or DoD-issued email accounts to make requests for 
amendment. If requests are received using DoD equipment, the requestor 
will be advised to make a new request, using non-DoD equipment, and 
processing of their request will begin only after such new request is 
received.
    (3) When a request for amendment is received, the System Manager 
shall:
    (i) Mail a written acknowledgement of the request for amendment to 
the individual within 10 working days of receipt. Such acknowledgement 
shall identify the request and may, if necessary, request any additional 
information needed to make a determination, advising the requestor that 
they have 20 calendar days to reply. No acknowledgement is necessary if 
the request can be reviewed and processed, to include notification to 
the individual of a grant or denial of amendment within the 10 working 
day period. Whenever practical, the decision to amend shall be made 
within 30 working days. For requests presented in person, written 
acknowledgement may be provided at the time the request is presented.
    (ii) Determine whether the requester has adequately supported his or 
her claim that the record is inaccurate, irrelevant, untimely, or 
incomplete.
    (A) If it is determined the individual's request for amendment is 
being granted, the System Manager will proceed to amend the records in 
accordance with existing statutes, regulations, or administrative 
procedures. The requestor will then be notified in writing of the 
agreement to amend and all previous holders of the records will be 
notified of the amendment as required by 32 CFR part 310, subpart D.
    (B) If it is determined that any, or all, of the record should not 
be amended, the original request, along with the record requested for 
amendment, and justification for recommended denial action shall be 
forwarded through their Director to the Chief of the OIP within 10 
working days of receipt for a decision by the IDA.
    (C) If the request for an amendment pertains to a record controlled 
and maintained by another Federal agency, the amendment request shall be 
referred to the appropriate agency and the requestor will be notified in 
writing of the referral and contact information for the agency.
    (4) The Chief of the OIP will use the following procedures for any 
recommended denials of amendment:
    (i) The specific reason for denial of amendment cited by the System 
Manager shall be evaluated and a recommendation presented to the IDA on 
whether to support the recommendation to deny amendment to the record.
    (ii) If the request to amend the record is denied, a written letter 
will be sent to the requestor using procedures outlined in 32 CFR part 
310, subpart D. If an individual disagrees with the denial decision, he 
or she may file an appeal within 60 calendar days of receipt of the 
denial notification. Appeals should be sent to: NGB Chief Counsel, 1636 
Defense Pentagon, Room 1D164, Washington DC 20301-1636.
    (5) The Chief Counsel will use the following procedures for any 
appeals received:
    (i) The Chief Counsel will notify Chief of the OIP that an appeal 
has been received and request an exact copy of the administrative record 
be provided within 10 working days.
    (ii) The Chief Counsel will review the appeal and make a final 
determination on whether to grant or deny the appeal.
    (A) If the Chief Counsel denies the appeal, a written letter will be 
provided to the requestor using the procedures outlined in 32 CFR part 
310, subpart D including notification to the requestor that they may 
file a statement of disagreement. A brief statement will be prepared by 
the NGB Chief Counsel summarizing the reasons for refusing to amend the 
records and a copy will be provided to the Chief of the OIP and the 
System Manager.
    (B) If the appellate authority grants the appeal, the procedures 
outlined in 32 CFR part 310, subpart D and this

[[Page 1088]]

part will be followed. The System Manager will be responsible for 
informing all previous recipients of the amendment when a disclosure 
accounting has been maintained in accordance with 32 CFR part 310, 
subpart E.
    (iii) All appeals should be processed within 30 working days after 
receipt by the Chief Counsel. If the Chief Counsel 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.
    (g) Disclosure of disputed information. If the appellate authority 
determines the record should not be amended and the individual has filed 
a statement of disagreement, the following procedures will be used:
    (1) The System Manager that has control of the record shall annotate 
the disputed record so 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.
    (2) Where disclosure accounting has been made, the System Manager 
shall advise previous recipients that the record has been disputed and 
shall provide a copy of the individual's statement of disagreement, and 
the statement summarizing the reasons for the NGB refusing to amend the 
records in accordance with 32 CFR part 310, subpart D.
    (3) The statement of disagreement shall be maintained in a manner 
that permits ready retrieval whenever the disputed portion of the record 
is disclosed.
    (4) When information that is the subject of a statement of 
disagreement is subsequently requested for disclosure, the System 
Manager will follow these procedures:
    (i) The System Manager shall note which information is disputed and 
provide a copy of the individual's statement in the disclosure.
    (ii) The System Manager shall include the summary of the NGB's 
reasons for not making a correction when disclosing disputed 
information.
    (5) Copies of the statement summarizing the reasons for the NGB 
refusing to amend the records will be treated as part of the 
individual's record; however, it will not be subject to the amendment 
procedure outlined in 5 U.S.C. 552 and 32 CFR part 310, subpart D.
    (h) Penalties. (1) Civil Action. An individual may file a civil suit 
against the NGB or its employees if the individual feels certain 
provisions of 5 U.S.C. 552a have been violated.
    (2) Criminal Action.
    (i) Criminal penalties may be imposed against any officer or 
employee for the offenses listed in subsection I of 5 U.S.C. 552a.
    (ii) An officer or employee of NGB may be found guilty of a 
misdemeanor and fined up to $5,000 for a violation of the offenses 
listed in subsection I of 5 U.S.C. 552a.
    (i) Litigation status sheet. Whenever a complaint citing 5 U.S.C. 
552a is filed in a U.S. District Court against the NGB, or any employee 
of NGB, the Chief of Litigation and Employment Law shall:
    (1) Promptly notify the Chief of the OIP of the complaint using the 
litigation status sheet in 32 CFR part 310, appendix H. This status 
sheet will be provided to the DPCLO, or the respective service(s) 
involved in the litigation.
    (2) Provide a revised litigation status sheet to the Chief of the 
OIP at each stage of the litigation for submission to the DPCLO, or the 
respective service(s) involved.
    (3) When a court renders a formal opinion or judgment, copies of the 
judgment or opinion shall be provided to the Chief of the OIP who will 
provide them to DPCLO, or the respective service(s) involved, along with 
the litigation status sheet reporting the judgment or opinion.
    (j) Computer matching programs. All requests for participation in a 
matching program (either as a matching agency, or a source agency) shall 
be submitted directly to the DPCLO for review and compliance, following 
procedures in 32 CFR part 310, subpart L. The Directorate shall submit a 
courtesy copy of such requests to the Chief of the OIP.

[[Page 1089]]



Sec. 329.7  Exemptions.

    (a) General information. There are two types of exemptions, general 
and specific. The general exemption authorizes the exemption of a SOR 
from all but a few requirements of 5 U.S.C. 552a. The specific exemption 
authorizes exemption of a SOR or portion thereof, from only a few 
specific requirements. If a new SOR originates for which an exemption is 
proposed, or an additional or new exemption for an existing SOR is 
proposed, the exemption shall be submitted with the SORN. No exemption 
of a SOR shall be considered automatic for all records in the system. 
The System Manager shall review each requested records and apply the 
exemptions only when this will serve significant and legitimate purpose 
of the Federal Government.
    (b) Exemption for classified material. All SOR maintained by the NGB 
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 Executive 
Order 13526 and that is required by that 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.
    (c) Exemption for anticipation of a civil action or proceeding. All 
systems of records maintained by the NGB shall be exempt under section 
(d)(5) of 5 U.S.C. 552a, to the extent that the record is compiled in 
reasonable anticipation of a civil action or proceeding.
    (d) General exemptions. No SOR within the NGB shall be considered 
exempt under subsection (j) or (k) of 5 U.S.C. 552a until the exemption 
rule for the SOR has been published as a final rule in the FR.
    (e) Specific exemptions. (1) System identifier and name: INGB 001, 
Freedom of Information Act (5 U.S.C.) and Privacy Act (5 U.S.C. 552a) 
Case Files.
    (i) Exemption: During the course of a 5 U.S.C. 552 or 5 U.S.C. 552a 
action, exempt materials from other systems of records may, in turn, 
become part of the case records in this system. To the extent that 
copies of exempt records from those other systems of records are entered 
into this 5 U.S.C. 552 or 5 U.S.C. 552a case record, the NGB hereby 
claims the same exemptions for the records from those other systems that 
are entered into this system, as claimed for the original primary SOR 
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 SOR. 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.
    (2) System identifier and name: INGB 005, Special Investigation 
Reports and Files.
    (i) Exemption: 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 
except to the extent

[[Page 1090]]

that disclosure would reveal the identity of a confidential source. 
NOTE: When claimed, this exemption allows limited protection of 
investigative reports maintained in a SOR used in personnel or 
administrative actions. Any portion of this SOR which falls within 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).
    (ii) Authority: 5 U.S.C. 552a(k)(2).
    (iii) Reasons: (A) From subsection (c)(3) of 5 U.S.C. 552a because 
to grant access to the accounting for each disclosure as required by 5 
U.S.C. 552a, 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. 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.
    (B) From subsections (d) and (f) of 5 U.S.C. 552a 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 5 U.S.C. 552a 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.
    (C) From subsection (e)(1) of 5 U.S.C. 552a 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.
    (D) From subsections (e)(4)(G) and (H) of 5 U.S.C. 552a because this 
SOR is compiled for investigative purposes and is exempt from the access 
provisions of subsections (d) and (f).
    (E) From subsection (e)(4)(I) of 5 U.S.C. 552a 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.

[[Page 1091]]



                 SUBCHAPTER P_OBTAINING DOD INFORMATION





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

    (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 1092]]



                  SUBCHAPTER R_ORGANIZATIONAL CHARTERS





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 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.

[[Page 1093]]

    (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.
    (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 352a_DEFENSE FINANCE AND ACCOUNTING SERVICE (DFAS)--
Table of Contents



Sec.
352a.1 Purpose.

[[Page 1094]]

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.
---------------------------------------------------------------------------

    (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

[[Page 1095]]

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.
    (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).
---------------------------------------------------------------------------



          Sec. 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 
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, 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 investigation or other appropriate investigation, including 
the National Agency Check, has not been completed.

[[Page 1096]]

    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.
---------------------------------------------------------------------------

    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:

[[Page 1097]]

    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 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.

    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.

[[Page 1098]]

    (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.
    (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.

[[Page 1099]]



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.



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 Road, 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.



          Sec. 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

[[Page 1100]]

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 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

[[Page 1101]]

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 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, 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

[[Page 1102]]

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.



           Sec. 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 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).
---------------------------------------------------------------------------

                        PARTS 396	399 [RESERVED]

[[Page 1103]]



                              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 1105]]



                    Table of CFR Titles and Chapters




                      (Revised as of July 1, 2014)

                      Title 1--General Provisions

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

                    Title 2--Grants and Agreements

            Subtitle A--Office of Management and Budget Guidance 
                for Grants and Agreements
         I  Office of Management and Budget Governmentwide 
                Guidance for Grants and Agreements (Parts 2--199)
        II  Office of Management and Budget Guidance (Parts 200--
                299)
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements
       III  Department of Health and Human Services (Parts 300--
                399)
        IV  Department of Agriculture (Parts 400--499)
        VI  Department of State (Parts 600--699)
       VII  Agency for International Development (Parts 700--799)
      VIII  Department of Veterans Affairs (Parts 800--899)
        IX  Department of Energy (Parts 900--999)
        XI  Department of Defense (Parts 1100--1199)
       XII  Department of Transportation (Parts 1200--1299)
      XIII  Department of Commerce (Parts 1300--1399)
       XIV  Department of the Interior (Parts 1400--1499)
        XV  Environmental Protection Agency (Parts 1500--1599)
     XVIII  National Aeronautics and Space Administration (Parts 
                1800--1899)
        XX  United States Nuclear Regulatory Commission (Parts 
                2000--2099)
      XXII  Corporation for National and Community Service (Parts 
                2200--2299)
     XXIII  Social Security Administration (Parts 2300--2399)
      XXIV  Housing and Urban Development (Parts 2400--2499)
       XXV  National Science Foundation (Parts 2500--2599)
      XXVI  National Archives and Records Administration (Parts 
                2600--2699)
     XXVII  Small Business Administration (Parts 2700--2799)
    XXVIII  Department of Justice (Parts 2800--2899)

[[Page 1106]]

       XXX  Department of Homeland Security (Parts 3000--3099)
      XXXI  Institute of Museum and Library Services (Parts 3100--
                3199)
     XXXII  National Endowment for the Arts (Parts 3200--3299)
    XXXIII  National Endowment for the Humanities (Parts 3300--
                3399)
     XXXIV  Department of Education (Parts 3400--3499)
      XXXV  Export-Import Bank of the United States (Parts 3500--
                3599)
    XXXVII  Peace Corps (Parts 3700--3799)
     LVIII  Election Assistance Commission (Parts 5800--5899)

                        Title 3--The President

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

                           Title 4--Accounts

         I  Government Accountability Office (Parts 1--199)
        II  Recovery Accountability and Transparency Board (Parts 
                200--299)

                   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 (Parts 2100--2199)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
        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 (Parts 3200--
                3299)
     XXIII  Department of Energy (Parts 3300--3399)
      XXIV  Federal Energy Regulatory Commission (Parts 3400--
                3499)
       XXV  Department of the Interior (Parts 3500--3599)
      XXVI  Department of Defense (Parts 3600--3699)
    XXVIII  Department of Justice (Parts 3800--3899)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)

[[Page 1107]]

    XXXIII  Overseas Private Investment Corporation (Parts 4300--
                4399)
     XXXIV  Securities and Exchange Commission (Parts 4400--4499)
      XXXV  Office of Personnel Management (Parts 4500--4599)
    XXXVII  Federal Election Commission (Parts 4700--4799)
        XL  Interstate Commerce Commission (Parts 5000--5099)
       XLI  Commodity Futures Trading Commission (Parts 5100--
                5199)
      XLII  Department of Labor (Parts 5200--5299)
     XLIII  National Science Foundation (Parts 5300--5399)
       XLV  Department of Health and Human Services (Parts 5500--
                5599)
      XLVI  Postal Rate Commission (Parts 5600--5699)
     XLVII  Federal Trade Commission (Parts 5700--5799)
    XLVIII  Nuclear Regulatory Commission (Parts 5800--5899)
      XLIX  Federal Labor Relations Authority (Parts 5900--5999)
         L  Department of Transportation (Parts 6000--6099)
       LII  Export-Import Bank of the United States (Parts 6200--
                6299)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Parts 6400--6499)
        LV  National Endowment for the Arts (Parts 6500--6599)
       LVI  National Endowment for the Humanities (Parts 6600--
                6699)
      LVII  General Services Administration (Parts 6700--6799)
     LVIII  Board of Governors of the Federal Reserve System 
                (Parts 6800--6899)
       LIX  National Aeronautics and Space Administration (Parts 
                6900--6999)
        LX  United States Postal Service (Parts 7000--7099)
       LXI  National Labor Relations Board (Parts 7100--7199)
      LXII  Equal Employment Opportunity Commission (Parts 7200--
                7299)
     LXIII  Inter-American Foundation (Parts 7300--7399)
      LXIV  Merit Systems Protection Board (Parts 7400--7499)
       LXV  Department of Housing and Urban Development (Parts 
                7500--7599)
      LXVI  National Archives and Records Administration (Parts 
                7600--7699)
     LXVII  Institute of Museum and Library Services (Parts 7700--
                7799)
    LXVIII  Commission on Civil Rights (Parts 7800--7899)
      LXIX  Tennessee Valley Authority (Parts 7900--7999)
       LXX  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 8000--8099)
      LXXI  Consumer Product Safety Commission (Parts 8100--8199)
    LXXIII  Department of Agriculture (Parts 8300--8399)
     LXXIV  Federal Mine Safety and Health Review Commission 
                (Parts 8400--8499)
     LXXVI  Federal Retirement Thrift Investment Board (Parts 
                8600--8699)
    LXXVII  Office of Management and Budget (Parts 8700--8799)
      LXXX  Federal Housing Finance Agency (Parts 9000--9099)
   LXXXIII  Special Inspector General for Afghanistan 
                Reconstruction (Parts 9300--9399)

[[Page 1108]]

    LXXXIV  Bureau of Consumer Financial Protection (Parts 9400--
                9499)
    LXXXVI  National Credit Union Administration (Parts 9600--
                9699)
     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Parts 
                9700--9799)
     XCVII  Council of the Inspectors General on Integrity and 
                Efficiency (Parts 9800--9899)

                      Title 6--Domestic Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 1--99)
         X  Privacy and Civil Liberties Oversight Board (Parts 
                1000--1099)

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, 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)

[[Page 1109]]

      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)
        XX  Local Television Loan Guarantee Board (Parts 2200--
                2299)
       XXV  Office of Advocacy and Outreach, Department of 
                Agriculture (Parts 2500--2599)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy Policy and New Uses, Department of 
                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  National Institute of Food and Agriculture (Parts 
                3400--3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of 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)

[[Page 1110]]

        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)

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
      XIII  Nuclear Waste Technical Review Board (Parts 1300--
                1399)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Parts 1800--1899)

                      Title 11--Federal Elections

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

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  Office of Thrift Supervision, Department of the 
                Treasury (Parts 500--599)
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  Federal Housing Finance Board (Parts 900--999)
         X  Bureau of Consumer Financial Protection (Parts 1000--
                1099)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XII  Federal Housing Finance Agency (Parts 1200--1299)
      XIII  Financial Stability Oversight Council (Parts 1300--
                1399)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
       XVI  Office of Financial Research (Parts 1600--1699)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700--1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

[[Page 1111]]

               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 (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board (Parts 
                500--599)

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--1199)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       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)

[[Page 1112]]

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  U.S. Customs and Border Protection, Department of 
                Homeland Security; Department of the Treasury 
                (Parts 0--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  U.S. Immigration and Customs Enforcement, Department 
                of Homeland Security (Parts 400--599)

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees' Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 1000--1099)

[[Page 1113]]

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  Broadcasting Board of Governors (Parts 500--599)
       VII  Overseas Private Investment Corporation (Parts 700--
                799)
        IX  Foreign Service Grievance Board (Parts 900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
      XIII  Millennium Challenge Corporation (Parts 1300--1399)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       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)

[[Page 1114]]

        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)
        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)
        XV  Emergency Mortgage Insurance and Loan Programs, 
                Department of Housing and Urban Development (Parts 
                2700--2799)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
      XXIV  Board of Directors of the HOPE for Homeowners Program 
                (Parts 4000--4099)
       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)

[[Page 1115]]

        VI  Office of the Assistant Secretary-Indian Affairs, 
                Department of the Interior (Parts 1000--1199)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Parts 1200--1299)

                      Title 26--Internal Revenue

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

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of the Treasury (Parts 1--399)
        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                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)

[[Page 1116]]

      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Employee Benefits Security Administration, Department 
                of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

                      Title 30--Mineral Resources

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

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      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)
         X  Financial Crimes Enforcement Network, Department of 
                the Treasury (Parts 1000--1099)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)

[[Page 1117]]

         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)
      XVII  Office of the Director of National Intelligence (Parts 
                1700--1799)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)
    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Corps of Engineers, Department of the Army (Parts 
                200--399)
        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                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)
       VII  Office of Educational Research and Improvement, 
                Department of Education (Parts 700--799) 
                [Reserved]
            Subtitle C--Regulations Relating to Education
        XI  National Institute for Literacy (Parts 1100--1199)
       XII  National Council on Disability (Parts 1200--1299)

[[Page 1118]]

                          Title 35 [Reserved]

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
        VI  [Reserved]
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Parts 1500--
                1599)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                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  U.S. Copyright Office, Library of Congress (Parts 
                200--299)
       III  Copyright Royalty Board, Library of Congress (Parts 
                300--399)
        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

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

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Regulatory Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--1099)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)

[[Page 1119]]

       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 A--Federal Procurement Regulations System 
                [Note]
            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                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)
   62--100  [Reserved]
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       102  Federal Management Regulation (Parts 102-1--102-299)
  103--104  [Reserved]
       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
  129--200  [Reserved]
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       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--599)

[[Page 1120]]

         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1999)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 400--999)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10099)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                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)

[[Page 1121]]

       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission on Fine Arts (Parts 2100--2199)
     XXIII  Arctic Research Commission (Part 2301)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)
        IV  National Telecommunications and Information 
                Administration, Department of Commerce, and 
                National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 400--499)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Defense Acquisition Regulations System, Department of 
                Defense (Parts 200--299)
         3  Health and Human Services (Parts 300--399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  Agency for International Development (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)

[[Page 1122]]

        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)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399) 
                [Reserved]
        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        57  African Development Foundation (Parts 5700--5799)
        61  Civilian Board of Contract Appeals, General Services 
                Administration (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)

[[Page 1123]]

         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) 
                [Reserved]
       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)
        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)

[[Page 1125]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of July 1, 2014)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Administrative Conference of the United States    1, III
Advisory Council on Historic Preservation         36, VIII
Advocacy and Outreach, Office of                  7, XXV
Afghanistan Reconstruction, Special Inspector     22, LXXXIII
     General for
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development              2, VII; 22, II
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department                            2, IV; 5, LXXIII
  Advocacy and Outreach, Office of                7, XXV
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  Commodity Credit Corporation                    7, XIV
  Economic Research Service                       7, XXXVII
  Energy Policy and New Uses, Office of           2, IX; 7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Food and Nutrition Service                      7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Grain Inspection, Packers and Stockyards        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
  National Institute of Food and Agriculture      7, XXXIV
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Procurement and Property Management, Office of  7, XXXII
  Rural Business-Cooperative Service              7, XVIII, XLII, L
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV, L
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII, L
  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

[[Page 1126]]

Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX
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
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
Bureau of Ocean Energy Management, Regulation,    30, II
     and Enforcement
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chemical Safety and Hazardous Investigation       40, VI
     Board
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                       5, LXVIII; 45, VII
Civil Rights, Office for                          34, I
Council of the Inspectors General on Integrity    5, XCVIII
     and Efficiency
Court Services and Offender Supervision Agency    5, LXX
     for the District of Columbia
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce Department                               2, XIII; 44, IV; 50, VI
  Census Bureau                                   15, I
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  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
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III, IV
       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 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 Financial Protection Bureau              5, LXXXIV; 12, X
Consumer Product Safety Commission                5, LXXI; 16, II
Copyright Royalty Board                           37, III
Corporation for National and Community Service    2, XXII; 45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Court Services and Offender Supervision Agency    5, LXX; 28, VIII
     for the District of Columbia
Customs and Border Protection                     19, I

[[Page 1127]]

Defense Contract Audit Agency                     32, I
Defense Department                                2, XI; 5, XXVI; 32, 
                                                  Subtitle A; 40, VII
  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Acquisition Regulations System          48, 2
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  National Imagery and Mapping Agency             32, I
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 2, XI; 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          5, LXX; 28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          2, XXXIV; 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
Election Assistance Commission                    2, LVIII; 11, II
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                             2, IX; 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                   2, XV; 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                2, Subtitle A; 5, III, 
                                                  LXXVII; 14, VI; 48, 99

[[Page 1128]]

  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
  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           2, XXXV; 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                       5, XXXVII; 11, I
Federal Emergency Management Agency               44, I
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 Agency                    5, LXXX; 12, XII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority                 5, XIV, XLIX; 22, XIV
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
Financial Crimes Enforcement Network              31, X
Financial Research Office                         12, XVI
Financial Stability Oversight Council             12, XIII
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
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

[[Page 1129]]

Forest Service                                    36, II
General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  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 Accountability Office                  4, I
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          2, III; 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
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  2, XXX; 6, I; 8, I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection                   19, I
  Federal Emergency Management Agency             44, I
  Human Resources Management and Labor Relations  5, XCVII
       Systems
  Immigration and Customs Enforcement Bureau      19, IV
  Transportation Security Administration          49, XII
HOPE for Homeowners Program, Board of Directors   24, XXIV
     of
Housing and Urban Development, Department of      2, XXIV; 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 Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII
Indian Affairs, Bureau of                         25, I, V

[[Page 1130]]

Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V
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
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII, XV
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior Department                               2, XIV
  American Indians, Office of the Special         25, VII
       Trustee
  Bureau of Ocean Energy Management, Regulation,  30, II
       and Enforcement
  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
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Natural Resource Revenue, Office of             30, XII
  Ocean Energy Management, Bureau of              30, V
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            2, XIV; 43, Subtitle A
  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 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
Investment Security, Office of                    31, VIII
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                                2, XXVIII; 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
  Employee Benefits Security Administration       29, XXV
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Employment Standards Administration             20, VI

[[Page 1131]]

  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
  Office of Workers' Compensation Programs        20, VII
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  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 Royalty Board                         37, III
  U.S. Copyright Office                           37, II
Local Television Loan Guarantee Board             7, XX
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II, LXIV
Micronesian Status Negotiations, Office for       32, XXVII
Millennium Challenge Corporation                  22, XIII
Mine Safety and Health Administration             30, I
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
Museum and Library Services, Institute of         2, XXXI
National Aeronautics and Space Administration     2, XVIII; 5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National and Community Service, Corporation for   2, XXII; 45, XII, XXV
National Archives and Records Administration      2, XXVI; 5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Capital Planning Commission              1, IV
National Commission for Employment Policy         1, IV
National Commission on Libraries and Information  45, XVII
     Science
National Council on Disability                    34, XII
National Counterintelligence Center               32, XVIII
National Credit Union Administration              5, LXXXVI; 12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           21, III
National Endowment for the Arts                   2, XXXII
National Endowment for the Humanities             2, XXXIII
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 47, VI; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Food and Agriculture        7, XXXIV
National Institute of Standards and Technology    15, II
National Intelligence, Office of Director of      32, XVII
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII

[[Page 1132]]

National Science Foundation                       2, XXV; 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, IV
     Administration
National Transportation Safety Board              49, VIII
Natural Resources Conservation Service            7, VI
Natural Resource Revenue, Office of               30, XII
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
Nuclear Regulatory Commission                     2, XX; 5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Ocean Energy Management, Bureau of                30, V
Offices of Independent Counsel                    28, VI
Office of Workers' Compensation Programs          20, VII
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                                       2, XXXVII; 22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 45, VIII
  Human Resources Management and Labor Relations  5, XCVII
       Systems, Department of Homeland Security
  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 Regulatory 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
Privacy and Civil Liberties Oversight Board       6, X
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
Recovery Accountability and Transparency Board    4, II
Refugee Resettlement, Office of                   45, IV
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
Rural Business-Cooperative Service                7, XVIII, XLII, L
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV, L
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII, L
Saint Lawrence Seaway Development Corporation     33, IV

[[Page 1133]]

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                5, XXXIV; 17, II
Selective Service System                          32, XVI
Small Business Administration                     2, XXVII; 13, I
Smithsonian Institution                           36, V
Social Security Administration                    2, XXIII; 20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
State Department                                  2, VI; 22, I; 28, XI
  Federal Acquisition Regulation                  48, 6
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
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                     2, XII; 5, L
  Commercial Space Transportation                 14, III
  Contract Appeals, Board of                      48, 63
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II
  Federal Motor Carrier Safety Administration     49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 47, IV; 49, V
  Pipeline and Hazardous Materials Safety         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                   19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Claims Collection Standards             31, IX
  Federal Law Enforcement Training Center         31, VII
  Financial Crimes Enforcement Network            31, X
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  Investment Security, Office of                  31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
  Thrift Supervision, Office of                   12, V
Truman, Harry S. Scholarship Foundation           45, XVIII
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
U.S. Copyright Office                             37, II

[[Page 1134]]

Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       2, VIII; 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 1135]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations (CFR) that 
were made by documents published in the Federal Register since January 
1, 2009 are enumerated in the following list. Entries indicate the 
nature of the changes effected. Page numbers refer to Federal Register 
pages. The user should consult the entries for chapters, parts and 
subparts as well as sections for revisions.
For changes to this volume of the CFR prior to this listing, consult the 
annual edition of the monthly List of CFR Sections Affected (LSA). The 
LSA is available at www.fdsys.gov. For changes to this volume of the CFR 
prior to 2001, see the ``List of CFR Sections Affected, 1949-1963, 1964-
1972, 1973-1985, and 1986-2000'' published in 11 separate volumes. The 
``List of CFR Sections Affected 1986-2000'' is available at 
www.fdsys.gov.

                                  2009

32 CFR
                                                                   74 FR
                                                                    Page
Chapter I
199.2 Regulation at 73 FR 74964 eff. date delayed to 5-1-09.........6228
    Regulation at 73 FR 74964 response to comments.................21547
    (b) amended....................................................44755
199.4 Regulation at 73 FR 74965 eff. date delayed to 5-1-09.........6228
    (e)(27) added..................................................34696
199.6 (b)(4)(xvi) added............................................44755
    (b)(4)(xii)(A)(2)(i) and (E)(7) introductory text revised......55777
    (d)(3) revised; interim........................................65438
199.8 (d)(1)(iii)(C) added; (d)(1)(vi) revised.....................55775
199.14 Regulation at 73 FR 74965 eff. date delayed to 5-1-09........6228
    (a)(3), (4) and (5) redesignated as (a)(4), (5) and (6); new 
(a)(4) introductory text revised; (d)(1) amended; 
(a)(1)(ii)(D)(10), new (3), (6)(iii) and (iv) added................44755
199.21 (q) added...................................................11292
    (g)(4) and (i)(2)(xi) added; (h)(2)(ii) and (m) revised........55776
    (h) heading revised; (h)(4) and (i)(2)(ii)(D) added; interim 
                                                                   65438
239 Revised........................................................50110
    Regulation at 74 FR 50110 comment period extended..............58846
260 Added..........................................................62235
279 Added; interim.................................................54753
311 Revised........................................................56114
311.8 (b)(16) added................................................55778
    Added..........................................................58205
322.7 (r) added....................................................55779
    (s) added......................................................55780
323 Appendix H amended......................................55782, 55783
    Regulations at 74 FR 55782 and 55783 withdrawn.................62699
326.17 (k) added...................................................55784

                                  2010

32 CFR
                                                                   75 FR
                                                                    Page
Chapter I
199.2 (b) amended; interim.........................................47455
    (b) amended....................................................47458
199.3 (e)(1)(v) and (vi) added.....................................50883
199.4 (d)(3)(ix) added; (g)(39) revised............................47459
    (g)(37)(viii) and (ix) revised; (g)(37)(x), (xi) and (xii) 
redesignated as new (g)(37)(xi), (xii) and (xiii); new (g)(37)(x) 
added..............................................................47461
    (c)(3)(x)(A) revised...........................................50882
199.5 (b)(4), (g)(2)(ii) introductory text through (C)(2) and (E) 
        removed; (g)(2)(ii)(D) redesignated as (g)(2)(ii); (c)(6), 
        (7)(iii), (f)(3)(i), (g)(2)(i), new (ii), (4)(iii), 
        (h)(2), (3)(v)(A) and (j) revised..........................47711
199.6 (c)(3)(iii)(L) and (M) added.................................47460

[[Page 1136]]

    (c)(3)(iii)(K) revised.........................................50882
199.8 (d)(6) added.................................................18054
199.17 (o)(4) revised..............................................47713
    (a)(3) amended; (v) redesignated as (w); new (v) added.........50884
199.21 (q) revised.................................................63397
199.25 Added; interim..............................................47455
239 Revised........................................................69873
241 Added; interim.................................................77754
279 Added..........................................................19879
    Correctly revised..............................................21506
320 Heading correctly revised; CFR correction......................34634
320.5 (b)(2) corrected; CFR correction.............................34634
323 Appendix H amended.............................................61618

                                  2011

32 CFR
                                                                   76 FR
                                                                    Page
Chapter I
199.2 (b) amended...................................................8297
    (b) amended; interim...........................................23483
199.3 (e)(3) revised...............................................81367
199.4 (e)(26)(ii)(B) introductory text amended; 
        (e)(26)(ii)(B)(1)(ii) and (iv) revised; (e)(26)(ii)(B)(2), 
        (3) and (4) redesignated as (e)(26)(ii)(B)(3), (4) and 
        (5); (e)(26)(ii)(B)(1)(v) and new (2) added.................2253
    (e)(15) and (g)(28) revised.....................................8297
    (e)(9) redesignated as (e)(9)(i); (e)(9)(ii) added.............57642
    (c)(3)(ix)(A) introductory text revised; interim...............80743
    (e)(28), (29) and (f)(12) added; (g)(37) revised...............81370
199.6 (d)(3) revised...............................................41065
    (c)(3)(iii)(N) added; (c)(3)(iv)(C) revised; interim...........80743
199.13 (c)(3)(ii)(E)(2) revised....................................57643
    (c)(3)(ii)(E)(1) revised.......................................81367
199.17 (m)(1)(ii)(D) and (2)(iii) added............................81367
199.20 Revised.....................................................57639
199.21 (h) heading revised; (h)(4) and (i)(2)(ii)(D) added.........41065
199.24 (e) removed.................................................57641
199.26 Added; interim..............................................23483
211 Added; interim (eff. date pending).............................65115
222 Added..........................................................80745
256 Removed........................................................57644
311.8 (c)(18) added................................................22612
    (c)(19) added..................................................22613
    (c)(17) added..................................................57645
    (c)(20) added..................................................58104
319.13 (d) removed.................................................49659
    (i) added......................................................49660
321.13 (h) removed; eff. 7-5-11....................................22808
322.7 (r) and (s) redesignated as (s) and (t); new (r) added.......22615
    (l) removed; (u) added.........................................22616
323 Appendix H amended; eff. 7-5-11................................22809
323 Appendix H amended.............................................49661

                                  2012

32 CFR
                                                                   77 FR
                                                                    Page
Chapter I
199.2 (b) amended; eff. 7-27-12....................................38178
199.3 (f)(2)(iii) and (g)(3) added; (f)(3)(ix)(C) revised; eff. 7-
        27-12......................................................38176
199.4 (e)(19)(v) revised; eff. 7-27-12.............................38175
    (g)(15)(i)(A) Note amended; (g)(15)(iv) removed; eff. 7-27-12 
                                                                   38178
199.8 (d)(1)(i) revised; (d)(1)(vi), (vii) and (viii) redesignated 
        as (d)(1)(vii), (viii) and (ix); new (d)(1)(vi) added; 
        eff. 7-27-12...............................................38176
199.11 (f)(3) revised; eff. 7-27-12................................38176
199.14 (a)(1)(ii)(C)(3), (iii)(A)(2) and (j)(1)(ix) revised; eff. 
        7-27-12....................................................38175
222.5 Correctly amended..............................................745
223 Revised........................................................43506
233 Added; interim.................................................57487
236 Added..........................................................27618
239.9 (a)(1) and (2) added.........................................39628
239.15 Revised.....................................................39629
240 Added..........................................................14955
241 Revised; eff. 7-20-12..........................................36917
311.8 (c)(16) added................................................15586
    (c)(17) revised................................................15588
    (c)(20) revised................................................15589
    (c)(17) corrected..............................................16676
319.13 (e) revised.................................................15591
    (d) removed....................................................15592
    (j) added......................................................15593
    (i) revised....................................................15594
    (f) removed....................................................15595
    (h) added......................................................57014
    (l) added......................................................57016
    (k) added......................................................57017
    (g) added......................................................57018
322.7 (l) added....................................................15596

[[Page 1137]]

    (r) removed....................................................15597
    (l)(2) through (5) correctly designated as (l)(1) through (4) 
                                                                   19095

                                  2013

32 CFR
                                                                   78 FR
                                                                    Page
Chapter I
199 Technical correction...........................................51061
199.2 (b) amended...........................................12954, 48309
199.4 (a)(9) revised...............................................12952
    (d)(3)(vi) introductory text and (g)(39) revised; 
(d)(3)(vi)(C) and (e)(30) added; (g)(65) removed...................13240
    (e)(4)(ii) introductory text and (11) introductory text 
revised; (e)(11)(ii) removed.......................................62430
199.6 (b)(4)(xvii) added...........................................48309
199.9 (n) added....................................................12954
199.14 (a)(1)(ii)(D)(6), (2)(viii)(D), (3) and (6) introductory 
        text revised; (a)(4) amended; (a)(7) and (8) added.........48309
199.21 (a)(2) and (h)(2)(i) revised; (h)(2)(iii) and (i)(2)(v)(D) 
        added......................................................13241
    Heading revised; (r) added.....................................75247
199.26 Revised.....................................................32119
211 Revised........................................................73088
226 Authority citation revised.....................................21257
226.1 Revised......................................................21257
226.3 Redesignated as 226.4........................................21257
226.4 Redesignated as 226.5; New 226.4 redesignated from 226.3; 
        Heading and (a) revised; Introductory text added; (b), 
        (c), (d) introductory text and (6) amended.................21257
226.5 Removed; New 226.5 redesignated from 226.4; (a) and (c)(2) 
        revised; (b), (c)(4) and (d)(3) amended....................21257
236 Revised........................................................62435
319.13 (d) added...................................................69551
    (m) added......................................................69552
320.12 (c) added; eff. 7-30-13.....................................32555
    (e) added......................................................69290
    (d) added......................................................69292
323 Revised........................................................25854

                                  2014

   (Regulations published from January 1, 2014, through July 1, 2014)

32 CFR
                                                                   79 FR
                                                                    Page
Chapter I
199.14 (a)(1)(i)(C)(3) revised.....................................29087
241.6 (b) revised..................................................27488
241.12 (a) revised.................................................27488
300 Redesignated from 1285 and transferred from Chapter XII, 
        Subchapter B...............................................30465
    Revised........................................................30466
312.12 (k) added; eff. 7-14-14.....................................25506
320.12 (c) revised; eff. 7-7-14....................................26121
329 Added...........................................................6809


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