[Title 32 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2020 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 32
National Defense
________________________
Part 800 to End
Revised as of July 1, 2020
Containing a codification of documents of general
applicability and future effect
As of July 1, 2020
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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[[Page iii]]
Table of Contents
Page
Explanation................................................. vi
Title 32:
SUBTITLE A--Department of Defense (Continued)
Chapter VII--Department of the Air Force 5
SUBTITLE B--Other Regulations Relating to National Defense
Chapter XII--Department of Defense, Defense
Logistics Agency 175
Chapter XVI--Selective Service System 191
Chapter XVII--Office of the Director of National
Intelligence 263
Chapter XVIII--National Counterintelligence Center 295
Chapter XIX--Central Intelligence Agency 333
Chapter XX--Information Security Oversight Office,
National Archives and Records Administration 387
Chapter XXI--National Security Council 481
Chapter XXIV--Office of Science and Technology
Policy 491
Chapter XXVII--Office for Micronesian Status
Negotiations 515
Chapter XXVIII--Office of the Vice President of the
United States 525
Finding Aids:
Table of CFR Titles and Chapters........................ 539
[[Page iv]]
Alphabetical List of Agencies Appearing in the CFR...... 559
List of CFR Sections Affected........................... 569
[[Page v]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 32 CFR 806.1 refers
to title 32, part 806,
section 1.
----------------------------
[[Page vi]]
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
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To determine whether a Code volume has been amended since its
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EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
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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 vii]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
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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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the Code prior to the LSA listings at the end of the volume, consult
previous annual editions of the LSA. For changes to the Code prior to
2001, consult the List of CFR Sections Affected compilations, published
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.
``[RESERVED]'' TERMINOLOGY
The term ``[Reserved]'' is used as a place holder within the Code of
Federal Regulations. An agency may add regulatory information at a
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used
editorially to indicate that a portion of the CFR was left vacant and
not dropped in error.
INCORPORATION BY REFERENCE
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This material, like any other properly issued regulation, has the force
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What is a proper incorporation by reference? The Director of the
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CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Authorities
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alphabetical list of agencies publishing in the CFR are also included in
this volume.
An index to the text of ``Title 3--The President'' is carried within
that volume.
[[Page viii]]
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
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The e-CFR is a regularly updated, unofficial editorial compilation
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of the Federal Register and the Government Publishing Office. It is
available at www.ecfr.gov.
Oliver A. Potts,
Director,
Office of the Federal Register
July 1, 2020
[[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, 2019.
The current regulations issued by the Office of the Secretary of
Defense appear in the volumes containing parts 1-190 and parts 191-399;
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, Office of the Director of National
Intelligence, National Counterintelligence Center, Central Intelligence
Agency, Information Security Oversight Office (National Archives and
Records Administration), 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, Kenneth R. Payne was Chief Editor. The Code of
Federal Regulations publication program is under the direction of John
Hyrum Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 32-NATIONAL DEFENSE
(This book contains part 800 to end)
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SUBTITLE A--Department of Defense (Continued)
Part
chapter vii--Department of the Air Force.................... 809a
SUBTITLE B--Other Regulations Relating to National Defense
chapter xii--Department of Defense, Defense Logistics Agency 1280
chapter xvi--Selective Service System....................... 1602
chapter xvii--Office of the Director of National
Intelligence.............................................. 1700
chapter xviii--National Counterintelligence Center.......... 1800
chapter xix--Central Intelligence Agency.................... 1900
chapter xx--Information Security Oversight Office, National
Archives and Records Administration....................... 2001
chapter xxi--National Security Council...................... 2102
chapter xxiv--Office of Science and Technology Policy....... 2400
chapter xxvii--Office for Micronesian Status Negotiations... 2700
chapter xxviii--Office of the Vice President of the United
States.................................................... 2800
[[Page 3]]
Subtitle A--Department of Defense (Continued)
[[Page 5]]
CHAPTER VII--DEPARTMENT OF THE AIR FORCE
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SUBCHAPTER A--ADMINISTRATION
Part Page
800-806
[Reserved]
809a Installation entry policy, civil disturbance
intervention and disaster assistance.... 7
SUBCHAPTER B--SALES AND SERVICES
811 Release, dissemination, and sale of visual
information materials................... 9
SUBCHAPTER C--PUBLIC RELATIONS [RESERVED]
SUBCHAPTER D--CLAIMS AND LITIGATION
842 Administrative claims....................... 12
845 Counsel fees and other expenses in foreign
tribunals............................... 51
SUBCHAPTER E--SECURITY [RESERVED]
SUBCHAPTER F--AIRCRAFT
855 Civil aircraft use of United States Air
Force airfields......................... 55
[[Page 6]]
861 Department of Defense Commercial Air
Transportation Quality and Safety Review
Program................................. 79
SUBCHAPTER G--ORGANIZATION AND MISSION--GENERAL
865 Personnel review boards..................... 93
SUBCHAPTER H [RESERVED]
SUBCHAPTER I--MILITARY PERSONNEL
888-888g
[Reserved]
SUBCHAPTER J--CIVILIAN PERSONNEL [RESERVED]
SUBCHAPTER K--MILITARY TRAINING AND SCHOOLS
901 Appointment to the United States Air Force
Academy................................. 121
SUBCHAPTERS L-M [RESERVED]
SUBCHAPTER N--TERRITORIAL AND INSULAR REGULATIONS
935 Wake Island Code............................ 131
SUBCHAPTER O--SPECIAL INVESTIGATION [RESERVED]
SUBCHAPTERS P-S [RESERVED]
SUBCHAPTER T--ENVIRONMENTAL PROTECTION
989 Environmental impact analysis process (EIAP) 147
900-999
[Reserved]
[[Page 7]]
SUBCHAPTER A_ADMINISTRATION
PARTS 800 806 [RESERVED]
PART 809a_INSTALLATION ENTRY POLICY, CIVIL DISTURBANCE INTERVENTION
AND DISASTER ASSISTANCE--Table of Contents
Sec.
809a.0 Purpose.
Subpart A_Installation Entry Policy
809a.1 Random installation entry point checks.
809a.2 Military responsibility and authority.
809a.3 Unauthorized entry.
809a.4 Use of Government facilities.
809a.5 Barment procedures.
Subpart B [Reserved]
Authority: 10 U.S.C. 332 and 333.
Source: 67 FR 13718, Mar. 26, 2002, unless otherwise noted.
Sec. 809a.0 Purpose.
This part prescribes the commanders' authority for enforcing order
within or near Air Force installations under their jurisdiction and
controlling entry to those installations. It provides guidance for use
of military personnel in controlling civil disturbances and in
supporting disaster relief operations. This part applies to
installations in the United States, its territories and possessions, and
will be used to the maximum extent possible in the overseas commands.
Instructions issued by the appropriate overseas commander, status of
forces agreements, and other international agreements provide more
definitive guidance for the overseas commands. Nothing in this part
should be construed as authorizing or requiring security forces units to
collect and maintain information concerning persons or organizations
having no affiliation with the Air Force other than a list of persons
barred from the installation.
Subpart A_Installation Entry Policy
Sec. 809a.1 Random installation entry point checks.
The installation commander determines when, where, and how to
implement random checks of vehicles or pedestrians. The commander
conducts random checks to protect the security of the command or to
protect government property.
Sec. 809a.2 Military responsibility and authority.
(a) Air Force installation commanders are responsible for protecting
personnel and property under their jurisdiction and for maintaining
order on installations, to ensure the uninterrupted and successful
accomplishment of the Air Force mission.
(b) Each commander is authorized to grant or deny access to their
installations, and to exclude or remove persons whose presence is
unauthorized. In excluding or removing persons from the installation,
the installation commander must not act in an arbitrary or capricious
manner. Their action must be reasonable in relation to their
responsibility to protect and to preserve order on the installation and
to safeguard persons and property thereon. As far as practicable, they
should prescribe by regulation the rules and conditions governing access
to their installation.
Sec. 809a.3 Unauthorized entry.
Under Section 21 of the Internal Security Act of 1950 (50 U.S.C.
797), any directive issued by the commander of a military installation
or facility, which includes the parameters for authorized entry to or
exit from a military installation, is legally enforceable against all
persons whether or not those persons are subject to the Uniformed Code
of Military Justice (UCMJ). Military personnel who reenter an
installation after having been properly ordered not to do so may be
apprehended. Civilian violators may be detained and either escorted off
the installation or turned
[[Page 8]]
over to proper civilian authorities. Civilian violators may be
prosecuted under 18 U.S.C. 1382.
Sec. 809a.4 Use of Government facilities.
Commanders are prohibited from authorizing demonstrations for
partisan political purposes. Demonstrations on any Air Force
installation for other than political purposes may only occur with the
prior approval of the installation commander. Demonstrations that could
result in interference with, or prevention of, the orderly
accomplishment of the mission of an installation or that present a clear
danger to loyalty, discipline or morale of members of the Armed Forces
will not be approved.
Sec. 809a.5 Barment procedures.
Under the authority of 50 U.S.C. 797, installation commanders may
deny access to the installation through the use of a barment order.
Barment orders should be in writing but may also be oral. Security
forces maintain a list of personnel barred from the installation.
Subpart B [Reserved]
[[Page 9]]
SUBCHAPTER B_SALES AND SERVICES
PART 811_RELEASE, DISSEMINATION, AND SALE OF VISUAL INFORMATION MATERIALS--
Table of Contents
Sec.
811.1 Exceptions.
811.2 Release of visual information materials.
811.3 Official requests for visual information productions or materials.
811.4 Selling visual information materials.
811.5 Customers exempt from fees.
811.6 Visual information product/material loans.
811.7 Collecting and controlling fees.
811.8 Forms prescribed and availability of publications.
Authority: 10 U.S.C. 8013.
Source: 65 FR 64619, Oct. 30, 2000, unless otherwise noted.
Sec. 811.1 Exceptions.
The regulations in this part do not apply to:
(a) Visual information (VI) materials made for the Air Force Office
of Special Investigations for use in an investigation or a
counterintelligence report. (See Air Force Instruction (AFI) 90-301, The
Inspector General Complaints, which describes who may use these
materials.)
(b) VI materials made during Air Force investigations of aircraft or
missile mishaps according to AFI 91-204, Safety Investigations and
Reports. (See AFI 90-301.)
Sec. 811.2 Release of visual information materials.
(a) Only the Secretary of the Air Force for Public Affairs (SAF/PA)
clears and releases Air Force materials for use outside Department of
Defense (DoD), according to AFI 35-205, Air Force Security and Policy
Review Program.
(b) The Secretary of the Air Force for Legislative Liaison (SAF/LL)
arranges the release of VI material through SAF/PA when a member of
Congress asks for them for official use.
(c) The International Affairs Division (HQ USAF/CVAII) or, in some
cases, the major command (MAJCOM) Foreign Disclosure Office, must
authorize release of classified and unclassified materials to foreign
governments and international organizations or their representatives.
Sec. 811.3 Official requests for visual information productions or materials.
(a) Send official Air Force requests for productions or materials
from the DoD Central Records Centers by letter or message. Include:
(1) Descriptions of the images needed, including media format,
dates, etc.
(2) Visual information record identification number (VIRIN),
production, or Research, development, test, and evaluation (RDT&E)
identification numbers, if known.
(3) Intended use and purpose of the material.
(4) The date needed and a statement of why products are needed on a
specific date.
(b) Send inquiries about motion picture or television materials to
the Defense Visual Information Center (DVIC), 1363 Z Street, Building
2730, March ARB, CA 92518-2703.
(c) Send Air Force customer inquiries about still photographic
materials to 11 CS/SCUA, Bolling AFB, Washington, DC 20332-0403 (the Air
Force accessioning point).
(d) Send non-Air Force customers' inquiries about still photographic
materials to the DVIC.
Sec. 811.4 Selling visual information materials.
(a) Air Force VI activities cannot sell materials.
(b) HQ AFCIC/ITSM may approve the loan of copies of original
materials for federal government use.
(c) Send requests to buy:
(1) Completed, cleared, productions, to the National Archives and
Records Administration, National Audiovisual Center, Information Office,
8700 Edgeworth Drive, Capitol Heights, MD 20722-3701.
(2) Nonproduction VI motion media to the DVIC. The center may sell
other Air Force VI motion picture and television materials, such as
historical and stock footage. When it sells VI motion
[[Page 10]]
media, the DVIC assesses charges, unless Sec. 811.5 exempts the
requesting activity.
(3) VI still media to the DoD Still Media Records Center (SMRC),
Attn: SSRC, Washington, DC 20374-1681. When SMRC sells VI still media,
the SMRC assesses charges, unless Sec. 811.5 exempts the requesting
activity.
Sec. 811.5 Customers exempt from fees.
Title III of the 1968 Intergovernmental Cooperation Act (42 U.S.C.
4201, 4231, and 4233) exempts some customers from paying for products
and loans. This applies if the supplier has sufficient funds and if the
exemption does not impair its mission. The requesting agency must
certify that the materials are not commercially available. When requests
for VI material do not meet exemption criteria, the requesting agency
pays the fees. Exempted customers include:
(a) DoD and other government agencies asking for materials for
official activities (see DoD Instruction 4000.19, Interservice, and
Intergovernmental Support, August 9, 1995, and DoD Directive 5040.2,
Visual Information (VI), December 7, 1987.
(b) Members of Congress asking for VI materials for official
activities.
(c) VI records center materials or services furnished according to
law or Executive Order.
(d) Federal, state, territorial, county, municipal governments, or
their agencies, for activities contributing to an Air Force or DoD
objective.
(e) Nonprofit organizations for public health, education, or welfare
purposes.
(f) Armed Forces members with a casualty status, their next of kin,
or authorized representative, if VI material requested relates to the
member and does not compromise classified information or an accident
investigation board's work.
(g) The general public, to help the Armed Forces recruiting program
or enhance public understanding of the Armed Forces, when SAF/PA
determines that VI materials or services promote the Air Force's best
interest.
(h) Incidental or occasional requests for VI records center
materials or services, including requests from residents of foreign
countries, when fees would be inappropriate. AFI 16-101, International
Affairs and Security Assistance Management, tells how a foreign
government may obtain Air Force VI materials.
(i) Legitimate news organizations working on news productions,
documentaries, or print products that inform the public on Air Force
activities.
Sec. 811.6 Visual information product/material loans.
(a) You may request unclassified and classified copies of current
Air Force productions and loans of DoD and other Federal productions
from JVISDA, ATTN: ASQV-JVIA-T-AS, Bldg. 3, Bay 3, 11 Hap Arnold Blvd.,
Tobyhanna, PA 18466-5102.
(1) For unclassified products, use your organization's letterhead,
identify subject title, PIN, format, and quantity.
(2) For classified products, use your organization's letterhead,
identify subject title, personal identification number (PIN), format,
and quantity. Also, indicate that either your organization commander or
security officer, and MAJCOM VI manager approve the need.
(b) You may request other VI materials, such as, still images and
motion media stock footage, from DVIC/OM-PA, 1363 Z Street, Building
2730, March ARB, CA 92518-2703.
Sec. 811.7 Collecting and controlling fees.
(a) The DoD records centers usually collect fees in advance.
Exceptions are sales where you cannot determine actual cost until work
is completed (for example, television and motion picture services with
per minute or per footage charges).
(b) Customers pay fees, per AFR 177-108, Paying and Collecting
Transactions at Base Level, with cash, treasury check, certified check,
cashier's check, bank draft, or postal money order.
Sec. 811.8 Forms prescribed and availability of publications.
(a) AF Form 833, Visual Information Request, AF Form 1340, Visual
Information Support Center Workload Report, DD Form 1995, Visual
Information (VI) Production Request and Report,
[[Page 11]]
DD Form 2054-1, Visual Information (VI) Annual Report, and DD Form 2537,
Visual Information Caption Sheet are prescribed by this part.
(b) Air Force publications and forms referenced in this part are
available from NTIS, 5285 Port Royal Road, Springfield, VA 22161 or
online at http://www.afpubs.hq.af.mil. DoD publications are available at
http://www.defenselink.mil/pubs.
SUBCHAPTER C_PUBLIC RELATIONS [RESERVED]
[[Page 12]]
SUBCHAPTER D_CLAIMS AND LITIGATION
PART 842_ADMINISTRATIVE CLAIMS--Table of Contents
Sec.
842.0 Scope.
Subpart A_General Information
842.1 Scope of this subpart.
842.2 Definitions.
842.3 Claims authorities.
842.4 Where to file a claim.
842.5 Claims forms.
842.6 Signature on the claim form.
842.7 Who may file a claim.
842.8 Insured claimants.
Subpart B_Claims Under Article 139, Uniform Code of Military Justice
(UCMJ) (10 U.S.C. 939)
842.9 Scope of this subpart.
842.10 Definitions.
842.11 Claims payable.
842.12 Claims not payable.
842.13 Limiting provisions.
842.14 Filing a claim.
Subpart C_Personnel Claims (31 U.S.C. 3701, 3721)
842.15 Scope of this subpart.
842.16 Definitions.
842.17 Delegations of authority.
842.18 Filing a claim.
842.19 Partial payments.
842.20 Statute of limitations.
842.21 Who may file a claim.
842.22 Who are proper claimants.
842.23 Who are not proper claimants.
842.24 General provisions.
842.25 Claims payable.
842.26 Claims not payable.
842.27 Reconsideration of a claim.
842.28 Right of subrogation, indemnity, and contribution.
842.29 Depreciation and maximum allowances.
Subpart D_Military Claims Act (10 U.S.C. 2733)
842.30 Scope of this subpart.
842.31 Definitions.
842.32 Delegations of authority.
842.33 Filing a claim.
842.34 Advance payments.
842.35 Statute of limitations.
842.36 Who may file a claim.
842.37 Who are proper claimants.
842.38 Who are not proper claimants.
842.39 Claims payable.
842.40 Claims not payable.
842.41 Applicable law.
842.42 Appeal of final denials.
842.43 Right of subrogation, indemnity, and contribution.
842.44 Attorney fees.
Subpart E_Foreign Claims (10 U.S.C. 2734)
842.45 Scope of this subpart.
842.46 Definitions.
842.47 Delegations of authority.
842.48 Filing a claim.
842.49 Advance payments.
842.50 Statute of limitations.
842.51 Who may file a claim.
842.52 Who are proper claimants.
842.53 Who are not proper claimants.
842.54 Payment criteria.
842.55 Claims not payable.
842.56 Applicable law.
842.57 Reconsideration of final denials.
842.58 Right of subrogation, indemnity, and contribution.
Subpart F_International Agreement Claims (10 U.S.C. 2734a and 2734b)
842.59 Scope of this subpart.
842.60 Definitions.
842.61 Delegations of authority.
842.62 Filing a claim.
Subpart G_Use of Government Property Claims (10 U.S.C. 2737)
842.63 Scope of this subpart.
842.64 Definitions.
842.65 Delegations of authority.
842.66 Filing a claim.
842.67 Statute of limitations.
842.68 Claims payable.
842.69 Claims not payable.
842.70 Reconsideration of final denial.
842.71 Settlement agreement.
Subpart H_Admiralty Claims (10 U.S.C. 9801 9804, 9806; 46 U.S.C. 740)
842.72 Scope of this subpart.
842.73 Definitions.
842.74 Delegations of authority.
842.75 Reconsidering claims against the United States.
Subpart I_Claims Under the Federal Tort Claims Act (28 U.S.C. 1346(b),
2402, 2671, 2672, 2674 2680)
842.76 Scope of this subpart.
842.77 Delegations of authority.
842.78 Settlement agreements.
[[Page 13]]
842.79 Administrative claim; when presented.
Subpart J_Property Damage Tort Claims in Favor of the United States (31
U.S.C. 3701, 3711 3719)
842.80 Scope of this subpart.
842.81 Delegations of authority.
842.82 Assertable claims.
842.83 Non-assertable claims.
842.84 Asserting the claim.
842.85 Referring a claim to the U.S. Attorney or the Department of
Justice.
842.86 Statute of limitations.
842.87 Compromise, termination, and suspension of collection.
Subpart K_Claims Under the National Guard Claims Act (32 U.S.C. 715)
842.88 Scope of this subpart.
842.89 Definitions.
842.90 Delegations of authority.
842.91 Filing a claim.
842.92 Advance payments.
842.93 Statute of limitations.
842.94 Who may file a claim.
842.95 Who are proper claimants.
842.96 Who are not proper claimants.
842.97 Claims payable.
842.98 Claims not payable.
842.99 Applicable law.
842.100 Appeal of final denials.
842.101 Government's right of subrogation, indemnity, and contribution.
842.102 Attorney fees.
Subpart L_Hospital Recovery Claims (42 U.S.C. 2651 2653)
842.103 Scope of this subpart.
842.104 Definitions.
842.105 Delegations of authority.
842.106 Assertable claims.
842.107 Nonassertable claims.
842.108 Asserting the claim.
842.109 Referring a claim to the U.S. Attorney.
842.110 Statute of limitations.
842.111 Recovery rates in government facilities.
842.112 Waiver and compromise of United States interest.
842.113 Reconsideration of a waiver for undue hardship.
Subpart M_Nonappropriated Fund Claims
842.114 Scope of this subpart.
842.115 Definitions.
842.116 Payment of claims against NAFIs.
842.117 Claims by customers, members, participants, or authorized users.
Subpart N_Civil Air Patrol Claims (5 U.S.C. 8101(1)(B), 8102(a),
8116(c), 8141; 10 U.S.C. 9441, 9442; 36 U.S.C. 201 208)
842.118 Scope of this subpart.
842.119 Definitions.
842.120 Improper claimants.
842.121 Claims payable.
842.122 Claims not payable.
Subpart O_Advance Payments (10 U.S.C. 2736)
842.123 Scope of this subpart.
842.124 Delegation of authority.
842.125 Who may request.
842.126 When authorized.
842.127 When not authorized.
842.128 Separate advance payment claims.
842.129 Liability for repayment.
Authority: Sec. 8013, 100 Stat. 1053, as amended; 10 U.S.C. 8013,
except as otherwise noted.
Source: 55 FR 2809, Jan. 29, 1990, unless otherwise noted.
Note: Air Force Regulations are available on the e-Publishing Web
site at http://www.e-publishing.af.mil/ for downloading. This part is
derived from Air Force Instruction 51-501, Tort Claims, and Air Force
Instruction 51-502, Personnel and Carrier Recovery Claims.
[81 FR 83688, Nov. 22, 2016]
Editorial Note: Nomenclature changes to part 842 appear at 81 FR
83688, Nov. 22, 2016.
Sec. 842.0 Scope.
This part establishes standard policies and procedures for all
administrative claims resulting from Air Force activities and for which
the Air Force has assigned responsibility.
[81 FR 83688, Nov. 22, 2016]
Subpart A_General Information
Sec. 842.1 Scope of this subpart.
This subpart explains terms used in this part. It states basic Air
Force claims policy and identifies proper claimants.
Sec. 842.2 Definitions.
(a) Authorized agent. Any person or corporation, including a legal
representative, empowered to act on a claimant's behalf.
(b) Civilian personnel. Civilian employees of the Air Force who are
paid
[[Page 14]]
from appropriated or nonappropriated funds. They include prisoners of
war, interned enemy aliens performing paid labor, and volunteer workers
except for claims under the Military Personnel and Civilian Employees'
Claims Act.
(c) Claim. Any signed written demand made on or by the Air Force for
the payment of a sum certain. It does not include any obligations
incurred in the regular procurement of services, supplies, equipment, or
real estate. An oral demand made under Article 139, Uniform Code of
Military Justice (UCMJ) is sufficient.
(d) Claimant. An individual, partnership, association, corporation,
country, state, territory, or its political subdivisions, and the
District of Columbia. The U.S. Government or any of its
instrumentalities may be a claimant in admiralty, tort, carrier recovery
and hospital recovery claims in favor of the United States.
(e) Geographic area of claims responsibility. The base Staff Judge
Advocate's (SJA's) jurisdiction for claims. CONUS jurisdictional areas
are designated by AFLOA/JACC on maps distributed to the field. HQ PACAF,
HQ USAFE, and HQ 9AF SJAs designate these areas within their
jurisdictions. DOD assigns areas of single service responsibility to
each military department.
(f) AFLOA/JACC. Claims and Tort Litigation Division, 1500 West
Perimeter Road, Suite 1700, Joint Base Andrews, MD 20762.
(g) Owner. A holder of a legal title or an equitable interest in
certain property. Specific examples include:
(1) For real property. The mortgagor, and the mortgagee if that
individual can maintain a cause of action in the local courts involving
a tort to that specific property.
(2) For personal property. A bailee, lessee, mortgagee and a
conditional vendee. A mortgagor, conditional vendor, title loan company
or someone else other than the owner, who has the title for purposes of
security are not owners.
(h) HQ PACAF. Headquarters, Pacific Air Forces, Hickam AFB, HI
96853-5001.
(i) Personal injury. The term ``personal injury'' includes both
bodily injury and death.
(j) Property damage. Damage to, loss of, or destruction of real or
personal property.
(k) Settle. To consider and pay, or deny a claim in full or in part.
(l) Single Base General Court-Martial Jurisdiction (GCM). For claims
purposes, a base legal office serving the commander who exercises GCM
authority over that base, or that base and other bases.
(m) Subrogation. The act of assuming the legal rights of another
after paying a claim or debt, for example, an insurance company
(subrogee) paying its insured's (subrogor's) claim, thereby assuming the
insured's right of recovery.
(n) HQ USAFE. Headquarters, United States Air Forces in Europe,
Ramstein Air Base, Germany, APO NY 09012-5001.
[55 FR 2809, Jan. 29, 1990, as amended at 56 FR 1574, Jan. 16, 1991; 81
FR 83688, Nov. 22, 2016]
Sec. 842.3 Claims authorities.
(a) Appellate authority. The individual authorized to review the
final decision of a settlement authority upon appeal or reconsideration.
(b) Settlement authority. The individual or foreign claims
commission authorized to settle a claim upon its initial presentation.
Sec. 842.4 Where to file a claim.
File a claim at the base legal office of the unit or installation at
or nearest to where the accident or incident occurred. If the accident
or incident occurred in a foreign country where no Air Force unit is
located, file the claim with the Defense Attache (DATT) or Military
Assistance Advisory Group (MAAG) personnel authorized to receive claims
(DIAM 100-1 and AFR 400-45). In a foreign country where a claimant is
unable to obtain adequate assistance in filing a claim, the claimant may
contact the nearest Air Force SJA. The SJA then advises AFLOA/JACC
through claims channels of action taken and states why the DATT or MAAG
was unable to adequately assist the claimant.
[81 FR 83688, Nov. 22, 2016]
[[Page 15]]
Sec. 842.5 Claims forms.
Any signed written demand on the Air Force for a sum certain is
sufficient to file a claim. The claimant should use these forms when
filing a claim:
(a) Claim processed under the Military Personnel and Civilian
Employees' Claims Act. Use AF Form 180, Claim for Loss of or Damage to
Personal Property Incident to Service, or DD Forms 1842, Claim for
Personal Property Against the United States, and 1844, Schedule of
Property and Claim Analysis Chart, to file the claim.
(b) Claim processed under international agreements. Use any form
specified by the host country.
(c) Any other type claim. Use SF 95, Claim for Damage, Injury, or
Death.
Sec. 842.6 Signature on the claim form.
The claimant or authorized agent signs the claim form in ink using
the first name, middle initial, and last name.
(a) Claim filed by an individual. (1) A married woman signs her
name, for example, Mary A. Doe, rather than Mrs. John Doe.
(2) An authorized agent signing for a claimant shows, after the
signature, the title or capacity and attaches evidence of authority to
present a claim on behalf of the claimant as agent, executor,
administrator, parent, guardian, or other representative; for example,
John Doe by Richard Roe, Attorney in Fact. A copy of a current and valid
power of attorney, court order, or other legal document is sufficient
evidence of the agent's authority.
(b) Claim with joint interest. Where a joint ownership or interest
in real property exists, all joint owners must sign the claim form. This
includes a husband and wife signing a claim if the claim is for property
damage. However, only the military member or civilian employee signs the
claim form for a claim under the Military Personnel and Civilian
Employees' Claims Act.
(c) Claim filed by a corporation. (1) A corporate officer signing
the form must show title or capacity and affix the corporate seal (if
any) to the claim form.
(2) If the person signing the claim is other than the corporate
officer they must:
(i) Attach to the claim form a certification by a proper corporate
officer that the individual is an agent of the corporation duly
authorized to file and settle the claim;
(ii) Affix to the claim form the corporate seal (if any) to the
certification.
(d) Claim filed by a partnership. A partner must sign the form
showing his or her title as partner and list the full name of the
partnership.
Sec. 842.7 Who may file a claim.
(a) Property damage. The owner or owners of the property or their
authorized agent may file a claim for property damage.
(b) Personal injury or death. (1) The injured person or authorized
agent may file a claim for personal injury.
(2) The duly appointed guardian of a minor child or any other person
legally entitled to do so under applicable local law may file a claim
for a minor's personal injury.
(3) The executor or administrator of the decedent's estate or any
other person legally entitled to do so under applicable local law may
file a claim based on an individual's death.
(c) Subrogation. The subrogor (insured) and the subrogee (insurer)
may file a claim jointly or individually. Pay a fully subrogated claim
only to the subrogee. A joint claim must be asserted in the names of and
signed by the real parties in interest. Make payment by sending a joint
check to the subrogee, made payable to the subroger and subrogee. If
separate claims are filed, make payment by check issued to each claimant
to the extent of each undisputed interest.
Sec. 842.8 Insured claimants.
Insured claimants must make a detailed disclosure of their insurance
coverage by stating:
(a) Their name and address.
(b) Kind, amount, and dates of coverage of insurance.
(c) Insurance policy number.
(d) Whether a claim was presented to the insurer and, if so, in what
amount.
(e) Whether the insurer paid or is expected to pay the claim.
[[Page 16]]
(f) The amount of any payment made or promised.
Subpart B_Claims Under Article 139, Uniform Code of Military Justice
(UCMJ) (10 U.S.C. 939)
Source: 55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83688, Nov.
22, 2016, unless otherwise noted.
Sec. 842.9 Scope of this subpart.
It sets out the Air Force procedures for processing Article 139,
UCMJ claims.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83688, Nov. 22, 2016]
Sec. 842.10 Definitions.
(a) Appointing commander. The commander exercising special court-
martial jurisdiction over the offender.
(b) Board of officers. One to three commissioned officers appointed
to investigate a complaint of willful property damage or wrongful taking
by Air Force personnel.
(c) Property. Property is an item that is owned or possessed by an
individual or business. Property includes a tangible item such as
clothing, household furnishings, motor vehicles, real property, and
currency. The term does not include intangible property or items having
no independent monetary worth. Items that should not be considered as
property for the purpose of this part include a stock, bond, check,
check book, credit card, telephone service and cable television
services.
(d) Willful damage. Damage or destruction caused intentionally,
knowingly, and purposely, without justifiable excuse.
(e) Wrongful taking. Any unauthorized taking or withholding of
property with intent to deprive the owner or person in lawful possession
either temporarily or permanently.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83688,
Nov. 22, 2016]
Sec. 842.11 Claims payable.
Claims for property willfully damaged or wrongfully taken by Air
Force military personnel as a result of riotous, violent, or disorderly
conduct. If a claim is payable under this part and also under another
part, it may be paid under this part if authorized by AFLOA/JACC.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83688, Nov. 22, 2016]
Sec. 842.12 Claims not payable.
Claims that are not payable are:
(a) Claims resulting from simple negligence.
(b) Claims for personal injury or death.
(c) Claims resulting from acts or omissions of Air Force military
personnel while acting within the scope of their duty.
(d) Claims of subrogees.
(e) Claims arising from private indebtedness.
(f) Claims for reimbursement for bad checks.
(g) Claims involving wrongful taking stemming from larceny, forgery
or deceit, which are not accompanied by riotous or violent action.
(h) Claims against Air National Guard members unless they are
performing duty under Title 10 U.S.C.
(i) Claims for indirect, consequential or remote damages.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83688,
Nov. 22, 2016]
Sec. 842.13 Limiting provisions.
(a) A complaint must be submitted within 90 days of the date of the
incident. The appointing commander may find good cause for the delay and
accept a late claim. The appointing commander's determination of good
cause is final and not reviewable.
(b) Assessment of damages in excess of $5,000 against an offender's
pay for a single incident requires AFLOA/JACC approval.
[81 FR 83688, Nov. 22, 2016]
Sec. 842.14 Filing a claim.
Claimant complains (orally or in writing) to the commander of a
military organization or unit of the alleged offending member or members
or to the commander of the nearest military installation. If the claim
is made orally, the individual must assist the commander to reduce the
complaint to writing within a reasonable time. The
[[Page 17]]
complainant need not request a sum certain in writing at the time the
complaint is filed, but they must present such value and evidence before
settlement is made.
[81 FR 83688, Nov. 22, 2016]
Subpart C_Personnel Claims (31 U.S.C. 3701, 3721)
Source: 55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83688, Nov.
22, 2016, unless otherwise noted.
Sec. 842.15 Scope of this subpart.
It explains how to settle and pay claims under the Military
Personnel and Civilian Employees' Claims Act for incident to service
loss and damage of personal property. These claims are paid according to
this subpart even when another subpart may also apply.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83688, Nov. 22, 2016]
Sec. 842.16 Definitions.
(a) Military installation. A facility used to serve a military
purpose and used or controlled by the Air Force or any other Department
of Defense (DOD) element.
(b) Personal property. Tangible property an individual owns,
including but not limited to household goods, unaccompanied baggage,
privately owned vehicles (POV), and mobile homes.
(c) Reconsideration. The original or a higher settlement authority's
review of a prior settlement action.
(d) Unusual Occurrence. Something not expected to happen in the
normal course of events.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83688,
Nov. 22, 2016]
Sec. 842.17 Delegations of authority.
(a) Settlement authority. The Secretary of the Air Force has
delegated the authority to assign areas of responsibility and designate
functional responsibility for claims under the Military Personnel and
Civilian Employees' Claims Act to The Judge Advocate General (TJAG).
(b) Reconsideration authority. A settlement authority has the same
authority specified in paragraph (a) of this section. However, with the
exception of TJAG, a settlement authority may not deny a claim on
reconsideration that it, or its delegate, had previously denied.
(c) Authority to reduce, withdraw and restore delegated settlement
authority. Any superior settlement authority may reduce, withdraw, or
restore delegated authority.
[81 FR 83688, Nov. 22, 2016]
Sec. 842.18 Filing a claim.
(a) How and when to file a claim. A claim is filed when a federal
military agency receives from a claimant or duly authorized agent a
properly completed AF Form 180, DD Form 1842 or other written and signed
demand for a determinable sum of money.
(1) A claim is also filed when a federal military agency receives
from a claimant or duly authorized agent an electronic submission,
through a Department of Defense claims Web site, indicating that the
claimant intends for the appropriate military branch to consider a
digitally signed demand for a determinable sum of money.
(2) A claim is also filed when the Air Force receives from a
claimant or duly authorized agent an electronic submission, through the
Air Force claims Web site, a digitally signed demand for a determinable
sum of money.
(b) Amending a claim. A claimant may amend a claim at any time prior
to the expiration of the statute of limitations by submitting a signed
amendment. The settlement authority adjudicates and settles or forwards
the amended claim as appropriate.
(c) Separate claims. The claimant files a separate claim for each
incident which caused a loss. For transportation claims, this means a
separate claim for each shipment.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83688,
Nov. 22, 2016]
Sec. 842.19 Partial payments.
Upon request of a claimant, a settlement authority may make a
partial payment in advance of final settlement when a claimant
experiences personal hardship due to extensive property damage or loss.
Partial payments are made if a claim for only part of the loss
[[Page 18]]
is submitted and is readily provable, up to the amount of the settlement
authority. (The claimant may later amend the claim for the remainder of
the loss.) If the total payable amount of the claim exceeds the payment
limits of the settlement authority, send it with recommendations to the
proper settlement authority.
(a) If a claim for only part of the loss is submitted and is readily
provable, pay it up to the amount of the settlement authority. (The
claimant may later amend the claim for the remainder of the loss.) If
the total payable amount of the claim exceeds the payment limits of the
settlement authority, send it with recommendations through claims
channels to the proper settlement authority.
(b) When the total claim is submitted and the amount payable exceeds
the settlement authority, pay a partial payment within the limits of
settlement authority and send the claim, with recommendations, through
claims channels to the proper settlement authority.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83688,
83689, Nov. 22, 2016]
Sec. 842.20 Statute of limitations.
(a) The claimant must file the claim in writing within 2 years after
it accrues. It accrues when the claimant discovered or reasonably should
have discovered the full extent of the property damage or loss. For
transportation losses, the claim usually accrues on the date of
delivery.
(b) To compute the statutory period, the incident date is excluded
and the day the claim was filed is included.
(c) Consider a claim filed after the statute has run if both of the
following are present:
(1) The United States is at war or in an armed conflict when the
claim accrues, or the United States enters a war or armed conflict after
the claim accrues. Congress or the President establishes the beginning
and end of war or armed conflict. A claimant may not file a claim more
than 2 years after the war or armed conflict ends.
(2) Good cause is shown. A claimant may not file a claim more than 2
years after the good cause ceases to exist.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83688, Nov. 22, 2016]
Sec. 842.21 Who may file a claim.
A claim may be filed by:
(a) A proper claimant.
(b) An authorized agent or legal representative of a proper
claimant.
(c) A survivor of a deceased proper claimant in this order:
(1) Spouse.
(2) Children.
(3) Father or mother.
(4) Brothers or sisters.
[81 FR 83689, Nov. 22, 2016]
Sec. 842.22 Who are proper claimants.
Proper claimants are:
(a) Active duty Air Force military personnel.
(b) Civilian employees of the Air Force who are paid from
appropriated funds.
(c) DOD school teachers and school administrative personnel who are
provided logistic and administrative support by an Air Force
installation commander.
(d) Air Force Reserve (AFRES) and Air National Guard (ANG) personnel
when performing active duty, full-time National Guard duty, or inactive
duty training, ANG technicians under 32 U.S.C. 709.
(e) Retired or separated Air Force military personnel who suffer
damage or loss resulting from the last storage or movement of personal
property, or for claims accruing before retirement or separation.
(f) AFROTC cadets while on active duty for summer training.
(g) United States Air Force Academy cadets.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83688, Nov. 22, 2016]
Sec. 842.23 Who are not proper claimants.
The following individuals are not proper claimants:
(a) Subrogees and assignees of proper claimants, including insurance
companies.
(b) Conditional vendors and lienholders.
[[Page 19]]
(c) Non-Air Force personnel, including American Red Cross personnel,
United Services Organization (USO) performers, employees of government
contractors, and Civil Air Patrol (CAP) members.
(d) AFROTC cadets who are not on active duty for summer training.
(e) Active duty military personnel and civilian employees of a
military service other than the Air Force.
(f) DOD employees who are not assigned to the Air Force.
(g) Army and Air Force Exchange Service (AAFES) employees and other
employees whose salaries are paid from nonappropriated funds (see
subpart O).
(h) Military personnel of foreign governments.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83688, Nov. 22, 2016]
Sec. 842.24 General provisions.
Payable claims must be for:
(a) Personal property which is reasonable or useful under the
circumstances of military service.
(b) Loss, damage, destruction, confiscation, or forced abandonment
which is incident to service.
(c) Losses that are not collectible from any other source, including
insurance and carriers.
(d) Property that is owned by the claimants, or their immediate
families, or borrowed for their use, or in which the claimants or their
immediate families has an enforceable ownership interest.
(e) Losses occurring without the claimants' negligence.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83688,
83689, Nov. 22, 2016]
Sec. 842.25 Claims payable.
Claims may be payable for loss of or damage to tangible personal
property when the damage occurs incident to service. For loss of or
damage to property to be incident to service, it must occur at a place
and time that is connected to the service of an active duty military
member or employment of a civilian employee.
(a) Authorized location. Claims are only payable when the claimed
property is located in an authorized location. There must be some
connection between the claimant's service and the location of the
claimed property. Duty locations where personal property is used, stored
or held because of official duties are authorized places. Other
authorized places may include:
(1) Any location on a military installation not otherwise excluded.
(2) Any office, building, recreation area, or real estate the Air
Force or any other DoD element uses or controls.
(3) Any place a military member is required or ordered to be
pursuant to their duties and while performing those duties.
(4) Assigned Government housing or quarters in the United States or
provided in kind. The Military Personnel and Civilian Employees' Claims
Act specifically prohibits payment for loss of or damage to property in
quarters within the U.S. unless the housing or quarters are assigned or
otherwise provided in kind. Base housing that has not been privatized is
generally considered assigned or provided in kind wherever it is
located.
(i) Privatized housing or quarters within the United States subject
to the Military Housing Privatization Initiative located within the
fence line of a military installation or on federal land in which the
DoD has an interest is considered assigned or otherwise provided in kind
for the purposes of the Military Personnel and Civilian Employees'
Claims Act.
(ii) [Reserved]
(5) Housing or quarters outside the United States. Outside the US,
authorized off-base quarters, as well as assigned quarters, including
quarters in U.S. territories and possessions, are authorized places. The
residence of a civilian employee is not an authorized location if the
employee is a local inhabitant.
(6) Temporary duty (TDY) quarters and locations en route to the TDY
destination. Significant deviations from the direct travel route are not
authorized locations.
(7) Permanent change of station (PCS) temporary quarters and
locations enroute to the PCS destination. Significant deviations from
the direct travel route are not authorized locations.
[[Page 20]]
(8) Entitlement and benefit locations. For these locations to be
authorized, the claimant must be using them for the intended purpose and
the property must be reasonably linked to that purpose.
(9) Locations where personal property shipped or stored at
government expense are found. Government facilities where property is
stored at the claimant's expense or for their convenience without an
entitlement are not authorized places.
(b) Payable causes of loss incident to service. Because the
Personnel Claims Act (PCA) is not a substitute for private insurance,
loss or damage at quarters or other authorized locations may only be
paid if caused by:
(1) An unusual occurrence;
(2) Theft, vandalism or other malfeasance;
(3) Hostile action;
(4) A carrier, contractor, warehouseman or other transportation
service provider storing or moving goods or privately owned vehicles at
government expense;
(5) An agent of the US; or
(6) A permanent seizure of a witness' property by the Air Force.
(c) Privately owned vehicles (POV). Pay for damage to or loss of
POVs caused by government negligence under subpart F or K. Pay under
this subpart for damage or loss incident to:
(1) Theft of POVs or their contents, or vandalism to parked POVs:
(i) Anywhere on a military installation.
(ii) At offbase quarters overseas.
(iii) At other authorized places.
(2) Government shipment:
(i) To or from oversea areas incident to PCS.
(ii) On a space available reimbursable basis.
(iii) As a replacement vehicle under the provisions of the Joint
Travel Regulations (JTR).
(3) Authorized use for government duty other than PCS moves. The
owner must have specific advance permission of the appropriate
supervisor or official. Adequate proof of the permission and of
nonavailability of official transportation must be provided prior to
paying such claims. Claims arising while the claimant is deviating from
the principal route or purpose of the trip should not be paid, but
claims occurring after the claimant returns to the route or purpose
should be paid. Travel between quarters and place of duty, including
parking, is not authorized use for government duty.
(4) Paint spray, smokestack emission, and other similar operations
by the Air Force on a military installation caused by a contractor's
negligence. (Process the claim under subpart F or K, if government
negligence causes such losses.) If a contractor's operation caused the
damage:
(i) Refer the claim first to the contractor for settlement.
(ii) Settle the claim under this subpart if the contractor does not
pay it or excessively delays payment, and assert a claim against the
contractor.
(d) Damage to mobile or manufactured homes and contents in shipment.
Pay such claims if there is no evidence of structural or mechanical
failure for which the manufacturer is responsible.
(e) Borrowed property. Pay for loss or damage to property claimants
borrow for their use. Either the borrower or lender, if proper
claimants, may file a claim. Do not pay for property borrowed to
accommodate the lender, i.e., such as to avoid weight or baggage
restrictions in travel.
(f) Marine or aircraft incident. Pay claims of crewmembers and
passengers who are in duty or leave status at the time of the incident.
Payable items include jettisoned baggage, clothing worn at the time of
an incident, and reasonable amounts of money, jewelry, and other
personal items.
(g) Combat losses. Pay for personal property losses, whether or not
the United States was involved, due to:
(1) Enemy action.
(2) Action to prevent capture and confiscation.
(3) Combat activities.
(h) Civil activity losses. Pay for losses resulting from a
claimant's acts to:
(1) Quell a civil disturbance.
(2) Assist during a public disaster.
(3) Save human life.
(4) Save government property.
(i) Confiscated property. Pay for losses when:
(1) A foreign government unjustly confiscates property.
[[Page 21]]
(2) An unjust change or application of foreign law forces surrender
or abandonmnet of property.
(j) Clothing and accessories worn on the person. Pay claims for
damage to eyeglasses, hearing aids, and dentures the government did not
supply, when the damage results from actions beyond the normal risks
associated with daily living and working. Claimants assume the risk of
normal wear and tear, and their negligence bars payment of the claim.
(k) Money losses. Pay claims for loss of money when the losses are
due to theft from quarters, other authorized places, or from the person,
if the claimant was required to be in the area and could not avoid the
theft by due care. As a general rule, $200.00 is reasonable to have in
quarters, and $100.00 is reasonable to have on the person unless:
(1) The money was in a bona fide coin collection.
(2) The claimant can justify possession of the money for a PCS move,
extended TDY, vacation, extensive shopping trip, or similar
circumstances. The claimant must show a good reason why the money had
not been deposited in a bank or converted into travelers checks or a
money order.
(3) Local commercial facilities are not available or because U.S.
personnel do not generally use such facilities.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83688,
83689, Nov. 22, 2016]
Sec. 842.26 Claims not payable.
A claim is not payable if:
(a) It is not incident to the claimant's service.
(b) The loss or damage is caused in whole or in part by the
negligence or wrongful act of the claimant, the claimant's spouse,
agent, or employee.
(c) It is a subrogation or assigned claim.
(d) The loss is recovered or recoverable from an insurer or other
source unless the settlement authority determines there is good cause
for not claiming against the insurer.
(e) It is intangible property including bank books, promissory
notes, stock certificates, bonds, baggage checks, insurance policies,
checks, money orders, travelers checks and credit cards.
(f) It is government property, including issued clothing items
carried on an individual issue supply account. (Clothing not carried on
an individual issue supply account which is stolen or clothing lost or
damaged in transit may be considered as a payable item when claimed.)
(g) It is enemy property.
(h) It is a loss within the United States at offbase quarters the
government did not provide.
(i) It is damage to real property.
(j) It is an appraisal fee, unless the settlement authority requires
one to adjudicate the claim.
(k) It is property acquired or shipped for persons other than the
claimant or the claimant's immediate family; however, a claim for
property acquired for bona fide gifts may be paid.
(l) It is an article held for sale, resale, or used primarily in a
private business.
(m) It is an item acquired, possessed, shipped, or stored in
violation of any U.S. Armed Force directive or regulation.
(n) It is an item fraudulently claimed.
(o) It is for charges for labor performed by the owner or immediate
family member.
(p) It is for financial loss due to changed or cancelled orders.
(q) It is for expenses of enroute repair of a mobile or manufactured
home.
(r) It is a loss of use of personal property.
(s) It is an attorney or agent fee.
(t) It is the cost of preparing a claim, other than estimate fees.
(u) It is an inconvenience expense.
(v) It is a loss of, or damage to POV driven during PCS.
(w) It is a personal property insurance premium.
(x) It is a claim for a thesis or other similar papers, except for
the cost of materials.
(y) It is damage to, or loss of a rental vehicle which TDY or PCS
orders authorized.
(z) It is a cost to relocate a telephone or mobile or manufactured
home due to a government ordered quarters move.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83688,
83689, Nov. 22, 2016]
[[Page 22]]
Sec. 842.27 Reconsideration of a claim.
A claimant may request reconsideration of an initial settlement or
denial of a claim. The claimant sends the request in writing, to the
settlement authority within a reasonable time following the initial
settlement or denial. Sixty days is considered a reasonable time, but
the settlement authority may waive the time limit for good cause.
(a) The original settlement authority reviews the reconsideration
request. The settlement authority sends the entire claim file with
recommendations and supporting rationale to the next higher settlement
authority if all relief the claimant requests is not granted.
(b) The decision of the higher settlement authority is the final
administrative action on the claim.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83688, Nov. 22, 2016]
Sec. 842.28 Right of subrogation, indemnity, and contribution.
The Air Force becomes subrogated to the rights of the claimant upon
settling a claim. The Air Force has the rights of contribution and
indemnity permitted by the law of the situs or under contract. The Air
Force does not seek contribution or indemnity from U.S. military
personnel or civilian employees whose conduct in scope of employment
gave rise to government liability.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83688, Nov. 22, 2016]
Sec. 842.29 Depreciation and maximum allowances.
The military services have jointly established the ``Allowance List-
Depreciation Guide'' to determine values for most items and to limit
payment for some categories of items.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83688, Nov. 22, 2016]
Subpart D_Military Claims Act (10 U.S.C. 2733)
Source: 55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83690, Nov.
22, 2016, unless otherwise noted.
Sec. 842.30 Scope of this subpart.
This subpart establishes policies and procedures for all
administrative claims under the Military Claims Act for which the Air
Force has assigned responsibility.
[81 FR 83690, Nov. 22, 2016]
Sec. 842.31 Definitions.
(a) Appeal. A request by the claimant or claimant's authorized agent
to reevaluate the final decision. A request for reconsideration and an
appeal are the same for the purposes of this subpart.
(b) Final denial. A letter mailed from the settlement authority to
the claimant or authorized agent advising the claimant that the Air
Force denies the claim. Final denial letters mailed from within the
United States shall be sent by U.S. Mail, certified mail, return receipt
requested.
(c) Noncombat activity. Activity, other than combat, war or armed
conflict, that is particularly military in character and has little
parallel in the civilian community.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83690,
Nov. 22, 2016]
Sec. 842.32 Delegations of authority.
(a) Settlement authority. (1) The Secretary of the Air Force has
authority to:
(i) Settle claims for $100,000 or less.
(ii) Settle claims for more than $100,000, paying the first $100,000
and reporting the excess to the General Accounting Office for payment.
(iii) Deny a claim in any amount.
(2) The Judge Advocate General has delegated authority to settle
claims for $100,000 or less and deny claims in any amount.
(3) The following individuals have delegated authority to settle
claims for $25,000 or less and to deny claims in any amount:
(i) The Deputy Judge Advocate General.
(ii) The Director, Civil Law and Litigation.
(iii) The Chief, Associate Chief and Branch Chiefs, Claims and Tort
Litigation Division.
(4) SJAs of the Air Force component commander of the U.S. geographic
[[Page 23]]
combatant commands for claims arising within their respective combatant
command areas of responsibility have delegated authority to settle
claims payable or deny claims filed for $25,000 or less.
(5) SJAs of GCMs in PACAF and USAFE have delegated authority to
settle claims payable, or deny claims filed for $15,000 or less.
(b) Redelegation of authority. The Chief, Claims and Tort Litigation
Division may redelegate his or her authority to Staff Judge Advocates. A
settlement authority may redelegate his or her authority for claims not
exceeding $25,000, to a subordinate judge advocate or civilian attorney
in writing. The Chief, AFLOA/JACC may redelegate up to $25,000, in
writing, to paralegals assigned to AFLOA/JACC and, upon request, may
authorize installation Staff Judge Advocates to redelegate their
settlement authority to paralegals under their supervision.
(c) Appellate authority. Upon appeal, a settlement authority has the
same authority specified above. However, no appellate authority below
the Office of the Secretary of the Air Force may deny an appeal of a
claim it had previously denied.
(d) Authority to reduce, withdraw, and restore settlement authority.
Any superior settlement authority may reduce, withdraw, or restore
delegated authority.
(e) Settlement negotiations. A settlement authority may settle a
claim in any sum within its delegated settlement authority, regardless
of the amount claimed. Send uncompromised claims in excess of the
delegated authority to the level with settlement authority. Unsuccessful
negotiations at one level do not bind higher authority.
(f) Special exceptions. Do not settle or deny claims for the
following reasons without AFLOA/JACC approval:
(1) Legal malpractice.
(2) On the job personal injury or death of an employee of a
government contractor or subcontractor.
(3) Assault, battery, false imprisonment, false arrest, abuse of
process, or malicious prosecution committed by an investigative or law
enforcement officer.
(4) On-base animal bite cases.
(5) Personal injury from asbestos or radon.
(6) Claims based upon an act or omission of an employee of the
government, exercising due care, in the execution of a statute or
regulation.
(7) Claims based upon the exercise or performance or the failure to
exercise or perform a discretionary function or duty on the part of a
federal agency or an employee of the government.
(8) Claims not payable because payment is not in the best interests
of the United States, is contrary to public policy, or is otherwise
contrary to the basic intent of the MCA.
(9) Claims presented by a national, or a corporation controlled by a
national, of a country at war or engaged in armed conflict with the
United States, or any country allied with such enemy country.
(10) Medical malpractice.
[55 FR 2809, Jan. 29, 1990, as amended at 56 FR 1574, Jan. 16, 1991.
Redesignated and amended at 81 FR 83690, Nov. 22, 2016]
Sec. 842.33 Filing a claim.
(a) Elements of a proper claim. A claim is must be filed on a
Standard Form 95 or other written document. It must be signed by the
Claimant or authorized agent, be for money damages in a sum certain, and
lay out a basic statement as to the nature of the claim that will allow
the Air Force to investigate the allegations contained therein.
(b) Amending a claim. A claimant may amend a claim at any time prior
to final action. To amend a claim, the claimant or his or her authorized
agent must submit a written, signed demand.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83690,
Nov. 22, 2016]
Sec. 842.34 Advance payments.
Subpart P of this part sets forth procedures for advance payments.
[81 FR 83690, Nov. 22, 2016]
Sec. 842.35 Statute of limitations.
(a) A claim must be filed in writing within 2 years after it
accrues. It is deemed to be filed upon receipt by The Judge Advocate
General, AFLOA/JACC, or a Staff Judge Advocate of the Air Force. A claim
accrues when the
[[Page 24]]
claimant discovers or reasonably should have discovered the existence of
the act that resulted in the claimed loss. The same rules governing
accrual pursuant to the Federal Tort Claims Act should be applied with
respect to the Military Claims Act. Upon receipt of a claim that
properly belongs with another military department, the claim is promptly
transferred to that department.
(b) The statutory time period excludes the day of the incident and
includes the day the claim was filed.
(c) A claim filed after the statute of limitations has run is
considered if the U.S. is at war or in an armed conflict when the claim
accrues or if the U.S. enters a war or armed conflict after the claim
accrues, and if good causes shows how the war or armed conflict
prevented the claimant from diligently filing the claim within the
statute of limitations. But in no case will a claim be considered if
filed more than two years after the war or armed conflict ends.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83690,
Nov. 22, 2016]
Sec. 842.36 Who may file a claim.
(a) Owners of the property or their authorized agents may file
claims for property damage.
(b) Injured persons or their duly authorized agents may file claims
for personal injury.
(c) Duly appointed guardians of minor children or any other persons
legally entitled to do so under applicable local law may file claims for
minors' personal injuries.
(d) Executors or administrators of a decedent's estate or another
person legally entitled to do so under applicable local law, may file
claims based on:
(1) An individual's death.
(2) A cause of action surviving an individual's death.
(e) Insurers with subrogation rights may file claims for losses paid
in full by them. The parties may file claims jointly or individually, to
the extent of each party's interest, for losses partially paid by
insurers with subrogation rights.
(f) Authorized agents signing claims show their title or legal
capacity and present evidence of authority to present the claims.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83690, Nov. 22, 2016]
Sec. 842.37 Who are proper claimants.
(a) Citizens and inhabitants of the United States. U.S. inhabitants
includes dependents of the U.S. military personnel and federal civilian
employees temporarily outside the U.S. for purposes of U.S. Government
service.
(b) U.S. military personnel and civilian employees. Note: These
personnel are not proper claimants for claims for personal injury or
death that occurred incident to their service.
(c) Foreign military personnel when the damage or injury occurs in
the U.S. Do not pay for claims under the Military Claims Act (MCA) for
personal injury or death of a foreign military personnel that occurred
incident to their service.
(d) States, state agencies, counties, or municipalities, or their
political subdivisions.
(e) Subrogees of proper claimants to the extent they have paid for
the claim in question.
[81 FR 83690, Nov. 22, 2016]
Sec. 842.38 Who are not proper claimants.
(a) Governments of foreign nations, their agencies, political
subdivisions, or municipalities.
(b) Agencies and nonappropriated fund instrumentalities (NAFIs) of
the U.S. Government.
(c) Subrogees of Sec. 842.42(a) and (b).
(d) Inhabitants of foreign countries.
[81 FR 83690, Nov. 22, 2016]
Sec. 842.39 Claims payable.
(a) Claims arising from negligent or wrongful acts or omissions
committed by United States military or civilian personnel while acting
in the scope of their employment, subject to the exceptions listed in
this subpart.
(b) Claims arising from noncombat activities of the United States,
whether or not such injuries of damages arose out of the negligent or
wrongful acts or omissions by United States military or civilian
employees acting within the scope of their employment.
[[Page 25]]
(c) Claims for property damage of U.S. military personnel under
conditions listed in paragraphs (a) and (b) of this section, where the
damage occurred on a military installation and is not payable under the
Military Personnel and Civilian Employees' Claims Act.
[55 FR 2809, Jan. 29, 1990, as amended at 55 FR 32076, Aug. 7, 1990.
Redesignated and amended at 81 FR 83690, Nov. 22, 2016]
Sec. 842.40 Claims not payable.
(a) Claims covered by the Federal Tort Claims Act (FTCA), Foreign
Claims Act (FCA), International Agreements Claims Act (IACA), 10 U.S.C.
2734a and 2734b, Air Force Admiralty Claims Act (AFACA), 10 U.S.C. 9801-
9804, 9806, National Guard Claims Act (NGCA), 32 U.S.C. 715, or covered
under the Military Personnel and Civilian Employees' Claims Act
(MPCECA), 31 U.S.C. 3701, 3721.
(1) MCA claims arising from noncombat activities in the U.S. are not
covered by the FTCA because more elements are needed to state an FTCA
claim than are needed to state a claim under the MCA for noncombat
activities. All FTCA claims are based on elements of traditional tort
liability (i.e., duty, breach, causation, and damages); that is, they
are fault based. Noncombat activity claims under the MCA are based
solely on causation and damages. Because MCA claims for noncombat
activities are not fault based, they are not covered by the FTCA.
(2) Claims for incident-to-service damage to vehicles caused by the
negligence of a member or employee of the armed forces acting in the
scope of employment are paid under the MCA, instead of the Military
Personnel and Civilian Employees' Claims Act.
(b) Arises with respect to the assessment or collection of any
customs duty, or the detention of any goods or merchandise by any U.S.
officer of customs or excise, or any other U.S. law enforcement officer.
Note: This includes loss or damage to property detained by members of
the Security Forces or Office of Special Investigation (OSI).
(c) Is cognizable under U.S. admiralty and maritime law, to include:
(1) The Suits in Admiralty Act, 46 U.S.C. 30901 and following.
(2) The Death on the High Seas Act, 46 U.S.C. 30301 and following.
(3) The Public Vessels Act, 46 U.S.C. 31101 and following.
(4) Exception: Claims arising from noncombat activities may be paid
under the MCA, even if they are also cognizable under paragraphs (c)(1)
through (3) of this section.
(d) Arises out of assault, battery, false imprisonment, false
arrest, malicious prosecution, or abuse of process. Exception: Unless
such actions were committed by an investigative or law enforcement
officer of the U.S. who is empowered by law to conduct searches, seize
evidence, or make arrests for violations of federal law.
(e) Arises out of libel, slander, misrepresentation, or deceit.
(f) Arises out of an interference with contract rights.
(g) Arises out of the combat activities of U.S. military forces.
(h) Is for the personal injury or death of a member of the Armed
Forces of the U.S. incident to the member's service.
(i) Is for the personal injury or death of any person for workplace
injuries covered by the Federal Employees' Compensation Act, 5 U.S.C.
8101, and following.
(j) Is for the personal injury or death of any employee of the US,
including nonappropriated fund employees, for workplace injuries covered
by the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 901,
and following.
(k) Is for a taking of property, e.g., by technical trespass or over
flight of aircraft.
(l) Is for patent or copyright infringement.
(m) Results wholly from the negligent or wrongful act of the
claimant.
(n) Is for the reimbursement of medical, hospital, or burial
expenses furnished at the expense of the US, either directly or through
contractual payments.
(o) Arises from contractual transactions, express or implied
(including rental agreements, sales agreements, leases, and easements),
that:
[[Page 26]]
(1) Are payable or enforceable under oral or written contracts; or
(2) Arise out of an irregular procurement or implied contract.
(p) Is for the personal injury or death of military or civilian
personnel of a foreign government incident to their service.
(q) Is based on an act or omission of an employee of the government,
exercising due care, in the execution of a statute or regulation,
whether or not such statute or regulation is valid. Do not deny claims
solely on this exception without the prior approval of USAF/JACC. Claims
under the noncombat activities provision of this subpart may be paid
even if this paragraph (q) applies. Is based on the exercise or
performance of, or the failure to exercise or perform, a discretionary
function or duty on the part of a federal agency or a Federal Government
employee, whether or not the discretion involved is abused. Do not deny
claims solely on this exception without the prior approval of USAF/JACC.
Exception: Claims under the noncombat activities provision may be paid
even if this paragraph (q) applies.
(r) Is not in the best interests of the US, is contrary to public
policy, or is otherwise contrary to the basic intent of the MCA.
Examples include, but are not limited to, when a claimant's criminal
conduct or failure to comply with a nonpunitive regulation is a
proximate cause of the loss. Prior approval must be obtained from USAF/
JACC before denying claims solely on this exception.
(s) Arises out of an act or omission of any employee of the
government in administering the provisions of the Trading With the Enemy
Act, 50 U.S.C. app. 1-44.
(t) Is for damages caused by the imposition or establishment of a
quarantine by the U.S.
(u) Arises from the fiscal operations of the Department of the
Treasury or from the regulation of the monetary system.
(v) Arises from the activities of the Tennessee Valley Authority.
(w) Arises from the activities of a federal land bank, a federal
intermediate credit bank, or a bank for cooperatives.
(x) Is for the personal injury or death of any government contractor
employee for whom benefits are available under any worker's compensation
law, or under any contract or agreement providing employee benefits
through insurance, local law, or custom when the U.S. pays insurance
either directly or as part of the consideration under the contract. Only
USAF/JACC may act on these claims.
(y) Is for damage, injury or death from or by flood or flood waters
at any place.
(z) Is for damage to property or other losses of a state,
commonwealth, territory, or the District of Columbia caused by Air
National Guard personnel engaged in training or duty under 32 U.S.C.
316, 502, 503, 504, or 505 who are assigned to a unit maintained by that
state, commonwealth, territory, or the District of Columbia.
(aa) Is for damage to property or for any death or personal injury
arising out of activities of any federal agency or employee of the
government in carrying out the provisions of the Disaster Relief Act of
1974 (42 U.S.C. 5121, et seq.), as amended.
(bb) Arises from activities that present a political question.
(cc) Arises from private, as distinguished from government,
transactions.
(dd) Is based solely on compassionate grounds.
(ee) Is for rent, damage, or other expenses or payments involving
the regular acquisition, use, possession, or disposition of real
property or interests therein by and for the U.S.
(ff) Is presented by a national, or a corporation controlled by a
national, of a country at war or engaged in armed conflict with the
U.S., or any country allied with such enemy country unless the
appropriate settlement authority determines that the claimant is, and at
the time of the incident was, friendly to the U.S. A prisoner of war or
an interned enemy alien is not excluded as to a claim for damage, loss,
or destruction of personal property in the custody of the U.S. otherwise
payable. Forward claims considered not payable under this paragraph
(ff), with recommendations for disposition, to USAF/JACC.
[[Page 27]]
(gg) Arises out of the loss, miscarriage, or negligent transmission
of letters or postal matter by the U.S. Postal Service or its agents or
employees.
(hh) Is for damage to or loss of bailed property when the bailor
specifically assumes such risk.
(ii) Is for property damage, personal injury, or death occurring in
a foreign country to an inhabitant of a foreign country.
(jj) Is for interest incurred prior to the payment of a claim.
(kk) Arises out of matters which are in litigation against the U.S.
(ll) Is for attorney fees or costs in connection with pursuing an
administrative or judicial remedy against the U.S. or any of its
agencies.
(mm) Is for bail, interest or inconvenience expenses incurred in
connection with the preparation and presentation of the claim.
(nn) Is for a failure to use a duty of care to keep premises owned
or under the control of the U.S. safe for use for any recreational
purpose, or for a failure by the U.S. to give any warning of hazardous
conditions on such premises to persons entering for a recreational
purpose unless there is a willful or malicious failure to guard or warn
against a dangerous condition, or unless consideration was paid to the
U.S. (including a nonappropriated fund instrumentality) to use the
premises.
[81 FR 83691, Nov. 22, 2016]
Sec. 842.41 Applicable law.
This section provides the existing law governing liability,
measurement of liability and the effects of settlement upon awards.
(a) Federal preemption. Many of the exclusions in this subpart are
based upon the wording of 28 U.S.C. 2680 or other federal statutes or
court decisions interpreting the Federal Tort Claims Act. Federal case
law interpreting the same exclusions under the Federal Tort Claims Act
is applied to the Military Claims Act. Where state law differs with
federal law, federal law prevails.
(b) Extent of liability. Where the claim arises is important in
determining the extent of liability.
(1) Applicable law. When a claim arises in the United States, its
territories or possessions, the same law as if the claim was cognizable
under the FTCA will be applied.
(2) Claims in foreign countries. In claims arising in a foreign
country, where the claim is for personal injury, death, or damage to or
loss of real or personal property caused by an act or omission alleged
to be negligent, wrongful, or otherwise involving fault of military
personnel or civilian officers or employees of the United States acting
within the scope of their employment, liability or the United States is
determined according to federal case law interpreting the FTCA. Where
the FTCA requires application of the law of the place where the act or
omission occurred, settlement authorities will use the rules set forth
in the currently adopted edition of the Restatement of the Law,
published by the American Law Institute, to evaluate the liability of
the Air Force, subject to the following rules:
(i) Foreign rules and regulations governing the operation of motor
vehicles (rules of the road) are applied to the extent those rules are
not specifically superseded or preempted by United States military
traffic regulations.
(ii) Absolute or strict liability will not apply for claims not
arising from noncombat activities.
(iii) Hedonic damages are not payable.
(iv) The collateral source doctrine does not apply.
(v) Joint and several liability does not apply. Payment will be made
only upon the portion of loss, damage, injury or death attributable to
the Armed Forces of the United States.
(vi) Future economic loss will be discounted to present value after
deducting for federal income taxes and, in cases of wrongful death,
personal consumption.
(c) Claims not payable. Do not approve payment for:
(i) Punitive damages.
(ii) Cost of medical or hospital services furnished at the expense
of the United States.
(iii) Cost of burial expenses paid by the United States.
[[Page 28]]
(d) Settlement by insurer or joint tortfeasor. When settlement is
made by an insurer or joint tortfeasor and an additional award is
warranted, an award may be made if both of the following are present:
(1) The United States is not protected by the release executed by
the claimant.
(2) The total amount received from such source is first deducted.
[81 FR 83692, Nov. 22, 2016]
Sec. 842.42 Appeal of final denials.
(a) A claimant may appeal the final denial of the claim. The
claimant sends the request, in writing, to the settlement authority that
issued the denial letter within 60 days of the date the denial letter
was mailed. The settlement authority may waive the 60 day time limit for
good cause.
(b) Upon receipt of the appeal, the original settlement authority
reviews the appeal.
(c) Where the settlement authority does not reach a final agreement
on an appealed claim, he or she sends the entire claim file to the next
higher settlement authority, who is the appellate authority for that
claim. Any higher settlement authority may act upon an appeal.
(d) The decision of the appellate authority is the final
administrative action on the claim.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83690,
83692, Nov. 22, 2016]
Sec. 842.43 Right of subrogation, indemnity, and contribution.
The Air Force becomes subrogated to the rights of the claimant upon
settling a claim. The Air Force has the rights of contribution and
indemnity permitted by the law of the situs, or under contract. Do not
seek contribution or indemnity from U.S. military personnel or civilian
employees whose conduct gave rise to government liability.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83690, Nov. 22, 2016]
Sec. 842.44 Attorney fees.
In the settlement of any claim pursuant to 10 U.S.C. 2733 and this
subpart, attorney fees will not exceed 20 percent of any award provided
that when a claim involves payment of an award over $1,000,000, attorney
fees on that part of the award exceeding $1,000,000 may be determined by
the Secretary of the Air Force. For the purposes of this paragraph, an
award is deemed to be the cost to the United States of any trust or
structured settlement, and not its future value.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83690, Nov. 22, 2016]
Subpart E_Foreign Claims (10 U.S.C. 2734)
Source: 55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83692, Nov.
22, 2016, unless otherwise noted.
Sec. 842.45 Scope of this subpart.
This subpart tells how to settle and pay claims against the United
States presented by inhabitants of foreign countries for property
damage, personal injury, or death caused by military and civilian
members of the U.S. Armed Forces in foreign countries.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83692, Nov. 22, 2016]
Sec. 842.46 Definitions.
(a) Foreign country. A national state other than the United States,
including any place under jurisdiction of the United States in a foreign
country.
(b) Inhabitant of a foreign country. A person, corporation, or other
business association whose usual place of abode is in a foreign country.
The term ``inhabitant'' has a broader meaning than such terms as
``citizen'' or ``national'', but does not include persons who are merely
temporarily present in a foreign country. It does not require foreign
citizenship or domicile.
(c) Appointing authority. An Air Force official authorized to
appoint members to foreign claims commissions (FCC).
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83692, Nov. 22, 2016]
Sec. 842.47 Delegations of authority.
(a) Settlement authority. (1) The Secretary of the Air Force has the
authority to:
(i) Settle claims for payment of $100,000 or less.
[[Page 29]]
(ii) Settle claims for more than $100,000, pay the first $100,000,
and report the excess to the Department of the Treasury for payment.
(iii) Deny claims in any amount.
(2) The Judge Advocate General, Deputy Judge Advocate General,
Director of Civil Law, and the Chief, Deputy Chief and Branch Chiefs,
Claims and Tort Litigation Staff are FCCs and have delegated authority
to:
(i) Settle claims for payment of $100,000 or less.
(ii) Deny claims in any amount.
(3) The SJAs of the Air Force component commander of the U.S.
geographic combatant commands are FCC for claims arising in their
respective combatant command Areas of Responsibility (AORs) and may deny
claims of $50,000 or less and will pay claims filed in any amount when
payment is for $50,000 or less.
(b) Redelegating settlement authority. A settlement authority
appointed as a FCC in paragraph (a) of this section may appoint one or
more subordinate judge advocates or civilian attorneys to act as FCC,
and redelegate all or part of that settlement authority to such persons.
(c) Settlement negotiations. A settlement authority may settle a
claim in any sum within its settlement authority, regardless of the
amount claimed. Send uncompromised claims in excess of the delegated
authority through claims channels to the level with settlement
authority. Unsuccessful negotiations at one level do not bind higher
authority.
(d) Special exceptions. Do not settle claims for medical malpractice
without HQ USAF/JACC approval.
[81 FR 83692, Nov. 22, 2016]
Sec. 842.48 Filing a claim.
(a) How and when filed. A claim is filed when the Air Force receives
from a claimant or authorized agent a properly completed SF 95 or other
signed and written demand for money damages in a sum certain. A claim
may be presented orally only if oral claims are the custom in the
country where the incident occurred and the claimant is functionally
illiterate. In any case where an oral claim is made, claims personnel
must promptly reduce the claim to writing with all particulars carefully
noted. A claim belonging to another agency is promptly transferred to
the appropriate agency.
(b) Amending a claim. A claimant may amend a claim at any time prior
to final action. An amendment must be in writing and signed by the
claimant or authorized agent.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83692,
83693, Nov. 22, 2016]
Sec. 842.49 Advance payments.
Subpart P of this part outlines procedures for advance payments.
[81 FR 83693, Nov. 22, 2016]
Sec. 842.50 Statute of limitations.
(a) A claim must be presented to the Air Force within 2 years after
it accrues. It accrues when the claimant discovers or reasonably should
have discovered the existence of the act that resulted in the claimed
loss or injury.
(b) In computing the statutory time period, the day of the incident
is excluded and the day the claim was filed is included.
(c) War or armed conflict does not toll the statute of limitations.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83692,
83693, Nov. 22, 2016]
Sec. 842.51 Who may file a claim.
(a) Owners of the property or their authorized agents for property
damage.
(b) Injured persons or other authorized agents for personal injury.
(c) Executors or administrators of a decedent's estate, or any other
person legally entitled to do so under applicable local law, for an
individual's death.
(d) Authorized agents (including the claimant's attorney) must show
their title or legal capacity and present evidence of authority to
present the claim.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83692, Nov. 22, 2016]
Sec. 842.52 Who are proper claimants.
Claimants include inhabitants of a foreign country who are:
(a) Foreign nationals. In a wrongful death case, if the decedent is
an inhabitant of a foreign country, even though
[[Page 30]]
his or her survivors are U.S. inhabitants, the FCA will apply.
(b) U.S. nationals residing abroad, unless the claim arises from a
benefit, privilege or service provided to them by the U.S. Government,
or they reside in the foreign country primarily because they are
employed directly by the United States, or sponsored by or accompanying
such a person, or employed by a U.S. civilian contractor in furtherance
of a contract with the U.S. Government, or sponsored by or accompanying
such a person.
(c) U.S. corporations with a place of business in the country in
which the claim arose.
(d) Foreign governments and their political subdivisions, including
a municipal and prefectural government.
(e) Foreign companies and business entities.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83692,
83693, Nov. 22, 2016]
Sec. 842.53 Who are not proper claimants.
Persons who are not proper claimants include:
(a) Insurers and other subrogees.
(b) Persons determined to be U.S. inhabitants. U.S. inhabitants
include dependents of U.S. military personnel and U.S. Government
civilian employees.
(c) Foreign military personnel suffering personal injury, or death
arising incident to service or pursuant to combined and/or joint
military operations. Such operations include, but are not limited to,
military exercises and United Nations, NATO, and other regional
peacekeeping and humanitarian missions.
(d) Civilian employees of the United States, including local
inhabitants, injured in the scope of their employment.
(e) National governments and their political subdivisions engaging
in war or armed conflict with the United States or its allies. This
includes factions that have not necessarily been recognized by the
international community as a legitimate nation state.
(f) A national or nationally controlled corporation of a country
engaging in war or armed conflict with the United States or its allies,
unless the FCC or local military commander determines the claimant is
friendly with the United States.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83692,
83693, Nov. 22, 2016]
Sec. 842.54 Payment criteria.
The following criteria is considered before determining liability.
(a) The incident causing the damage or injury must arise in a
foreign country and be caused by noncombatant activities of the U.S.
Armed Forces or by the negligent or wrongful acts of civilian employees
or military members of the Armed Forces.
(1) It is a prerequisite to U.S. responsibility if the employee
causing the damage or injury is a local inhabitant, a prisoner of war,
or an interned enemy alien. These persons are ``employees'' within the
meaning of the Foreign Claims Act (FCA) only when in the service of the
United States. Ordinarily, a slight deviation as to time or place does
not constitute a departure from the scope of employment. The purpose of
the activity and whether it furthers the general interest of the United
States is considered. If the claim arose from the operation or use of a
U.S. Armed Forces vehicle or other equipment by such a person, pay it
provided local law imposes liability on the owner of the vehicle or
other equipment in the circumstances involved.
(2) It is immaterial when the claim arises from the acts or
omissions of any U.S. Armed Forces member or employee not listed in
Sec. 842.64(c)(1). The Act imposes responsibility on the United States
when it places a U.S. citizen or non-US citizen employee in a position
to cause the injury or damage. If the cause is a criminal act clearly
outside the scope of employment, ordinarily pay the claim and consider
disciplinary action against the offender.
(b) Scope of employment is considered in the following situations.
(1) It is a prerequisite to U.S. responsibility if the employee
causing the damage or injury is a local inhabitant, a prisoner of war,
or an interned enemy alien. These persons are ``employees'' within the
meaning of the Foreign Claims Act (FCA) only when in the service of the
United States. Ordinarily, a slight deviation as to time or place does
not constitute a departure
[[Page 31]]
from the scope of employment. The purpose of the activity and whether it
furthers the general interest of the United States is considered. If the
claim arose from the operation or use of a U.S. Armed Forces vehicle or
other equipment by such a person, pay it provided local law imposes
liability on the owner of the vehicle or other equipment in the
circumstances involved.
(2) It is immaterial when the claim arises from the acts or
omissions of any U.S. Armed Forces member or employee not listed in
Sec. 842.64(c)(1) of this part. The Act imposes responsibility on the
United States when it places a U.S. citizen or non-US citizen employee
in a position to cause the injury or damage. If the cause is a criminal
act clearly outside the scope of employment, ordinarily pay the claim
and consider disciplinary action against the offender.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83692,
83693, Nov. 22, 2016]
Sec. 842.55 Claims not payable.
A claim is not payable when it:
(a) Is waived under an applicable international agreement, or
pursuant to an applicable international agreement, a receiving state
should adjudicate and pay the claim. However, if a foreign government
subject to such an international agreement disputes its legal
responsibilities under the agreement, and the claimant has no other
means of compensation, USAF/JACC may authorize payment.
(b) Is purely contractual in nature.
(c) Is for attorney fees, punitive damages, a judgment or interest
on a judgment, bail, or court costs. FCC should consider providing early
notice to claimants that attorney fees are not payable as an item of
damage under the FCA.
(d) Accrues from a private contractual relationship between U.S.
personnel and third parties about property leases, public utilities,
hiring of domestic servants, and debts of any description. This claim is
sent for action to the commander of the person concerned (see 32 CFR
part 818).
(e) Is based solely on compassionate grounds.
Note: A Solatium payment is paid from O&M funds as an investigative
expense.
(f) Is a paternity claim.
(g) Is for patent or copyright infringement.
(h) Results wholly from the negligent or wrongful act of the
claimant or agent.
(i) Is for rent, damage, or other payments involving regular
acquisition, possession, and disposition of real property by or for the
Air Force.
(j) Is filed by a Communist country or its inhabitants, unless
authorized by AFLOA/JACC.
(k) Is for real property taken by a continuing trespass.
(l) Is for personal injury or death of a person covered by:
(1) The Federal Employees' Compensation Act (5 U.S.C. 8101, et
seq.).
(2) The Longshore and Harbor Workers' Compensation Act (33 U.S.C.
901, et seq.).
(3) A U.S. contract or agreement providing employee benefits through
insurance, local law, or custom, where the United States pays for them
either directly or as part of the consideration under the contract. (See
42 U.S.C. 1651 and 42 U.S.C. 1701.) The Judge Advocate General or Chief,
Claims and Tort Litigation Staff, AFLOA/JACC, may authorize an award
where local benefits are not adequate. Local benefits are deducted from
any award.
(m) Results from an action by an enemy, or directly or indirectly
from an act of the U.S. Armed Forces in combat, except that a claim may
be allowed if it arises from an accident or malfunction incident to the
operation of an aircraft of the U.S. Armed Forces, including its
airborne ordnance, indirectly related to combat, and occurring while
preparing for or going to, or returning from a combat mission.
(n) Is based on negligence of a concessionaire or other independent
contractor.
(o) Arises out of personal activities of family members, guests,
servants, or activities of the pets of members and employees of the U.S.
Armed Forces.
(p) Is the subject of litigation against the United States or its
employees. This restriction does not apply to joint criminal/civil
proceedings in a foreign
[[Page 32]]
court. Claims settlement may be authorized by AFLOA/JACC in appropriate
cases on request.
(q) Is covered under U.S. admiralty or maritime laws, unless
authorized by The Judge Advocate General or Chief, Claims and Tort
Litigation Staff.
(s) Is not in the best interest of the United States, is contrary to
public policy, or otherwise contrary to the basic intent of the FCA.
Claims considered not payable on this basis will be forwarded to USAF/
JACC for final decision.
(t) Is presented by a national, or a corporation controlled by a
national, of a country at war or engaged in armed conflict with the
United States, or any country allied with such enemy country unless the
settlement authority determines the claimant is, and at the time of the
incident was, friendly to the United States. Exception: A prisoner of
war or interned enemy alien is not excluded from filing a claim for
damage, loss, or destruction of personal property within the U.S. Armed
Forces' custody if the claim is otherwise payable.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83692,
83693, Nov. 22, 2016]
Sec. 842.56 Applicable law.
This section provides guidance to determine the applicable law for
assessment of liability.
(a) In adjudicating FCA claims, settlement authorities will follow
the law, customs, and standards of the country where the claim arose,
except:
(1) Causation is determined based upon general principles of U.S.
tort law found in federal case law and standard legal publications.
(2) Joint and several liability does not apply. Payment is based
solely on the portion of loss, damage, injury or death attributable to
the U.S. Armed Forces.
(3) If lost income or lost profits is recoverable under the law
where the claim arose, they shall be limited to net lost income or net
lost profits, taking into account appropriate deductions for taxes,
regular business expenditures, and in the case of wrongful death,
personal consumption during the loss period.
(b) Settlement authorities will not deduct compensation from
collateral sources except for:
(1) Direct payments by a member or civilian employee of the U.S.
Armed Forces for damages (not solatia).
(2) Any payments recovered or recoverable from an insurance policy
when premiums were paid, directly or indirectly, by the United States,
or a member or civilian employee of the U.S. Armed Forces; or when the
member or employee has the benefit of the insurance (such as when a U.S.
member or employee borrows a vehicle of a local national, and the
vehicle carries insurance for the benefit of any driver with permission
to drive the vehicle).
[81 FR 83694, Nov. 22, 2016]
Sec. 842.57 Reconsideration of final denials.
This section provides the procedures used to reconsider a final
denial.
(a) An FCC has the inherent authority to reconsider a final
decision. The mere fact that a request for reconsideration is received
does not obligate the settlement authority to reopen the claim.
(b) The FCC does not mention a reconsideration right in the original
denial letter.
(c) A settlement authority must reconsider the final action when
there is:
(1) New and material evidence concerning the claim; or
(2) Obvious errors in the original decision.
(d) The FCC must document in the claim file the reason for
reconsideration.
(e) A FCC above the original settlement authority may direct a claim
be forwarded to a higher FCC for reconsideration.
[81 FR 83694, Nov. 22, 2016]
Sec. 842.58 Right of subrogation, indemnity, and contribution.
The Air Force has all the rights of subrogation, indemnity and
contribution, as local law permits. However, settlement authorities will
not seek contribution or indemnity from U.S. military members or
civilian employees whose conduct gave rise to U.S. Government liability,
or whenever it
[[Page 33]]
would be harmful to international relations.
[81 FR 83694, Nov. 22, 2016]
Subpart F_International Agreement Claims (10 U.S.C. 2734a and 2734b)
Source: 55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83694, Nov.
22, 2016, unless otherwise noted.
Sec. 842.59 Scope of this subpart.
This subpart governs Air Force actions in investigating, processing,
and settling claims under the International Agreement Claims Act.
[81 FR 83694, Nov. 22, 2016]
Sec. 842.60 Definitions.
The following are general definitions. See the relevant
international agreement for the specific meaning of a term to use with a
specific claim.
(a) Civilian component. Civilian personnel accompanying and employed
by an international agreement contracting force. Local employees,
contractor employees, or members of the American Red Cross are not a
part of the civilian component unless specifically included in the
agreement.
(b) Contracting party. A nation signing the governing agreement.
(c) Force. Personnel belonging to the land, sea, or air armed
services of one contracting party when in the territory of another
contracting party in connection with their official duties.
(d) Legally responsible. A term of art providing for settlement of
claims under cost sharing international agreements in accordance with
the law of the receiving state. Often, employees who are local
inhabitants, not part of the civilian component of the force, could
cause the sending state to be legally responsible under a respondeat
superior theory.
(e) Receiving state. The country where the force or civilian
component of another contracting party is temporarily located. It is
often thought of as the ``host nation.''
(f) Sending state. The country sending the force or civilian
component to the receiving State. In cases where U.S. personnel are
stationed in a foreign country, the U.S. is the sending state.
(g) Third parties. A term of art used in International Agreements.
Parties other than members of the force and civilian component of the
sending or receiving States. Dependents, tourists, and other
noninhabitants of a foreign country are third parties (and therefore can
generally make a claim under a SOFA) unless the international agreement,
or an understanding between the countries involved, specifically
excludes them.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83694,
Nov. 22, 2016]
Sec. 842.61 Delegations of authority.
(a) Overseas settlement authority. Staff Judge Advocates of the Air
Force component commands of the U.S. geographic combatant commands will,
within their combatant command AORs, fulfill U.S. obligations concerning
claims abroad subject to 10 U.S.C. 2734a for which the Air Force has
settlement authority. Consistent with 10 U.S.C. 2734a and the
international agreement, they may reimburse or pay the pro rata share of
a claim as agreed, or if inconsistent with the IACA or the international
agreement, they may object to a bill presented,
(b) Settlement authority. The Secretary of the Air Force, The Judge
Advocate General, the Deputy Judge Advocate General, The Director of
Civil Law and Chief of the Claims and Tort Litigation Division may also
exercise settlement authority under 10 U.S.C. 2734a.
(c) Redelegation of authority. A settlement authority may redelegate
his or her authority to a subordinate judge advocate or civilian
attorney in writing.
(d) Authority to reduce, withdraw, and restore settlement authority.
Any superior settlement authority may reduce, withdraw, or restore
delegated authority.
[81 FR 83694, Nov. 22, 2016]
Sec. 842.62 Filing a claim.
(a) Claims arising in a foreign country. (1) If a third party
claimant tries to file an international agreement claim
[[Page 34]]
with Air Force, direct that person to the appropriate receiving State
office.
(2) If the Air Force receives a claim, send it to the U.S. sending
State office for delivery to the receiving State.
(b) Claims arising in the United States. The claimant files tort
claims arising from the act or omission of military or civilian
personnel of another contracting party at any U.S. military
installation. The Staff Judge Advocate for the installation where such
military or civilian personnel is assigned or attached will promptly
notify the Foreign Claims Branch of USAF/JACC as well as the Commander,
U.S. Army Claims Service. If the claimant files said claim at an
installation other than the location where said military or civilian
personnel is assigned, the Staff Judge Advocate for that installation
will promptly forward the claim to the appropriate installation Staff
Judge Advocate.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83694,
83695, Nov. 22, 2016]
Subpart G_Use of Government Property Claims (10 U.S.C. 2737)
Source: 55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83695, Nov.
22, 2016, unless otherwise noted.
Sec. 842.63 Scope of this subpart.
This subpart explains how to settle and pay claims against the
United States, for property damage, personal injury, or death incident
to the use of a government vehicle or any other government property on a
government installation which are not payable under any other statute.
[81 FR 83695, Nov. 22, 2016]
Sec. 842.64 Definitions.
(a) Government installation. A United States Government facility
having fixed boundaries and owned or controlled by the government.
(b) Vehicle. Every mechanical device used as a means of
transportation on land.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83695, Nov. 22, 2016]
Sec. 842.65 Delegations of authority.
(a) Settlement authority. The following individuals have delegated
authority to settle claims for $1,000 or less and deny them in any
amount.
(1) The Judge Advocate General.
(2) The Deputy Judge Advocate General.
(3) Director of Civil Law.
(4) Chief, Deputy Chief and Branch Chiefs, Claims and Tort
Litigation staff.
(5) SJA of the Air Force component commands of the U.S. geographic
combatant commands.
(6) SJAs of single base GCMs and GCMs in PACAF and USAFE.
(7) The SJA of each Air Force base, station and fixed installation.
(8) Any other judge advocate designated by The Judge Advocate
General.
(b) Redelegation of authority. A settlement authority may redelegate
it to a subordinate judge advocate or civilian attorney in writing.
(c) Authority to reduce, withdraw, and restore settlement authority.
Any superior settlement authority may reduce, withdraw, or restore
delegated authority.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83695,
Nov. 22, 2016]
Sec. 842.66 Filing a claim.
(a) How and when filed. A claim has been filed when a federal agency
receives from a claimant or the claimant's duly authorized agent written
notification of an incident of property damage, personal injury or death
accompanied by a demand for money damages in a sum certain. A claim
incorrectly presented to the Air Force will be promptly transferred to
the appropriate Federal agency.
(b) Amending a claim. A claimant may amend a claim at any time prior
to final Air Force action. Amendments will be submitted in writing and
signed by the claimant or the claimant's duly authorized agent.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83695, Nov. 22, 2016]
Sec. 842.67 Statute of limitations.
(a) A claim must be presented in writing within 2 years after it
accrues.
[[Page 35]]
It accrues at the time the claimant discovers, or in the exercise of
reasonable care should have discovered, the existence of the act causing
property damage, personal injury or death for which the claim is filed.
(b) In computing time to determine whether the period of limitation
has expired, exclude the incident date and include the date the claim
was filed.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83695, Nov. 22, 2016]
Sec. 842.68 Claims payable.
When all of the following are present, payment of a claim in the
amount of $1,000 or less is authorized if it:
(a) Is for property damage, personal injury, or death. Payment for a
personal injury or death claim is limited to costs of reasonable
medical, hospital, and burial expenses actually incurred and not
otherwise furnished or paid by the United States.
(b) Was caused by a military member or civilian employee of the Air
Force, whether acting within or outside the scope of employment.
(c) Arose from the use of a government vehicle at any place or from
the use of other government property on a government installation.
(d) Is not payable under any other provision of law except Article
139, UCMJ.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83695,
Nov. 22, 2016]
Sec. 842.69 Claims not payable.
A claim is not payable if it is:
(a) Payable under any other provision of the law.
(b) Caused wholly or partly by a negligent or wrongful act of the
claimant, the claimant's agent, or employee.
(c) A subrogated claim.
(d) Recoverable from other sources such as an insurance policy, or
recovered from action under Article 139, UCMJ.
(e) For pain and suffering or other general damages.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83695,
Nov. 22, 2016]
Sec. 842.70 Reconsideration of final denial.
(a) The statute does not provide for appeals. The original
settlement authority may, however, reconsider any decision. There is no
set format for a reconsideration but it should be submitted in writing
within 60 days of the original decision.
(b) The settlement authority may either grant all or any portion of
the requested relief without referral to any other office, or forward
the entire file with the reasons for the action and recommendations to
the next higher claims settlement authority for independent review and
final action.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83695, Nov. 22, 2016]
Sec. 842.71 Settlement agreement.
Do not pay a claim unless the claimant accepts the amount offered in
full satisfaction of the claim and signs a settlement agreement to that
effect, in which the claimant agrees to release any and all claims
against the United States, its employees and agents arising from the
incident in question. Use the settlement agreement approved for use by
the Department of Justice for the settlement of FTCA claims, tailored to
this claim.
[81 FR 83695, Nov. 22, 2016]
Subpart H_Admiralty Claims (10 U.S.C. 9801 9804, 9806; 46 U.S.C. 740)
Source: 55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83695, Nov.
22, 2016, unless otherwise noted.
Sec. 842.72 Scope of this subpart.
It sets forth the procedure for administrative settlement of
admiralty and maritime claims in favor of and against the United States.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83695, Nov. 22, 2016]
Sec. 842.73 Definitions.
(a) Admiralty contracts. A contract covering maritime services or a
maritime transaction such as vessel procurement and space for commerical
ocean transportation of DOD cargo,
[[Page 36]]
mail, and personnel is an admiralty contract.
(b) General average. General average is the admiralty rule that when
someone's property is thrown overbaord to save a ship, the ship owner
and all owners of the cargo must share the loss.
(c) Maritime torts. A maritime tort is one committed in navigable
waters or on land or in the air where a substantial element of the
damage, personal injury, or death occurred in navigable waters. The
activity causing the tortious act must bear some significant
relationship to traditional maritime activity.
(d) Vessel. Every description of watercraft used or usable as a
means of transportation on water is a vessel. (1 U.S.C. 3)
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83695, Nov. 22, 2016]
Sec. 842.74 Delegations of authority.
(a) The following officials have the authority to settle a claim
against the Air Force in the amounts provided:
(1) The Secretary of the Air Force has the authority to:
(i) Settle or deny a claim in any amount. Settlements for payment of
more than $500,000 are certified to Congress for payment.
(ii) [Reserved]
(2) The following individuals have delegated authority to settle
claims for $100,000 or less:
(i) The Judge Advocate General.
(ii) The Deputy Judge Advocate General.
(iii) The Director of Civil Law.
(iv) The Chief and Deputy Chief, Claims and Tort Litigation staff.
(b) Delegation of settlement authority on claims in favor of the
United States.
(1) The Secretary of the Air Force has the authority to settle
claims for damage to property under the jurisdiction of the Air Force in
an amount not to exceed $500,000, and to settle claims for salvage
services performed by the Air Force in any amount.
(2) AFLOA/JACC refers all claims for damage to property under the
jurisdiction of the Air Force for more than $500,000 to the Department
of Justice.
(3) The following individuals have delegated authority to settle
claims for $100,000 or less and deny them in any amount:
(i) The Judge Advocate General.
(ii) The Deputy Judge Advocate General.
(iii) The Director of Civil Law.
(iv) The Chief and Deputy Chief, Claims and Tort Litigation
Division.
[55 FR 2809, Jan. 29, 1990, as amended at 55 FR 32077, Aug. 7, 1990; 56
FR 1574, Jan. 16, 1991. Redesignated and amended at 81 FR 83695, Nov.
22, 2016]
Sec. 842.75 Reconsidering claims against the United States.
This section provides the policy and procedures to reconsider any
maritime claim made against the United States.
(a) The settlement authority may reconsider any claim previously
disapproved in whole or in part when either:
(1) The claimant submits new evidence in support of the claim.
(2) There were errors or irregularities in the submission or
settlement of the claim.
(b) There is no right of appeal to higher authority under this
subpart.
(c) There is no time limit for submitting a request for
reconsideration, but it is within the discretion of the settlement
authority to decline to reconsider a claim based on the amount of time
passed since the claim was originally denied.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83695,
Nov. 22, 2016]
Subpart I_Claims Under the Federal Tort Claims Act (28 U.S.C. 1346(b),
2402, 2671, 2672, 2674 2680)
Source: 81 FR 83695, Nov. 22, 2016, unless otherwise noted.
Sec. 842.76 Scope of this subpart.
This subpart, promulgated under the authority of 28 CFR 14.11,
governs claims against the United States for property damage, personal
injury, or death, from the negligent or wrongful acts or omission of Air
Force military or civilian personnel while acting within the scope of
their employment.
[[Page 37]]
Sec. 842.77 Delegations of authority.
(a) Settlement authority. The following individuals are delegated
the full authority of the Secretary of the Air Force to settle and deny
claims:
(1) The Judge Advocate General.
(2) The Deputy Judge Advocate General.
(3) The Director of Civil Law.
(4) The Division Chief of Claims and Tort Litigation.
(5) The Division Chief of Environmental Law and Litigation.
(b) Redelegation of authority. A settlement authority may be
redelegated, in writing, to a subordinate judge advocate or civilian
attorney. The Chief, AFLOA/JACC may redelegate up to $25,000, in
writing, to paralegals assigned to AFLOA/JACC and, upon request, may
authorize installation Staff Judge Advocates to redelegate their
settlement authority to paralegals under their supervision.
(c) Authority to reduce, withdraw, and restore settlement authority.
Any superior settlement authority may reduce, withdraw, or restore
delegated authority.
(d) Settlement negotiations. A settlement authority may settle a
claim filed in any amount for a sum within the delegated authority.
Unsettled claims in excess of the delegated authority will be sent to
the next highest level with settlement authority. Unsuccessful
negotiations at one level do not bind higher authority.
Sec. 842.78 Settlement agreements.
The claimant must sign a settlement agreement and general release
before any payment is made.
Sec. 842.79 Administrative claim; when presented.
When the Air Force is the proper agency to receive a claim pursuant
to 28 CFR 14.2(b), for purposes of the provisions of 28 U.S.C. 2401(b),
2672 and 2675, a claim shall be deemed to have been presented when it is
received by:
(a) The office of the Staff Judge Advocate of the Air Force
installation nearest the location of the incident; or
(b) The Claims and Tort Litigation Division, 1500 West Perimeter
Road, Suite 1700, Joint Base Andrews, MD 20762.
Subpart J_Property Damage Tort Claims in Favor of the United States (31
U.S.C. 3701, 3711 3719)
Source: 55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83696, Nov.
22, 2016, unless otherwise noted.
Sec. 842.80 Scope of this subpart.
This subpart describes how to assert, administer, and collect claims
for damage to or loss or destruction of government property and lost
wages of Air Force servicemembers through negligent or wrongful acts. It
does not cover admiralty, hospital recovery, or nonappropriated fund
claims.
[81 FR 83696, Nov. 22, 2016]
Sec. 842.81 Delegations of authority.
(a) Settlement authority. (1) The following individuals have
delegated authority to settle, compromise, suspend, or terminate action
on claims asserted for $100,000 or less and to accept full payment on
any claim:
(i) The Judge Advocate General.
(ii) The Deputy Judge Advocate General.
(iii) The Director of Civil Law.
(iv) Chief, Deputy Chief, and Branch Chiefs, Claims and Tort
Litigation Staff.
(2) Installation staff judge advocates have authority to assert
claims in any amount, accept full payment on any claim and to
compromise, suspend or terminate action on claims asserted for $25,000
or less.
(b) Redelegation of authority. A settlement authority may redelegate
it to a subordinate judge advocate or civilian attorney, in writing.
(c) Authority to reduce, withdraw, or restore settlement authority.
Any superior settlement authority may reduce, withdraw, or restore
delegated authority.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83696,
Nov. 22, 2016]
Sec. 842.82 Assertable claims.
A claim may be asserted in writing for loss of or damage to
government property, against a tort-feasor when:
(a) Damage results from negligence and the claim is for:
[[Page 38]]
(1) More than $100.
(2) Less than $100 but collection is practicable and economical.
(b) The claim is based on a contract and the contracting officer
does not intend to assert a claim under the contract. The contracting
officer's intention not to assert a claim should be recorded in a
memorandum for the record and placed in the claim file.
(c) The claim is for property damage arising from the same incident
as a hospital recovery claim.
(d) The Tort-feasor or his insurer presents a claim against the
government arising from the same incident. (Both claims should be
processed together.)
(e) The claim is assertable as a counterclaim under an international
agreement. (The claim should be processed under subpart G of this part).
(f) The claim is based on product liability. AFLOA/JACC approval
must be obtained before asserting the claim.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83696,
Nov. 22, 2016]
Sec. 842.83 Non-assertable claims.
A claim is not assertable under this subpart when it is for:
(a) Reimbursement for military or civilian employees for their
negligence claims paid by the United States.
(b) Loss or damage to government property:
(1) Caused by a nonappropriated fund employee acting in the scope of
employment.
(2) Caused by a person who has accountability and responsibility for
the damaged property under the Report of Survey system.
(c) Loss or damage to nonappropriated fund property assertable under
other provisions.
(d) Loss or damage caused by an employee of an instrumentality of
the government in the absence of statutory authority to reimburse.
(e) Monies recovered against a foreign government or any of its
political subdivisions. (AFLOA/JACC may authorize this claim as an
exception to the rule).
(f) Loss or damage caused by an employee of another federal agency
while the employee was acting in the scope of his employment.
[55 FR 2809, Jan. 29, 1990, as amended at 55 FR 32077, Aug. 7, 1990.
Redesignated and amended at 81 FR 83696, Nov. 22, 2016]
Sec. 842.84 Asserting the claim.
The base SJA asserts the claim against the tort-feasor by mailing,
certified mail, return receipt requested, the original and one copy of a
``Notice of Claim'' that includes the following:
(a) Reference to the statutory right to collect.
(b) A demand for payment or restoration.
(c) A description of damage.
(d) The date and place of incident.
(e) The name, phone number, and office address of claims personnel
to contact.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83696, Nov. 22, 2016]
Sec. 842.85 Referring a claim to the U.S. Attorney
or the Department of Justice.
If collection efforts are unsuccessful, AFLOA/JACC may refer a claim
to the appropriate U.S. Attorney's Office or the Department of Justice
for initiation of a lawsuit.
[81 FR 83696, Nov. 22, 2016]
Sec. 842.86 Statute of limitations.
The government must file suit within 3 years after the cause of
action accrues. It accrues when a responsible U.S. official knew or
reasonably should have known the material facts that resulted in the
claimed loss.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83696, Nov. 22, 2016]
Sec. 842.87 Compromise, termination, and suspension of collection.
This section establishes the guidelines for compromise, termination,
or suspension of a claim.
(a) Compromise of a claim is allowable when:
(1) The tort-feasor is unable to pay the full amount within a
reasonable time. (A sworn statement showing the debtor's assets and
liabilities, income, expenses, and insurance coverage should be obtained
and included in the claim file).
[[Page 39]]
(2) The Government is unable to collect a claim in full within a
reasonable time even though the enforced collection proceedings are used
for collection.
(3) The cost to collect does not justify enforced collection of the
full amount.
(4) The government may have difficulty proving its case in court for
the full amount claimed.
(b) Compromise is not allowable when there may be fraud,
misrepresentation, or violation of antitrust laws. The Department of
Justice must authorize compromise of such claims.
(c) Termination of collection is allowable when:
(1) The government is unable to collect the debt after exhausting
all collection methods.
(2) The government is unable to locate the tort-feasor.
(3) The cost to collect will exceed recovery.
(4) The claim is legally without merit.
(5) The evidence does not substantiate the claim.
(d) Suspension of collection is allowable when:
(1) The government is unable to locate tort-feasor.
(2) The tort-feasor is presently unable to pay but:
(i) The statute of limitations is tolled or is running anew.
(ii) Future collection may be possible.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83696, Nov. 22, 2016]
Subpart K_Claims Under the National Guard Claims Act (32 U.S.C. 715)
Source: 55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83696, Nov.
22, 2016, unless otherwise noted.
Sec. 842.88 Scope of this subpart.
This subpart establishes policies and procedures for all
administrative claims under the National Guard Claims Act for which the
Air Force has assigned responsibility. Unless otherwise outlined in this
subpart, follow procedures as outlined in subpart E of this part for
claims arising out of noncombat activities.
[81 FR 83696, Nov. 22, 2016]
Sec. 842.89 Definitions.
(a) Air National Guard (ANG). The federally recognized Air National
Guard of each state, the District of Columbia, the Commonwealth of
Puerto Rico, the Virgin Islands, and Guam.
(b) ANG member. An ANG member is one who is performing duty under 32
U.S.C., section 316, 502, 503, 504, or 505 for which the member is
entitled to pay from the United States or for which the member has
waived pay from the United States.
(c) ANG duty status--(1) Active federal service. ANG members may
serve on active Federal duty under 10 U.S.C. to augment the active Air
Force under certain circumstances or for certain types of duty or
training (e.g., overseas training exercises and ANG alert duty). Duty
under 10 U.S.C. does not fall under this subpart.
(2) Federally funded duty. ANG members perform specified federally
funded duty or training under 32 U.S.C. such as weekend drills, annual
training, field exercises, range firing, military schooling, full time
unit support, or recruiting duties. Duty under 32 U.S.C. falls under
this subpart for noncombat activities.
(3) State duty. State duty is duty not authorized by federal law but
required by the governor of the state and paid for from state funds.
Such duty includes civil emergencies (natural or other disasters), civil
disturbances (riots and strikes), and transportation requirements for
official state functions, public health, or safety. State duty does not
fall under this subpart.
(d) ANG technicians. An ANG technician is a Federal employee
employed under 32 U.S.C. 709. Tort claims arising out of his or her
activity are settled under the Federal Tort Claims Act (FTCA).
[81 FR 83696, Nov. 22, 2016]
Sec. 842.90 Delegations of authority.
(a) Settlement authority. (1) The Secretary of the Air Force has
authority to:
(i) Settle a claim for $100,000 or less.
[[Page 40]]
(ii) Settle a claim for more than $100,000, paying the first
$100,000 and reporting the excess to the General Accounting Office for
payment.
(iii) Deny a claim in any amount.
(2) The Judge Advocate General has delegated authority to settle a
claim for $100,000 or less, and deny a claim in any amount.
(3) The following individuals have delegated authority to settle a
claim for $25,000 or less, and deny a claim in any amount:
(i) The Deputy Judge Advocate General.
(ii) The Director of Civil Law.
(iii) The Chief, Deputy Chief, and Branch Chiefs, Claims and Tort
Litigation Staff.
(4) The SJAs of the Air Force component commander of the U.S.
geographic combatant commands for claims arising within their respective
combatant command areas of responsibility have delegated authority to
settle claims payable or to deny claims filed for $25,000 or less.
(5) SJAs of GCMs in PACAF and USAFE have delegated authority to
settle claims payable, and deny claims filed, for $15,000 or less.
(b) Redelegation of authority. A settlement authority may redelegate
up to $25,000 of settlement authority to a subordinate judge advocate or
civilian attorney. This redelegation must be in writing and can be for
all claims or limited to a single claim. The Chief, AFLOA/JACC may
redelegate up to $25,000, in writing, to paralegals assigned to AFLOA/
JACC and, upon request, may authorize installation Staff Judge Advocates
to redelegate their settlement authority to paralegals under their
supervision.
(c) Appellate authority. Upon appeal a settlement authority has the
same authority to settle a claim as that specified above. However, no
appellate authority below the Office of the Secretary of the Air Force
may deny an appeal of a claim it previously denied.
(d) Authority to reduce, withdraw, and restore settlement authority.
Any superior settlement authority may reduce, withdraw, or restore
delegated settlement authority.
(e) Settlement negotiations. A settlement authority may settle a
claim filed in any amount for a sum within the delegated settlement
authority regardless of the amount claimed. Unsettled claims in excess
of the delegated settlement authority are sent to the individual with
higher settlement authority. Unsuccessful negotiations at one level do
not bind higher authority.
(f) Special exceptions. No authority below the level of AFLOA/JACC
may settle claims for:
(1) On the job personal injury or death of an employee of a
government contractor or subcontractor.
(2) Assault, battery, false imprisonment, false arrest, abuse of
process, or malicious prosecution committed by an investigative or law
enforcement officer.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83696,
Nov. 22, 2016]
Sec. 842.91 Filing a claim.
(a) Elements of a proper claim. A claim is must be filed on a
Standard Form 95 or other written document. It must be signed by the
Claimant or authorized agent, be for money damages in a sum certain, and
lay out a basic statement as to the nature of the claim that will allow
the Air Force to investigate the allegations contained therein.
(b) Amending a claim. A claimant may amend a claim at any time prior
to final action. To amend a claim the claimant or his or her authorized
agent must submit a written, signed demand.
[81 FR 83697, Nov. 22, 2016]
Sec. 842.92 Advance payments.
Subpart P of this part sets forth procedures for such payments.
[81 FR 83697, Nov. 22, 2016]
Sec. 842.93 Statute of limitations.
(a) A claim must be filed in writing within 2 years after it
accrues. It is deemed to be filed upon receipt by The Judge Advocate
General, USAF/JACC, or a Staff Judge Advocate of the Air Force. A claim
accrues when the claimant discovers or reasonably should have discovered
the existence of the act that resulted in the claimed loss. The same
rules governing accrual pursuant to the Federal Tort Claims Act should
be applied with respect to the
[[Page 41]]
National Guard Claims Act. Upon receipt of a claim that properly belongs
with another military department, the claim is promptly transferred to
that department.
(b) The statutory time period excludes the day of the incident and
includes the day the claim was filed.
(c) A claim filed after the statute of limitations has run is
considered if the U.S. is at war or in an armed conflict when the claim
accrues or if the U.S. enters a war or armed conflict after the claim
accrues, and if good causes shows how the war or armed conflict
prevented the claimant from diligently filing the claim within the
statute of limitations. But in no case will a claim be considered if
filed more than two years after the war or armed conflict ends.
[81 FR 83697, Nov. 22, 2016]
Sec. 842.94 Who may file a claim.
The following individuals may file a claim under this subpart.
(a) Owners of the property or their authorized agents may file
claims for property damage.
(b) Injured persons or their duly authorized agents may file claims
for personal injury.
(c) Duly appointed guardians of minor children or any other persons
legally entitled to do so under applicable local law may file claims for
minors' personal injuries.
(d) Executors or administrators of a decedent's estate or another
person legally entitled to do so under applicable local law, may file
claims based on:
(1) An individual's death.
(2) A cause of action surviving an individual's death.
(e) Insurers with subrogation rights may file claims for losses paid
in full by them. The parties may file claims jointly or individually, to
the extent of each party's interest, for losses partially paid by
insurers with subrogation rights.
(f) Authorized agents signing claims show their title or legal
capacity and present evidence of authority to present the claims.
[81 FR 83697, Nov. 22, 2016]
Sec. 842.95 Who are proper claimants.
(a) Citizens and inhabitants of the United States. U.S. inhabitants
includes dependents of the U.S. military personnel and federal civilian
employees temporarily outside the U.S. for purposes of U.S. Government
service.
(b) U.S. military personnel and civilian employees. Note: These
personnel are not proper claimants for claims for personal injury or
death that occurred incident to their service.
(c) Foreign military personnel when the damage or injury occurs in
the U.S. Do not pay for claims under the MCA for personal injury or
death of a foreign military personnel that occurred incident to their
service.
(d) States, state agencies, counties, or municipalities, or their
political subdivisions.
(e) Subrogees of proper claimants to the extent they have paid for
the claim in question.
[81 FR 83697, Nov. 22, 2016]
Sec. 842.96 Who are not proper claimants.
(a) Governments of foreign nations, their agencies, political
subdivisions, or municipalities.
(b) Agencies and nonappropriated fund instrumentalities of the U.S.
Government including the District of Columbia government.
(c) Inhabitants of foreign countries.
(d) The state, territory and its political subdivisions whose Air
National Guard member caused the loss.
(e) Subrogees of the claimants in paragraphs (a) through (d) of this
section.
[81 FR 83697, Nov. 22, 2016]
Sec. 842.97 Claims payable.
Claims arising from noncombat activities of the United States when
caused by ANG members performing duty under 32 U.S.C. and acting within
the scope of their employment, whether or not such injuries or damages
arose out of their negligent or wrongful acts or omissions.
[81 FR 83697, Nov. 22, 2016]
Sec. 842.98 Claims not payable.
The following are not payable:
[[Page 42]]
(a) Claims covered by the FTCA, FCA, IACA, 10 U.S.C. 2734a and
2734b, Air Force Admiralty Claims Act (AFACA), 10 U.S.C. 9801-9804,
9806, MCA, 10 U.S.C. 2733, or covered under the Military Personnel and
Civilian Employees' Claims Act (MPCECA), 31 U.S.C. 3701, 3721.
(b) NGCA claims arising from noncombat activities in the U.S. are
not covered by the FTCA because more elements are needed to state an
FTCA claim than are needed to state a claim under the NGCA for noncombat
activities. All FTCA claims are based on elements of traditional tort
liability (i.e., duty, breach, causation, and damages); that is, they
are fault based. Noncombat activity claims under the NGCA are based
solely on causation and damages. Because NGCA claims for noncombat
activities are not fault based, they are not covered by the FTCA.
(c) See subpart E of this part for other claims not payable.
(d) Claims for damage to or loss of bailed property when the bailor
specifically assumed such risk.
(e) Claims for personal injury or death of a person covered by:
(1) The Federal Employees' Compensation Act.
(2) The Longshore and Harbor Workers' Compensation Act.
(3) A United States contract or agreement providing employee
benefits through insurance, local law, or custom and the United States
pays for such benefits either directly or as a part of the consideration
under the contract.
(f) Claims for property damage, personal injury or death occurring
in a foreign country to an inhabitant of that country.
(g) Claims caused by the negligent or wrongful acts or omissions of
members of the District of Columbia ANG.
(h) Claims arising from a private rather than a government
transaction.
(i) Claims for patent or copyright infringement.
(j) Claims for damage, use, or other expenses involving the regular
acquisition, possession, and disposition of real property by or for the
ANG.
(k) Claims for the taking of private real property by a continuing
trespass or by a technical trespass such as overflights of aircraft.
(l) Claims for loss of rental fee for personal property.
(m) Claims in litigation against the United States.
(n) Claims for a maritime occurrence covered under U.S. admiralty
laws.
(o) Claims for:
(1) Any tax or customs duty.
(2) The detention of any goods or merchandise by any officer of
customs, excise, or law enforcement officer.
(p) Claims from an act or omission of any employee of the Government
while administering the provisions of the Trading With the Enemy Act.
(q) Claims for damages caused by the United States' imposition or
establishment of a quarantine.
(r) Claims for libel, slander, misrepresentation, deceit or
interference with contract rights.
(s) Claims that result wholly from the negligent or wrongful act of
the claimant or the claimant's agent.
(t) Claims for reimbursement of medical, hospital, or burial
expenses furnished at the expense of the United States, any state, the
District of Columbia, or Puerto Rico.
(u) Claims for damage from floods or flood waters.
(v) Claims for damages caused by the fiscal operations of the
Treasury or by regulation of the monetary system.
(w) Claims caused by the negligent or wrongful acts or omissions of
ANG members acting within the scope of their employment, while
performing duty under 32 U.S.C., on or after 29 December 1981.
(x) Claims caused by the negligent or wrongful acts or omissions of
ANG technicians employed under 32 U.S.C. 709.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83696,
83697, Nov. 22, 2016]
Sec. 842.99 Applicable law.
(a) Federal preemption. Many of the exclusions in this subpart are
based upon the wording of 28 U.S.C. 2680 or other federal statutes or
court decisions interpreting the Federal Tort Claims Act. Federal case
law interpreting the same exclusions under the Federal Tort Claims Act
is applied to the National Guard Claims Act. Where
[[Page 43]]
state law differs with federal law, federal law prevails.
(b) Extent of liability. Where the claim arises is important in
determining the extent of liability.
(1) Applicable law. When a claim arises in the United States, its
territories or possessions, the same law as if the claim was cognizable
under the FTCA will be applied.
(2) Claims in foreign countries. In claims arising in a foreign
country, where the claim is for personal injury, death, or damage to or
loss of real or personal property caused by an act or omission alleged
to be negligent, wrongful, or otherwise involving fault of military
personnel or civilian officers or employees of the United States acting
within the scope of their employment, liability or the United States is
determined according to federal case law interpreting the FTCA. Where
the FTCA requires application of the law of the place where the act or
omission occurred, settlement authorities will use the rules set forth
in the currently adopted edition of the Restatement of the Law,
published by the American Law Institute, to evaluate the liability of
the Air Force, subject to the following rules:
(i) Absolute or strict liability will not apply for claims not
arising from noncombat activities.
(ii) Hedonic damages are not payable.
(iii) The collateral source doctrine will not apply.
(iv) Joint and several liability does not apply. Payment will be
made only upon the portion of loss, damage, injury or death attributable
to the Armed Forces of the United States.
(v) Future economic loss will be discounted to present value after
deducting for federal income taxes and, in cases of wrongful death,
personal consumption.
(c) Claims not payable. Do not approve payment for:
(1) Punitive damages.
(2) Cost of medical or hospital services furnished at U.S. expense.
(3) Cost of burial expenses paid by the United States.
(d) Settlement by insurer or joint tortfeasor. When settlement is
made by an insurer or joint tortfeasor and an additional award is
warranted, an award may be made if both of the following are present:
(1) The United States is not protected by the release executed by
the claimant.
(2) The total amount received from such source is first deducted.
[81 FR 83698, Nov. 22, 2016]
Sec. 842.100 Appeal of final denials.
This section explains the steps to take when a denial is appealed.
(a) A claimant may appeal the final denial of the claim. The
claimant sends the request, in writing, to the settlement authority that
issued the denial letter within 60 days of the date the denial letter
was mailed. The settlement authority may waive the 60 day time limit for
good cause.
(b) Upon receipt of the appeal, the original settlement authority
reviews the appeal.
(c) Where the settlement authority does not reach a final agreement
on an appealed claim, he or she sends the entire claim file to the next
higher settlement authority, who is the appellate authority for that
claim. Any higher settlement authority may act upon an appeal.
(d) The decision of the appellate authority is the final
administrative action on the claim.
[81 FR 83698, Nov. 22, 2016]
Sec. 842.101 Government's right of subrogation, indemnity, and contribution.
The Air Force becomes subrogated to the rights of the claimant upon
settling a claim. The Air Force has the rights of contribution and
indemnity permitted by the law of the situs or under contract. Do not
seek contribution or indemnity from ANG members whose conduct gave rise
to Government liability.
[81 FR 83698, Nov. 22, 2016]
Sec. 842.102 Attorney fees.
In the settlement of any claim pursuant to 32 U.S.C. 715 and this
subpart, attorney fees will not exceed 20 percent of any award provided
that when a claim involves payment of an award over $1,000,000, attorney
fees on that part of the award exceeding $1,000,000
[[Page 44]]
may be determined by the Secretary of the Air Force. For the purposes of
this section, an award is deemed to be the cost to the United States at
the time of purchase of a structured settlement, and not its future
value.
[81 FR 83698, Nov. 22, 2016]
Subpart L_Hospital Recovery Claims (42 U.S.C. 2651 2653)
Source: 55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83698, Nov.
22, 2016, unless otherwise noted.
Sec. 842.103 Scope of this subpart.
This subpart explains how the United States asserts and settles
claims for costs of medical care, against third parties under the
Federal Medical Care Recovery Act (FMCRA) (10 U.S.C. 1095) and various
other laws.
[81 FR 83698, Nov. 22, 2016]
Sec. 842.104 Definitions.
This section defines terms which are used within this subpart.
(a) Medical Cost Reimbursement Program Regional Field Offices. The
Chief of the Medical Cost Reimbursement Program (MCRP) Branch determines
and assigns geographic responsibility for all regional field offices.
Each field office is responsible for investigating all potential claims
and asserting claims within their jurisdiction for the cost of medical
care provided by either a Medical Treatment Facility or at a civilian
facility through Tricare.
(b) Compromise. A mutually binding agreement where payment is made
and accepted in an amount less than the full amount of the claim.
(c) Injured party. The person who received medical care for injury
or disease as a result of the incident on which the claim is based. The
injured party may be represented by a guardian, personal representative,
estate, or survivor.
(d) Medical care. Includes medical and dental treatment, prostheses,
and medical appliances the U.S. furnished or reimbursed other sources
for providing.
(e) Reasonable value of medical care. Either:
(1) An amount determined by reference to rates set by the Director
of the Office of Management and Budget for the value of necessary
medical care in U.S. medical facilities.
(2) The actual cost of necessary care from other sources which was
reimbursed by the United States.
(f) Third party. An individual, partnership, business, corporation
(including insurance carriers), which is indebted to the United States
for medical care provided to an injured party. (In some cases, a state
or foreign government can be the third party.)
(g) Waiver. The voluntary relinquishment by the United States of the
right to collect for medical care provided to an injured party.
(h) Accrued pay. The total of all pay accrued to the account of an
active duty member during a period when the member is unable to perform
military duties. It does not include allowances.
(i) Future care. Medical care reasonably expected to be provided or
paid for in the future treatment of an injured party as determined
during the investigative process.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83698,
Nov. 22, 2016]
Sec. 842.105 Delegations of authority.
(a) Settlement authority. The following individuals have delegated
authority to settle, compromise, or waive MCRP claims for $300,000 or
less and to accept full payment on any claim:
(1) The Judge Advocate General.
(2) The Deputy Judge Advocate General.
(3) The Director of Civil Law.
(4) Chief, Claims and Tort Litigation Staff and the Chief, MCRP.
(b) Redelegation of authority. The individuals described in
paragraph (a) of this section may re-delegate a portion or all of their
authority to subordinates, subject to the following limitations:
(1) SJAs, when given Medical Cost Reimbursement (MCR) claims
jurisdiction, are granted authority to waive, compromise, or settle
claims in amounts of $25,000 or less. This authority may be re-delegated
in writing with authority to re-delegate to subordinates.
(2) SJAs of numbered Air Forces, when given MCR claims jurisdiction,
[[Page 45]]
are granted authority to waive, compromise, or settle claims in amounts
of $40,000 or less. This authority may be re-delegated in writing with
authority to re-delegate to subordinates.
(3) SJAs of single base GCMs, the SJAs of GCMs in PACAF and USAFE,
and the SJAs of each Air Force base, station, or fixed installation have
delegated authority to compromise or waive claims for $15,000 or less
and to accept full payment on any claim.
(c) Authority to assert a claim. Each settlement authority has
authority to assert a claim in any amount for the reasonable value of
medical care.
(d) Authority to reduce, withdraw, and restore settlement authority.
Any superior settlement authority may reduce, withdraw, or restore
delegated authority.
(e) Settlement negotiations. A settlement authority may settle a
claim filed for an amount within the delegated settlement authority.
Claims in excess of the delegated authority must be approved by the next
higher settlement authority. Unsuccessful negotiations at one level do
not bind higher authority.
Note to paragraph (e): Telephonic approvals, in the discretion of
the higher settlement authority, are authorized.
(f) Special exceptions. Only the Department of Justice (DOJ) may
approve claims involving:
(1) Compromise or waiver of a claim for more than $300,000.
(2) Settlement previously referred to DOJ.
(3) Settlement where a third party files suit against the U.S. or
the injured party arising out of the same incident.
[81 FR 83698, Nov. 22, 2016]
Sec. 842.106 Assertable claims.
A claim should be asserted when the Air Force has furnished or will
furnish medical care in military health care facilities or when the Air
Force is responsible for reimbursement to a private care provider and
either of the following conditions are met:
(a) Third party liability in tort exists for causing an injury or
disease.
(b) Local or foreign law permits the United States to recover or the
United States is a third party beneficiary under uninsured motorist
coverage, medical pay insurance coverage, worker's compensation, no-
fault statutes, or other statutes.
A claim should only be asserted if the base SJA determines it merits
assertion. Claims for $150 or less need not be asserted; they should be
asserted only if the base SJA or designee determines the collection will
not exceed the cost to collect, the third party offers payment and
demands a release from the United States before paying damages to the
injured party, or the United States asserts a property damage claim
under subpart L arising out of the same incident.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83698, Nov. 22, 2016]
Sec. 842.107 Nonassertable claims.
The following are considered nonassertable claims and should not be
asserted:
(a) Claims against any department, agency, or instrumentality of the
United States. ``Agency or instrumentality'' includes any self-insured
nonappropriated fund activity whether revenue producing, welfare, or
sundry. The term does not include private associations.
(b) Claims for care furnished a veteran by the Department of
Veterans Affairs (VA) for service connected disability. However, claims
may be asserted for the reasonable value of medical care an Air Force
member receives prior to his or her discharge and transfer to the VA
facility or when the Air Force has reimbursed the VA facility for the
care.
(c) Claims for care furnished a merchant seaman under 42 U.S.C. 249.
A claim against the seaman's employer should not be filed.
(d) Government contractors. In claims in which the United States
must reimburse the contractor for a claim according to the terms of the
contract, settlement authorities investigate the circumstances
surrounding the incident to determine if assertion is appropriate. If
the U.S. is not required to reimburse the contractor, the MCR authority
may assert a claim against the contractor.
(e) Foreign governments. Settlement authorities investigate any
claims that
[[Page 46]]
might be made against foreign governments, their political subdivisions,
armed forces members or civilian employees.
(f) U.S. personnel. Claims are not asserted against members of the
uniformed services; employees of the US, its agencies or
instrumentalities; or an individual who is a dependent of a service
member or employee at the time of assertion unless they have insurance
to pay the claim, they were required by law or regulation to have
insurance which would have covered the Air Force, or their actions,
which necessitated the medical treatment provided at government expense,
constituted willful misconduct or gross negligence.
[81 FR 83699, Nov. 22, 2016]
Sec. 842.108 Asserting the claim.
When asserting the claim, the base SJA will:
(a) MCR personnel assert a claim against a tortfeasor or other third
party using a formal letter on Air Force stationery. The assertion is
made against all potential payers, including insurers. The demand letter
should state the legal basis for recovery and sufficiently describe the
facts and circumstances surrounding the incident giving rise to medical
care. Applicable bases of recovery include U.S. status as a third-party
beneficiary under various types of insurance policies, workers'
compensation laws, no-fault laws, or other Federal statutes, including
Coordination of Benefits (COB) or FMCRA.
(b) The MCR authority must promptly notify the injured parties or
their legal representatives, in writing, that the United States will
attempt to recover from the third parties the reasonable value of
medical care furnished or to be furnished and that they:
(1) Should seek advice from a legal assistance officer or civilian
counsel.
(2) Must cooperate in the prosecution of all actions of the United
States against third parties.
(3) Must furnish a complete statement regarding the facts and
circumstances surrounding the incident which caused the injury.
(4) Must not execute a release or settle any claim which exists as a
result of the injury without prior notice to the MCR authority.
(c) Mail all copies of the SF 96, or claim notice on Air Force
letterhead:
(1) By certified mail with return receipt requested in all claims in
which the amount claimed is $5,000.00 or more or in which there is a
substantial likelihood that the final amount claimed will be $5,000.00
or more.
(2) By regular or certified mail with return receipt requested at
the SJA's discretion in cases in which the final amount claimed is less
than $5,000.00, unless there is no response to the initial notice of
claim within a reasonable period of time and a second notice of claim is
required to be mailed. All second notices of claim and copies will be
mailed by certified mail, return receipt requested.
(d) Notify the injured parties promptly in writing that the United
States will attempt to recover from the third parties the reasonable
value of medical care furnished or to be furnished and that they:
(1) Should seek advice from a legal assistance officer or civilian
counsel and furnish the civilian counsel's name to the claims officer.
(2) Must cooperate in the prosecution of all actions of the United
States against third parties.
(3) Must furnish a complete statement regarding the facts and
circumstances surrounding the incident which caused the injury.
(4) Must not execute a release or settle any claim which exists as a
result of the injury without prior notice to the SJA.
(5) Should read the enclosed Privacy Act statement.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83698,
83699, Nov. 22, 2016]
Sec. 842.109 Referring a claim to the U.S. Attorney.
(a) All cases that require forwarding to the DoJ must be routed
through the Chief, MCRP. The MCR authority ensures that personnel review
all claims for possible referral not later than two years after the date
of the incident for tort based cases.
(b) The United States or the injured party on behalf of the United
States must file suit within 3 years after an
[[Page 47]]
action accrues. This is usually 3 years after the initial treatment is
provided in a federal medical facility or after the initial payment is
made by Tricare, whichever is first.
[81 FR 83699, Nov. 22, 2016]
Sec. 842.110 Statute of limitations.
The United States or the injured party on behalf of the United
States must file suit within 3 years after an action accrues. This is
usually 3 years after the initial treatment is provided in a federal
medical facility or after the initial payment is made by CHAMPUS,
whichever is first.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83698, Nov. 22, 2016]
Sec. 842.111 Recovery rates in government facilities.
The Federal Register contains the rates set by the Office of
Management and Budget, of which judges take judicial notice. Apply the
rates in effect at the time of care to claims.
[81 FR 83699, Nov. 22, 2016]
Sec. 842.112 Waiver and compromise of United States interest.
Waivers and compromises of government claims can be made. This
section lists the basic guidance for each action. (See this subpart for
claims involving waiver and compromise of amounts in excess of
settlement authorities' delegated amounts.)
(a) Convenience of the Government. When compromising or waiving a
claim for convenience of the Government, settlement authorities should
consider the following factors:
(1) Risks of litigation.
(2) Questionable liability of the third party.
(3) Costs of litigation.
(4) Insurance (Uninsured or Underinsured Motorist and Medical
Payment Coverage) or other assets of the tortfeasor available to satisfy
a judgment for the entire claim.
(5) Potential counterclaim against the U.S.
(6) Jury verdict expectancy amount.
(7) Amount of settlement with proposed distribution.
(8) Cost of any future care.
(9) Tortfeasor cannot be located.
(10) Tortfeasor is judgment proof.
(11) Tortfeasor has refused to pay and the case is too weak for
litigation.
(b) Hardship on the injured party. When compromising or waiving a
claim to avoid undue hardship on the injured party, settlement
authorities should consider the following factors:
(1) Permanent disability or disfigurement of the injured party.
(2) Decreased earning power of the injured party.
(3) Out of pocket losses to the injured party.
(4) Financial status of the injured party.
(5) Pension rights of the injured party.
(6) Other government benefits available to the injured party.
(7) An offer of settlement from a third party which includes
virtually all of the thirty party's assets, although the amount is
considerably less than the calculation of the injured party's damages.
(8) Whether the injured party received excessive treatment.
(9) Amount of settlement with proposed distribution, including
reductions in fees or damages by other parties, medical providers, or
attorneys in order to reduce the hardship on the injured party.
(c) Compromise or waiver. A compromise or waiver can be made upon
written request from the injured party or the injured party's legal
representative.
[81 FR 83699, Nov. 22, 2016]
Sec. 842.113 Reconsideration of a waiver for undue hardship.
A settlement authority may reconsider its previous action on a
request for waiver or compromise whether requested or not.
Reconsideration is normally on the basis of new evidence or discovery of
errors in the waiver submission or settlement, but can be based upon a
re-evaluation of the claim by the settlement authority.
[81 FR 83700, Nov. 22, 2016]
[[Page 48]]
Subpart M_Nonappropriated Fund Claims
Source: 81 FR 83700, Nov. 22, 2016, unless otherwise noted.
Sec. 842.114 Scope of this subpart.
This subpart describes how to settle claims for and against the
United States for property damage, personal injury, or death arising out
of the operation of nonappropriated fund instrumentalities (NAFIs).
Unless stated below, such claims will follow procedures outlined in
other subparts of this part for the substantive law applicable to the
particular claim. For example, a NAFI claim adjudicated under the
Federal Tort Claims Act will follow procedures in this subpart as well
as subpart K of this part.
[81 FR 83700, Nov. 22, 2016]
Sec. 842.115 Definitions.
(a) Army and Air Force Exchange Service (AAFES). The Army and Air
Force Exchange Service is a joint command of the Army and Air Force,
under the jurisdiction of the Chiefs of Staff of the Army and Air Force,
which provides exchange and motion picture services to authorized
patrons.
(b) Morale, welfare, and recreation (MWR) activities. Air Force MWR
activities are activities operated directly or by contract which provide
programs to promote morale and well-being of the Air Force's military
and civilian personnel and their dependents. They may be funded wholly
with appropriated funds, primarily with nonappropriated funds (NAF), or
with a combination of appropriated funds and NAFs.
(c) Nonappropriated funds. Nonappropriated funds are funds generated
by Department of Defense military and civilian personnel and their
dependents and used to augment funds appropriated by the Congress to
provide a comprehensive morale-building, welfare, religious,
educational, and recreational program, designed to improve the well-
being of military and civilian personnel and their dependents.
(d) Nonappropriated funds instrumentality. A nonappropriated fund
instrumentality is a Federal Government instrumentality established to
generate and administer nonappropriated funds for programs and services
contributing to the mental and physical well-being of personnel.
[81 FR 83700, Nov. 22, 2016]
Sec. 842.116 Payment of claims against NAFIs.
Substantiated claims against NAFIs must not be paid solely from
appropriated funds. Claims are sent for payment as set out in this
subpart. Do not delay paying a claimant because doubt exists whether to
use appropriated funds or NAFs. Pay the claim initially from
appropriated funds and decide the correct funding source later.
[81 FR 83700, Nov. 22, 2016]
Sec. 842.117 Claims by customers, members, participants, or authorized users.
(a) Customer complaints. Do not adjudicate claims complaints or
claims for property loss or damage under this subpart that the local
NAFI activity can satisfactorily resolve.
(b) Claims generated by concessionaires. Most concessionaires must
have commercial insurance. Any unresolved claims or complaints against
concessionaires or their insurers are sent to the appropriate
contracting officers.
[81 FR 83700, Nov. 22, 2016]
Subpart N_Civil Air Patrol Claims (5 U.S.C. 8101(1)(B), 8102(a),
8116(c), 8141; 10 U.S.C. 9441, 9442; 36 U.S.C. 201 208)
Source: 55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83700, Nov.
22, 2016, unless otherwise noted.
Sec. 842.118 Scope of this subpart.
(a) This subpart explains how to process certain administrative
claims:
(1) Against the United States for property damage, personal injury,
or death, arising out of Air Force assigned noncombat missions performed
by the Civil Air Patrol (CAP), as well as certain other Air Force
authorized missions performed by the CAP in support of the Federal
Government.
[[Page 49]]
(2) In favor of the United States for damage to U.S. Government
property caused by CAP members or third parties.
(b) Unless stated in this subpart, such claims will follow
procedures outlined in other subparts of this part for the substantive
law applicable to the particular claim. For example, a CAP claim
adjudicated under the Military Claims Act will follow procedures in this
subpart as well as subpart E of this part.
[81 FR 83700, Nov. 22, 2016]
Sec. 842.119 Definitions.
(a) Civil Air Patrol (CAP). A federally chartered, non-profit
corporation which was designated by Congress in 1948 as a volunteer
civilian auxiliary of the Air Force.
(b) Air Force noncombat mission. Although not defined in any
statute, an Air Force noncombat mission is any mission for which the Air
Force is tasked, by statute, regulation, or higher authority, which does
not involve actual combat, combat operations or combat training. The Air
Force, in lieu of using Air Force resources, can use the services of the
Civil Air Patrol to fulfill these type missions. When performing an Air
Force noncombat mission, the Civil Air Patrol is deemed to be an
instrumentality of the United States. In order for a mission to be a
noncombat mission of the Air Force under this part, it must either:
(1) Have a special Air Force mission order assigned, and, the Air
Force must exercise operational control over the mission.
(2) Involve a peacetime mission the Air Force is tasked to perform
by higher authority which requires the expenditure of Air Force
resources to accomplish, and the Air Force specifically approves the
mission as a noncombat mission, and assigns the mission to the Civil Air
Patrol to perform.
(c) CAP members. CAP members are private citizens who volunteer
their time, services, and resources to accomplish CAP objectives and
purposes. The two primary categories of members are:
(1) Cadets. Youths, 13 years (or having satisfactorily completed the
sixth grade) through 17 years of age, who meet such prerequisites as the
CAP corporation may establish from time to time. Cadet status may be
retained until age 21.
(2) Seniors. Adults, 18 years of age or older (there is no maximum
age), who meet such prerequisites as the CAP corporation may establish
from time to time, and who have not retained cadet status.
(d) Liaison officers. Active duty Air Force officers assigned to
liaison duty at the national, regional, and wing (state) levels of CAP.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83700, Nov. 22, 2016]
Sec. 842.120 Improper claimants.
CAP members, 18 years of age or older, whose personal injury or
death claim is subject to the Federal Employees' Compensation Act, are
improper claimants. FECA is their exclusive remedy.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83700, 83701, Nov. 22,
2016]
Sec. 842.121 Claims payable.
A claim is payable if all of the following are present:
(a) It is for property damage, personal injury, or death.
(b) It is proximately caused by a CAP member.
(c) It arises from an Air Force noncombat mission performed by the
CAP, or arises from an authorized mission performed by the CAP for which
specific coverage under this subpart is granted by AFLOA/JACC.
(d) It is otherwise payable because it meets the provisions of an
appropriate subpart of this part.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83700, 83701, Nov. 22,
2016]
Sec. 842.122 Claims not payable.
A claim is not payable if it:
(a) Is for use or depreciation of privately owned property, operated
by CAP or its members on an Air Force noncombat mission, or other
specified Air Force authorized mission.
(b) Is for personal services or expenses incurred by CAP or its
members while engaged in an Air Force noncombat mission, or other
specified Air Force authorized mission.
[[Page 50]]
(c) Arises out of a CAP incident based solely on government
ownership of property on loan to CAP.
(d) Arises from a CAP activity not performed as a noncombat mission
of the Air Force or as a specified Air Force authorized mission. These
claims are sent to HQ CAP-USAF/JA for referral to CAP's private insurer,
with a copy of the transmittal letter to AFLOA/JACC.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83700, 83701, Nov. 22,
2016]
Subpart O_Advance Payments (10 U.S.C. 2736)
Source: 55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83701, Nov.
22, 2016, unless otherwise noted.
Sec. 842.123 Scope of this subpart.
This subpart tells how to make an advance payment before a claim is
filed or finalized under the Military Claims, Foreign Claims and
National Guard Claims Acts.
[81 FR 83701, Nov. 22, 2016]
Sec. 842.124 Delegation of authority.
(a) The Secretary of the Air Force has authority to make an advance
payment of $100,000 or less.
(b) The Judge Advocate General has delegated authority to make an
advance payment of $100,000 or less.
(c) The following individuals have delegated authority to make an
advance payment of $25,000 or less:
(1) The Deputy Judge Advocate General.
(2) The Director of Civil Law.
(3) The Chief, Deputy Chief, and Branch Chiefs, Claims and Tort
Litigation Staff.
(4) SJAs of the Air Force component commander of the U.S. geographic
combatant commands for claims arising within their respective combatant
command areas of responsibility.
(d) This authority may be redelegated either orally or in writing.
Oral redelegations should be confirmed in writing as soon as practical.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83701,
Nov. 22, 2016]
Sec. 842.125 Who may request.
A proper claimant or authorized agent may request an advance
payment.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83701, Nov. 22, 2016]
Sec. 842.126 When authorized.
Make advance payments only where all of the following exist:
(a) The potential claimant could file a valid claim for property
damage or personal injury under the Military Claims, Foreign Claims, or
National Guard Claims Acts.
(b) The potential claimant has an immediate need amounting to a
hardship for food, shelter, medical or burial expenses, or other
necessities. In the case of a commercial enterprise, severe financial
loss or bankruptcy will result if the Air Force does not make an advance
payment.
(c) Other resources for such needs are not reasonably available.
(d) The potential claim equals or exceeds the amount of the advance
payment.
(e) The recipient signs as advance payment agreement.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83701,
Nov. 22, 2016]
Sec. 842.127 When not authorized.
Do not make an advance payment if the claim is payable under the:
(a) Federal Tort Claims Act.
(b) International Agreement Claims Act.
(c) Military Personnel and Civilian Employees' Claims Act. (Separate
regulations issued under the Act provide for partial payments.)
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83701, Nov. 22, 2016]
Sec. 842.128 Separate advance payment claims.
Every person suffering injury or property loss may submit a separate
request for an advance payment. For example, where the Air Force
destroys a house containing a family of four,
[[Page 51]]
each family member may submit a separate request for and receive an
advance payment of $100,000 or less.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83701, Nov. 22, 2016]
Sec. 842.129 Liability for repayment.
The claimant is liable for repayment. Deduct the advance payment
from any award or judgment given to a claimant. Reimbursement from the
claimant will be sought if the claimant does not file a claim or
lawsuit.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83701, Nov. 22, 2016]
PART 845_COUNSEL FEES AND OTHER EXPENSES IN FOREIGN TRIBUNALS--
Table of Contents
Sec.
845.1 Purpose.
845.2 Statutory authority.
845.3 Responsibility.
845.4 Criteria for the provision of counsel and payment of expenses in
criminal cases.
845.5 Provision of bail in criminal cases.
845.6 Criteria for the provision of counsel and payment of expenses in
civil cases.
845.7 Procedures for hiring counsel and obligating funds.
845.8 Payment of counsel fees and other expenses.
845.9 Appropriated funds chargeable.
845.10 Reimbursement.
845.11 Correspondence.
Authority: Sec. 8012, 70A Stat. 488, sec. 1037, 72 Stat. 1445; 10
U.S.C. 8012, 1037.
Source: 44 FR 75633, Dec. 21, 1979, unless otherwise noted.
Note: This part is derived from chapter 2 of Air Force Regulation
110-12, December 1, 1978.
Part 806 of this chapter states the basic policies and instructions
governing the disclosure of records and tells members of the public what
they must do to inspect or obtain copies of the material referenced
herein.
Sec. 845.1 Purpose.
This part establishes criteria and assigns responsibility for the
provision of counsel, for the provision of bail, and for the payment of
court costs and other necessary and reasonable expenses incident to
representation in civil and criminal proceedings, including appellate
proceedings, before foreign courts and foreign administrative agencies,
which involve members of the Armed Forces, civilian personnel and
dependents. Payment of fines is not authorized hereunder.
Sec. 845.2 Statutory authority.
10 U.S.C. 1037 provides authority for employment of counsel, and
payment of counsel fees, court costs, bail, and other expenses incident
to representation of persons subject to the Uniform Code of Military
Justice before foreign tribunals. For personnel not subject to the
Uniform Code of Military Justice, funds for similar expenses may be made
available in cases of exceptional interest to the service concerned,
upon prior application through the Judge Advocate General of the service
concerned, to the appropriate service secretary.
Sec. 845.3 Responsibility.
(a) Requests for provision of counsel, provision of bail, or payment
of expenses will ordinarily be made by the defendant or accused through
appropriate channels to the officer exercising general court-martial
jurisdiction over him. This officer shall determine whether the request
meets the criteria prescribed herein and, based upon such determination,
shall take final action approving or disapproving the request. Within
their geographical areas of responsibility, major commands in the
interest of obtaining prompt and effective legal service may appoint as
approval authority, instead of the officer exercising general court-
martial jurisdiction, any subordinate officer having responsibility in a
particular country for personnel subject to foreign criminal
jurisdiction.
(b) Notwithstanding the criteria prescribed below, an officer
exercising approved authority may, in his discretion, deny a request for
the provision of counsel, provision of bail or payment of expenses,
where the otherwise eligible requestor is in an absent without leave or
deserter status at the time of the request, or otherwise is not then
subject to United States military control, and there is no reasonable
basis for the belief that the requestor will return to United States
military control at the conclusion of the proceedings of service of an
adjudged sentence, if any.
[[Page 52]]
Sec. 845.4 Criteria for the provision of counsel and payment
of expenses in criminal cases.
Requests for the provision of counsel and payment of expenses in
criminal cases may be approved in pretrial, trial, appellate and
posttrial proceedings in any one of the following criminal cases:
(a) Where the act complained of occurred in the performance of
official duty; or
(b) Where the sentence which is normally imposed includes
confinement, whether or not such sentence is suspended; or
(c) Where capital punishment might be imposed; or
(d) Where an appeal is made from any proceeding in which there
appears to have been a denial of the substantial rights of the accused;
or
(e) Where conviction of the offense alleged could later form the
basis for administrative discharge proceedings for misconduct as a
result of civil court disposition; or
(f) Where the case, although not within the criteria established in
paragraphs (a), (b), (c), (d), or (e) of this section, is considered to
have significant impact upon the relations of US forces with the host
country or is considered to involve any other particular US interest.
Sec. 845.5 Provision of bail in criminal cases.
Funds for the posting of bail or bond to secure the release of
personnel from confinement by foreign authorities before, during, or
after trial may be furnished in all criminal cases. Safeguards should be
imposed to assure that at the conclusion of the proceedings or on the
appearance of the defendant in court, the bail or bond will be refunded
to the military authorities. Bail will be provided only to guarantee the
presence of the defendant and will not be provided to guarantee the
payment of fines or civil damages. Local US military authorities are
expected to provide bail, in any case, only after other reasonable
efforts have been made to secure release of pretrial custody to the US.
Sec. 845.6 Criteria for the provision of counsel and payment
of expenses in civil cases.
Requests for provision of counsel and payment of expenses in civil
cases may be granted in trial and appellate proceedings in either of the
following civil cases:
(a) Where the act complained of occurred in the performance of
official duty; or
(b) Where the case is considered to have a significant impact upon
the relations of US forces with the host country or is considered to
involve any other particular US interest. No funds shall be provided
under this part in cases where the United States of America is in legal
effect the defendant, without prior authorization of the Judge Advocate
General.
Sec. 845.7 Procedures for hiring counsel and obligating funds.
(a) The selection of individual trial or appellate counsel will be
made by the defendant. Such counsel shall represent the individual
defendant and not the US Government. Selection shall be made from
approved lists of attorneys who are qualified, competent and experienced
in trial practice, and admitted for full practice, on their own account,
before the courts of the foreign country involved. Normally, these lists
will be coordinated with the local court or bar association, if any, and
the appropriate US Diplomatic or Consular Mission and should include
only those attorneys who are known or reputed, to comply with local
attorney fee schedules or guides approved or suggested by local bar
associations and should not exceed amounts paid under similar
circumstances by nationals of the country where the trial is held. No
fee may include any amount in payment for services other than those
incident to representation before judicial and administrative agencies
of the foreign country in the particular case for which the contract is
made, and in no event may any contract include fees for representation
in habeas corpus or related proceedings before tribunals of the United
States. When appropriate and reasonable in the case, the payment of
expenses, in addition to counsel fees, may include court costs, bail
costs, charges
[[Page 53]]
for obtaining copies of records, printing and filing fees, interpreter
fees, witness fees, and other necessary and reasonable expenses.
Expenses will not include the payment of fines or civil damages,
directly or indirectly.
(b) Whenever possible, the officer responsible under Sec. 845.3 (or
his designee), acting on behalf of the United States of America, shall
enter into a written contract with the selected counsel. The contract
will cover counsel fees, and, when appropriate, may cover other costs
arising in defense of the case only in the court of first instance and
will not include fees for representation on appeal. If the case is
appealed to higher tribunals, supplemental agreements shall be executed
for each appeal. A copy of the contractual agreement shall serve as the
obligating document.
(c) If, for example, because of unusual circumstances or local
customs, it is not practicable to enter into a written contract as in
paragraph (b) of this section, action will be taken to record the
agreement reached between the officer responsible under Sec. 845.3 (or
his designee) and the selected counsel. This requirement may be met by a
letter of commission or letter of understanding, executed between the
officer responsible under Sec. 845.3 (or his designee) and the selected
counsel, or by a written request for legal services expressly or
impliedly accepted by the selected counsel. Any such document shall
contain, if possible, an agreed estimate of counsel fees and reasonable
expenses and a statement that both fees and expenses will conform to
those paid by local nationals under similar circumstances and will not
exceed local fee schedules, if any. If this document does not include an
agreed estimate of counsel fees and other reasonable expenses, an
estimate will be provided by the contracting officer. A copy of the
document, together with the estimate, will be furnished the accounting
component and will serve as the commitment document for the reservation
of funds.
(d) The provision of counsel and payment of expenses under this part
is not subject to the provisions of the Defense Acquisition Regulation
(subchapter A, chapter I of this title). However, the contract clauses
set forth in part 5, section VII, Defense Acquisition Regulation, may be
used as a guide in contracting.
(e) Because of the desirability of timely procedural action, it is
suggested that there be designated, from among the judge advocates on
the staffs of officers responsible under Sec. 845.3, contracting
officers with contracting authority limited to agreements described in
this section. The effect of this designation would be to combine within
one office the duties of contracting officer and judge advocate.
(f) Nothing in this part shall be construed as prohibiting the
selection of qualified local counsel employed by the United States
Government, if the serviceman freely selects such counsel.
Sec. 845.8 Payment of counsel fees and other expenses.
Payment of bills submitted by the selected counsel and other costs
shall be made in accordance with the general provision of AFM 177-102
(Commercial Transactions at Base Level), relating to payment of
contractual obligations and pertinent disbursing regulations. All
payments under these procedures will be in local currency. Acceptance of
services procured under these procedures shall be certified to by the
officer responsible under Sec. 845.3 (or his designee). Payments of
bail may be made when authorized by such officers. Such authorization
shall be in the form of a directing letter or message citing 10 U.S.C.
1037.
Sec. 845.9 Appropriated funds chargeable.
Authorized expenses incurred incident to implementation of the
policies set forth in this part, including transportation and per diem
expenses of trial observers, interpreters, and local counsel employees,
shall be paid from appropriated funds of the service to which the
defendant belongs. Payments shall be made from the appropriation current
at time of payment, unless obligations for authorized costs have
previously been established. Refunds shall be processed as appropriation
refund. Such funds are chargeable to the base for operation and
maintenance purposes (O&M or R&D, as applicable).
[[Page 54]]
Sec. 845.10 Reimbursement.
No reimbursement will ordinarily be required from individuals with
respect to payments made in their behalf under this part. However, prior
to the posting of bail on behalf of a defendant, a signed agreement
shall be secured from him wherein he agrees to remit the amount of such
bail or permit the application of so much of his pay as may be necessary
to reimburse the Government in the event that he willfully causes
forfeiture of bail. In the event of such forfeiture, bail provided under
this part shall be recovered from the defendant in accordance with that
agreement. The agreement should include a statement that it does not
prejudice the defendant's right to appeal to the Comptroller General of
the United States and the courts after such payment or deduction has
been made, if he considers the amount erroneous.
Sec. 845.11 Correspondence.
Judge advocates who advise officers responsible under Sec. 845.3
are authorized to correspond directly with each other and with the Judge
Advocate General of the service concerned for advice with regard to
payment of counsel fees and other expenses.
SUBCHAPTER E_SECURITY [RESERVED]
[[Page 55]]
SUBCHAPTER F_AIRCRAFT
PART 855_CIVIL AIRCRAFT USE OF UNITED STATES AIR FORCE AIRFIELDS--
Table of Contents
Subpart A_General Provisions
Sec.
855.1 Policy.
855.2 Responsibilities.
855.3 Applicability.
Subpart B_Civil Aircraft Landing Permits
855.4 Scope.
855.5 Responsibilities and authorities.
855.6 Aircraft exempt from the requirement for a civil aircraft landing
permit.
855.7 Conditions for use of Air Force airfields.
855.8 Application procedures.
855.9 Permit renewal.
855.10 Purpose of use.
855.11 Insurance requirements.
855.12 Processing a permit application.
855.13 Civil fly-ins.
855.14 Unauthorized landings.
855.15 Detaining an aircraft.
855.16 Parking and storage.
855.17 Fees for landing, parking, and storage fees.
855.18 Aviation fuel and oil purchases.
855.19 Supply and service charges.
Subpart C_Agreements for Civil Aircraft Use of Air Force Airfields
855.20 Joint-use Agreements.
855.21 Procedures for sponsor.
855.22 Air Force procedures.
855.23 Other agreements.
Table 1 to Part 855--Purpose of Use/Verification/Approval Authority/Fees
Table 2 to Part 855--Aircraft Liability Coverage Requirements
Table 3 to Part 855--Landing Fees
Table 4 to Part 855--Parking and Storage Fees
Attachment 1 to Part 855--Glossary of References, Abbreviations,
Acronyms, and Terms
Attachment 2 to Part 855--Weather Alternate List
Attachment 3 to Part 855--Landing Permit Application Instructions
Attachment 4 to Part 855--Sample Joint-Use Agreement
Attachment 5 to Part 855--Sample Temporary Agreement
Authority: 49 U.S.C. 44502 and 47103.
Source: 60 FR 37349, July 20, 1995, unless otherwise noted.
Subpart A_General Provisions
Sec. 855.1 Policy.
The Air Force establishes and uses its airfields to support the
scope and level of operations necessary to carry out missions worldwide.
The Congress funds airfields in response to Air Force requirements, but
also specifies that civil aviation access is a national priority to be
accommodated when it does not jeopardize an installation's military
utility. The Air Force engages in dialogue with the civil aviation
community and the Federal Aviation Administration to ensure mutual
understanding of long-term needs for the national air transportation
system and programmed military force structure requirements. To
implement the national policy and to respond to requests for access, the
Air Force must have policies that balance such requests with military
needs. Civil aircraft access to Air Force airfields on foreign territory
requires host nation approval.
(a) The Air Force will manage two programs that are generally used
to grant civil aircraft access to its airfields: civil aircraft landing
permits and joint-use agreements. Other arrangements for access will be
negotiated as required for specific purposes.
(1) Normally, landing permits will be issued only for civil aircraft
operating in support of official Government business. Other types of use
may be authorized if justified by exceptional circumstances. Access will
be granted on an equitable basis.
(2) The Air Force will consider only proposals for joint use that do
not compromise operations, security, readiness, safety, environment, and
quality of life. Further, only proposals submitted by authorized local
Government representatives eligible to sponsor a public airport will be
given the comprehensive evaluation required to conclude a joint-use
agreement.
(3) Any aircraft operator with an inflight emergency may land at any
Air Force airfield without prior authorization. An inflight emergency is
[[Page 56]]
defined as a situation that makes continued flight hazardous.
(b) Air Force requirements will take precedence on Air Force
airfields over all civil aircraft operations, whether they were
previously authorized or not.
(c) Civil aircraft use of Air Force airfields in the United States
will be subject to Federal laws and regulations. Civil aircraft use of
Air Force airfields in foreign countries will be subject to US Federal
laws and regulations that have extraterritorial effect and to applicable
international agreements with the country in which the Air Force
installation is located.
Sec. 855.2 Responsibilities.
(a) As the program manager for joint use, the Civil Aviation Branch,
Bases and Units Division, Directorate of Operations (HQ USAF/XOOBC),
ensures that all impacts have been considered and addressed before
forwarding a joint-use proposal or agreement to the Deputy Assistant
Secretary for Installations (SAF/MII), who holds decision authority. All
decisions are subject to the environmental impact analysis process as
directed by the Environmental Planning Division, Directorate of
Environment (HQ USAF/CEVP), and the Deputy Assistant Secretary for
Environment, Safety, and Occupational Health (SAF/MIQ). The Air Force
Real Estate Agency (AFREA/MI) handles the leases for Air Force-owned
land or facilities that may be included in an agreement for joint use.
(b) HQ USAF/XOOBC determines the level of decision authority for
landing permits. It delegates decision authority for certain types of
use to major commands and installation commanders.
(c) HQ USAF/XOOBC makes the decisions on all requests for exceptions
or waivers to this part and related Air Force instructions. The decision
process includes consultation with other affected functional area
managers when required. Potential impacts on current and future Air
Force policies and operations strongly influence such decisions.
(d) Major commands, direct reporting units, and field operating
agencies may issue supplements to establish command-unique procedures
permitted by and consistent with this part.
Sec. 855.3 Applicability.
This part applies to all regular United States Air Force (USAF), Air
National Guard (ANG), and United States Air Force Reserve (USAFR)
installations with airfields. This part also applies to civil aircraft
use of Air Force ramps at civil airports hosting USAF, ANG, and USAFR
units.
Subpart B_Civil Aircraft Landing Permits
Sec. 855.4 Scope.
Air Force airfields are available for use by civil aircraft so far
as such use does not interfere with military operations or jeopardize
the military utility of the installation. Access will be granted on an
equitable basis. Air Force requirements take precedence over authorized
civil aircraft use. This part carries the force of US law, and
exceptions are not authorized without prior approval from the Civil
Aviation Branch, Bases and Units Division, Directorate of Operations,
(HQ USAF/XOOBC), 1480 Air Force Pentagon, Washington DC 20330-1480.
Proposed exceptions or waivers are evaluated as to current and future
impact on Air Force policy and operations.
Sec. 855.5 Responsibilities and authorities.
(a) The Air Force:
(1) Determines whether civil aircraft use of Air Force airfields is
compatible with current and planned military activities.
(2) Normally authorizes civil aircraft use of Air Force airfields
only in support of official Government business. If exceptional
circumstances warrant, use for other purposes may be authorized.
(3) Acts as clearing authority for civil aircraft use of Air Force
airfields, subject to the laws and regulations of the US, or to
applicable international agreements (e.g., status of forces agreements)
with the country in which the Air Force installation is located.
(4) Reserves the right to suspend any operation that is inconsistent
with national defense interests or deemed not in the best interests of
the Air Force.
[[Page 57]]
(5) Will terminate authority to use an Air Force airfield if the:
(i) User's liability insurance is canceled.
(ii) User lands for other than the approved purpose of use or is
otherwise in violation of this part or clearances and directives
hereunder.
(6) Will not authorize use of Air Force airfields:
(i) In competition with civil airports by providing services or
facilities that are already available in the private sector.
Note: Use to conduct business with or for the US Government is not
considered as competition with civil airports.
(ii) Solely for the convenience of passengers or aircraft operator.
(iii) Solely for transient aircraft servicing.
(iv) By civil aircraft that do not meet US Department of
Transportation operating and airworthiness standards.
(v) That selectively promotes, benefits, or favors a specific
commercial venture unless equitable consideration is available to all
potential users in like circumstances.
(vi) For unsolicited proposals in procuring Government business or
contracts.
(vii) Solely for customs-handling purposes.
(viii) When the air traffic control tower and base operations are
closed or when a runway is restricted from use by all aircraft.
Note: Requests for waiver of this provision must address liability
responsibility, emergency response, and security.
(7) Will not authorize civil aircraft use of Air Force ramps located
on civil airfields.
Note: This section does not apply to use of aero club facilities
located on Air Force land at civil airports, or civil aircraft chartered
by US military departments and authorized use of terminal facilities and
ground handling services on the Air Force ramp. Only the DD Form 2400,
Civil Aircraft Certificate of Insurance, and DD Form 2402, Civil
Aircraft Hold Harmless Agreement, are required for use of Air Force
ramps on civil airfields.
(b) Civil aircraft operators must:
(1) Have an approved DD Form 2401, Civil Aircraft Landing Permit,
before operating at Air Force airfields, except for emergency use and as
indicated in paragraphs (d)(2) and (d)(2)(iii)(E) of this section, and ,
and Sec. 855.13(b)(1)(ii).
(2) Ensure that pavement load-bearing capacity will support the
aircraft to be operated at the Air Force airfield.
(3) Ensure that aircraft to be operated at Air Force airfields are
equipped with an operating two-way radio capable of communicating with
the air traffic control tower.
(4) Obtain final approval for landing from the installation
commander or a designated representative (normally base operations) at
least 24 hours prior to arrival.
(5) Not assume that the landing clearance granted by an air traffic
control tower facility is a substitute for either the approved civil
aircraft landing permit or approval from the installation commander or a
designated representative (normally base operations).
(6) Obtain required diplomatic or overflight clearance before
operating in foreign airspace.
(7) Pay applicable costs and fees.
(8) File a flight plan before departing the Air Force airfield.
(c) The installation commander or a designated representative:
(1) Exercises administrative and security control over both the
aircraft and passengers while on the installation.
(2) May require civil users to delay, reschedule, or reroute
aircraft arrivals or departures to preclude interference with military
activities.
(3) Cooperates with customs, immigration, health, and other public
authorities in connection with civil aircraft arrival and departure.
(d) Decision Authority: The authority to grant civil aircraft use of
Air Force airfields is vested in:
(1) Directorate of Operations, Bases and Units Division, Civil
Aviation Branch (HQ USAF/XOOBC). HQ USAF/XOOBC may act on any request
for civil aircraft use of an Air Force airfield. Decision authority for
the following will not be delegated below HQ USAF:
(i) Use of multiple Air Force airfields except as designated in
paragraph (d)(2) of this section.
(ii) Those designated as 2 under Approval Authority in Table 1 to
this part.
[[Page 58]]
(iii) Any unusual or unique purpose of use not specifically
addressed in this part.
(2) Major Command, Field Operating Agency, Direct Reporting Unit, or
Installation Commander. With the exception of those uses specifically
delegated to another decision authority, major commands (MAJCOMs), field
operating agencies (FOAs), direct reporting units (DRUs) and
installation commanders or designated representatives have the authority
to approve or disapprove civil aircraft landing permit applications (DD
Forms 2400, Civil Aircraft Certificate of Insurance; 2401; Civil
Aircraft Landing Permit, and 2402, Civil Aircraft Hold Harmless
Agreement) at airfields for which they hold oversight responsibilities.
Additionally, for expeditious handling of short notice requests, they
may grant requests for one-time, official Government business flights
that are in the best interest of the US Government and do not violate
other provisions of this part. As a minimum, for one-time flights
authorized under this section, the aircraft owner or operator must
provide the decision authority with insurance verification and a
completed DD Form 2402 before the aircraft operates into the Air Force
airfield. Air Force authority to approve civil aircraft use of Air Force
airfields on foreign soil may be limited. Commanders outside the US must
be familiar with base rights agreements or other international
agreements that may render inapplicable, in part or in whole, provisions
of this part. Decision authority is delegated for specific purposes of
use and or locations as follows:
(i) Commander, 611th Air Operations Group (AOG). The Commander,
611th AOG or a designated representative may approve commercial
charters, on a case-by-case basis, at all Air Force airfields in Alaska,
except Eielson and Elmendorf AFBs, if the purpose of the charter is to
transport goods and or materials, such as an electric generator or
construction materials for a community center, for the benefit of remote
communities that do not have adequate civil airports.
(ii) Commander, Air Mobility Command (AMC). The Commander, AMC or a
designated representative may approve permits that grant landing rights
at Air Force airfields worldwide in support of AMC contracts.
(iii) US Defense Attache Office (USDAO). The USDAO, acting on behalf
of HQ USAF/XOOBC, may grant a request for one-time landing rights at an
Air Force airfield provided:
(A) The request is for official Government business of either the US
or the country to which the USDAO is accredited.
(B) The Air Force airfield is located within the country to which
the USDAO is accredited.
(C) Approval will not violate any agreement with the host country.
(D) The installation commander concurs.
(E) The USDAO has a properly completed DD Form 2402 on file and has
verified that the insurance coverage meets the requirements of Table 2
to this part, before the aircraft operates into the Air Force airfield.
Sec. 855.6 Aircraft exempt from the requirement for a civil aircraft
landing permit.
(a) Any aircraft owned by:
(1) Any other US Government agency.
(2) US Air Force aero clubs established as prescribed in AFI 34-117,
Air Force Aero Club Program, and AFMAN 3-132, Air Force Aero Club
Operations \1\.
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\1\ Copies of the publications are available, at cost, from the
National Technical Information Service, U.S. Department of Commerce,
5285 Port Royal Road, Springfield, VA 22161.
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Note: This includes aircraft owned by individuals but leased by an
Air Force aero club.
(3) Aero clubs of other US military services.
Note: This includes aircraft owned by individuals but leased by Army
or Navy aero clubs.
(4) A US State, County, Municipality, or other political
subdivision, when operating to support official business at any level of
Government.
(b) Any civil aircraft under:
(1) Lease or contractual agreement for exclusive US Government use
on a long-term basis and operated on official business by or for a US
Government agency; for example, the Federal
[[Page 59]]
Aviation Administration (FAA), Department of the Interior, or Department
of Energy.
Note: The Government must hold liability responsibility for all
damages or injury associated with operation of the aircraft.
(2) Lease or contractual agreement to the Air Force for Air Force
Civil Air Patrol (CAP) liaison purposes and operated by an Air Force CAP
liaison officer on official Air Force business.
(3) CAP control for a specific mission directed by the Air Force.
(4) Coast Guard control for a specific mission directed by the Coast
Guard.
Note: For identification purposes, the aircraft will be marked with
a sticker near the port side door identifying it as a Coast Guard
Auxiliary aircraft. The pilot will always be in uniform and normally
have a copy of a Coast Guard Auxiliary Patrol Order. If the aircraft is
operating under ``verbal orders of the commander,'' the pilot can
provide the telephone number of the cognizant Coast Guard commander.
(5) Contractual agreement to any US, State, or local Government
agency in support of operations involving safety of life or property as
a result of a disaster.
(6) Government furnished property or bailment contract for use by a
contractor, provided the Federal, State, or local Government has
retained liability responsibilities.
(7) Civil aircraft transporting critically ill or injured
individuals or transplant organs to or from an Air Force installation.
(8) Historic aircraft being delivered for Air Force museum exhibits
under the provisions of AFI 84-103, Museum System. \2\
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\2\ See footnote 1 to Sec. 855.6.
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Sec. 855.7 Conditions for use of Air Force airfields.
The Air Force authorizes use of its airfields for a specific purpose
by a named individual or company. The authorization cannot be
transferred to a second or third party and does not extend to use for
other purposes. An approved landing permit does not obligate the Air
Force to provide supplies, equipment, or facilities other than the
landing, taxiing, and parking areas. The aircraft crew and passengers
are only authorized activities at the installation directly related to
the purpose for which use is granted. All users are expected to submit
their application (DD Forms 2400, 2401, and 2402) at least 30 days
before intended use and, except for use as a weather alternate, CRAF
alternate, or emergency landing site, must contact the appropriate
installation commander or a designated representative for final landing
approval at least 24 hours before arrival. Failure to comply with either
time limit may result in denied landing rights.
Sec. 855.8 Application procedures.
To allow time for processing, the application (DD Forms 2400, 2401,
and 2402) and a self-addressed, stamped envelope should be submitted at
least 30 days before the date of the first intended landing. The
verification required for each purpose of use must be included with the
application. The name of the user must be the same on all forms.
Original, hand scribed signatures, not facsimile elements, are required
on all forms. Landing Permit Application Instructions are at attachment
3 to this part. The user is responsible for reviewing this part and
accurately completing the forms before submitting them to the approving
authority.
Sec. 855.9 Permit renewal.
When a landing permit expires, DD Forms 2401 and 2400 must be
resubmitted for continued use of Air Force airfields.
Note: Corporations must resubmit the DD Form 2402 every five years.
Sec. 855.10 Purpose of use.
The purposes of use normally associated with civil aircraft
operations at Air Force airfields are listed in Table 1. Requests for
use for purposes other than those listed will be considered and may be
approved if warranted by unique circumstances. A separate DD Form 2401
is required for each purpose of use. (Users can have multiple DD Forms
2401 that are covered by a single DD Form 2400 and DD Form 2402.)
Sec. 855.11 Insurance requirements.
Applicants must provide proof of third-party liability insurance on
a DD Form 2400, with the amounts stated in
[[Page 60]]
US dollars. The policy number, effective date, and expiration date are
required. The statement ``until canceled'' may be used in lieu of a
specific expiration date. The geographic coverage must include the area
where the Air Force airfield of proposed use is located. If several
aircraft or aircraft types are included under the same policy, a
statement such as ``all aircraft owned,'' ``all aircraft owned and or
operated,'' ``all non-owned aircraft,'' or ``all aircraft operated,''
may be used in lieu of aircraft registration numbers. To meet the
insurance requirements, either split limit coverage for bodily injury
(individuals outside the aircraft), property damage, and passengers, or
a single limit coverage is required. The coverage will be at the expense
of the user with an insurance company acceptable to the Air Force.
Coverage must be current during the period the Air Force airfield will
be used. The liability required is computed on the basis of aircraft
maximum gross takeoff weight (MGTOW) and passenger or cargo
configuration. Minimum coverage will not be less than the amount
indicated in Table 2 to this part.
(a) Any insurance presented as a single limit of liability or a
combination of primary and excess coverage will be an amount equal to or
greater than the each accident minimums indicated in Table 2 to this
part for bodily injury (individuals outside the aircraft), property
damage, and passengers.
(b) The policy will specifically provide that:
(1) The insurer waives any right of subrogation it may have against
the US by reason of any payment made under the policy for injury, death,
or property damage that might arise, out of or in connection with the
insured's use of any Air Force airfield.
(2) The insurance afforded by the policy applies to the liability
assumed by the insured under DD Form 2402.
(3) If the insurer or the insured cancels or reduces the amount of
insurance afforded under the listed policy before the expiration date
indicated on DD Form 2400, the insurer will send written notice of
policy cancellation or coverage reduction to the Air Force approving
authority at least 30 days before the effective date of the cancellation
or reduction. The policy must state that any cancellation or reduction
will not be effective until at least 30 days after such notice is sent.
Sec. 855.12 Processing a permit application.
Upon receipt of an application (DD Forms 2400, 2401, and 2402) for
use of an Air Force airfield, the decision authority:
(a) Determines the availability of the airfield and its capability
to accommodate the purpose of use requested.
(b) Determines the validity of the request and ensures all entries
on DD Forms 2400, 2401, and 2402 are in conformance with this part.
(c) Approves DD Form 2401 (with conditions or limitations noted) by
completing all items in Section II--For Use by Approving Authority as
follows:
(1) Period of Use (Block 7): The ``From'' date will be either the
first day of approved use or the first day of insurance coverage. The
``From'' date cannot precede the first day of insurance coverage shown
on the DD Form 2400. The ``Thru'' date is determined by the insurance
expiration date and or the purpose of use. For example, the period of
use for participants in an Air Force open house will be determined by
both insurance coverage and open house dates. The permit would be issued
only for the duration of the open house but must not precede or exceed
the dates of insurance coverage. Many insurance policies terminate at
noon on the expiration date. Therefore, if the insurance expiration is
used to determine the permit expiration date, the landing permit will
expire one day before the insurance expiration date shown on the DD Form
2400. If the insurance expiration date either exceeds 2 years or is
indefinite (for example, ``until canceled''), the landing permit will
expire 2 years from the issue date or first day of coverage.
(2) Frequency of Use (Block 8) is normally ``as required'' but may
be more specific, such as ``one time.''
(3) Identification Number (Block 9): Installation commanders or a
designated representative assign a permit number comprised of the last
three letters of the installation's International
[[Page 61]]
Civil Aviation Organization identifier code, the last two digits of the
calendar year, a number sequentially assigned, and the letter suffix
that indicates the purpose of use (Table 1); for example, ADW 95-01C.
MAJCOMs, FOAs, DRUs, and USDAOs use a three position organization
abbreviation; such as AMC 95-02K.
(4) DD Form 2400 (Dated and Filed) (Block 11a): This block should
contain the date from block 1 (Date Issued) on the DD Form 2400 and the
identification of the unit or base where the form was approved; i.e., 30
March 1995, HQ USAF/XOOBC.
(5) DD Form 2402 (Dated and Filed) (Block 11b): This block should
contain the date from block 4 (Date Signed) on the DD Form 2402 and the
identification of the unit or base where the form was approved; i.e., 30
March 1995, HQ USAF/XOOBC.
(6) SA-ALC/SFR, 1014 Andrews Road, Building 1621, Kelly AFB TX
78241-5603 publishes the list of companies authorized to purchase Air
Force fuel on credit. Block 12 should be marked ``yes'' only if the
permit holder's name appears on the SA-ALC list.
(7) Landing Fees, Block 13, should be marked as indicated in Table 1
to this part.
(8) Permit Amendments: New entries or revisions to an approved DD
Form 2401 may be made only by or with the consent of the approving
authority.
(d) Provides the applicant with written disapproval if:
(1) Use will interfere with operations, security, or safety.
(2) Adequate civil facilities are collocated.
(3) Purpose of use is not official Government business and adequate
civil facilities are available in the proximity of the requested Air
Force airfield.
(4) Use will constitute competition with civil airports or air
carriers.
(5) Applicant has not fully complied with this part.
(e) Distributes the approved DD Form 2401 before the first intended
landing, when possible, as follows:
(1) Retains original.
(2) Returns two copies to the user.
(3) Provides a copy to HQ USAF/XOOBC.
Note: HQ USAF/XOOBC will provide a computer report of current
landing permits to the MAJCOMs, FOAs, DRUs, and installations.
Sec. 855.13 Civil fly-ins.
(a) Civil aircraft operators may be invited to a specified Air Force
airfield for:
(1) A base open house to perform or provide a static display.
(2) A flying safety seminar.
(b) Civil fly-in procedures:
(1) The installation commander or a designated representative:
(i) Requests approval from the MAJCOM, FOA, or DRU with an
information copy to HQ USAF/XOOBC/XOOO and SAF/PAC.
(ii) Ensures that DD Form 2402 is completed by each user.
Note: DD Forms 2400 and 2401 are not required for fly-in
participants if flying activity consists of a single landing and takeoff
with no spectators other than flightline or other personnel required to
support the aircraft operations.
(2) The MAJCOM, FOA, or DRU ensures HQ USAF/XOOBC/XOOO and SAF/PAC
are advised of the approval or disapproval for the fly-in.
(3) Aerial performance by civil aircraft at an Air Force open house
requires MAJCOM or FOA approval and an approved landing permit as
specified in AFI 35-201, Community Relations \3\. Regardless of the
aircraft's historic military significance, DD Forms 2400, 2401, and 2402
must be submitted and approved before the performance. The permit can be
approved at MAJCOM, FOA, DRU, or installation level. Use will be
authorized only for the period of the event. Fly-in procedures do not
apply to aircraft transporting passengers (revenue or non-revenue) for
the purpose of attending the open house or demonstration flights
associated with marketing a product.
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\3\ See footnote 1 to Sec. 855.6.
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Sec. 855.14 Unauthorized landings.
(a) Unauthorized landing procedures. The installation commander or a
designated representative will identify an unauthorized landing as
either an emergency landing, an inadvertent landing, or an intentional
landing. An
[[Page 62]]
unauthorized landing may be designated as inadvertent or intentional
whether or not the operator has knowledge of the provisions of this
part, and whether or not the operator filed a flight plan identifying
the installation as a destination. Aircraft must depart the installation
as soon as practical. On all unauthorized landings, the installation
commander or a designated representative:
(1) Informs the operator of subpart B procedures and the requirement
for notifying the Federal Aviation Administration (FAA) as specified in
section 6 of the FAA Airman's Information Manual.
(2) Notifies the Federal Aviation Flight Standards District Office
(FSDO) by telephone or telefax, followed by written notification using
FAA Form 8020-9, 8020-11, or 8020-17, as appropriate. A copy of the
written notification must be provided to HQ USAF/XOOBC.
(3) Ensures the operator completes a DD Form 2402, and collects
applicable charges. (In some instances, it may be necessary to arrange
to bill the user for the appropriate charges.) DD Form 2402 need not be
completed for commercial carriers if it is known that the form is
already on file at HQ USAF/XOOBC.
(4) In a foreign country, notifies the local US Defense Attache
Office (USDAO) by telephone or telefax and, where applicable, the
appropriate USDAO in the country of aircraft registry, followed by
written notification with an information copy to HQ USAF/XOOBC and the
civil aviation authority of the country or countries concerned.
(b) Emergency landings. Any aircraft operator who experiences an
inflight emergency may land at any Air Force airfield without prior
authorization (approved DD Form 2401 and 24 hours prior notice). An
inflight emergency is defined as a situation that makes continued flight
hazardous.
(1) The Air Force will use any method or means to clear an aircraft
or wreckage from the runway to preclude interference with essential
military operations after coordinating with the FSDO and National
Transportation Safety Board. Removal efforts will minimize damage to the
aircraft or wreckage; however, military or other operational factors may
be overriding.
(2) An operator making an emergency landing:
(i) Is not charged a landing fee.
(ii) Pays all costs for labor, material, parts, use of equipment and
tools, and so forth, to include, but not limited to:
(A) Spreading foam on the runway.
(B) Damage to runway, lighting, and navigation aids.
(C) Rescue, crash, and fire control services.
(D) Movement and storage of aircraft.
(E) Performance of minor maintenance.
(F) Fuel or oil (AFM 67-1, vol 1, part three, chapter 1, Air Force
Stock Fund and DPSC Assigned Item Procedures \4\).
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\4\ See footnote 1 to Sec. 855.6.
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(c) Inadvertent unauthorized landings. (1) The installation
commander or a designated representative may determine a landing to be
inadvertent if the aircraft operator:
(i) Landed due to flight disorientation.
(ii) Mistook the Air Force airfield for a civil airport.
(2) Normal landing fees must be charged and an unauthorized landing
fee may be assessed to compensate the Government for the added time,
effort, and risk involved in the inadvertent landing. Only the
unauthorized landing fee may be waived by the installation commander or
a designated representative if, after interviewing the pilot-in-command
and appropriate Government personnel, it is determined that flying
safety was not significantly impaired. The pilot-in-command may appeal
the imposition of an unauthorized landing fee for an inadvertent landing
to the MAJCOM, FOA, or DRU whose decision will be final. A subsequent
inadvertent landing will be processed as an intentional unauthorized
landing.
(d) Intentional unauthorized landings. (1) The installation
commander may categorize an unauthorized landing as intentional when
there is unequivocal evidence that the pilot deliberately:
(i) Landed without an approved DD Form 2401 on board the aircraft.
[[Page 63]]
(ii) Landed for a purpose not approved on the DD Form 2401.
(iii) Operated an aircraft not of a model or registration number on
the approved DD Form 2401.
(iv) Did not request or obtain the required final approval from the
installation commander or a designated representative at least 24 hours
before aircraft arrival.
(v) Did not obtain landing clearance from the air traffic control
tower.
(vi) Landed with an expired DD Form 2401.
(vii) Obtained landing authorization through fraudulent methods, or
(viii) Landed after having been denied a request to land from any
Air Force authority, including the control tower.
(2) Normal landing fees and an unauthorized landing fee must be
charged. Intentional unauthorized landings increase reporting,
processing, and staffing costs; therefore, the unauthorized landing fee
for paragraph (d)(1)(i) through (d)(1)(vi) of this section will be
increased by 100 percent. The unauthorized landing fee will be increased
200 percent for paragraph (d)(1)(vii) and (d)(1)(viii) of this section.
(3) Intentional unauthorized landings may be prosecuted as a
criminal trespass, especially if a debarment letter has been issued.
Repeated intentional unauthorized landings prejudice the user's FAA
operating authority and jeopardize future use of Air Force airfields.
Sec. 855.15 Detaining an aircraft.
(a) An installation commander in the United States, its territories,
or its possessions may choose to detain an aircraft for an intentional
unauthorized landing until:
(1) The unauthorized landing has been reported to the FAA, HQ USAF/
XOOBC, and the appropriate US Attorney.
(2) All applicable charges have been paid.
(b) If the installation commander wishes to release the aircraft
before the investigation is completed, he or she must obtain bond,
promissory note, or other security for payment of the highest charge
that may be assessed.
(c) The pilot and passengers will not be detained longer than is
necessary for identification, although they may be permitted to remain
in a lounge or other waiting area on the base at their request for such
period as the installation commander may determine (normally not to
exceed close of business hours at the home office of the entity owning
the aircraft, if the operator does not own the aircraft). No person,
solely due to an intentional unauthorized landing, will be detained
involuntarily after identification is complete without coordination from
the appropriate US Attorney, the MAJCOM, FOA, or DRU, and HQ USAF/XOOBC.
Sec. 855.16 Parking and storage.
The time that an aircraft spends on an installation is at the
discretion of the installation commander or a designated representative
but should be linked to the purpose of use authorized. Parking and
storage may be permitted on a nonexclusive, temporary, or intermittent
basis, when compatible with military requirements. At those locations
where there are Air Force aero clubs, parking and storage privileges may
be permitted in the area designated for aero club use without regard for
the purpose of use authorized, if consistent with aero club policies.
Any such permission may be revoked upon notice, based on military needs
and the installation commander's discretion.
Sec. 855.17 Fees for landing, parking, and storage.
(a) Landing, parking, and storage fees (Tables 3 and 4 to this part)
are determined by aircraft maximum gross takeoff weight (MGTOW). All
fees are normally due and collectible at the time of use of the Air
Force airfield. DD Form 1131, Cash Collection Voucher, is used to
deposit the fees with the base accounting and finance officer. In some
instances, it may be necessary to bill the user for charges incurred.
(b) Landing fees are not charged when the aircraft is operating in
support of official Government business or for any purpose, the cost of
which is subject to reimbursement by the US Government. Parking and
Storage Fees (Table 4 to this part) are charged if an
[[Page 64]]
aircraft must remain beyond the period necessary to conduct official
Government business and for all non-official Government business
operations.
Sec. 855.18 Aviation fuel and oil purchases.
When a user qualifies under the provisions of AFM 67-1, vol. 1, part
three, chapter 1, Air Force Stock Fund and DPSC Assigned Item
Procedures, \5\ purchase of Air Force fuel and oil may be made on a cash
or credit basis. An application for credit authority can be filed by
submitting an Authorized Credit Letter to SA-ALC/SFRL, 1014 Andrews
Road, Building 1621, Kelly AFB TX 78241-5603.
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\5\ See footnote 1 to Sec. 855.6.
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Sec. 855.19 Supply and service charges.
Supplies and services furnished to a user will be charged for as
prescribed in AFM 67-1, volume 1, part one, chapter 10, section N, Basic
Air Force Supply Procedures, and AFR 177-102, paragraph 28.24,
Commercial Transactions at Base Level. \6\ A personal check with
appropriate identification, cashier's check, money order, or cash are
acceptable means of payment. Charges for handling foreign military sales
cargo are prescribed in AFR 170-3, Financial Management and Accounting
for Security Assistance and International Programs. \7\
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\6\ See footnote 1 to Sec. 855.6.
\7\ See footnote 1 to Sec. 855.6.
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Subpart C_Agreements for Civil Aircraft Use of Air Force Airfields
Sec. 855.20 Joint-use agreements.
An agreement between the Air Force and a local Government agency is
required before a community can establish a public airport on an Air
Force airfield.
(a) Joint use of an Air Force airfield will be considered only if
there will be no cost to the Air Force and no compromise of mission
capability, security, readiness, safety, or quality of life. Further,
only proposals submitted by authorized representatives of local
Government agencies eligible to sponsor a public airport will be given
the comprehensive evaluation required to conclude a joint use agreement.
All reviewing levels will consider and evaluate such requests on an
individual basis.
(b) Generally, the Air Force is willing to consider joint use at an
airfield if it does not have pilot training, nuclear storage, or a
primary mission that requires a high level of security. Civil operations
must begin within 5 years of the effective date of an agreement.
Operational considerations will be based on the premise that military
aircraft will receive priority handling (except in emergencies), if
traffic must be adjusted or resequenced. The Air Force normally will not
consider personnel increases solely to support civil operations but, if
accommodated, all costs must be fully reimbursed by the joint-use
sponsor. The Air Force will not provide personnel to install, operate,
maintain, alter, or relocate navigation equipment or aircraft arresting
systems for the sole use of civil aviation. Changes in equipment or
systems to support the civil operations must be funded by the joint-use
sponsor. The Air Force must approve siting, design, and construction of
the civil facilities.
Sec. 855.21 Procedures for sponsor.
To initiate consideration for joint use of an Air Force airfield, a
formal proposal must be submitted to the installation commander by a
local Government agency eligible to sponsor a public airport. The
proposal must include:
(a) Type of operation.
(b) Type and number of aircraft to be located on or operating at the
airfield.
(c) An estimate of the number of annual operations for the first 5
years.
Sec. 855.22 Air Force procedures.
(a) Upon receipt of a joint-use proposal, the installation
commander, without precommitment or comment, will send the documents to
the Air Force Representative (AFREP) at the Federal Aviation
Administration (FAA) Regional Office within the geographical area where
the installation is located. AFI 13-201, Air Force Airspace Management,
\8\ lists the AFREPs and
[[Page 65]]
their addresses. The installation commander must provide an information
copy of the proposal to HQ USAF/XOOBC, 1480 Air Force Pentagon,
Washington DC 20330-1480.
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\8\ See footnote 1 to Sec. 855.6.
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(b) The AFREP provides comments to the installation commander on
airspace, air traffic control, and other related areas, and informs
local FAA personnel of the proposal for joint use.
(c) The installation, the numbered Air Force, and the major command
(MAJCOM) will then evaluate the proposal. The MAJCOM will send the
comments and recommendations from all reviewing officials to HQ USAF/
XOOBC.
(d) Factors considered in evaluating joint use include, but are not
limited to:
(1) Impact on current and programmed military activities at the
installation.
(2) Compatibility of proposed civil aviation operations with present
and planned military operations.
(3) Compatibility of communications systems.
(4) Instrument capability of crew and aircraft.
(5) Runway and taxiway configuration. (Installations with single
runways normally will not be considered for joint use.)
(6) Security. The possibility for sabotage, terrorism, and vandalism
increases with joint use; therefore, joint use will not be considered:
(i) If military and civil aircraft would be collocated in hangars or
on ramps.
(ii) If access to the civil aviation facilities would require
routine transit through the base.
(7) Fire, crash, and rescue requirements.
(8) Availability of public airports to accommodate the current and
future air transportation needs of the community through construction or
expansion.
(9) Availability of land for civil airport complex.
Note: The majority of land required for a terminal and other support
facilities must be located outside the installation perimeter or at a
site that will allow maximum separation of military and civil
activities. If the community does not already own the needed land, it
must be acquired at no expense to the Air Force. The Air Force may make
real property that is not presently needed, but not excess, available by
lease under 10 U.S.C 2667. An application for lease of Air Force real
property must be processed through the chain of command to the Air Force
Real Estate Agency, 172 Luke Avenue, Suite 104, Building 5683, Bolling
AFB DC 20332-5113, as prescribed in AFI 32-9003, Granting Temporary Use
of Air Force Real Property \9\. All real property outleases require
payment of fair market consideration and normally are processed through
the Corps of Engineers. The General Services Administration must be
contacted regarding availability of excess or surplus Federal real
property and an application submitted through FAA for an airport use
public benefit transfer under 49 U.S.C. Sec. 47151-47153.
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\9\ See footnote 1 to Sec. 855.6.
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(10) Sponsor's resources to pay a proportionate share of costs for
runway operation and maintenance and other jointly used facilities or
otherwise provide compensation that is of direct benefit to the
Government.
(e) When the Air Force determines that joint use may be compatible
with its defense mission, the environmental impact analysis process must
be completed before a final decision can be made. The Air Force will act
as lead agency for the preparation of the environmental analysis (32 CFR
part 989, Environmental Impact Analysis Process). The local Government
agency representatives, working in coordination with Air Force personnel
at the installation and other concerned local or Federal officials, must
identify the proposed action, develop conceptual alternatives, and
provide planning, socioeconomic, and environmental information as
specified by the appropriate MAJCOM and HQ USAF/CEVP. The information
must be complete and accurate in order to serve as a basis for the
preparation of the Air Force environmental documents. All costs
associated with the environmental studies required to complete the
environmental impact analysis process must be paid by the joint use
sponsor. Information on environmental analysis requirements is available
from HQ USAF/CEVP, 1260 Air Force Pentagon, Washington DC 20330-1260.
(f) HQ USAF/XOOBC can begin negotiating a joint-use agreement after
the environmental impact analysis process is completed. The agreement
must be
[[Page 66]]
concluded on behalf of the Air Force by SAF/MII as the approval
authority for use of Air Force real property for periods exceeding 5
years. The joint-use agreement will state the extent to which the
provisions of subpart B of this part, Civil Aircraft Landing Permits,
apply to civil aircraft operations.
(1) Joint-use agreements are tailored to accommodate the needs of
the community and minimize the impact on the defense mission. Although
each agreement is unique, attachment 4 to this part provides basic terms
that are frequently included in such agreements.
(2) Agreements for joint use at Air Force airfields on foreign soil
are subject to the requirements of AFI 51-701, Negotiating, Concluding,
Reporting, and Maintaining International Agreements \10\.
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\10\ See footnote 1 to Sec. 855.6.
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(g) HQ USAF/XOOBC and SAF/MII approval is required to amend existing
joint use agreements. The evaluation and decision processes followed in
concluding an initial joint-use proposal must be used to amend existing
joint-use agreements.
Sec. 855.23 Other agreements.
(a) Temporary use of Air Force runways occasionally is needed for
extended periods when a local civil airport is unavailable or to
accommodate special events or projects. Such use requires agreement
between the Air Force and the local airport authority or other
equivalent responsible entity.
(b) The local proponent and Air Force personnel should draft and
submit an agreement to the MAJCOM Director for Operations, or equivalent
level, for review and comment. The agreement must address all
responsibilities for handling aircraft, cargo, and passengers, and hold
the Air Force harmless of all liabilities. The agreement will not exceed
3 years. Although each agreement will be unique, attachment 5 of this
part provides one example. The draft agreement, with all comments and
recommendations, must be sent to HQ USAF/XOOBC for final approval.
Sec. Table 1 to Part 855--Purpose of Use/Verification/Approval
Authority/Fees
----------------------------------------------------------------------------------------------------------------
Approval *
Purpose of use Verification authority Fees
----------------------------------------------------------------------------------------------------------------
Contractor or subcontractor (A). A US or Current Government contract 1 No.
foreign contractor or subcontractor, numbers; the Air Force airfields
operating corporate, personal, or leased required for each contract; a
aircraft in conjunction with fulfilling brief description of the work to
the terms of a government contract. be performed; and the name,
telephone number, and address of
the government contracting
officer must be provided on the
DD Form 2401 or a continuation
sheet.
Note: Potential contractors may not land
at Air Force airfields to pursue or
present an unsolicited proposal for
procurement of government business. One
time authorization can be provided when
an authorized US Government
representative verifies that the
potential contractor has been
specifically invited for a sales
presentation or to discuss their
product.
Demonstration (B). Aircraft, aircraft Demonstration or display must be 1 No.
with components installed, or aircraft a contractual requirement or
transporting components or equipment presented at the request of an
operating to demonstrate or display a authorized US Government
product to US Government representatives representative. The name,
who have procurement authority or address, and telephone number of
certification responsibilities. the requesting government
(Authority granted under this paragraph representative or contracting
does not include aerobatic officer and contract number must
demonstrations.). be included on the DD Form 2401.
Aerial performance (BB). Aircraft Approval of MAJCOM, FOA, or DRU 1 No.
performing aerobatics and or fly-bys at and FAA as specified in AFI 35-
Air Force airfields. 201, Community Relations.
[[Page 67]]
Active duty US military and other US Social security number in block 1 1 No.
uniformed service members with military on DD Form 2401.
identification cards (includes members
of the US Public Health Service, Coast
Guard, and National Oceanic and
Atmospheric Administration) (C). Service
members, operating their own aircraft,
leased aircraft, or other available
aircraft for official duty travel
(temporary duty, permanent change of
station, etc.) or for private, non
revenue flights.
Reserve Forces (D). Members of the US Endorsement from member's 1 No.
Reserve Forces (including Reserve commander that validates
Officer Training Corps and National military status and requirement
Guard) operating their own aircraft, for use of Air Force airfields
leased aircraft, or other available listed on the DD Form 2401. The
aircraft to fulfill their official duty endorsement may be included on
commitment at the installation where the DD Form 2401 or provided
their unit is assigned and other separately by letter. When
installations for temporary duty appropriate, travel orders must
assignments. be on board the aircraft.
Dependents of active duty US military Identification card (DD Form 1 No.
personnel, other US uniformed service 1173) number or social security
personnel, (CC), or US Reserve Forces number, identification card
personnel (DD). Dependents operating expiration date, and a letter of
their own aircraft, leased aircraft, or endorsement from sponsor.
other available aircraft in conjunction
with activities related to entitlements
as a dependent of a uniformed service
member.
US Government civil service employees Supervisor's endorsement in block 1 No.
(E). Civilian employees of the US 4 of the DD Form 2401.
Government operating their own aircraft, Individual must have a copy of
leased aircraft, or other available current travel orders or other
aircraft for official Government official travel certification
business travel. available for verification if
requested by an airfield manager
or a designated representative.
Retired US military members and other Copy of retirement orders on file 1 No.
retired US uniformed service members with the approving authority.
with a military identification card
authorizing use of the commissary, base
exchange, and or military medical
facilities (G). Retired Service members,
operating their own aircraft, leased
aircraft, or other available aircraft in
conjunction with activities related to
retirement entitlements authorized by
law or regulation.
Dependents of retired US military Identification card (DD Form 1 No.
personnel and other retired US uniformed 1173) number or social security
service personnel (GG). Dependents of number, identification card
retired Service members operating their expiration date, sponsor's
own aircraft, leased aircraft, or other retirement orders, and letter of
available aircraft in conjunction with endorsement from sponsor.
activities related to entitlements
authorized by law or regulation as a
dependent of a retired Service member.
Civil Air Patrol (CAP) (H). CAP members Endorsement of the application by 1 No.
operating personal or CAP aircraft for HQ CAP-USAF/XOO, 105 South
official CAP activities. Hansell Street, Maxwell AFB AL
36112-6332.
Aero club members (I). Individuals Membership validation by the aero 6 No.
operating their own aircraft at the Air club manager on the DD Form 2401.
Force airfield where they hold active
aero club membership.
Weather alternate (J). An Air Force List of the destination civil 1 Yes
airfield identified on a scheduled air airports for which the alternate
carrier's flight plan as an alternate will be used and certification
airport as prescribed by Federal of scheduled air carrier status,
Aviation Regulations (FARs) or such as the US Department of
equivalent foreign Government Transportation Fitness
regulations. The airfield can only be Certificate.
used if weather conditions develop while
the aircraft is in flight that preclude
landing at the original destination.
Aircraft may not be dispatched from the
point of departure to an Air Force
airfield designated as an approved
weather alternate.
[[Page 68]]
Note: Scheduled air carriers are defined
at Attachment 1. Only those airfields
identified on the list at Attachment 2
are available for use as weather
alternates. Airfields cannot be used as
alternates for non-scheduled operations.
Passengers and cargo may not be
offloaded, except with the approval of
the installation commander when there is
no other reasonable alternative.
Boarding new passengers and or loading
new cargo is not authorized.
Air Mobility Command (AMC) contractor International flights must have 3 No.
charter (K). An air carrier transporting an AMC Form 8, Civil Aircraft
passengers or cargo under the terms of Certificate, on board the
an AMC contract. (Landing permits for aircraft. Domestic flights must
this purpose are processed by HQ AMC/ have either a Certificate of
DOKA, 402 Scott Drive, Unit 3A1, Scott QUICK-TRANS (Navy), a
AFB IL 62225-5302.). Certificate of Courier Service
Operations (AMC), or a
Certificate of Intra-Alaska
Operations (AMC) on board the
aircraft.
CRAF alternate (KK). An Air Force Participant in the CRAF program 2 Yes.
airfield used as an alternate airport by and authorized by contract.
air carriers that have contracted to
provide aircraft for the Civil Reserve
Air Fleet (CRAF).
US Government contract or charter The chartering agency and name, 1 No.
operator (L). An air carrier address, and telephone number of
transporting passengers or cargo for a the Government official
US Government department or agency other procuring the transportation
than US military departments. must be listed in block 4 of the
DD Form 2401. An official
government document, such as an
SF 1169, US government
Transportation Request, must be
on board the aircraft to
substantiate that the flight is
operating for a US Government
department or agency.
Contractor or subcontractor charter (M). The contractor or subcontractor 1 No.
Aircraft chartered by a US or foreign must provide written validation
contractor or subcontractor to transport to the decision authority that
personnel or cargo in support of a the charter operator will be
current government contract. operating on their behalf in
fulfilling the terms of a
government contract, to include
current government contract
numbers and contract titles or
brief description of the work to
be performed; the Air Force
airfields required for use, and
the name, telephone number, and
address of the government
contracting officer.
DOD charter (N). Aircraft transporting Military Air Transportation 1 No.
passengers or cargo within the United Agreement (MATA) approved by the
States for the military departments to Military Transportation
accommodate transportation requirements Management Command (MTMC) (this
that do not exceed 90 days. includes survey and approval by
HQ AMC/DOB, 402 Scott Drive,
Suite 132, Scott AFB IL 62225-
5363). An SF 1169 or SF 1103, US
Government Bill of Lading, must
be on board the aircraft to
validate the operation is for
the military departments as
specified in AFJI 24-211,
Defense Traffic Management
Regulation. (Passenger charters
arranged by the MTMC are
assigned a commercial air
movement (CAM) or civil air
freight movement number each
time a trip is awarded.
Installations will normally be
notified by message at least 24
hours before a pending CAM.)
Media (F). Aircraft transporting Except for White House Press 2 Note 1.
representatives of the media for the Corps charters, concurrence of
purpose of gathering information about a the installation commander, base
US Government operation or event. operations officer, and public
(Except for the White House Press Corps, affairs officer.
use will be considered on a case-by-case
basis. For example, authorization is
warranted if other forms of
transportation preclude meeting a
production deadline or such use is in
the best interest of the US Government.
DD Forms 2400 and 2402 should be on file
with HQ USAF/XOOBC to ensure prompt
telephone approval for validated
requests.).
Commercial aircraft certification testing Application must cite the 2 Yes.
required by the FARs that only involves applicable FAR, describe the
use of normal flight facilities (P). test, and include the name and
telephone number of the FAA
certification officer.
[[Page 69]]
Commercial development testing at Air Statement of Capability Number or 1 Yes.
Force flight test facilities (Q) as Cooperative Research and
described in AFI 99-101, Development Development Agreement Number,
Test & Evaluation. and name and telephone number of
the Air Force official who
approved support of the test
project.
Commercial charter operations (R). Unavailability of: 5 Yes.
Aircraft transporting passengers or a. a suitable civil airport,.....
cargo for hire for other than US b. aircraft that could operate
military departments. into the local civil airport, or.
c. other modes of transportation
that would reasonably satisfy
the transportation requirement..
Note: Federal Aviation Administration
(FAA) certification is required for
airfields used by carriers certified
under FAR, part 121 (passenger aircraft
that exceed 30 passenger seats). HQ USAF/
XOOBC will request that FAA issue an
airport operating certificate under FAR,
part 139, as necessary. Exceptions to
the requirement for certification are
Air Force airfields used for:
a. Emergencies.
b. Weather alternates.
c. Air taxi operations under FAR, part
135. Note: This is currently under
review. Anticipate a change that will
eliminate the air taxi exemption.
d. Air carrier operations in support of
contract flights exclusively for the
US military departments.
Commercial air crew training flights (S). Memorandum of Understanding 2 Yes.
Aircraft operated by commercial air approved by HQ USAF/XOOBC that
carrier crews for the purpose of establishes conditions and
maintaining required proficiency. responsibilities in conducting
the training flights.
Private, non revenue producing flights The verification will vary with 4 Note 2.
(T). Aircraft operating for a variety of the purpose for use. For
reasons, such as transporting example, when use is requested
individuals to meet with Government in conjunction with events such
representatives or participate in as meetings or ceremonies, the
Government sponsored ceremonies and applicant must provide the name
similar events. At specified locations, and telephone number of the
the purpose of use may be to gain access Government project officer.
to collocated private sector facilities
as authorized by lease, agreement, or
contract.
Provisional airfield (U). An Air Force Memorandum of Understanding, 2 Yes.
airfield used by civil aircraft when the Letter of Agreement, or lease
local civil airport is temporarily that establishes
unavailable, or by a commercial air responsibilities and conditions
carrier operating at a specific remote for use.
location to provide commercial air
transportation for local military
members under the provisions of a lease
or other legal instrument.
Foreign government charter (V). Aircraft Application must include name and 2 Note 3.
chartered by a foreign government to telephone number of the foreign
transport passengers or cargo. government representative
responsible for handling the
charter arrangements.
Flights transporting foreign military FMS case number, requisition 2 Note 3.
sales (FMS) material (W). (Hazardous, numbers, delivery term code and
oversized, or classified cargo only.) information as specified below:
a. Description of cargo
(nomenclature and or proper
shipping name). The description
of hazardous cargo must include
the Department of Transportation
exemption number, hazard class,
number of pieces, and net
explosive weight.
b. Name, address, and telephone
number of individual at Air
Force base that is coordinating
cargo handling and or other
required terminal services.
[[Page 70]]
c. Cargo to be loaded or off
loaded must be equipped with
sufficient cargo pallets and or
tiedown materials to facilitate
handling. Compatible 463L
pallets and nets will be
exchanged on a one-for-one basis
for serviceable units.
Nonstandard pallets and nets
cannot be exchanged; however,
they will be used to buildup
cargo loads after arrival of the
aircraft. Aircraft arriving
without sufficient cargo loading
and tiedown devices must be
floor loaded and the aircraft
crew will be responsible for
purchasing the necessary ropes,
chains, and so forth.
d. US Government FMS case
management agency to which costs
for services rendered are
chargeable.
e. Name, address, and telephone
number of freight forwarder.
f. Name, address, and telephone
number of shipper.
Certified flight record attempts (X). Documentation that will validate 2 Yes.
Aircraft operating to establish a new National Aeronautic Association
aviation record. or Federation Aeronautique
Internationale sanction of the
record attempt.
Political candidates (Y). (For security The Secret Service must confirm 2 Yes.
reasons only) Aircraft either owned or that use has been requested in
chartered explicitly for a Presidential support of its security
or Vice Presidential candidate, responsibilities.
including not more than one accompanying
overflow aircraft for the candidate's
staff and press corps. Candidate must be
a Presidential or Vice Presidential
candidate who is being furnished
protection by the US Secret Service.
Aircraft clearance is predicated on the
Presidential or Vice Presidential
candidate being aboard one of the
aircraft (either on arrival or
departure). Normal landing fees will be
charged. To avoid conflict with US
statutes and Air Force operational
requirements, and to accommodate
expeditious handling of aircraft and
passengers, the installation commander
will:
a. Provide minimum official welcoming
party.
b. Not provide special facilities.
c. Not permit political rallies or
speeches on the installation.
d. Not provide official transportation
to unauthorized personnel, such as the
press or local populace.
Aircraft either owned or personally Use by other than the President 2 No.
chartered for transportation of the or Vice President must be for
President, Vice President, a past official government business.
President of the United States, the head All requests will be coordinated
of any US Federal department or agency, with the Office of Legislative
or a member of the Congress (Z). Liaison (SAF/LL) as prescribed
in AFI 90-401, Air Force
Relations with Congress.
----------------------------------------------------------------------------------------------------------------
* Approving Authority:
1 = Can be approved at all levels.
2 = HQ USAF/XOOBC.
3 = HQ AMC/DOKA.
4 = Except as specifically delegated in paragraphs 2.4.2 and 2.4.2.3, must be approved by HQ USAF/XOOBC.
5 = Except as specifically delegated in paragraph 2.4.2.1, must be approved by HQ USAF/XOOBC.
6 = Policy concerning private aircraft use of aero club facilities varies from base to base, primarily due to
space limitations and military mission requirements. Therefore, applications for use of aero club facilities
must be processed at base level.
Note 1: Landing fees are charged for White House Press Corps flights. Landing fees are not charged if the Air
Force has invited media coverage of specific events.
Note 2: Landing fees are charged if flight is not operating in support of official Government business.
Note 3: Landing fees are charged unless US Government charters have reciprocal privileges in the foreign
country.
Sec. Table 2 to Part 855--Aircraft Liability Coverage Requirements
----------------------------------------------------------------------------------------------------------------
Aircraft maximum gross takeoff Bodily Property
weight (MGTOW) Coverage for injury damage Passenger
----------------------------------------------------------------------------------------------------------------
12,500 Pounds and Under............. Each Person............. $100,000 ........... $100,000.
Each Accident........... 300,000 100,000 100,000 multiplied by
the number of
passenger seats.
More than 12,500 Pounds............. Each Person............. 100,000 ........... 100,000.
[[Page 71]]
Each Accident........... 1,000,000 1,000,000 100,000 multiplied by
75% multiplied by the
number of passenger
seats.
----------------------------------------------------------------------------------------------------------------
Sec. Table 3 to Part 855--Landing Fees
----------------------------------------------------------------------------------------------------------------
United
States,
Aircraft Maximum Gross Normal fee Unauthorized Intentional fee Minimum Territories, Overseas
Takeoff Weight (MGTOW) fee fee and
Possessions
----------------------------------------------------------------------------------------------------------------
$1.50 per 1,000 ............ ............... $20.00 X
lbs MGTOW or
fraction
thereof.
$1.70 per 1,000 ............ ............... 25.00 ............ X
lbs MGTOW or
fraction
thereof.
Up to and including 12,500 ............... $100.00 ............... ......... X X
lbs.
12,501 to 40,000 lbs......... ............... 300.00 ............... ......... X X
Over 40,000 lbs.............. ............... 600.00 ............... ......... X X
............... ............ Increase ......... X X
unauthorized
fee by 100% or
200%.
----------------------------------------------------------------------------------------------------------------
Sec. Table 4 to Part 855--Parking and Storage Fees
----------------------------------------------------------------------------------------------------------------
Fee per aircraft for each 24-hour Minimum
period or less fee Charge begins Ramp Hangar
----------------------------------------------------------------------------------------------------------------
$1.00 per 100,000 lbs MGTOW or $20.00 6 hours after landing................ X ............
fraction thereof.
$2.00 per 100,000 lbs MGTOW or 20.00 Immediately.......................... ............. X
fraction thereof.
----------------------------------------------------------------------------------------------------------------
Sec. Attachment 1 to Part 855--Glossary of References, Abbreviations,
Acronyms, and Terms
Section A--References
AFPD 10-10, Civil Aircraft Use of United States Air Force Airfields
AFI 10-1001, Civil Aircraft Landing Permits
AFI 13-201, Air Force Airspace Management
AFI 32-7061(32 CFR part 989), Environmental Impact Analysis Process
AFI 32-9003, Granting Temporary Use of Air Force Real Property
AFI 34-117, Air Force Aero Club Program
AFI 35-201, Community Relations
AFI 51-701, Negotiating, Concluding, Reporting, and Maintaining
International Agreements
AFI 84-103, Museum System
AFI 90-401, Air Force Relations with Congress
AFI 99-101, Development Test and Evaluation
AFJI 24-211, Defense Traffic Management Regulation
AFM
67-1, vol 1, part 1, Basic Air Force Supply Procedures
AFM 67-1, vol 1, part 3, Air Force Stock Fund and DPSC Assigned Item
Procedures
AFMAN 3-132, Air Force Aero Club Operations
AFR 170-3, Financial Management and Accounting for Security Assistance
and International Programs
AFR 177-102, Commercial Transactions at Base Level
FAR, part 121, Certification and Operation: Domestic, Flag, and
Supplemental Air Carriers and Commercial Operations of Large
Aircraft
FAR, part 135, Air Taxi Operators and Commercial Operators of Small
Aircraft
FAR, part 139, Certification and Operations: Land Airports Serving
Certain Air Carriers
Section B--Abbreviations and Acronyms
------------------------------------------------------------------------
Abbreviations and acronyms Definitions
------------------------------------------------------------------------
AFI Air Force Instruction.
AFJI Air Force Joint Instruction.
AFM Air Force Manual.
AFMAN Air Force Manual.
AFPD Air Force Policy Directive.
AFR Air Force Regulation.
AFREP Air Force Representative.
AMC Air Mobility Command.
AOG Air Operations Group.
CAM Commercial Air Movement.
CAP Civil Air Patrol.
CRAF Civil Reserve Air Fleet.
DPSC Defense Personnel Support Center.
[[Page 72]]
DRU Direct Reporting Unit.
FAA Federal Aviation Administration.
FAR Federal Aviation Regulation.
FMS Foreign Military Sales.
FOA Field Operating Agency.
FSDO Flight Standards District Office.
HQ AMC/DOKA Headquarters Air Mobility
Command, Contract Airlift,
Directorate of Operations and
Transportation.
HQ USAF/CEVP Headquarters United States Air
Force, Environmental Planning
Division, Directorate of
Environment.
HQ USAF/XOOBC Headquarters United States Air
Force, Civil Aviation, Bases and
Units Division, Directorate of
Operations.
HQ USAF/XOOO Headquarters United States Air
Force, Operations Group,
Directorate of Operations.
MAJCOM Major Command.
MATA Military Air Transportation
Agreement.
MGTOW Maximum Gross Takeoff Weight.
MTMC Military Traffic Management
Command.
SAF/LL Secretary of the Air Force,
Office of Legislative Liaison.
SAF/MII Secretary of the Air Force,
Deputy Assistant Secretary of
the Air Force (Installations).
SAF/PAC Secretary of the Air Force,
Office of Public Affairs,
Directorate for Community
Relations.
US United States.
USDAO United States Defense Attache
Office.
------------------------------------------------------------------------
Section C--Terms
Aircraft. Any contrivance now known or hereafter invented, used, or
designated for navigation of or flight in navigable airspace as defined
in the Federal Aviation Act.
Airfield. An area prepared for the accommodation (including any
buildings, installations, and equipment), landing, and take-off of
aircraft.
Authorized Credit Letter. A letter of agreement that qualified
operators must file with the Air Force to purchase Air Force aviation
fuel and oil on a credit basis under the provisions of AFM 67-1, vol 1,
part three, chapter 1, Air Force Stock Fund and DPSC Assigned Item
Procedures.
Civil Aircraft. Any United States or foreign-registered aircraft
owned by non-Governmental entities, and foreign Government-owned
aircraft that are operated for commercial purposes.
Civil Aviation. All civil aircraft of any national registry,
including:
Commercial Aviation. Civil aircraft that transport passengers or
cargo for hire.
General Aviation. Civil aircraft that do not transport passengers or
cargo for hire.
Civil Reserve Air Fleet (CRAF). US registered aircraft, certificated
under FAR part 121, obligated by contract to provide aircraft and crews
to the Department of Defense during contingencies or war.
DD Form 2400, Civil Aircraft Certificate of Insurance. A certificate
that shows the amount of third-party liability insurance carried by the
user and assures the United States Government of advance notice if
changes in coverage occur.
DD Form 2401, Civil Aircraft Landing Permit. A license which, when
validated by an Air Force approving authority, authorizes the civil
aircraft owner or operator to use Air Force airfields.
DD Form 2402, Civil Aircraft Hold Harmless Agreement. An agreement,
completed by the user, which releases the United States Government from
all liabilities incurred in connection with civil aircraft use of Air
Force airfields.
Government Aircraft. Aircraft owned, operated, or controlled for
exclusive, long-term use by any department or agency of either the
United States or a foreign Government; and aircraft owned by any United
States State, County, Municipality or other political subdivision; or
any aircraft for which a Government has the liability responsibility. In
the context of this instruction, it includes foreign registered
aircraft, which are normally commercially operated, that have been
wholly chartered for use by foreign Government heads of State for
official State visits.
Government Furnished or Bailed Aircraft. US Government-owned
aircraft provided to a Government contractor for use in conjunction with
a specific contractual requirement.
Installation Commander. The individual with ultimate responsibility
for operating the airfield and for base operations (normally a wing or
group commander), as determined by the MAJCOM.
Joint-Use Agreement. An agreement between the Air Force and a local
Government agency that establishes a public airport on an Air Force
airfield.
Loaned Aircraft. US Government-owned aircraft made available for use
by another US Government agency. This does not include aircraft leased
or loaned to non-Governmental entities. Such aircraft will be considered
as civil aircraft for purposes of this instruction.
Military Aircraft. Aircraft used exclusively in the military
services of the US or a foreign Government and bearing appropriate
military and national markings or carrying appropriate identification.
Official Government Business. Activities that support or serve the
needs of US Federal agencies located at or in the immediate vicinity of
an Air Force installation, including nonappropriated fund entities. For
elected or appointed Federal, State, and local officeholders, official
business is activity performed in fulfilling duties as a public
official.
Other Agreement. An agreement between the Air Force and a local
Government agency for temporary use of an Air Force runway
[[Page 73]]
when a local civil airport is unavailable, or to accommodate a special
event or project.
Scheduled Air Carrier. An air carrier that holds a scheduled air
carrier certificate and provides scheduled service year round between
two or more points.
Unauthorized Landing. A landing at an Air Force airfield by a civil
aircraft without prior authority (approved DD Form 2401 and 24 hours
prior notice).
User. The person, corporation, or other responsible entity operating
civil aircraft at Air Force airfields.
Sec. Attachment 2 to Part 855--Weather Alternate List
ALTUS AFB OK
ANDERSEN AFB GUAM
CANNON AFB NM
DOBBINS AFB GA
DYESS AFB TX
EARECKSON AFS AK *
---------------------------------------------------------------------------
* Formerly Shemya AFB.
---------------------------------------------------------------------------
EGLIN AFB FL
EIELSON AFB AK
ELLSWORTH AFB SD
ELMENDORF AFB AK
FAIRCHILD AFB WA
GRAND FORKS AFB ND
HILL AFB UT
HOWARD AFB PA
KADENA AB OKINAWA
KELLY AFB TX
KUNSAN AB KOREA
LANGLEY AFB VA
LAUGHLIN AFB TX
MALMSTROM AFB MT
McCHORD AFB WA
McCONNELL AFB KS
MINOT AFB ND
MT HOME AFB ID
NELLIS AFB NV
OFFUTT AFB NE
OSAN AB KOREA
PLANT 42, PALMDALE CA
TRAVIS AFB CA
TYNDALL AFB FL
YOKOTA AB JAPAN
Sec. Attachment 3 to Part 855--Landing Permit Application Instructions
A3.1. DD Form 2400, Civil Aircraft Certificate of Insurance: The
insurance company or its authorized agent must complete and sign the DD
Form 2400. Corrections to the form made using a different typewriter,
pen, or whiteout must be initialed by the signatory. THE FORM CANNOT BE
COMPLETED BY THE AIRCRAFT OWNER OR OPERATOR. Upon expiration, the DD
Form 2400 must be resubmitted along with DD Form 2401 for continued use
of Air Force airfields. The DD Form 2400 may be submitted to the
decision authority by either the user or insurer.
(Approved by the Office of Management and Budget under control number
0701-0050)
A3.1.1. Block 1, Date Issued. The date the DD Form 2400 is completed
by the signatory.
A3.1.2. Block 2a and 2b, Insurer Name, Address. The name and address
of the insurance company.
A3.1.3. Block 3a and 3b. Insured Name, Address. The name and address
of the aircraft owner and or operator. (The name of the user must be the
same on all the forms.)
A3.1.4. Block 4a, Policy Number(s). The policy number must be
provided. Binder numbers or other assigned numbers will not be accepted
in lieu of the policy number.
A3.1.5. Block 4b, Effective Date. The first day of current insurance
coverage.
A3.1.6. Block 4c, Expiration Date. The last day of current insurance
coverage. The DD Form 2400 is valid until one day before the insurance
expiration date. A DD Form 2400 with the statement ``until canceled,''
in lieu of a specific expiration date, is valid for two years from the
issue date.
A3.1.7. Block 5, Aircraft Liability Coverage. The amount of split
limit coverage. All boxes in block 5 must be completed to specify the
coverage for: each person (top line, left to right) outside the aircraft
(bodily injury) and each passenger; and the total coverage per accident
(second line, left to right) for: persons outside the aircraft (bodily
injury), property damage, and passengers. IF BLOCK 5 IS USED, BLOCK 6
SHOULD NOT BE USED. All coverages must be stated in US dollars. ALL
SEATS THAT CAN BE USED FOR PASSENGERS MUST BE INSURED. See Table 2 for
required minimum coverage.
A3.1.8. Block 6, Single Limit. The maximum amount of coverage per
accident. IF BLOCK 6 IS USED, BLOCK 5 SHOULD NOT BE USED. The minimum
coverage required for a combined single limit is determined by adding
the minimums specified in the ``each accident'' line of Table 2. All
coverages must be stated in US dollars. ALL SEATS THAT CAN BE USED FOR
PASSENGERS MUST BE INSURED.
A3.1.9. Block 7, Excess Liability. The amount of coverage which
exceeds primary coverage. All coverages must be stated in US dollars.
A3.1.10. Block 8, Provisions of Amendments or Endorsements of Listed
Policy(ies). Any modification of this block by the insurer or insured
invalidates the DD Form 2400.
A3.1.11. Block 9a, Typed Name of Insurer's Authorized
Representative. Individual must be an employee of the insurance company,
an agent of the insurance company, or an employee of an insurance
broker.
A3.1.12. Block 9b, Signature. The form must be signed in blue ink so
that hand
[[Page 74]]
scribed, original signatures are easy to identify. Signature stamps or
any type of facsimile signature cannot be accepted.
A3.1.13. Block 9c, Title. Self-explanatory.
A3.1.14. Block 9d, Telephone Number. Self-explanatory.
A3.1.15. THE REVERSE OF THE FORM MAY BE USED IF ADDITIONAL SPACE IS
REQUIRED.
A3.2. DD Form 2401, Civil Aircraft Landing Permit. A separate DD
Form 2401 must be submitted for each purpose of use (Table 1).
(Approved by the Office of Management and Budget under control number
0701-0050)
A3.2.1. Block 1a. The name of the owner or operator. (The name of
the user must be the same on all the forms.)
A3.2.2. Block 1b. This block should only be completed if the
applicant is a subsidiary, division, etc, of another company.
A3.2.3. Block 1c. Business or home address, whichever is applicable,
of applicant.
A3.2.4. Block 2. List the airfields where the aircraft will be
operating. The statement ``Any US Air Force Installation Worldwide'' is
acceptable for users performing AMC and White House Press Corps
charters. ``All Air Force airfields in the CONUS'' is acceptable, if
warranted by official Government business, for all users.
A3.2.5. Block 3. Self-explanatory. (Users will not necessarily be
denied landing rights if pilots are not instrument rated and current.)
A3.2.6. Block 4. Provide a brief explanation of purpose for use. The
purposes normally associated with use of Air Force airfields are listed
in Table 1. If use for other purposes is requested, it may be approved
if warranted by unique circumstances. (The verification specified for
each purpose of use must be included with the application.)
A3.2.7. Block 5. EXCEPT AS NOTED FOR BLOCK 5C, ALL ITEMS MUST BE
COMPLETED.
A3.2.8. Block 5a and Block 5b. Self-explanatory.
A3.2.9. Block 5c. If the DD Form 2400, Certificate of Insurance,
indicates coverage for ``any aircraft of the listed model owned and or
operated,'' the same statement can be used in block 5c in lieu of
specific registration numbers.
A3.2.10. Block 5d. The capacity provided must reflect only the
number of crew required to operate the aircraft. The remaining seats are
considered passenger seats.
A3.2.11. Block 5e. Self-explanatory.
A3.2.12. Block 5d. A two-way radio is required. Landing rights will
not necessarily be denied for lack of strobe lights, a transponder, or
IFR capabilities.
A3.2.13. Block 6a. Self-explanatory.
A3.2.14. Block 6b. If the applicant is an individual, this block
should not be completed.
A3.2.15. Block 6c. This block should contain a daytime telephone
number.
A3.2.16. Block 6d. The form must be signed in blue ink so that hand
scribed, original signatures are easy to identify. Signature stamps or
any type of facsimile signature cannot be accepted.
A3.2.17. Block 6e. Self-explanatory.
A3.2.18. THE REVERSE OF THE FORM MAY BE USED IF ADDITIONAL SPACE IS
REQUIRED.
BLOCKS 7A THROUGH 14C ARE NOT COMPLETED BY THE APPLICANT.
A3.2.19. Blocks 7a and 7b. The expiration date of a permit is
determined by the insurance expiration date or the purpose of use. For
example, the dates of an air show will determine the expiration date of
a permit approved for participation in the air show. If the insurance
expiration is used to determine the permit expiration date, the landing
permit will expire one day before the insurance expiration date shown on
the DD Form 2400, or 2 years from the date the permit is issued when the
insurance expiration date either exceeds 2 years or is indefinite (for
example, ``until canceled'').
A3.2.20. APPROVED PERMITS CANNOT BE CHANGED WITHOUT THE CONSENT OF
THE APPROVING AUTHORITY.
A3.2.21. DD FORMS 2400 AND 2401 MUST BE RESUBMITTED TO RENEW A
LANDING PERMIT. (Corporations must resubmit the DD Form 2402 every five
years.)
A3.3. DD Form 2402, Civil Aircraft Hold Harmless Agreement. A form
submitted and accepted by an approving authority for an individual
remains valid and need not be resubmitted to the same approving
authority, unless canceled for cause. Forms submitted by companies,
organizations, associations, etc, must be resubmitted at least every
five years.
(Approved by the Office of Management and Budget under control number
0701-0050)
A3.3.1. Block 2a(1). This block should contain the user's name if
the applicant is a company. If the hold harmless agreement is intended
to cover other entities of a parent company, their names must also be
included in this block.
A3.3.2. Block 2a(2). This block should contain the user's address if
the applicant is a company.
A3.3.3. Block 2b(1). This block should contain the name of the
individual applying for a landing permit or the name of a corporate
officer that is authorized to legally bind the corporation from
litigation against the Air Force.
A3.3.4. Block 2b(2). This block should contain the address of the
individual applying for a landing permit. A company address is only
required if it is different from the address in block 2a(2).
[[Page 75]]
A3.3.5. Block 2b(3). The form must be signed in blue ink so that
hand scribed, original signatures are easy to identify. Signature stamps
or any type of facsimile signature cannot be accepted.
A3.3.6. Block 2b(4). This block should only be completed when the
applicant is a company, organization, association, etc.
A3.3.7. Block 3a(1). If the applicant is a company, organization,
association, etc, the form must be completed and signed by the corporate
secretary or a second corporate officer (other than the officer
executing DD Form 2402) to certify the signature of the first officer.
As necessary, the US Air Force also may require that the form be
authenticated by an appropriately designated third official.
A3.3.8. Block 3a(2). The form must be signed in blue ink so that
hand scribed, original signatures are easy to identify. Signature stamps
or any type of facsimile signature cannot be accepted.
A3.3.9. Block 3a(3). Self-explanatory.
A3.3.10. Block 4. Self-explanatory.
Sec. Attachment 4 to Part 855--Sample Joint-Use Agreement
Joint-Use Agreement Between an Airport Sponsor and the United States Air
Force
This Joint Use Agreement is made and entered into this ____ day of
____ 19__, by and between the Secretary of the Air Force, for and on
behalf of the United States of America (``Air Force'') and an airport
sponsor (``Sponsor'') a public body eligible to sponsor a public
airport.
WHEREAS, the Air Force owns and operates the runways and associated
flight facilities (collectively ``flying facilities'') located at
Warbucks Air Force Base, USA (``WAFB''); and
WHEREAS, Sponsor desires to use the flying facilities at WAFB to
permit operations by general aviation aircraft and commercial air
carriers (scheduled and nonscheduled) jointly with military aircraft;
and
WHEREAS, the Air Force considers that this Agreement will be in the
public interest, and is agreeable to joint use of the flying facilities
at WAFB; and
WHEREAS, this Agreement neither addresses nor commits any Air Force
real property or other facilities that may be required for exclusive use
by Sponsor to support either present or future civil aviation operations
and activities in connection with joint use; and
WHEREAS, the real property and other facilities needed to support
civil aviation operations are either already available to or will be
diligently pursued by Sponsor;
NOW, THEREFORE, it is agreed:
1. Joint Use
a. The Air Force hereby authorizes Sponsor to permit aircraft
equipped with two-way radios capable of communicating with the WAFB
Control Tower to use the flying facilities at WAFB, subject to the terms
and conditions set forth in this Agreement and those Federal Aviation
Regulations (FAR) applicable to civil aircraft operations. Civil
aircraft operations are limited to 20,000 per calendar year. An
operation is a landing or a takeoff. Civil aircraft using the flying
facilities of WAFB on official Government business as provided in Air
Force Instruction (AFI) 10-1001, Civil Aircraft Landing Permits, are not
subject to this Agreement.
b. Aircraft using the flying facilities of WAFB under the authority
granted to Sponsor by this Agreement shall be entitled to use those for
landings, takeoffs, and movement of aircraft and will normally park only
in the area made available to Sponsor and designated by them for that
purpose.
c. Government aircraft taking off and landing at WAFB will have
priority over all civil aircraft at all times.
d. All ground and air movements of civil aircraft using the flying
facilities of WAFB under this Agreement, and movements of all other
vehicles across Air Force taxiways, will be controlled by the WAFB
Control Tower. Civil aircraft activity will coincide with the WAFB
Control Tower hours of operation. Any additional hours of the WAFB
Control Tower or other essential airfield management, or operational
requirements beyond those needed by the Air Force, shall be arranged and
funded (or reimbursed) by Sponsor. These charges, if any, shall be in
addition to the annual charge in paragraph 2 and payable not less
frequently than quarterly.
e. No civil aircraft may use the flying facilities for training.
f. Air Force-owned airfield pavements made available for use under
this Agreement shall be for use on an ``as is, where is'' basis. The Air
Force will be responsible for snow removal only as required for
Government mission accomplishment.
g. Dust or any other erosion or nuisance that is created by, or
arises out of, activities or operations by civil aircraft authorized use
of the flying facilities under this Agreement will be corrected by
Sponsor at no expense to the Air Force, using standard engineering
methods and procedures.
h. All phases of planning and construction of new runways and
primary taxiways on Sponsor property must be coordinated with the WAFB
Base Civil Engineer. Those intended to be jointly used by Air Force
aircraft will be designed to support the type of military aircraft
assigned to or commonly transient through WAFB.
[[Page 76]]
i. Coordination with the WAFB Base Civil Engineer is required for
planning and construction of new structures or exterior alteration of
existing structures that are owned or leased by Sponsor.
j. Sponsor shall comply with the procedural and substantive
requirements established by the Air Force, and Federal, State,
interstate, and local laws, for the flying facilities of WAFB and any
runway and flight facilities on Sponsor property with respect to the
control of air and water pollution; noise; hazardous and solid waste
management and disposal; and hazardous materials management.
k. Sponsor shall implement civil aircraft noise mitigation plans and
controls at no expense to and as directed by the Air Force, pursuant to
the requirements of the WAFB Air Installation Compatible Use Zone
(AICUZ) study; the FAA part 150 study; and environmental impact
statements and environmental assessments, including supplements,
applicable to aircraft operations at WAFB.
l. Sponsor shall comply, at no expense to the Air Force, with all
applicable FAA security measures and procedures as described in the
Airport Security Program for WAFB.
m. Sponsor shall not post any notices or erect any billboards or
signs, nor authorize the posting of any notices or the erection of any
billboards or signs at the airfield of any nature whatsoever, other than
identification signs attached to buildings, without prior written
approval from the WAFB Base Civil Engineer.
n. Sponsor shall neither transfer nor assign this Agreement without
the prior written consent of the Air Force.
2. Payment
a. For the purpose of reimbursing the Air Force for Sponsor's share
of the cost of maintaining and operating the flying facilities of WAFB
as provided in this Agreement, Sponsor shall pay, with respect to civil
aircraft authorized to use those facilities under this Agreement, the
sum of (specify sum) annually. Payment shall be made quarterly, in equal
installments.
b. All payments due pursuant to this Agreement shall be payable to
the order of the Treasurer of the United States of America, and shall be
made to the Accounting and Finance Officer, WAFB, within thirty (30)
days after each quarter. Quarters are deemed to end on December 31,
March 31, June 30, and September 30. Payment shall be made promptly when
due, without any deduction or setoff. Interest at the rate prescribed by
the Secretary of the Treasury of the United States shall be due and
payable on any payment required to be made under this Agreement that is
not paid within ten (10) days after the date on which such payment is
due and end on the day payment is received by the Air Force.
3. Services
Sponsor shall be responsible for providing services, maintenance,
and emergency repairs for civil aircraft authorized to use the flying
facilities of WAFB under this Agreement at no cost to the Air Force. If
Air Force assistance is required to repair an aircraft, Sponsor shall
reimburse the Air Force for all expenses of such services. Any required
reimbursement shall be paid not less frequently than quarterly. These
charges are in addition to the annual charge specified in paragraph 2.
4. Fire Protection and Crash Rescue
a. The Air Force maintains the level of fire fighting, crash, and
rescue capability required to support the military mission at WAFB. The
Air Force agrees to respond to fire, crash, and rescue emergencies
involving civil aircraft outside the hangars or other structures within
the limits of its existing capabilities, equipment, and available
personnel, only at the request of Sponsor, and subject to subparagraphs
b, c, and d below. Air Force fire fighting, crash, and rescue equipment
and personnel shall not be routinely located in the airfield movement
area during nonemergency landings by civil aircraft.
b. Sponsor shall be responsible for installing, operating, and
maintaining, at no cost to the Air Force, the equipment and safety
devices required for all aspects of handling and support for aircraft on
the ground as specified in the FARs and National Fire Protection
Association procedures and standards.
c. Sponsor agrees to release, acquit, and forever discharge the Air
Force, its officers, agents, and employees from all liability arising
out of or connected with the use of or failure to supply in individual
cases, Air Force fire fighting and or crash and rescue equipment or
personnel for fire control and crash and rescue activities pursuant to
this Agreement. Sponsor further agrees to indemnify, defend, and hold
harmless the Air Force, its officers, agents, and employees against any
and all claims, of whatever description, arising out of or connected
with such use of, or failure to supply Air Force fire fighting and or
crash and rescue equipment or personnel.
d. Sponsor will reimburse the Air Force for expenses incurred by the
Air Force for fire fighting and or crash and rescue materials expended
in connection with providing such service to civil aircraft. The Air
Force may, at its option, with concurrence of the National
Transportation Safety Board, remove crashed civil aircraft from Air
Force-owned
[[Page 77]]
pavements or property and shall follow existing Air Force directives and
or instructions in recovering the cost of such removal.
e. Failure to comply with the above conditions upon reasonable
notice to cure or termination of this Agreement under the provisions of
paragraph 7 may result in termination of fire protection and crash and
rescue response by the Air Force.
f. The Air Force commitment to assist Sponsor with fire protection
shall continue only so long as a fire fighting and crash and rescue
organization is authorized for military operations at WAFB. The Air
Force shall have no obligation to maintain or provide a fire fighting,
and crash and rescue organization or fire fighting and crash and rescue
equipment; or to provide any increase in fire fighting and crash and
rescue equipment or personnel; or to conduct training or inspections for
purposes of assisting Sponsor with fire protection.
5. Liability and Insurance
a. Sponsor will assume all risk of loss and or damage to property or
injury to or death of persons by reason of civil aviation use of the
flying facilities of WAFB under this Agreement, including, but not
limited to, risks connected with the provision of services or goods by
the Air Force to Sponsor or to any user under this Agreement. Sponsor
further agrees to indemnify and hold harmless the Air Force against, and
to defend at Sponsor expense, all claims for loss, damage, injury, or
death sustained by any individual or corporation or other entity and
arising out of the use of the flying facilities of WAFB and or the
provision of services or goods by the Air Force to Sponsor or to any
user, whether the claims be based in whole, or in part, on the
negligence or fault of the Air Force or its contractors or any of their
officers, agents, and employees, or based on any concept of strict or
absolute liability, or otherwise.
b. Sponsor will carry a policy of liability and indemnity insurance
satisfactory to the Air Force, naming the United States of America as an
additional insured party, to protect the Government against any of the
aforesaid losses and or liability, in the sum of not less than (specify
sum) bodily injury and property damage combined for any one accident.
Sponsor shall provide the Air Force with a certificate of insurance
evidencing such coverage. A new certificate must be provided on the
occasion of policy renewal or change in coverage. All policies shall
provide that: (1) No cancellation, reduction in amount, or material
change in coverage thereof shall be effective until at least thirty (30)
days after receipt of notice of such cancellation, reduction, or change
by the installation commander at WAFB, (2) any losses shall be payable
notwithstanding any act or failure to act or negligence of Sponsor or
the Air Force or any other person, and (3) the insurer shall have no
right of subrogation against the United States.
6. Term of Agreement
This Agreement shall become effective immediately and shall remain
in force and effect for a term of 25 years, unless otherwise
renegotiated or terminated under the provisions of paragraph 7, but in
no event shall the Agreement survive the termination or expiration of
Sponsor's right to use, by license, lease, or transfer of ownership, of
the land areas used in connection with joint use of the flying
facilities of WAFB.
7. Renegotiation and Termination
a. If significant change in circumstances or conditions relevant to
this Agreement should occur, the Air Force and Sponsor may enter into
negotiations to revise the provisions of this Agreement, including
financial and insurance provisions, upon sixty (60) days written notice
to the other party. Any such revision or modification of this Agreement
shall require the written mutual agreement and signatures of both
parties. Unless such agreement is reached, the existing agreement shall
continue in full force and effect, subject to termination or suspension
under this section.
b. Notwithstanding any other provision of this Agreement, the Air
Force may terminate this Agreement: (1) At any time by the Secretary of
the Air Force, giving ninety (90) days written notice to Sponsor,
provided that the Secretary of the Air Force determines, in writing,
that paramount military necessity requires that joint use be terminated,
or (2) at any time during any national emergency, present or future,
declared by the President or the Congress of the United States, or (3)
in the event that Sponsor ceases operation of the civil activities at
WAFB for a period of one (1) year, or (4) in the event Sponsor violates
any of the terms and conditions of this Agreement and continues and
persists therein for thirty (30) days after written notification to cure
such violation. In addition to the above rights, the Air Force may at
any time suspend this agreement if violations of its terms and
conditions by Sponsor create a significant danger to safety, public
health, or the environment at WAFB.
c. The failure of either the Air Force or Sponsor to insist, in any
one or more instances, upon the strict performance of any of the terms,
conditions, or provisions of this Agreement shall not be construed as a
waiver or relinquishment of the right to the future performance of any
such terms, conditions, or provisions. No provision of this Agreement
shall be deemed to have been waived by either party unless such waiver
be in writing signed by such party.
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8. Notices
a. No notice, order, direction, determination, requirement, consent,
or approval under this Agreement shall be of any effect unless it is in
writing and addressed as provided herein.
b. Written communication to Sponsor shall be delivered or mailed to
Sponsor addressed: The Sponsor, 9000 Airport Blvd, USA.
c. Written communication to the Air Force shall be delivered or
mailed to the Air Force addressed: Commander, WAFB, USA.
9. Other Agreements not Affected
This Agreement does not affect the WAFB-Sponsor Fire Mutual Aid
Agreement.
IN WITNESS WHEREOF, the respective duly authorized representatives
of the parties hereto have executed this Agreement on the date set forth
below opposite their respective signatures.
UNITED STATES AIR FORCE
Date:___________________________________________________________________
By:_____________________________________________________________________
Deputy Assistant Secretary of the Air Force (Installations)
Date:___________________________________________________________________
By:_____________________________________________________________________
Sponsor Representative
Sec. Attachment 5 to Part 855--Sample Temporary Agreement
Letter of Agreement for Temporary Civil Aircraft Operations at Warbucks
AFB, USA
This letter of agreement establishes policies, responsibilities, and
procedures for commercial air carrier operations at Warbucks AFB, USA,
(WAFB) for the period (date) through (date) Military requirements will
take precedence over civil aircraft operations. Should a conflict arise
between air carrier and Air Force operational procedures, Air Force
procedures will apply.
Authorized Users
The following air carriers are authorized use, provided they have a
civil aircraft landing permit approved at HQ USAF/XOOBC for such use:
Flyaway Airlines
Recreation Airlines
Economy Airlines
PacAir Transport
Schedules
The Bunker International Airport (BIA) manager or air carrier
station managers will ensure that the WAFB Airfield Manager is provided
current airline schedules during the approved period of use. Every
effort will be made to avoid disruption of the air carriers' schedules;
however, it is understood that the installation commander will suspend
or change flight plans when required to preclude interference with
military activities or operations.
Passenger and Luggage Handling
The BIA terminal will be used for passenger loading and unloading.
Security checks will be performed at the terminal before loading
passengers on buses. Luggage on arriving aircraft will be directly
offloaded onto vehicles and delivered to the BIA terminal. Each arriving
and departing bus or vehicle caravan will be accompanied by a
credentialed representative of the airline or BIA to ensure its
integrity enroute. Buses or vehicles transporting passengers to board an
aircraft will not depart WAFB until the passengers are airborne. Unless
an emergency exists, arriving passengers will not deplane until the
buses are available for transportation to the BIA terminal. All checked
luggage will be picked up at BIA and delivered directly to the departing
aircraft. Buses will proceed directly to the aircraft at WAFB alert
ramp. Luggage on arriving aircraft will be directly offloaded onto a
vehicle parked on the WAFB alert ramp. WAFB will be notified, in
advance, if a local funeral home requires access for pickup or delivery
of deceased persons.
Aircraft Handling and Ground Support Equipment
Air Force-owned fuel will not be provided. The air carriers will
provide their own ground support equipment. Refueling equipment from BIA
will be prepositioned at WAFB on the alert ramp. The Air Force shall not
be responsible for any damage or loss to such equipment, and BIA
expressly assumes all risks of any such loss or damage and agrees to
indemnify and hold the United States harmless against any such damage or
loss. No routine aircraft maintenance will be accomplished at WAFB.
Emergency repairs and or maintenance are only authorized to avoid
extended parking and storage of civil aircraft at WAFB.
Customs and Security
The installation commander will exercise administrative and security
control over both the aircraft and passengers on WAFB. Customs officials
will be transported to and from the base by air carrier representatives.
The installation commander will cooperate with customer, health, and
other public officials to expedite arrival and departure of the
aircraft. Air carrier representatives will notify the WAFB Airfield
Manager, in advance, of armed security or law enforcement officers
arriving or departing on a flight. BIA officials and air carrier
representatives must provide the WAFB Airfield Manager a list of
employees, contractors, and vehicles requiring flightline access.
Temporary passes will
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be issued to authorized individuals and vehicles.
Fire, Crash, and Rescue Services
BIA will provide technical information and training for WAFB Fire
Department personnel prior to (date) . Fire, Crash, and Rescue Services
will be provided in an emergency, but fire trucks will not routinely
park on the flightline for aircraft arrivals and departures. BIA will
reimburse WAFB for all such services.
Liability and Indemnification
The Air Force shall not be responsible for damages to property or
injuries to persons which may arise from or be incident to the use of
WAFB by BIA under this Agreement, or for damages to the property of BIA
or injuries to the person of BIA's officers, agents, servants,
employees, or invitees. BIA agrees to assume all risks of loss or damage
to property and injury or death to persons by reason of or incident to
the use of WAFB under this Agreement and expressly waives any and all
claims against the United States for any such loss, damage, personal
injury, or death caused by or occurring as a consequence of such use.
BIA further agrees to indemnify, save, and hold the United States, its
officers, agents, and employees harmless from and against all claims,
demands, or actions, liabilities, judgments, costs, and attorneys fees,
arising out of, claimed on account of, or in any manner predicated upon
personal injury, death or property damage resulting from, related to,
caused by, or arising out of the use of WAFB under this Agreement.
Fees
Landing and parking fees will be charged in accordance with to AFI
10-1001, Civil Aircraft Landing Permits. Charges will be made in
accordance with the appropriate Air Force Instructions for any services
or supplies required from WAFB. The WAFB Airfield Manager will be
responsible for consolidating all charges which will be billed to BIA
not later than (date) by the Accounting and Finance Office.
IN WITNESS WHEREOF, the respective duly authorized representatives
of the parties hereto have executed this Agreement on the date set forth
below opposite their respective signatures.
________________________________________________________________________
BIA Representative (Name and Title)
DATE____________________________________________________________________
________________________________________________________________________
WAFB Representative (Name and Title)
DATE____________________________________________________________________
PART 861_DEPARTMENT OF DEFENSE COMMERCIAL AIR TRANSPORTATION QUALITY
AND SAFETY REVIEW PROGRAM--Table of Contents
Sec.
861.1 References.
861.2 Purpose.
861.3 Definitions.
861.4 DOD air transportation quality and safety requirements.
861.5 DOD Commercial Airlift Review Board procedures.
861.6 DOD review of foreign air carriers.
861.7 Disclosure of voluntarily provided safety-related information.
Authority: 10 U.S.C. 2640, 8013.
Source: 67 FR 65698, Oct. 28, 2002, unless otherwise noted.
Sec. 861.1 References.
The following references apply to this part:
(a) 10 U.S.C. 2640, Charter Air Transportation of Members of the
Armed Forces.
(b) Department of Defense Directive 4500.53, Department of Defense
Commercial Air Transportation Quality and Safety Review Program.
Sec. 861.2 Purpose.
Department of Defense Directive 4500.53, Department of Defense
Commercial Air Transportation Quality and Safety Review Program, charges
the Commander-in-Chief (CINC), United States Transportation Command
(USTRANSCOM), with ensuring the establishment of safety requirements and
criteria for evaluating civil air carriers and operators (hereinafter
collectively referred to as ``air carriers'') providing air
transportation and operational support services to the Department of
Defense (DOD). It also charges the CINC with ensuring the establishment
of a Commercial Airlift Review Board (CARB) and providing policy
guidance and direction for its operation. This part establishes DOD
quality and safety criteria for air carriers providing or seeking to
provide air transportation and, at the discretion of the CARB or higher
authority, operational support services to the DOD. This part also
includes the operating procedures of the CARB. The CARB has the
authority to suspend air carriers from DOD use or
[[Page 80]]
take other actions when issues of air carrier quality and air safety
arise.
Sec. 861.3 Definitions.
(a) Air carrier. Individuals or entities that operate commercial
fixed and rotary wing aircraft in accordance with the Federal Aviation
Regulations (14 CFR Chapter I) or equivalent regulations issued by a
country's Civil Aviation Authority (CAA) and which provide air
transportation or operational support services. Commercial air carriers
under contract with, or operating on behalf of the DOD shall have a FAA
or CAA certificate.
(b) Air transportation services. The transport of DOD personnel or
cargo by fixed or rotary wing commercial aircraft, where such services
are acquired primarily for the transportation of DOD personnel and
cargo, through donation or any form of contract, tender, blanket
ordering agreement, Government charge card, Government or commercial
transportation request (TR), bill of lading, or similar instruments. Air
transportation services also include medical evacuation services,
paratrooper drops, and charter airlift and group travel arranged by the
Military Service Academies, foreign military sales, nonappropriated fund
instrumentalities by other DOD and non-DOD activities for DOD personnel.
All air carriers providing air transportation services to DOD must have
a FAA or CAA certificate. The policy contained in this Directive shall
not apply to individually procured, discretionary air travel, such as
that associated with military leave or pass.
(c) Civil Aviation Authority (CAA). The CAA refers to the
organization within a country that has the authority and responsibility
to regulate civil aviation. The term CAA is used throughout this part
since these requirements are applicable to both U.S. and foreign
carriers doing business with DOD. The term CAA thus includes the U.S.
Federal Aviation Administration (FAA).
(d) Code sharing. Code sharing is a marketing arrangement in which
an air carrier places its designator code on a flight operated by
another air carrier and sells tickets for that flight.
(e) DOD approval. DOD approval in the context of this part refers to
the process by which air carriers seeking to provide passenger or cargo
airlift services (hereinafter referred to as air transportation
services) to the DOD must be screened and evaluated by the DOD Air
Carrier Survey and Analysis Office or other entity authorized by the
CARB, and approved for DOD use by the CARB. Once initial approval is
obtained, a DOD approved air carrier must remain in an approved status
to be eligible for DOD business. Although not generally required, the
CARB or higher authority may, on a case-by-case basis, require DOD
approval of air carriers providing operational support services to DOD.
(f) DOD air carrier safety and quality review process. Includes four
possible levels of review with increasing authority. The
responsibilities of each are described in more detail in the reference
in Sec. 861.1 (b). These levels consist of the:
(1) DOD Air Carrier Survey and Analysis Office;
(2) DOD Commercial Airlift Review Board (CARB);
(3) Commander-in-Chief, U.S. Transportation Command, or USCINCTRANS;
and
(4) Secretary of Defense. (Note: A DOD-level body, the Commercial
Airlift Review Authority, or CARA, provides advice and recommendations
to the Secretary of Defense.)
(g) Federal Aviation Administration (FAA) International Safety
Assessment (IASA) program and categories. The FAA IASA program assesses
the ability of a foreign country's CAA to adhere to international
standards established by the United Nation's technical agency for
aviation, the International Civil Aviation Organization (ICAO). The FAA
has established ratings for the status of countries as follows:
(1) Category 1--Does comply with ICAO standards. A country's CAA has
been found to license and oversee air carriers in accordance with ICAO
aviation safety standards.
(2) Category 2--Does not comply with ICAO standards. A country's CAA
does not meet ICAO standards for aviation oversight. Operations to the
U.S. by a carrier from a Category 2 country are limited to those in
effect at the time a country is classified as Category 2 and
[[Page 81]]
are subjected to heightened FAA surveillance. Expansion or changes in
services to the U.S. are not permitted while a country is in Category 2
status unless the carrier arranges to have new services conducted by an
air carrier from a Category 1 country. Category 2 countries that do not
have operations to the U.S. at the time of the FAA assessment are not
permitted to commence such operations unless it arranges to have its
flights conducted by an air carrier from a Category 1 country.
(3) Non-rated. A country's CAA is labeled ``non-rated'' if it has
not been assessed by the FAA.
(h) GSA City Pair Program. A program managed by the General Services
Administration in which U.S. air carriers compete for annual contracts
awarding U.S. Government business for specific domestic and
international scheduled service city pair routes.
(i) Group travel. Twenty-one or more passengers on orders from the
same organization traveling on the same date to the same destination to
attend the same function.
(j) Letter of Warning. A notice to a DOD approved air carrier of a
failure to satisfy safety or airworthiness requirements which, if not
remedied, may result in temporary nonuse or suspension of the air
carrier by the DOD. Issuance of a Letter of Warning is not a
prerequisite to a suspension or other action by the CARB or higher DOD
authority.
(k) On-site Capability Survey. The most comprehensive evaluation
performed by DOD's Air Carrier Survey and Analysis Office. Successful
completion of this evaluation is required of most air carriers before
they may be approved to provide air transportation services to DOD. Once
approved, air carriers are subject to periodic On-site Capability
Surveys, as specified at Enclosure 3 in the reference in Sec. 861.1(b).
(l) Operational support services. Missions performed by air carriers
that use fixed or rotary-winged aircraft to provide services other than
air transportation services as defined in paragraph (b) of this section.
Examples include, but are not limited to, range instrumentation and
services, target-towing, sling loads, and electronic countermeasures
target flights. Air carriers providing only operational support services
do not require advance DOD approval and are not subject to the initial
or periodic on-site survey requirements under this part, unless directed
by the CARB or higher authority. All air carriers providing operational
support services to DOD must have a FAA or CAA certificate and are
required to maintain applicable FAA or CAA standards absent deviation
authority obtained pursuant to 14 CFR 119.55 or similar CAA rules.
(m) Performance assessments. Reviews conducted by U.S. air carriers
when evaluating foreign air carriers with which they have code share
arrangements, using performance-based factors. Such assessments include
reviewing a variety of air carrier data including history, safety,
scope/size, financial condition, equipment, flight operations and
airworthiness issues.
(n) Performance evaluations. Reviews conducted by DOD as directed in
the references in Sec. 861.1(a) and (b). These evaluations include a
review of air carrier flight operations, maintenance departments, safety
programs and other air carrier areas as necessary. Performance
evaluations are not conducted on-site, but rely on information collected
primarily from the FAA and the National Transportation Safety Board
(NTSB).
(o) Preflight safety inspection. A visual safety inspection of the
interior and exterior of an air carrier's aircraft performed by DOD
personnel in accordance with the references in Sec. 861.1(a) and (b).
(p) Suspension. The exclusion of an air carrier from providing
services to the DOD. The period of suspension will normally:
(1) Remain in effect until the air carrier furnishes satisfactory
evidence that the conditions causing the suspension have been remedied
and has been reinstated by the CARB, or;
(2) Be for a fixed period of time as determined at the discretion of
the CARB.
(q) Temporary nonuse. The immediate exclusion of a DOD approved air
carrier from providing services to the DOD pending a decision on
suspension. Normally, temporary nonuse will be for a
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period of 30 days or less. However, by mutual agreement of the CARB and
the air carrier involved, a suspension hearing or decision may be
delayed and the air carrier continued in a temporary nonuse status for
an extended period of time.
(r) Voluntarily provided safety-related information. Information
which consists of nonfactual safety-related data, reports, statements,
and other information provided to DOD by an air carrier at any point in
the evaluation process described in this Part. It does not include
factual safety-related information, such as statistics, maintenance
reports, training records, flight planning information, and the like.
Sec. 861.4 DOD air transportation quality and safety requirements.
(a) General. The DOD, as a customer of air transportation and
operational support services, expects air carriers used by DOD to employ
programs and business practices that not only ensure good service but
also enhance the safety, operational, and maintenance standards
established by applicable Civil Aviation Authority (CAA) regulations.
Accordingly, and as required by the references in Sec. 861.1 (a) and
(b), the DOD has established a set of quality and safety criteria and
requirements that reflect the type programs and practices DOD seeks from
air carriers providing services to DOD. Air carriers must meet and
maintain these requirements in order to be eligible for DOD business.
Air carriers providing air transportation services to DOD either
directly by contract or agreement, or indirectly through the General
Services Administration (GSA) City Pair Program or some other
arrangement, must be approved by DOD prior to providing such services
and remain in an approved status throughout the contract, agreement, or
arrangement performance period. This approval entails successful
completion of initial and recurring on-site surveys as well as periodic
performance evaluations in accordance with the reference in Sec.
861.1(b). The quality and safety criteria and requirements set forth in
this part complement rather than replace the CAA criteria applicable to
air carriers. Air carriers normally remain fully subject to applicable
CAA regulations (CARs) while performing business for the DOD, even when
the aircraft involved is used exclusively for DOD missions. The
inspection and oversight criteria set forth in this part do not, as a
general rule, apply to air carriers providing only operational support
services to DOD. However, in the event concerns relating to the safety
of such a carrier arise, the CARB or higher authority may, on a case-by-
case basis, direct an appropriate level of oversight under the authority
of this part.
(b) Applicability. (1) The evaluation, quality and safety criteria
and requirements set forth in this part apply to air carriers providing
or seeking to provide air transportation services to DOD.
(2) Foreign air carriers performing portions of GSA City Pair routes
awarded to U.S. air carriers under a code-sharing arrangement, as well
as foreign air carriers providing individually-ticketed passenger
service to DOD personnel traveling on official business, may be subject
to limited oversight and review pursuant to Sec. 861.6.
(3) The inspection and oversight requirements, as well as the
quality and safety criteria of this part may, on a case-by-case basis
and at the discretion of the CARB or higher authority, be applied to air
carriers seeking to provide or providing operational support services as
defined in Sec. 861.3(l).
(4) The inspection and oversight requirements of this part do not
apply to aircraft engaged in medical transport services if procured
under emergency conditions to save life, limb or eyesight. Likewise, the
inspection and oversight requirements of this part are not applicable
when DOD is not involved in the procurement of the medical
transportation services. For example, when specific medical treatment is
obtained on an individual basis by or for DOD personnel with medical
transportation provided, as needed, at the direction of the non-DOD
medical care giver. This includes situations where DOD, through TRICARE
or otherwise, pays for such transportation as part of the costs of
medical services provided.
(c) Scope and nature of the evaluation program--(1) Evaluation
requirement.
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The provision of air transportation services under a contract or
agreement with or on behalf of DOD, requires the successful completion
of an initial on-site survey and approval by the CARB under this part in
order to be eligible for DOD business. In addition, U.S. air carriers
awarded contracts under the GSA City Pair Program, including those that
perform part of the contract under a code-sharing arrangement with the
U.S. air carrier awarded the contract, must successfully complete an
initial on-site survey and be approved by the CARB for DOD use under
this part prior to beginning performance of the GSA contract. Once
approved by DOD, air carriers providing air transportation services are
subject to recurring on-site surveys and performance evaluations and
assessments throughout the duration of the relevant contract or
agreement. The frequency and scope of these surveys and performance
reviews will be in accordance with Enclosure 3 of the reference in Sec.
861.1(b).
(2) Office of primary responsibility. Evaluations are performed by
the DOD Air Carrier Survey and Analysis Office located at Scott Air
Force Base, Illinois. The mailing address of this office is HQ AMC/DOB,
402 Scott Drive Unit 3A1, Scott AFB IL 62225-5302. The website address
is https://public.scott.af.mil/hqamc/dob/index.htm.
(3) Items considered in the evaluation process. The specifics of the
applicable DOD contract or agreement (if any), the applicable CAA
regulations, and the experienced judgment of DOD personnel will be used
to evaluate an air carrier's capability to perform services for DOD. The
survey may also include, with the air carrier's coordination,
observation of cockpit crew performance, as well as ramp inspections of
selected company aircraft. In the case of air carriers seeking to
provide air transportation services, after satisfactory completion of
the initial survey and approval by the CARB as a DOD air carrier,
follow-up surveys will be conducted on a recurring basis and when
otherwise required to validate adherence to DOD quality and safety
requirements. DOD personnel will also assess these quality and safety
requirements when conducting periodic air carrier performance
evaluations. The size of an air carrier, along with the type and scope
of operations will be considered during the on-site survey. For example,
while an air taxi operator may not have a formal flight control
function, such as a 24-hour dispatch organization, that same air taxi
operator is expected to demonstrate some type of effective flight
following capability. On the other hand, a major air carrier is expected
to have a formal flight control or dispatch function. Both, however,
will be evaluated based on the effectiveness and quality of whatever
flight following function they do maintain. In the case of air carriers
seeking to provide operational support services, the type, scope and
frequency of evaluation, if any, performed by DOD or other entity will
be as directed by the CARB or higher authority.
(d) Status of aircraft performing services for DOD. All air carriers
providing air transportation or operational support services to the DOD
shall have FAA or CAA air carrier or commercial operator certificates
and shall remain under FAA and/or CAA regulatory and safety oversight
during performance of the DOD mission. Aircraft performing services for
or on behalf of DOD shall be on the air carrier's operating certificate,
and remain on that certificate while performing the DOD mission. The
installation of any special equipment needed to perform services for DOD
shall be FAA or CAA approved or an appropriate FAA or CAA waiver
obtained.
(e) Evaluation requirements. The air carrier requirements stated in
this part provide the criteria against which would-be DOD and GSA City
Pair Program air carrier contractors, as well as air carriers providing
services on behalf of DOD, may be subjectively evaluated by DOD. These
requirements are neither all-inclusive nor inflexible in nature. They
are not replacements for the certification criteria and other
regulations established by the CAA. Rather, these requirements
complement CAA certification criteria and regulations and describe the
enhanced level of service required by DOD. The relative weight accorded
these requirements in a given case, as well as the determination of
whether an air carrier meets or exceeds them, is a matter
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within the sole discretion of the DOD Air Carrier Survey and Analysis
Office and the CARB, subject to the statutory minimums provided in the
reference in Sec. 861.1(a).
(1) Quality and safety requirements--prior experience. U.S. and
foreign air carriers applying for DOD approval in order to conduct air
transportation services for or on behalf of DOD under a contract or
agreement with DOD, the GSA City Pair Program, or by some other
arrangement are required to possess 12 months of continuous service
equivalent to the service sought by DOD. In applying this requirement,
the following guidance will be used by DOD authorities:
(i) ``12 months'' refers to the 12 calendar months immediately
preceding the request for DOD approval.
(ii) ``Continuous'' service means the carrier must have performed
revenue-generating services of the nature for which DOD approval is
sought, as an FAA part 121, 125, 127, or 135 (14 CFR 121, 125, 127, or
135) air carrier (or foreign CAA equivalent if appropriate) on a
recurring, substantially uninterrupted basis. The services must have
occurred with such frequency and regularity as to clearly demonstrate
the carrier's ability to perform and support sustained, safe, reliable,
and regular services of the type DOD is seeking. Weekly flight activity
is normally considered continuous, while sporadic or seasonal operations
(if such operations are the only operations conducted by the carrier)
may not suffice to establish a carrier's ability to perform and support
services in the sustained, safe, reliable, and regular manner required
by DOD. The ability of a carrier to perform services of the type sought
by DOD may be called into question if there have been lengthy periods of
time during the qualifying period in which the carrier has not operated
such services. Consequently, any cessation, or nonperformance of the
type of service for which approval is sought may, if it exceeds 30 days
in length during the qualifying period and depending on the underlying
factual circumstances, necessitate ``restarting'' the 12-month
continuous service period needed to obtain DOD approval.
(iii) ``Equivalent to the services sought by DOD'' means service
offered to qualify for DOD approval must be substantially equivalent to
the type of service sought by DOD. The prior experience must be
equivalent in difficulty and complexity with regard to the distances
flown, weather systems encountered, international and national
procedures, the same or similar aircraft, schedule demands, aircrew
experience, number of passengers handled, frequency of operations, and
management required. There is not a set formula for determining whether
a particular type of service qualifies. The performance of cargo
services is not considered to be ``substantially equivalent'' to the
performance of passenger services, and may not be used to meet the 12
continuous months requirement for passenger services. However, when a
carrier already providing cargo services to DOD applies to carry
passengers, the CARB may consider the carrier's cargo performance and
experience in assessing whether a carrier is qualified to carry
passengers on a specific type or category of aircraft, over certain
routes or stage lengths, or under differing air traffic control,
weather, or other conditions. The following examples are illustrative
and not intended to reflect or predict CARB action in any given case:
Example 1: Coyote Air has operated commercial passenger commuter
operations in the U.S. for a number of years flying a variety of twin-
engine turboprop aircraft. They have also been a DOD-approved cargo
carrier, providing international cargo services using DC-10 freighter
aircraft. Coyote Air purchases a passenger version DC-10, and seeks DOD
approval to provide international passenger service for DOD. The CARB
may decide that although Coyote Air has provided passenger services for
12 continuous months, those services are not substantially equivalent to
those being sought by DOD. While the carrier may have considerable
operational experience with the DC-10, its commuter passenger operations
are not substantially equivalent to the service now proposed--
international passenger services on large jet aircraft.
Example 2: Acme Air has been a DOD-approved cargo carrier for
several years, operating domestic and international missions with MD-11
freighter aircraft. At the same time, Acme has been performing
commercial international passenger services with B-757
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aircraft. Acme Air purchases a MD-11 passenger aircraft and applies to
perform passenger services for DOD using the MD-11. Assuming Acme has
performed B-757 passenger service for 12 continuous months immediately
preceding its application, the CARB may consider these passenger
services substantially equivalent to those proposed since both involve
the operation of large multi-engine aircraft in an international
environment. The CARB may also consider Acme's operational history with
its MD-11 freighter aircraft in determining whether the carrier is
competent to provide MD-11 passenger service in the same environment.
(iv) Once approved by DOD, an air carrier's failure to maintain
continuous operations of the type for which approval has been granted
may, at the discretion of the CARB, be grounds for nonuse or suspension
under this part, rendering the carrier ineligible for DOD business
during the nonuse or suspension period. Any cessation or nonperformance
of the type of service for which approval has been obtained may, if it
exceeds 30 days in length and depending on the circumstances, provide
the basis for the CARB to take appropriate action.
(2) Quality and safety requirements--air carrier management.
Management has clearly defined safety as the number one company
priority, and safety is never sacrificed to satisfy passenger concern,
convenience, or cost. Policies, procedures, and goals that enhance the
CAA's minimum operations and maintenance standards have been established
and implemented. A cooperative response to CAA inspections, critiques,
or comments is demonstrated. Proper support infrastructure, including
facilities, equipment, parts, and qualified personnel, is provided at
the certificate holder's primary facility and en route stations.
Personnel with aviation credentials and experience fill key management
positions. An internal quality audit program or other method capable of
identifying in-house deficiencies and measuring the company's compliance
with their stated policies and standards has been implemented. Audit
results are analyzed in order to determine the cause, not just the
symptom, of any deficiency. The result of sound fiscal policy is evident
throughout the company. Foreign code-sharing air carrier partners are
audited at least every two years using DOD-approved criteria and any
findings resolved. Comprehensive disaster response plans and, where
applicable, family support plans, must be in place and exercised on a
regular basis.
(3) Quality and safety requirements--operations--(i) Flight safety.
Established policies that promote flight safety. These policies are
infused among all aircrew and operational personnel who translate the
policies into practice. New or revised safety-related data are promptly
disseminated to affected personnel who understand that deviation from
any established safety policy is unacceptable. An audit system that
detects unsafe practices is in place and a feedback structure informs
management of safety policy results including possible safety problems.
Management ensures that corrective actions resolve every unsafe
condition.
(ii) Flight operations. Established flight operations policies and
procedures are up-to-date, reflect the current scope of operations, and
are clearly defined to aviation department employees. These adhered-to
procedures are further supported by a flow of current, management-
generated safety and operational communications. Managers are in touch
with mission requirements, supervise crew selection, and ensure the risk
associated with all flight operations is reduced to the lowest
acceptable level. Flight crews are free from undue management pressure
and are comfortable with exercising their professional judgment during
flight activities, even if such actions do not support the flight
schedule. Effective lines of communication permit feedback from line
crews to operations managers. Personnel records are maintained and
reflect such data as experience, qualifications, and medical status.
(iii) Flight crew hiring. Established procedures ensure that
applicants are carefully screened, including a review of the
individual's health and suitability to perform flight crew duties.
Consideration is given to the applicant's total aviation background,
appropriate experience, and the individual's potential to perform
safely. Freedom from alcohol abuse and illegal drugs is required. If
new-hire cockpit
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crewmembers do not meet industry standards for experience and
qualification, then increased training and management attention to
properly qualify these personnel are required.
(iv) Aircrew training. Training, including recurrent training, which
develops and refines skills designed to eliminate mishaps and improve
safety, is essential to a quality operation. Crew coordination training
that facilitates full cockpit crews training and full crew interaction
using standardized procedures and including the principles of Crew
Resource Management (CRM) is required. Programs involving the use of
simulators or other devices that can provide realistic training
scenarios are desired. Captain and First Officer training objectives
cultivate similar levels of proficiency. Appropriate emergency
procedures training (e.g., evacuation procedures) is provided to flight
deck and flight attendant personnel as a total crew whenever possible;
such training focuses on cockpit and cabin crews functioning as a
coordinated team during emergencies. Crew training--be it pilot,
engineer, or flight attendant--is appropriate to the level of risk and
circumstances anticipated for the trainee. Training programs have the
flexibility to incorporate and resolve recurring problem areas
associated with day-to-day flight operations. Aeromedical crews must
also be trained in handling the specific needs of the categories of
patients normally accepted for transportation on the equipment to be
used. Trainers are highly skilled in both subject matter and training
techniques. Training received is documented, and that documentation is
maintained in a current status.
(v) Captain upgrade training. A selection and training process that
considers proven experience, decision making, crew resource management,
and response to unusual situations, including stress and pressure, is
required. Also important is emphasis on captain responsibility and
authority.
(vi) Aircrew scheduling. A closely monitored system that evaluates
operational risks, experience levels of crewmembers, and ensures the
proper pairing of aircrews on all flights is required. New captains are
scheduled with highly experienced first officers, and new or low-time
first officers are scheduled with experienced captains. Except for
aircraft new to the company, captains and first officers assigned to DOD
charter passenger missions possess at least 250 hours combined
experience in the type aircraft being operated. The scheduling system
involves an established flight duty time program for aircrews, including
flight attendants, carefully managed so as to ensure proper crew rest
and considers quality-of-life factors. Attention is given to the stress
on aircrews during strikes, mergers, or periods of labor-management
difficulties.
(vii) In-flight performance. Aircrews, including flight attendants
and flight medical personnel, are fit for flight duties and trained to
handle normal, abnormal, and emergency situations. They demonstrate crew
discipline and a knowledge of aviation rules; use company-developed
standardized procedures; adhere to checklists; and emphasize safety,
including security considerations, throughout all preflight, in-flight,
and postflight operations. Qualified company personnel evaluate aircrews
and analyze results; known performance deficiencies are eliminated.
Evaluations ensure aircrews demonstrate aircraft proficiency in
accordance with company established standards. Flight crews are able to
determine an aircraft's maintenance condition prior to flight and use
standardized methods to accurately report aircraft deficiencies to the
maintenance activity.
(viii) Operational control/support. Effective mission control
includes communications with aircrews and the capability to respond to
irregularities or difficulties. Clear written procedures for mission
preparation and flight following aircraft and aircrews are provided.
There is access to weather, flight planning, and aircraft maintenance
data. There are personnel available who are knowledgeable in aircraft
performance and mission requirements and that can correctly respond to
emergency situations. There is close interface between operations and
maintenance, ensuring a mutual awareness of aircraft operational and
maintenance status. Procedures to notify
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DOD in case of an accident or serious incident have been established.
Flight crews involved in such accidents or incidents report the
situation to company personnel who, in turn, have procedures to evaluate
the flight crew's capability to continue the mission. Aircraft involved
in accidents or incidents are inspected in accordance with Civil
Aviation Regulations and a determination made as to whether or not the
aircraft is safe for continued operations.
(ix) DOD charter procedures. Detailed procedures addressing military
charter requirements are expected. The level of risk associated with DOD
charter missions does not exceed the risks inherent in the carrier's
non-DOD daily flight operations. Complete route planning and airport
analyses are accomplished, and actual passenger and cargo weights are
used in computing aircraft weight and balance.
(4) Quality and safety requirements--maintenance. Maintenance
supervisors ensure all personnel understand that in spite of scheduling
pressure, peer pressure, supervisory pressure, or other factors, the
airplane must be airworthy prior to flight. Passenger and employee
safety is a paramount management concern. Quality, completeness, and
integrity of work are trademarks of the maintenance manager and
maintenance department. Nonconformance to established maintenance
practices is not tolerated. Management ensures that contracted
maintenance, including repair and overhaul facilities, is performed by
maintenance organizations acceptable to the CAA.
(i) Maintenance personnel. Air carriers are expected to hire and
train the number of employees required to safely maintain the company
aircraft and support the scope of the maintenance operations both at
home station (the company's primary facility) and at en route locations.
These personnel ensure that all maintenance tasks, including required
inspections and airworthiness directives, are performed; that
maintenance actions are properly documented; and that the discrepancies
identified between inspections are corrected. Mechanics are fit for
duty, properly certificated, the company verifies certification, and
these personnel possess the knowledge and the necessary aircraft-
specific experience to accomplish the maintenance tasks. Noncertified
and inexperienced personnel received proper supervision. Freedom from
alcohol abuse and illegal drugs is required.
(ii) Quality assurance. A system that continuously analyzes the
performance and effectiveness of maintenance activities and maintenance
inspection programs is required. This system evaluates such functions as
reliability reports, audits, component tear-down reports, inspection
procedures and results, tool calibration program, real-time aircraft
maintenance actions, warranty programs, and other maintenance functions.
The extent of this program is directly related to the air carrier's size
and scope of operation. The cause of any recurring discrepancy or
negative trend is researched and eliminated. Action is taken to prevent
recurrence of these discrepancies and preventive actions are monitored
to ensure effectiveness. The results of preventive actions are provided
to appropriate maintenance technicians.
(iii) Maintenance inspection activity. A process to ensure required
aircraft inspections are completed and the results properly documented
is required. Also required is a system to evaluate contract vendors,
suppliers, and their products. Inspection personnel are identified,
trained (initial and recurrent), and provided guidance regarding
inspector responsibility and authority. The inspection activity is
normally a separate entity within the maintenance department.
(iv) Maintenance training. Training is conducted commensurate with
the size and type of maintenance function being performed. Continuing
education and progressive experience are provided for all maintenance
personnel. Orientation, familiarization, on-the-job, and appropriate
recurrent training for all full and part-time personnel are expected.
The use of such training aids as mockups, simulators, and computer-based
training enhances maintenance training efforts and is desired. Training
documentation is required; it is current, complete, well maintained, and
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correctly identifies any special authorization such as inspection and
airworthiness release. Trainers are fully qualified in the subject
manner.
(v) Maintenance control. A method to control maintenance activities
and track aircraft status is required. Qualified personnel monitor
maintenance preplanning, ensure completion of maintenance actions, and
track deferred discrepancies. Deferred maintenance actions are
identified to supervisory personnel and corrected in accordance with the
criteria provided by the manufacturer or regulatory agency. Constant and
effective communications between maintenance and flight operations
ensure an exchange of critical information.
(vi) Aircraft maintenance program. Aircraft are properly certified
and maintained in a manner that ensures they are airworthy and safe. The
program includes the use of manufacturer's and CAA information, as well
as company policies and procedures. Airworthiness directives are
complied with in the prescribed time frame, and service bulletins are
evaluated for applicable action. Approved reliability programs are
proactive, providing management with visibly on the effectiveness of the
maintenance program; attention is given to initial component and older
aircraft inspection intervals and to deferred maintenance actions.
Special tools and equipment are calibrated.
(vii) Maintenance records. Maintenance actions are well documented
and provide a complete record of maintenance accomplished and, for
repetitive actions, maintenance required. Such records as aircraft log
books and maintenance documentation are legible, dated, clean, readily
identifiable, and maintained in an orderly fashion. Inspection
compliance, airworthiness release, and maintenance release records,
etc., are completed and signed by approved personnel.
(viii) Aircraft appearance. Aircraft exteriors, including all
visible surfaces and components, are clean and well maintained.
Interiors are also clean and orderly. Required safety equipment and
systems are available and operable.
(ix) Fueling and servicing. Aircraft fuel is free from
contamination, and company fuel facilities (farms) are inspected and
results documented. Procedures and instructions pertaining to servicing,
handling, and storing fuel and oil meet established safety standards.
Procedures for monitoring and verifying vendor servicing practices are
included in this program.
(x) Maintenance manuals. Company policy manuals and manufacturer's
maintenance manuals are current, available, clear, complete, and adhered
to by maintenance personnel. These manuals provide maintenance personnel
with standardized procedures for maintaining company aircraft.
Management policies, lines of authority, and company maintenance
procedures are documented in company manuals and kept in a current
status.
(xi) Maintenance facilities. Well maintained, clean maintenance
facilities, adequate for the level of aircraft repair authorized in the
company's CAA certificate are expected. Safety equipment is available in
hangars, shops, etc., and is serviceable. Shipping, receiving, and
stores areas are likewise clean and orderly. Parts are correctly
packaged, tagged, segregated, and shelf life properly monitored.
(5) Quality and safety requirements--security. Company personnel
receive training in security responsibilities and practice applicable
procedures during ground and in-flight operations. Compliance with
provisions of the appropriate standard security program, established by
the Transportation Security Administration or foreign equivalent, is
required for all DOD missions.
(6) Quality and safety requirements--specific equipment
requirements. Air carriers satisfy DOD equipment and other requirements
as specified in DOD agreements.
(7) Quality and safety requirements--oversight of commuter or
foreign air carriers in code-sharing agreements. Air carriers awarded a
route under the Passenger Standing Route Order (PSRO) program, the GSA
City Pair Program, or other DOD program, that includes performance of a
portion of the route by a commuter or foreign air carrier with which it
has a code-sharing arrangement, must have a formal procedure in place to
periodically review and assess the code-sharing air carrier's safety,
operations, and maintenance
[[Page 89]]
programs. The extent of such reviews and assessments must be consistent
with, and related to, the code-sharing air carrier's safety history.
These procedures must also provide for actual inspections of the foreign
code-sharing air carrier if the above reviews and assessments indicate
questionable safety practices.
(8) Quality and safety requirements--aeromedical transport
requirements. (i) The degree of oversight is as determined by the CARB
or higher authority. When an inspection is conducted, DOD medical
personnel may also participate to assess the ability to provide the
patient care and any specialty care required by DOD. The CARB's review
will be limited solely to issues related to flight safety.
(ii) Portable Electronic Devices (PEDs) used in the provision of
medical services or treatment on board aircraft are tested for non-
interference with aircraft systems and the results documented to show
compliance with 14 CFR 91.21 or other applicable CAA regulations. If
there are no CAA regulations, actual use/inflight testing of the same or
similar model PED prior to use with DOD patients is the minimum
requirement.
Sec. 861.5 DOD Commercial Airlift Review Board procedures.
(a) This section establishes procedures to be used by the DOD when,
in accordance with references inSec. 861.1(a) and (b):
(1) An air carrier is subject to review or other action by the DOD
Commercial Airlift Review Board, or CARB;
(2) A warning, suspension, temporary nonuse, or reinstatement action
is considered or taken against a carrier by the CARB; or
(3) An issue involving an air carrier is referred by the CARB to
higher authority for appropriate action.
(b) These procedures apply to air carriers seeking to provide or
already providing air transportation services to DOD. It also applies to
U.S. or foreign air carriers providing operational support services to
DOD which, on a case-by-case basis and at the discretion of the CARB or
higher authority, require some level of oversight by DOD.
(c) An air carrier's sole remedy in the case of a suspension
decision by the CARB is the appellate process under this part.
(d) Quality and safety issues relating to air carriers used, or
proposing to be used, by DOD, per reference (b) must be referred to the
CARB for appropriate disposition.
(e) CARB responsibilities. As detailed in the reference in Sec.
861.1(b), the CARB provides a multifunctional review of the efforts of
the DOD Air Carrier Survey and Analysis Office and is the first level
decision authority in DOD on quality and safety issues relating to air
carriers. Responsibilities include, but are not limited to: the review
and approval or disapproval of air carriers seeking initial approval to
provide air transportation service to DOD; the review and approval or
disapproval of air carriers in the program that do not meet DOD quality
and safety requirements; the review and approval or disapproval of air
carriers in the program seeking to provide a class of service different
from that which they are currently approved; taking action to suspend,
reinstate, or place into temporary nonuse or extended temporary nonuse,
DOD approved carriers; taking action, on an as needed basis, to review,
suspend, reinstate, or place into temporary nonuse or extended temporary
nonuse, an air carrier providing operational support services to DOD;
and, referring with recommendations, issues requiring resolution or
other action by higher authority.
(f) CARB administrative procedures--(1) Membership. The CARB will
consist of four voting members appointed by USCINCTRANS from USTRANSCOM
and its component commands. These members and their alternates will be
general officers or their civilian equivalent, with experience in the
operations, maintenance, transportation, or air safety fields. A
Chairman and alternate will be designated. Nonvoting CARB members will
be appointed as necessary by USCINCTRANS. A non-voting recorder will
also be appointed.
(2) Decisions. Decisions of the CARB will be taken by a majority
vote of the voting members present, with a minimum of three voting
members (or their alternates) required to constitute
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a quorum. In the event of a tie, the Chair of the CARB will decide the
issue.
(3) Meetings of the CARB. The CARB may meet either in person or by
some electronic means. It will be convened by either USCINCTRANS or the
Chair of the CARB. The meeting date, time, and site of the CARB will be
determined at the time of the decision to convene the CARB. Minutes of
CARB meetings will be taken by the recorder, summarized, and preserved
with all other records relating to the CARB meeting. The recorder will
ensure the air carrier and appropriate DOD and federal agencies are
notified of the CARB's decision(s) and reasons therefore. In the event
of a fatal accident, the CARB shall convene as soon as possible but not
later than 72 hours after notification by the Chair.
(g) CARB operating procedures--(1) Placing an air carrier into
temporary nonuse. (i) In case of a fatal aircraft accident or for other
good cause, two or more voting members of the CARB may jointly make an
immediate determination whether to place the air carrier involved into a
temporary nonuse status pending suspension proceedings. Prior notice to
the air carrier is not required.
(ii) The carrier shall be promptly notified of the temporary nonuse
determination and the basis therefore.
(iii) Temporary nonuse status terminates automatically if suspension
proceedings are not commenced, as set out in paragraph (g)(2) of this
section, within 30 days of inception unless the CARB and air carrier
mutually agree to extend the temporary nonuse status.
(2) Suspension of an air carrier. (i) On a recommendation of the DOD
Air Carrier Survey and Analysis Office or any individual voting member
of the CARB, the CARB shall consider whether or not to suspend a DOD
approved air carrier.
(ii) If the CARB determines that suspension may be appropriate, it
shall notify the air carrier that suspension action is under
consideration and of the basis for such consideration. The air carrier
will be offered a hearing within 15 days of the date of the notice, or
other such period as granted by the CARB, at which the air carrier may
be present and may offer evidence. The hearings shall be as informal as
practicable, consistent with administrative due process. Formal rules of
evidence do not apply.
(iii) The types of evidence which may be considered includes, but is
not limited to:
(A) Information and analysis provided by the DOD Air Carrier Survey
and Analysis Office.
(B) Information submitted by the air carrier.
(C) Information relating to action that may have been taken by the
air carrier to:
(1) Correct the specific deficiencies that led the CARB to consider
suspension; and
(2) Preclude recurring similar deficiencies.
(D) Other matters the CARB deems relevant.
(iv) The CARB's decisions on the reception or exclusion of evidence
shall be final.
(v) Air carriers shall have the burden of proving their suitability
to safely perform DOD air transportation and/or operational support
services by clear and convincing evidence.
(vi) After the conclusion of such hearing, or if no hearing is
requested and attended by the air carrier within the time specified by
the CARB, the CARB shall consider the matter and make a final decision
whether or not to suspend the air carrier or to impose such lesser
sanctions as appropriate. The air carrier will be notified of the CARB's
decision.
(3) Reinstatement. (i) The CARB may consider reinstating a suspended
carrier on either CARB motion or carrier motion, unless such carrier has
become ineligible in the interim.
(ii) The carrier has the burden of proving by clear and convincing
evidence that reinstatement is warranted. The air carrier must satisfy
the CARB that the deficiencies, which led to suspension, have been
corrected and that action has been implemented to preclude the
recurrence of similar deficiencies.
(iii) Air carrier evidence in support of reinstatement will be
provided in a timely manner to the CARB for its review. The CARB may
independently
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corroborate the carrier-provided evidence and may, at its option,
convene a hearing and request the participation of the air carrier.
(4) Appeal of CARB decisions. (i) An air carrier placed in
suspension by the CARB may administratively appeal this action to
USCINCTRANS. An appeal, if any, must be filed in writing, with the DOD
Air Carrier Survey and Analysis Office, and postmarked within 15
workdays of receipt of notice of the CARB's suspension decision. In the
sole discretion of USCINCTRANS, and for good cause shown, the suspension
may be stayed pending action on the appeal.
(ii) Air carriers shall not be entitled to a de novo hearing or
personal presentation before the appellate authority.
(iii) The decision of the appellate authority is final and is not
subject to further administrative review or appeal.
(5) Referral of issues to higher authorities. The approval or
disapproval of an air carrier for use by DOD, the placing of approved
carriers into temporary nonuse status, and the suspension and
reinstatement of approved carriers, are all decisions which must be made
by the CARB. Other matters may be referred by the CARB to USCINCTRANS
for appropriate action, with or without recommendations by the CARB. The
CARB will forward for decision, through USCINCTRANS to the Under
Secretary of Defense (Acquisition, Technology and Logistics)
(USD(AT&L)), all air carrier use/nonuse recommendations involving
foreign air carriers other than those providing charter transportation
or operational support service to the Department of Defense.
Sec. 861.6 DOD review of foreign air carriers.
Foreign air carriers providing or seeking to provide services to DOD
shall be subject to review and, if appropriate, approval by DOD.
Application of the criteria and requirements of this part and the degree
of oversight to be exercised by DOD, if any, over a foreign air carrier
depends upon the type of services performed and, in some instances, by
the quality of oversight exercised by the foreign air carrier's CAA. The
scope and frequency of the review of any given foreign air carrier under
this part will be at the discretion of the CARB or higher authority.
(a) Foreign air carriers seeking to provide or providing air
transportation services under a contract or Military Air Transportation
Agreement with DOD, or pursuant to another arrangement entered into by,
or on behalf of, DOD. Foreign air carriers seeking to provide or
providing air transportation services under a contract or Military Air
Transportation Agreement with DOD, must meet all requirements of Sec.
861.4, and be approved by the CARB in accordance with Sec. 861.5. This
includes foreign air carriers seeking to provide, or providing, airlift
services to DOD personnel pursuant to an arrangement entered into by
another federal agency, state agency, foreign government, international
organization, or other entity or person on behalf of, or for the benefit
of, DOD, regardless of whether DOD pays for the airlift services
provided. For purposes of establishing the degree of oversight and
review to be conducted under the DOD Commercial Air Transportation
Quality and Safety Review Program, such foreign air carriers are
considered the same as U.S. carriers. In addition, they must have an
operating certificate issued by the appropriate CAA using regulations
which are the substantial equivalent of those found in the U.S. FARs,
and must maintain such certification throughout the term of the contract
or agreement. The CAA responsible for exercising oversight of the
foreign air carrier must meet ICAO standards as determined by ICAO, or
the FAA under the FAA's International Aviation Safety Assessment
Program.
(b) Foreign air carriers providing passenger services under the GSA
City Pair Program. Foreign air carriers performing any portion of a
route awarded to a U.S. air carrier under the GSA City Pair Program
pursuant to a code-sharing agreement with that U.S. air carrier, are
generally not subject to DOD survey and approval under Sec. Sec. 861.4
and 861.5. However, DOD will periodically review the performance of such
foreign carriers. This review may consist of recurring performance
evaluations, periodic examination of the U.S.
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code-sharing carrier's operational reviews and assessments of the
foreign carrier and, where appropriate and agreed to by the air carriers
concerned and DOD, on-site surveys of the foreign air carrier. Such
carriers must also meet the 12 months prior experience requirement of
Sec. 861.4(e)(1). The CARB or higher authority may prescribe additional
review requirements. Should circumstances warrant, use of these air
carriers by DOD passengers on official business may be restricted or
prohibited as necessary to assure the highest levels of passenger
safety.
(c) Other foreign air carriers carrying individually ticketed DOD
passengers on official business. Foreign air carriers carrying
individually ticketed DOD passengers on official business are not
subject to DOD survey and approval under Sec. Sec. 861.4 and 861.5.
However, the DOD Air Carrier Survey and Analysis Division may
periodically review the performance of such carriers. Reviews may
include voluntary on-site surveys as directed by the CARB or higher
authority. In the event questions relating to the safety and continued
use of the carrier arise, the matter may be referred to the CARB for
appropriate action.
(d) Foreign air carriers from countries in which the CAA is not in
compliance with ICAO standards. Unless otherwise authorized, use by DOD
personnel on official business of foreign air carriers from countries in
which the CAA is not in compliance with ICAO standards is prohibited
except for the last leg into and the first leg out of the U.S. on such
carriers. This includes foreign air carriers performing any portion of a
route awarded to a U.S. air carrier under the GSA City Pair Program
pursuant to a code-sharing agreement with that U.S. air carrier.
(e) On-site surveys. The scope of the on-site survey of a foreign
air carrier will be at the discretion of the CARB. In the event a
foreign air carrier denies a request made under this part to conduct an
on-site survey, the CARB will consider all available information and
make a use/nonuse recommendation to DOD. If placed in nonuse status by
DOD, such air carriers will not be used unless, in accordance with the
reference in Sec. 861.1 (b), in the judgment of the appropriate
Combatant Commander, no acceptable alternative to using the carrier
exists and the travel is mission essential.
(f) Foreign carriers providing operational support services to DOD.
Such carriers are subject to DOD oversight, on a case-by-case basis, to
the extent directed by the CARB or higher authority.
Sec. 861.7 Disclosure of voluntarily provided safety-related information.
(a) General. In accordance with paragraph (h) of the reference in
Sec. 861.1 (a), DOD may withhold from public disclosure safety-related
information voluntarily provided to DOD by an air carrier for the
purposes of this part if DOD determines that--
(1) The disclosure of the information would, in the future, inhibit
an air carrier from voluntarily providing such information to DOD or
another Federal agency for the purposes of this part or for other air
safety purposes; and
(2) The receipt of such information generally enhances the
fulfillment of responsibilities under this part or other air safety
responsibilities involving DOD or another Federal agency.
(b) Processing requests for disclosure of voluntarily provided
safety-related information. Requests for public disclosure will be
administratively processed in accordance with 32 CFR part 806, Air Force
Freedom of Information Act Program.
(c) Disclosure of voluntarily provided safety-related information to
other agencies. The Department of Defense may, at its discretion,
disclose voluntarily provided safety-related information submitted under
this part by an air carrier, to other agencies with safety
responsibilities. The DOD will provide such information to another
agency only upon receipt of adequate assurances that it will protect the
information from public disclosure, and that it will not release such
information unless specifically authorized.
[[Page 93]]
SUBCHAPTER G_ORGANIZATION AND MISSION_GENERAL
PART 865_PERSONNEL REVIEW BOARDS--Table of Contents
Subpart A_Air Force Board for Correction of Military Records
Sec.
865.0 Purpose.
865.1 Setup of the Board.
865.2 Board responsibilities.
865.3 Application procedures.
865.4 Board actions.
865.5 Decision of the Secretary of the Air Force.
865.6 Reconsideration of applications.
856.7 Action after final decision.
865.8 Miscellaneous provisions.
Subpart B_Air Force Discharge Review Board
865.100 Purpose.
865.101 References.
865.102 Statutory authority.
865.103 Definition of terms.
865.104 Secretarial responsibilities.
865.105 Jurisdiction and authority.
865.106 Application for review.
865.107 DRB composition and meeting location.
865.108 Availability of records and documents.
865.109 Procedures for hearings.
865.110 Decision process.
865.111 Response to items submitted as issues by the applicant.
865.112 Decisional issues.
865.113 Recommendations by the Director of the Personnel Council and
Secretarial Review Authority.
865.114 Decisional document.
865.115 Issuance of decisions following discharge review.
865.116 Records of DRB proceeding.
865.117 Final disposition of the record of proceedings.
865.118 Availability of Discharge Review Board documents for public
inspection and copying.
865.119 Privacy Act information.
865.120 Discharge review standards.
865.121 Complaints concerning decisional documents and index entries.
865.122 Summary of statistics for Discharge Review Board.
865.123 Approval of exceptions to directive.
865.124 Procedures for regional hearings.
865.125 Report requirement.
865.126 Sample report format.
Subpart A_Air Force Board for Correction of Military Records
Source: 75 FR 596132, Sept. 28, 2010, unless otherwise noted.
Sec. 865.0 Purpose.
This subpart sets up procedures for correction of military records
to remedy error or injustice. It tells how to apply for correction of
military records and how the Air Force Board for Correction of Military
Records (AFBCMR, or the Board) considers applications. It defines the
Board's authority to act on applications. It directs collecting and
maintaining information subject to the Privacy Act of 1974 authorized by
10 U.S.C. 1034 and 1552. System of Records notice F035 SAFCB A, Military
Records Processed by the Air Force Correction Board, applies.
Sec. 865.1 Setup of the Board.
The AFBCMR operates within the Office of the Secretary of the Air
Force according to 10 U.S.C. 1552. The Board consists of civilians in
the executive part of the Department of the Air Force who are appointed
and serve at the pleasure of the Secretary of the Air Force. Three
members constitute a quorum of the Board.
Sec. 865.2 Board responsibilities.
(a) Considering applications. The Board considers all individual
applications properly brought before it. In appropriate cases, it
directs correction of military records to remove an error or injustice,
or recommends such correction.
(b) Recommending action. When an applicant alleges reprisal under
the Military Whistleblowers Protection Act, 10 U.S.C. 1034, the Board
may recommend to the Secretary of the Air Force that disciplinary or
administrative action be taken against those responsible for the
reprisal.
(c) Deciding cases. The Board normally decides cases on the evidence
of the record. It is not an investigative body. However, the Board may,
in its discretion, hold a hearing or call for
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additional evidence or opinions in any case.
Sec. 865.3 Application procedures.
(a) Who may apply:
(1) In most cases, the applicant is a member or former member of the
Air Force, since the request is personal to the applicant and relates to
his or her military records.
(2) An applicant with a proper interest may request correction of
another person's military records when that person is incapable of
acting on his or her own behalf, is missing, or is deceased. Depending
on the circumstances, a child, spouse, civilian employee or former
civilian employee, former spouse, parent or other close relative, an
heir, or a legal representative (such as a guardian or executor) of the
member or former member may be able to show a proper interest.
Applicants will send proof of proper interest with the application when
requesting correction of another person's military records. An
application may be returned when proper interest has not been shown.
(3) A member, former member, employee or former employee, dependent,
and current or former spouse may apply to correct a document or other
record of any other military matter that affects them (This does not
include records pertaining to civilian employment matters). Applicants
will send proof of the effect of the document or record upon them with
the application when requesting a correction under this provision.
(b) Getting forms. Applicants may get a DD Form 149, ``Application
for Correction of Military Record Under the Provisions of Title 10
U.S.C. 1552,'' and Air Force Pamphlet 36-2607, ``Applicants' Guide to
the Air Force Board for Correction of Military Records (AFBCMR),'' from:
(1) Any Air Force Military Personnel Flight (MPF) or publications
distribution office.
(2) Most veterans' service organizations.
(3) The Air Force Review Boards Office, SAF/MRBR, 550 C Street West,
Suite 40, Randolph AFB TX 78150-4742.
(4) The AFBCMR, 1535 Command Drive, EE Wing 3rd Floor, Andrews AFB
MD 20762-7002.
(5) Thru the Internet at http://www.dtic.mil/whs/directives/infomgt/
forms/eforms/dd0149.pdf (DD Form 149) and http://www.e-
publishing.af.mil/shared/media/epubs/AFPAM36-2607.pdf (Air Force
Pamphlet 36-2607).
(c) Preparation. Before applying, applicants should:
(1) Review Air Force Pamphlet 36-2607.
(2) Discuss their concerns with MPF, finance office, or other
appropriate officials. Errors can often be corrected administratively
without resort to the Board.
(3) Exhaust other available administrative remedies (otherwise the
Board may return the request without considering it).
(d) Submitting the application. Applicants should complete all
applicable sections of the DD Form 149, including at least:
(1) The name under which the member served.
(2) The member's social security number or Air Force service number.
(3) The applicant's current mailing address.
(4) The specific records correction being requested.
(5) Proof of proper interest if requesting correction of another
person's records.
(6) The applicant's original signature.
(e) Applicants should mail the original signed DD Form 149 and any
supporting documents to the Air Force address on the back of the form.
(f) Meeting time limits. Ordinarily, applicants must file an
application within 3 years after the error or injustice was discovered,
or, with due diligence, should have been discovered. In accordance with
federal law, time on active duty is not included in the 3 year period.
An application filed later is untimely and may be denied by the Board on
that basis.
(1) The Board may excuse untimely filing in the interest of justice.
(2) If the application is filed late, applicants should explain why
it would be in the interest of justice for the Board to waive the time
limits.
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(g) Stay of other proceedings. Applying to the AFBCMR does not stay
other proceedings.
(h) Counsel representation. Applicants may be represented by
counsel, at their own expense.
(1) The term ``counsel'' includes members in good standing of the
bar of any state, accredited representatives of veterans' organizations
recognized under by the Secretary of Veterans Affairs pursuant to 38
U.S.C. 5902(a)(1), and other persons determined by the Executive
Director of the Board to be competent to represent the interests of the
applicant.
(2) See DoDD 7050.06, Military Whistleblower Protection \1\ and AFI
90-301, Inspector General Complaints Resolution, for special provisions
for counsel in cases processed under 10 U.S.C. 1034.
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\1\ Available via the Internet at http://www.dtic.mil/whs/
directives/corres/pdf/705006p.pdf.
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(i) Page limitations on briefs. Briefs in support of applications:
(1) May not exceed 25 double-spaced typewritten pages.
(2) Must be typed on one side of a page only with not more than 12
characters per inch.
(3) Must be assembled in a manner that permits easy reproduction.
(4) Responses to advisory opinions must not exceed 10 double-spaced
typewritten pages and meet the other requirements for briefs.
(5) These limitations do not apply to supporting documentary
evidence.
(6) In complex cases and upon request, the Executive Director of the
Board may waive these limitations.
(j) Withdrawing applications. Applicants may withdraw an application
at any time before the Board's decision. Withdrawal does not stay the 3-
year time limit.
(k) Authority to reject applications. The Executive Director may
return an application without action, if, after consultation with legal
counsel, he or she determines that the application is clearly frivolous,
or the remedy that is requested is beyond the authority of the Board.
This authority may not be delegated.
Sec. 865.4 Board actions.
(a) Board information sources. The applicant has the burden of
providing sufficient evidence of material error or injustice. However,
the Board:
(1) May get additional information and advisory opinions on an
application from any Air Force organization or official.
(2) May ask the applicant to furnish additional information
regarding matters before the Board.
(b) Applicants will be given an opportunity to review and comment on
advisory opinions and additional information obtained by the Board. They
will also be provided with a copy of correspondence to or from the Air
Force Review Boards Agency with an entity outside the Air Force Review
Boards Agency in accordance with the provisions of 10 U.S.C. 1556.
(c) Consideration by the Board. A panel consisting of at least three
board members considers each application. One panel member serves as its
chair. The panel's actions and decisions constitute the actions and
decisions of the Board.
(d) The panel may decide the case in executive session or authorize
a hearing. When a hearing is authorized, the procedures in Sec.
865.4(f), of this part, apply.
(e) Board deliberations. Normally only members of the Board and
Board staff will be present during deliberations. The panel chair may
permit observers for training purposes or otherwise in furtherance of
the functions of the Board.
(f) Board hearings. The Board in its sole discretion determines
whether to grant a hearing. Applicants do not have a right to a hearing
before the Board.
(1) The Executive Director will notify the applicant or counsel, if
any, of the time and place of the hearing. Written notice will be mailed
30 days in advance of the hearing unless the notice period is waived by
the applicant. The applicant will respond not later than 15 days before
the hearing date, accepting or declining the offer of a hearing and, if
accepting, provide information pertaining to counsel and witnesses. The
Board will decide the case in executive
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session if the applicant declines the hearing or fails to appear.
(2) When granted a hearing, the applicant may appear before the
Board with or without counsel and may present witnesses. It is the
applicant's responsibility to notify witnesses, arrange for their
attendance at the hearing, and pay any associated costs.
(3) The panel chair conducts the hearing, maintains order, and
ensures the applicant receives a full and fair opportunity to be heard.
Formal rules of evidence do not apply, but the panel observes reasonable
bounds of competency, relevancy, and materiality. Witnesses other than
the applicant will not be present except when testifying. Witnesses will
testify under oath or affirmation. A recorder will record the
proceedings verbatim. The chair will normally limit hearings to 2 hours
but may allow more time if necessary to ensure a full and fair hearing.
(4) Additional provisions apply to cases processed under 10 U.S.C.
1034. See DoDD 7050.06, Military Whistleblower Protection \2\, and AFI
90-301, Inspector General Complaints Resolution.
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\2\ Copies may be obtained via the Internet at http://www.dtic.mil/
whs/directives/corres/pdf/705006p.pdf.
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(g) The Board will not deny or recommend denial of an application on
the sole ground that the issue already has been decided by the Secretary
of the Air Force or the President of the United States in another
proceeding.
(h) Board decisions. The panel's majority vote constitutes the
action of the Board. The Board will make determinations on the following
issues in writing:
(1) Whether the provisions of the Military Whistleblowers Protection
Act apply to the application. This determination is needed only when the
applicant invokes the protection of the Act, or when the question of its
applicability is otherwise raised by the evidence.
(2) Whether the application was timely filed and, if not, whether
the applicant has demonstrated that it would be in the interest of
justice to excuse the untimely filing. When the Board determines that an
application is not timely, and does not excuse its untimeliness, the
application will be denied on that basis.
(3) Whether the applicant has exhausted all available and effective
administrative remedies. If the applicant has not, the application will
be denied on that basis.
(4) Whether the applicant has demonstrated the existence of a
material error or injustice that can be remedied effectively through
correction of the applicant's military record and, if so, what
corrections are needed to provide full and effective relief.
(5) In Military Whistleblowers Protection Act cases only, whether to
recommend to the Secretary of the Air Force that disciplinary or
administrative action be taken against any Air Force official whom the
Board finds to have committed an act of reprisal against the applicant.
Any determination on this issue will not be made a part of the Board's
record of proceedings and will not be given to the applicant, but will
be provided directly to the Secretary of the Air Force under separate
cover (Sec 865.2b, of this part).
(i) Record of proceedings. The Board staff will prepare a record of
proceedings following deliberations which will include:
(1) The name and vote of each Board member.
(2) The application.
(3) Briefs and written arguments.
(4) Documentary evidence.
(5) A hearing transcript if a hearing was held.
(6) Advisory opinions and the applicant's related comments.
(7) The findings, conclusions, and recommendations of the Board.
(8) Minority reports, if any.
(9) Other information necessary to show a true and complete history
of the proceedings.
(j) Minority reports. A dissenting panel member may prepare a
minority report which may address any aspect of the case.
(k) Separate communications. The Board may send comments or
recommendations to the Secretary of the Air Force as to administrative
or disciplinary action against individuals found to have committed acts
of reprisal prohibited by the Military Whistleblowers Protection Act and
on other
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matters arising from an application not directly related to the
requested correction of military records. Such comments and
recommendations will be separately communicated and will not be included
in the record of proceedings or given to the applicant or counsel.
(l) Final action by the Board. The Board acts for the Secretary of
the Air Force and its decision is final when it:
(1) Denies any application (except under 10 U.S.C. 1034).
(2) Grants any application in whole or part when the relief was
recommended by the official preparing the advisory opinion, was
unanimously agreed to by the panel, and does not affect an appointment
or promotion requiring confirmation by the Senate, and does not affect a
matter for which the Secretary of the Air Force or his or her delegee
has withheld decision authority or required notification before final
decision.
(3) The Board sends the record of proceedings on all other
applications to the Secretary of the Air Force or his or her designee
for final decision.
(m) The Board may identify DoD or Air Force policies, instructions,
guidance or practices that are leading to, or likely to lead to unsound
business decisions, unfair results, waste of government funds or public
criticism. The Board will forward such observations directly to the
appropriate offices of the Secretariat and/or Air Staff for review and
evaluation. Such observations will not be included in the record of
proceedings.
Sec. 865.5 Decision of the Secretary of the Air Force.
(a) The Secretary may direct such action as he or she deems
appropriate on each case, including returning the case to the Board for
further consideration. Cases returned to the Board for further
reconsideration will be accompanied by a brief statement of the reasons
for such action. If the Secretary does not accept the Board's
recommendation, the Secretary's decision will be in writing and will
include a brief statement of the grounds for his/her final decision.
(b) Decisions in cases under the Military Whistleblowers Protection
Act. The Secretary will issue decisions on such cases within 180 days
after receipt of the case and will, unless the full relief requested is
granted, inform applicants of their right to request review of the
decision by the Secretary of Defense (SecDef). Applicants will also be
informed:
(1) Of the name and address of the official to whom the request for
review must be submitted.
(2) That the request for review must be submitted within 90 days
after receipt of the decision by the Secretary of the Air Force.
(3) That the request for review must be in writing and include the
applicant's name, address, and telephone number; a copy of the
application to the AFBCMR and the final decision of the Secretary of the
Air Force; and a statement of the specific reasons the applicant is not
satisfied with the decision of the Secretary of the Air Force.
(4) That the request must be based on the Board record; requests for
review based on factual allegations or evidence not previously presented
to the Board will not be considered under this paragraph but may be the
basis for reconsideration by the Board under Sec. 865.6.
(c) In cases under Sec. 865.5(b) of this part which involve
additional issues not cognizable under that paragraph, the additional
issues may be considered separately by the Board under Sec. 865.3 and
Sec. 865.4 of this part. The special time limit in Sec. 865.5 (b) does
not apply to the decision concerning these additional issues.
(d) Decisions in high profile or sensitive cases. Prior to taking
final action on a BCMR application that has generated, or is likely to
generate, significant public or Congressional interest, the Secretarial
designee will provide the case record of proceedings through Secretarial
channels to OSAF so that the Secretary can determine whether to decide
the case personally or take other action the Secretary deems
appropriate.
Sec. 865.6 Reconsideration of applications.
(a) The Board may reconsider an application if the applicant submits
newly discovered relevant evidence
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that was not reasonably available when the application was previously
considered. The Executive Director or Team Chiefs will screen each
request for reconsideration to determine whether it contains new
evidence. New arguments about, or analysis of, evidence already
considered, and additional statements which are cumulative to those
already in the record of proceedings will not be considered new
evidence.
(b) If the request contains new evidence, the Executive Director or
his/her designee will refer it to a panel of the Board for a decision.
The Board will decide the relevance and weight of any new evidence,
whether it was reasonably available to the applicant when the
application was previously considered, and whether it was submitted in a
timely manner. The Board may deny reconsideration if the request does
not meet the criteria for reconsideration. Otherwise the Board will
reconsider the application and decide the case either on timeliness or
merit as appropriate.
(c) If the request does not contain new evidence, the Executive
Director or his/her designee will return it to the applicant without
referral to the Board.
Sec. 856.7 Action after final decision.
(a) Action by the Executive Director. The Executive Director or his/
her designee will inform the applicant or counsel, if any, of the final
decision on the application. If any requested relief was denied, the
Executive Director will advise the applicant of reconsideration
procedures and, for cases processed under the Military Whistleblowers
Protection Act, review by the SecDef. The Executive Director will send
decisions requiring corrective action to the Chief of Staff, U.S. Air
Force, for necessary action.
(b) Settlement of claims. The Air Force is authorized, under 10
U.S.C. 1552, to pay claims for amounts due to applicants as a result of
correction of military records.
(1) The Executive Director will furnish the Defense Finance and
Accounting Service (DFAS) with AFBCMR decisions potentially affecting
monetary entitlement or benefits. DFAS will treat such decisions as
claims for payment by or on behalf of the applicant.
(2) DFAS settles claims on the basis of the corrected military
record. Computation of the amount due, if any, is a function of DFAS.
Applicants may be required to furnish additional information to DFAS to
establish their status as proper parties to the claim and to aid in
deciding amounts due.
(3) Earnings received from civilian employment during any period for
which active duty pay and allowances are payable will be deducted from
the settlement. Amounts found due will be offset by the amount of any
existing indebtedness to the government in compliance with the Debt
Collection Act of 1982 or successor statutes.
(c) Public access to decisions. After deletion of personal
information, AFBCMR decisions will be made available for review and
copying at an electronic public reading room.