[Title 32 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2021 Edition]
[From the U.S. Government Publishing Office]



[[Page i]]

          

          Title 32

National Defense


________________________

Parts 1 to 190

                         Revised as of July 1, 2021

          Containing a codification of documents of general 
          applicability and future effect

          As of July 1, 2021
                    Published by the Office of the Federal Register 
                    National Archives and Records Administration as a 
                    Special Edition of the Federal Register

[[Page ii]]

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                            Table of Contents



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

  Title 32:
    SUBTITLE A--Department of Defense
          Chapter I--Office of the Secretary of Defense              3
  Finding Aids:
      Table of CFR Titles and Chapters........................     921
      Alphabetical List of Agencies Appearing in the CFR......     941
      List of CFR Sections Affected...........................     951

[[Page iv]]





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

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 32 CFR 2.1 refers to 
                       title 32, part 2, section 
                       1.

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

[[Page v]]



                               EXPLANATION

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

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

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

LEGAL STATUS

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

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
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    To determine whether a Code volume has been amended since its 
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EFFECTIVE AND EXPIRATION DATES

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OMB CONTROL NUMBERS

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

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
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PAST PROVISIONS OF THE CODE

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INCORPORATION BY REFERENCE

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This material, like any other properly issued regulation, has the force 
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that volume.

[[Page vii]]

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    Oliver A. Potts,
    Director,
    Office of the Federal Register
    July 1, 2021







[[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, 2021.

    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, Gabrielle E. Burns 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 parts 1 to 190)

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

                    SUBTITLE A--Department of Defense

                                                                    Part

chapter i--Office of the Secretary of Defense...............           2

[[Page 3]]

                    Subtitle A--Department of Defense

[[Page 5]]



              CHAPTER I--OFFICE OF THE SECRETARY OF DEFENSE




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

                        SUBCHAPTER A--ACQUISITION
Part                                                                Page
1

[Reserved]

2               Pilot program policy........................           9
3               Transactions other than contracts, grants, 
                    or cooperative agreements for prototype 
                    projects................................          11
4-8

[Reserved]

                         SUBCHAPTER B [RESERVED]
            SUBCHAPTER C--DOD GRANT AND AGREEMENT REGULATIONS
21              DoD grants and agreements--general matters..          20
22              DoD grants and agreements--award and 
                    administration..........................          31
26              Governmentwide requirements for drug-free 
                    workplace (financial assistance)........          52
28              New restrictions on lobbying................          57
34              Administrative requirements for grants and 
                    agreements with for-profit organizations          69
37              Technology investment agreements............          88
             SUBCHAPTER D--PERSONNEL, MILITARY AND CIVILIAN
44              Screening the Ready Reserve.................         143
45              Medical malpractice claims by members of the 
                    uniformed services (Eff. 7-19-21).......         145
47              Active duty service for civilian or 
                    contractual groups......................         157
50              Personal commercial solicitation on DoD 
                    installations...........................         162
53              Wearing of the uniform......................         172
56              Nondiscrimination on the basis of handicap 
                    in programs and activities assisted or 
                    conducted by the Department of Defense..         173
57              Provision of early intervention and special 
                    education services to eligible DoD 
                    dependents..............................         193

[[Page 6]]

60              Family advocacy command assistance team 
                    (FACAT).................................         242
61              Family advocacy program (FAP)...............         246
66              Qualification standards for enlistment, 
                    appointment, and induction..............         287
67              Educational requirements for appointment of 
                    Reserve component officers to a grade 
                    above first lieutenant or lieutenant 
                    (junior grade)..........................         296
68              Voluntary education programs................         298
69              School boards for Department of Defense 
                    domestic dependent elementary and 
                    secondary schools.......................         327
70              Discharge Review Board (DRB) procedures and 
                    standards...............................         331
74              Appointment of doctors of osteopathy as 
                    medical officers........................         364
75              Exceptional family member program (EFMP)....         365
79              Child development programs (CDPs)...........         369
86              Background checks on individuals in DoD 
                    child care services programs............         402
89              Interstate compact on educational 
                    opportunity for military children.......         412
93              Acceptance of service of process; release of 
                    official information in litigation; and 
                    testimony by NSA personnel as witnesses.         420
94              Naturalization of aliens serving in the 
                    Armed Forces of the United States and of 
                    alien spouses and/or alien adopted 
                    children of military and civilian 
                    personnel ordered overseas..............         425
97              Release of official information in 
                    litigation and testimony by DoD 
                    personnel as witnesses..................         428
99              Procedures for States and localities to 
                    request indemnification.................         432
103             Sexual assault prevention and response 
                    (SAPR) program..........................         434
107             Personal services authority for direct 
                    health care providers...................         459
108             Health care eligibility under the 
                    Secretarial Designee Program and related 
                    special authorities.....................         461
111             Transitional compensation for abused 
                    dependents..............................         466
113             Indebtedness procedures of military 
                    personnel...............................         468
114             Victim and witness assistance...............         484
117             National Industrial Security Program 
                    Operating Manual (NISPOM)...............         501
142             Copyrighted sound and video recordings......         590
145             Cooperation with the Office of Special 
                    Counsel of the Merit Systems Protection 
                    Board...................................         591

[[Page 7]]

147             Adjudicative guidelines for determining 
                    eligibility for access to classified 
                    information.............................         596
148             National policy and implementation of 
                    reciprocity of facilities...............         609
        SUBCHAPTER E--REGULATIONS PERTAINING TO MILITARY JUSTICE
150             Courts of criminal appeals rules of practice 
                    and procedure...........................         613
151             Foreign criminal and civil jurisdiction.....         621
152             Review of the Manual for Courts-Martial.....         624
153             Criminal jurisdiction over civilians 
                    employed by or accompanying the Armed 
                    Forces outside the United States, 
                    certain service members, and former 
                    service members.........................         628
                         SUBCHAPTER F--SECURITY
155             Defense Industrial Personnel Security 
                    Clearance Program.......................         649
156             Department of Defense Personnel Security 
                    Program (PSP)...........................         656
157             DoD investigative and adjudicative guidance 
                    for issuing the Common Access Card (CAC)         663
158             Operational contract support................         677
159             Private security contractors operating in 
                    contingency operations..................         707
161             Identification (ID) cards for members of the 
                    Uniformed Services, their dependents and 
                    other eligible individuals..............         713
                    SUBCHAPTER G--DEFENSE CONTRACTING
168a            National Defense Science and Engineering 
                    Graduate Fellowships....................         791
169             Commercial activities program...............         792
169a            Commercial activities program procedures....         796
173             Competitive information certificate and 
                    profit reduction clause.................         837
                 SUBCHAPTER H--CLOSURES AND REALIGNMENT
174             Revitalizing base closure communities and 
                    addressing impacts of realignment.......         841
175             Indemnification or defense, or providing 
                    notice to the Department of Defense, 
                    relating to a third-party environmental 
                    claim...................................         855
176             Revitalizing base closure communities and 
                    community assistance--community 
                    redevelopment and homeless assistance...         860

[[Page 8]]

179             Munitions Response Site Prioritization 
                    Protocol (MRSPP)........................         869
                       SUBCHAPTERS I-K [RESERVED]
                        SUBCHAPTER L--ENVIRONMENT
187             Environmental effects abroad of major 
                    Department of Defense actions...........         900
188             DoD environmental laboratory accreditation 
                    program (ELAP)..........................         909
189-190

[Reserved]

[[Page 9]]



                        SUBCHAPTER A_ACQUISITION



                            PART 1 [RESERVED]



PART 2_PILOT PROGRAM POLICY--Table of Contents



Sec.
2.1 Purpose.
2.2 Statutory relief for participating programs.
2.3 Regulatory relief for participating programs.
2.4 Designation of participating programs.
2.5 Criteria for designation of participating programs.

    Authority: 10 U.S.C. 2340 note.

    Source: 62 FR 17549, Apr. 10, 1997, unless otherwise noted.



Sec.  2.1  Purpose.

    Section 809 of Public Law 101-510, ``National Defense Authorization 
Act for Fiscal Year 1991,'' as amended by section 811 of Public Law 102-
484, ``National Defense Authorization Act for Fiscal Year 1993'' and 
Public Law 103-160, ``National Defense Authorization Act for Fiscal Year 
1994,'' authorizes the Secretary of Defense to conduct the Defense 
Acquisition Pilot Program. In accordance with section 809 of Public Law 
101-510, the Secretary may designate defense acquisition programs for 
participation in the Defense Acquisition Pilot Program.
    (a) The purpose of the pilot programs is to determine the potential 
for increasing the efficiency and effectiveness of the acquisition 
process. Pilot programs shall be conducted in accordance with the 
standard commercial, industrial practices. As used in this policy, the 
term ``standard commercial, industrial practice'' refers to any 
acquisition management practice, process, or procedure that is used by 
commercial companies to produce and sell goods and services in the 
commercial marketplace. This definition purposely implies a broad range 
of potential activities to adopt commercial practices, including 
regulatory and statutory streamlining, to eliminate unique Government 
requirements and practices such as government-unique contracting 
policies and practices, government-unique specifications and standards, 
and reliance on cost determination rather than price analysis.
    (b) Standard commercial, industrial practices include, but are not 
limited to:
    (1) Innovative contracting policies and practices;
    (2) Performance and commercial specifications and standards;
    (3) Innovative budget policies;
    (4) Establishing fair and reasonable prices without cost data;
    (5) Maintenance of long-term relationships with quality suppliers;
    (6) Acquisition of commercial and non-developmental items (including 
components); and
    (7) Other best commercial practices.



Sec.  2.2  Statutory relief for participating programs.

    (a) Within the limitations prescribed, the applicability of any 
provision of law or any regulation prescribed to implement a statutory 
requirement may be waived for all programs participating in the Defense 
Acquisition Pilot Program, or separately for each participating program, 
if that waiver or limit is specifically authorized to be waived or 
limited in a law authorizing appropriations for a program designated by 
statute as a participant in the Defense Acquisition Pilot Program.
    (b) Only those laws that prescribe procedures for the procurement of 
supplies or services; a preference or requirement for acquisition from 
any source or class of sources; any requirement related to contractor 
performance; any cost allowability, cost accounting, or auditing 
requirements; or any requirement for the management of, testing to be 
performed under, evaluation of, or reporting on a defense acquisition 
program may be waived.
    (c) The requirements in section 809 of Public Law 101-510, as 
amended by section 811 of Public Law 102-484, the requirements in any 
law enacted on or after the enactment of Public Law 101-510 (except to 
the extent that a waiver or limitation is specifically authorized for 
such a defense acquisition program by statute), and any provision of law 
that ensures the financial integrity of

[[Page 10]]

the conduct of a Federal Government program or that relates to the 
authority of the Inspector General of the Department of Defense may not 
be considered for waiver.



Sec.  2.3  Regulatory relief for participating programs.

    (a) A program participating in the Defense Acquisition Pilot Program 
will not be subject to any regulation, policy, directive, or 
administrative rule or guideline relating to the acquisition activities 
of the Department of Defense other than the Federal Acquisition 
Regulation (FAR) \1\, the Defense FAR Supplement (DFARS) \2\, or those 
regulatory requirements added by the Under Secretary of Defense for 
Acquisition and Technology, the Head of the Component, or the DoD 
Component Acquisition Executive.
---------------------------------------------------------------------------

    \1\ Copies of this Department of Defense publication may be obtained 
from the Government Printing Office, Superintendent of Documents, 
Washington, DC 20402.
    \2\ See footnote 1 to Sec.  2.3(a).
---------------------------------------------------------------------------

    (b) Provisions of the FAR and/or DFARS that do not implement 
statutory requirements may be waived by the Under Secretary of Defense 
for Acquisition and Technology using appropriate administrative 
procedures. Provisions of the FAR and DFARS that implement statutory 
requirements may be waived or limited in accordance with the procedures 
for statutory relief previously mentioned.
    (c) Regulatory relief includes relief from use of government-unique 
specifications and standards. Since a major objective of the Defense 
Acquisition Pilot Program is to promote standard, commercial industrial 
practices, functional performance and commercial specifications and 
standards will be used to the maximum extent practical. Federal or 
military specifications and standards may be used only when no practical 
alternative exists that meet the user's needs. Defense acquisition 
officials (other than the Program Manager or Commodity Manager) may only 
require the use of military specifications and standards with advance 
approval from the Under Secretary of Defense for Acquisition and 
Technology, the Head of the DoD Component, or the DoD Component 
Acquisition Executive.



Sec.  2.4  Designation of participating programs.

    (a) Pilot programs may be nominated by a DoD Component Head or 
Component Acquisition Executive for participation in the Defense 
Acquisition Pilot Program. The Under Secretary of Defense for 
Acquisition and Technology shall determine which specific programs will 
participate in the pilot program and will transmit to the Congressional 
defense committees a written notification of each defense acquisition 
program proposed for participation in the pilot program. Programs 
proposed for participation must be specifically designated as 
participants in the Defense Acquisition Pilot Program in a law 
authorizing appropriations for such programs and provisions of law to be 
waived must be specifically authorized for waiver.
    (b) Once included in the Defense Acquisition Pilot Program, decision 
and approval authority for the participating program shall be delegated 
to the lowest level allowed in the acquisition regulations consistent 
with the total cost of the program (e.g., under DoD Directive 5000.1, 
\3\ an acquisition program that is a major defense acquisition program 
would be delegated to the appropriate Component Acquisition Executive as 
an acquisition category IC program)
---------------------------------------------------------------------------

    \3\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------

    (c) At the time of nomination approval, the Under Secretary of 
Defense for Acquisition and Technology will establish measures to judge 
the success of a specific program, and will also establish a means of 
reporting progress towards the measures.



Sec.  2.5  Criteria for designation of participating programs.

    (a) Candidate programs must have an approved requirement, full 
program funding assured prior to designation, and low risk. Nomination 
of a candidate program to participate in the Defense Acquisition Pilot 
Program should occur as early in the program's life-cycle as possible. 
Developmental programs will only be considered on an exception basis.

[[Page 11]]

    (b) Programs in which commercial or non-developmental items can 
satisfy the military requirement are preferred as candidate programs. A 
nominated program will address which standard commercial, industrial 
practices will be used in the pilot program and how those practices will 
be applied.
    (c) Nomination of candidate programs must be accompanied by a list 
of waivers being requested to Statutes, FAR, DFARS, DoD Directives \4\ 
and Instructions, \5\ and where applicable, DoD Component regulations. 
Waivers being requested must be accompanied by rationale and 
justification for the waiver. The justification must include:
---------------------------------------------------------------------------

    \4\ See footnote 3 to Sec.  2.4(b).
    \5\ See footnote 3 to Sec.  2.4(b).
---------------------------------------------------------------------------

    (1) The provision of law proposed to be waived or limited.
    (2) The effects of the provision of law on the acquisition, 
including specific examples.
    (3) The actions taken to ensure that the waiver or limitation will 
not reduce the efficiency, integrity, and effectiveness of the 
acquisition process used for the defense acquisition program; and
    (4) A discussion of the efficiencies or savings, if any, that will 
result from the waiver or limitation.
    (d) No nominated program shall be accepted until the Under Secretary 
of Defense has determined that the candidate program is properly 
planned.



PART 3_TRANSACTIONS OTHER THAN CONTRACTS, GRANTS, OR COOPERATIVE AGREEMENTS
FOR PROTOTYPE PROJECTS--Table of Contents



Sec.
3.1 Purpose.
3.2 Background.
3.3 Applicability.
3.4 Definitions.
3.5 Appropriate use.
3.6 Limitations on cost-sharing.
3.7 Comptroller General access.
3.8 DoD access to records policy.
3.9 Follow-on production contracts.

    Authority: Sec. 845, Pub. L. 103-160, 107 Stat. 1547, as amended.

    Source: 66 FR 57383, Nov. 15, 2001, unless otherwise noted.



Sec.  3.1  Purpose.

    This part consolidates rules that implement section 845 of the 
National Defense Authorization Act for Fiscal Year 1994, Public Law 103-
160, 107 Stat. 1547, as amended, and have a significant impact on the 
public. Section 845 authorizes the Secretary of a Military Department, 
the Director of Defense Advanced Research Projects Agency, and any other 
official designated by the Secretary of Defense, to enter into 
transactions other than contracts, grants, or cooperative agreements in 
certain situations for prototype projects that are directly relevant to 
weapons or weapon systems proposed to be acquired or developed by the 
Department of Defense.

[67 FR 54956, Aug. 27, 2002]



Sec.  3.2  Background.

    ``Other transactions'' is the term commonly used to refer to the 10 
U.S.C. 2371 authority to enter into transactions other than contracts, 
grants or cooperative agreements. ``Other transactions'' are generally 
not subject to the Federal laws and regulations limited in applicability 
to contracts, grants or cooperative agreements. As such, they are not 
required to comply with the Federal Acquisition Regulation (FAR) and its 
supplements (48 CFR).

[67 FR 54956, Aug. 27, 2002]



Sec.  3.3  Applicability.

    This part applies to the Secretary of a Military Department, the 
Directors of the Defense Agencies, and any other official designated by 
the Secretary of Defense to enter into transactions other than 
contracts, grants or cooperative agreements for prototype projects that 
are directly relevant to weapons or weapon systems proposed to be 
acquired or developed by the Department of Defense, under authority of 
10 U.S.C. 2371. Such transactions are commonly referred to as ``other 
transaction'' agreements and are hereafter referred to as agreements.

[65 FR 35576, June 5, 2000. Redesignated at 67 FR 54956, Aug. 27, 2002]

[[Page 12]]



Sec.  3.4  Definitions.

    Agency point of contact (POC). The individual identified by the 
military department or defense agency as its POC for prototype OTs.
    Agreements Officer. An individual with the authority to enter into, 
administer, or terminate OTs for prototype projects and make related 
determinations and findings.
    Approving Official. The official responsible for approving the OTs 
acquisition strategy and resulting OT agreement. This official must be 
at least one level above the Agreements Officer and at no lower level 
than existing agency thresholds associated with procurement contracts.
    Awardee. Any business unit that is the direct recipient of an OT 
agreement.
    Business unit. Any segment of an organization, or an entire business 
organization which is not divided into segments.
    Contracting activity. An element of an agency designated by the 
agency head and delegated broad authority regarding acquisition 
functions. It includes elements designated by the Director of a Defense 
Agency which has been delegated contracting authority through its agency 
charter.
    Contracting Officer. A person with the authority to enter into, 
administer, and/or terminate contracts and make related determinations 
and findings as defined in Chapter 1 of Title 48, CFR, Federal 
Acquisition Regulation, Section 2.101(b).
    Cost-type OT. Agreements where payments are based on amounts 
generated from the awardee's financial or cost records or that require 
at least one third of the total costs to be provided by non-Federal 
parties pursuant to statute or require submittal of financial or cost 
records/reports to determine whether additional effort can be 
accomplished for the fixed amount.
    Fixed-price type OT. Agreements where payments are not based on 
amounts generated from the awardee's financial or cost records.
    Head of the contracting activity (HCA). The official who has overall 
responsibility for managing the contracting activity.
    Nontraditional Defense contractor. A business unit that has not, for 
a period of at least one year prior to the date of the OT agreement, 
entered into or performed on (1) any contract that is subject to full 
coverage under the cost accounting standards prescribed pursuant to 
section 26 of the Office of Federal Procurement Policy Act (41 U.S.C. 
422) and the regulations implementing such section; or (2) any other 
contract in excess of $500,000 to carry out prototype projects or to 
perform basic, applied, or advanced research projects for a Federal 
agency, that is subject to the Federal Acquisition Regulation.
    Procurement contract. A contract awarded pursuant to the Federal 
Acquisition Regulation.
    Project Manager. The government manager for the prototype project.
    Qualified Independent Public Accountant. An accountant that is 
licensed or works for a firm that is licensed in the state or other 
political jurisdiction where they operate their professional practice 
and comply with the applicable provisions of the public accountancy law 
and rules of the jurisdiction where the audit is being conducted.
    Segment. One of two or more divisions, product departments, plants, 
or other subdivisions of an organization reporting directly to a home 
office, usually identified with responsibility for profit and/or 
producing a product or service.
    Senior Procurement Executive. The following individuals:
    (1) Department of the Army--Assistant Secretary of the Army 
(Acquisition, Logistics and Technology);
    (2) Department of the Navy--Assistant Secretary of the Navy 
(Research, Development and Acquisition);
    (3) Department of the Air Force--Assistant Secretary of the Air 
Force (Acquisition).
    (4) The Directors of Defense Agencies who have been delegated 
authority to act as Senior Procurement Executive for their respective 
agencies.
    Single Audit Act. Establishes uniform audit requirements for audits 
of state and local government, universities, and non-profit 
organizations that expend Federal awards.
    Subawardee. Any business unit of a party, entity or subordinate 
element

[[Page 13]]

performing effort under the OT agreement, other than the awardee.
    Traditional Defense contractor. Any business unit that does not meet 
the definition of a nontraditional Defense contractor.

[68 FR 27457, May 20, 2003, as amended at 69 FR 16482, Mar. 30, 2004]



Sec.  3.5  Appropriate use.

    In accordance with statute, this authority may be used only when:
    (a) At least one nontraditional Defense contractor is participating 
to a significant extent in the prototype project; or
    (b) No nontraditional Defense contractor is participating to a 
significant extent in the prototype project, but at least one of the 
following circumstances exists:
    (1) At least one third of the total cost of the prototype project is 
to be paid out of funds provided by non-Federal parties to the 
transaction.
    (2) The Senior Procurement Executive for the agency determines in 
writing that exceptional circumstances justify the use of a transaction 
that provides for innovative business arrangements or structures that 
would not be feasible or appropriate under a procurement contract.

[67 FR 54956, Aug. 27, 2002]



Sec.  3.6  Limitations on cost-sharing.

    (a) When a nontraditional Defense contractor is not participating to 
a significant extent in the prototype project and cost-sharing is the 
reason for using OT authority, then the non-Federal amounts counted as 
provided, or to be provided, by the business units of an awardee or 
subawardee participating in the performance of the OT agreement may not 
include costs that were incurred before the date on which the OT 
agreement becomes effective. Costs that were incurred for a prototype 
project by the business units of an awardee or subawardee after the 
beginning of negotiations, but prior to the date the OT agreement 
becomes effective, may be counted as non-Federal amounts if and to the 
extent that the Agreements Officer determines in writing that:
    (1) The awardee or subawardee incurred the costs in anticipation of 
entering into the OT agreement; and
    (2) It was appropriate for the awardee or subawardee to incur the 
costs before the OT agreement became effective in order to ensure the 
successful implementation of the OT agreement.
    (b) As a matter of policy, these limitations on cost-sharing apply 
any time cost-sharing may be recognized when using OT authority for 
prototype projects.

[67 FR 54956, Aug. 27, 2002]



Sec.  3.7  Comptroller General access.

    (a) A clause must be included in solicitations and agreements for 
prototype projects awarded under authority of 10 U.S.C. 2371, that 
provide for total government payments in excess of $5,000,000 to allow 
Comptroller General access to records that directly pertain to such 
agreements.
    (b) The clause referenced in paragraph (a) of this section will not 
apply with respect to a party or entity, or subordinate element of a 
party or entity, that has not entered into any other contract, grant, 
cooperative agreement or ``other transaction'' agreement that provides 
for audit access by a government entity in the year prior to the date of 
the agreement. The clause must be included in all agreements described 
in paragraph (a) of this section in order to fully implement the law by 
covering those participating entities and their subordinate elements 
which have entered into prior agreements providing for Government audit 
access, and are therefore not exempt. The presence of the clause in an 
agreement will not operate to require Comptroller General access to 
records from any party or participating entity, or subordinate element 
of a party or participating entity, or subordinate element of a party or 
participating entity, which is otherwise exempt under the terms of the 
clause and the law.
    (c)(1) The right provided to the Comptroller General in a clause of 
an agreement under paragraph (a) of this part, is limited as provided by 
subparagraph (c)(2) of this part in the case of a party to the 
agreement, an entity that participates in the performance of the 
agreement, or a subordinate element of

[[Page 14]]

that party or entity, if the only cooperative agreements or ``other 
transactions'' that the party, entity, or subordinate element entered 
into with government entities in the year prior to the date of that 
agreement are cooperative agreements or transactions that were entered 
into under 10 U.S.C. 2371 or Section 845 of the National Defense 
Authorization Act for Fiscal Year 1994 (Pub. L. 103-160; 10 U.S.C. 2371 
note).
    (c)(2) The only records of a party, other entity, or subordinate 
element referred to in subparagraph (c)(1) of this part that the 
Comptroller General may examine in the exercise of the right referred to 
in that subparagraph, are records of the same type as the records that 
the government has had the right to examine under the audit access 
clauses of the previous cooperative agreements or transactions referred 
to in such subparagraph that were entered into by that particular party, 
entity, or subordinate element.
    (d) The head of the contracting activity (HCA) that is carrying out 
the agreement may waive the applicability of the Comptroller General 
access requirement if the HCA determines it would not be in the public 
interest to apply the requirement to the agreement. The waiver will be 
effective with respect to the agreement only if the HCA transmits a 
notification of the waiver to the Committees on Armed Services of the 
Senate and the House of Representatives, the Comptroller General, and 
the Director, Defense Procurement before entering into the agreement. 
The notification must include the rationale for the determination.
    (e) The HCA must notify the Director, Defense Procurement of 
situations where there is evidence that the Comptroller General Access 
requirement caused companies to refuse to participate or otherwise 
restricted the Department's access to companies that typically do not do 
business with the Department.
    (f) In no case will the requirement to examine records under the 
clause referenced in paragraph (a) of this section apply to an agreement 
where more than three years have passed after final payment is made by 
the government under such an agreement.
    (g) The clause referenced in paragraph (a) of this section, must 
provide for the following:
    (1) The Comptroller General of the United States, in the discretion 
of the Comptroller General, shall have access to and the right to 
examine records of any party to the agreement or any entity that 
participates in the performance of this agreement that directly pertain 
to, and involve transactions relating to, the agreement.
    (2) Excepted from the Comptroller General access requirement is any 
party to this agreement or any entity that participates in the 
performance of the agreement, or any subordinate element of such party 
or entity, that, in the year prior to the date of the agreement, has not 
entered into any other contract, grant, cooperative agreement, or 
``other transaction'' agreement that provides for audit access to its 
records by a government entity.
    (3)(A) The right provided to the Comptroller General is limited as 
provided in subparagraph (B) in the case of a party to the agreement, 
any entity that participates in the performance of the agreement, or a 
subordinate element of that party or entity if the only cooperative 
agreements or ``other transactions'' that the party, entity, or 
subordinate element entered into with government entities in the year 
prior to the date of that agreement are cooperative agreements or 
transactions that were entered into under 10 U.S.C. 2371 or Section 845 
of the National Defense Authorization Act for Fiscal Year 1994 (Pub. L. 
103-160; 10 U.S.C. 2371 note).
    (B) The only records of a party, other entity, or subordinate 
element referred to in subparagraph (A) that the Comptroller General may 
examine in the exercise of the right referred to in that subparagraph 
are records of the same type as the records that the government has had 
the right to examine under the audit access clauses of the previous 
agreements or transactions referred to in such subparagraph that were 
entered into by that particular party, entity, or subordinate element.
    (4) This clause shall not be construed to require any party or 
entity, or any

[[Page 15]]

subordinate element of such party or entity, that participates in the 
performance of the agreement, to create or maintain any record that is 
not otherwise maintained in the ordinary course of business or pursuant 
to a provision of law.
    (5) The Comptroller General shall have access to the records 
described in this clause until three years after the date the final 
payment is made by the United States under this agreement.
    (6) The recipient of the agreement shall flow down this provision to 
any entity that participates in the performance of the agreement.

[65 FR 35576, June 5, 2000. Redesignated at 67 FR 54956, Aug. 27, 2002]



Sec.  3.8  DoD access to records policy.

    (a) Applicability. This section provides policy concerning DoD 
access to awardee and subawardee records on OT agreements for prototype 
projects. This access is separate and distinct from Comptroller General 
access.
    (1) Fixed-price type OT agreements. (i) General--DoD access to 
records is not generally required for fixed-price type OT agreements. In 
order for an agreement to be considered a fixed-price type OT agreement, 
it must adequately specify the effort to be accomplished for a fixed 
amount and provide for defined payable milestones, with no provision for 
financial or cost reporting that would be a basis for making adjustment 
in either the work scope or price of the effort.
    (ii) Termination considerations. The need to provide for DoD access 
to records in the case of termination of a fixed-price type OT can be 
avoided by limiting potential termination settlements to an amount 
specified in the original agreement or to payment for the last completed 
milestone. However, if a fixed-price agreement provides that potential 
termination settlement amounts may be based on amounts generated from 
cost or financial records and the agreement exceeds the specified 
threshold, the OT should provide that DoD will have access to records in 
the event of termination.
    (2) Cost-type OT agreements. (i) Single Audit Act--In accordance 
with the requirements of Public Law 98-502, as amended by Public Law 
104-156, 110 STAT. 1396-1404, when a business unit that will perform the 
OT agreement, or a subawardee, meets the criteria for an audit pursuant 
to the Single Audit Act, the DoD must have sufficient access to the 
entity's records to assure compliance with the provisions of the Act.
    (ii) Traditional Defense contractors. The DoD shall have access to 
records on cost-type OT agreements with traditional Defense contractors 
that provide for total Government payments in excess of $5,000,000. The 
content of the access to records clause shall be in accordance with 
paragraph (c) of this section. The value establishing the threshold is 
the total value of the agreement including all options.
    (iii) Nontraditional Defense contractors. The DoD should have access 
to records on cost-type OT agreements with nontraditional Defense 
contractors that provide for total Government payments in excess of 
$5,000,000. The content of the access to records clause should be in 
accordance with paragraph (c) of this section. The value establishing 
the threshold is the total value of the agreement including all options.
    (iv) DoD access below threshold. The Agreements Officer has the 
discretion to determine whether to include DoD access to records when 
the OT does not meet any of the requirements in (a)(2)(i) through 
(a)(2)(iii) of this section. The content of that access to records 
clause should be tailored to meet the particular circumstances of the 
agreement.
    (v) Examples of cost-type OT agreements. (A) An agreement that 
requires at least one-third cost share pursuant to statute.
    (B) An agreement that includes payable milestones, but provides for 
adjustment of the milestone amounts based on actual costs or reports 
generated from the awardee's financial or cost records.
    (C) An agreement that is for a fixed-Government amount, but the 
agreement provides for submittal of financial or cost records/reports to 
determine whether additional effort can be accomplished for the fixed 
amount.
    (3) Subawardees. When a DoD access to records provision is included 
in the OT agreement, the awardee shall use the criteria established in 
paragraphs

[[Page 16]]

(a)(2)(i) through (a)(2)(iii) of this section to determine whether DoD 
access to records clauses should be included in subawards.
    (b) Exceptions--(1) Nontraditional Defense contractors--(i) The 
Agreements Officers may deviate, in part or in whole, from the 
application of this access to records policy for a nontraditional 
Defense contractor when application of the policy would adversely impact 
the government's ability to incorporate commercial technology or execute 
the prototype project.
    (ii) The Agreements Officer will document:
    (A) What aspect of the audit policy was not applied;
    (B) Why it was problematic;
    (C) What means will be used to protect the Government's interest; 
and
    (D) Why the benefits of deviating from the policy outweigh the 
potential risks.
    (iii) This determination will be reviewed by the approving official 
as part of the pre-award approval of the agreement and submitted to the 
agency POC within 10 days of award.
    (iv) The agency POC will forward all such documentation received in 
any given fiscal year, to the Director, Defense Procurement by 15 
October of each year.
    (2) Traditional Defense contractor. (i) Any departure from this 
policy for other than nontraditional Defense contractors must be 
approved by the Head of the Contracting Activity prior to award and set 
forth the exceptional circumstances justifying deviation.
    (ii) Additionally, the justification will document:
    (A) What aspect of the policy was not applied;
    (B) Why it was problematic;
    (C) What means will be used to protect the Government's interest; 
and
    (D) Why the benefits of deviating from the policy outweigh the 
potential risks.
    (iii) The HCA will forward documentation associated with such 
waivers in any given fiscal year, to the Director, Defense Procurement 
by 15 October of each year.
    (3) DoD access below the threshold. When the Agreements Officer 
determines that access to records is appropriate for an agreement below 
the $5,000,000 threshold, the content, length and extent of access may 
be mutually agreed to by the parties, without documenting reasons for 
departing from the policy of this section.
    (4) Flow down provisions. The awardee shall submit justification for 
any exception to the DoD access to records policy to the Agreements 
Officer for subawardees. The Agreements Officer will review and obtain 
appropriate approval, as set forth in paragraphs (b)(1) and (b)(2) of 
this section.
    (c) Content of DoD access to records clause. When a DoD access to 
records clause is included as part of the OT agreement, address the 
following areas during the negotiation of the clause:
    (1) Frequency of audits. Audits will be performed when the 
Agreements Officer determines it is necessary to verify statutory cost 
share or to verify amounts generated from financial or cost records that 
will be used as the basis for payment or adjustment of payment.
    (2) Means of accomplishing audits. (i) Business units subject to the 
Single Audit Act--When the awardee or subawardee is a state government, 
local government, or nonprofit organization whose Federal cost 
reimbursement contracts and financial assistance agreements are subject 
to the Single Audit Act (Public Law 98-502, as amended by Public Law 
104-156, 110 STAT. 1396-1404), the clause must apply the provisions of 
that Act for purposes of performing audits of the awardee or subawardee 
under the agreement.
    (ii) Business units not subject to the Single Audit Act currently 
performing on procurement contracts. The clause must provide that DCAA 
will perform any necessary audits if, at the time of agreement award, 
the awardee or subawardee is not subject to the Single Audit Act and is 
performing a procurement contract that is subject to the Cost Principles 
Applicable to Commercial Organizations (48 CFR part 31.2) and/or the 
Cost Accounting Standards (48 CFR part 99).
    (iii) Other business units. DCAA or a qualified IPA may perform any 
necessary audit of a business unit of the awardee or subawardee if, at 
the time of agreement award, the business unit

[[Page 17]]

does not meet the criteria in (c)(2)(i) or (c)(2)(ii) of this section. 
The clause must provide for the use of a qualified IPA if such a 
business unit will not accept the agreement if the Government has access 
to the business unit's records. The Agreements Officer will include a 
statement in the file that the business unit is not performing on a 
procurement contract subject to the Cost Principles or Cost Accounting 
Standards at the time of agreement award, and will not accept the 
agreement if the government has access to the business unit's records. 
The Agreements Officer will also prepare a report (Part III to the 
annual report submission) for the Director, Defense Procurement that 
identifies, for each business unit that is permitted to use an IPA: the 
business unit's name, address and the expected value of its award. When 
the clause provides for use of an IPA to perform any necessary audits, 
the clause must state that:
    (A) The IPA will perform the audit in accordance with Generally 
Accepted Government Auditing Standards (GAGAS). Electronic copies of the 
standards may be accessed at www.gao.gov. Printed copies may be 
purchased from the U.S. Government Printing Office (for ordering 
information, call (202) 512-1800 or access the Internet Site at 
www.gpo.gov).
    (B) The Agreements Officers' authorized representative has the right 
to examine the IPA's audit report and working papers for 3 years after 
final payment or three years after issuance of the audit report, 
whichever is later, unless notified otherwise by the Agreements Officer.
    (C) The IPA will send copies of the audit report to the Agreements 
Officer and the Assistant Inspector General (Audit Policy and Oversight) 
[AIG(APO)], 400 Army Navy Drive, Suite 737, Arlington, VA 22202.
    (D) The IPA will report instances of suspected fraud directly to the 
DoDIG.
    (E) The Government has the right to require corrective action by the 
awardee or subawardee if the Agreements Officer determines (subject to 
appeal under the disputes clause of the agreement) that the audit has 
not been performed or has not been performed in accordance with GAGAS. 
The Agreements Officer should take action promptly once the Agreements 
Officer determines that the audit is not being accomplished in a timely 
manner or the audit is not performed in accordance with GAGAS but 
generally no later than twelve (12) months of the date requested by the 
Agreements Officer. The awardee or subawardee may take corrective action 
by having the IPA correct any deficiencies identified by the Agreements 
Officer, having another IPA perform the audit, or electing to have the 
Government perform the audit. If corrective action is not taken, the 
Agreements Officer has the right to take one or more of the following 
actions:
    (1) Withhold or disallow a specified percentage of costs until the 
audit is completed satisfactorily. The agreement should include a 
specified percentage that is sufficient to enhance performance of 
corrective action while also not being unfairly punitive.
    (2) Suspend performance until the audit is completed satisfactorily; 
and/or
    (3) Terminate the agreement if the agreements officer determines 
that imposition of either (c)(2)(iii)(E)(1) or (c)(2)(iii)(e)(2) of this 
section is not practical.
    (F) If it is found that the awardee or subawardee was performing a 
procurement contract subject to Cost Principles Applicable to Commercial 
Organizations (48 CFR part 31.2) and/or Cost Accounting Standards (48 
CFR part 99) at the time of agreement award, the Agreements Officer, or 
an authorized representative, has the right to audit records of the 
awardee or subawardee to verify the actual costs or reporting 
information used as the basis for payment or to verify statutorily 
required cost share under the agreement, and the IPA is to be paid by 
the awardee or subawardee. The cost of an audit performed in accordance 
with this policy is reimbursable based on the business unit's 
established accounting practices and subject to any limitations in the 
agreement.
    (3) Scope of audit. The Agreements Officer should coordinate with 
the auditor regarding the nature of any audit envisioned.

[[Page 18]]

    (4) Length and extent of access--(i) Clauses that do not provide for 
use of an IPA. The clause must provide for the Agreements Officer's 
authorized representative to have access to directly pertinent records 
of those business units of the awardee or subawardee's performing effort 
under the OT agreement, when needed to verify the actual costs or 
reporting used as the basis for payment or to verify statutorily 
required cost share under the agreement.
    (ii) Clauses that provide for use of an IPA to perform the audits. 
The clause must:
    (A) Provide the Agreements Officer's authorized representative 
access to the IPA's audit reports and working papers to ensure that the 
IPA has performed the audit in accordance with GAGAS.
    (B) State that the Government will make copies of contractor records 
contained in the IPA's work papers if needed to demonstrate that the 
audit was not performed in accordance with GAGAS.
    (C) State that the Government has no direct access to any awardee or 
subawardee records unless it is found that the awardee or subawardee was 
performing a procurement contract subject to Cost Principles (48 CFR 
part 31) and/or Cost Accounting Standards (48 CFR part 99) at the time 
of agreement award.
    (iii) Business Units subject to the Single Audit Act. The clause 
must provide access to the extent authorized by the Single Audit Act.
    (iv) Record Retention/Period of Access. The clause must require that 
the awardee and subawardee retain, and provide access to, the records 
referred to in (c)(4)(i) and (c)(4)(ii) of this section for three years 
after final payment, unless notified of a shorter or longer period by 
the Agreements Officer.
    (5) Awardee flow down responsibilities. Agreements must require 
awardees to include the necessary provisions in subawards that meet the 
conditions set forth in this DoD access to records policy.
    (d) DoDIG and GAO access. In accordance with statute, if an 
agreement gives the Agreements Officer or another DoD component official 
access to a business unit's records, the DoDIG or GAO are granted the 
same access to those records.

[68 FR 27457, May 20, 2003]



Sec.  3.9  Follow-on production contracts.

    (a) Authority. A competitively awarded OT agreement for a prototype 
project that satisfies the condition set forth in law that requires non-
Federal parties to the OT agreement to provide at least one-third of the 
costs of the prototype project may provide for the award of a follow-on 
production contract to the awardee of the OT prototype agreement for a 
specific number of units at specific target prices, without further 
competition.
    (b) Conditions. The Agreements Officer must do the following in the 
award of the prototype project:
    (1) Ensure non-Federal parties to the OT prototype agreement offer 
at least one-third of the costs of the prototype project pursuant to 
subsection (d)(1)(B)(i), 10 U.S.C. 2371 note.
    (2) Use competition to select parties for participation in the OT 
prototype agreement and evaluate the proposed quantity and target prices 
for the follow-on production units as part of that competition.
    (3) Determine the production quantity that may be procured without 
further competition, by balancing of the level of the investment made in 
the project by the non-Federal parties with the interest of the Federal 
Government in having competition among sources in the acquisition of the 
product or products prototyped under the project.
    (4) Specify the production quantity and target prices in the OT 
prototype agreement and stipualte in the agreement that the Contracting 
Officer for the follow-on contract may award a production contract 
without further competition if the awardee successfully completes the 
prototype project and agrees to production quantities and prices that do 
not exceed those specified in the OT prototype agreement (see part 
206.001 of the Defense Federal Acquisition Regulation Supplement).
    (c) Limitation. As a matter of policy, establishing target prices 
for production units should only be considered when the risk of the 
prototype project permits realistic production pricing

[[Page 19]]

without placing undue risks on the awardee.
    (d) Documentation. (1) The Agreements Officer will need to provide 
information to the Contracting Officer from the agreement and award file 
that the conditions set forth in paragraph (b) of this section have been 
satisfied.
    (2) The information shall contain, at a minimum:
    (i) The competitive procedures used;
    (ii) How the production quantities and target prices were evaluated 
in the competition;
    (iii) The percentage of cost-share; and
    (iv) The production quantities and target prices set forth in the OT 
agreement.
    (3) The Project Manager will provide evidence of successful 
completion of the prototype project to the Contracting Officer.

[69 FR 16482, Mar. 30, 2004]

                          PARTS 4	8 [RESERVED]



                         SUBCHAPTER B [RESERVED]



[[Page 20]]



            SUBCHAPTER C_DoD GRANT AND AGREEMENT REGULATIONS





PART 21_DoD GRANTS AND AGREEMENTS_GENERAL MATTERS--Table of Contents



                         Subpart A_Introduction

Sec.
21.100 What are the purposes of this part?

         Subpart B_Defense Grant and Agreement Regulatory System

21.200 What is the Defense Grant and Agreement Regulatory System 
          (DGARS)?
21.205 What types of instruments are covered by the DGARS?
21.210 What are the purposes of the DGARS?
21.215 Who is responsible for the DGARS?
21.220 What publications are in the DGARS?

            Subpart C_The DoD Grant and Agreement Regulations

21.300 What instruments are subject to the DoD Grant and Agreement 
          Regulations (DoDGARs)?
21.305 What is the purpose of the DoDGARs?
21.310 Who ensures DoD Component compliance with the DoDGARs?
21.315 May DoD Components issue supplemental policies and procedures to 
          implement the DoDGARs?
21.320 Are there areas in which DoD Components must establish policies 
          and procedures to implement the DoDGARs?
21.325 Do acquisition regulations also apply to DoD grants and 
          agreements?
21.330 How are the DoDGARs published and maintained?
21.335 Who can authorize deviations from the DoDGARs?
21.340 What are the procedures for requesting and documenting 
          deviations?

Subpart D_Authorities and Responsibilities for Making and Administering 
                            Assistance Awards

21.400 To what instruments does this subpart apply?
21.405 What is the purpose of this subpart?
21.410 Must a DoD Component have statutory authority to make an 
          assistance award?
21.415 Must the statutory authority specifically mention the use of 
          grants or other assistance instruments?
21.420 Under what types of statutory authorities do DoD Components award 
          assistance instruments?
21.425 How does a DoD Component's authority flow to awarding and 
          administering activities?
21.430 What are the responsibilities of the head of the awarding or 
          administering activity?
21.435 Must DoD Components formally select and appoint grants officers 
          and agreements officers?
21.440 What are the standards for selecting and appointing grants 
          officers and agreements officers?
21.445 What are the requirements for a grants officer's or agreements 
          officer's statement of appointment?
21.450 What are the requirements for a termination of a grants officer's 
          or agreements officer's appointment?
21.455 Who can sign, administer, or terminate assistance instruments?
21.460 What is the extent of grants officers' and agreements officers' 
          authority?
21.465 What are grants officers' and agreements officers' 
          responsibilities?

 Subpart E_Information Reporting on Awards Subject to 31 U.S.C. Chapter 
                                   61

21.500 What is the purpose of this subpart?
21.505 What is the Catalog of Federal Domestic Assistance (CFDA)?
21.510 Why does the DoD report information to the CFDA?
21.515 Who reports the information for the CFDA?
21.520 What are the purposes of the Defense Assistance Awards Data 
          System (DAADS)?
21.525 Who issues policy guidance for the DAADS?
21.530 What are the responsibilities of the DAADS Administrator?
21.535 Do DoD Components have central points for collecting DAADS data?
21.540 What are the duties of the DoD Components' central points for the 
          DAADS?
21.545 Must DoD Components report every obligation to the DAADS?
21.550 Must DoD Components relate reported actions to listings in the 
          CFDA?
21.555 When and how must DoD Components report to the DAADS?
21.560 Must DoD Components assign numbers uniformly to awards?
21.565 Must DoD Components' electronic systems accept Data Universal 
          Numbering System (DUNS) numbers?

                          Subpart F_Definitions

21.605 Acquisition.
21.610 Agreements officer.

[[Page 21]]

21.615 Assistance.
21.620 Award.
21.625 Contract.
21.630 Contracting activity.
21.635 Contracting officer.
21.640 Cooperative agreement.
21.645 Deviation.
21.650 DoD Components.
21.655 Grant.
21.660 Grants officer.
21.665 Nonprocurement instrument.
21.670 Procurement contract.
21.675 Recipient.
21.680 Technology investment agreements.

Appendix A to Part 21--Instruments to Which DoDGARs Portions Apply

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

    Source: 68 FR 47153, Aug. 7, 2003, unless otherwise noted.



                         Subpart A_Introduction



Sec.  21.100  What are the purposes of this part?

    This part of the DoD Grant and Agreement Regulations:
    (a) Provides general information about the Defense Grant and 
Agreement Regulatory System (DGARS).
    (b) Sets forth general policies and procedures related to DoD 
Components' overall management of functions related to assistance and 
certain other nonprocurement instruments subject to the DGARS (see Sec.  
21.205(b)).



         Subpart B_Defense Grant and Agreement Regulatory System



Sec.  21.200  What is the Defense Grant and Agreement Regulatory 
System (DGARS)?

    The Defense Grant and Agreement Regulatory System (DGARS) is the 
system of regulatory policies and procedures for the award and 
administration of DoD Components' assistance and other nonprocurement 
awards. DoD Directive 3210.6 \1\ established the DGARS.
---------------------------------------------------------------------------

    \1\ Electronic copies may be obtained at the Washington Headquarters 
Services Internet site http://www.dtic.mil/whs/directives. Paper copies 
may be obtained, at cost, from the National Technical Information 
Service, 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------



Sec.  21.205  What types of instruments are covered by the DGARS?

    The Defense Grant and Agreement Regulatory System (DGARS) applies to 
the following types of funding instruments awarded by DoD Components:
    (a) All grants, cooperative agreements, and technology investment 
agreements.
    (b) Other nonprocurement instruments, as needed to implement 
statutes, Executive orders, or other Federal Governmentwide rules that 
apply to those other nonprocurement instruments, as well as to grants 
and cooperative agreements.



Sec.  21.210  What are the purposes of the DGARS?

    The purposes of the DGARS are to provide uniform policies and 
procedures for DoD Components' awards, in order to meet DoD needs for:
    (a) Efficient program execution, effective program oversight, and 
proper stewardship of Federal funds.
    (b) Compliance with relevant statutes; Executive orders; and 
applicable guidance, such as Office of Management and Budget (OMB) 
circulars.
    (c) Collection from DoD Components, retention, and dissemination of 
management and fiscal data related to awards.



Sec.  21.215  Who is responsible for the DGARS?

    The Assistant Secretary of Defense for Research and Engineering 
(ASD(R&E)), or his or her designee, develops and implements DGARS 
policies and procedures. He or she does so by issuing and maintaining 
the DoD publications that comprise the DGARS.

[68 FR 47153, Aug. 7, 2003, as amended at 85 FR 51240, Aug. 19, 2020]



Sec.  21.220  What publications are in the DGARS?

    The DoD Grant and Agreement Regulations comprise the principal 
element of the DGARS. The ASD(R&E) also may publish DGARS policies and 
procedures in DoD instructions and other DoD publications, as 
appropriate.

[85 FR 51240, Aug. 19, 2020]

[[Page 22]]



            Subpart C_The DoD Grant and Agreement Regulations



Sec.  21.300  What instruments are subject to the DoD Grant and 
Agreement Regulations (DoDGARs)?

    (a) The types of instruments that are subject to the DoDGARs vary 
from one portion of the DoDGARs to another. The types of instruments 
include grants, cooperative agreements, and technology investment 
agreements. Some portions of the DoDGARs apply to other types of 
assistance or nonprocurement instruments. The term ``awards,'' as 
defined in subpart F of this part, is used in this part to refer 
collectively to all of the types of instruments that are subject to one 
or more portions of the DoDGARs.
    (b) Note that each portion of the DoDGARs identifies the types of 
instruments to which it applies.
    (c) For convenience, the table in Appendix A to this part provides 
an overview of the applicability of the various portions of the DoDGARs.

[68 FR 47153, Aug. 7, 2003, as amended at 85 FR 51240, Aug. 19, 2020]



Sec.  21.305  What is the purpose of the DoDGARs?

    The DoD Grant and Agreement Regulations provide uniform policies and 
procedures for the award and administration of DoD Components' awards. 
The DoDGARs are the primary DoD regulations for achieving the DGARS 
purposes described in Sec.  21.210.



Sec.  21.310  Who ensures DoD Component compliance with the DoDGARs?

    The Head of each DoD Component that makes or administers awards, or 
his or her designee, is responsible for ensuring compliance with the 
DoDGARs within that DoD Component.



Sec.  21.315  May DoD Components issue supplemental policies and
procedures to implement the DoDGARs?

    Yes, Heads of DoD Components or their designees may issue 
regulations, procedures, or instructions to implement the DGARS or 
supplement the DoDGARs to satisfy needs that are specific to the DoD 
Component, as long as the regulations, procedures, or instructions do 
not impose additional costs or administrative burdens on recipients or 
potential recipients.



Sec.  21.320  Are there areas in which DoD Components must establish 
policies and procedures to implement the DoDGARs?

    Yes, Heads of DoD Components or their designees must establish 
policies and procedures in areas where uniform policies and procedures 
throughout the DoD Component are required, such as for:
    (a) Requesting class deviations from the DoDGARs (see Sec. Sec.  
21.335(b) and 21.340(a)) or exemptions from the provisions of 31 U.S.C. 
6301 through 6308, that govern the appropriate use of contracts, grants, 
and cooperative agreements (see 32 CFR 22.220).
    (b) Designating one or more Grant Appeal Authorities to resolve 
claims, disputes, and appeals (see 32 CFR 22.815).
    (c) Reporting data on assistance awards and programs, as required by 
31 U.S.C. chapter 61 (see subpart E of this part).

[68 FR 47153, Aug. 7, 2003, as amended at 85 FR 51240, Aug. 19, 2020]



Sec.  21.325  Do acquisition regulations also apply to DoD grants
and agreements?

    Unless the DoDGARs specify that they apply, policies and procedures 
in the following acquisition regulations that apply to procurement 
contracts do not apply to grants, cooperative agreements, technology 
investment agreements, or to other assistance or nonprocurement awards:
    (a) The Federal Acquisition Regulation (FAR)(48 CFR parts 1-53).
    (b) The Defense Federal Acquisition Regulation Supplement (DFARS)(48 
CFR parts 201-270).
    (c) DoD Component supplements to the FAR and DFARS.



Sec.  21.330  How are the DoDGARs published and maintained?

    (a) The DoD publishes the DoDGARs in the Code of Federal Regulations 
(CFR).
    (b) The location of the DoDGARs in the CFR currently is in 
transition. The regulations are moving from chapter I,

[[Page 23]]

subchapter C, title 32, to a new location in chapter XI, title 2 of the 
CFR. During the transition, there will be some parts of the DoDGARs in 
each of the two titles.
    (c) The DoD publishes updates to the DoDGARs in the Federal Register 
for public comment.
    (d) A standing working group recommends revisions to the DoDGARs to 
the ASD(R&E). The ASD(R&E), Director of Defense Procurement, and each 
Military Department must be represented on the working group. Other DoD 
Components that make or administer awards may also nominate 
representatives. The working group meets when necessary.

[85 FR 51240, Aug. 19, 2020]



Sec.  21.335  Who can authorize deviations from the DoDGARs?

    (a) The Head of the DoD Component or his or her designee may 
authorize individual deviations from the DoDGARs, which are deviations 
that affect only one award, if the deviations are not prohibited by 
statute, executive order or regulation.
    (b) The ASD(R&E) or his or her designee must approve in advance any 
deviation for a class of awards. Note that, as described at 2 CFR 
1126.3, OMB concurrence also is required for some class deviations from 
requirements included in awards to institutions of higher education, 
nonprofit organizations, States, local governments, and Indian tribes.

[68 FR 47153, Aug. 7, 2003, as amended at 85 FR 51240, Aug. 19, 2020]



Sec.  21.340  What are the procedures for requesting and documenting
deviations?

    (a) DoD Components must submit copies of justifications and agency 
approvals for individual deviations and written requests for class 
deviations to: Principal Deputy Assistant Secretary of Defense for 
Research and Engineering, ATTN: Basic Research, 3030 Defense Pentagon, 
Washington, DC 20301-3030.
    (b) Grants officers and agreements officers must maintain copies of 
requests and approvals for individual and class deviations in award 
files.

[68 FR 47153, Aug. 7, 2003, as amended at 85 FR 51240, Aug. 19, 2020]



Subpart D_Authorities and Responsibilities for Making and Administering 
                            Assistance Awards



Sec.  21.400  To what instruments does this subpart apply?

    This subpart applies to grants, cooperative agreements, and 
technology investment agreements, which are legal instruments used to 
reflect assistance relationships between the United States Government 
and recipients.



Sec.  21.405  What is the purpose of this subpart?

    This subpart describes the sources and flow of authority to make or 
administer assistance awards, and assigns the broad responsibilities 
associated with DoD Components' use of those instruments.



Sec.  21.410  Must a DoD Component have statutory authority to make an 
assistance award?

    Yes, the use of an assistance instrument to carry out a program 
requires authorizing legislation. That is unlike the use of a 
procurement contract, for which Federal agencies have inherent, 
Constitutional authority.



Sec.  21.415  Must the statutory authority specifically mention the
use of grants or other assistance instruments?

    No, the statutory authority described in Sec.  21.410 need not 
specifically say that the purpose of the program is assistance or 
mention the use of any type of assistance instrument. However, the 
intent of the statute must support a judgment that the use of an 
assistance instrument is appropriate. For example, a DoD Component may 
judge that the principal purpose of a program for which it has 
authorizing legislation is assistance, rather than acquisition. The DoD 
Component would properly use an assistance instrument to carry out that 
program, in accordance with 31 U.S.C. chapter 63.

[[Page 24]]



Sec.  21.420  Under what types of statutory authorities do DoD Components
award assistance instruments?

    DoD Components may use assistance instruments under a number of 
statutory authorities that fall into three categories:
    (a) Authorities that statutes provide to the Secretary of Defense. 
These authorities generally are delegated by the Secretary of Defense to 
Heads of DoD Components, usually through DoD directives, instructions, 
or policy memoranda that are not part of the Defense Grant and Agreement 
Regulatory System. Examples of statutory authorities in this category 
are:
    (1) Authority under 10 U.S.C. 2391 to award grants or cooperative 
agreements to help State and local governments alleviate serious 
economic impacts of defense program changes (e.g., base openings and 
closings, contract changes, and personnel reductions and increases).
    (2) Authority under 10 U.S.C. 2413 to enter into cooperative 
agreements with entities that furnish procurement technical assistance 
to businesses.
    (b) Authorities that statutes may provide directly to Heads of DoD 
Components. When a statute authorizes the Head of a DoD Component to use 
a funding instrument to carry out a program with a principal purpose of 
assistance, use of that authority requires no delegation by the 
Secretary of Defense. For example, 10 U.S.C. 2358 authorizes the 
Secretaries of the Military Departments, in addition to the Secretary of 
Defense, to perform research and development projects through grants and 
cooperative agreements. Similarly, 10 U.S.C. 2371 provides authority for 
the Secretaries of the Military Departments and Secretary of Defense to 
carry out basic, applied, or advanced research projects using assistance 
instruments other than grants and cooperative agreements. A Military 
Department's use of the authority of 10 U.S.C. 2358 or 10 U.S.C. 2371 
therefore requires no delegation by the Secretary of Defense.
    (c) Authorities that arise indirectly as the result of statute. For 
example, authority to use an assistance instrument may result from:
    (1) A federal statute authorizing a program that is consistent with 
an assistance relationship (i.e., the support or stimulation of a public 
purpose, rather than the acquisition of a good or service for the direct 
benefit of the Department of Defense). In accordance with 31 U.S.C. 
chapter 63, such a program would appropriately be carried out through 
the use of grants or cooperative agreements. Depending upon the nature 
of the program (e.g., research) and whether the program statute includes 
authority for any specific types of instruments, there also may be 
authority to use other assistance instruments.
    (2) Exemptions requested by the Department of Defense and granted by 
the Office of Management and Budget under 31 U.S.C. 6307, as described 
in 32 CFR 22.220.



Sec.  21.425  How does a DoD Component's authority flow to awarding and
administering activities?

    The Head of a DoD Component, or his or her designee, may delegate to 
the heads of contracting activities (HCAs) within the Component, that 
Component's authority to make and administer awards, to appoint grants 
officers and agreements officers (see Sec. Sec.  21.435 through 21.450), 
and to broadly manage the DoD Component's functions related to 
assistance instruments. The HCA is the same official (or officials) 
designated as the head of the contracting activity for procurement 
contracts, as defined at 48 CFR 2.101. The intent is that overall 
management responsibilities for a DoD Component's functions related to 
nonprocurement instruments be assigned only to officials that have 
similar responsibilities for procurement contracts.



Sec.  21.430  What are the responsibilities of the head of the awarding
or administering activity?

    When designated by the Head of the DoD Component or his or her 
designee (see 32 CFR 21.425), the head of the awarding or administering 
activity (i.e., the HCA) is responsible for the awards made by or 
assigned to that activity. He or she must supervise and establish 
internal policies and procedures for that activity's awards.

[[Page 25]]



Sec.  21.435  Must DoD Components formally select and appoint grants
officers and agreements officers?

    Yes, each DoD Component that awards grants or enters into 
cooperative agreements must have a formal process (see Sec.  21.425) for 
selecting and appointing grants officers and for terminating their 
appointments. Similarly, each DoD Component that awards or administers 
technology investment agreements must have a process for selecting and 
appointing agreements officers and for terminating their appointments.



Sec.  21.440  What are the standards for selecting and appointing grants
officers and agreements officers?

    In selecting grants officers and agreements officers, DoD Components 
must use the following minimum standards:
    (a) In selecting a grants officer, the appointing official must 
judge whether the candidate has the necessary experience, training, 
education, business acumen, judgment, and knowledge of assistance 
instruments and contracts to function effectively as a grants officer. 
The appointing official also must take those attributes of the candidate 
into account when deciding the complexity and dollar value of the grants 
and cooperative agreements to be assigned.
    (b) In selecting an agreements officer, the appointing official must 
consider all of the same factors as in paragraph (a) of this section. In 
addition, the appointing official must consider the candidate's ability 
to function in the less structured environment of technology investment 
agreements, where the rules provide more latitude and the individual 
must have a greater capacity for exercising judgment. Agreements 
officers therefore should be individuals who have demonstrated expertise 
in executing complex assistance and acquisition instruments.



Sec.  21.445  What are the requirements for a grants officer's or 
agreements officer's statement of appointment?

    A statement of a grants officer's or agreements officer's 
appointment:
    (a) Must be in writing.
    (b) Must clearly state the limits of the individual's authority, 
other than limits contained in applicable laws or regulations. 
Information on those limits of a grants officer's or agreements 
officer's authority must be readily available to the public and agency 
personnel.
    (c) May, if the individual is a contracting officer, be incorporated 
into his or her statement of appointment as a contracting officer (i.e., 
there does not need to be a separate written statement of appointment 
for assistance instruments).



Sec.  21.450  What are the requirements for a termination of a grants
officer's or agreements officer's appointment?

    A termination of a grants officer's or agreements officer's 
authority:
    (a) Must be in writing, unless the written statement of appointment 
provides for automatic termination.
    (b) May not be retroactive.
    (c) May be integrated into a written termination of the individual's 
appointment as a contracting officer, as appropriate.



Sec.  21.455  Who can sign, administer, or terminate assistance instruments?

    Only grants officers are authorized to sign, administer, or 
terminate grants or cooperative agreements (other than technology 
investment agreements) on behalf of the Department of Defense. 
Similarly, only agreements officers may sign, administer, or terminate 
technology investment agreements.



Sec.  21.460  What is the extent of grants officers' and agreements
officers' authority?

    Grants officers and agreements officers may bind the Government only 
to the extent of the authority delegated to them in their written 
statements of appointment (see Sec.  21.445).



Sec.  21.465  What are grants officers' and agreements officers'
responsibilities?

    Grants officers and agreements officers should be allowed wide 
latitude to exercise judgment in performing their responsibilities, 
which are to ensure that:
    (a) Individual awards are used effectively in the execution of DoD 
programs, and are made and administered

[[Page 26]]

in accordance with applicable laws, Executive orders, regulations, and 
DoD policies.
    (b) Sufficient funds are available for obligation.
    (c) Recipients of awards receive impartial, fair, and equitable 
treatment.



 Subpart E_Information Reporting on Awards Subject to 31 U.S.C. Chapter 
                                   61



Sec.  21.500  What is the purpose of this subpart?

    This subpart prescribes policies and procedures for compiling and 
reporting data related to DoD awards and programs that are subject to 
information reporting requirements of 31 U.S.C. chapter 61. That chapter 
of the U.S. Code requires the Office of Management and Budget to 
maintain a Governmentwide information system to collect data on Federal 
agencies' domestic assistance awards and programs.



Sec.  21.505  What is the Catalog of Federal Domestic Assistance (CFDA)?

    The Catalog of Federal Domestic Assistance (CFDA) is a 
Governmentwide compilation of information about assistance programs. It 
covers all assistance programs and activities, regardless of the number 
of awards made under the program, the total dollar value of assistance 
provided, or the duration. In addition to programs using grants and 
agreements, covered programs include those providing assistance in other 
forms, such as payments in lieu of taxes or indirect assistance 
resulting from Federal operations.

[68 FR 47153, Aug. 7, 2003, as amended at 85 FR 51240, Aug. 19, 2020]



Sec.  21.510  Why does the DoD report information to the CFDA?

    The Federal Program Information Act (31 U.S.C. 6101 through 6106), 
as implemented through OMB guidance at 2 CFR 200.202 requires the 
Department of Defense and other Federal agencies to provide certain 
information about their assistance programs to the OMB and the General 
Services Administration (GSA). The GSA makes this information available 
to the public by publishing it in the Catalog of Federal Domestic 
Assistance (CFDA).

[68 FR 47153, Aug. 7, 2003, as amended at 85 FR 51240, Aug. 19, 2020]



Sec.  21.515  Who reports the information for the CFDA?

    (a) Each DoD Component that provides financial assistance must:
    (1) Report to the Defense Assistance Awards Data System (DAADS) 
Administrator all new programs and changes as they occur or as the DoD 
Component submits its annual updates to existing CFDA information. DAADS 
is further described in Sec. Sec.  21.520 through 21.555.
    (2) Identify to the DAADS Administrator a point-of-contact who will 
be responsible for reporting the program information and for responding 
to inquiries related to it.
    (b) The DAADS Administrator is the Department of Defense's single 
liaison with whom DoD Components that collect and compile such program 
information work to report the information to OMB and GSA.

[85 FR 51240, Aug. 19, 2020]



Sec.  21.520  What are the purposes of the Defense Assistance Awards 
Data System (DAADS)?

    Data from the Defense Assistance Awards Data System (DAADS) are used 
to provide:
    (a) DoD inputs to meet statutory requirements for Federal 
Governmentwide reporting of data related to obligations of funds by 
assistance instrument.
    (b) A basis for meeting Governmentwide requirements to report to 
USASpending.gov (or any successor site designated by OMB) and for 
preparing other recurring and special reports to the President, the 
Congress, the Government Accountability Office, and the public.
    (c) Information to support policy formulation and implementation and 
to meet management oversight requirements related to the use of awards.

[68 FR 47153, Aug. 7, 2003, as amended at 85 FR 51240, Aug. 19, 2020]

[[Page 27]]



Sec.  21.525  Who issues policy guidance for the DAADS?

    The Principal Deputy Assistant Secretary of Defense for Research and 
Engineering (PDASD(R&E)), or his or her designee, issues necessary 
policy guidance for the Defense Assistance Awards Data System.

[68 FR 47153, Aug. 7, 2003, as amended at 85 FR 51241, Aug. 19, 2020]



Sec.  21.530  What are the responsibilities of the DAADS Administrator?

    The DAADS Administrator, consistent with guidance issued by the 
PDASD(R&E):
    (a) Processes DAADS information twice a month and prepares recurring 
and special reports using such information.
    (b) Prepares, updates, and disseminates instructions for reporting 
information to the DAADS. The instructions are to specify procedures, 
formats, and editing processes to be used by DoD Components, including 
record layout, submission deadlines, media, methods of submission, and 
error correction schedules.

[85 FR 51241, Aug. 19, 2020]



Sec.  21.535  Do DoD Components have central points for collecting 
DAADS data?

    Each DoD Component must have a central point for collecting DAADS 
information from contracting activities within that DoD Component. The 
central points are as follows:
    (a) For the Army: As directed by the U.S. Army Contracting Support 
Agency.
    (b) For the Navy: As directed by the Office of Naval Research.
    (c) For the Air Force: As directed by the Office of the Secretary of 
the Air Force, Acquisition Contracting Policy and Implementation 
Division (SAF/AQCP).
    (d) For the Office of the Secretary of Defense, Defense Agencies, 
and DoD Field Activities: Each Defense Agency must identify a central 
point for collecting and reporting DAADS information to the DAADS 
administrator. The DAADS Administrator serves as the central point for 
offices and activities within the Office of the Secretary of Defense and 
for DoD Field Activities.

[68 FR 47153, Aug. 7, 2003, as amended at 85 FR 51241, Aug. 19, 2020]



Sec.  21.540  What are the duties of the DoD Components' central points
for the DAADS?

    The office that serves, in accordance with Sec.  21.535, as the 
central point for collecting DAADS information from contracting 
activities within each DoD Component must:
    (a) Establish internal procedures to ensure reporting by contracting 
activities that make awards subject to 31 U.S.C. chapter 61.
    (b) Collect information required by the DAADS User Guide from those 
contracting activities, and report it to the DAADS Administrator, in 
accordance with Sec. Sec.  21.545 through 21.555. Note that the DAADS 
User Guide, which a registered DAADS user may find at the Resources 
section of the DAADS website (https://www.dmdc.osd.mil/daads/), provides 
further information about required data elements and instructions for 
submitting data.
    (c) Submit to the DAADS Administrator any recommended changes to the 
DAADS.

[68 FR 47153, Aug. 7, 2003, as amended at 85 FR 51241, Aug. 19, 2020]



Sec.  21.545  Must DoD Components report every obligation to the DAADS?

    Yes, DoD Components' central points must collect and report the data 
required by the DD Form 2566 for each individual action that involves 
the obligation or deobligation of Federal funds for an award that is 
subject to 31 U.S.C. chapter 61.



Sec.  21.550  Must DoD Components relate reported actions to listings
in the CFDA?

    Yes, DoD Components' central points must report each action as an 
obligation or deobligation under a specific programmatic listing in the 
Catalog of Federal Domestic Assistance (CFDA, see Sec.  21.505). The 
programmatic listing to be shown is the one that provided the funds 
being obligated or deobligated. For example, if a grants officer or 
agreements officer in one

[[Page 28]]

DoD Component obligates appropriations of a second DoD Component's 
programmatic listing, the grants officer or agreements officer must show 
the CFDA programmatic listing of the second DoD Component on the DD Form 
2566.



Sec.  21.555  When and how must DoD Components report to the DAADS?

    DoD Components must report:
    (a) Each obligating or deobligating action no later than 15 days 
after the date of the obligation or deobligation. Doing so enables DAADS 
to comply with the deadline in the Federal Funding Accountability and 
Transparency Act of 2006 (Pub. L. 109-282; 31 U.S.C. 6101 note) to 
report to the Governmentwide data system (USASpending.gov) established 
to implement requirements of that Act.
    (b) Using a method and in a format permitted either by the DAADS 
User Guide described in Sec.  21.540(b) or by agreement with the DAADS 
Administrator.

[85 FR 51241, Aug. 19, 2020]



Sec.  21.560  Must DoD Components assign numbers uniformly to awards?

    Yes, DoD Components must assign identifying numbers to all awards 
subject to this subpart, including grants, cooperative agreements, and 
technology investment agreements. The uniform numbering system parallels 
the procurement instrument identification (PII) numbering system 
specified in 48 CFR 204.70 (in the ``Defense Federal Acquisition 
Regulation Supplement''), as follows:
    (a) The first six alphanumeric characters of the assigned number 
must be identical to those specified by 48 CFR 204.7003(a)(1) to 
identify the DoD Component and contracting activity.
    (b) The seventh and eighth positions must be the last two digits of 
the fiscal year in which the number is assigned to the grant, 
cooperative agreement, or other nonprocurement instrument.
    (c) The 9th position must be a number:
    (1) ``1'' for grants.
    (2) ``2'' for cooperative agreements, including technology 
investment agreements that are cooperative agreements (see Appendix B to 
32 CFR part 37).
    (3) ``3'' for other nonprocurement instruments, including technology 
investment agreements that are not cooperative agreements.
    (d) The 10th through 13th positions must be the serial number of the 
instrument. DoD Components and contracting activities need not follow 
any specific pattern in assigning these numbers and may create multiple 
series of letters and numbers to meet internal needs for distinguishing 
between various sets of awards.



Sec.  21.565  Must DoD Components' electronic systems accept Data Universal
Numbering System (DUNS) numbers?

    The DoD Components must comply with paragraph 5.e of the Office of 
Management and Budget (OMB) policy directive entitled, ``Requirement for 
a DUNS number in Applications for Federal Grants and Cooperative 
Agreements.'' \2\ Paragraph 5.e requires electronic systems that handle 
information about grants and cooperative agreements (which, for the DoD, 
include Technology Investment Agreements) to accept DUNS numbers. Each 
DoD Component that awards or administers grants or cooperative 
agreements must ensure that DUNS numbers are accepted by each such 
system for which the DoD Component controls the system specifications. 
If the specifications of such a system are subject to another 
organization's control and the system can not accept DUNS numbers, the 
DoD Component must alert that organization to the OMB policy directive's 
requirement for use of DUNS numbers with a copy to: Director for Basic 
Research, OASD(R&E), 3040 Defense Pentagon, Washington, DC 20301-3040.
---------------------------------------------------------------------------

    \2\ This OMB policy directive is available at the Internet site 
http://www.whitehouse.gov/omb/grants/ grants_docs.html.

[72 FR 34986, June 26, 2007, as amended at 85 FR 51241, Aug. 19, 2020]



                          Subpart F_Definitions



Sec.  21.605  Acquisition.

    The acquiring (by purchase, lease, or barter) of property or 
services for the

[[Page 29]]

direct benefit or use of the United States Government (see more detailed 
definition at 48 CFR 2.101). In accordance with 31 U.S.C. 6303, 
procurement contracts are the appropriate legal instruments for 
acquiring such property or services.



Sec.  21.610  Agreements officer.

    An official with the authority to enter into, administer, and/or 
terminate technology investment agreements.



Sec.  21.615  Assistance.

    The transfer of a thing of value to a recipient to carry out a 
public purpose of support or stimulation authorized by a law of the 
United States (see 31 U.S.C. 6101(3)). Grants, cooperative agreements, 
and technology investment agreements are examples of legal instruments 
used to provide assistance.



Sec.  21.620  Award.

    A grant, cooperative agreement, technology investment agreement, or 
other nonprocurement instrument subject to one or more parts of the DoD 
Grant and Agreement Regulations (see appendix A to this part).



Sec.  21.625  Contract.

    See the definition for procurement contract in this subpart.



Sec.  21.630  Contracting activity.

    An activity to which the Head of a DoD Component has delegated broad 
authority regarding acquisition functions, pursuant to 48 CFR 1.601.



Sec.  21.635  Contracting officer.

    A person with the authority to enter into, administer, and/or 
terminate contracts and make related determinations and findings. A more 
detailed definition of the term appears at 48 CFR 2.101.



Sec.  21.640  Cooperative agreement.

    A legal instrument which, consistent with 31 U.S.C. 6305, is used to 
enter into the same kind of relationship as a grant (see definition 
``grant''), except that substantial involvement is expected between the 
Department of Defense and the recipient when carrying out the activity 
contemplated by the cooperative agreement. The term does not include 
``cooperative research and development agreements'' as defined in 15 
U.S.C. 3710a.



Sec.  21.645  Deviation.

    The issuance or use of a policy or procedure that is inconsistent 
with the DoDGARs.



Sec.  21.650  DoD Components.

    The Office of the Secretary of Defense, the Military Departments, 
the Defense Agencies, and DoD Field Activities.



Sec.  21.655  Grant.

    A legal instrument which, consistent with 31 U.S.C. 6304, is used to 
enter into a relationship:
    (a) Of which the principal purpose is to transfer a thing of value 
to the recipient to carry out a public purpose of support or stimulation 
authorized by a law of the United States, rather than to acquire 
property or services for the Department of Defense's direct benefit or 
use.
    (b) In which substantial involvement is not expected between the 
Department of Defense and the recipient when carrying out the activity 
contemplated by the grant.



Sec.  21.660  Grants officer.

    An official with the authority to enter into, administer, and/or 
terminate grants or cooperative agreements.



Sec.  21.665  Nonprocurement instrument.

    A legal instrument other than a procurement contract. Examples 
include instruments of financial assistance, such as grants or 
cooperative agreements, and those of technical assistance, which provide 
services in lieu of money.



Sec.  21.670  Procurement contract.

    A legal instrument which, consistent with 31 U.S.C. 6303, reflects a 
relationship between the Federal Government and a State, a local 
government, or other recipient when the principal purpose of the 
instrument is to acquire property or services for the direct benefit or 
use of the Federal Government.

[[Page 30]]

See the more detailed definition for contract at 48 CFR 2.101.



Sec.  21.675  Recipient.

    An organization or other entity receiving an award from a DoD 
Component.



Sec.  21.680  Technology investment agreements.

    A special class of assistance instruments used to increase 
involvement of commercial firms in defense research programs and for 
other purposes related to integrating the commercial and defense sectors 
of the nation's technology and industrial base. Technology investment 
agreements include one kind of cooperative agreement with provisions 
tailored for involving commercial firms, as well as one kind of other 
assistance transaction. Technology investment agreements are described 
more fully in 32 CFR part 37.



 Sec. Appendix A to Part 21--Instruments to Which DoDGARs Portions Apply

    I. For each DoDGARs part that DoD already has adopted in chapter XI 
of title 2 of the Code of Federal Regulations (CFR), the following table 
summarizes the general subject area that the part addresses and its 
applicability. All of the DoDGARs ultimately will be located in chapter 
XI of 2 CFR.

------------------------------------------------------------------------
                               Which addresses . .
        DoDGARs . . .                   .             Applies to . . .
------------------------------------------------------------------------
Part 1104...................  DoD's interim         grants and
                               implementation of     cooperative
                               the OMB guidance in   agreements other
                               2 CFR part 200.       than TIAs.
Part 1108 (2 CFR part 1108).  Definitions of terms  terms used
                                                     throughout the
                                                     DoDGARs in chapter
                                                     XI of 2 CFR other
                                                     than the portion
                                                     containing
                                                     regulations
                                                     implementing
                                                     specific national
                                                     policy requirements
                                                     that provide their
                                                     own definitions of
                                                     terms.
Part 1120 (2 CFR part 1120).  Award format........  grants and
                                                     cooperative
                                                     agreements, other
                                                     than TIAs.
Part 1122 (2 CFR part 1122).  National policy       grants and
                               requirements          cooperative
                               general award terms   agreements other
                               and conditions.       than TIAs. Portions
                                                     of this part apply
                                                     to TIAs, but only
                                                     as 32 CFR part 37
                                                     refers to them and
                                                     makes them apply.
Part 1125 (2 CFR part 1125).  Governmentwide        nonprocurement
                               debarment and         generally,
                               suspension            including grants,
                               requirements.         cooperative
                                                     agreements, TIAs,
                                                     and any other
                                                     instruments that
                                                     are ``covered
                                                     transactions''
                                                     under OMB guidance
                                                     in 2 CFR 180.210
                                                     and 180.215, as
                                                     implemented by 2
                                                     CFR part 1125,
                                                     except acquisition
                                                     transactions to
                                                     carry out prototype
                                                     projects (see 2 CFR
                                                     1125.20).
Parts 1126, 1128, 1130,       Administrative        cost-type grants and
 1132, 1134, 1136, and 1138    Requirements Terms    cooperative
 (subchapter D of 2 CFR        and Conditions for    agreements other
 chapter XI).                  Cost-type Awards to   than TIAs. Portions
                               Nonprofit and         of this subchapter
                               Governmental          apply to TIAs, but
                               Entities.             only as 32 CFR part
                                                     37 refers to them
                                                     and makes them
                                                     apply.
------------------------------------------------------------------------

    II. For each DoDGARs part that will remain in subchapter C of 
chapter I of title 32 of the CFR, pending completion of the DoDGARs 
updating needed to fully implement OMB guidance in 2 CFR part 200 and 
for other purposes, the following table summarizes the general subject 
area that the part addresses and its applicability. All of the 
substantive content of these DoDGARs parts ultimately will be located in 
new parts in chapter XI of 2 CFR.

------------------------------------------------------------------------
                               which addresses . .
        DoDGARs . . .                   .             applies to . . .
------------------------------------------------------------------------
Part 21 (32 CFR part 21),     The Defense Grant     ``awards,'' which
 all but subparts D and E.     and Agreement         are grants,
                               Regulatory System     cooperative
                               and the DoD Grant     agreements,
                               and Agreement         technology
                               Regulations.          investment
                                                     agreements (TIAs),
                                                     and other
                                                     nonprocurement
                                                     instruments subject
                                                     to one or more
                                                     parts of the
                                                     DoDGARs.
Part 21 (32 CFR part 21),     Authorities and       grants, cooperative
 subpart D.                    responsibilities      agreements, and
                               for assistance        TIAs.
                               award and
                               administration.
Part 21 (32 CFR part 21),     DoD Components'       grants, cooperative
 subpart E.                    information           agreements, TIAs,
                               reporting             and other
                               requirements.         nonprocurement
                                                     instruments subject
                                                     to reporting
                                                     requirements in 31
                                                     U.S.C. chapter 61.
Part 22 (32 CFR part 22)....  DoD grants officers'  grants and
                               responsibilities      cooperative
                               for award and         agreements other
                               administration of     than TIAs. Portions
                               grants and            of this part apply
                               cooperative           to TIAs, but only
                               agreements.           as 32 CFR part 37
                                                     refers to them and
                                                     makes them apply.

[[Page 31]]

 
Part 26 (32 CFR part 26)....  Governmentwide drug-  grants, cooperative
                               free workplace        agreements and
                               requirements.         other financial
                                                     assistance
                                                     instruments,
                                                     including TIAs,
                                                     that are included
                                                     in the definition
                                                     of ``award'' at 32
                                                     CFR 26.605.
Part 28 (32 CFR part 28)....  Governmentwide        grants, cooperative
                               restrictions on       agreements and
                               lobbying.             other financial
                                                     assistance
                                                     instruments,
                                                     including TIAs,
                                                     that are included
                                                     in the definitions
                                                     of ``Federal
                                                     grant'' and
                                                     ``Federal
                                                     cooperative
                                                     agreement'' at 32
                                                     CFR 28.105.
Part 34 (32 CFR part 34)....  Administrative        grants and
                               requirements for      cooperative
                               grants and            agreements other
                               agreements with for-  than TIAs
                               profit                (``award,'' as
                               organizations.        defined in 32 CFR
                                                     34.2). Portions of
                                                     this part apply to
                                                     TIAs, but only as
                                                     32 CFR part 37
                                                     refers to them and
                                                     makes them apply.
Part 37 (32 CFR part 37)....  Agreements officers'  TIAs. Note that this
                               responsibilities      part refers to
                               for award and         other portions of
                               administration of     DoDGARs that apply
                               TIAs.                 to TIAs.
------------------------------------------------------------------------


[85 FR 51241, Aug. 19, 2020]



PART 22_DoD GRANTS AND AGREEMENTS_AWARD AND ADMINISTRATION-
-Table of Contents



                            Subpart A_General

Sec.
22.100 Purpose.
22.105 Definitions.

             Subpart B_Selecting the Appropriate Instrument

22.200 Purpose.
22.205 Distinguishing assistance from procurement.
22.210 Authority for providing assistance.
22.215 Distinguishing grants and cooperative agreements.
22.220 Exemptions.

                          Subpart C_Competition

22.300 Purpose.
22.305 General policy and requirement for competition.
22.310 Statutes concerning certain research, development, and facilities 
          construction grants.
22.315 Merit-based, competitive procedures.
22.320 Special competitions.

     Subpart D_Recipient Qualification Matters_General Policies and 
                               Procedures

22.400 Purpose.
22.405 Policy.
22.410 Grants officers' responsibilities.
22.415 Standards.
22.420 Pre-award procedures.

                    Subpart E_National Policy Matters

22.505 Purpose.
22.510 Certifications, representations, and assurances.
22.515 Provisions of annual appropriations acts.
22.520 Campus access for military recruiting and Reserve Officer 
          Training Corps (ROTC).
22.525 Paperwork Reduction Act.
22.530 Metric system of measurement.

                             Subpart F_Award

22.600 Purpose.
22.605 Grants officers' responsibilities.

                     Subpart G_Field Administration

22.700 Purpose.
22.705 Policy.
22.710 Assignment of grants administration offices.
22.715 Grants administration office functions.

                   Subpart H_Post-Award Administration

22.800 Purpose and relation to other parts.
22.805 Post-award requirements in other parts.
22.810 Payments.
22.815 Claims, disputes, and appeals.
22.820 Debt collection.
22.825 Closeout audits.

Appendix A to Part 22--Proposal Provision for Required Certification.

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

    Source: 63 FR 12164, Mar. 12, 1998, unless otherwise noted.



                            Subpart A_General



Sec.  22.100  Purpose.

    This part outlines grants officers' and DoD Components' 
responsibilities

[[Page 32]]

related to the award and administration of grants and cooperative 
agreements.

[85 FR 51242, Aug. 19, 2020]



Sec.  22.105  Definitions.

    Other than the terms defined in this section, terms used in this 
part are defined in 32 CFR part 21, subpart F.
    Administrative offset. An action whereby money payable by the United 
States Government to, or held by the Government for, a recipient is 
withheld to satisfy a delinquent debt the recipient owes the Government.
    Advanced research. Advanced technology development that creates new 
technology or demonstrates the viability of applying existing technology 
to new products and processes in a general way. Advanced research is 
most closely analogous to precompetitive technology development in the 
commercial sector (i.e., early phases of research and development on 
which commercial competitors are willing to collaborate, because the 
work is not so coupled to specific products and processes that the 
results of the work must be proprietary). It does not include 
development of military systems and hardware where specific requirements 
have been defined. It is typically funded in Advanced Technology 
Development (Budget Activity 3 and Research Category 6.3A) programs 
within Research, Development, Test and Evaluation (RDT&E).
    Applied research. Efforts that attempt to determine and exploit the 
potential of scientific discoveries or improvements in technology such 
as new materials, devices, methods and processes. It typically is funded 
in Applied Research (Budget Activity 2 and Research Category 6.2) 
programs within Research, Development, Test and Evaluation (RDT&E). 
Applied research normally follows basic research but may not be fully 
distinguishable from the related basic research. The term does not 
include efforts whose principal aim is the design, development, or 
testing of specific products, systems or processes to be considered for 
sale or acquisition; these efforts are within the definition of 
``development.''
    Basic research. Efforts directed toward increasing knowledge and 
understanding in science and engineering, rather than the practical 
application of that knowledge and understanding. It typically is funded 
within Basic Research (Budget Activity 1 and Research Category 6.1) 
programs within Research, Development, Test and Evaluation (RDT&E). For 
the purposes of this part, basic research includes:
    (1) Research-related, science and engineering education, including 
graduate fellowships and research traineeships.
    (2) Research instrumentation and other activities designed to 
enhance the infrastructure for science and engineering research.
    Claim. A written demand or written assertion by one of the parties 
to a grant or cooperative agreement seeking as a matter of right, the 
payment of money in a sum certain, the adjustment or interpretation of 
award terms, or other relief arising under or relating to a grant or 
cooperative agreement. A routine request for payment that is not in 
dispute when submitted is not a claim. The submission may be converted 
to a claim by written notice to the grants officer if it is disputed 
either as to liability or amount, or is not acted upon in a reasonable 
time.
    Debt. Any amount of money or any property owed to a Federal Agency 
by any person, organization, or entity except another United States 
Federal Agency. Debts include any amounts due from insured or guaranteed 
loans, fees, leases, rents, royalties, services, sales of real or 
personal property, or overpayments, penalties, damages, interest, fines 
and forfeitures, and all other claims and similar sources. Amounts due a 
nonappropriated fund instrumentality are not debts owed the United 
States, for the purposes of this subchapter.
    Delinquent debt. A debt:
    (1) That the debtor fails to pay by the date specified in the 
initial written notice from the agency owed the debt, normally within 30 
calendar days, unless the debtor makes satisfactory payment arrangements 
with the agency by that date; and
    (2) With respect to which the debtor has elected not to exercise any 
available appeals or has exhausted all agency appeal processes.

[[Page 33]]

    Development. The systematic use of scientific and technical 
knowledge in the design, development, testing, or evaluation of 
potential new products, processes, or services to meet specific 
performance requirements or objectives. It includes the functions of 
design engineering, prototyping, and engineering testing.
    Electronic commerce. The conduct of business through the use of 
automation and electronic media, in lieu of paper transactions, direct 
personal contact, telephone, or other means. For grants and cooperative 
agreements, electronic commerce can include the use of electronic data 
interchange, electronic mail, electronic bulletin board systems, and 
electronic funds transfer for: program announcements or solicitations; 
applications or proposals; award documents; recipients' requests for 
payment; payment authorizations; and payments.
    Electronic data interchange. The exchange of standardized 
information communicated electronically between business partners, 
typically between computers. It is DoD policy that DoD Component EDI 
applications conform to the American National Standards Institute 
(ANSI), Accredited Standards Committee (ASC) X-12 standard. \1\
---------------------------------------------------------------------------

    \1\ Available from Accredited Standards Committee, X-12 Secretariat, 
Data Interchange Standards Association, 1800 Diagonal Road, Suite 355, 
Alexandria, VA 22314-2852; Attention: Manager Maintenance and 
Publications.
---------------------------------------------------------------------------

    Electronic funds transfer. A system that provides the authority to 
debit or credit accounts in financial institutions by electronic means 
rather than source documents (e.g., paper checks). Processing typically 
occurs through the Federal Reserve System and/or the Automated Clearing 
House (ACH) computer network. It is DoD policy that DoD Component EFT 
transmissions conform to the American National Standards Institute 
(ANSI), Accredited Standards Committee (ASC) X-12 standard.
    Historically Black colleges and universities. Institutions of higher 
education determined by the Secretary of Education to meet the 
requirements of 34 CFR 608.2. Each DoD Component's contracting 
activities and grants officers may obtain a list of historically Black 
colleges and universities from that DoD Component's Small and 
Disadvantaged Business Utilization office.
    Institution of higher education. An educational institution that 
meets the criteria in section 1201(a) of the Higher Education Act of 
1965 (20 U.S.C. 1141(a)). Note, however, that institution of higher 
education has a different meaning in Sec.  22.520, as given at Sec.  
22.520(b)(2).
    Minority institutions. Institutions of higher education that meet 
the criteria for minority institutions specified in 10 U.S.C. 2323. Each 
DoD Component's contracting activities and grants officers may obtain 
copies of a current list of institutions that qualify as minority 
institutions under 10 U.S.C. 2323 from that DoD Component's Small and 
Disadvantaged Business Utilization office (the list of minority 
institutions changes periodically, based on Department of Education data 
on institutions' enrollments of minority students).
    Research. Basic, applied, and advanced research, as defined in this 
section.
    Subaward. An award of financial assistance in the form of money, or 
property in lieu of money, made under a DoD grant or cooperative 
agreement by a recipient to an eligible subrecipient. The term includes 
financial assistance for substantive program performance by the 
subrecipient of a portion of the program for which the DoD grant or 
cooperative agreement was made. It does not include the recipient's 
procurement of goods and services needed to carry out the program.

[63 FR 12164, Mar. 12, 1998, as amended at 68 FR 47160, Aug. 7, 2003]



             Subpart B_Selecting the Appropriate Instrument



Sec.  22.200  Purpose.

    This subpart provides the bases for determining the appropriate type 
of instrument in a given situation.



Sec.  22.205  Distinguishing assistance from procurement.

    Before using a grant or cooperative agreement, the grants officer 
shall

[[Page 34]]

make a positive judgment that an assistance instrument, rather than a 
procurement contract, is the appropriate instrument, based on the 
following:
    (a) Purpose. (1) The grants officer must judge that the principal 
purpose of the activity to be carried out under the instrument is to 
stimulate or support a public purpose (i.e., to provide assistance), 
rather than acquisition (i.e., to acquire goods and services for the 
direct benefit of the United States Government). If the principal 
purpose is acquisition, then the grants officer shall judge that a 
procurement contract is the appropriate instrument, in accordance with 
31 U.S.C. chapter 63 (``Using Procurement Contracts and Grant and 
Cooperative Agreements''). Assistance instruments shall not be used in 
such situations, except:
    (i) When a statute specifically provides otherwise; or
    (ii) When an exemption is granted, in accordance with Sec.  22.220.
    (2) For research and development, the appropriate use of grants and 
cooperative agreements therefore is almost exclusively limited to the 
performance of selected basic, applied, and advanced research projects. 
Development projects nearly always shall be performed by contract or 
other acquisition transaction because their principal purpose is the 
acquisition of specific deliverable items (e.g., prototypes or other 
hardware) for the benefit of the Department of Defense.
    (b) Fee or profit. Payment of fee or profit is consistent with an 
activity whose principal purpose is the acquisition of goods and 
services for the direct benefit or use of the United States Government, 
rather than an activity whose principal purpose is assistance. 
Therefore, the grants officer shall use a procurement contract, rather 
than an assistance instrument, in all cases where:
    (1) Fee or profit is to be paid to the recipient of the instrument; 
or
    (2) The instrument is to be used to carry out a program where fee or 
profit is necessary to achieving program objectives.



Sec.  22.210  Authority for providing assistance.

    (a) Before a grant or cooperative agreement may be used, the grants 
officer must:
    (1) Identify the program statute, the statute that authorizes the 
DoD Component to carry out the activity the principal purpose of which 
is assistance (see 32 CFR 21.410 through 21.420.
    (2) Review the program statute to determine if it contains 
requirements that affect the:
    (i) Solicitation, selection, and award processes. For example, 
program statutes may authorize assistance to be provided only to certain 
types of recipients; may require that recipients meet certain other 
criteria to be eligible to receive assistance; or require that a 
specific process shall be used to review recipients' proposals.
    (ii) Terms and conditions of the award. For example, some program 
statutes require a specific level of cost sharing or matching.
    (b) The grants officer shall ensure that the award of DoD 
appropriations through a grant or cooperative agreement for a research 
project meets the standards of 10 U.S.C. 2358, DoD's broad authority to 
carry out research, even if the research project is authorized under a 
statutory authority other than 10 U.S.C. 2358. The standards of 10 
U.S.C. 2358 are that, in the opinion of the Head of the DoD Component or 
his or her designee, the projects must be:
    (1) Necessary to the responsibilities of the DoD Component.
    (2) Related to weapons systems and other military needs or of 
potential interest to the DoD Component.

[63 FR 12164, Mar. 12, 1998, as amended at 68 FR 47160, Aug. 7, 2003]



Sec.  22.215  Distinguishing grants and cooperative agreements.

    (a) Once a grants officer judges, in accordance with Sec. Sec.  
22.205 and 22.210, that either a grant or cooperative agreement is the 
appropriate instrument, the grants officer shall distinguish between the 
two instruments as follows:
    (1) Grants shall be used when the grants officer judges that 
substantial involvement is not expected between

[[Page 35]]

the Department of Defense and the recipient when carrying out the 
activity contemplated in the agreement.
    (2) Cooperative agreements shall be used when the grants officer 
judges that substantial involvement is expected. The grants officer 
should document the nature of the substantial involvement that led to 
selection of a cooperative agreement. Under no circumstances are 
cooperative agreements to be used solely to obtain the stricter controls 
typical of a contract.
    (b) In judging whether substantial involvement is expected, grants 
officers should recognize that ``substantial involvement'' is a 
relative, rather than an absolute, concept, and that it is primarily 
based on programmatic factors, rather than requirements for grant or 
cooperative agreement award or administration. For example, substantial 
involvement may include collaboration, participation, or intervention in 
the program or activity to be performed under the award.



Sec.  22.220  Exemptions.

    Under 31 U.S.C. 6307, ``the Director of the Office of Management and 
Budget may exempt an agency transaction or program'' from the 
requirements of 31 U.S.C. chapter 63. Grants officers shall request such 
exemptions only in exceptional circumstances. Each request shall specify 
for which individual transaction or program the exemption is sought; the 
reasons for requesting an exemption; the anticipated consequences if the 
exemption is not granted; and the implications for other agency 
transactions and programs if the exemption is granted. The procedures 
for requesting exemptions shall be:
    (a) In cases where 31 U.S.C. chapter 63 would require use of a 
contract and an exemption from that requirement is desired:
    (1) The grants officer shall submit a request for exemption, through 
appropriate channels established by his or her DoD Component (see 32 CFR 
21.320(a)), to the Director of Defense Procurement and Acquisition 
Policy (DDP&AP).
    (2) The DDP&AP, after coordination with the Assistant Secretary of 
Defense for Research and Engineering (ASD (R&E)), shall transmit the 
request to OMB or notify the DoD Component that the request has been 
disapproved.
    (b) In other cases, the DoD Component shall submit a request for the 
exemption through appropriate channels to the ASD (R&E). The ASD (R&E) 
shall transmit the request to OMB or notify the DoD Component that the 
request has been disapproved.
    (c) Where an exemption is granted, documentation of the approval 
shall be maintained in the award file.

[63 FR 12164, Mar. 12, 1998, as amended at 68 FR 47160, Aug. 7, 2003; 70 
FR 49464, Aug. 23, 2005; 85 FR 51242, Aug. 19, 2020]



                          Subpart C_Competition



Sec.  22.300  Purpose.

    This subpart establishes DoD policy and implements statutes related 
to the use of competitive procedures in the award of grants and 
cooperative agreements.



Sec.  22.305  General policy and requirement for competition.

    (a) It is DoD policy to maximize use of competition in the award of 
grants and cooperative agreements. This also conforms with:
    (1) 31 U.S.C. 6301(3), which encourages the use of competition in 
awarding all grants and cooperative agreements.
    (2) 10 U.S.C. 2374(a), which sets out Congressional policy that any 
new grant for research, development, test, or evaluation be awarded 
through merit-based selection procedures.
    (b) Grants officers shall use merit-based, competitive procedures 
(as defined by Sec.  22.315) to award grants and cooperative agreements:
    (1) In every case where required by statute (e.g., 10 U.S.C. 2361, 
as implemented in Sec.  22.310, for certain grants to institutions of 
higher education).
    (2) To the maximum extent practicable in all cases where not 
required by statute.



Sec.  22.310  Statutes concerning certain research, development, and
facilities construction grants.

    (a) Definitions specific to this section. For the purposes of 
implementing the requirements of 10 U.S.C. 2374 in this

[[Page 36]]

section, the following terms are defined:
    (1) Follow-on grant. A grant that provides for continuation of 
research and development performed by a recipient under a preceding 
grant. Note that follow-on grants are distinct from incremental funding 
actions during the period of execution of a multi-year award.
    (2) New grant. A grant that is not a follow-on grant.
    (b) Statutory requirement to use competitive procedures. (1) A 
grants officer shall not award a grant by other than merit-based, 
competitive procedures (as defined by Sec.  22.315) to an institution of 
higher education for the performance of research and development or for 
the construction of research or other facilities, unless:
    (i) In the case of a new grant for research and development, there 
is a statute meeting the criteria in paragraph (c)(1) of this section;
    (ii) In the case of a follow-on grant for research and development, 
or of a grant for the construction of research or other facilities, 
there is a statute meeting the criteria in paragraph (c)(2) of this 
section; and
    (iii) The Secretary of Defense submits to Congress a written notice 
of intent to make the grant. The grant may not be awarded until 180 
calendar days have elapsed after the date on which Congress received the 
notice of intent. Contracting activities must submit a draft notice of 
intent with supporting documentation through channels to the Principal 
Deputy Assistant Secretary of Defense for Research and Engineering.
    (2) Because subsequently enacted statutes may, by their terms, 
impose different requirements than set out in paragraph (b)(1) of this 
section, grants officers shall consult legal counsel on a case-by-case 
basis, when grants for the performance of research and development or 
for the construction of research or other facilities are to be awarded 
to institutions of higher education by other than merit-based 
competitive procedures.
    (c) Subsequent statutes. In accordance with 10 U.S.C. 2361 and 10 
U.S.C. 2374, a provision of law may not be construed as requiring the 
award of a grant through other than the merit-based, competitive 
procedures described in Sec.  22.315, unless:
    (1) Institutions of higher education--new grants for research and 
development. In the case of a new grant for research and development to 
an institution of higher education, such provision of law specifically:
    (i) Identifies the particular institution of higher education 
involved;
    (ii) States that such provision of law modifies or supersedes the 
provisions of 10 U.S.C. 2361 (a requirement that applies only if the 
statute authorizing or requiring award by other than competitive 
procedures was enacted after September 30, 1989); and
    (iii) States that the award to the institution of higher education 
involved is required by such provision of law to be made in 
contravention of the policy set forth in 10 U.S.C. 2374(a).
    (2) Institutions of higher education--follow-on grants for research 
and development and grants for the construction of any research or other 
facility. In the case of any such grant to an institution of higher 
education, such provision of law specifically:
    (i) Identifies the particular institution of higher education 
involved; and
    (ii) States that such provision of law modifies or supersedes the 
provisions of 10 U.S.C. 2361 (a requirement that applies only if the 
statute authorizing or requiring award by other than competitive 
procedures was enacted after September 30, 1989).
    (3) Other entities--new grants for research and development--(i) 
General. In the case of a new grant for research and development to an 
entity other than an institution of higher education, such provision of 
law specifically:
    (A) Identifies the particular entity involved;
    (B) States that the award to that entity is required by such 
provision of law to be made in contravention of the policy set forth in 
10 U.S.C. 2374(a).
    (ii) Exception. The requirement of paragraph (c)(3)(i) of this 
section does not apply to any grant that calls upon the National Academy 
of Sciences to:
    (A) Investigate, examine, or experiment upon any subject of science 
or art of significance to the Department of

[[Page 37]]

Defense or any Military Department; and
    (B) Report on such matters to the Congress or any agency of the 
Federal Government.

[63 FR 12164, Mar. 12, 1998, as amended at 85 FR 51242, Aug. 19, 2020]



Sec.  22.315  Merit-based, competitive procedures.

    Competitive procedures are methods that encourage participation in 
DoD programs by a broad base of the most highly qualified performers. 
These procedures are characterized by competition among as many eligible 
proposers as possible, with a published or widely disseminated notice. 
Competitive procedures include, as a minimum:
    (a) Notice to prospective proposers. The notice may be a notice of 
funding availability or Broad Agency Announcement that is publicly 
disseminated, with unlimited distribution, or a specific notice that is 
distributed to eligible proposers (a specific notice must be distributed 
to at least two eligible proposers to be considered as part of a 
competitive procedure). Requirements for notices are as follows:
    (1) The format and content of each notice must conform with the 
Governmentwide format for announcements of funding opportunities 
established by the Office of Management and Budget (OMB) in a policy 
directive entitled, ``Format for Financial Assistance Program 
Announcements.'' \2\
---------------------------------------------------------------------------

    \2\ This OMB policy directive is available at the Internet site 
http://www.whitehouse.gov/omb/grants/ grants_docs.html (the link is 
``Final Policy Directive on Financial Assistance Program 
Announcements'').
---------------------------------------------------------------------------

    (2) In accordance with that OMB policy directive, DoD Components 
also must post on the Internet any notice under which domestic entities 
may submit proposals, if the distribution of the notice is unlimited. 
DoD Components are encouraged to simultaneously publish the notice in 
other media (e.g., the Federal Register), if doing so would increase the 
likelihood of its being seen by potential proposers. If a DoD Component 
issues a specific notice with limited distribution (e.g., for national 
security considerations), the notice need not be posted on the Internet.
    (3) To comply with an OMB policy directive entitled, ``Requirement 
to Post Funding Opportunity Announcement Synopses at Grants.gov and 
Related Data Elements/Format,'' \3\ DoD Components must post on the 
Internet a synopsis for each notice that, in accordance with paragraph 
(a)(2) of this section, is posted on the Internet. The synopsis must be 
posted at the Governmentwide site designated by the OMB (currently 
http://www.Grants.gov). The synopsis for each notice must provide 
complete instructions on where to obtain the notice and should have an 
electronic link to the Internet location at which the notice is posted.
---------------------------------------------------------------------------

    \3\ This OMB policy directive is available at the Internet site 
http://www.whitehouse.gov/omb/grants/ grants_docs.html (the link is 
``Office of Federal Financial Management Policy Directive on Use of 
Grants.Gov FIND'').
---------------------------------------------------------------------------

    (4) In accordance with an OMB policy directive entitled, 
``Requirement for a DUNS Number in Applications for Federal Grants and 
Cooperative Agreements,'' \4\ each notice must include a requirement for 
proposers to include Data Universal Numbering System (DUNS) numbers in 
their proposals. If a notice provides for submission of application 
forms, the forms must incorporate the DUNS number. To the extent that 
unincorporated consortia of separate organizations may submit proposals, 
the notice should explain that an unincorporated consortium would use 
the DUNS number of the entity proposed to receive DoD payments under the 
award (usually, a lead organization that consortium members identify for 
administrative matters).
---------------------------------------------------------------------------

    \4\ This OMB policy directive is available at the Internet site 
http://www.whitehouse.gov/omb/ grants/grants_docs.html (the link is 
``Use of a Universal Identifier by Grant Applicants'').
---------------------------------------------------------------------------

    (b) At least two eligible, prospective proposers.
    (c) Impartial review of the merits of applications or proposals 
received in response to the notice, using the evaluation method and 
selection criteria described in the notice. For research and development 
awards, in order to be considered as part of a competitive procedure, 
the two principal selection

[[Page 38]]

criteria, unless statute provides otherwise, must be the:
    (1) Technical merits of the proposed research and development; and
    (2) Potential relationship of the proposed research and development 
to Department of Defense missions.

[63 FR 12164, Mar. 12, 1998, as amended at 70 FR 49464, Aug. 23, 2005; 
72 FR 34988, June 26, 2007; 85 FR 51242, Aug. 19, 2020]



Sec.  22.320  Special competitions.

    Some programs may be competed for programmatic or policy reasons 
among specific classes of potential recipients. An example would be a 
program to enhance U.S. capabilities for academic research and research-
coupled graduate education in defense-critical, science and engineering 
disciplines, a program that would be competed specifically among 
institutions of higher education. All such special competitions shall be 
consistent with program representations in the President's budget 
submission to Congress and with subsequent Congressional authorizations 
and appropriations for the programs.



     Subpart D_Recipient Qualification Matters_General Policies and 
                               Procedures



Sec.  22.400  Purpose.

    The purpose of this subpart is to specify policies and procedures 
for grants officers' determination of recipient qualifications prior to 
award.



Sec.  22.405  Policy.

    (a) General. Grants officers normally shall award grants or 
cooperative agreements only to qualified recipients that meet the 
standards in Sec.  22.415. This practice conforms with the 
Governmentwide policy to do business only with responsible persons, 
which is stated in OMB guidance at 2 CFR 180.125(a) and implemented by 
the Department of Defense in 2 CFR part 1125.
    (b) Exception. In exceptional circumstances, grants officers may 
make awards to recipients that do not fully meet the standards in Sec.  
22.415 and include special award conditions that are appropriate to the 
particular situation, in accordance with 32 CFR 34.4 for awards to for-
profit organizations or as described in OMB guidance at 2 CFR 200.207 
for awards to institutions of higher education, nonprofit organizations, 
States, local governments, and Indian tribes.

[63 FR 12164, Mar. 12, 1998, as amended at 70 FR 49464, Aug. 23, 2005; 
72 FR 34988, June 26, 2007; 85 FR 51242, Aug. 19, 2020]



Sec.  22.410  Grants officers' responsibilities.

    The grants officer is responsible for determining a recipient's 
qualification prior to award. The grants officer's signature on the 
award document shall signify his or her determination that either:
    (a) The potential recipient meets the standards in Sec.  22.415 and 
is qualified to receive the grant or cooperative agreement; or
    (b) An award is justified to a recipient that does not fully meet 
the standards, pursuant to Sec.  22.405(b). In such cases, grants 
officers shall document in the award file the rationale for making an 
award to a recipient that does not fully meet the standards.



Sec.  22.415  Standards.

    To be qualified, a potential recipient must:
    (a) Have the management capability and adequate financial and 
technical resources, given those that would be made available through 
the grant or cooperative agreement, to execute the program of activities 
envisioned under the grant or cooperative agreement.
    (b) Have a satisfactory record of executing such programs or 
activities (if a prior recipient of an award).
    (c) Have a satisfactory record of integrity and business ethics.
    (d) Be otherwise qualified and eligible to receive a grant or 
cooperative agreement under applicable laws and regulations (see Sec.  
22.420(c)).



Sec.  22.420  Pre-award procedures.

    (a) The appropriate method to be used and amount of effort to be 
expended in deciding the qualification of a potential recipient will 
vary. In deciding on the method and level of effort, the grants officer 
should consider factors such as:
    (1) DoD's past experience with the recipient;

[[Page 39]]

    (2) Whether the recipient has previously received cost-type 
contracts, grants, or cooperative agreements from the Federal 
Government; and
    (3) The amount of the prospective award and complexity of the 
project to be carried out under the award.
    (b) There is no DoD-wide requirement to obtain a pre-award credit 
report, audit, or any other specific piece of information. On a case-by-
case basis, the grants officer will decide whether there is a need to 
obtain any such information to assist in deciding whether the recipient 
meets the standards in Sec.  22.415 (a), (b), and (c).
    (1) Should the grants officer in a particular case decide that a 
pre-award credit report, audit, or survey is needed, he or she should 
consult first with the appropriate grants administration office 
(identified in Sec.  22.710), and decide whether pre-existing surveys or 
audits of the recipient, such as those of the recipient's internal 
control systems under OMB guidance in subpart F of 2 CFR part 200, will 
satisfy the need (see Sec.  22.715(a)(1)).
    (2) If, after consulting with the grants administration office, the 
grants officer decides to obtain a credit report, audit, or other 
information, and the report or other information discloses that a 
potential recipient is delinquent on a debt to an agency of the United 
States Government, then:
    (i) The grants officer shall take such information into account when 
determining whether the potential recipient is qualified with respect to 
the grant or cooperative agreement; and
    (ii) If the grants officer decides to make the award to the 
recipient, unless there are compelling reasons to do otherwise, the 
grants officer shall delay the award of the grant or cooperative 
agreement until payment is made or satisfactory arrangements are made to 
repay the debt.
    (c) In deciding whether a recipient is otherwise qualified and 
eligible in accordance with the standard in Sec.  22.415(d), the grants 
officer shall ensure that the potential recipient:
    (1) Is not identified in the Exclusions area of the System for Award 
Management (SAM Exclusions) as being debarred, suspended, or otherwise 
ineligible to receive the award (SAM is at www.sam.gov). In addition to 
being a requirement for every new award, note that checking SAM 
Exclusions also is a requirement for subsequent obligations of 
additional funds, such as incremental funding actions, in the case of 
pre-existing awards to institutions of higher education, as described at 
Sec.  22.520(e)(5). The grants officer's responsibilities include (see 
the OMB guidance at 2 CFR 180.425 and 180.430, as implemented by the 
Department of Defense at 2 CFR 1125.425) checking SAM Exclusions for:
    (i) Potential recipients of prime awards; and
    (ii) A recipient's principals (as defined in OMB guidance at 2 CFR 
180.995, implemented by the Department of Defense in 2 CFR part 1125), 
potential recipients of subawards, and principals of those potential 
subaward recipients, if DoD Component approval of those principals or 
lower-tier recipients is required under the terms of the award.
    (2) Has provided all certifications and assurances required by 
Federal statute, Executive order, or codified regulation, unless they 
are to be addressed in award terms and conditions at the time of award 
(see Sec.  22.510).
    (3) Meets any eligibility criteria that may be specified in the 
statute authorizing the specific program under which the award is being 
made (see Sec.  22.210(a)(2)).
    (d) Grants officers shall obtain each recipient's Taxpayer 
Identification Number (TIN, which may be the Social Security Number for 
an individual and Employer Identification Number for a business or non-
profit entity) and notify the recipient that the TIN is being obtained 
for purposes of collecting and reporting on any delinquent amounts that 
may arise out of the recipient's relationship with the Government. 
Obtaining the TIN and so notifying the recipient is a statutory 
requirement of 31 U.S.C. 7701, as amended by the Debt Collection 
Improvement Act of 1996 (section 31001(i)(1), Pub. L. 104-134).

[63 FR 12164, Mar. 12, 1998, as amended at 70 FR 49464, Aug. 23, 2005; 
72 FR 34988, June 26, 2007; 85 FR 51242, Aug. 19, 2020]

[[Page 40]]



                    Subpart E_National Policy Matters



Sec.  22.505  Purpose.

    The purpose of this subpart is to supplement other regulations that 
implement national policy requirements, to the extent that it is 
necessary to provide additional guidance to DoD grants officers.

[85 FR 51242, Aug. 19, 2020]



Sec.  22.510  Certifications, representations, and assurances.

    (a) Certifications--(1) Policy. Certifications of compliance with 
national policy requirements are to be obtained from recipients only for 
those national policies where a statute, Executive order, or codified 
regulation specifically states that a certification is required. Other 
national policy requirements may be addressed by obtaining 
representations or assurances (see paragraph (b) of this section). 
Grants officers should utilize methods for obtaining certifications, in 
accordance with Executive Order 12866 (3 CFR, 1993 Comp., p. 638), that 
minimize administration and paperwork.
    (2) Procedures. (i) When necessary, grants officers may obtain 
individual, written certifications.
    (ii) Whenever possible, and to the extent consistent with statute 
and codified regulation, grants officers should identify the 
certifications that are required for the particular type of recipient 
and program, and consolidate them into a single certification provision 
that cites them by reference.
    (A) If a grants officer elects to have proposers incorporate 
certifications by reference into their proposals, he or she must do so 
in one of the two following ways. When required by statute or codified 
regulation, the solicitation must include the full text of the 
certifications that proposers are to provide by reference. In other 
cases, the grants officer may include language in the solicitation that 
informs the proposers where the full text may be found (e.g., in 
documents or computer network sites that are readily available to the 
public) and offers to provide it to proposers upon request.
    (B) Appendix A to this part provides language that may be used for 
incorporating by reference the certification on lobbying, which 
currently is the only certification requirement that commonly applies to 
DoD grants and agreements. Because that certification is required by law 
to be submitted at the time of proposal, rather than at the time of 
award, Appendix A includes language to incorporate the certification by 
reference into a proposal.
    (C) Grants officers may incorporate certifications by reference in 
award documents when doing so is consistent with statute and codified 
regulation (that is not the case for the lobbying certification 
addressed in paragraph (a)(2)(ii)(B) of this section). The provision 
that a grants officer would use to incorporate certifications in award 
documents, when consistent with statute and codified regulation, would 
be similar to the provision in Appendix A to this part, except that it 
would be modified to state that the recipient is providing the required 
certifications by signing the award document or by accepting funds under 
the award.
    (b) Representations and assurances. Many national policies, either 
in statute or in regulation, require recipients of grants and 
cooperative agreements to make representations or provide assurances 
(rather than certifications) that they are in compliance with the 
policies. Part 1122 of the DoDGARs (2 CFR part 1122) provides standard 
wording of general award terms and conditions to address several of the 
more commonly applicable national policy requirements. These terms and 
conditions may be used to obtain required assurances and representations 
for national policy matters covered in part 1122 at the time of award, 
which is as effective and more efficient and less administratively 
burdensome than obtaining them at the time of each proposal. If any 
other assurances or representations must be obtained at the time of 
proposal, grants officers should use the most efficient method for doing 
so--e.g., for a program that has a program announcement and applications 
using the standard application form

[[Page 41]]

(SF-424 \5\), the program announcement should include the texts of the 
required assurances and representations and clearly state that the 
applicant's electronic signature of the SF-424 will serve to affirm its 
agreement with each representation or assurance.
---------------------------------------------------------------------------

    \5\ For copies of Standard Forms listed in this part, contact 
regional grants administration offices of the Office of Naval Research. 
Addresses for the offices are listed in the ``Federal Directory of 
Contract Administration Services (CAS) Components,'' which may be 
accessed through the Defense Contract Management Agency homepage at: 
http://www.dcma.mil.

[63 FR 12164, Mar. 12, 1998, as amended at 70 FR 49464, Aug. 23, 2005; 
85 FR 51242, Aug. 19, 2020]



Sec.  22.515  Provisions of annual appropriations acts.

    An annual appropriations act can include general provisions stating 
national policy requirements that apply to the use of funds (e.g., 
obligation through a grant or cooperative agreement) appropriated by the 
act. Because these requirements are of limited duration (the period 
during which a given year's appropriations are available for 
obligation), and because they can vary from year to year and from one 
agency's appropriations act to another agency's, the grants officer must 
know the agency(ies) and fiscal year(s) of the appropriations being 
obligated by a given grant or cooperative agreement, and may need to 
consult legal counsel if he or she does not know the requirements 
applicable to those appropriations.



Sec.  22.520  Campus access for military recruiting and Reserve Officer
Training Corps (ROTC).

    (a) Purpose. (1) The purpose of this section is to implement 10 
U.S.C. 983 as it applies to grants. Under that statute, DoD Components 
are prohibited from providing funds to institutions of higher education 
that have policies or practices, as described in paragraph (c) of this 
section, restricting campus access of military recruiters or the Reserve 
Officer Training Corps (ROTC).
    (2) By addressing the effect of 10 U.S.C. 983 on grants and 
cooperative agreements, this section supplements the DoD's primary 
implementation of that statute in 32 CFR part 216, ``Military Recruiting 
and Reserve Officer Training Corps Program Access to Institutions of 
Higher Education.'' Part 216 establishes procedures by which the 
Department of Defense identifies institutions of higher education that 
have a policy or practice described in paragraph (c) of this section.
    (b) Definition specific to this section. ``Institution of higher 
education'' in this section has the meaning given at 32 CFR 216.3, which 
is different than the meaning given at Sec.  22.105 for other sections 
of this part.
    (c) Statutory requirement of 10 U.S.C. 983. No funds made available 
to the Department of Defense may be provided by grant to an institution 
of higher education (including any subelement of such institution) if 
the Secretary of Defense determines that the institution (or any 
subelement of that institution) has a policy or practice that either 
prohibits, or in effect prevents:
    (1) The Secretary of a Military Department from maintaining, 
establishing, or operating a unit of the Senior ROTC (in accordance with 
10 U.S.C. 654 and other applicable Federal laws) at that institution (or 
any subelement of that institution);
    (2) A student at that institution (or any subelement of that 
institution) from enrolling in a unit of the Senior ROTC at another 
institution of higher education;
    (3) The Secretary of a Military Department or Secretary of Homeland 
Security from gaining access to campuses, or access to students (who are 
17 years of age or older) on campuses, for purposes of military 
recruiting in a manner that is at least equal in quality and scope to 
the access to campuses and to students that is provided to any other 
employer; or
    (4) Access by military recruiters for purposes of military 
recruiting to the following information pertaining to students (who are 
17 years of age or older) enrolled at that institution (or any 
subelement of that institution):
    (i) Names, addresses, and telephone listings.
    (ii) Date and place of birth, levels of education, academic majors, 
degrees

[[Page 42]]

received, and the most recent educational institution enrolled in by the 
student.
    (d) Policy--(1) Applicability to cooperative agreements. As a matter 
of DoD policy, the restrictions of 10 U.S.C. 983, as implemented by 32 
CFR part 216, apply to cooperative agreements, as well as grants.
    (2) Deviations. Grants officers may not deviate from any provision 
of this section without obtaining the prior approval of the Assistant 
Secretary of Defense for Research and Engineering. Requests for 
deviations shall be submitted, through appropriate channels, to: 
Director for Basic Research, OASD(R&E), 3040 Defense Pentagon, 
Washington, D.C. 20301-3040.
    (e) Grants officers' responsibility. (1) A grants officer shall not 
award any grant or cooperative agreement to an institution of higher 
education that has been identified pursuant to the procedures of 32 CFR 
part 216. Such institutions are identified as being ineligible in the 
Exclusions area of the System for Award Management (SAM Exclusions). The 
exclusion types in SAM Exclusions broadly indicate the nature of an 
institution's ineligibility, as well as the effect of the exclusion, and 
the Additional Comments field may have further details about the 
exclusion. Note that OMB guidance in 2 CFR 180.425 and 180.430, as 
implemented by the Department of Defense at 2 CFR part 1125, require a 
grants officer to check the SAM Exclusions prior to determining that a 
recipient is qualified to receive an award.
    (2) A grants officer shall not consent to a subaward of DoD funds to 
such an institution, under a grant or cooperative agreement to any 
recipient, if the subaward requires the grants officer's consent.
    (3) A grants officer shall include the following award term in each 
grant or cooperative agreement with an institution of higher education 
(note that this requirement does not flow down and that recipients are 
not required to include the award term in subawards):

    ``As a condition for receipt of funds available to the Department of 
Defense (DoD) under this award, the recipient agrees that it is not an 
institution of higher education (as defined in 32 CFR part 216) that has 
a policy or practice that either prohibits, or in effect prevents:
    (A) The Secretary of a Military Department from maintaining, 
establishing, or operating a unit of the Senior Reserve Officers 
Training Corps (in accordance with 10 U.S.C. 654 and other applicable 
Federal laws) at that institution (or any subelement of that 
institution);
    (B) Any student at that institution (or any subelement of that 
institution) from enrolling in a unit of the Senior ROTC at another 
institution of higher education;
    (C) The Secretary of a Military Department or Secretary of Homeland 
Security from gaining access to campuses, or access to students (who are 
17 years of age or older) on campuses, for purposes of military 
recruiting in a manner that is at least equal in quality and scope to 
the access to campuses and to students that is provided to any other 
employer; or
    (D) Access by military recruiters for purposes of military 
recruiting to the names of students (who are 17 years of age or older 
and enrolled at that institution or any subelement of that institution); 
their addresses, telephone listings, dates and places of birth, levels 
of education, academic majors, and degrees received; and the most recent 
educational institutions in which they were enrolled.

If the recipient is determined, using the procedures in 32 CFR part 216, 
to be such an institution of higher education during the period of 
performance of this agreement, the Government will cease all payments of 
DoD funds under this agreement and all other DoD grants and cooperative 
agreements to the recipient, and it may suspend or terminate such grants 
and agreements unilaterally for material failure to comply with the 
terms and conditions of award.''

    (4) If an institution of higher education refuses to accept the 
award term in paragraph (e)(3) of this section, the grants officer 
shall:
    (i) Determine that the institution is not qualified with respect to 
the award. The grants officer may award to an alternative recipient.
    (ii) Transmit the name of the institution, through appropriate 
channels, to the Director for Accession Policy, Office of the Deputy 
Under Secretary of Defense for Military Personnel Policy (ODUSD(MPP)), 
4000 Defense Pentagon, Washington, DC 20301-4000. This will allow 
ODUSD(MPP) to decide whether to initiate an evaluation of the 
institution under 32 CFR part 216, to determine whether it is an 
institution that

[[Page 43]]

has a policy or practice described in paragraph (c) of this section.
    (5) With respect to any pre-existing award to an institution of 
higher education that currently is listed in SAM Exclusions pursuant to 
a determination under 32 CFR part 216, a grants officer:
    (i) Shall not obligate additional funds available to the DoD for the 
award. A grants officer therefore must check SAM Exclusions before 
approving an incremental funding action or other additional funding for 
any pre-existing award to an institution of higher education. The grants 
officer may not obligate the additional funds if the cause and treatment 
code indicates that the reason for an institution's SAM Exclusions 
listing is a determination under 32 CFR part 216 that institutional 
policies or practices restrict campus access of military recruiters or 
ROTC.
    (ii) Shall not approve any request for payment submitted by such an 
institution (including payments for costs already incurred).
    (iii) Shall:
    (A) Terminate the award unless he or she has a reason to believe, 
after consulting with the ODUSD(MPP), 4000 Defense Pentagon, Washington, 
DC 20301-4000), that the institution may be removed from SAM Exclusions 
in the near term and have its eligibility restored; and
    (B) Suspend any award that is not immediately terminated, as well as 
all payments under it.
    (f) Post-award administration responsibilities of the Office of 
Naval Research (ONR). As the DoD office assigned responsibility for 
performing field administration services for grants and cooperative 
agreements with institutions of higher education, the ONR shall 
disseminate the list it receives from the ODUSD(MPP) of institutions of 
higher education identified pursuant to the procedures of 32 CFR part 
216 to:
    (1) ONR field administration offices, with instructions to:
    (i) Disapprove any payment requests under awards to such 
institutions for which post-award payment administration was delegated 
to the ONR; and
    (ii) Alert the DoD offices that made the awards to their 
responsibilities under paragraphs (e)(5)(i) and (e)(5)(iii) of this 
section.
    (2) Awarding offices in DoD Components that may be identified from 
data in the Defense Assistance Awards Data System (see 32 CFR 21.520 
through 21.555) as having awards with such institutions for which post-
award payment administration was not delegated to ONR. The ONR is to 
alert those offices to their responsibilities under paragraph (e)(5) of 
this section.

[70 FR 49465, Aug. 23, 2005, as amended at 72 FR 34988, June 26, 2007; 
85 FR 51243, Aug. 19, 2020]



Sec.  22.525  Paperwork Reduction Act.

    Grants officers shall include appropriate award terms or conditions, 
if a recipient's activities under an award will be subject to the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3500, et seq.):
    (a) Generally, the Act only applies to Federal agencies--it requires 
agencies to obtain clearance from the Office of Management and Budget 
before collecting information using forms, schedules, questionnaires, or 
other methods calling either for answers to:
    (1) Identical questions from ten or more persons other than 
agencies, instrumentalities, or employees of the United States.
    (2) Questions from agencies, instrumentalities, or employees of the 
United States which are to be used for statistical compilations of 
general public interest.
    (b) The Act applies to similar collections of information by 
recipients of grants or cooperative agreements only when:
    (1) A recipient collects information at the specific request of the 
awarding Federal agency; or
    (2) The terms and conditions of the award require specific approval 
by the agency of the information collection or the collection 
procedures.



Sec.  22.530  Metric system of measurement.

    (a) Statutory requirement. The Metric Conversion Act of 1975, as 
amended by the Omnibus Trade and Competitiveness Act of 1988 (15 U.S.C. 
205) and implemented by Executive Order 12770 (3 CFR, 1991 Comp., p. 
343), states that:

[[Page 44]]

    (1) The metric system is the preferred measurement system for U.S. 
trade and commerce.
    (2) The metric system of measurement will be used, to the extent 
economically feasible, in federal agencies' procurements, grants, and 
other business-related activities.
    (3) Metric implementation shall not be required to the extent that 
such use is likely to cause significant inefficiencies or loss of 
markets to United States firms.
    (b) Responsibilities. DoD Components shall ensure that the metric 
system is used, to the maximum extent practicable, in measurement-
sensitive activities supported by programs that use grants and 
cooperative agreements, and in measurement-sensitive outputs of such 
programs.



                             Subpart F_Award



Sec.  22.600  Purpose.

    This subpart sets forth grants officers' responsibilities relating 
to the award document and other actions at the time of award.



Sec.  22.605  Grants officers' responsibilities.

    At the time of award, the grants officer is responsible for ensuring 
that:
    (a) The award:
    (1) Conforms to the award format specified in 2 CFR part 1120.
    (2) Includes appropriate general terms and conditions and any 
program-specific and award-specific terms and conditions needed to 
specify applicable administrative, national policy, and programmatic 
requirements. These requirements include:
    (i) Federal statutes or Executive orders that apply broadly to 
Federal or DoD grants and cooperative agreements; and
    (ii) Any requirements specific to the program, as prescribed in the 
program statute (see Sec.  22.210(a)(2)), or specific to the funding, as 
stated in pertinent Congressional appropriations (see Sec.  22.515).
    (b) Information about the award is reported to the Defense 
Assistance Award Data System (DAADS), in accordance with Subpart E of 32 
CFR part 21.
    (c)(1) In addition to the copy of the award document provided to the 
recipient, a copy is forwarded to the office designated to administer 
the grant or cooperative agreement, and another copy is forwarded to the 
finance and accounting office designated to make the payments to the 
recipient.
    (2) For any award subject to the electronic funds transfer (EFT) 
requirement described in Sec.  22.810(b)(2), the grants officer shall 
include a prominent notification of that fact on the first page of the 
copies forwarded to the recipient, the administrative grants officer, 
and the finance and accounting office. On the first page of the copy 
forwarded to the recipient, the grants officer also shall include a 
prominent notification that the recipient, to be paid, must submit a 
Payment Information Form (Standard Form SF-3881 \6\) to the responsible 
DoD payment office, if that payment office does not currently have the 
information (e.g., bank name and account number) needed to pay the 
recipient by EFT.
---------------------------------------------------------------------------

    \6\ See footnote 5 to Sec.  22.510(b).

[63 FR 12164, Mar. 12, 1998, as amended at 68 FR 47160, Aug. 7, 2003; 70 
FR 49465, Aug. 23, 2005; 85 FR 51243, Aug. 19, 2020]



                     Subpart G_Field Administration



Sec.  22.700  Purpose.

    This subpart prescribes policies and procedures for administering 
grants and cooperative agreements. It does so in conjunction with 32 CFR 
part 34 and subchapter D of 2 CFR chapter XI, which prescribe 
administrative requirements for particular types of recipients.

[63 FR 12164, Mar. 12, 1998, as amended at 85 FR 51243, Aug. 19, 2020]



Sec.  22.705  Policy.

    (a) DoD policy is to have each recipient deal with a single office, 
to the maximum extent practicable, for post-award administration of its 
grants and cooperative agreements. This reduces burdens on recipients 
that can result when multiple DoD offices separately administer grants 
and cooperative

[[Page 45]]

agreements they award to a given recipient. It also minimizes 
unnecessary duplication of field administration services.
    (b) To further reduce burdens on recipients, the office responsible 
for performing field administration services for grants and cooperative 
agreements to a particular recipient shall be, to the maximum extent 
practicable, the same office that is assigned responsibility for 
performing field administration services for contracts awarded to that 
recipient.
    (c) Contracting activities and grants officers therefore shall use 
cross-servicing arrangements whenever practicable and, to the maximum 
extent possible, delegate responsibility for post-award administration 
to the cognizant grants administration offices identified in Sec.  
22.710.



Sec.  22.710  Assignment of grants administration offices.

    In accordance with the policy stated in Sec.  22.705(b), the DoD 
offices (referred to in this part as ``grants administration offices'') 
that are assigned responsibility for performing field administration 
services for grants and cooperative agreements are (see the ``Federal 
Directory of Contract Administration Services (CAS) Components'' \7\ for 
specific addresses of administration offices):
---------------------------------------------------------------------------

    \7\ The ``Federal Directory of Contract Administration Services 
(CAS) Components'' may be accessed through the Defense Contract 
Management Agency homepage at http://www.dcma.mil.
---------------------------------------------------------------------------

    (a) Regional offices of the Office of Naval Research, for grants and 
cooperative agreements with:
    (1) Institutions of higher education and laboratories affiliated 
with such institutions, to the extent that such organizations are 
subject to the cost principles in subpart E of 2 CFR part 200.
    (2) Nonprofit organizations that are subject to the cost principles 
in subpart E of 2 CFR part 200 if their principal business with the 
Department of Defense is research and development.
    (b) Field offices of the Defense Contract Management Agency, for 
grants and cooperative agreements with all other entities, including:
    (1) For-profit organizations.
    (2) Nonprofit organizations identified in appendix VIII to 2 CFR 
part 200 that are subject to for-profit cost principles in 48 CFR part 
31.
    (3) Nonprofit organizations subject to the cost principles in 
subpart E of 2 CFR part 200, if their principal business with the 
Department of Defense is other than research and development.
    (4) State and local governments.

[63 FR 12164, Mar. 12, 1998, as amended at 70 FR 49466, Aug. 23, 2005; 
72 FR 34989, June 26, 2007; 85 FR 51243, Aug. 19, 2020]



Sec.  22.715  Grants administration office functions.

    The primary responsibility of cognizant grants administration 
offices shall be to advise and assist grants officers and recipients 
prior to and after award, and to help ensure that recipients fulfill all 
requirements in law, regulation, and award terms and conditions. 
Specific functions include:
    (a) Conducting reviews and coordinating reviews, audits, and audit 
requests. This includes:
    (1) Advising grants officers on the extent to which audits by 
independent auditors (i.e., public accountants or Federal auditors) have 
provided the information needed to carry out their responsibilities. If 
a recipient has had an independent audit in accordance with subpart F of 
2 CFR part 200, and the audit report disclosed no material weaknesses in 
the recipient's financial management and other management and control 
systems, additional preaward or closeout audits usually will not be 
needed (see Sec. Sec.  22.420(b) and 22.825(b)).
    (2) Performing pre-award surveys, when requested by a grants 
officer, after providing advice described in paragraph (a)(1) of this 
section.
    (3) Reviewing recipients' systems and compliance with Federal 
requirements, in coordination with any reviews and compliance audits 
performed by independent auditors under subpart F of 2 CFR part 200, or 
in accordance with the terms and conditions of the award. This includes:
    (i) Reviewing recipients' financial management, property management, 
and purchasing systems, to determine the adequacy of such systems.

[[Page 46]]

    (ii) Determining that recipients have drug-free workplace programs, 
as required under 32 CFR part 26.
    (iii) Determining that governmental, university and nonprofit 
recipients have complied with requirements in subpart F of 2 CFR part 
200, as implemented at subpart E of 2 CFR part 1128, to have single 
audits and submit audit reports to the Federal Audit Clearinghouse. If a 
recipient has not had a required audit, appropriate action must be taken 
(e.g., contacting the recipient and coordinating with the Office of the 
Assistant Inspector General for Audit Policy and Oversight (OAIG(P&O)), 
Office of the Deputy Inspector General for Inspections and Policy, 
Office of the Inspector General of the Department of Defense (OIG, DoD), 
4800 Mark Center Drive, Alexandria, VA 22350-1500).
    (4) Issuing timely management decisions, in accordance with DoD 
Instruction 7640.02, ``Policy for Follow-up on Contract Audit Reports,'' 
\8\ on single audit findings referred by the OIG, DoD, under DoD 
Instruction 7600.10, ``Audits of States, Local Governments, and Non-
Profit Organizations.'' \9\
---------------------------------------------------------------------------

    \8\ Electronic copies may be obtained at the Washington Headquarters 
Services Internet site http://www.dtic.mil/whs/directives. Paper copies 
may be obtained, at cost, from the National Technical Information 
Service, 5285 Port Royal Road, Springfield, VA 22161.
    \9\ See footnote 8 to this section.
---------------------------------------------------------------------------

    (b) Performing property administration services for Government-owned 
property, and for any property acquired by a recipient, with respect to 
which the recipient has further obligations to the Government.
    (c) Ensuring timely submission of required reports.
    (d) Executing administrative closeout procedures.
    (e) Establishing recipients' indirect cost rates, where the 
Department of Defense is the cognizant or oversight Federal agency with 
the responsibility for doing so.
    (f) Performing other administration functions (e.g., receiving 
recipients' payment requests and transmitting approved payment 
authorizations to payment offices) as delegated by applicable cross-
servicing agreements or letters of delegation.

[63 FR 12164, Mar. 12, 1998, as amended at 70 FR 49466, Aug. 23, 2005; 
72 FR 34989, June 26, 2007; 85 FR 51243, Aug. 19, 2020]



                   Subpart H_Post-Award Administration



Sec.  22.800  Purpose and relation to other parts.

    This subpart sets forth grants officers' and DoD Components' 
responsibilities for post-award administration, by providing DoD-
specific requirements on payments; debt collection; claims, disputes and 
appeals; and closeout audits.



Sec.  22.805  Post-award requirements in other parts.

    Grants officers responsible for post-award administration of grants 
and cooperative agreements shall administer such awards in accordance 
with the following parts of the DoDGARs, as supplemented by this 
subpart:
    (a) Awards to domestic recipients. Standard administrative 
requirements for grants and cooperative agreements with domestic 
recipients are specified in other parts of the DoDGARs, as follows:
    (1) For awards to domestic institutions of higher education, 
nonprofit organizations, States, local governments, and Indian tribes, 
requirements are specified in subchapter D of 2 CFR chapter XI.
    (2) For awards to domestic for-profit organizations, requirements 
are specified in 32 CFR part 34.
    (b) Awards to foreign recipients. DoD Components shall use the 
administrative requirements specified in paragraph (a) of this section, 
to the maximum extent practicable, for grants and cooperative agreements 
to foreign recipients.

[63 FR 12164, Mar. 12, 1998, as amended at 85 FR 51244, Aug. 19, 2020]



Sec.  22.810  Payments.

    (a) Purpose. This section prescribes policies and grants officers' 
post-award responsibilities, with respect to payments to recipients of 
grants and cooperative agreements.

[[Page 47]]

    (b) Policy. (1) It is Governmentwide policy to minimize the time 
elapsing between any payment of funds to a recipient and the recipient's 
disbursement of the funds for program purposes.
    (2) It also is a Governmentwide requirement to use electronic funds 
transfer (EFT) in the payment of any grant unless the recipient has 
obtained a waiver in accordance with Department of the Treasury 
regulations at 31 CFR part 208. As a matter of DoD policy, this 
requirement applies to cooperative agreements, as well as grants. Within 
the Department of Defense, the Defense Finance and Accounting Service 
implements this EFT requirement, and grants officers have collateral 
responsibilities at the time of award, as described in Sec.  22.605(c), 
and in post-award administration, as described in paragraph (c)(3)(iv) 
of this section.
    (3) Expanding on these Governmentwide policies, DoD policy is for 
DoD Components to use electronic commerce, to the maximum extent 
practicable, in the portions of the payment process for grants and 
cooperative agreements for which grants officers are responsible. In 
cases where recipients submit each payment request to the grants 
officer, this includes using electronic methods to receive recipients' 
requests for payment and to transmit authorizations for payment to the 
DoD payment office. Using electronic methods will improve timeliness and 
accuracy of payments and reduce administrative burdens associated with 
paper-based payments.
    (c) Post-award responsibilities. In cases where the recipient 
submits each payment request to the grants officer, the administrative 
grants officer designated to handle payments for a grant or cooperative 
agreement is responsible for:
    (1) [Reserved]
    (2) Reviewing each payment request to ensure that:
    (i) The request complies with the award terms.
    (ii) Available funds are adequate to pay the request.
    (iii) The recipient will not have excess cash on hand, based on 
expenditure patterns.
    (3) Maintaining a close working relationship with the personnel in 
the finance and accounting office responsible for making the payments. A 
good working relationship is necessary, to ensure timely and accurate 
handling of financial transactions for grants and cooperative 
agreements. Administrative grants officers:
    (i) Should be generally familiar with policies and procedures for 
disbursing offices that are contained in Chapter 19 of Volume 10 of the 
DoD Financial Management Regulation (the FMR, DoD 7000.14-R \10\).
---------------------------------------------------------------------------

    \10\ See footnote 8 to Sec.  22.715(a)(4).
---------------------------------------------------------------------------

    (ii) Shall forward authorizations to the designated payment office 
expeditiously, so that payments may be made in accordance with the 
timely payment guidelines in Chapter 19 of Volume 10 of the FMR. Unless 
alternative arrangements are made with the payment office, 
authorizations should be forwarded to the payment office at least 3 
working days before the end of the period specified in the FMR. The 
period specified in the FMR is:
    (A) No more than seven calendar days after receipt of the 
recipient's request by the administrative grants officer, whenever 
electronic commerce is used (i.e., EDI to request and authorize payments 
and electronic funds transfer (EFT) to make payments).
    (B) No more than thirty calendar days after receipt of the 
recipient's request by the administrative grants officer, when it is not 
possible to use electronic commerce and paper transactions are used.
    (C) No more than seven calendar days after each date specified, when 
payments are authorized in advance based on a predetermined payment 
schedule, provided that the payment schedule was received in the 
disbursing office at least 30 calendar days in advance of the date of 
the scheduled payment.
    (iii) Shall ensure that, for recipients not required to register in 
the System for Award Management, the recipients' Taxpayer Identification 
Number (TIN) is included with each payment authorization forwarded to 
the payment office. This is a statutory requirement of 31 U.S.C. 3325, 
as amended by the Debt

[[Page 48]]

Collection Improvement Act of 1996 (section 31001(y), Pub. L. 104-134).
    (iv) For each award that is required to be paid by EFT (see Sec.  
22.605(c) and (Sec.  22.810(b)(2)), shall prominently indicate that fact 
in the payment authorization.

[63 FR 12164, Mar. 12, 1998, as amended at 70 FR 49467, Aug. 23, 2005; 
85 FR 51244, Aug. 19, 2020]



Sec.  22.815  Claims, disputes, and appeals.

    (a) Award terms. Grants officers shall include in grants and 
cooperative agreements a term or condition that incorporates the 
procedures of this section for:
    (1) Processing recipient claims and disputes.
    (2) Deciding appeals of grants officers' decisions.
    (b) Submission of claims--(1) Recipient claims. If a recipient 
wishes to submit a claim arising out of or relating to a grant or 
cooperative agreement, the grants officer shall inform the recipient 
that the claim must:
    (i) Be submitted in writing to the grants officer for decision;
    (ii) Specify the nature and basis for the relief requested; and
    (iii) Include all data that supports the claim.
    (2) DoD Component claims. Claims by a DoD Component shall be the 
subject of a written decision by a grants officer.
    (c) Alternative Dispute Resolution (ADR)--(1) Policy. DoD policy is 
to try to resolve all issues concerning grants and cooperative 
agreements by mutual agreement at the grants officer's level. DoD 
Components therefore are encouraged to use ADR procedures to the maximum 
extent practicable. ADR procedures are any voluntary means (e.g., mini-
trials or mediation) used to resolve issues in controversy without 
resorting to formal administrative appeals (see paragraph (e) of this 
section) or to litigation.
    (2) Procedures. (i) The ADR procedures or techniques to be used may 
either be agreed upon by the Government and the recipient in advance 
(e.g., when agreeing on the terms and conditions of the grant or 
cooperative agreement), or may be agreed upon at the time the parties 
determine to use ADR procedures.
    (ii) If a grants officer and a recipient are not able to resolve an 
issue through unassisted negotiations, the grants officer shall 
encourage the recipient to enter into ADR procedures. ADR procedures may 
be used prior to submission of a recipient's claim or at any time prior 
to the Grant Appeal Authority's decision on a recipient's appeal (see 
paragraph (e)(3)(iii) of this section).
    (d) Grants officer decisions. (1) Within 60 calendar days of receipt 
of a written claim, the grants officer shall either:
    (i) Prepare a written decision, which shall include the reasons for 
the decision; shall identify all relevant data on which the decision is 
based; shall identify the cognizant Grant Appeal Authority and give his 
or her mailing address; and shall be included in the award file; or
    (ii) Notify the recipient of a specific date when he or she will 
render a written decision, if more time is required to do so. The notice 
shall inform the recipient of the reason for delaying the decision 
(e.g., the complexity of the claim, a need for more time to complete ADR 
procedures, or a need for the recipient to provide additional 
information to support the claim).
    (2) The decision of the grants officer shall be final, unless the 
recipient decides to appeal. If a recipient decides to appeal a grants 
officer's decision, the grants officer shall encourage the recipient to 
enter into ADR procedures, as described in paragraph (c) of this 
section.
    (e) Formal administrative appeals--(1) Grant appeal authorities. 
Each DoD Component that awards grants or cooperative agreements shall 
establish one or more Grant Appeal Authorities to decide formal, 
administrative appeals in accordance with paragraph (e)(3) of this 
section. Each Grant Appeal Authority shall be either:
    (i) An individual at a grade level in the Senior Executive Service, 
if civilian, or at the rank of Flag or General Officer, if military; or
    (ii) A board chaired by such an individual.
    (2) Right of appeal. A recipient has the right to appeal a grants 
officer's decision to the Grant Appeal Authority (but note that ADR 
procedures, as described in paragraph (c) of this section,

[[Page 49]]

are the preferred means for resolving any appeal).
    (3) Appeal procedures--(i) Notice of appeal. A recipient may appeal 
a decision of the grants officer within 90 calendar days of receiving 
that decision, by filing a written notice of appeal to the Grant Appeal 
Authority and to the grants officer. If a recipient elects to use an ADR 
procedure, the recipient is permitted an additional 60 calendar days to 
file the written notice of appeal to the Grant Appeal Authority and 
grants officer.
    (ii) Appeal file. Within 30 calendar days of receiving the notice of 
appeal, the grants officer shall forward to the Grant Appeal Authority 
and the recipient the appeal file, which shall include copies of all 
documents relevant to the appeal. The recipient may supplement the file 
with additional documents it deems relevant. Either the grants officer 
or the recipient may supplement the file with a memorandum in support of 
its position. The Grant Appeal Authority may request additional 
information from either the grants officer or the recipient.
    (iii) Decision. The appeal shall be decided solely on the basis of 
the written record, unless the Grant Appeal Authority decides to conduct 
fact-finding procedures or an oral hearing on the appeal. Any fact-
finding or hearing shall be conducted using procedures that the Grant 
Appeal Authority deems appropriate.
    (f) Representation. A recipient may be represented by counsel or any 
other designated representative in any claim, appeal, or ADR proceeding 
brought pursuant to this section, as long as the representative is not 
otherwise prohibited by law or regulation from appearing before the DoD 
Component concerned.
    (g) Non-exclusivity of remedies. Nothing in this section is intended 
to limit a recipient's right to any remedy under the law.



Sec.  22.820  Debt collection.

    (a) Purpose. This section prescribes procedures for establishing 
debts owed by recipients of grants and cooperative agreements, and 
transferring them to payment offices for collection.
    (b) Resolution of indebtedness. The grants officer shall attempt to 
resolve by mutual agreement any claim of a recipient's indebtedness to 
the United States arising out of a grant or cooperative agreement (e.g., 
by a finding that a recipient was paid funds in excess of the amount to 
which the recipient was entitled under the terms and conditions of the 
award).
    (c) Grants officer's decision. In the absence of such mutual 
agreement, any claim of a recipient's indebtedness shall be the subject 
of a grants officer decision, in accordance with Sec.  22.815(b)(2). The 
grants officer shall prepare and transmit to the recipient a written 
notice that:
    (1) Describes the debt, including the amount, the name and address 
of the official who determined the debt (e.g., the grants officer under 
Sec.  22.815(d)), and a copy of that determination.
    (2) Informs the recipient that:
    (i) Within 30 calendar days of the grants officer's decision, the 
recipient shall either pay the amount owed to the grants officer (at the 
address that was provided pursuant to paragraph (c)(1) of this section) 
or inform the grants officer of the recipient's intention to appeal the 
decision.
    (ii) If the recipient elects not to appeal, any amounts not paid 
within 30 calendar days of the grants officer's decision will be a 
delinquent debt.
    (iii) If the recipient elects to appeal the grants officer's 
decision the recipient has 90 calendar days, or 150 calendar days if ADR 
procedures are used, after receipt of the grants officer's decision to 
file the appeal, in accordance with Sec.  22.815(e)(3)(i).
    (iv) The debt will bear interest, and may include penalties and 
other administrative costs, in accordance with the debt collection 
provisions in Chapters 29, 31, and 32 of Volume 5 and Chapters 18 and 19 
of Volume 10 of the DoD Financial Management Regulation (DoD 7000.14-R). 
No interest will be charged if the recipient pays the amount owed within 
30 calendar days of the grants officer's decision. Interest will be 
charged for the entire period from the date the decision was mailed, if 
the recipient pays the amount owed after 30 calendar days.

[[Page 50]]

    (d) Follow-up. Depending upon the response from the recipient, the 
grants officer shall proceed as follows:
    (1) If the recipient pays the amount owed within 30 calendar days to 
the grants officer, the grants officer shall forward the payment to the 
responsible payment office.
    (2) If within 30 calendar days the recipient elects to appeal the 
grants officer's decision, further action to collect the debt is 
deferred, pending the outcome of the appeal. If the final result of the 
appeal is a determination that the recipient owes a debt to the Federal 
Government, the grants officer shall send a demand letter to the 
recipient and transfer responsibility for further debt collection to a 
payment office, as described in paragraph (d)(3) of this section.
    (3) If within 30 calendar days the recipient has neither paid the 
amount due nor provided notice of intent to file an appeal of the grants 
officer's decision, the grants officer shall send a demand letter to the 
recipient, with a copy to the payment office that will be responsible 
for collecting the delinquent debt. The payment office will be 
responsible for any further debt collection activity, including issuance 
of additional demand letters (see Chapter 19 of volume 10 of the DoD 
Financial Management Regulation, DoD 7000.14-R). The grants officer's 
demand letter shall:
    (i) Describe the debt, including the amount, the name and address of 
the official that determined the debt (e.g., the grants officer under 
Sec.  22.815(d)), and a copy of that determination.
    (ii) Notify the recipient that the debt is a delinquent debt that 
bears interest from the date of the grants officer's decision, and that 
penalties and other administrative costs may be assessed.
    (iii) Identify the payment office that is responsible for the 
collection of the debt, and notify the recipient that it may submit a 
proposal to that payment office to defer collection, if immediate 
payment is not practicable.
    (e) Administrative offset. In carrying out the responsibility for 
collecting delinquent debts, a disbursing officer may need to consult 
grants officers, to determine whether administrative offset against 
payments to a recipient owing a delinquent debt would interfere with 
execution of projects being carried out under grants or cooperative 
agreements. Disbursing officers may also ask grants officers whether it 
is feasible to convert payment methods under grants or cooperative 
agreements from advance payments to reimbursements, to facilitate use of 
administrative offset. Grants officers therefore should be familiar with 
guidelines for disbursing officers, in Chapter 19 of Volume 10 of the 
Financial Management Regulation (DoD 7000.14-R), concerning withholding 
and administrative offset to recover delinquent debts.



Sec.  22.825  Closeout audits.

    (a) Purpose. This section establishes DoD policy for obtaining 
audits at closeout of individual grants and cooperative agreements.
    (b) Policy. Grants officers shall use their judgment on a case-by-
case basis, in deciding whether to obtain an audit prior to closing out 
a grant or cooperative agreement (i.e., there is no specific DoD 
requirement to obtain an audit prior to doing so). Factors to be 
considered include:
    (1) The amount of the award.
    (2) DoD's past experience with the recipient, including the presence 
or lack of findings of material deficiencies in recent:
    (i) Audits of individual awards; or
    (ii) Systems-wide financial audits and audits of the compliance of 
the recipient's systems with Federal requirements, under OMB guidance in 
subpart F of 2 CFR part 200, where that guidance is applicable. (See 
Sec.  22.715(a)(1)).

[63 FR 12164, Mar. 12, 1998, as amended at 85 FR 51244, Aug. 19, 2020]

[[Page 51]]



      Sec. Appendix A to Part 22--Proposal Provision for Required 
                              Certification
[GRAPHIC] [TIFF OMITTED] TR23AU05.028


[70 FR 49468, Aug. 23, 2005]

[[Page 52]]



PART 26_GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE
(FINANCIAL ASSISTANCE)--Table of Contents



                     Subpart A_Purpose and Coverage

Sec.
26.100 What does this part do?
26.105 Does this part apply to me?
26.110 Are any of my Federal assistance awards exempt from this part?
26.115 Does this part affect the Federal contracts that I receive?

      Subpart B_Requirements for Recipients Other Than Individuals

26.200 What must I do to comply with this part?
26.205 What must I include in my drug-free workplace statement?
26.210 To whom must I distribute my drug-free workplace statement?
26.215 What must I include in my drug-free awareness program?
26.220 By when must I publish my drug-free workplace statement and 
          establish my drug-free awareness program?
26.225 What actions must I take concerning employees who are convicted 
          of drug violations in the workplace?
26.230 How and when must I identify workplaces?

        Subpart C_Requirements for Recipients Who Are Individuals

26.300 What must I do to comply with this part if I am an individual 
          recipient?
26.301 [Reserved]

     Subpart D_Responsibilities of DOD Component Awarding Officials

26.400 What are my responsibilities as a DOD Component awarding 
          official?

           Subpart E_Violations of This Part and Consequences

26.500 How are violations of this part determined for recipients other 
          than individuals?
26.505 How are violations of this part determined for recipients who are 
          individuals?
26.510 What actions will the Federal Government take against a recipient 
          determined to have violated this part?
26.515 Are there any exceptions to those actions?

                          Subpart F_Definitions

26.605 Award
26.610 Controlled substance.
26.615 Conviction.
26.620 Cooperative agreement.
26.625 Criminal drug statute.
26.630 Debarment.
26.632 DOD Component.
26.635 Drug-free workplace.
26.640 Employee.
26.645 Federal agency or agency.
26.650 Grant.
26.655 Individual.
26.660 Recipient.
26.665 State.
26.670 Suspension.

    Authority: 41U.S.C.701, et seq.

    Source: 68 FR 66557, 66609, Nov. 26, 2003, unless otherwise noted.



                     Subpart A_Purpose and Coverage



Sec.  26.100  What does this part do?

    This part carries out the portion of the Drug-Free Workplace Act of 
1988 (41 U.S.C. 701 et seq., as amended) that applies to grants. It also 
applies the provisions of the Act to cooperative agreements and other 
financial assistance awards, as a matter of Federal Government policy.



Sec.  26.105  Does this part apply to me?

    (a) Portions of this part apply to you if you are either--
    (1) A recipient of an assistance award from the DOD Component; or
    (2) A(n) DOD Component awarding official. (See definitions of award 
and recipient in Sec. Sec.  26.605 and 26.660, respectively.)
    (b) The following table shows the subparts that apply to you:

------------------------------------------------------------------------
             If you are . . .                    see subparts . . .
------------------------------------------------------------------------
(1) A recipient who is not an individual..  A, B and E.
(2) A recipient who is an individual......  A, C and E.
(3) A(n) DOD Component awarding official..  A, D and E.
------------------------------------------------------------------------



Sec.  26.110  Are any of my Federal assistance awards exempt from
this part?

    This part does not apply to any award that the Head of the DOD 
Component or his or her designee determines that the application of this 
part would be inconsistent with the international obligations of the 
United States or the laws or regulations of a foreign government.

[[Page 53]]



Sec.  26.115  Does this part affect the Federal contracts that I receive?

    It will affect future contract awards indirectly if you are debarred 
or suspended for a violation of the requirements of this part, as 
described in Sec.  26.510(c). However, this part does not apply directly 
to procurement contracts. The portion of the Drug-Free Workplace Act of 
1988 that applies to Federal procurement contracts is carried out 
through the Federal Acquisition Regulation in chapter 1 of Title 48 of 
the Code of Federal Regulations (the drug-free workplace coverage 
currently is in 48 CFR part 23, subpart 23.5).



      Subpart B_Requirements for Recipients Other Than Individuals



Sec.  26.200  What must I do to comply with this part?

    There are two general requirements if you are a recipient other than 
an individual.
    (a) First, you must make a good faith effort, on a continuing basis, 
to maintain a drug-free workplace. You must agree to do so as a 
condition for receiving any award covered by this part. The specific 
measures that you must take in this regard are described in more detail 
in subsequent sections of this subpart. Briefly, those measures are to--
    (1) Publish a drug-free workplace statement and establish a drug-
free awareness program for your employees (see Sec. Sec.  26.205 through 
26.220); and
    (2) Take actions concerning employees who are convicted of violating 
drug statutes in the workplace (see Sec.  26.225).
    (b) Second, you must identify all known workplaces under your 
Federal awards (see Sec.  26.230).



Sec.  26.205  What must I include in my drug-free workplace statement?

    You must publish a statement that--
    (a) Tells your employees that the unlawful manufacture, 
distribution, dispensing, possession, or use of a controlled substance 
is prohibited in your workplace;
    (b) Specifies the actions that you will take against employees for 
violating that prohibition; and
    (c) Lets each employee know that, as a condition of employment under 
any award, he or she:
    (1) Will abide by the terms of the statement; and
    (2) Must notify you in writing if he or she is convicted for a 
violation of a criminal drug statute occurring in the workplace and must 
do so no more than five calendar days after the conviction.



Sec.  26.210  To whom must I distribute my drug-free workplace statement?

    You must require that a copy of the statement described in Sec.  
26.205 be given to each employee who will be engaged in the performance 
of any Federal award.



Sec.  26.215  What must I include in my drug-free awareness program?

    You must establish an ongoing drug-free awareness program to inform 
employees about--
    (a) The dangers of drug abuse in the workplace;
    (b) Your policy of maintaining a drug-free workplace;
    (c) Any available drug counseling, rehabilitation, and employee 
assistance programs; and
    (d) The penalties that you may impose upon them for drug abuse 
violations occurring in the workplace.



Sec.  26.220  By when must I publish my drug-free workplace statement
and establish my drug-free awareness program?

    If you are a new recipient that does not already have a policy 
statement as described in Sec.  26.205 and an ongoing awareness program 
as described in Sec.  26.215, you must publish the statement and 
establish the program by the time given in the following table:

------------------------------------------------------------------------
                 If . . .                          then you . . .
------------------------------------------------------------------------
(a) The performance period of the award is  must have the policy
 less than 30 days.                          statement and program in
                                             place as soon as possible,
                                             but before the date on
                                             which performance is
                                             expected to be completed.
(b) The performance period of the award is  must have the policy
 30 days or more.                            statement and program in
                                             place within 30 days after
                                             award.

[[Page 54]]

 
(c) You believe there are extraordinary     may ask the DOD Component
 circumstances that will require more than   awarding official to give
 30 days for you to publish the policy       you more time to do so. The
 statement and establish the awareness       amount of additional time,
 program.                                    if any, to be given is at
                                             the discretion of the
                                             awarding official.
------------------------------------------------------------------------



Sec.  26.225  What actions must I take concerning employees who are
convicted of drug violations in the workplace?

    There are two actions you must take if an employee is convicted of a 
drug violation in the workplace:
    (a) First, you must notify Federal agencies if an employee who is 
engaged in the performance of an award informs you about a conviction, 
as required by Sec.  26.205(c)(2), or you otherwise learn of the 
conviction. Your notification to the Federal agencies must--
    (1) Be in writing;
    (2) Include the employee's position title;
    (3) Include the identification number(s) of each affected award;
    (4) Be sent within ten calendar days after you learn of the 
conviction; and
    (5) Be sent to every Federal agency on whose award the convicted 
employee was working. It must be sent to every awarding official or his 
or her official designee, unless the Federal agency has specified a 
central point for the receipt of the notices.
    (b) Second, within 30 calendar days of learning about an employee's 
conviction, you must either--
    (1) Take appropriate personnel action against the employee, up to 
and including termination, consistent with the requirements of the 
Rehabilitation Act of 1973 (29 U.S.C. 794), as amended; or
    (2) Require the employee to participate satisfactorily in a drug 
abuse assistance or rehabilitation program approved for these purposes 
by a Federal, State or local health, law enforcement, or other 
appropriate agency.



Sec.  26.230  How and when must I identify workplaces?

    (a) You must identify all known workplaces under each DOD Component 
award. A failure to do so is a violation of your drug-free workplace 
requirements. You may identify the workplaces--
    (1) To the DOD Component official that is making the award, either 
at the time of application or upon award; or
    (2) In documents that you keep on file in your offices during the 
performance of the award, in which case you must make the information 
available for inspection upon request by DOD Component officials or 
their designated representatives.
    (b) Your workplace identification for an award must include the 
actual address of buildings (or parts of buildings) or other sites where 
work under the award takes place. Categorical descriptions may be used 
(e.g., all vehicles of a mass transit authority or State highway 
department while in operation, State employees in each local 
unemployment office, performers in concert halls or radio studios).
    (c) If you identified workplaces to the DOD Component awarding 
official at the time of application or award, as described in paragraph 
(a)(1) of this section, and any workplace that you identified changes 
during the performance of the award, you must inform the DOD Component 
awarding official.



        Subpart C_Requirements for Recipients Who Are Individuals



Sec.  26.300  What must I do to comply with this part if I am an 
individual recipient?

    As a condition of receiving a(n) DOD Component award, if you are an 
individual recipient, you must agree that--
    (a) You will not engage in the unlawful manufacture, distribution, 
dispensing, possession, or use of a controlled substance in conducting 
any activity related to the award; and
    (b) If you are convicted of a criminal drug offense resulting from a 
violation occurring during the conduct of any award activity, you will 
report the conviction:
    (1) In writing.
    (2) Within 10 calendar days of the conviction.
    (3) To the DOD Component awarding official or other designee for 
each award that you currently have, unless Sec.  26.301 or the award 
document designates a central point for the receipt of the notices. When 
notice is made to a central point, it must include the

[[Page 55]]

identification number(s) of each affected award.



Sec.  26.301  [Reserved]



     Subpart D_Responsibilities of DOD Component Awarding Officials



Sec.  26.400  What are my responsibilities as a(n) DOD Component
awarding official?

    As a(n) DOD Component awarding official, you must obtain each 
recipient's agreement, as a condition of the award, to comply with the 
requirements in--
    (a) Subpart B of this part, if the recipient is not an individual; 
or
    (b) Subpart C of this part, if the recipient is an individual.



           Subpart E_Violations of this Part and Consequences



Sec.  26.500  How are violations of this part determined for recipients
other than individuals?

    A recipient other than an individual is in violation of the 
requirements of this part if the Head of the DOD Component or his or her 
designee determines, in writing, that--
    (a) The recipient has violated the requirements of subpart B of this 
part; or
    (b) The number of convictions of the recipient's employees for 
violating criminal drug statutes in the workplace is large enough to 
indicate that the recipient has failed to make a good faith effort to 
provide a drug-free workplace.



Sec.  26.505  How are violations of this part determined for recipients
who are individuals?

    An individual recipient is in violation of the requirements of this 
part if the Head of the DOD Component or his or her designee determines, 
in writing, that--
    (a) The recipient has violated the requirements of subpart C of this 
part; or
    (b) The recipient is convicted of a criminal drug offense resulting 
from a violation occurring during the conduct of any award activity.



Sec.  26.510  What actions will the Federal Government take against a
recipient determined to have violated this part?

    If a recipient is determined to have violated this part, as 
described in Sec.  26.500 or Sec.  26.505, the DOD Component may take 
one or more of the following actions--
    (a) Suspension of payments under the award;
    (b) Suspension or termination of the award; and
    (c) Suspension or debarment of the recipient under 32 CFR Part 25, 
for a period not to exceed five years.



Sec.  26.515  Are there any exceptions to those actions?

    The Secretary of Defense or Secretary of a Military Department may 
waive with respect to a particular award, in writing, a suspension of 
payments under an award, suspension or termination of an award, or 
suspension or debarment of a recipient if the Secretary of Defense or 
Secretary of a Military Department determines that such a waiver would 
be in the public interest. This exception authority cannot be delegated 
to any other official.



                          Subpart F_Definitions



Sec.  26.605  Award.

    Award means an award of financial assistance by the DOD Component or 
other Federal agency directly to a recipient.
    (a) The term award includes:
    (1) A Federal grant or cooperative agreement, in the form of money 
or property in lieu of money.
    (2) A block grant or a grant in an entitlement program, whether or 
not the grant is exempted from coverage under the Governmentwide rule 32 
CFR Part 33 that implements OMB Circular A-102 (for availability, see 5 
CFR 1310.3) and specifies uniform administrative requirements.
    (b) The term award does not include:
    (1) Technical assistance that provides services instead of money.
    (2) Loans.
    (3) Loan guarantees.
    (4) Interest subsidies.
    (5) Insurance.
    (6) Direct appropriations.

[[Page 56]]

    (7) Veterans' benefits to individuals (i.e., any benefit to 
veterans, their families, or survivors by virtue of the service of a 
veteran in the Armed Forces of the United States).



Sec.  26.610  Controlled substance.

    Controlled substance means a controlled substance in schedules I 
through V of the Controlled Substances Act (21 U.S.C. 812), and as 
further defined by regulation at 21 CFR 1308.11 through 1308.15.



Sec.  26.615  Conviction.

    Conviction means a finding of guilt (including a plea of nolo 
contendere) or imposition of sentence, or both, by any judicial body 
charged with the responsibility to determine violations of the Federal 
or State criminal drug statutes.



Sec.  26.620  Cooperative agreement.

    Cooperative agreement means an award of financial assistance that, 
consistent with 31 U.S.C. 6305, is used to enter into the same kind of 
relationship as a grant (see definition of grant in Sec.  26.650), 
except that substantial involvement is expected between the Federal 
agency and the recipient when carrying out the activity contemplated by 
the award. The term does not include cooperative research and 
development agreements as defined in 15 U.S.C. 3710a.



Sec.  26.625  Criminal drug statute.

    Criminal drug statute means a Federal or non-Federal criminal 
statute involving the manufacture, distribution, dispensing, use, or 
possession of any controlled substance.



Sec.  26.630  Debarment.

    Debarment means an action taken by a Federal agency to prohibit a 
recipient from participating in Federal Government procurement contracts 
and covered nonprocurement transactions. A recipient so prohibited is 
debarred, in accordance with the Federal Acquisition Regulation for 
procurement contracts (48 CFR part 9, subpart 9.4) and the common rule, 
Government-wide Debarment and Suspension (Nonprocurement), that 
implements Executive Order 12549 and Executive Order 12689.



Sec.  26.632  DOD Component.

    DOD Component means the Office of the Secretary of Defense, a 
Military Department, a Defense Agency, or the Office of Economic 
Adjustment.

[68 FR 66609, Nov. 26, 2003]



Sec.  26.635  Drug-free workplace.

    Drug-free workplace means a site for the performance of work done in 
connection with a specific award at which employees of the recipient are 
prohibited from engaging in the unlawful manufacture, distribution, 
dispensing, possession, or use of a controlled substance.



Sec.  26.640  Employee.

    (a) Employee means the employee of a recipient directly engaged in 
the performance of work under the award, including--
    (1) All direct charge employees;
    (2) All indirect charge employees, unless their impact or 
involvement in the performance of work under the award is insignificant 
to the performance of the award; and
    (3) Temporary personnel and consultants who are directly engaged in 
the performance of work under the award and who are on the recipient's 
payroll.
    (b) This definition does not include workers not on the payroll of 
the recipient (e.g., volunteers, even if used to meet a matching 
requirement; consultants or independent contractors not on the payroll; 
or employees of subrecipients or subcontractors in covered workplaces).



Sec.  26.645  Federal agency or agency.

    Federal agency or agency means any United States executive 
department, military department, government corporation, government 
controlled corporation, any other establishment in the executive branch 
(including the Executive Office of the President), or any independent 
regulatory agency.



Sec.  26.650  Grant.

    Grant means an award of financial assistance that, consistent with 
31 U.S.C.

[[Page 57]]

6304, is used to enter into a relationship--
    (a) The principal purpose of which is to transfer a thing of value 
to the recipient to carry out a public purpose of support or stimulation 
authorized by a law of the United States, rather than to acquire 
property or services for the Federal Government's direct benefit or use; 
and
    (b) In which substantial involvement is not expected between the 
Federal agency and the recipient when carrying out the activity 
contemplated by the award.



Sec.  26.655  Individual.

    Individual means a natural person.



Sec.  26.660  Recipient.

    Recipient means any individual, corporation, partnership, 
association, unit of government (except a Federal agency) or legal 
entity, however organized, that receives an award directly from a 
Federal agency.



Sec.  26.665  State.

    State means any of the States of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, or any territory or 
possession of the United States.



Sec.  26.670  Suspension.

    Suspension means an action taken by a Federal agency that 
immediately prohibits a recipient from participating in Federal 
Government procurement contracts and covered nonprocurement transactions 
for a temporary period, pending completion of an investigation and any 
judicial or administrative proceedings that may ensue. A recipient so 
prohibited is suspended, in accordance with the Federal Acquisition 
Regulation for procurement contracts (48 CFR part 9, subpart 9.4) and 
the common rule, Government-wide Debarment and Suspension 
(Nonprocurement), that implements Executive Order 12549 and Executive 
Order 12689. Suspension of a recipient is a distinct and separate action 
from suspension of an award or suspension of payments under an award.



PART 28_NEW RESTRICTIONS ON LOBBYING--Table of Contents



                            Subpart A_General

Sec.
28.100 Conditions on use of funds.
28.105 Definitions.
28.110 Certification and disclosure.

                  Subpart B_Activities by Own Employees

28.200 Agency and legislative liaison.
28.205 Professional and technical services.
28.210 Reporting.

            Subpart C_Activities by Other Than Own Employees

28.300 Professional and technical services.

                   Subpart D_Penalties and Enforcement

28.400 Penalties.
28.405 Penalty procedures.
28.410 Enforcement.

                          Subpart E_Exemptions

28.500 Secretary of Defense.

                        Subpart F_Agency Reports

28.600 Semi-annual compilation.
28.605 Inspector General report.

Appendix A to Part 28--Certification Regarding Lobbying
Appendix B to Part 28--Disclosure Form To Report Lobbying

    Authority: Section 319, Public Law 102-121 (31 U.S.C. 1352); 5 
U.S.C. section 301; 10 U.S.C. 113.

    Source: 55 FR 6737, 6752, Feb. 26, 1990, unless otherwise noted. 
Redesignated at 57 FR 6199, Feb. 21, 1992.

    Cross Reference: See also Office of Management and Budget notice 
published at 54 FR 52306, December 20, 1989.



                            Subpart A_General



Sec.  28.100  Conditions on use of funds.

    (a) No appropriated funds may be expended by the recipient of a 
Federal contract, grant, loan, or cooperative ageement to pay any person 
for influencing or attempting to influence an officer or employee of any 
agency, a Member of Congress, an officer or employee of Congress, or an 
employee of a Member of Congress in connection with any of the following 
covered Federal actions: the awarding of any Federal

[[Page 58]]

contract, the making of any Federal grant, the making of any Federal 
loan, the entering into of any cooperative agreement, and the extension, 
continuation, renewal, amendment, or modification of any Federal 
contract, grant, loan, or cooperative agreement.
    (b) Each person who requests or receives from an agency a Federal 
contract, grant, loan, or cooperative agreement shall file with that 
agency a certification, set forth in Appendix A, that the person has not 
made, and will not make, any payment prohibited by paragraph (a) of this 
section.
    (c) Each person who requests or receives from an agency a Federal 
contract, grant, loan, or a cooperative agreement shall file with that 
agency a disclosure form, set forth in Appendix B, if such person has 
made or has agreed to make any payment using nonappropriated funds (to 
include profits from any covered Federal action), which would be 
prohibited under paragraph (a) of this section if paid for with 
appropriated funds.
    (d) Each person who requests or receives from an agency a commitment 
providing for the United States to insure or guarantee a loan shall file 
with that agency a statement, set forth in appendix A, whether that 
person has made or has agreed to make any payment to influence or 
attempt to influence an officer or employee of any agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with that loan insurance or guarantee.
    (e) Each person who requests or receives from an agency a commitment 
providing for the United States to insure or guarantee a loan shall file 
with that agency a disclosure form, set forth in Appendix B, if that 
person has made or has agreed to make any payment to influence or 
attempt to influence an officer or employee of any agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with that loan insurance or guarantee.



Sec.  28.105  Definitions.

    For purposes of this part:
    (a) Agency, as defined in 5 U.S.C. 552(f), includes Federal 
executive departments and agencies as well as independent regulatory 
commissions and Government corporations, as defined in 31 U.S.C. 
9101(1).
    (b) Covered Federal action means any of the following Federal 
actions:
    (1) The awarding of any Federal contract;
    (2) The making of any Federal grant;
    (3) The making of any Federal loan;
    (4) The entering into of any cooperative agreement; and,
    (5) The extension, continuation, renewal, amendment, or modification 
of any Federal contract, grant, loan, or cooperative agreement.

Covered Federal action does not include receiving from an agency a 
commitment providing for the United States to insure or guarantee a 
loan. Loan guarantees and loan insurance are addressed independently 
within this part.
    (c) Federal contract means an acquisition contract awarded by an 
agency, including those subject to the Federal Acquisition Regulation 
(FAR), and any other acquisition contract for real or personal property 
or services not subject to the FAR.
    (d) Federal cooperative agreement means a cooperative agreement 
entered into by an agency.
    (e) Federal grant means an award of financial assistance in the form 
of money, or property in lieu of money, by the Federal Government or a 
direct appropriation made by law to any person. The term does not 
include technical assistance which provides services instead of money, 
or other assistance in the form of revenue sharing, loans, loan 
guarantees, loan insurance, interest subsidies, insurance, or direct 
United States cash assistance to an individual.
    (f) Federal loan means a loan made by an agency. The term does not 
include loan guarantee or loan insurance.
    (g) Indian tribe and tribal organization have the meaning provided 
in section 4 of the Indian Self-Determination and Education Assistance 
Act (25 U.S.C. 450B). Alaskan Natives are included under the definitions 
of Indian tribes in that Act.
    (h) Influencing or attempting to influence means making, with the 
intent to

[[Page 59]]

influence, any communication to or appearance before an officer or 
employee or any agency, a Member of Congress, an officer or employee of 
Congress, or an employee of a Member of Congress in connection with any 
covered Federal action.
    (i) Loan guarantee and loan insurance means an agency's guarantee or 
insurance of a loan made by a person.
    (j) Local government means a unit of government in a State and, if 
chartered, established, or otherwise recognized by a State for the 
performance of a governmental duty, including a local public authority, 
a special district, an intrastate district, a council of governments, a 
sponsor group representative organization, and any other instrumentality 
of a local government.
    (k) Officer or employee of an agency includes the following 
individuals who are employed by an agency:
    (1) An individual who is appointed to a position in the Government 
under title 5, U.S. Code, including a position under a temporary 
appointment;
    (2) A member of the uniformed services as defined in section 101(3), 
title 37, U.S. Code;
    (3) A special Government employee as defined in section 202, title 
18, U.S. Code; and,
    (4) An individual who is a member of a Federal advisory committee, 
as defined by the Federal Advisory Committee Act, title 5, U.S. Code 
appendix 2.
    (l) Person means an individual, corporation, company, association, 
authority, firm, partnership, society, State, and local government, 
regardless of whether such entity is operated for profit or not for 
profit. This term excludes an Indian tribe, tribal organization, or any 
other Indian organization with respect to expenditures specifically 
permitted by other Federal law.
    (m) Reasonable compensation means, with respect to a regularly 
employed officer or employee of any person, compensation that is 
consistent with the normal compensation for such officer or employee for 
work that is not furnished to, not funded by, or not furnished in 
cooperation with the Federal Government.
    (n) Reasonable payment means, with respect to perfessional and other 
technical services, a payment in an amount that is consistent with the 
amount normally paid for such services in the private sector.
    (o) Recipient includes all contractors, subcontractors at any tier, 
and subgrantees at any tier of the recipient of funds received in 
connection with a Federal contract, grant, loan, or cooperative 
agreement. The term excludes an Indian tribe, tribal organization, or 
any other Indian organization with respect to expenditures specifically 
permitted by other Federal law.
    (p) Regularly employed means, with respect to an officer or employee 
of a person requesting or receiving a Federal contract, grant, loan, or 
cooperative agreement or a commitment providing for the United States to 
insure or guarantee a loan, an officer or employee who is employed by 
such person for at least 130 working days within one year immediately 
preceding the date of the submission that initiates agency consideration 
of such person for receipt of such contract, grant, loan, cooperative 
agreement, loan insurance commitment, or loan guarantee commitment. An 
officer or employee who is employed by such person for less than 130 
working days within one year immediately preceding the date of the 
submission that initiates agency consideration of such person shall be 
considered to be regularly employed as soon as he or she is employed by 
such person for 130 working days.
    (q) State means a State of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, a territory or possession of 
the United States, an agency or instrumentality of a State, and a multi-
State, regional, or interstate entity having governmental duties and 
powers.



Sec.  28.110  Certification and disclosure.

    (a) Each person shall file a certification, and a disclosure form, 
if required, with each submission that initiates agency consideration of 
such person for:
    (1) Award of a Federal contract, grant, or cooperative agreement 
exceeding $100,000; or

[[Page 60]]

    (2) An award of a Federal loan or a commitment providing for the 
United States to insure or guarantee a loan exceeding $150,000.
    (b) Each person shall file a certification, and a disclosure form, 
if required, upon receipt by such person of:
    (1) A Federal contract, grant, or cooperative agreement exceeding 
$100,000; or
    (2) A Federal loan or a commitment providing for the United States 
to insure or guarantee a loan exceeding $150,000,

Unless such person previously filed a certification, and a disclosure 
form, if required, under paragraph (a) of this section.
    (c) Each person shall file a disclosure form at the end of each 
calendar quarter in which there occurs any event that requires 
disclosure or that materially affects the accuracy of the information 
contained in any disclosure form previously filed by such person under 
paragraphs (a) or (b) of this section. An event that materially affects 
the accuracy of the information reported includes:
    (1) A cumulative increase of $25,000 or more in the amount paid or 
expected to be paid for influencing or attempting to influence a covered 
Federal action; or
    (2) A change in the person(s) or individual(s) influencing or 
attempting to influence a covered Federal action; or,
    (3) A change in the officer(s), employee(s), or Member(s) contacted 
to influence or attempt to influence a covered Federal action.
    (d) Any person who requests or receives from a person referred to in 
paragraphs (a) or (b) of this section:
    (1) A subcontract exceeding $100,000 at any tier under a Federal 
contract;
    (2) A subgrant, contract, or subcontract exceeding $100,000 at any 
tier under a Federal grant;
    (3) A contract or subcontract exceeding $100,000 at any tier under a 
Federal loan exceeding $150,000; or,
    (4) A contract or subcontract exceeding $100,000 at any tier under a 
Federal cooperative agreement,


Shall file a certification, and a disclosure form, if required, to the 
next tier above.
    (e) All disclosure forms, but not certifications, shall be forwarded 
from tier to tier until received by the person referred to in paragraphs 
(a) or (b) of this section. That person shall forward all disclosure 
forms to the agency.
    (f) Any certification or disclosure form filed under paragraph (e) 
of this section shall be treated as a material representation of fact 
upon which all receiving tiers shall rely. All liability arising from an 
erroneous representation shall be borne solely by the tier filing that 
representation and shall not be shared by any tier to which the 
erroneous representation is forwarded. Submitting an erroneous 
certification or disclosure constitutes a failure to file the required 
certification or disclosure, respectively. If a person fails to file a 
required certification or disclosure, the United States may pursue all 
available remedies, including those authorized by section 1352, title 
31, U.S. Code.
    (g) For awards and commitments in process prior to December 23, 
1989, but not made before that date, certifications shall be required at 
award or commitment, covering activities occurring between December 23, 
1989, and the date of award or commitment. However, for awards and 
commitments in process prior to the December 23, 1989 effective date of 
these provisions, but not made before December 23, 1989, disclosure 
forms shall not be required at time of award or commitment but shall be 
filed within 30 days.
    (h) No reporting is required for an activity paid for with 
appropriated funds if that activity is allowable under either subpart B 
or C.



                  Subpart B_Activities by Own Employees



Sec.  28.200  Agency and legislative liaison.

    (a) The prohibition on the use of appropriated funds, in Sec.  
28.100 (a), does not apply in the case of a payment of reasonable 
compensation made to an officer or employee of a person requesting or 
receiving a Federal contract, grant, loan, or cooperative agreement if 
the payment is for agency and legislative liaison activities not 
directly related to a covered Federal action.

[[Page 61]]

    (b) For purposes of paragraph (a) of this section, providing any 
information specifically requested by an agency or Congress is allowable 
at any time.
    (c) For purposes of paragraph (a) of this section, the following 
agency and legislative liaison activities are allowable at any time only 
where they are not related to a specific solicitation for any covered 
Federal action:
    (1) Discussing with an agency (including individual demonstrations) 
the qualities and characteristics of the person's products or services, 
conditions or terms of sale, and service capabilities; and,
    (2) Technical discussions and other activities regarding the 
application or adaptation of the person's products or services for an 
agency's use.
    (d) For purposes of paragraph (a) of this section, the following 
agencies and legislative liaison activities are allowable only where 
they are prior to formal solicitation of any covered Federal action:
    (1) Providing any information not specifically requested but 
necessary for an agency to make an informed decision about initiation of 
a covered Federal action;
    (2) Technical discussions regarding the preparation of an 
unsolicited proposal prior to its official submission; and,
    (3) Capability presentations by persons seeking awards from an 
agency pursuant to the provisions of the Small Business Act, as amended 
by Public Law 95-507 and other subsequent amendments.
    (e) Only those activities expressly authorized by this section are 
allowable under this section.

[55 FR 6737, 6752, Feb. 26, 1990. Redesignated and amended at 57 FR 
6199, 6200, Feb. 21, 1992]



Sec.  28.205  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec.  
28.100 (a), does not apply in the case of a payment of reasonable 
compensation made to an officer or employee of a person requesting or 
receiving a Federal contract, grant, loan, or cooperative agreement or 
an extension, continuation, renewal, amendment, or modification of a 
Federal contract, grant, loan, or cooperative agreement if payment is 
for professional or technical services rendered directly in the 
preparation, submission, or negotiation of any bid, proposal, or 
application for that Federal contract, grant, loan, or cooperative 
agreement or for meeting requirements imposed by or pursuant to law as a 
condition for receiving that Federal contract, grant, loan, or 
cooperative agreement.
    (b) For purposes of paragraph (a) of this section, ``professional 
and technical services'' shall be limited to advice and analysis 
directly applying any professional or technical discipline. For example, 
drafting of a legal document accompanying a bid or proposal by a lawyer 
is allowable. Similarly, technical advice provided by an engineer on the 
performance or operational capability of a piece of equipment rendered 
directly in the negotiation of a contract is allowable. However, 
communications with the intent to influence made by a professional (such 
as a licensed lawyer) or a technical person (such as a licensed 
accountant) are not allowable under this section unless they provide 
advice and analysis directly applying their professional or technical 
expertise and unless the advice or analysis is rendered directly and 
solely in the preparation, submission or negotiation of a covered 
Federal action. Thus, for example, communications with the intent to 
influence made by a lawyer that do not provide legal advice or analysis 
directly and solely related to the legal aspects of his or her client's 
proposal, but generally advocate one proposal over another are not 
allowable under this section because the lawyer is not providing 
professional legal services. Similarly, communications with the intent 
to influence made by an engineer providing an engineering analysis prior 
to the preparation or submission of a bid or proposal are not allowable 
under this section since the engineer is providing technical services 
but not directly in the preparation, submission or negotiation of a 
covered Federal action.
    (c) Requirements imposed by or pursuant to law as a condition for 
receiving a covered Federal award include those required by law or 
regulation, or

[[Page 62]]

reasonably expected to be required by law or regulation, and any other 
requirements in the actual award documents.
    (d) Only those services expressly authorized by this section are 
allowable under this section.

[55 FR 6737, 6752, Feb. 26, 1990. Redesignated and amended at 57 FR 
6199, 6200, Feb. 21, 1992]



Sec.  28.210  Reporting.

    No reporting is required with respect to payments of reasonable 
compensation made to regularly employed officers or employees of a 
person.



            Subpart C_Activities by Other Than Own Employees



Sec.  28.300  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec.  
28.100 (a), does not apply in the case of any reasonable payment to a 
person, other than an officer or employee of a person requesting or 
receiving a covered Federal action, if the payment is for professional 
or technical services rendered directly in the preparation, submission, 
or negotiation of any bid, proposal, or application for that Federal 
contract, grant, loan, or cooperative agreement or for meeting 
requirements imposed by or pursuant to law as a condition for receiving 
that Federal contract, grant, loan, or cooperative agreement.
    (b) The reporting requirments in Sec.  28.110 (a) and (b) regarding 
filing a disclosure form by each person, if required, shall not apply 
with respect to professional or technical services rendered directly in 
the preparation, submission, or negotiation of any commitment providing 
for the United States to insure or guarantee a loan.
    (c) For purposes of paragraph (a) of this section, ``professional 
and technical services'' shall be limited to advice and analysis 
directly applying any professional or technical discipline. For example, 
drafting of a legal document accompanying a bid or proposal by a lawyer 
is allowable. Similarly, technical advice provided by an engineer on the 
performance or operational capability of a piece of equipment rendered 
directly in the negotiation of a contract is allowable. However, 
communications with the intent to influence made by a professional (such 
as a licensed lawyer) or a technical person (such as a licensed 
accountant) are not allowable under this section unless they provide 
advice and analysis directly applying their professional or technical 
expertise and unless the advice or analysis is rendered directly and 
solely in the preparation, submission or negotiation of a covered 
Federal action. Thus, for example, communications with the intent to 
influence made by a lawyer that do not provide legal advice or analysis 
directly and solely related to the legal aspects of his or her client's 
proposal, but generally advocate one proposal over another are not 
allowable under this section because the lawyer is not providing 
professional legal services. Similarly, communications with the intent 
to influence made by an engineer providing an engineering analysis prior 
to the preparation or submission of a bid or proposal are not allowable 
under this section since the engineer is providing technical services 
but not directly in the preparation, submission or negotiation of a 
covered Federal action.
    (d) Requirements imposed by or pursuant to law as a condition for 
receiving a covered Federal award include those required by law or 
regulation, or reasonably expected to be required by law or regulation, 
and any other requirements in the actual award documents.
    (e) Persons other than officers or employees of a person requesting 
or receiving a covered Federal action include consultants and trade 
associations.
    (f) Only those services expressly authorized by this section are 
allowable under this section.

[55 FR 6737, 6752, Feb. 26, 1990. Redesignated and amended at 57 FR 
6199, 6200, Feb. 21, 1992]



                   Subpart D_Penalties and Enforcement



Sec.  28.400  Penalties.

    (a) Any person who makes an expenditure prohibited herein shall be 
subject to a civil penalty of not less than

[[Page 63]]

$10,000 and not more than $100,000 for each such expenditure.
    (b) Any person who fails to file or amend the disclosure form (see 
Appendix B) to be filed or amended if required herein, shall be subject 
to a civil penalty of not less than $10,000 and not more than $100,000 
for each such failure.
    (c) A filing or amended filing on or after the date on which an 
administrative action for the imposition of a civil penalty is commenced 
does not prevent the imposition of such civil penalty for a failure 
occurring before that date. An administrative action is commenced with 
respect to a failure when an investigating official determines in 
writing to commence an investigation of an allegation of such failure.
    (d) In determining whether to impose a civil penalty, and the amount 
of any such penalty, by reason of a violation by any person, the agency 
shall consider the nature, circumstances, extent, and gravity of the 
violation, the effect on the ability of such person to continue in 
business, any prior violations by such person, the degree of culpability 
of such person, the ability of the person to pay the penalty, and such 
other matters as may be appropriate.
    (e) First offenders under paragraphs (a) or (b) of this section 
shall be subject to a civil penalty of $10,000, absent aggravating 
circumstances. Second and subsequent offenses by persons shall be 
subject to an appropriate civil penalty between $10,000 and $100,000, as 
determined by the agency head or his or her designee.
    (f) An imposition of a civil penalty under this section does not 
prevent the United States from seeking any other remedy that may apply 
to the same conduct that is the basis for the imposition of such civil 
penalty.



Sec.  28.405  Penalty procedures.

    Agencies shall impose and collect civil penalties pursuant to the 
provisions of the Program Fraud and Civil Remedies Act, 31 U.S.C. 
sections 3803 (except subsection (c)), 3804, 3805, 3806, 3807, 3808, and 
3812, insofar as these provisions are not inconsistent with the 
requirements herein.



Sec.  28.410  Enforcement.

    The head of each agency shall take such actions as are necessary to 
ensure that the provisions herein are vigorously implemented and 
enforced in that agency.



                          Subpart E_Exemptions



Sec.  28.500  Secretary of Defense.

    (a) Exemption authority. The Secretary of Defense may exempt, on a 
case-by-case basis, a covered Federal action from the prohibition 
whenever the Secretary determines, in writing, that such an exemption is 
in the national interest. The Secretary shall transmit a copy of each 
such written exemption to Congress immediately after making such a 
determination.
    (b) Policy. It is the policy of the Department of Defense that 
exemptions under paragraph (a) of this section shall be requested only 
rarely and in exceptional circumstances.
    (c) Procedures. Each DoD Component that awards or administers 
Federal grants, Federal cooperative agreements, or Federal loans subject 
to this part shall establish procedures whereby:
    (1) A grants officer wishing to request an exemption for a grant, 
cooperative agreement, or loan shall transmit such request through 
appropriate channels to: Director for Research, ODDR&E(R), 3080 Defense 
Pentagon, Washington, DC. 20301-3080.
    (2) Each such request shall explain why an exemption is in the 
national interest, a justification that must be transmitted to Congress 
for each exemption that is approved.

[63 FR 12188, Mar. 12, 1998]



                        Subpart F_Agency Reports



Sec.  28.600  Semi-annual compilation.

    (a) The head of each agency shall collect and compile the disclosure 
reports (see appendix B) and, on May 31 and November 30 of each year, 
submit to the Secretary of the Senate and the Clerk of the House of 
Representatives a report containing a compilation of the information 
contained in the disclosure reports received during the six-month period 
ending on March 31 or

[[Page 64]]

September 30, respectively, of that year.
    (b) The report, including the compilation, shall be available for 
public inspection 30 days after receipt of the report by the Secretary 
and the Clerk.
    (c) Information that involves intelligence matters shall be reported 
only to the Select Committee on Intelligence of the Senate, the 
Permanent Select Committee on Intelligence of the House of 
Representatives, and the Committees on Appropriations of the Senate and 
the House of Representatives in accordance with procedures agreed to by 
such committees. Such information shall not be available for public 
inspection.
    (d) Information that is classified under Executive Order 12356 or 
any successor order shall be reported only to the Committee on Foreign 
Relations of the Senate and the Committee on Foreign Affairs of the 
House of Representatives or the Committees on Armed Services of the 
Senate and the House of Representatives (whichever such committees have 
jurisdiction of matters involving such information) and to the 
Committees on Appropriations of the Senate and the House of 
Representatives in accordance with procedures agreed to by such 
committees. Such information shall not be available for public 
inspection.
    (e) The first semi-annual compilation shall be submitted on May 31, 
1990, and shall contain a compilation of the disclosure reports received 
from December 23, 1989 to March 31, 1990.
    (f) Major agencies, designated by the Office of Management and 
Budget (OMB), are required to provide machine-readable compilations to 
the Secretary of the Senate and the Clerk of the House of 
Representatives no later than with the compilations due on May 31, 1991. 
OMB shall provide detailed specifications in a memorandum to these 
agencies.
    (g) Non-major agencies are requested to provide machine-readable 
compilations to the Secretary of the Senate and the Clerk of the House 
of Representatives.
    (h) Agencies shall keep the originals of all disclosure reports in 
the official files of the agency.



Sec.  28.605  Inspector General report.

    (a) The Inspector General, or other official as specified in 
paragraph (b) of this section, of each agency shall prepare and submit 
to Congress each year, commencing with submission of the President's 
Budget in 1991, an evaluation of the compliance of that agency with, and 
the effectiveness of, the requirements herein. The evaluation may 
include any recommended changes that may be necessary to strengthen or 
improve the requirements.
    (b) In the case of an agency that does not have an Inspector 
General, the agency official comparable to an Inspector General shall 
prepare and submit the annual report, or, if there is no such comparable 
official, the head of the agency shall prepare and submit the annual 
report.
    (c) The annual report shall be submitted at the same time the agency 
submits its annual budget justifications to Congress.
    (d) The annual report shall include the following: All alleged 
violations relating to the agency's covered Federal actions during the 
year covered by the report, the actions taken by the head of the agency 
in the year covered by the report with respect to those alleged 
violations and alleged violations in previous years, and the amounts of 
civil penalties imposed by the agency in the year covered by the report.





      Sec. Appendix A to Part 28--Certification Regarding Lobbying

 Certification for Contracts, Grants, Loans, and Cooperative Agreements

    The undersigned certifies, to the best of his or her knowledge and 
belief, that:
    (1) No Federal appropriated funds have been paid or will be paid, by 
or on behalf of the undersigned, to any person for influencing or 
attempting to influence an officer or employee of an agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with the awarding of any Federal contract, the 
making of any Federal grant, the making of any Federal loan, the 
entering into of any cooperative agreement, and the extension, 
continuation, renewal, amendment, or modification of any Federal 
contract, grant, loan, or cooperative agreement.

[[Page 65]]

    (2) If any funds other than Federal appropriated funds have been 
paid or will be paid to any person for influencing or attempting to 
influence an officer or employee of any agency, a Member of Congress, an 
officer or employee of Congress, or an employee of a Member of Congress 
in connection with this Federal contract, grant, loan, or cooperative 
agreement, the undersigned shall complete and submit Standard Form-LLL, 
``Disclosure Form to Report Lobbying,'' in accordance with its 
instructions.
    (3) The undersigned shall require that the language of this 
certification be included in the award documents for all subawards at 
all tiers (including subcontracts, subgrants, and contracts under 
grants, loans, and cooperative agreements) and that all subrecipients 
shall certify and disclose accordingly.
    This certification is a material representation of fact upon which 
reliance was placed when this transaction was made or entered into. 
Submission of this certification is a prerequisite for making or 
entering into this transaction imposed by section 1352, title 31, U.S. 
Code. Any person who fails to file the required certification shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such failure.

            Statement for Loan Guarantees and Loan Insurance

    The undersigned states, to the best of his or her knowledge and 
belief, that:
    If any funds have been paid or will be paid to any person for 
influencing or attempting to influence an officer or employee of any 
agency, a Member of Congress, an officer or employee of Congress, or an 
employee of a Member of Congress in connection with this commitment 
providing for the United States to insure or guarantee a loan, the 
undersigned shall complete and submit Standard Form-LLL, ``Disclosure 
Form to Report Lobbying,'' in accordance with its instructions.
    Submission of this statement is a prerequisite for making or 
entering into this transaction imposed by section 1352, title 31, U.S. 
Code. Any person who fails to file the required statement shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such failure.

[[Page 66]]



     Sec. Appendix B to Part 28--Disclosure Form To Report Lobbying
[GRAPHIC] [TIFF OMITTED] TC23OC91.000


[[Page 67]]


[GRAPHIC] [TIFF OMITTED] TC23OC91.001


[[Page 68]]


[GRAPHIC] [TIFF OMITTED] TC23OC91.002


[[Page 69]]





PART 34_ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND AGREEMENTS WITH 
FOR-PROFIT ORGANIZATIONS--Table of Contents



                            Subpart A_General

Sec.
34.1 Purpose.
34.2 Definitions.
34.3 Deviations.
34.4 Special award conditions.

                    Subpart B_Post-Award Requirements

                    Financial and Program Management

34.10 Purpose of financial and program management.
34.11 Standards for financial management systems.
34.12 Payment.
34.13 Cost sharing or matching.
34.14 Program income.
34.15 Revision of budget and program plans.
34.16 Audits.
34.17 Allowable costs.
34.18 Fee and profit.

                           Property Standards

34.20 Purpose of property standards.
34.21 Real property and equipment.
34.22 Federally owned property.
34.23 Property management system.
34.24 Supplies.
34.25 Intellectual property developed or produced under awards.

                          Procurement Standards

34.30 Purpose of procurement standards.
34.31 Requirements.

                           Reports and Records

34.40 Purpose of reports and records.
34.41 Monitoring and reporting program and financial performance.
34.42 Retention and access requirements for records.

                       Termination and Enforcement

34.50 Purpose of termination and enforcement.
34.51 Termination.
34.52 Enforcement.
34.53 Disputes and appeals.

                 Subpart C_After-the-Award Requirements

34.60 Purpose.
34.61 Closeout procedures.
34.62 Subsequent adjustments and continuing responsibilities.
34.63 Collection of amounts due.

Appendix A to Part 34--Contract Provisions

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

    Source: 63 FR 12204, Mar. 12, 1998, unless otherwise noted.



                            Subpart A_General



Sec.  34.1  Purpose.

    (a) This part prescribes administrative requirements for awards to 
for-profit organizations.
    (b) Applicability to prime awards and subawards is as follows:
    (1) Prime awards. DoD Components shall apply the provisions of this 
part to awards to for-profit organizations. DoD Components shall not 
impose requirements that are in addition to, or inconsistent with, the 
requirements provided in this part, except:
    (i) In accordance with the deviation procedures or special award 
conditions in Sec.  34.3 or Sec.  34.4, respectively; or
    (ii) As required by Federal statute, Executive order, or Federal 
regulation implementing a statute or Executive order.
    (2) Subawards. (i) Any legal entity (including any State, local 
government, university or other nonprofit organization, as well as any 
for-profit entity) that receives an award from a DoD Component shall 
apply the provisions of this part to subawards with for-profit 
organizations. It should be noted that subawards (see definition in 
Sec.  34.2) are financial assistance for substantive programmatic 
performance and do not include recipients' procurement of goods and 
services.
    (ii) For-profit organizations that receive prime awards covered by 
this part shall apply to each subaward the administrative requirements 
that are applicable to the particular type of subrecipient.

[63 FR 12204, Mar. 12, 1998, as amended at 85 FR 51244, Aug. 19, 2020]



Sec.  34.2  Definitions.

    The following are definitions of terms as used in this part. Grants 
officers are cautioned that terms may be defined differently in this 
part than they are in other parts of the DoD Grant and Agreement 
Regulations (DoDGARs).

[[Page 70]]

    Advance. A payment made by Treasury check or other appropriate 
payment mechanism to a recipient upon its request either before outlays 
are made by the recipient or through the use of predetermined payment 
schedules.
    Award. A grant or a cooperative agreement other than a technology 
investment agreement (TIA). TIAs are covered by part 37 of the DoDGARs 
(32 CFR part 37). Portions of this part may apply to a TIA, but only to 
the extent that 32 CFR part 37 makes them apply.
    Cash contributions. The recipient's cash outlay, including the 
outlay of money contributed to the recipient by third parties.
    Closeout. The process by which the grants officer administering an 
award made by a DoD Component determines that all applicable 
administrative actions and all required work of the award have been 
completed by the recipient and DoD Component.
    Contract. Either:
    (1) A procurement contract made by a recipient under a DoD 
Component's award or by a subrecipient under a subaward; or
    (2) A procurement subcontract under a contract awarded by a 
recipient or subrecipient.
    Cost sharing or matching. That portion of project or program costs 
not borne by the Federal Government.
    Disallowed costs. Those charges to an award that the grants officer 
administering an award made by a DoD Component determines to be 
unallowable, in accordance with the applicable Federal cost principles 
or other terms and conditions contained in the award.
    DoD Component. A Military Department, Defense Agency, DoD Field 
Activity, or organization within the Office of the Secretary of Defense 
that provides or administers an award to a recipient.
    Equipment. Tangible nonexpendable personal property charged directly 
to the award having a useful life of more than one year and an 
acquisition cost of $5,000 or more per unit. That definition applies for 
the purposes of the Federal administrative requirements in this part. 
However, the recipient's policy may be to use a lower dollar value for 
defining ``equipment,'' and nothing in this part should be construed as 
requiring the recipient to establish a higher limit for purposes other 
than the administrative requirements in this part.
    Excess property. Property under the control of any DoD Component 
that, as determined by the head thereof, is no longer required for its 
needs or the discharge of its responsibilities.
    Expenditures. See the definition for outlays in this section.
    Federally owned property. Property in the possession of, or directly 
acquired by, the Government and subsequently made available to the 
recipient.
    Funding period. The period of time when Federal funding is available 
for obligation by the recipient.
    Intellectual property. Intangible personal property such as patents 
and patent applications, trademarks, copyrights, technical data, and 
software rights.
    Obligations. The amounts of orders placed, contracts and grants 
awarded, services received and similar transactions during a given 
period that require payment by the recipient during the same or a future 
period.
    Outlays or expenditures. Charges made to the project or program. 
They may be reported on a cash or accrual basis. For reports prepared on 
a cash basis, outlays are the sum of cash disbursements for direct 
charges for goods and services, the amount of indirect expense charged, 
the value of third party in-kind contributions applied and the amount of 
cash advances and payments made to subrecipients. For reports prepared 
on an accrual basis, outlays are the sum of cash disbursements for 
direct charges for goods and services, the amount of indirect expense 
incurred, the value of in-kind contributions applied, and the net 
increase (or decrease) in the amounts owed by the recipient for goods 
and other property received, for services performed by employees, 
contractors, subrecipients and other payees and other amounts becoming 
owed under programs for which no current services or performance are 
required.
    Personal property. Property of any kind except real property. It may 
be:
    (1) Tangible, having physical existence (i.e., equipment and 
supplies); or

[[Page 71]]

    (2) Intangible, having no physical existence, such as patents, 
copyrights, data and software.
    Prior approval. Written or electronic approval by an authorized 
official evidencing prior consent.
    Program income. Gross income earned by the recipient that is 
directly generated by a supported activity or earned as a result of the 
award. Program income includes, but is not limited to, income from fees 
for services performed, the use or rental of real or personal property 
acquired under federally-funded projects, the sale of commodities or 
items fabricated under an award, license fees and royalties on patents 
and copyrights, and interest on loans made with award funds. Interest 
earned on advances of Federal funds is not program income. Except as 
otherwise provided in program regulations or the terms and conditions of 
the award, program income does not include the receipt of principal on 
loans, rebates, credits, discounts, etc., or interest earned on any of 
them.
    Project costs. All allowable costs, as set forth in the applicable 
Federal cost principles, incurred by a recipient and the value of the 
contributions made by third parties in accomplishing the objectives of 
the award during the project period.
    Project period. The period established in the award document during 
which Federal sponsorship begins and ends.
    Property. Real property and personal property (equipment, supplies, 
and intellectual property), unless stated otherwise.
    Real property. Land, including land improvements, structures and 
appurtenances thereto, but excludes movable machinery and equipment.
    Recipient. A for-profit organization receiving an award directly 
from a DoD Component to carry out a project or program.
    Research. Basic, applied, and advanced research activities. Basic 
research is defined as efforts directed toward increasing knowledge or 
understanding in science and engineering. Applied research is defined as 
efforts that attempt to determine and exploit the potential of 
scientific discoveries or improvements in technology, such as new 
materials, devices, methods, and processes. ``Advanced research,'' 
advanced technology development that creates new technology or 
demonstrates the viability of applying existing technology to new 
products and processes in a general way, is most closely analogous to 
precommercialization or precompetitive technology development in the 
commercial sector (it does not include development of military systems 
and hardware where specific requirements have been defined).
    Small award. See the definition for this term in 2 CFR part 1108.
    Small business concern. A concern, including its affiliates, that is 
independently owned and operated, not dominant in the field of operation 
in which it has applied for an award, and qualified as a small business 
under the criteria and size standards in 13 CFR part 121. For more 
details, grants officers should see 48 CFR part 19 in the ``Federal 
Acquisition Regulation.''
    Subaward. Financial assistance in the form of money, or property in 
lieu of money, provided under an award by a recipient to an eligible 
subrecipient or by a subrecipient to a lower tier subrecipient. The term 
includes financial assistance when provided by any legal agreement, even 
if the agreement is called a contract, but the term includes neither 
procurement of goods and services nor any form of assistance which is 
excluded from the definition of ``award'' in this section.
    Subrecipient. The legal entity to which a subaward is made and which 
is accountable to the recipient for the use of the funds provided.
    Supplies. Tangible expendable personal property that is charged 
directly to the award and that has a useful life of less than one year 
or an acquisition cost of less than $5000 per unit.
    Suspension. An action by a DoD Component that temporarily withdraws 
Federal sponsorship under an award, pending corrective action by the 
recipient or pending a decision to terminate the award by the DoD 
Component. Suspension of an award is a separate action from suspension 
of a participant under 2 CFR part 1125.
    Termination. The cancellation of an award, in whole or in part, 
under an agreement at any time prior to either:

[[Page 72]]

    (1) The date on which all work under an award is completed; or
    (2) The date on which Federal sponsorship ends, as given on the 
award document or any supplement or amendment thereto.
    Third party in-kind contributions. The value of non-cash 
contributions provided by non-Federal third parties. Third party in-kind 
contributions may be in the form of real property, equipment, supplies 
and other expendable property, and the value of goods and services 
directly benefiting and specifically identifiable to the project or 
program.
    Unobligated balance. The portion of the funds authorized by a DoD 
Component that has not been obligated by the recipient and is determined 
by deducting the cumulative obligations from the cumulative funds 
authorized.

[63 FR 12204, Mar. 12, 1998, as amended at 68 FR 47160, Aug. 7, 2003; 72 
FR 34998, June 26, 2007; 85 FR 51244, Aug. 19, 2020]



Sec.  34.3  Deviations.

    (a) Individual deviations. Individual deviations affecting only one 
award may be approved by DoD Components in accordance with procedures 
stated in 32 CFR 21.335(a) and 21.340.
    (b) Small awards. DoD Components may apply less restrictive 
requirements than the provisions of this part when awarding small 
awards, except for those requirements which are statutory.
    (c) Other class deviations. For classes of awards other than small 
awards, the Assistant Secretary of Defense for Research and Engineering, 
or his or her designee, may grant exceptions from the requirements of 
this part when exceptions are not prohibited by statute. DoD Components 
shall request approval for such deviations in accordance with 32 CFR 
21.335 (b) and 21.340.

[63 FR 12204, Mar. 12, 1998, as amended at 68 FR 47160, Aug. 7, 2003; 85 
FR 51244, Aug. 19, 2020]



Sec.  34.4  Special award conditions.

    (a) Grants officers may impose additional requirements as needed, 
over and above those provided in this part, if an applicant or 
recipient:
    (1) Has a history of poor performance;
    (2) Is not financially stable;
    (3) Has a management system that does not meet the standards 
prescribed in this part;
    (4) Has not conformed to the terms and conditions of a previous 
award; or
    (5) Is not otherwise responsible.
    (b) Before imposing additional requirements, DoD Components shall 
notify the applicant or recipient in writing as to:
    (1) The nature of the additional requirements;
    (2) The reason why the additional requirements are being imposed;
    (3) The nature of the corrective action needed;
    (4) The time allowed for completing the corrective actions; and
    (5) The method for requesting reconsideration of the additional 
requirements imposed.
    (c) Any special conditions shall be promptly removed once the 
conditions that prompted them have been corrected.
    (d) Grants officers:
    (1) Should coordinate the imposition and removal of special award 
conditions with the cognizant grants administration office identified in 
32 CFR 22.710.
    (2) Shall include in the award file the written notification to the 
recipient, described in paragraph (b) of this section, and the 
documentation required by 32 CFR 22.410(b).



                    Subpart B_Post-award Requirements

                    Financial and Program Management



Sec.  34.10  Purpose of financial and program management.

    Sections 34.11 through 34.17 prescribe standards for financial 
management systems; methods for making payments; and rules for cost 
sharing and matching, program income, revisions to budgets and program 
plans, audits, allowable costs, and fee and profit.



Sec.  34.11  Standards for financial management systems.

    (a) Recipients shall be allowed and encouraged to use existing 
financial management systems established for

[[Page 73]]

doing business in the commercial marketplace, to the extent that the 
systems comply with Generally Accepted Accounting Principles (GAAP) and 
the minimum standards in this section. As a minimum, a recipient's 
financial management system shall provide:
    (1) Effective control of all funds. Control systems must be adequate 
to ensure that costs charged to Federal funds and those counted as the 
recipient's cost share or match are consistent with requirements for 
cost reasonableness, allowability, and allocability in the applicable 
cost principles (see Sec.  34.17) and in the terms and conditions of the 
award.
    (2) Accurate, current and complete records that document for each 
project funded wholly or in part with Federal funds the source and 
application of the Federal funds and the recipient's required cost share 
or match. These records shall:
    (i) Contain information about receipts, authorizations, assets, 
expenditures, program income, and interest.
    (ii) Be adequate to make comparisons of outlays with budgeted 
amounts for each award (as required for programmatic and financial 
reporting under Sec.  34.41. Where appropriate, financial information 
should be related to performance and unit cost data. Note that unit cost 
data are generally not appropriate for awards that support research.
    (3) To the extent that advance payments are authorized under Sec.  
34.12, procedures that minimize the time elapsing between the transfer 
of funds to the recipient from the Government and the recipient's 
disbursement of the funds for program purposes.
    (4) The recipient shall have a system to support charges to Federal 
awards for salaries and wages, whether treated as direct or indirect 
costs. Where employees work on multiple activities or cost objectives, a 
distribution of their salaries and wages will be supported by personnel 
activity reports which must:
    (i) Reflect an after the fact distribution of the actual activity of 
each employee.
    (ii) Account for the total activity for which each employee is 
compensated.
    (iii) Be prepared at least monthly, and coincide with one or more 
pay periods.
    (b) Where the Federal Government guarantees or insures the repayment 
of money borrowed by the recipient, the DoD Component, at its 
discretion, may require adequate bonding and insurance if the bonding 
and insurance requirements of the recipient are not deemed adequate to 
protect the interest of the Federal Government.
    (c) The DoD Component may require adequate fidelity bond coverage 
where the recipient lacks sufficient coverage to protect the Federal 
Government's interest.
    (d) Where bonds are required in the situations described above, the 
bonds shall be obtained from companies holding certificates of authority 
as acceptable sureties, as prescribed in 31 CFR part 223, ``Surety 
Companies Doing Business with the United States.''



Sec.  34.12  Payment.

    (a) Methods available. Payment methods for awards with for-profit 
organizations are:
    (1) Reimbursement. Under this method, the recipient requests 
reimbursement for costs incurred during a time period. In cases where 
the recipient submits each request for payment to the grants officer, 
the DoD payment office reimburses the recipient by electronic funds 
transfer or check after approval of the request by the grants officer 
designated to do so.
    (2) Advance payments. Under this method, a DoD Component makes a 
payment to a recipient based upon projections of the recipient's cash 
needs. The payment generally is made upon the recipient's request, 
although predetermined payment schedules may be used when the timing of 
the recipient's needs to disburse funds can be predicted in advance with 
sufficient accuracy to ensure compliance with paragraph (b)(2)(iii) of 
this section.
    (b) Selecting a method. (1) The preferred payment method is the 
reimbursement method, as described in paragraph (a)(1) of this section
    (2) Advance payments, as described in paragraph (a)(2) of this 
section, may be used in exceptional circumstances, subject to the 
following conditions:

[[Page 74]]

    (i) The grants officer, in consultation with the program official, 
must judge that advance payments are necessary or will materially 
contribute to the probability of success of the project contemplated 
under the award (e.g., as startup funds for a project performed by a 
newly formed company). The rationale for the judgment shall be 
documented in the award file.
    (ii) Cash advances shall be limited to the minimum amounts needed to 
carry out the program.
    (iii) Recipients and the DoD Component shall maintain procedures to 
ensure that the timing of cash advances is as close as is 
administratively feasible to the recipients' disbursements of the funds 
for program purposes, including direct program or project costs and the 
proportionate share of any allowable indirect costs.
    (iv) Recipients shall maintain advance payments of Federal funds in 
interest-bearing accounts, and remit annually the interest earned to the 
administrative grants officer responsible for post-award administration 
(the grants officer shall forward the payment to the responsible payment 
office, for return to the Department of Treasury's miscellaneous 
receipts account), unless one of the following applies:
    (A) The recipient receives less than $120,000 in Federal awards per 
year.
    (B) The best reasonably available interest bearing account would not 
be expected to earn interest in excess of $250 per year on Federal cash 
balances.
    (C) The depository would require an average or minimum balance so 
high that it would not be feasible within the expected Federal and non-
Federal cash resources.
    (c) Frequency of payments. For either reimbursements or advance 
payments, recipients shall be authorized to submit requests for payment 
at least monthly.
    (d) Forms for requesting payment. DoD Components may authorize 
recipients to use the SF-270, \1\ ``Request for Advance or 
Reimbursement;'' the SF-271, \2\ ``Outlay Report and Request for 
Reimbursement for Construction Programs;'' or prescribe other forms or 
formats as necessary.
---------------------------------------------------------------------------

    \1\ For copies of Standard Forms listed in this part, contact 
regional grants administration offices of the Office of Naval Research. 
Addresses for the offices are listed in the ``Federal Directory of 
Contract Administration Services (CAS) Components,'' which is available 
through the ``CAS Directory'' link at the Defense Contract Management 
Agency homepage (http://www.dcma.mil).
    \2\ See footnote 1 to this paragraph (d).
---------------------------------------------------------------------------

    (e) Timeliness of payments. Payments normally will be made within 30 
calendar days of the receipt of a recipient's request for reimbursement 
or advance by the office designated to receive the request (for further 
information about timeframes for payments, see 32 CFR 22.810(c)(3)(ii)).
    (f) Precedence of other available funds. Recipients shall disburse 
funds available from program income, rebates, refunds, contract 
settlements, audit recoveries, and interest earned on such funds before 
requesting additional cash payments.
    (g) Withholding of payments. Unless otherwise required by statute, 
grants officers shall not withhold payments for proper charges made by 
recipients during the project period for reasons other than the 
following:
    (1) A recipient has failed to comply with project objectives, the 
terms and conditions of the award, or Federal reporting requirements, in 
which case the grants officer may suspend payments in accordance with 
Sec.  34.52.
    (2) The recipient is delinquent on a debt to the United States (see 
definitions of ``debt'' and ``delinquent debt'' in 32 CFR 22.105). In 
that case, the grants officer may, upon reasonable notice, withhold 
payments for obligations incurred after a specified date, until the debt 
is resolved.

[63 FR 12204, Mar. 12, 1998, as amended at 85 FR 51244, Aug. 19, 2020]



Sec.  34.13  Cost sharing or matching.

    (a) Acceptable contributions. All contributions, including cash 
contributions and third party in-kind contributions, shall be accepted 
as part of the recipient's cost sharing or matching when such 
contributions meet all of the following criteria:
    (1) They are verifiable from the recipient's records.

[[Page 75]]

    (2) They are not included as contributions for any other federally-
assisted project or program.
    (3) They are necessary and reasonable for proper and efficient 
accomplishment of project or program objectives.
    (4) They are allowable under Sec.  34.17.
    (5) They are not paid by the Federal Government under another award, 
except:
    (i) Costs that are authorized by Federal statute to be used for cost 
sharing or matching; or
    (ii) Independent research and development (IR&D) costs. In 
accordance with the for-profit cost principle in 48 CFR 31.205-18(e), 
use of IR&D as cost sharing is permitted, whether or not the Government 
decides at a later date to reimburse any of the IR&D as allowable 
indirect costs. In such cases, the IR&D must meet all of the criteria in 
paragraphs (a) (1) through (4) and (a) (6) through (8) of this section.
    (6) They are provided for in the approved budget, when approval of 
the budget is required by the DoD Component.
    (7) If they are real property or equipment, whether purchased with 
recipient's funds or donated by third parties, they must have the grants 
officer's prior approval if the contributions' value is to exceed 
depreciation or use charges during the project period (paragraphs (b)(1) 
and (b)(4)(ii) of this section discuss the limited circumstances under 
which a grants officer may approve higher values). If a DoD Component 
requires approval of a recipient's budget (see paragraph (a)(6) of this 
section), the grants officer's approval of the budget satisfies this 
prior approval requirement, for real property or equipment items listed 
in the budget.
    (8) They conform to other provisions of this part, as applicable.
    (b) Valuing and documenting contributions--(1) Valuing recipient's 
property or services of recipient's employees. Values shall be 
established in accordance with the applicable cost principles in Sec.  
34.17, which means that amounts chargeable to the project are determined 
on the basis of costs incurred. For real property or equipment used on 
the project, the cost principles authorize depreciation or use charges. 
The full value of the item may be applied when the item will be consumed 
in the performance of the award or fully depreciated by the end of the 
award. In cases where the full value of a donated capital asset is to be 
applied as cost sharing or matching, that full value shall be the lesser 
of the following:
    (i) The certified value of the remaining life of the property 
recorded in the recipient's accounting records at the time of donation; 
or
    (ii) The current fair market value. However, when there is 
sufficient justification, the grants officer may approve the use of the 
current fair market value of the donated property, even if it exceeds 
the certified value at the time of donation to the project. The grants 
officer may accept the use of any reasonable basis for determining the 
fair market value of the property.
    (2) Valuing services of others' employees. When an employer other 
than the recipient furnishes the services of an employee, those services 
shall be valued at the employee's regular rate of pay plus an amount of 
fringe benefits and overhead (at an overhead rate appropriate for the 
location where the services are performed) provided these services are 
in the same skill for which the employee is normally paid.
    (3) Valuing volunteer services. Volunteer services furnished by 
professional and technical personnel, consultants, and other skilled and 
unskilled labor may be counted as cost sharing or matching if the 
service is an integral and necessary part of an approved project or 
program. Rates for volunteer services shall be consistent with those 
paid for similar work in the recipient's organization. In those 
instances in which the required skills are not found in the recipient 
organization, rates shall be consistent with those paid for similar work 
in the labor market in which the recipient competes for the kind of 
services involved. In either case, paid fringe benefits that are 
reasonable, allowable, and allocable may be included in the valuation.
    (4) Valuing property donated by third parties. (i) Donated supplies 
may include such items as office supplies or laboratory supplies. Value 
assessed to donated supplies included in the cost

[[Page 76]]

sharing or matching share shall be reasonable and shall not exceed the 
fair market value of the property at the time of the donation.
    (ii) Normally only depreciation or use charges for equipment and 
buildings may be applied. However, the fair rental charges for land and 
the full value of equipment or other capital assets may be allowed, when 
they will be consumed in the performance of the award or fully 
depreciated by the end of the award, provided that the grants officer 
has approved the charges. When use charges are applied, values shall be 
determined in accordance with the usual accounting policies of the 
recipient, with the following qualifications:
    (A) The value of donated space shall not exceed the fair rental 
value of comparable space as established by an independent appraisal of 
comparable space and facilities in a privately-owned building in the 
same locality.
    (B) The value of loaned equipment shall not exceed its fair rental 
value.
    (5) Documentation. The following requirements pertain to the 
recipient's supporting records for in-kind contributions from third 
parties:
    (i) Volunteer services shall be documented and, to the extent 
feasible, supported by the same methods used by the recipient for its 
own employees.
    (ii) The basis for determining the valuation for personal services 
and property shall be documented.



Sec.  34.14  Program income.

    (a) DoD Components shall apply the standards in this section to the 
disposition of program income from projects financed in whole or in part 
with Federal funds.
    (b) Recipients shall have no obligation to the Government, unless 
the terms and conditions of the award provide otherwise, for program 
income earned:
    (1) From license fees and royalties for copyrighted material, 
patents, patent applications, trademarks, and inventions produced under 
an award. Note, however, that the Patent and Trademark Amendments (35 
U.S.C. Chapter 18), as implemented in Sec.  34.25, apply to inventions 
made under a research award.
    (2) After the end of the project period. If a grants officer 
anticipates that an award is likely to generate program income after the 
end of the project period, the grants officer should indicate in the 
award document whether the recipient will have any obligation to the 
Federal Government with respect to such income.
    (c) If authorized by the terms and conditions of the award, costs 
incident to the generation of program income may be deducted from gross 
income to determine program income, provided these costs have not been 
charged to the award.
    (d) Other than any program income excluded pursuant to paragraphs 
(b) and (c) of this section, program income earned during the project 
period shall be retained by the recipient and used in one or more of the 
following ways, as specified in program regulations or the terms and 
conditions of the award:
    (1) Added to funds committed to the project by the DoD Component and 
recipient and used to further eligible project or program objectives.
    (2) Used to finance the non-Federal share of the project or program.
    (3) Deducted from the total project or program allowable cost in 
determining the net allowable costs on which the Federal share of costs 
is based.
    (e) If the terms and conditions of an award authorize the 
disposition of program income as described in paragraph (d)(1) or (d)(2) 
of this section, and stipulate a limit on the amounts that may be used 
in those ways, program income in excess of the stipulated limits shall 
be used in accordance with paragraph (d)(3) of this section.
    (f) In the event that the terms and conditions of the award do not 
specify how program income is to be used, paragraph (d)(3) of this 
section shall apply automatically to all projects or programs except 
research. For awards that support research, paragraph (d)(1) of this 
section shall apply automatically unless the terms and conditions 
specify another alternative or the recipient is subject to special award 
conditions, as indicated in Sec.  34.4.
    (g) Proceeds from the sale of property that is acquired, rather than 
fabricated, under an award are not program income and shall be handled 
in

[[Page 77]]

accordance with the requirements of the Property Standards (see 
Sec. Sec.  34.20 through 34.25).



Sec.  34.15  Revision of budget and program plans.

    (a) The budget plan is the financial expression of the project or 
program as approved during the award process. It may include either the 
sum of the Federal and non-Federal shares, or only the Federal share, 
depending upon DoD Component requirements. It shall be related to 
performance for program evaluation purposes whenever appropriate.
    (b) Recipients are required to report deviations from budget and 
program plans, and request prior approvals for budget and program plan 
revisions, in accordance with this section.
    (c) Recipients shall immediately request, in writing, prior approval 
from the cognizant grants officer when there is reason to believe that 
within the next seven calendar days a programmatic or budgetary revision 
will be necessary for certain reasons, as follows:
    (1) The recipient always must obtain the grants officer's prior 
approval when a revision is necessary for either of the following two 
reasons (i.e., these two requirements for prior approval may never be 
waived):
    (i) A change in the scope or the objective of the project or program 
(even if there is no associated budget revision requiring prior written 
approval).
    (ii) A need for additional Federal funding.
    (2) The recipient must obtain the grants officer's prior approval 
when a revision is necessary for any of the following six reasons, 
unless the requirement for prior approval is waived in the terms and 
conditions of the award (i.e., if the award document is silent, these 
prior approvals are required):
    (i) A change in a key person specified in the application or award 
document.
    (ii) The absence for more than three months, or a 25 percent 
reduction in time devoted to the project, by the approved project 
director or principal investigator.
    (iii) The inclusion of any additional costs that require prior 
approval in accordance with applicable cost principles for Federal funds 
and recipients' cost share or match, in Sec.  34.17 and Sec.  34.13, 
respectively.
    (iv) The inclusion of pre-award costs. All such costs are incurred 
at the recipient's risk (i.e., the DoD Component is under no obligation 
to reimburse such costs if for any reason the recipient does not receive 
an award, or if the award is less than anticipated and inadequate to 
cover such costs).
    (v) A ``no-cost'' extension of the project period that does not 
require additional Federal funds and does not change the approved 
objectives or scope of the project.
    (vi) Any subaward, transfer or contracting out of substantive 
program performance under an award, unless described in the application 
and funded in the approved awards. This provision does not apply to the 
purchase of supplies, material, or general support services, except that 
procurement of equipment or other capital items of property always is 
subject to the grants officer's prior approval under Sec.  34.21(a), if 
it is to be purchased with Federal funds, or Sec.  34.13(a)(7), if it is 
to be used as cost sharing or matching.
    (3) The recipient also must obtain the grants officer's prior 
approval when a revision is necessary for either of the following 
reasons, if specifically required in the terms and conditions of the 
award document (i.e., if the award document is silent, these prior 
approvals are not required):
    (i) The transfer of funds among direct cost categories, functions 
and activities for awards in which the Federal share of the project 
exceeds the simplified acquisition threshold and the cumulative amount 
of such transfers exceeds or is expected to exceed 10 percent of the 
total budget as last approved by the DoD Component. No DoD Component 
shall permit a transfer that would cause any Federal appropriation or 
part thereof to be used for purposes other than those consistent with 
the original intent of the appropriation.
    (ii) For awards that provide support for both construction and 
nonconstruction work, any fund or budget transfers between the two types 
of work supported.

[[Page 78]]

    (d) Within 30 calendar days from the date of receipt of the 
recipient's request for budget revisions, the grants officer shall 
review the request and notify the recipient whether the budget revisions 
have been approved. If the revision is still under consideration at the 
end of 30 calendar days, the grants officer shall inform the recipient 
in writing of the date when the recipient may expect the decision.

[63 FR 12204, Mar. 12, 1998, as amended at 85 FR 51244, Aug. 19, 2020]



Sec.  34.16  Audits.

    (a) Any recipient that expends $750,000 or more in a year under 
Federal awards shall have an audit made for that year by an independent 
auditor, in accordance with paragraph (b) of this section. The audit 
generally should be made a part of the regularly scheduled, annual audit 
of the recipient's financial statements. However, it may be more 
economical in some cases to have the Federal awards separately audited, 
and a recipient may elect to do so, unless that option is precluded by 
award terms and conditions, or by Federal laws or regulations applicable 
to the program(s) under which the awards were made.
    (b) The auditor shall determine and report on whether:
    (1) The recipient has an internal control structure that provides 
reasonable assurance that it is managing Federal awards in compliance 
with Federal laws and regulations, and with the terms and conditions of 
the awards.
    (2) Based on a sampling of Federal award expenditures, the recipient 
has complied with laws, regulations, and award terms that may have a 
direct and material effect on Federal awards.
    (c) The recipient shall make the auditor's report available to DoD 
Components whose awards are affected.
    (d) The requirement for an annual independent audit is intended to 
ascertain the adequacy of the recipient's internal financial management 
systems and to curtail the unnecessary duplication and overlap that 
usually results when Federal agencies request audits of individual 
awards on a routine basis. Therefore, a grants officer:
    (1) Shall consider whether the independent audit satisfies his or 
her requirements, before requesting any additional audits; and
    (2) When requesting an additional audit, shall:
    (i) Limit the scope of such additional audit to areas not adequately 
addressed by the independent audit.
    (ii) Coordinate the audit request with the Federal agency with the 
predominant fiscal interest in the recipient, as the agency responsible 
for the scheduling and distribution of audits. If DoD has the 
predominant fiscal interest in the recipient, the Defense Contract 
Management Agency (DCMA) is responsible for monitoring audits, ensuring 
resolution of audit findings, and distributing audit reports. When an 
additional audit is requested and DoD has the predominant fiscal 
interest in the recipient, DCMA shall, to the extent practicable, ensure 
that the additional audit builds upon the independent audit or other 
audits performed in accordance with this section.
    (e) There may be instances in which Federal auditors have recently 
performed audits, are performing audits, or are planning to perform 
audits, of a recipient. In these cases, the recipient and its Federal 
cognizant agency should seek to have the non-Federal, independent 
auditors work with the Federal auditors to develop a coordinated audit 
approach, to minimize duplication of audit work.
    (f) Audit costs (including a reasonable allocation of the costs of 
the audit of the recipient's financial statement, based on the relative 
benefit to the Government and the recipient) are allowable costs of DoD 
awards.

[63 FR 12204, Mar. 12, 1998, as amended at 70 FR 49477, Aug. 23, 2005; 
85 FR 51244, Aug. 19, 2020]



Sec.  34.17  Allowable costs.

    Allowability of costs shall be determined in accordance with the 
cost principles applicable to the type of entity incurring the costs, as 
follows:
    (a) For-profit organizations. Allowability of costs incurred by for-
profit organizations that are recipients of prime awards from DoD 
Components, and those that are subrecipients under prime awards to other 
organizations, is to be determined in accordance with:

[[Page 79]]

    (1) The for-profit cost principles in 48 CFR parts 31 and 231 (in 
the Federal Acquisition Regulation, or FAR, and the Defense Federal 
Acquisition Regulation Supplement, or DFARS, respectively).
    (2) The supplemental information on allowability of audit costs, in 
Sec.  34.16(f).
    (b) Other types of organizations. Allowability of costs incurred by 
other types of organizations that may be subrecipients under a prime 
award to a for-profit organization is determined as follows:
    (1) Institutions of higher education, nonprofit organizations, 
States, local governments, and Indian tribes. Allowability is determined 
in accordance with the cost principles in subpart E of OMB guidance in 2 
CFR part 200. Note that 2 CFR 200.401(c) provides that a nonprofit 
organization listed in appendix VIII to 2 CFR part 200 is subject to the 
FAR and DFARS cost principles specified in paragraph (a)(1) of this 
section for for-profit organizations.
    (2) Hospitals. Allowability is determined in accordance with the 
cost principles identified in appendix IX to 2 CFR part 200 (currently 
45 CFR part 75).

[63 FR 12204, Mar. 12, 1998, as amended at 85 FR 51244, Aug. 19, 2020]



Sec.  34.18  Fee and profit.

    In accordance with 32 CFR 22.205(b), grants and cooperative 
agreements shall not:
    (a) Provide for the payment of fee or profit to the recipient.
    (b) Be used to carry out programs where fee or profit is necessary 
to achieving program objectives.

                           Property Standards



Sec.  34.20  Purpose of property standards.

    Sections 34.21 through 34.25 set forth uniform standards for 
management, use, and disposition of property. DoD Components shall 
encourage recipients to use existing property-management systems, to the 
extent that the systems meet these minimum requirements.



Sec.  34.21  Real property and equipment.

    (a) Prior approval for acquisition with Federal funds. Recipients 
may purchase real property or equipment in whole or in part with Federal 
funds under an award only with the prior approval of the grants officer.
    (b) Title. Title to such real property or equipment shall vest in 
the recipient upon acquisition. Unless a statute specifically authorizes 
a DoD Component to vest title in the recipient without further 
obligation to the Government, and the DoD Component elects to do so, the 
title shall be a conditional title. Title shall vest in the recipient 
subject to the conditions that the recipient:
    (1) Use the real property or equipment for the authorized purposes 
of the project until funding for the project ceases, or until the 
property is no longer needed for the purposes of the project.
    (2) Not encumber the property without approval of the grants 
officer.
    (3) Use and dispose of the property in accordance with paragraphs 
(d) and (e) of this section.
    (c) Federal interest in real property or equipment offered as cost-
share. A recipient may offer the full value of real property or 
equipment that is purchased with recipient's funds or that is donated by 
a third party to meet a portion of any required cost sharing or 
matching, subject to the prior approval requirement in Sec.  
34.13(a)(7). If a recipient does so, the Government has a financial 
interest in the property, a share of the property value attributable to 
the Federal participation in the project. The property therefore shall 
be considered as if it had been acquired in part with Federal funds, and 
shall be subject to the provisions of paragraphs (b)(1), (b)(2) and 
(b)(3) of this section, and to the provisions of Sec.  34.23.
    (d) Use. If real property or equipment is acquired in whole or in 
part with Federal funds under an award, and the award provides that 
title vests conditionally in the recipient, the real property or 
equipment is subject to the following:
    (1) During the time that the real property or equipment is used on 
the project or program for which it was acquired, the recipient shall 
make it available for use on other projects or programs, if such other 
use will not interfere with the work on the project

[[Page 80]]

or program for which the real property or equipment was originally 
acquired. Use of the real property or equipment on other projects will 
be in the following order of priority:
    (i) Activities sponsored by DoD Components' grants, cooperative 
agreements, or other assistance awards;
    (ii) Activities sponsored by other Federal agencies' grants, 
cooperative agreements, or other assistance awards;
    (iii) Activities under Federal procurement contracts, or activities 
not sponsored by any Federal agency. If so used, use charges shall be 
assessed to those activities. For real property or equipment, the use 
charges shall be at rates equivalent to those for which comparable real 
property or equipment may be leased. The use charges shall be treated as 
program income.
    (2) After Federal funding for the project ceases, or when the real 
property or equipment is no longer needed for the purposes of the 
project, the recipient may use the real property or equipment for other 
projects, insofar as:
    (i) There are Federally sponsored projects for which the real 
property or equipment may be used. If the only use for the real property 
or equipment is for projects that have no Federal sponsorship, the 
recipient shall proceed with disposition of the real property or 
equipment, in accordance with paragraph (e) of this section.
    (ii) The recipient obtains written approval from the grants officer 
to do so. The grants officer shall ensure that there is a formal change 
of accountability for the real property or equipment to a currently 
funded, Federal award.
    (iii) The recipient's use of the real property or equipment for 
other projects is in the same order of priority as described in 
paragraph (d)(1) of this section.
    (e) Disposition. (1) When an item of real property or equipment is 
no longer needed for Federally sponsored projects, the recipient shall 
proceed as follows:
    (i) If the property that is no longer needed is equipment (rather 
than real property), the recipient may wish to replace it with an item 
that is needed currently for the project. In that case, the recipient 
may use the original equipment as trade-in or sell it and use the 
proceeds to offset the costs of the replacement equipment, subject to 
the approval of the responsible agency (i.e., the DoD Component or the 
Federal agency to which the DoD Component delegated responsibility for 
administering the equipment).
    (ii) The recipient may elect to retain title, without further 
obligation to the Federal Government, by compensating the Federal 
Government for that percentage of the current fair market value of the 
real property or equipment that is attributable to the Federal 
participation in the project.
    (iii) If the recipient does not elect to retain title to real 
property or equipment (see paragraph (e)(1)(ii) of this section), or 
request approval to use equipment as trade-in or offset for replacement 
equipment (see paragraph (e)(1)(i) of this section), the recipient shall 
request disposition instructions from the responsible agency.
    (2) If a recipient requests disposition instructions, in accordance 
with paragraph (e)(1)(iii) of this section, the responsible grants 
officer shall:
    (i) For equipment (but not real property), consult with the Federal 
program manager and judge whether the age and nature of the equipment 
warrant a screening procedure, to determine whether the equipment is 
useful to a DoD Component or other Federal agency. If a screening 
procedure is warranted, the responsible agency shall determine whether 
the equipment can be used to meet a DoD Component's requirement. If no 
DoD requirement is found, the responsible agency shall report the 
availability of the equipment to the General Services Administration, to 
determine whether a requirement for the equipment exists in other 
Federal agencies.
    (ii) For either real property or equipment, issue instructions to 
the recipient for disposition of the property no later than 120 calendar 
days after the recipient's request. The grants officer's options for 
disposition are to direct the recipient to:

[[Page 81]]

    (A) Transfer title to the real property or equipment to the Federal 
Government or to an eligible third party provided that, in such cases, 
the recipient shall be entitled to compensation for its attributable 
percentage of the current fair market value of the real property or 
equipment, plus any reasonable shipping or interim storage costs 
incurred. If title is transferred to the Federal Government, it shall be 
subject thereafter to provisions for Federally owned property in Sec.  
34.22.
    (B) Sell the real property or equipment and pay the Federal 
Government for that percentage of the current fair market value of the 
property that is attributable to the Federal participation in the 
project (after deducting actual and reasonable selling and fix-up 
expenses, if any, from the sale proceeds). When the recipient is 
authorized or required to sell the real property or equipment, proper 
sales procedures shall be established that provide for competition to 
the extent practicable and result in the highest possible return.
    (3) If the responsible agency fails to issue disposition 
instructions within 120 calendar days of the recipient's request, as 
described in paragraph (e)(2)(ii) of this section, the recipient shall 
dispose of the real property or equipment through the option described 
in paragraph (e)(2)(ii)(B) of this section.



Sec.  34.22  Federally owned property.

    (a) Annual inventory. Recipients shall submit annually an inventory 
listing of all Federally owned property in their custody (property 
furnished by the Federal Government, rather than acquired by the 
recipient with Federal funds under the award), to the DoD Component or 
other Federal agency responsible for administering the property under 
the award.
    (b) Use on other activities. (1) Use of federally owned property on 
other activities is permissible, if authorized by the DoD Component 
responsible for administering the award to which the property currently 
is charged.
    (2) Use on other activities will be in the following order of 
priority:
    (i) Activities sponsored by DoD Components' grants, cooperative 
agreements, or other assistance awards;
    (ii) Activities sponsored by other Federal agencies' grants, 
cooperative agreements, or other assistance awards;
    (iii) Activities under Federal procurement contracts, or activities 
not sponsored by any Federal agency. If so used, use charges shall be 
assessed to those activities. For real property or equipment, the use 
charges shall be at rates equivalent to those for which comparable real 
property or equipment may be leased. The use charges shall be treated as 
program income.
    (c) Disposition of property. Upon completion of the award, the 
recipient shall report the property to the responsible agency. The 
agency may:
    (1) Use the property to meet another Federal Government need (e.g, 
by transferring accountability for the property to another Federal award 
to the same recipient, or by directing the recipient to transfer the 
property to a Federal agency that needs the property, or to another 
recipient with a currently funded award).
    (2) Declare the property to be excess property and either:
    (i) Report the property to the General Services Administration, in 
accordance with the Federal Property and Administrative Services Act of 
1949 (40 U.S.C. 483(b)(2)), as implemented by General Services 
Administration regulations at 41 CFR 101-47.202; or
    (ii) Dispose of the property by alternative methods, if there is 
statutory authority to do so (e.g., DoD Components are authorized by 15 
U.S.C. 3710(i), the Federal Technology Transfer Act, to donate research 
equipment to educational and nonprofit organizations for the conduct of 
technical and scientific education and research activities. Such 
donations shall be in accordance with the DoD implementation of E.O. 
12999 (3 CFR, 1996 Comp., p. 180), ``Educational Technology: Ensuring 
Opportunity for All Children in the Next Century,'' as applicable.) 
Appropriate instructions shall be issued to the recipient by the 
responsible agency.

[[Page 82]]



Sec.  34.23  Property management system.

    The recipient's property management system shall include the 
following, for property that is Federally owned, and for equipment that 
is acquired in whole or in part with Federal funds, or that is used as 
matching share:
    (a) Property records shall be maintained, to include the following 
information:
    (1) A description of the property.
    (2) Manufacturer's serial number, model number, Federal stock 
number, national stock number, or any other identification number.
    (3) Source of the property, including the award number.
    (4) Whether title vests in the recipient or the Federal Government.
    (5) Acquisition date (or date received, if the property was 
furnished by the Federal Government) and cost.
    (6) Information from which one can calculate the percentage of 
Federal participation in the cost of the property (not applicable to 
property furnished by the Federal Government).
    (7) The location and condition of the property and the date the 
information was reported.
    (8) Ultimate disposition data, including date of disposal and sales 
price or the method used to determine current fair market value where a 
recipient compensates the Federal Government for its share.
    (b) Federally owned equipment shall be marked, to indicate Federal 
ownership.
    (c) A physical inventory shall be taken and the results reconciled 
with the property records at least once every two years. Any differences 
between quantities determined by the physical inspection and those shown 
in the accounting records shall be investigated to determine the causes 
of the difference. The recipient shall, in connection with the 
inventory, verify the existence, current utilization, and continued need 
for the property.
    (d) A control system shall be in effect to insure adequate 
safeguards to prevent loss, damage, or theft of the property. Any loss, 
damage, or theft of property shall be investigated and fully documented; 
if the property was owned by the Federal Government, the recipient shall 
promptly notify the Federal agency responsible for administering the 
property.
    (e) Adequate maintenance procedures shall be implemented to keep the 
property in good condition.



Sec.  34.24  Supplies.

    (a) Title shall vest in the recipient upon acquisition for supplies 
acquired with Federal funds under an award.
    (b) Upon termination or completion of the project or program, the 
recipient shall retain any unused supplies. If the inventory of unused 
supplies exceeds $5,000 in total aggregate value and the items are not 
needed for any other Federally sponsored project or program, the 
recipient shall retain the items for use on non-Federal sponsored 
activities or sell them, but shall, in either case, compensate the 
Federal Government for its share.



Sec.  34.25  Intellectual property developed or produced under awards.

    (a) Patents. Grants and cooperative agreements with:
    (1) Small business concerns shall comply with 35 U.S.C. Chapter 18, 
as implemented by 37 CFR part 401, which applies to inventions made 
under grants and cooperative agreements with small business concerns for 
research and development. 37 CFR 401.14 provides a standard clause that 
is required in such grants and cooperative agreements in most cases, 37 
CFR 401.3 specifies when the clause shall be included, and 37 CFR 401.5 
specifies how the clause may be modified and tailored.
    (2) For-profit organizations other than small business concerns 
shall comply with 35 U.S.C. 210(c) and Executive Order 12591 (3 CFR, 
1987 Comp., p. 220) (which codifies a Presidential Memorandum on 
Government Patent Policy, dated February 18, 1983).
    (i) The Executive order states that, as a matter of policy, grants 
and cooperative agreements should grant to all for-profit organizations, 
regardless of size, title to patents made in whole or in part with 
Federal funds, in exchange for royalty-free use by or on behalf of the 
Government (i.e., it extends the applicability of 35 U.S.C. Chapter 18, 
to the extent permitted by law, to for-

[[Page 83]]

profit organizations other than small business concerns).
    (ii) 35 U.S.C. 210(c) states that 35 U.S.C. Chapter 18 is not 
intended to limit agencies' authority to agree to the disposition of 
rights in inventions in accordance with the Presidential memorandum 
codified by the Executive order. It also states that such grants and 
cooperative agreements shall provide for Government license rights 
required by 35 U.S.C. 202(c)(4) and march-in rights required by 35 
U.S.C. 203.
    (b) Copyright, data and software rights. Requirements concerning 
data and software rights are as follows:
    (1) The recipient may copyright any work that is subject to 
copyright and was developed under an award. DoD Components reserve a 
royalty-free, nonexclusive and irrevocable right to reproduce, publish, 
or otherwise use the work for Federal purposes, and to authorize others 
to do so.
    (2) Unless waived by the DoD Component making the award, the Federal 
Government has the right to:
    (i) Obtain, reproduce, publish or otherwise use for Federal 
Government purposes the data first produced under an award.
    (ii) Authorize others to receive, reproduce, publish, or otherwise 
use such data for Federal purposes.

                          Procurement Standards



Sec.  34.30  Purpose of procurement standards.

    Section 34.31 sets forth requirements necessary to ensure:
    (a) Compliance of recipients' procurements that use Federal funds 
with applicable Federal statutes and executive orders.
    (b) Proper stewardship of Federal funds used in recipients' 
procurements.



Sec.  34.31  Requirements.

    The following requirements pertain to recipients' procurements 
funded in whole or in part with Federal funds or with recipients' cost-
share or match:
    (a) Reasonable cost. Recipients procurement procedures shall make 
maximum practicable use of competition, or shall use other means that 
ensure reasonable cost for procured goods and services.
    (b) Pre-award review of certain procurements. Prior to awarding a 
procurement contract under an award, a recipient may be required to 
provide the grants officer administering the award with pre-award 
documents (e.g., requests for proposals, invitations for bids, or 
independent cost estimates) related to the procurement. Recipients will 
only be required to provide such documents for the grants officer's pre-
award review in exceptional cases where the grants officer judges that 
there is a compelling need to do so. In such cases, the grants officer 
must include a provision in the award that states the requirement.
    (c) Contract provisions. (1) Contracts in excess of the simplified 
acquisition threshold shall contain contractual provisions or conditions 
that allow for administrative, contractual, or legal remedies in 
instances in which a contractor violates or breaches the contract terms, 
and provide for such remedial actions as may be appropriate.
    (2) All contracts in excess of the simplified acquisition threshold 
shall contain suitable provisions for termination for default by the 
recipient or for termination due to circumstances beyond the control of 
the contractor.
    (3) All negotiated contracts in excess of the simplified acquisition 
threshold shall include a provision permitting access of the Department 
of Defense, the Comptroller General of the United States, or any of 
their duly authorized representatives, to any books, documents, papers, 
and records of the contractor that are directly pertinent to a specific 
program, for the purpose of making audits, examinations, excerpts, and 
transcriptions.
    (4) All contracts, including those for amounts less than the 
simplified acquisition threshold, awarded by recipients and their 
contractors shall contain the procurement provisions of Appendix A to 
this part, as applicable.

                           Reports and Records



Sec.  34.40  Purpose of reports and records.

    Sections 34.41 and 34.42 prescribe requirements for monitoring and 
reporting financial and program performance and for records retention.

[[Page 84]]



Sec.  34.41  Monitoring and reporting program and financial performance.

    Grants officers may use the provisions of subparts A and B of 2 CFR 
part 1134 for awards to for-profit organizations, or may include 
equivalent technical and financial reporting requirements that ensure 
reasonable oversight of the expenditure of appropriated funds. As a 
minimum, equivalent requirements must include:
    (a) Periodic reports (at least annually, and no more frequently than 
quarterly) addressing both program status and business status, as 
follows:
    (1) The program portions of the reports must address progress toward 
achieving program performance goals, including current issues, problems, 
or developments.
    (2) The business portions of the reports shall provide summarized 
details on the status of resources (federal funds and non-federal cost 
sharing or matching), including an accounting of expenditures for the 
period covered by the report. The report should compare the resource 
status with any payment and expenditure schedules or plans provided in 
the original award; explain any major deviations from those schedules; 
and discuss actions that will be taken to address the deviations.
    (3) When grants officers previously authorized advance payments, 
pursuant to Sec.  34.12(a)(2), they should consult with the program 
official and consider whether program progress reported in the periodic 
report, in relation to reported expenditures, is sufficient to justify 
continued authorization of advance payments.
    (b) Unless inappropriate, a final performance report that addresses 
all major accomplishments under the award.

[63 FR 12204, Mar. 12, 1998, as amended at 85 FR 51244, Aug. 19, 2020]



Sec.  34.42  Retention and access requirements for records.

    (a) This section sets forth requirements for records retention and 
access to records for awards to recipients.
    (b) Financial records, supporting documents, statistical records, 
and all other records pertinent to an award shall be retained for a 
period of three years from the date of submission of the final 
expenditure report. The only exceptions are the following:
    (1) If any litigation, claim, or audit is started before the 
expiration of the 3-year period, the records shall be retained until all 
litigation, claims or audit findings involving the records have been 
resolved and final action taken.
    (2) Records for real property and equipment acquired with Federal 
funds shall be retained for 3 years after final disposition.
    (3) When records are transferred to or maintained by the DoD 
Component that made the award, the 3-year retention requirement is not 
applicable to the recipient.
    (4) Indirect cost rate proposals, cost allocations plans, and 
related records, for which retention requirements are specified in Sec.  
34.42(g).
    (c) Copies of original records may be substituted for the original 
records if authorized by the grants officer.
    (d) The grants officer shall request that recipients transfer 
certain records to DoD Component custody when he or she determines that 
the records possess long term retention value. However, in order to 
avoid duplicate recordkeeping, a grants officer may make arrangements 
for recipients to retain any records that are continuously needed for 
joint use.
    (e) DoD Components, the Inspector General, Comptroller General of 
the United States, or any of their duly authorized representatives, have 
the right of timely and unrestricted access to any books, documents, 
papers, or other records of recipients that are pertinent to the awards, 
in order to make audits, examinations, excerpts, transcripts and copies 
of such documents. This right also includes timely and reasonable access 
to a recipient's personnel for the purpose of interview and discussion 
related to such documents. The rights of access in this paragraph are 
not limited to the required retention period, but shall last as long as 
records are retained.
    (f) Unless required by statute, no DoD Component shall place 
restrictions on recipients that limit public access to the records of 
recipients that are pertinent to an award, except when the DoD Component 
can demonstrate

[[Page 85]]

that such records shall be kept confidential and would have been 
exempted from disclosure pursuant to the Freedom of Information Act (5 
U.S.C. 552) if the records had belonged to the DoD Component making the 
award.
    (g) Indirect cost proposals, cost allocation plans, and other cost 
accounting documents (such as documents related to computer usage 
chargeback rates), along with their supporting records, shall be 
retained for a 3-year period, as follows:
    (1) If a recipient is required to submit an indirect-cost proposal, 
cost allocation plan, or other computation to the cognizant Federal 
agency, for purposes of negotiating an indirect cost rate or other 
rates, the 3-year retention period starts on the date of the submission. 
This retention requirement also applies to subrecipients submitting 
similar documents for negotiation to the recipient.
    (2) If the recipient or the subrecipient is not required to submit 
the documents or supporting records for negotiating an indirect cost 
rate or other rates, the 3-year retention period for the documents and 
records starts at the end of the fiscal year (or other accounting 
period) covered by the proposal, plan, or other computation.
    (h) If the information described in this section is maintained on a 
computer, recipients shall retain the computer data on a reliable medium 
for the time periods prescribed. Recipients may transfer computer data 
in machine readable form from one reliable computer medium to another. 
Recipients' computer data retention and transfer procedures shall 
maintain the integrity, reliability, and security of the original 
computer data. Recipients shall also maintain an audit trail describing 
the data transfer. For the record retention time periods prescribed in 
this section, recipients shall not destroy, discard, delete, or write 
over such computer data.

                       Termination and Enforcement



Sec.  34.50  Purpose of termination and enforcement.

    Sections 34.51 through 34.53 set forth uniform procedures for 
suspension, termination, enforcement, and disputes.



Sec.  34.51  Termination.

    (a) Awards may be terminated in whole or in part only in accordance 
with one of the following:
    (1) By the grants officer, if a recipient materially fails to comply 
with the terms and conditions of an award.
    (2) By the grants officer with the consent of the recipient, in 
which case the two parties shall agree upon the termination conditions, 
including the effective date and, in the case of partial termination, 
the portion to be terminated.
    (3) By the recipient upon sending to the grants officer written 
notification setting forth the reasons for such termination, the 
effective date, and, in the case of partial termination, the portion to 
be terminated. The recipient must provide such notice at least 30 
calendar days prior to the effective date of the termination. However, 
if the grants officer determines in the case of partial termination that 
the reduced or modified portion of the award will not accomplish the 
purposes for which the award was made, he or she may terminate the award 
in its entirety.
    (b) If costs are allowed under an award, the responsibilities of the 
recipient referred to in Sec.  34.61(b), including those for property 
management as applicable, shall be considered in the termination of the 
award, and provision shall be made for continuing responsibilities of 
the recipient after termination, as appropriate.



Sec.  34.52  Enforcement.

    (a) Remedies for noncompliance. If a recipient materially fails to 
comply with the terms and conditions of an award, whether stated in a 
Federal statute, regulation, assurance, application, or notice of award, 
the grants officer may, in addition to imposing any of the special 
conditions outlined in Sec.  34.4, take one or more of the following 
actions, as appropriate in the circumstances:
    (1) Temporarily withhold cash payments pending correction of the 
deficiency by the recipient or more severe enforcement action by the 
grants officer and DoD Component.
    (2) Disallow (that is, deny both use of funds and any applicable 
matching

[[Page 86]]

credit for) all or part of the cost of the activity or action not in 
compliance.
    (3) Wholly or partly suspend or terminate the current award. In the 
case of termination, the recipient will be reimbursed for allowable 
costs incurred prior to termination, with the possible exception of 
those for activities and actions described in paragraph (a)(2) of this 
section.
    (4) Withhold further awards for the project or program.
    (5) Take other remedies that may be legally available.
    (b) Hearings and appeals. In taking an enforcement action, the 
grants officer and DoD Component shall provide the recipient an 
opportunity for hearing, appeal, or other administrative proceeding to 
which the recipient is entitled under any statute or regulation 
applicable to the action involved (see Sec.  34.53 and 32 CFR 22.815).
    (c) Effects of suspension and termination. Costs of a recipient 
resulting from obligations incurred by the recipient during a suspension 
or after termination of an award are not allowable unless the grants 
officer expressly authorizes them in the notice of suspension or 
termination or subsequently. Other recipient costs during suspension or 
after termination which are necessary and not reasonably avoidable are 
allowable if the costs:
    (1) Result from obligations which were properly incurred by the 
recipient before the effective date of suspension or termination, are 
not in anticipation of it, and in the case of a termination, are 
noncancellable; and
    (2) Would be allowable if the award were not suspended or expired 
normally at the end of the funding period in which the termination takes 
effect.
    (d) Relationship to debarment and suspension. The enforcement 
remedies identified in this section, including suspension and 
termination, do not preclude a recipient from being subject to debarment 
and suspension under 2 CFR part 1125.

[63 FR 12188, Mar. 12, 1998, as amended at 72 FR 34998, June 26, 2007]



Sec.  34.53  Disputes and appeals.

    Recipients have the right to appeal certain decisions by grants 
officers. In resolving such issues, DoD policy is to use Alternative 
Dispute Resolution (ADR) techniques, to the maximum practicable extent. 
See 32 CFR 22.815 for standards for DoD Components' dispute resolution 
and formal, administrative appeal procedures.



                 Subpart C_After-the-Award Requirements



Sec.  34.60  Purpose.

    Sections 34.61 through 34.63 contain procedures for closeout and for 
subsequent disallowances and adjustments.



Sec.  34.61  Closeout procedures.

    (a) The cognizant grants officer shall, at least six months prior to 
the expiration date of the award, contact the recipient to establish:
    (1) All steps needed to close out the award, including submission of 
financial and performance reports, liquidation of obligations, and 
decisions on property disposition.
    (2) A schedule for completing those steps.
    (b) The following provisions shall apply to the closeout:
    (1) The responsible grants officer and payment office shall expedite 
completion of steps needed to close out awards and make prompt, final 
payments to a recipient for allowable reimbursable costs under the award 
being closed out.
    (2) The recipient shall promptly refund any unobligated balances of 
cash that the DoD Component has advanced or paid and that is not 
authorized to be retained by the recipient for use in other projects. 
For unreturned amounts that become delinquent debts, see 32 CFR 22.820.
    (3) When authorized by the terms and conditions of the award, the 
grants officer shall make a settlement for any upward or downward 
adjustments to the Federal share of costs after closeout reports are 
received.
    (4) The recipient shall account for any real property and personal 
property acquired with Federal funds or received from the Federal 
Government in accordance with Sec. Sec.  34.21 through 34.25.
    (5) If a final audit is required and has not been performed prior to 
the closeout of an award, the DoD Component

[[Page 87]]

shall retain the right to recover an appropriate amount after fully 
considering the recommendations on disallowed costs resulting from the 
final audit.



Sec.  34.62  Subsequent adjustments and continuing responsibilities.

    (a) The closeout of an award does not affect any of the following:
    (1) The right of the Department of Defense to disallow costs and 
recover funds on the basis of a later audit or other review.
    (2) The obligation of the recipient to return any funds due as a 
result of later refunds, corrections, or other transactions.
    (3) Audit requirements in Sec.  34.16.
    (4) Property management requirements in Sec. Sec.  34.21 through 
34.25.
    (5) Records retention as required in Sec.  34.42.
    (b) After closeout of an award, a relationship created under an 
award may be modified or ended in whole or in part with the consent of 
the grants officer and the recipient, provided the responsibilities of 
the recipient referred to in Sec.  34.61(a), including those for 
property management as applicable, are considered and provisions made 
for continuing responsibilities of the recipient, as appropriate.



Sec.  34.63  Collection of amounts due.

    Any funds paid to a recipient in excess of the amount to which the 
recipient is finally determined to be entitled under the terms and 
conditions of the award constitute a debt to the Federal Government. 
Procedures for issuing the demand for payment and pursuing 
administrative offset and other remedies are described in 32 CFR 22.820.





             Sec. Appendix A to Part 34--Contract Provisions

    All contracts awarded by a recipient, including those for amounts 
less than the simplified acquisition threshold, shall contain the 
following provisions as applicable:
    1. Equal Employment Opportunity--All contracts shall contain a 
provision requiring compliance with E.O. 11246 (3 CFR, 1964-1965 Comp., 
p. 339), ``Equal Employment Opportunity,'' as amended by E.O. 11375 (3 
CFR, 1966-1970 Comp., p. 684), ``Amending Executive Order 11246 Relating 
to Equal Employment Opportunity,'' and as supplemented by regulations at 
41 CFR chapter 60, ``Office of Federal Contract Compliance Programs, 
Equal Employment Opportunity, Department of Labor.''
    2. Copeland ``Anti-Kickback'' Act (18 U.S.C. 874 and 40 U.S.C. 
3145)--All contracts and subawards in excess of $2000 for construction 
or repair awarded by recipients and subrecipients shall include a 
provision for compliance with the Copeland ``Anti-Kickback'' Act (18 
U.S.C. 874), as supplemented by Department of Labor regulations (29 CFR 
part 3, ``Contractors and Subcontractors on Public Building or Public 
Work Financed in Whole or in Part by Loans or Grants from the United 
States''). The Act provides that each contractor or subrecipient shall 
be prohibited from inducing, by any means, any person employed in the 
construction, completion, or repair of public work, to give up any part 
of the compensation to which he is otherwise entitled. The recipient 
shall report all suspected or reported violations to the responsible DoD 
Component.
    3. Contract Work Hours and Safety Standards Act (40 U.S.C., chapter 
37)--Where applicable, all contracts awarded by recipients in excess of 
$100,000 for construction and other purposes that involve the employment 
of mechanics or laborers shall include a provision for compliance with 
Sections 102 and 107 of the Contract Work Hours and Safety Standards Act 
(40 U.S.C., chapter 37), as supplemented by Department of Labor 
regulations (29 CFR part 5). Under Section 102 of the Act, each 
contractor shall be required to compute the wages of every mechanic and 
laborer on the basis of a standard work week of 40 hours. Work in excess 
of the standard work week is permissible provided that the worker is 
compensated at a rate of not less than 1\1/2\ times the basic rate of 
pay for all hours worked in excess of 40 hours in the work week. Section 
107 of the Act is applicable to construction work and provides that no 
laborer or mechanic shall be required to work in surroundings or under 
working conditions which are unsanitary, hazardous or dangerous. These 
requirements do not apply to the purchases of supplies or materials or 
articles ordinarily available on the open market, or contracts for 
transportation or transmission of intelligence.
    4. Rights to Inventions Made Under a Contract, Grant or Cooperative 
Agreement--Contracts, grants, or cooperative agreements for the 
performance of experimental, developmental, or research work shall 
provide for the rights of the Federal Government and the recipient in 
any resulting invention in accordance with 37 CFR part 401, ``Rights to 
Inventions Made by Nonprofit Organizations and Small Business Firms 
Under Government Grants, Contracts and Cooperative Agreements.''

[[Page 88]]

    5. Clean Air Act (42 U.S.C. 7401 et seq.) and the Federal Water 
Pollution Control Act (33 U.S.C. 1251 et seq.), as amended--Contracts 
and subawards of amounts in excess of $150,000 shall contain a provision 
that requires the recipient to agree to comply with all applicable 
standards, orders or regulations issued pursuant to the Clean Air Act 
(42 U.S.C. 7401 et seq.) and the Federal Water Pollution Control Act as 
amended (33 U.S.C. 1251 et seq.). Violations shall be reported to the 
responsible DoD Component and the Regional Office of the Environmental 
Protection Agency (EPA).
    6. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352)--Contractors who 
apply or bid for an award of $100,000 or more shall file the required 
certification. Each tier certifies to the tier above that it will not 
and has not used Federal appropriated funds to pay any person or 
organization for influencing or attempting to influence an officer or 
employee of any agency, a member of Congress, officer or employee of 
Congress, or an employee of a member of Congress in connection with 
obtaining any Federal contract, grant or any other award covered by 31 
U.S.C. 1352. Each tier shall also disclose any lobbying with non-Federal 
funds that takes place in connection with obtaining any Federal award. 
Such disclosures are forwarded from tier to tier up to the recipient.
    7. Debarment and Suspension (E.O.s 12549 and 12689)--A contract 
award with an amount expected to equal or exceed $25,000 and certain 
other contract awards (see 2 CFR 1125.220, which implements OMB guidance 
at 2 CFR 180.220) shall not be made to parties identified in the 
Exclusions area of the System for Award Management (SAM Exclusions) as 
being currently debarred, suspended, or otherwise excluded. This 
restriction is in accordance with the DoD adoption at 2 CFR part 1125 of 
the OMB guidance implementing E.O.s 12549 (3 CFR, 1986 Comp., p. 189) 
and 12689 (3 CFR, 1989 Comp., p. 235), ``Debarment and Suspension.''
    8. Wage Rate Requirements (Construction), formerly the Davis Bacon 
Act. When required by Federal program legislation, you must take the 
following actions with respect to each construction contract for more 
than $2,000 to be awarded using funding provided under this award:
    a. Place in the solicitation under which the contract will be 
awarded a copy of the current prevailing wage determination issued by 
the Department of Labor;
    b. Condition the decision to award the contract upon the 
contractor's acceptance of that prevailing wage determination;
    c. Include in the contract the clauses specified at 29 CFR 5.5(a) in 
Department of Labor regulations (29 CFR part 5, ``Labor Standards 
Provisions Applicable to Contracts Governing Federally Financed and 
Assisted Construction'') to require the contractor's compliance with the 
Wage Rate Requirements (Construction), as amended (40 U.S.C. 3141-44, 
3146, and 3147); and
    d. Report all suspected or reported violations to the award 
administration office identified in this award.
    9. Fly America requirements. In each contract under which funds 
provided under this award might be used to participate in costs of 
international air travel or transportation for people or property, you 
must include a clause to require the contractor to:
    a. Comply with the International Air Transportation Fair Competitive 
Practices Act of 1974 (49 U.S.C. 40118, also known as the ``Fly 
America'' Act), as implemented by the General Services Administration at 
41 CFR 301-10.131 through 301-10.143, which provides that U.S Government 
financed international air travel and transportation of personal effects 
or property must use a U.S. Flag air carrier or be performed under a 
cost sharing arrangement with a U.S. carrier, if such service is 
available; and
    b. Include the requirements of the Fly America Act in all 
subcontracts that might involve international air transportation.
    10. Cargo preference for United States flag vessels. In each 
contract under which equipment, material, or commodities may be shipped 
by oceangoing vessels, you must include the clause specified in 
Department of Transportation regulations at 46 CFR 381.7(b) to require 
that at least 50 percent of equipment, materials or commodities 
purchased or otherwise obtained with Federal funds under this award, and 
transported by ocean vessel, be transported on privately owned U.S. flag 
commercial vessels, if available.

[63 FR 12204, Mar. 12, 1998, as amended at 70 FR 49477, Aug. 23, 2005; 
72 FR 34998, June 26, 2007; 85 FR 51245, Aug. 19, 2020]



PART 37_TECHNOLOGY INVESTMENT AGREEMENTS--Table of Contents



                            Subpart A_General

Sec.
37.100 What does this part do?
37.105 Does this part cover all types of instruments that 10 U.S.C. 2371 
          authorizes?
37.110 What type of instruments are technology investment agreements 
          (TIAs)?
37.115 For what purposes are TIAs used?
37.120 Can my organization award or administer TIAs?
37.125 May I award or administer TIAs if I am authorized to award or 
          administer other assistance instruments?
37.130 Which other parts of the DoD Grant and Agreement Regulations 
          apply to TIAs?

[[Page 89]]

      Subpart B_Appropriate Use of Technology Investment Agreements

37.200 What are my responsibilities as an agreements officer for 
          ensuring the appropriate use of TIAs?
37.205 What judgments must I make about the nature of the project?
37.210 To what types of recipients may I award a TIA?
37.215 What must I conclude about the recipient's commitment and cost 
          sharing?
37.220 How involved should the Government program official be in the 
          project?
37.225 What judgment must I make about the benefits of using a TIA?
37.230 May I use a TIA if a participant is to receive fee or profit?

  Subpart C_Expenditure-Based and Fixed-Support Technology Investment 
                               Agreements

37.300 What is the difference between an expenditure-based and fixed-
          support TIA?
37.305 When may I use a fixed-support TIA?
37.310 When would I use an expenditure-based TIA?
37.315 What are the advantages of using a fixed-support TIA?

                       Subpart D_Competition Phase

37.400 Must I use competitive procedures to award TIAs?
37.405 What must my announcement or solicitation include?
37.410 Should my announcement or solicitation state that TIAs may be 
          awarded?
37.415 Should I address cost sharing in the announcement or 
          solicitation?
37.420 Should I tell proposers that we will not disclose information 
          that they submit?

                 Subpart E_Pre-Award Business Evaluation

37.500 What must my pre-award business evaluation address?
37.505 What resources are available to assist me during the pre-award 
          business evaluation?

                         Recipient Qualification

37.510 What are my responsibilities for determining that a recipient is 
          qualified?
37.515 Must I do anything additional to determine the qualification of a 
          consortium?

                              Total Funding

37.520 What is my responsibility for determining that the total project 
          funding is reasonable?

                              Cost Sharing

37.525 What is my responsibility for determining the value and 
          reasonableness of the recipient's cost sharing contribution?
37.530 What criteria do I use in deciding whether to accept a 
          recipient's cost sharing?
37.535 How do I value cost sharing related to real property or 
          equipment?
37.540 May I accept fully depreciated real property or equipment as cost 
          sharing?
37.545 May I accept costs of prior research as cost sharing?
37.550 May I accept intellectual property as cost sharing?
37.555 How do I value a recipient's other contributions?

               Fixed-Support or Expenditure-Based Approach

37.560 Must I be able to estimate project expenditures precisely in 
          order to justify use of a fixed-support TIA?
37.565 May I use a hybrid instrument that provides fixed support for 
          only a portion of a project?

               Accounting, Payments, and Recovery of Funds

37.570 What must I do if a CAS-covered participant accounts differently 
          for its own and the Federal Government shares of project 
          costs?
37.575 What are my responsibilities for determining milestone payment 
          amounts?
37.580 What is recovery of funds and when should I consider including it 
          in my TIA?

 Subpart F_Award Terms Affecting Participants' Financial, Property, and 
                           Purchasing Systems

37.600 Which administrative matters are covered in this subpart?
37.605 What is the general policy on participants' financial, property, 
          and purchasing systems?
37.610 Must I tell participants what requirements they are to flow down 
          for subrecipients' systems?

                            Financial Matters

37.615 What standards do I include for financial systems of for-profit 
          firms?
37.620 What financial management standards do I include for participants 
          that are nonprofit?
37.625 What cost principles or standards do I require for for-profit 
          participants?
37.630 Must I require a for-profit firm to use Federally approved 
          indirect cost rates?
37.635 What cost principles do I require a nonprofit participant to use?
37.640 Must I include a provision for audits of for-profit participants?

[[Page 90]]

37.645 Must I require periodic system audits, as well as award-specific 
          audits, of for-profit participants?
37.650 Who must I identify as the auditor for a for-profit participant?
37.655 Must I specify the frequency of IPAs' periodic audits of for-
          profit participants?
37.660 What else must I specify concerning audits of for-profit 
          participants by IPAs?
37.665 Must I require nonprofit participants to have periodic audits?
37.670 Must I require participants to flow down audit requirements to 
          subrecipients?

                                Property

37.685 May I allow for-profit firms to purchase real property and 
          equipment with project funds?
37.690 How are nonprofit participants to manage real property and 
          equipment?
37.695 What are the requirements for Federally owned property?
37.700 What are the requirements for supplies?

                               Purchasing

37.705 What standards do I include for purchasing systems of for-profit 
          firms?
37.710 What standards do I include for purchasing systems of nonprofit 
          organizations?

      Subpart G_Award Terms Related to Other Administrative Matters

37.800 Which administrative matters are covered in this subpart?

                                Payments

37.805 If I am awarding a TIA, what payment methods may I specify?
37.810 What should my TIA's provisions specify for the method and 
          frequency of recipients' payment requests?
37.815 May the Government withhold payments?
37.820 Must I require a recipient to return interest on advance 
          payments?

                  Revision of Budget and Program Plans

37.825 Must I require the recipient to obtain prior approval from the 
          Government for changes in plans?
37.830 May I let a recipient charge pre-award costs to the agreement?

                             Program Income

37.835 What requirements do I include for program income?

                          Intellectual Property

37.840 What general approach should I take in negotiating data and 
          patent rights?
37.845 What data rights should I obtain?
37.850 Should I require recipients to mark data?
37.855 How should I handle protected data?
37.860 What rights should I obtain for inventions?
37.865 Should my patent provision include march-in rights?
37.870 Should I require recipients to mark documents related to 
          inventions?
37.875 Should my TIA include a provision concerning foreign access to 
          technology?

                  Financial and Programmatic Reporting

37.880 What requirements must I include for periodic reports on program 
          and business status?
37.885 May I require updated program plans?
37.890 Must I require a final performance report?
37.895 How is the final performance report to be sent to the Defense 
          Technical Information Center?
37.900 May I tell a participant that information in financial and 
          programmatic reports will not be publicly disclosed?
37.905 Must I make receipt of the final performance report a condition 
          for final payment?

                Records Retention and Access Requirements

37.910 How long must I require participants to keep records related to 
          the TIA?
37.915 What requirement for access to a for-profit participant's records 
          do I include in a TIA?
37.920 What requirement for access to a nonprofit participant's records 
          do I include in a TIA?

                       Termination and Enforcement

37.925 What requirements do I include for termination and enforcement?

                      Subpart H_Executing the Award

37.1000 What are my responsibilities at the time of award?

                           The Award Document

37.1005 What are my general responsibilities concerning the award 
          document?
37.1010 What substantive issues should my award document address?
37.1015 How do I decide who must sign the TIA if the recipient is an 
          unincorporated consortium?

                  Reporting Information About the Award

37.1020 What must I document in my award file?
37.1025 Must I report information to the Defense Assistance Awards Data 
          System?

[[Page 91]]

                Distributing Copies of the Award Document

37.1045 To whom must I send copies of the award document?

                   Subpart I_Post-Award Administration

37.1100 What are my responsibilities generally as an administrative 
          agreements officer for a TIA?
37.1105 What additional duties do I have as the administrator of a TIA 
          with advance payments or payable milestones?
37.1110 What other responsibilities related to payments do I have?
37.1115 What are my responsibilities related to participants' single 
          audits?
37.1120 When and how may I request an award-specific audit?

            Subpart J_Definitions of Terms Used in this Part

37.1205 Advance.
37.1210 Advanced research.
37.1215 Agreements officer.
37.1220 Applied research.
37.1225 Articles of collaboration.
37.1230 Assistance.
37.1235 Award-specific audit.
37.1240 Basic research.
37.1245 Cash contributions.
37.1250 Commercial firm.
37.1255 Consortium.
37.1260 Cooperative agreement.
37.1265 Cost sharing.
37.1270 Data.
37.1275 DoD Component.
37.1280 Equipment.
37.1285 Expenditure-based award.
37.1290 Expenditures or outlays.
37.1295 Grant.
37.1300 In-kind contributions.
37.1305 Institution of higher education.
37.1310 Intellectual property.
37.1315 Nonprofit organization.
37.1320 Participant.
37.1325 Periodic audit.
37.1330 Procurement contract.
37.1335 Program income.
37.1340 Program official.
37.1345 Property.
37.1350 Real property.
37.1355 Recipient.
37.1360 Research.
37.1365 Supplies.
37.1370 Termination.
37.1375 Technology investment agreements.

Appendix A to Part 37--What Is the Civil-Military Integration Policy 
          That Is the Basis for Technology Investment Agreements?
Appendix B to Part 37--What Type of Instrument Is a TIA and What 
          Statutory Authorities Does It Use?
Appendix C to Part 37--What Is the Desired Coverage for Periodic Audits 
          of For-Profit Participants To Be Audited by IPAs?
Appendix D to Part 37--What Common National Policy Requirements May 
          Apply and Need To Be Included in TIAs?
Appendix E to Part 37--What Provisions May A Participant Need to Include 
          When Purchasing Goods or Services Under a TIA?

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

    Source: 68 FR 47160, Aug. 7, 2003, unless otherwise noted.



                            Subpart A_General



Sec.  37.100  What does this part do?

    This part establishes uniform policies and procedures for the DoD 
Components' award and administration of technology investment agreements 
(TIAs).



Sec.  37.105  Does this part cover all types of instruments that 
10 U.S.C. 2371 authorizes?

    No, this part covers only TIAs, some of which use the authority of 
10 U.S.C. 2371 (see appendix B to this part). This part does not cover 
assistance instruments other than TIAs that use the authority of 10 
U.S.C. 2371. It also does not cover acquisition agreements for prototype 
projects that use 10 U.S.C. 2371 authority augmented by the authority in 
section 845 of Public Law 103-160, as amended.



Sec.  37.110  What type of instruments are technology investment 
agreements (TIAs)?

    TIAs are assistance instruments used to stimulate or support 
research. As discussed in appendix B to this part, a TIA may be either a 
kind of cooperative agreement or a type of assistance transaction other 
than a grant or cooperative agreement.



Sec.  37.115  For what purposes are TIAs used?

    The ultimate goal for using TIAs, like other assistance instruments 
used in defense research programs, is to foster the best technologies 
for future defense needs. TIAs differ from and complement other 
assistance instruments available to agreements officers, in that TIAs 
address the goal by fostering civil-military integration (see appendix

[[Page 92]]

A to this part). TIAs therefore are designed to:
    (a) Reduce barriers to commercial firms' participation in defense 
research, to give the Department of Defense (DoD) access to the broadest 
possible technology and industrial base.
    (b) Promote new relationships among performers in both the defense 
and commercial sectors of that technology and industrial base.
    (c) Stimulate performers to develop, use, and disseminate improved 
practices.



Sec.  37.120  Can my organization award or administer TIAs?

    Your office may award or administer TIAs if it has a delegation of 
the authorities in 10 U.S.C. 2371, as well as 10 U.S.C. 2358. If your 
office is in a Military Department, it must have a delegation of the 
authority of the Secretary of that Military Department under those 
statutes. If your office is in a Defense Agency, it must have a 
delegation of the authority of the Secretary of Defense under 10 U.S.C. 
2358 and 2371. Your office needs those authorities to be able to:
    (a) Enter into cooperative agreements to stimulate or support 
research, using the authority of 10 U.S.C. 2358, as well as assistance 
transactions other than grants or cooperative agreements, using the 
authority of 10 U.S.C. 2371. The reason that both authorities are needed 
is that a TIA, depending upon its patent rights provision (see appendix 
B to this part), may be either a cooperative agreement or a type of 
assistance transaction other than a grant or cooperative agreement.
    (b) Recover funds from a recipient and reuse the funds for program 
purposes, as authorized by 10 U.S.C. 2371 and described in Sec.  37.580.
    (c) Exempt certain information received from proposers from 
disclosure under the Freedom of Information Act, as authorized by 10 
U.S.C. 2371 and described in Sec.  37.420.



Sec.  37.125  May I award or administer TIAs if I am authorized to award
or administer other assistance instruments?

    (a) You must have specific authorization to award or administer 
TIAs. Being authorized to award or administer grants and cooperative 
agreements is not sufficient; a grants officer is an agreements officer 
only if the statement of appointment also authorizes the award or 
administration of TIAs.
    (b) You receive that authorization in the same way that you receive 
authority to award other assistance instruments, as described in 32 CFR 
21.425 and 21.435 through 21.445.



Sec.  37.130  Which other parts of the DoD Grant and Agreement Regulations
apply to TIAs?

    (a) TIAs are explicitly covered in this part and part 21 of the DoD 
Grant and Agreement Regulations (DoDGARs). Part 21 (32 CFR part 21) 
addresses deviation procedures and other general matters that relate to 
the DoDGARs, to DoD Components' authorities and responsibilities for 
assistance instruments, and to requirements for reporting information 
about assistance awards.
    (b) Two additional parts of the DoDGARs apply to TIAs, although they 
do not mention TIAs explicitly. They are:
    (1) Part 1125 (2 CFR part 1125) on nonprocurement debarment and 
suspension, which applies because it covers nonprocurement instruments 
in general;
    (2) Part 26 (32 CFR part 26), on drug-free workplace requirements, 
which applies because it covers financial assistance in general; and
    (3) Part 28 (32 CFR part 28), on lobbying restrictions, which 
applies by law (31 U.S.C. 1352) to TIAs that are cooperative agreements 
and as a matter of DoD policy to all other TIAs.
    (c) Portions of other DoDGARs parts apply to TIAs only as cited by 
reference in this part.

[68 FR 47160, Aug. 7, 2003, as amended at 70 FR 49477, Aug. 23, 2005; 72 
FR 34999, June 26, 2007; 85 FR 51245, Aug. 19, 2020]

[[Page 93]]



      Subpart B_Appropriate Use of Technology Investment Agreements



Sec.  37.200  What are my responsibilities as an agreements officer for
ensuring the appropriate use of TIAs?

    You must ensure that you use TIAs only in appropriate situations. To 
do so, you must conclude that the use of a TIA is justified based on:
    (a) The nature of the project, as discussed in Sec.  37.205;
    (b) The type of recipient, addressed in Sec.  37.210;
    (c) The recipient's commitment and cost sharing, as described in 
Sec.  37.215;
    (d) The degree of involvement of the Government program official, as 
discussed in Sec.  37.220; and
    (e) Your judgment that the use of a TIA could benefit defense 
research objectives in ways that likely would not happen if another type 
of assistance instrument were used. Your answers to the four questions 
in Sec.  37.225 should be the basis for your judgment.



Sec.  37.205  What judgments must I make about the nature of the
project?

    You must:
    (a) Conclude that the principal purpose of the project is 
stimulation or support of research (i.e., assistance), rather than 
acquiring goods or services for the benefit of the Government (i.e., 
acquisition);
    (b) Decide that the basic, applied, or advanced research project is 
relevant to the policy objective of civil-military integration (see 
appendix A of this part); and
    (c) Ensure that, to the maximum extent practicable, any TIA that 
uses the authority of 10 U.S.C. 2371 (see appendix B of this part) does 
not support research that duplicates other research being conducted 
under existing programs carried out by the Department of Defense. This 
is a statutory requirement of 10 U.S.C. 2371.
    (d) When your TIA is a type of assistance transaction other than a 
grant or cooperative agreement, satisfy the condition in 10 U.S.C. 2371 
to judge that the use of a standard grant or cooperative agreement for 
the research project is not feasible or appropriate. As discussed in 
appendix B to this part:
    (1) This situation arises if your TIA includes a patent provision 
that is less restrictive than is possible under the Bayh-Dole statute 
(because the patent provision is what distinguishes a TIA that is a 
cooperative agreement from a TIA that is an assistance transaction other 
than a grant or cooperative agreement).
    (2) You satisfy the requirement to judge that a standard cooperative 
agreement is not feasible or appropriate when you judge that execution 
of the research project warrants a less restrictive patent provision 
than is possible under Bayh-Dole.



Sec.  37.210  To what types of recipients may I award a TIA?

    (a) As a matter of DoD policy, you may award a TIA only when one or 
more for-profit firms are to be involved either in the:
    (1) Performance of the research project; or
    (2) The commercial application of the research results. In that 
case, you must determine that the nonprofit performer has at least a 
tentative agreement with specific for-profit partners who plan on being 
involved when there are results to transition. You should review the 
agreement between the nonprofit and for-profit partners, because the 
for-profit partners' involvement is the basis for using a TIA rather 
than another type of assistance instrument.
    (b) Consistent with the goals of civil-military integration, TIAs 
are most appropriate when one or more commercial firms (as defined at 
Sec.  37.1250) are to be involved in the project.
    (c) You are encouraged to make awards to consortia (a consortium may 
include one or more for-profit firms, as well as State or local 
government agencies, institutions of higher education, or other 
nonprofit organizations). The reasons are that:
    (1) When multiple performers are participating as a consortium, they 
are more equal partners in the research performance than usually is the 
case with a prime recipient and subawards. All of them therefore are 
more likely to be directly involved in developing and revising plans for 
the research effort, reviewing technical progress, and overseeing 
financial and other business

[[Page 94]]

matters. That feature makes consortia well suited to building new 
relationships among performers in the defense and commercial sectors of 
the technology and industrial base, a principal objective for the use of 
TIAs.
    (2) In addition, interactions among the participants within a 
consortium potentially provide a self-governance mechanism. The 
potential for additional self-governance is particularly good when a 
consortium includes multiple for-profit participants that normally are 
competitors within an industry.
    (d) TIAs also may be used for carrying out research performed by 
single firms or multiple performers in prime award-subaward 
relationships. In awarding TIAs in those cases, however, you should 
consider providing for greater involvement of the program official or a 
way to increase self-governance (e.g., a prime award with multiple 
subawards arranged so as to give the subrecipients more insight into and 
authority and responsibility for programmatic and business aspects of 
the overall project than they usually have).



Sec.  37.215  What must I conclude about the recipient's commitment 
and cost sharing?

    (a) You should judge that the recipient has a strong commitment to 
and self-interest in the success of the project. You should find 
evidence of that commitment and interest in the proposal, in the 
recipient's management plan, or through other means. A recipient's self-
interest might be driven, for example, by a research project's potential 
for fostering technology to be incorporated into products and processes 
for the commercial marketplace.
    (b) You must seek cost sharing. The purpose of cost share is to 
ensure that the recipient incurs real risk that gives it a vested 
interest in the project's success; the willingness to commit to 
meaningful cost sharing therefore is one good indicator of a recipient's 
self-interest. The requirements are that:
    (1) To the maximum extent practicable, the non-Federal parties 
carrying out a research project under a TIA are to provide at least half 
of the costs of the project. Obtaining this cost sharing, to the maximum 
extent practicable, is a statutory condition for any TIA under the 
authority of 10 U.S.C. 2371, and is a matter of DoD policy for all other 
TIAs.
    (2) The parties must provide the cost sharing from non-Federal 
resources that are available to them unless there is specific authority 
to use other Federal resources for that purpose (see Sec.  37.530(f)).
    (c) You may consider whether cost sharing is impracticable in a 
given case, unless there is a non-waivable, statutory requirement for 
cost sharing that applies to the particular program under which the 
award is to be made. Before deciding that cost sharing is impracticable, 
you should carefully consider whether there are other factors that 
demonstrate the recipient's self-interest in the success of the current 
project.



Sec.  37.220  How involved should the Government program official be in
the project?

    (a) TIAs are used to carry out cooperative relationships between the 
Federal Government and the recipient, which requires a greater level of 
involvement of the Government program official in the execution of the 
research than the usual oversight of a research grant or procurement 
contract. For example, program officials will participate in recipients' 
periodic reviews of research progress and will be substantially involved 
with the recipients in the resulting revisions of plans for future 
effort. That increased programmatic involvement before and during 
program execution with a TIA can reduce the need for some Federal 
financial requirements that are problematic for commercial firms.
    (b) Some aspects of their involvement require program officials to 
have greater knowledge about and participation in business matters that 
traditionally would be your exclusive responsibility as the agreements 
officer. TIAs therefore also require closer cooperation between program 
officials and you, as the one who decides business matters.

[[Page 95]]



Sec.  37.225  What judgment must I make about the benefits of using a TIA?

    Before deciding that a TIA is appropriate, you also must judge that 
using a TIA could benefit defense research objectives in ways that 
likely would not happen if another type of assistance instrument were 
used (e.g., a cooperative agreement subject to all of the requirements 
of 32 CFR part 34). You, in conjunction with Government program 
officials, must consider the questions in paragraphs (a) through (d) of 
this section, to help identify the benefits that may justify using a TIA 
and reducing some of the usual requirements. In accordance with Sec.  
37.1020, you must document your answers to these questions in the award 
file. Note that you must give full concise answers only to questions 
that relate to the benefits that you perceive for using the TIA, rather 
than another type of funding instrument, for the particular research 
project. A simple ``no'' or ``not applicable'' is a sufficient response 
for other questions. The questions are:
    (a) Will the use of a TIA permit the involvement in the research of 
any commercial firms or business units of firms that would not otherwise 
participate in the project? If so:
    (1) What are the expected benefits of those firms' or divisions' 
participation (e.g., is there a specific technology that could be 
better, more readily available, or less expensive)?
    (2) Why would they not participate if an instrument other than a TIA 
were used? You should identify specific provisions of the TIA or 
features of the TIA award process that enable their participation.
    (b) Will the use of a TIA allow the creation of new relationships 
among participants at the prime or subtier levels, among business units 
of the same firm, or between non-Federal participants and the Federal 
Government that will help the DoD get better technology in the future? 
If so:
    (1) Why do these new relationships have the potential for helping 
the DoD get technology in the future that is better, more affordable, or 
more readily available?
    (2) Are there provisions of the TIA or features of the TIA award 
process that enable these relationships to form? If so, you should be 
able to identify specifically what they are. If not, you should be able 
to explain specifically why you think that the relationships could not 
be created if an assistance instrument other than a TIA were used.
    (c) Will the use of a TIA allow firms or business units of firms 
that traditionally accept Government awards to use new business 
practices in the execution of the research that will help us get better 
technology, help us get new technology more quickly or less expensively, 
or facilitate partnering with commercial firms? If so:
    (1) What specific benefits will the DoD potentially get from the use 
of these new practices? You should be able to explain specifically why 
you foresee a potential for those benefits.
    (2) Are there provisions of the TIA or features of the TIA award 
process that enable the use of the new practices? If so, you should be 
able to identify those provisions or features and explain why you think 
that the practices could not be used if the award were made using an 
assistance instrument other than a TIA.
    (d) Are there any other benefits of the use of a TIA that could help 
the Department of Defense better meet its objectives in carrying out the 
research project? If so, you should be able to identify specifically 
what they are, how they can help meet defense objectives, what features 
of the TIA or award process enable the DoD to realize them, and why the 
benefits likely would not be realized if an assistance instrument other 
than a TIA were used.

[68 FR 47160, Aug. 7, 2003, as amended at 85 FR 51245, Aug. 19, 2020]



Sec.  37.230  May I use a TIA if a participant is to receive fee or
profit?

    In accordance with 32 CFR 22.205(b), you may not use a TIA if any 
participant is to receive fee or profit. Note that this policy extends 
to all performers of the research project carried out under the TIA, 
including any subawards for substantive program performance, but it does 
not preclude participants' or subrecipients' payment of reasonable fee 
or profit when making purchases from suppliers of goods (e.g.,

[[Page 96]]

supplies and equipment) or services needed to carry out the research.



  Subpart C_Expenditure-Based and Fixed-Support Technology Investment 
                               Agreements



Sec.  37.300  What is the difference between an expenditure-based and
fixed-support TIA?

    The fundamental difference between an expenditure-based and fixed-
support TIA is that:
    (a) For an expenditure-based TIA, the amounts of interim payments or 
the total amount ultimately paid to the recipient are based on the 
amounts the recipient expends on project costs. If a recipient completes 
the project specified at the time of award before it expends all of the 
agreed-upon Federal funding and recipient cost sharing, the Federal 
Government may recover its share of the unexpended balance of funds or, 
by mutual agreement with the recipient, amend the agreement to expand 
the scope of the research project. An expenditure-based TIA therefore is 
analogous to a cost-type procurement contract or grant.
    (b) For a fixed-support TIA, the amount of assistance established at 
the time of award is not meant to be adjusted later if the research 
project is carried out to completion. In that sense, a fixed-support TIA 
is somewhat analogous to a fixed-price procurement contract (although 
``price,'' a concept appropriate to a procurement contract for buying a 
good or service, is not appropriate for a TIA or other assistance 
instrument for stimulation or support of a project).



Sec.  37.305  When may I use a fixed-support TIA?

    You may use a fixed-support TIA if:
    (a) The agreement is to support or stimulate research with outcomes 
that are well defined, observable, and verifiable;
    (b) You can reasonably estimate the resources required to achieve 
those outcomes well enough to ensure the desired level of cost sharing 
(see example in Sec.  37.560(b)); and
    (c) Your TIA does not require a specific amount or percentage of 
recipient cost sharing. In cases where the agreement does require a 
specific amount or percentage of cost sharing, a fixed-support TIA is 
not practicable because the agreement has to specify cost principles or 
standards for costs that may be charged to the project; require the 
recipient to track the costs of the project; and provide access for 
audit to allow verification of the recipient's compliance with the 
mandatory cost sharing. You therefore must use an expenditure-based TIA 
if you:
    (1) Have a non-waivable requirement (e.g., in statute) for a 
specific amount or percentage of recipient cost sharing; or
    (2) Have otherwise elected to include in the TIA a requirement for a 
specific amount or percentage of cost sharing.



Sec.  37.310  When would I use an expenditure-based TIA?

    In general, you must use an expenditure-based TIA under conditions 
other than those described in Sec.  37.305. Reasons for any exceptions 
to this general rule must be documented in the award file and must be 
consistent with the policy in Sec.  37.230 that precludes payment of fee 
or profit to participants.



Sec.  37.315  What are the advantages of using a fixed-support TIA?

    In situations where the use of fixed-support TIAs is permissible 
(see Sec. Sec.  37.305 and 37.310), their use may encourage some 
commercial firms' participation in the research. With a fixed-support 
TIA, you can eliminate or reduce some post-award requirements that 
sometimes are cited as disincentives for those firms to participate. For 
example, a fixed-support TIA need not:
    (a) Specify minimum standards for the recipient's financial 
management system.
    (b) Specify cost principles or standards stating the types of costs 
the recipient may charge to the project.
    (c) Provide for financial audits by Federal auditors or independent 
public accountants of the recipient's books and records.
    (d) Set minimum standards for the recipient's purchasing system.

[[Page 97]]

    (e) Require the recipient to prepare financial reports for 
submission to the Federal Government.



                       Subpart D_Competition Phase



Sec.  37.400  Must I use competitive procedures to award TIAs?

    DoD policy is to award TIAs using merit-based, competitive 
procedures, as described in 32 CFR 22.315:
    (a) In every case where required by statute; and
    (b) To the maximum extent practicable in all other cases.



Sec.  37.405  What must my announcement or solicitation include?

    Your announcement, to be considered as part of a competitive 
procedure, must include the basic information described in 32 CFR 
22.315(a). Additional elements for you to consider in the case of a 
program that may use TIAs are described in Sec. Sec.  37.410 through 
37.420.



Sec.  37.410  Should my announcement or solicitation state that TIAs
may be awarded?

    Yes, once you consider the factors described in subpart B of this 
part and decide that TIAs are among the types of instruments that you 
may award pursuant to a solicitation, it is important for you to state 
that fact in the solicitation. You also should state that TIAs are more 
flexible than traditional Government funding instruments and that 
provisions are negotiable in areas such as audits and intellectual 
property rights that may cause concern for commercial firms. Doing so 
should increase the likelihood that commercial firms will be willing to 
submit proposals.



Sec.  37.415  Should I address cost sharing in the announcement or
solicitation?

    To help ensure a competitive process that is fair and equitable to 
all potential proposers, you should state clearly in the solicitation:
    (a) That, to the maximum extent practicable, the non-Federal parties 
carrying out a research project under a TIA are to provide at least half 
of the costs of the project (see Sec.  37.215(b)).
    (b) The types of cost sharing that are acceptable;
    (c) How any in-kind contributions will be valued, in accordance with 
Sec. Sec.  37.530 through 37.555; and
    (d) Whether you will give any consideration to alternative 
approaches a proposer may offer to demonstrate its strong commitment to 
and self-interest in the project's success, in accordance with Sec.  
37.215.



Sec.  37.420  Should I tell proposers that we will not disclose
information that they submit?

    Your solicitation should tell potential proposers that:
    (a) For all TIAs, information described in paragraph (b) of this 
section is exempt from disclosure requirements of the Freedom of 
Information Act (FOIA)(codified at 5 U.S.C. 552) for a period of five 
years after the date on which the DoD Component receives the information 
from them.
    (b) As provided in 10 U.S.C. 2371, disclosure is not required, and 
may not be compelled, under FOIA during that period if:
    (1) A proposer submits the information in a competitive or 
noncompetitive process that could result in their receiving a 
cooperative agreement for basic, applied, or advanced research under the 
authority of 10 U.S.C. 2358 or any other type of transaction authorized 
by 10 U.S.C. 2371 (as explained in appendix B to this part, that 
includes all TIAs); and
    (2) The type of information is among the following types that are 
exempt:
    (i) Proposals, proposal abstracts, and supporting documents; and
    (ii) Business plans and technical information submitted on a 
confidential basis.
    (c) If proposers desire to protect business plans and technical 
information for five years from FOIA disclosure requirements, they must 
mark them with a legend identifying them as documents submitted on a 
confidential basis. After the five-year period, information may be 
protected for longer periods if it meets any of the criteria in 5 U.S.C. 
552(b) (as implemented by the DoD in subpart C of 32 CFR part 286) for 
exemption from FOIA disclosure requirements.

[[Page 98]]



                 Subpart E_Pre-Award Business Evaluation



Sec.  37.500  What must my pre-award business evaluation address?

    (a) You must determine the qualification of the recipient, as 
described in Sec. Sec.  37.510 and 37.515.
    (b) As the business expert working with the program official, you 
also must address the financial aspects of the proposed agreement. You 
must:
    (1) Determine that the total amount of funding for the proposed 
effort is reasonable, as addressed in Sec.  37.520.
    (2) Assess the value and determine the reasonableness of the 
recipient's proposed cost sharing contribution, as discussed in 
Sec. Sec.  37.525 through 37.555.
    (3) If you are contemplating the use of a fixed-support rather than 
expenditure-based TIA, ensure that its use is justified, as explained in 
Sec. Sec.  37.560 and 37.565.
    (4) Address issues of inconsistent cost accounting by traditional 
Government contractors, should they arise, as noted in Sec.  37.570.
    (5) Determine amounts for milestone payments, if you use them, as 
discussed in Sec.  37.575.



Sec.  37.505  What resources are available to assist me during the
pre-award business evaluation?

    Administrative agreements officers of the Defense Contract 
Management Agency and the Office of Naval Research can share lessons 
learned from administering other TIAs. Program officials can be a source 
of information when you are determining the reasonableness of proposed 
funding (e.g., on labor rates, as discussed in Sec.  37.520) or 
establishing observable and verifiable technical milestones for payments 
(see Sec.  37.575). Auditors at the Defense Contract Audit Agency can 
act in an advisory capacity to help you determine the reasonableness of 
proposed amounts, including values of in-kind contributions toward cost 
sharing.

                         Recipient Qualification



Sec.  37.510  What are my responsibilities for determining that a 
recipient is qualified?

    Prior to award of a TIA, your responsibilities for determining that 
the recipient is qualified are the same as those of a grants officer who 
is awarding a grant or cooperative agreement. Those responsibilities are 
described in subpart D of 32 CFR part 22. When the recipient is a 
consortium that is not formally incorporated, you have the additional 
responsibility described in Sec.  37.515.



Sec.  37.515  Must I do anything additional to determine the qualification
of a consortium?

    (a) When the prospective recipient of a TIA is a consortium that is 
not formally incorporated, your determination that the recipient meets 
the standard at 32 CFR 22.415(a) requires that you, in consultation with 
legal counsel, review the management plan in the consortium's 
collaboration agreement. The purpose of your review is to ensure that 
the management plan is sound and that it adequately addresses the 
elements necessary for an effective working relationship among the 
consortium members. An effective working relationship is essential to 
increase the research project's chances of success.
    (b) The collaboration agreement, commonly referred to as the 
articles of collaboration, is the document that sets out the rights and 
responsibilities of each consortium member. It binds the individual 
consortium members together, whereas the TIA binds the Government and 
the consortium as a group (or the Government and a consortium member on 
behalf of the consortium, as explained in Sec.  37.1015). The document 
should discuss, among other things, the consortium's:
    (1) Management structure.
    (2) Method of making payments to consortium members.
    (3) Means of ensuring and overseeing members' efforts on the 
project.
    (4) Provisions for members' cost sharing contributions.

[[Page 99]]

    (5) Provisions for ownership and rights in intellectual property 
developed previously or under the agreement.

                              Total Funding



Sec.  37.520  What is my responsibility for determining that the total
project funding is reasonable?

    In cooperation with the program official, you must assess the 
reasonableness of the total estimated budget to perform the research 
that will be supported by the agreement. Additional guidance follows 
for:
    (a) Labor. Much of the budget likely will involve direct labor and 
associated indirect costs, which may be represented together as a 
``loaded'' labor rate. The program official is an essential advisor on 
reasonableness of the overall level of effort and its composition by 
labor category. You also may rely on your experience with other awards 
as the basis for determining reasonableness. If you have any unresolved 
questions, two of the ways that you might find helpful in establishing 
reasonableness are to:
    (1) Consult the administrative agreements officers or auditors 
identified in Sec.  37.505.
    (2) Compare loaded labor rates of for-profit firms that do not have 
expenditure-based Federal procurement contracts or assistance awards 
with a standard or average for the particular industry. Note that the 
program official may have knowledge about customary levels of direct 
labor charges in the particular industry that is involved. You may be 
able to compare associated indirect charges with Government-approved 
indirect cost rates that exist for many nonprofit and for-profit 
organizations that have Federal procurement contracts or assistance 
awards (note the requirement in Sec.  37.630 for a for-profit 
participant to use Federally approved provisional indirect cost rates, 
if it has them).
    (b) Real property and equipment. In almost all cases, the project 
costs may include only depreciation or use charges for real property and 
equipment of for-profit participants, in accordance with Sec.  37.685. 
Remember that the budget for an expenditure-based TIA may not include 
depreciation of a participant's property as a direct cost of the project 
if that participant's practice is to charge the depreciation of that 
type of property as an indirect cost, as many organizations do.

                              Cost Sharing



Sec.  37.525  What is my responsibility for determining the value and 
reasonableness of the recipient's cost sharing contribution?

    You must:
    (a) Determine that the recipient's cost sharing contributions meet 
the criteria for cost sharing and determine values for them, in 
accordance with Sec. Sec.  37.530 through 37.555. In doing so, you must:
    (1) Ensure that there are affirmative statements from any third 
parties identified as sources of cash contributions.
    (2) Include in the award file an evaluation that documents how you 
determined the values of the recipient's contributions to the funding of 
the project.
    (b) Judge that the recipient's cost sharing contribution, as a 
percentage of the total budget, is reasonable. To the maximum extent 
practicable, the recipient must provide at least half of the costs of 
the project, in accordance with Sec.  37.215.



Sec.  37.530  What criteria do I use in deciding whether to accept a
recipient's cost sharing?

    You may accept any cash or in-kind contributions that meet all of 
the following criteria:
    (a) In your judgment, they represent meaningful cost sharing that 
demonstrates the recipient's commitment to the success of the research 
project. Cash contributions clearly demonstrate commitment and they are 
strongly preferred over in-kind contributions.
    (b) They are necessary and reasonable for accomplishment of the 
research project's objectives.
    (c) They are costs that may be charged to the project under Sec.  
37.625 and Sec.  37.635, as applicable to the participant making the 
contribution.
    (d) They are verifiable from the recipient's records.

[[Page 100]]

    (e) They are not included as cost sharing contributions for any 
other Federal award.
    (f) They are not paid by the Federal Government under another award, 
except:
    (1) Costs that are authorized by Federal statute to be used for cost 
sharing; or
    (2) Independent research and development (IR&D) costs, as described 
at 32 CFR 34.13(a)(5)(ii), that meet all of the criteria in paragraphs 
(a) through (e) of this section. IR&D is acceptable as cost sharing, 
even though it may be reimbursed by the Government through other awards. 
It is standard business practice for all for-profit firms, including 
commercial firms, to recover their research and development (R&D) costs 
(which for Federal procurement contracts is recovered as IR&D) through 
prices charged to their customers. Thus, the cost principles at 48 CFR 
part 31 allow a for-profit firm that has expenditure-based, Federal 
procurement contracts to recover through those procurement contracts the 
allocable portion of its R&D costs associated with a technology 
investment agreement.



Sec.  37.535  How do I value cost sharing related to real property
or equipment?

    You rarely should accept values for cost sharing contributions of 
real property or equipment that are in excess of depreciation or 
reasonable use charges, as discussed in Sec.  37.685 for for-profit 
participants. You may accept the full value of a donated capital asset 
if the real property or equipment is to be dedicated to the project and 
you expect that it will have a fair market value that is less than 
$5,000 at the project's end. In those cases, you should value the 
donation at the lesser of:
    (a) The value of the property as shown in the recipient's accounting 
records (i.e., purchase price less accumulated depreciation); or
    (b) The current fair market value. You may accept the use of any 
reasonable basis for determining the fair market value of the property. 
If there is a justification to do so, you may accept the current fair 
market value even if it exceeds the value in the recipient's records.



Sec.  37.540  May I accept fully depreciated real property or
equipment as cost sharing?

    You should limit the value of any contribution of a fully 
depreciated asset to a reasonable use charge. In determining what is 
reasonable, you must consider:
    (a) The original cost of the asset;
    (b) Its estimated remaining useful life at the time of your 
negotiations;
    (c) The effect of any increased maintenance charges or decreased 
performance due to age; and
    (d) The amount of depreciation that the participant previously 
charged to Federal awards.



Sec.  37.545  May I accept costs of prior research as cost sharing?

    No, you may not count any participant's costs of prior research as a 
cost sharing contribution. Only the additional resources that the 
recipient will provide to carry out the current project (which may 
include pre-award costs for the current project, as described in Sec.  
37.830) are to be counted.



Sec.  37.550  May I accept intellectual property as cost sharing?

    (a) In most instances, you should not count costs of patents and 
other intellectual property (e.g., copyrighted material, including 
software) as cost sharing, because:
    (1) It is difficult to assign values to these intangible 
contributions;
    (2) Their value usually is a manifestation of prior research costs, 
which are not allowed as cost share under Sec.  37.545; and
    (3) Contributions of intellectual property rights generally do not 
represent the same cost of lost opportunity to a recipient as 
contributions of cash or tangible assets. The purpose of cost share is 
to ensure that the recipient incurs real risk that gives it a vested 
interest in the project's success.
    (b) You may include costs associated with intellectual property if 
the costs are based on sound estimates of market value of the 
contribution. For example, a for-profit firm may offer the use of 
commercially available software for

[[Page 101]]

which there is an established license fee for use of the product. The 
costs of the development of the software would not be a reasonable basis 
for valuing its use.



Sec.  37.555  How do I value a recipient's other contributions?

    For types of participant contributions other than those addressed in 
Sec. Sec.  37.535 through 37.550, the general rule is that you are to 
value each contribution consistently with the cost principles or 
standards in Sec.  37.625 and Sec.  37.635 that apply to the participant 
making the contribution. When valuing services and property donated by 
parties other than the participants, you may use as guidance the 
provisions of 32 CFR 34.13(b)(2) through (5).

               Fixed-Support or Expenditure-Based Approach



Sec.  37.560  Must I be able to estimate project expenditures precisely
in order to justify use of a fixed-support TIA?

    (a) To use a fixed-support TIA, rather than an expenditure-based 
TIA, you must have confidence in your estimate of the expenditures 
required to achieve well-defined outcomes. Therefore, you must work 
carefully with program officials to select outcomes that, when the 
recipient achieves them, are reliable indicators of the amount of effort 
the recipient expended. However, your estimate of the required 
expenditures need not be a precise dollar amount, as illustrated by the 
example in paragraph (b) of this section, if:
    (1) The recipient is contributing a substantial share of the costs 
of achieving the outcomes, which must meet the criteria in Sec.  
37.305(a); and
    (2) You are confident that the costs of achieving the outcomes will 
be at least a minimum amount that you can specify and the recipient is 
willing to accept the possibility that its cost sharing percentage 
ultimately will be higher if the costs exceed that minimum amount.
    (b) To illustrate the approach, consider a project for which you are 
confident that the recipient will have to expend at least $800,000 to 
achieve the specified outcomes. You must determine, in conjunction with 
program officials, the minimum level of recipient cost sharing that you 
want to negotiate, based on the circumstances, to demonstrate the 
recipient's commitment to the success of the project. For purposes of 
this illustration, let that minimum recipient cost sharing be 40% of the 
total project costs. In that case, the Federal share should be no more 
than 60% and you could set a fixed level of Federal support at $480,000 
(60% of $800,000). With that fixed level of Federal support, the 
recipient would be responsible for the balance of the costs needed to 
complete the project.
    (c) Note, however, that the level of recipient cost sharing you 
negotiate is to be based solely on the level needed to demonstrate the 
recipient's commitment. You may not use a shortage of Federal Government 
funding for the program as a reason to try to persuade a recipient to 
accept a fixed-support TIA, rather than an expenditure-based instrument, 
or to accept responsibility for a greater share of the total project 
costs than it otherwise is willing to offer. If you lack sufficient 
funding to provide an appropriate Federal Government share for the 
entire project, you instead should rescope the effort covered by the 
agreement to match the available funding.



Sec.  37.565  May I use a hybrid instrument that provides fixed support
for only a portion of a project?

    Yes, for a research project that is to be carried out by a number of 
participants, you may award a TIA that provides for some participants to 
perform under fixed-support arrangements and others to perform under 
expenditure-based arrangements. This approach may be useful, for 
example, if a commercial firm that is a participant will not accept an 
agreement with all of the post-award requirements of an expenditure-
based award. Before using a fixed-support arrangement for that firm's 
portion of the project, you must judge that it meets the criteria in 
Sec.  37.305.

[[Page 102]]

               Accounting, Payments, and Recovery of Funds



Sec.  37.570  What must I do if a CAS-covered participant accounts 
differently for its own and the Federal Government shares of project
costs?

    (a) If a participant has Federal procurement contracts that are 
subject to the Cost Accounting Standards (CAS) in part 30 of the Federal 
Acquisition Regulation (FAR) and the associated FAR Appendix (48 CFR 
part 30 and 48 CFR 9903.201-1, respectively), you must alert the 
participant during the pre-award negotiations to the potential for a CAS 
violation, as well as the cognizant administrative contracting officer 
(ACO) for the participant's procurement contracts, if you learn that the 
participant plans to account differently for its own share and the 
Federal Government's share of project costs under the TIA. This may 
arise, for example, if a for-profit firm or other organization subject 
to the FAR cost principles in 48 CFR parts 31 and 231 proposes to 
charge:
    (1) Its share of project costs as independent research and 
development (IR&D) costs to enable recovery of the costs through Federal 
Government procurement contracts, as allowed under the FAR cost 
principles; and
    (2) The Federal Government's share to the project, rather than as 
IR&D costs.
    (b) The reason for alerting the participant and the ACO is that the 
inconsistent charging of the two shares could cause a noncompliance with 
Cost Accounting Standard (CAS) 402. Noncompliance with CAS 402 is a 
potential issue only for a participant that has CAS-covered Federal 
procurement contracts (note that CAS requirements do not apply to a for-
profit participant's TIAs).
    (c) For for-profit participants with CAS-covered procurement 
contracts, the cognizant ACO in most cases will be an individual within 
the Defense Contract Management Agency (DCMA). You can identify a 
cognizant ACO at the DCMA by querying the contract administration team 
locator that matches contractors with their ACOs (currently on the World 
Wide Web at http://alerts.dcmdw.dcma.mil/support, a site that also can 
be accessed through the DCMA home page at http://www.dcma.mil).



Sec.  37.575  What are my responsibilities for determining milestone
payment amounts?

    (a) If you select the milestone payment method (see Sec.  37.805), 
you must assess the reasonableness of the estimated amount for reaching 
each milestone. This assessment enables you to set the amount of each 
milestone payment to approximate the Federal share of the anticipated 
resource needs for carrying out that phase of the research effort.
    (b) The Federal share at each milestone need not be the same as the 
Federal share of the total project. For example, you might deliberately 
set payment amounts with a larger Federal share for early milestones if 
a project involves a start-up company with limited resources.
    (c) For an expenditure-based TIA, if you have minimum percentages 
that you want the recipient's cost sharing to be at the milestones, you 
should indicate those percentages in the agreement or in separate 
instructions to the post-award administrative agreements officer. That 
will help the administrative agreements officer decide when a project's 
expenditures have fallen too far below the original projections, 
requiring adjustments of future milestone payment amounts (see Sec.  
37.1105(c)).
    (d) For fixed-support TIAs, the milestone payments should be 
associated with the well-defined, observable and verifiable technical 
outcomes (e.g., demonstrations, tests, or data analysis) that you 
establish for the project in accordance with Sec. Sec.  37.305(a) and 
37.560(a).



Sec.  37.580  What is recovery of funds and when should I consider
including it in my TIA?

    (a) Recovery of funds refers to the use of the authority in 10 
U.S.C. 2371 to include a provision in certain types of agreements, 
including TIAs, that require a recipient to make payments to the 
Department of Defense or another Federal agency as a condition of the 
agreement. Recovery of funds is a good

[[Page 103]]

tool in the right circumstances, at the discretion of the agreements 
officer and the awarding organization, but its purpose is not to augment 
program budgets. It may be used to recover funds provided to a recipient 
through a TIA or another Federal procurement or assistance instrument, 
and the recovery should not exceed the amounts provided. Recovery of 
funds is distinct from program income, as described in Sec.  37.835.
    (b) In accordance with 10 U.S.C. 2371, as implemented by policy 
guidance from the Office of the Under Secretary of Defense 
(Comptroller), the payment amounts may be credited to an existing 
account of the Department of Defense and used for the same program 
purposes as other funds in that account.
    (c) Before you use the authority to include a provision for recovery 
of funds, note that 10 U.S.C. 2371 requires you to judge that it would 
not be feasible or appropriate to use for the research project a 
standard grant or cooperative agreement (in this instance, a ``standard 
cooperative agreement'' means a cooperative agreement without a 
provision for recovery of funds). You satisfy that 10 U.S.C. 2371 
requirement when you judge that execution of the research project 
warrants inclusion of a provision for recovery of funds.



 Subpart F_Award Terms Affecting Participants' Financial, Property, and 
                           Purchasing Systems



Sec.  37.600  Which administrative matters are covered in this subpart?

    This subpart addresses ``systemic'' administrative matters that 
place requirements on the operation of a participant's financial 
management, property management, or purchasing system. Each 
participant's systems are organization-wide and do not vary with each 
agreement. Therefore, all TIAs should address systemic requirements in a 
uniform way for each type of participant organization.



Sec.  37.605  What is the general policy on participants' financial,
property, and purchasing systems?

    The general policy for expenditure-based TIAs is to avoid 
requirements that would force participants to use different financial 
management, property management, and purchasing systems than they 
currently use for:
    (a) Expenditure-based Federal procurement contracts and assistance 
awards in general, if they receive them; or
    (b) Commercial business, if they have no expenditure-based Federal 
procurement contracts and assistance awards.



Sec.  37.610  Must I tell participants what requirements they are to
flow down for subrecipients' systems?

    If it is an expenditure-based award, your TIA must require 
participants to flow down the same financial management, property 
management, and purchasing systems requirements to a subrecipient that 
would apply if the subrecipient were a participant. For example, a for-
profit participant would flow down to a university subrecipient the 
requirements that apply to a university participant. Note that this 
policy applies to subawards for substantive performance of portions of 
the research project supported by the TIA, and not to participants' 
purchases of goods or services needed to carry out the research.

                            Financial Matters



Sec.  37.615  What standards do I include for financial systems of 
for-profit firms?

    (a) To avoid causing needless changes in participants' financial 
management systems, your expenditure-based TIAs will make for-profit 
participants that currently perform under other expenditure-based 
Federal procurement contracts or assistance awards subject to the same 
standards for financial management systems that apply to those other 
awards. Therefore, if a for-profit participant has expenditure-based DoD 
assistance awards other than TIAs, your TIAs are to apply the standards 
in 32 CFR 34.11. You may grant an exception and allow a for-profit 
participant that has other expenditure-based Federal Government awards 
to use an alternative set of standards that meets the minimum criteria 
in paragraph (b) of this section, if there is a compelling programmatic 
or business reason to do so. For each case in which you grant an

[[Page 104]]

exception, you must document the reason in the award file.
    (b) For an expenditure-based TIA, you are to allow and encourage 
each for-profit participant that does not currently perform under 
expenditure-based Federal procurement contracts or assistance awards 
(other than TIAs) to use its existing financial management system as 
long as the system, as a minimum:
    (1) Complies with Generally Accepted Accounting Principles.
    (2) Effectively controls all project funds, including Federal funds 
and any required cost share. The system must have complete, accurate, 
and current records that document the sources of funds and the purposes 
for which they are disbursed. It also must have procedures for ensuring 
that project funds are used only for purposes permitted by the agreement 
(see Sec.  37.625).
    (3) Includes, if advance payments are authorized under Sec.  37.805, 
procedures to minimize the time elapsing between the payment of funds by 
the Government and the firm's disbursement of the funds for program 
purposes.



Sec.  37.620  What financial management standards do I include for 
participants that are nonprofit?

    So as not to force system changes for any State, local government, 
institution of higher education, or other nonprofit organization, your 
expenditure-based TIA's requirements for the financial management system 
of any nonprofit participant are the same as those that apply to the 
participant's other Federal assistance awards.

[85 FR 51245, Aug. 19, 2020]



Sec.  37.625  What cost principles or standards do I require for 
for-profit participants?

    (a) So as not to require any firm to needlessly change its cost-
accounting system, your expenditure-based TIAs are to apply the 
Government cost principles in 48 CFR parts 31 and 231 to for-profit 
participants that currently perform under expenditure-based Federal 
procurement contracts or assistance awards (other than TIAs) and 
therefore have existing systems for identifying allowable costs under 
those principles. If there are programmatic or business reasons to do 
otherwise, you may grant an exception from this requirement and use 
alternative standards as long as the alternative satisfies the 
conditions described in paragraph (b) of this section; if you do so, you 
must document the reasons in your award file.
    (b) For other for-profit participants, you may establish alternative 
standards in the agreement as long as that alternative provides, as a 
minimum, that Federal funds and funds counted as recipients' cost 
sharing will be used only for costs that:
    (1) A reasonable and prudent person would incur in carrying out the 
research project contemplated by the agreement. Generally, elements of 
cost that appropriately are charged are those identified with research 
and development activities under the Generally Accepted Accounting 
Principles (see Statement of Financial Accounting Standards Number 2, 
``Accounting for Research and Development Costs,'' October 1974 \1\). 
Moreover, costs must be allocated to DoD and other projects in 
accordance with the relative benefits the projects receive. Costs 
charged to DoD projects must be given consistent treatment with costs 
allocated to the participants' other research and development activities 
(e.g., activities supported by the participants themselves or by non-
Federal sponsors).
---------------------------------------------------------------------------

    \1\ Copies may be obtained from the Financial Accounting Standards 
Board (FASB), 401 Merritt 7, P.O. Box 5116, Norwalk, CT 06856-5116. 
Information about ordering also may be found at the Internet site http:/
/www.fasb.org or by telephoning the FASB at (800) 748-0659.
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    (2) Are consistent with the purposes stated in the governing 
Congressional authorizations and appropriations. You are responsible for 
ensuring that provisions in the award document address any requirements 
that result from authorizations and appropriations.



Sec.  37.630  Must I require a for-profit firm to use Federally 
approved indirect cost rates?

    In accordance with the general policy in Sec.  37.605, you must 
require a for-profit participant that has Federally approved indirect 
cost rates for its Federal procurement contracts to use those rates to 
accumulate and report costs under an expenditure-based TIA.

[[Page 105]]

This includes both provisional and final rates that are approved up 
until the time that the TIA is closed out. You may grant an exception 
from this requirement if there are programmatic or business reasons to 
do otherwise (e.g., the participant offers you a lower rate). If you 
grant an exception, the participant must accumulate and report the costs 
using an accounting system and practices that it uses for other 
customers (e.g., its commercial customers). Also, you must document the 
reason for the exception in your award file.



Sec.  37.635  What cost principles do I require a nonprofit participant
to use?

    So as not to force financial system changes for any nonprofit 
participant, your expenditure-based TIA will provide that costs to be 
charged to the research project by any nonprofit participant must be 
determined to be allowable in accordance with:
    (a) Subpart E of OMB guidance in 2 CFR part 200, if the participant 
is a State, local government, Indian tribe, institution of higher 
education, or nonprofit organization. In conformance with 2 CFR 
200.401(c) of that OMB guidance, a nonprofit organization listed in 
appendix VIII to 2 CFR part 200 is subject to the cost principles in the 
Federal Acquisition Regulation (48 CFR subpart 31.2) and Defense Federal 
Acquisition Regulation Supplement (48 CFR subpart 231.2).
    (b) The cost principles identified in appendix IX to the OMB 
guidance in 2 CFR part 200 (see 45 CFR part 75), if the participant is a 
hospital.

[85 FR 51245, Aug. 19, 2020]



Sec.  37.640  Must I include a provision for audits of for-profit
participants?

    If your TIA is an expenditure-based award, you must include in it an 
audit provision that addresses, for each for-profit participant:
    (a) Whether the for-profit participant must have periodic audits, in 
addition to any award-specific audits, as described in Sec.  37.645. 
Note that the DCAA or the Office of the Inspector General, DoD (OIG, 
DoD), can provide advice on the types and scope of audits that may be 
needed in various circumstances.
    (b) Whether the DCAA or an independent public accountant (IPA) will 
perform required audits, as discussed in Sec.  37.650.
    (c) How frequently any periodic audits are to be performed, 
addressed in Sec.  37.655.
    (d) Other matters described in Sec.  37.660, such as audit coverage, 
allowability of audit costs, auditing standards, and remedies for 
noncompliance.



Sec.  37.645  Must I require periodic audits, as well as award-specific
audits, of for-profit participants?

    You need to consider requirements for both periodic audits and 
award-specific audits (as defined in Sec.  37.1325 and Sec.  37.1235, 
respectively). The way that your expenditure-based TIA addresses the two 
types of audits will vary, depending upon the type of for-profit 
participant.
    (a) For for-profit participants that are audited by the DCAA or 
other Federal auditors, as described in Sec. Sec.  37.650(b) and 37.655, 
you need not add specific requirements for periodic audits because the 
Federal audits should be sufficient to address whatever may be needed. 
Your inclusion in the TIA of the standard access-to-records provision 
for those for-profit participants, as discussed in Sec.  37.915(a), 
gives the necessary access in the event that you or administrative 
agreements officers later need to request audits to address award-
specific issues that arise.
    (b) For each other for-profit participant, you:
    (1) Should require that the participant have an independent auditor 
(i.e., the DCAA or an independent public accountant) conduct periodic 
audits of its systems if it expends $750,000 or more per year in TIAs 
and other Federal assistance awards. A prime reason for including this 
requirement is that the Federal Government, for an expenditure-based 
award, necessarily relies on amounts reported by the participant's 
systems when it sets payment amounts or adjusts performance outcomes. 
The periodic audit provides some assurance that the reported amounts are 
reliable.
    (2) Must ensure that the award provides an independent auditor the 
access needed for award-specific audits, to be

[[Page 106]]

performed at the request of the cognizant administrative agreements 
officer if issues arise that require audit support. However, consistent 
with the government-wide policies on single audits that apply to 
nonprofit participants (see Sec.  37.665), you should rely on periodic 
audits to the maximum extent possible to resolve any award-specific 
issues.

[68 FR 47160, Aug. 7, 2003, as amended at 85 FR 51246, Aug. 19, 2020]



Sec.  37.650  Who must I identify as the auditor for a for-profit
participant?

    The auditor that you will identify in the expenditure-based TIA to 
perform periodic and award-specific audits of a for-profit participant 
depends on the circumstances, as follows:
    (a) You may provide that an IPA will be the auditor for a for-profit 
participant that does not meet the criteria in paragraph (b) of this 
section, but only if the participant will not agree to give the DCAA 
access to the necessary books and records for audit purposes. Note that 
the allocable portion of the costs of the IPA's audit may be 
reimbursable under the TIA, as described in Sec.  37.660(b). The IPA 
should be the one that the participant uses to perform other audits 
(e.g., of its financial statement), to minimize added burdens and costs. 
You must document in the award file the participant's unwillingness to 
give the DCAA access. The DCAA is to be the auditor if the participant 
grants the necessary access.
    (b) Except as provided in paragraph (c) of this section, you must 
identify the DCAA as the auditor for any for-profit participant that is 
subject to DCAA audits because it is currently performing under a 
Federal award that is subject to the:
    (1) Cost principles in 48 CFR part 31 of the Federal Acquisition 
Regulation (FAR) and 48 CFR part 231 of the Defense FAR Supplement; or
    (2) Cost Accounting Standards in 48 CFR chapter 99.
    (c) If there are programmatic or business reasons that justify the 
use of an auditor other than the DCAA for a for-profit participant that 
meets the criteria in paragraph (b) of this section, you may provide 
that an IPA will be the auditor for that participant if you obtain prior 
approval from the Office of the Inspector General, DoD. You must submit 
requests for prior approval to the Assistant Inspector General 
(Auditing), 4800 Mark Center Drive, Alexandria, VA 22350-1500. Your 
request must include the name and address of the business unit(s) for 
which IPAs will be used. It also must explain why you judge that the 
participant will not give the DCAA the necessary access to records for 
audit purposes (e.g., you may submit a statement to that effect from the 
participant). The OIG, DoD, will respond within five working days of 
receiving the request for prior approval, either by notifying you of the 
decision (approval or disapproval) or giving you a date by which they 
will notify you of the decision.

[68 FR 47160, Aug. 7, 2003, as amended at 85 FR 51246, Aug. 19, 2020]



Sec.  37.655  Must I specify the frequency of IPAs' periodic audits
of for-profit participants?

    If your expenditure-based TIA provides for periodic audits of a for-
profit participant by an IPA, you must specify the frequency for those 
audits. You should consider having an audit performed during the first 
year of the award, when the participant has its IPA do its next 
financial statement audit, unless the participant already had a systems 
audit due to other Federal awards within the past two years. The 
frequency thereafter may vary depending upon the dollars the participant 
is expending annually under the award, but it is not unreasonable to 
require an updated audit every two to three years to reverify that the 
participant's systems are reliable (the audit then would cover the two 
or three-year period between audits). The DCAA is a source of advice on 
audit frequencies if your TIA provides for audits by IPAs.



Sec.  37.660  What else must I specify concerning audits of for-profit
participants by IPAs?

    If your expenditure-based TIA provides for audits of a for-profit 
participant by an IPA, you also must specify:
    (a) What periodic audits are to cover. It is important that you 
specify audit coverage that is only as broad as needed to provide 
reasonable assurance of

[[Page 107]]

the participant's compliance with award terms that have a direct and 
material effect on the research project. Appendix C to this part 
provides guidance to for-profit participants and their IPAs that you may 
use for this purpose. The DCAA and the OIG, DoD, also can provide advice 
to help you set appropriate limits on audit objectives and scope.
    (b) Who will pay for periodic and award-specific audits. The 
allocable portion of the costs of any audits by IPAs may be reimbursable 
under the TIA. The costs may be direct charges or allocated indirect 
costs, consistent with the participant's accounting system and 
practices.
    (c) The auditing standards that the IPA will use. Unless you receive 
prior approval from the OIG, DoD, to do otherwise, you must provide that 
the IPA will perform the audits in accordance with the Generally 
Accepted Government Auditing Standards. \2\
---------------------------------------------------------------------------

    \2\ The electronic document may be accessed at www.gao.gov. Printed 
copies may be purchased from the U.S. Government Printing Office; for 
ordering information, call (202) 512-1800 or access the Internet site at 
www.gpo.gov.
---------------------------------------------------------------------------

    (d) The available remedies for noncompliance. The agreement must 
provide that the participant may not charge costs to the award for any 
audit that the agreements officer, with the advice of the OIG, DoD, 
determines was not performed in accordance with the Generally Accepted 
Government Auditing Standards or other terms of the agreement. It also 
must provide that the Government has the right to require the 
participant to have the IPA take corrective action and, if corrective 
action is not taken, that the agreements officer has recourse to any of 
the remedies for noncompliance identified in 32 CFR 34.52(a).
    (e) The remedy if it later is found that the participant, at the 
time it entered into the TIA, was performing on a procurement contract 
or other Federal award subject to the Cost Accounting Standards at 48 
CFR part 30 and the cost principles at 48 CFR part 31. Unless the OIG, 
DoD, approves an exception (see Sec.  37.650(c)), the TIA's terms must 
provide that the DCAA will perform the audits for the agreement if it 
later is found that the participant, at the time the TIA was awarded, 
was performing under awards described in Sec.  37.650(b) that gave the 
DCAA audit access to the participant's books and records.
    (f) Where the IPA is to send audit reports. The agreement must 
provide that the IPA is to submit audit reports to the administrative 
agreements officer and the OIG, DoD. It also must require that the IPA 
report instances of fraud directly to the OIG, DoD.
    (g) The retention period for the IPA's working papers. You must 
specify that the IPA is to retain working papers for a period of at 
least three years after the final payment, unless the working papers 
relate to an audit whose findings are not fully resolved within that 
period or to an unresolved claim or dispute (in which case, the IPA must 
keep the working papers until the matter is resolved and final action 
taken).
    (h) Who will have access to the IPA's working papers. The agreement 
must provide for Government access to working papers.

[68 FR 47160, Aug. 7, 2003, as amended at 85 FR 51246, Aug. 19, 2020]



Sec.  37.665  Must I require nonprofit participants to have periodic
audits?

    Yes, expenditure-based TIAs are assistance instruments subject to 
the Single Audit Act (31 U.S.C. 7501-7507), so nonprofit participants 
are subject to their usual requirements under that Act, as implemented 
by subpart F of 2 CFR part 200. Specifically, the requirements are the 
same as those in subpart E of 2 CFR part 1128 for grants and cooperative 
agreements to institutions of higher education, nonprofit organizations, 
States, local governments, and Indian tribes. Note that those 
requirements also apply to Federally Funded Research and Development 
Centers (FFRDCs) and other Government-owned, Contractor-Operated (GOCO) 
facilities administered by nonprofit organizations, because nonprofit 
FFRDCs and GOCOs are subject to the Single Audit Act.

[85 FR 51246, Aug. 19, 2020]

[[Page 108]]



Sec.  37.670  Must I require participants to flow down audit
requirements to subrecipients?

    (a) Yes, in accordance with Sec.  37.610, your expenditure-based TIA 
must require participants to flow down the same audit requirements to a 
subrecipient that would apply if the subrecipient were a participant.
    (b) For example, a for-profit participant that is audited by the 
DCAA:
    (1) Would flow down to a university subrecipient the Single Audit 
Act requirements that apply to a university participant.
    (2) Could enter into a subaward allowing a for-profit participant, 
under the circumstances described in Sec.  37.650(a), to use an IPA to 
do its audits.
    (c) This policy applies to subawards for substantive performance of 
portions of the research project supported by the TIA, and not to 
participants' purchases of goods or services needed to carry out the 
research.

                                Property



Sec.  37.685  May I allow for-profit firms to purchase real property
and equipment with project funds?

    (a) With the two exceptions described in paragraph (b) of this 
section, you must require a for-profit firm to purchase real property or 
equipment with its own funds that are separate from the research 
project. You should allow the firm to charge to an expenditure-based TIA 
only depreciation or use charges for real property or equipment (and 
your cost estimate for a fixed-support TIA only would include those 
costs). Note that the firm must charge depreciation consistently with 
its usual accounting practice. Many firms treat depreciation as an 
indirect cost. Any firm that usually charges depreciation indirectly for 
a particular type of property must not charge depreciation for that 
property as a direct cost to the TIA.
    (b) In two situations, you may grant an exception and allow a for-
profit firm to use project funds, which includes both the Federal 
Government and recipient shares, to purchase real property or equipment 
(i.e., to charge to the project the full acquisition cost of the 
property). The two circumstances, which should be infrequent for 
equipment and extremely rare for real property, are those in which you 
either:
    (1) Judge that the real property or equipment will be dedicated to 
the project and have a current fair market value that is less than 
$5,000 by the time the project ends; or
    (2) Give prior approval for the firm to include the full acquisition 
cost of the real property or equipment as part of the cost of the 
project (see Sec.  37.535).
    (c) If you grant an exception in either of the circumstances 
described in paragraphs (b)(1) and (2) of this section, you must make 
the real property or equipment subject to the property management 
standards in 32 CFR 34.21(b) through (d). As provided in those 
standards, the title to the real property or equipment will vest 
conditionally in the for-profit firm upon acquisition. Your TIA, whether 
it is a fixed-support or expenditure-based award, must specify that any 
item of equipment that has a fair market value of $5,000 or more at the 
conclusion of the project also will be subject to the disposition 
process in 32 CFR 34.21(e), whereby the Federal Government will recover 
its interest in the property at that time.



Sec.  37.690  How are nonprofit participants to manage real property
and equipment?

    For nonprofit participants, your TIA's requirements for vesting of 
title, use, management, and disposition of real property or equipment 
acquired under the award are the same as those that apply to the 
participant's other Federal assistance awards.

[85 FR 51246, Aug. 19, 2020]



Sec.  37.695  What are the requirements for Federally owned property?

    If you provide Federally owned property to any participant for the 
performance of research under a TIA, you must require that participant 
to account for, use, and dispose of the property in accordance with:
    (a) 32 CFR 34.22, if the participant is a for-profit firm.
    (b) The requirements that apply to the participant's other Federal 
awards, if it is an entity other than a for-profit

[[Page 109]]

firm. If the other Federal awards of a participant that is a GOCO or 
FFRDC administered by a nonprofit organization are procurement 
contracts, it is appropriate for you to specify the same property 
standards that apply to those Federal procurement contracts.

[68 FR 47160, Aug. 7, 2003, as amended at 85 FR 51246, Aug. 19, 2020]



Sec.  37.700  What are the requirements for supplies?

    Your expenditure-based TIA's provisions should permit participants 
to use their existing procedures to account for and manage supplies. A 
fixed-support TIA should not include requirements to account for or 
manage supplies.

                               Purchasing



Sec.  37.705  What standards do I include for purchasing systems of
for-profit firms?

    (a) If your TIA is an expenditure-based award, it should require 
for-profit participants that currently perform under DoD assistance 
instruments subject to the purchasing standards in 32 CFR 34.31 to use 
the same requirements for TIAs, unless there are programmatic or 
business reasons to do otherwise (in which case you must document the 
reasons in the award file).
    (b) You should allow other for-profit participants under 
expenditure-based TIAs to use their existing purchasing systems, as long 
as they flow down the applicable requirements in Federal statutes, 
Executive orders or Governmentwide regulations (see appendix E to this 
part for a list of those requirements).
    (c) If your TIA is a fixed-support award, you need only require for-
profit participants to flow down the requirements listed in appendix F 
to this part.



Sec.  37.710  What standards do I include for purchasing systems of
nonprofit organizations?

    (a) So as not to force system changes for any nonprofit participant, 
your expenditure-based TIA will provide that each nonprofit 
participant's purchasing system comply with standards that conform as 
much as practicable with requirements that apply to the participant's 
other Federal awards.
    (b) If your TIA is a fixed-support award, you need only require 
nonprofit participants to flow down the requirements listed in appendix 
E to this part.

[68 FR 47160, Aug. 7, 2003, as amended at 85 FR 51246, Aug. 19, 2020]



      Subpart G_Award Terms Related to Other Administrative Matters



Sec.  37.800  Which administrative matters are covered in this subpart?

    This subpart addresses ``non-systemic'' administrative matters that 
do not impose organization-wide requirements on a participant's 
financial management, property management, or purchasing system. Because 
an organization does not have to redesign its systems to accommodate 
award-to-award variations in these requirements, a TIA that you award 
may differ from other TIAs in the non-systemic requirements that it 
specifies for a given participant, based on the circumstances of the 
particular research project. To eliminate needless administrative 
complexity, you should handle some non-systemic requirements, such as 
the payment method, in a uniform way for the agreement as a whole.

                                Payments



Sec.  37.805  If I am awarding a TIA, what payment methods may 
I specify?

    Your TIA may provide for:
    (a) Reimbursement, as described in 32 CFR 34.12(a)(1), if it is an 
expenditure-based award.
    (b) Advance payments, as described in 32 CFR 34.12(a)(2), subject to 
the conditions in 32 CFR 34.12(b)(2)(i) through (iii).
    (c) Payments based on payable milestones. These are payments made 
according to a schedule that is based on predetermined measures of 
technical progress or other payable milestones. This approach relies 
upon the fact that, as research progresses throughout the term of the 
agreement, observable activity will be taking place. The recipient is 
paid upon the accomplishment of the predetermined measure of progress. 
Fixed-support TIAs must use

[[Page 110]]

this payment method and each measure of progress appropriately would be 
one of the well-defined outcomes that you identify in the agreement 
(this does not preclude use of an initial advance payment, if there is 
no alternative to meeting immediate cash needs). There are cash 
management considerations when this payment method is used as a means of 
financing for an expenditure-based TIA (see Sec.  37.575 and Sec.  
37.1105).



Sec.  37.810  What should my TIA's provisions specify for the method
and frequency of recipients' payment requests?

    The procedure and frequency for payment requests depend upon the 
payment method, as follows:
    (a) For either reimbursements or advance payments, your TIA must 
allow recipients to submit requests for payment at least monthly. You 
may authorize the recipients to use the forms or formats described in 32 
CFR 34.12(d).
    (b) If the payments are based on payable milestones, the recipient 
will submit a report or other evidence of accomplishment to the program 
official at the completion of each predetermined activity. The agreement 
administrator may approve payment to the recipient after receiving 
validation from the program manager that the milestone was successfully 
reached.



Sec.  37.815  May the Government withhold payments?

    Your TIA must provide that the administrative agreements officer may 
withhold payments in the circumstances described in 32 CFR 34.12(g), but 
not otherwise.



Sec.  37.820  Must I require a recipient to return interest on advance
payments?

    If your expenditure-based TIA provides for either advance payments 
or payable milestones, the agreement must require the recipient to:
    (a) Maintain in an interest-bearing account any advance payments or 
milestone payment amounts received in advance of needs to disburse the 
funds for program purposes unless:
    (1) The recipient receives less than $120,000 in Federal grants, 
cooperative agreements, and TIAs per year;
    (2) The best reasonably available interest-bearing account would not 
be expected to earn interest in excess of $1,000 per year on the advance 
or milestone payments; or
    (3) The depository would require an average or minimum balance so 
high that it would not be feasible within the expected Federal and non-
Federal cash resources for the project.
    (b) Remit annually the interest earned to the administrative 
agreements officer.

                  Revision of Budget and Program Plans



Sec.  37.825  Must I require the recipient to obtain prior approval from
the Government for changes in plans?

    If it is an expenditure-based award, your agreement must require the 
recipient to obtain the agreement administrator's prior approval if 
there is to be a change in plans that results in a need for additional 
Federal funding (this is unnecessary for a fixed-support TIA because the 
recipient is responsible for additional costs of achieving the 
outcomes). Other than that, the program official's substantial 
involvement in the project should ensure that the Government has advance 
notice of changes in plans.



Sec.  37.830  May I let a recipient charge pre-award costs to the
agreement?

    Pre-award costs, as long as they are otherwise allowable costs of 
the project, may be charged to an expenditure-based TIA only with the 
specific approval of the agreements officer. All pre-award costs are 
incurred at the recipient's risk (i.e., no DoD Component is obligated to 
reimburse the costs if for any reason the recipient does not receive an 
award or if the award is less than anticipated and inadequate to cover 
the costs).

                             Program Income



Sec.  37.835  What requirements do I include for program income?

    Your TIA should apply the standards of 32 CFR 34.14 for program 
income that may be generated. Note the need to specify whether the 
recipient is to have any obligation to the Federal Government with 
respect to program

[[Page 111]]

income generated after the end of the project period (the period, as 
established in the award document, during which Federal support is 
provided). Doing so is especially important if the TIA includes a 
provision for the recipient to return any amounts to the Federal 
Government (see Sec.  37.580).

                          Intellectual Property



Sec.  37.840  What general approach should I take in negotiating data
and patent rights?

    (a) You should confer with program officials and legal counsel to 
develop an overall strategy for intellectual property that takes into 
account inventions and data that may result from the project and future 
needs the Government may have for rights in them. The strategy should 
take into account any intellectual property the Government is furnishing 
and any pre-existing proprietary information that the recipient is 
furnishing, as well as data and inventions that may be generated under 
the award (recognizing that new data and inventions may be less valuable 
without pre-existing information). All pre-existing intellectual 
property, both the Government's and the recipient's, should be marked to 
give notice of its status.
    (b) Because TIAs entail substantial cost sharing by recipients, you 
must use discretion in negotiating Government rights to data and 
patentable inventions resulting from research under the agreements. The 
considerations in Sec. Sec.  37.845 through 37.875 are intended to serve 
as guidelines, within which you necessarily have considerable latitude 
to negotiate provisions appropriate to a wide variety of circumstances 
that may arise. Your goal should be a good balance between DoD interests 
in:
    (1) Gaining access to the best technologies for defense needs, 
including technologies available in the commercial marketplace, and 
promoting commercialization of technologies resulting from the research. 
Either of these interests may be impeded if you negotiate excessive 
rights for the Government. One objective of TIAs is to help incorporate 
defense requirements into the development of what ultimately will be 
commercially available technologies, an objective that is best served by 
reducing barriers to commercial firms' participation in the research. In 
that way, the commercial technology and industrial base can be a source 
of readily available, reliable, and affordable components, subsystems, 
computer software, and other technological products and manufacturing 
processes for military systems.
    (2) Providing adequate protection of the Government's investment, 
which may be weakened if the Government's rights are inadequate. You 
should consider whether the Government may require access to data or 
inventions for Governmental purposes, such as a need to develop defense-
unique products or processes that the commercial marketplace likely will 
not address.



Sec.  37.845  What data rights should I obtain?

    (a) You should seek to obtain what you, with the advice of legal 
counsel, judge is needed to ensure future Government use of technology 
that emerges from the research, as long as doing so is consistent with 
the balance between DoD interests described in Sec.  37.840(b). You 
should consider data in which you wish to obtain license rights and data 
that you may wish to be delivered; since TIAs are assistance instruments 
rather than acquisition instruments, however, it is not expected that 
data would be delivered in most cases. What generally is needed is an 
irrevocable, world-wide license for the Government to use, modify, 
reproduce, release, or disclose for Governmental purposes the data that 
are generated under TIAs (including any data, such as computer software, 
in which a recipient may obtain a copyright). A Governmental purpose is 
any activity in which the United States Government participates, but a 
license for Governmental purposes does not include the right to use, or 
have or permit others to use, modify, reproduce, release, or disclose 
data for commercial purposes.
    (b) You may negotiate licenses of different scope than described in 
paragraph (a) of this section when necessary to accomplish program 
objectives or to protect the Government's interests. Consult with legal 
counsel

[[Page 112]]

before negotiating a license of different scope.
    (c) In negotiating data rights, you should consider the rights in 
background data that are necessary to fully utilize technology that is 
expected to result from the TIA, in the event the recipient does not 
commercialize the technology or chooses to protect any invention as a 
trade secret rather than by a patent. If a recipient intends to protect 
any invention as a trade secret, you should consult with your 
intellectual property counsel before deciding what information related 
to the invention the award should require the recipient to report.



Sec.  37.850  Should I require recipients to mark data?

    To protect the recipient's interests in data, your TIA should 
require the recipient to mark any particular data that it wishes to 
protect from disclosure with a legend identifying the data as licensed 
data subject to use, release, or disclosure restrictions.



Sec.  37.855  How should I handle protected data?

    Prior to releasing or disclosing data marked with a restrictive 
legend (as described in Sec.  37.850) to third parties, you should 
require those parties to agree in writing that they will:
    (a) Use the data only for governmental purposes; and
    (b) Not release or disclose the data without the permission of the 
licensor (i.e., the recipient).



Sec.  37.860  What rights should I obtain for inventions?

    (a) You should negotiate rights in inventions that represent a good 
balance between the Government's interests (see Sec.  37.840(b)) and the 
recipient's interests. As explained in appendix B to this part:
    (1) You have the flexibility to negotiate patent rights provisions 
that vary from what the Bayh-Dole statute (Chapter 18 of Title 35, 
U.S.C.) requires in many situations. You have that flexibility because 
TIAs include not only cooperative agreements, but also assistance 
transactions other than grants or cooperative agreements.
    (2) Your TIA becomes an assistance instrument other than a grant or 
cooperative agreement if its patent rights provision varies from what 
Bayh-Dole requires in your situation. However, you need not consider 
that difference in the type of transaction until the agreement is 
finalized, and it should not affect the provision you negotiate.
    (b) As long as it is consistent with the balance between DoD 
interests described in Sec.  37.840(b) and the recipient's interests, 
you should seek to obtain for the Government, when an invention is 
conceived or first actually reduced to practice under a TIA, a 
nonexclusive, nontransferrable, irrevocable, paid-up license to practice 
the invention, or to have it practiced, for or on behalf of the United 
States throughout the world. The license is for Governmental purposes, 
and does not include the right to practice the invention for commercial 
purposes.
    (c) To provide for the license described in paragraph (b) of this 
section, your TIA generally would include the patent-rights clause that 
37 CFR 401.14 specifies to implement the Bayh-Dole statute's 
requirements. Note that:
    (1) The clause is designed specifically for grants, contracts, and 
cooperative agreements awarded to small businesses and nonprofit 
organizations, the types of funding instruments and recipients to which 
the entire Bayh-Dole statute applies. As explained in appendix B to this 
part, only two Bayh-Dole requirements (in 35 U.S.C. sections 202(c)(4) 
and 203) apply to cooperative agreements with other performers, by 
virtue of an amendment to Bayh-Dole at 35 U.S.C. 210(c).
    (2) You may use the same clause, suitably modified, in cooperative 
agreements with performers other than small businesses and nonprofit 
organizations. Doing so is consistent with a 1983 Presidential 
memorandum that calls for giving other performers rights in inventions 
from Federally supported research that are at least as great as the 
rights that Bayh-Dole gives to small businesses and nonprofit 
organizations (see appendix B to this part for details). That 
Presidential memorandum is incorporated by reference in Executive Order 
12591 (52 FR 13414, 3 CFR, 1987 Comp., p. 220), as amended by

[[Page 113]]

Executive Order 12618 (52 FR 48661, 3 CFR, 1987 Comp., p. 262).
    (3) The clause provides for flow-down of Bayh-Dole patent-rights 
provisions to subawards with small businesses and nonprofit 
organizations.
    (4) There are provisions in 37 CFR part 401 stating when you must 
include the clause (37 CFR 401.3) and, in cases when it is required, how 
you may modify and tailor it (37 CFR 401.5).
    (d) You may negotiate Government rights of a different scope than 
the standard patent-rights provision described in paragraph (c) of this 
section when necessary to accomplish program objectives and foster the 
Government's interests. If you do so:
    (1) With the help of the program manager and legal counsel, you must 
decide what best represents a reasonable arrangement considering the 
circumstances, including past investments, contributions under the 
current TIA, and potential commercial markets. Taking past investments 
as an example, you should consider whether the Government or the 
recipient has contributed more substantially to the prior research and 
development that provides the foundation for the planned effort. If the 
predominant past contributor to the particular technology has been:
    (i) The Government, then the TIA's patent-rights provision should be 
at or close to the standard Bayh-Dole provision.
    (ii) The recipient, then a less restrictive patent provision may be 
appropriate, to allow the recipient to benefit more directly from its 
investments.
    (2) You should keep in mind that obtaining a nonexclusive license at 
the time of award, as described in paragraph (b) of this section, is 
valuable if the Government later requires access to inventions to enable 
development of defense-unique products or processes that the commercial 
marketplace is not addressing. If you do not obtain a license at the 
time of award, you should consider alternative approaches to ensure 
access, such as negotiating a priced option for obtaining nonexclusive 
licenses in the future to inventions that are conceived or reduced to 
practice under the TIA.
    (3) You also may consider whether you want to provide additional 
flexibility by giving the recipient more time than the standard patent-
rights provision does to:
    (i) Notify the Government of an invention, from the time the 
inventor discloses it within the for-profit firm.
    (ii) Inform the Government whether it intends to take title to the 
invention.
    (iii) Commercialize the invention, before the Government license 
rights in the invention become effective.



Sec.  37.865  Should my patent provision include march-in rights?

    Your TIA's patent rights provision should include the Bayh-Dole 
march-in rights clause at paragraph (j)(1) of 37 CFR 401.14, or an 
equivalent clause, concerning actions that the Government may take to 
obtain the right to use subject inventions, if the recipient fails to 
take effective steps to achieve practical application of the subject 
inventions within a reasonable time. The march-in provision may be 
modified to best meet the needs of the program. However, only 
infrequently should the march-in provision be entirely removed (e.g., 
you may wish to do so if a recipient is providing most of the funding 
for a research project, with the Government providing a much smaller 
share).



Sec.  37.870  Should I require recipients to mark documents related
to inventions?

    To protect the recipient's interest in inventions, your TIA should 
require the recipient to mark documents disclosing inventions it desires 
to protect by obtaining a patent. The recipient should mark the 
documents with a legend identifying them as intellectual property 
subject to public release or public disclosure restrictions, as provided 
in 35 U.S.C. 205.



Sec.  37.875  Should my TIA include a provision concerning foreign access
to technology?

    (a) Consistent with the objective of enhancing the national security 
by increasing DoD reliance on the U.S. commercial technology and 
industrial bases, you must include a provision in

[[Page 114]]

the TIA that addresses foreign access to technology developed under the 
TIA.
    (b) The provision must provide, as a minimum, that any transfer of 
the:
    (1) Technology must be consistent with the U.S. export laws, 
regulations and policies (e.g., the International Traffic in Arms 
Regulation at chapter I, subchapter M, title 22 of the CFR (22 CFR parts 
120 through 130), the DoD Industrial Security Regulation in DoD 5220.22-
R, \3\ and the Department of Commerce Export Regulation at chapter VII, 
subchapter C, title 15 of the CFR (15 CFR parts 730 through 774), as 
applicable.
---------------------------------------------------------------------------

    \3\ Electronic copies may be obtained at the Washington Headquarters 
Services Internet site http://www.dtic.mil/whs/directives. Paper copies 
may be obtained, at cost, from the National Technical Information 
Service, 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------

    (2) Exclusive right to use or sell the technology in the United 
States must, unless the Government grants a waiver, require that 
products embodying the technology or produced through the use of the 
technology will be manufactured substantially in the United States. The 
provision may further provide that:
    (i) In individual cases, the Government may waive the requirement of 
substantial manufacture in the United States upon a showing by the 
recipient that reasonable but unsuccessful efforts have been made to 
transfer the technology under similar terms to those likely to 
manufacture substantially in the United States or that under the 
circumstances domestic manufacture is not commercially feasible.
    (ii) In those cases, the DoD Component may require a refund to the 
Government of some or all the funds paid under the TIA for the 
development of the transferred technology.
    (c) You may, but are not required to, seek to negotiate a domestic 
manufacture condition for transfers of nonexclusive rights to use or 
sell the technology in the United States, to parallel the one described 
for exclusive licenses in paragraph (b)(2) of this section, if you judge 
that nonexclusive licenses for foreign manufacture could effectively 
preclude the establishment of domestic sources of the technology for 
defense purposes.

[68 FR 47160, Aug. 7, 2003, as amended at 85 FR 51246, Aug. 19, 2020]

                  Financial and Programmatic Reporting



Sec.  37.880  What requirements must I include for periodic reports
on program and business status?

    Your TIA must include requirements that, as a minimum, include 
periodic reports addressing program and, if it is an expenditure-based 
award, business status. You must require submission of the reports at 
least annually, and you may require submission as frequently as 
quarterly (this does not preclude a recipient from electing to submit 
more frequently than quarterly the financial information that is 
required to process payment requests if the award is an expenditure-
based TIA that uses reimbursement or advance payments under Sec.  
37.810(a)). The requirements for the content of the reports are as 
follows:
    (a) The program portions of the reports must address progress toward 
achieving program performance goals, including current issues, problems, 
or developments.
    (b) The business portions of the reports, applicable only to 
expenditure-based awards, must provide summarized details on the status 
of resources (federal funds and non-federal cost sharing), including an 
accounting of expenditures for the period covered by the report. The 
report should compare the resource status with any payment and 
expenditure schedules or plans provided in the original award; explain 
any major deviations from those schedules; and discuss actions that will 
be taken to address the deviations. You may require a recipient to 
separately identify in these reports the expenditures for each 
participant in a consortium and for each programmatic milestone or task, 
if you, after consulting with the program official, judge that those 
additional details are needed for good stewardship.

[85 FR 51246, Aug. 19, 2020]

[[Page 115]]



Sec.  37.885  May I require updated program plans?

    In addition to reports on progress to date, your TIA may include a 
provision requiring the recipient to annually prepare updated technical 
plans for the future conduct of the research effort. If your TIA does 
include a requirement for annual program plans, you also must require 
the recipient to submit the annual program plans to the agreements 
officer responsible for administering the TIA.



Sec.  37.890  Must I require a final performance report?

    You need not require a final performance report that addresses all 
major accomplishments under the TIA. If you do not do so, however, there 
must be an alternative that satisfies the requirement in DoD Instruction 
3200.14 \4\ to document all DoD Science and Technology efforts and 
disseminate the results through the Defense Technical Information Center 
(DTIC). An example of an alternative would be periodic reports 
throughout the performance of the research that collectively cover the 
entire project.
---------------------------------------------------------------------------

    \4\ See footnote 3 to Sec.  37.875(b)(1).

[68 FR 47160, Aug. 7, 2003, as amended at 85 FR 51246, Aug. 19, 2020]



Sec.  37.895  How is the final performance report to be sent to the
Defense Technical Information Center?

    (a) Whether your TIA requires a final performance report or uses an 
alternative means under Sec.  37.890, \5\ you may include an award term 
or condition or otherwise instruct the recipient to submit the 
documentation, electronically if available, either:
---------------------------------------------------------------------------

    \5\ Additional information on electronic submission to the DTIC can 
be found online, currently at http://www.dtic.mil/dtic/ submitting/
elec_subm.html.
---------------------------------------------------------------------------

    (1) Directly to the DTIC; or
    (2) To the office that is administering the award (for subsequent 
transmission to the DTIC).
    (b) If you specify that the recipient is to submit the report 
directly to the DTIC, you also:
    (1) Must instruct the recipient to include a fully completed 
Standard Form 298, ``Report Documentation Page,'' with each document, so 
that the DTIC can recognize the document as being related to the 
particular award and properly record its receipt; and
    (2) Should advise the recipient to provide a copy of the completed 
Standard Form 298 to the agreements officer responsible for 
administering the TIA.

[68 FR 47160, Aug. 7, 2003, as amended at 85 FR 51246, Aug. 19, 2020]



Sec.  37.900  May I tell a participant that information in financial
and programmatic reports will not be publicly disclosed?

    You may tell a participant that:
    (a) We may exempt from disclosure under the Freedom of Information 
Act (FOIA) a trade secret or commercial and financial information that a 
participant provides after the award, if the information is privileged 
or confidential information. The DoD Component that receives the FOIA 
request will review the information in accordance with DoD procedures at 
32 CFR 286.23(h) (and any DoD Component supplementary procedures) to 
determine whether it is privileged or confidential information under the 
FOIA exemption at 5 U.S.C. 552(b)(4), as implemented by the DoD at 32 
CFR 286.12(d).
    (b) If the participant also provides information in the course of a 
competition prior to award, there is a statutory exemption for five 
years from FOIA disclosure requirements for certain types of information 
submitted at that time (see Sec.  37.420).



Sec.  37.905  Must I make receipt of the final performance report a
condition for final payment?

    If a final report is required, your TIA should make receipt of the 
report a condition for final payment. If the payments are based on 
payable milestones, the submission and acceptance of the final report by 
the Government representative will be incorporated as an event that is a 
prerequisite for one of the payable milestones.

[[Page 116]]

                Records Retention and Access Requirements



Sec.  37.910  How long must I require participants to keep records related
to the TIA?

    Your TIA must require participants to keep records related to the 
TIA (for which the agreement provides Government access under Sec.  
37.915) for a period of three years after submission of the final 
financial status report for an expenditure-based TIA or final 
programmatic status report for a fixed-support TIA, with the following 
exceptions:
    (a) The participant must keep records longer than three years after 
submission of the final financial status report if the records relate to 
an audit, claim, or dispute that begins but does not reach its 
conclusion within the 3-year period. In that case, the participant must 
keep the records until the matter is resolved and final action taken.
    (b) Records for any real property or equipment acquired with project 
funds under the TIA must be kept for three years after final 
disposition.



Sec.  37.915  What requirement for access to a for-profit participant's
records do I include in a TIA?

    (a) If a for-profit participant currently grants access to its 
records to the DCAA or other Federal Government auditors, your TIA must 
include for that participant the standard access-to-records requirements 
at 32 CFR 34.42(e). If the agreement is a fixed-support TIA, the 
language in 32 CFR 34.42(e) may be modified to provide access to records 
concerning the recipient's technical performance, without requiring 
access to the recipient's financial or other records. Note that any need 
to address access to technical records in this way is in addition to, 
not in lieu of, the need to address rights in data (see Sec.  37.845).
    (b) For other for-profit participants that do not currently give the 
Federal Government direct access to their records and are not willing to 
grant full access to records pertinent to the award, there is no set 
requirement to include a provision in your TIA for Government access to 
records. If the audit provision of an expenditure-based TIA gives an IPA 
access to the recipient's financial records for audit purposes, the 
Federal Government must have access to the IPA's reports and working 
papers and you need not include a provision requiring direct Government 
access to the recipient's financial records. For both fixed-support and 
expenditure-based TIAs, you may wish to negotiate Government access to 
recipient records concerning technical performance. Should you negotiate 
a provision giving access only to specific Government officials (e.g., 
the agreements officer), rather than a provision giving Government 
access generally, it is important to let participants know that the OIG, 
DoD, has a statutory right of access to records and other materials to 
which other DoD Component officials have access.



Sec.  37.920  What requirement for access to a nonprofit participant's
records do I include in a TIA?

    Your TIA must include for any nonprofit participant, including any 
FFRDC or GOCO administered by a nonprofit organization, the standard 
access-to-records requirement that subpart B of 2 CFR part 1136 
specifies in Section F of OAR Article II (the standard wording for 
Section F of OAR Article II is provided in appendix B to 2 CFR part 
1136).

[85 FR 51246, Aug. 19, 2020]

                       Termination and Enforcement



Sec.  37.925  What requirements do I include for termination and
enforcement?

    Your TIA must apply the standards of 32 CFR 34.51 for termination, 
32 CFR 34.52 for enforcement, and your organization's procedures 
implementing 32 CFR 22.815 for disputes and appeals.



                      Subpart H_Executing the Award



Sec.  37.1000  What are my responsibilities at the time of award?

    At the time of the award, you must:
    (a) Ensure that the award document contains the appropriate terms 
and conditions and is signed by the appropriate parties, in accordance 
with Sec. Sec.  37.1005 through 37.1015.

[[Page 117]]

    (b) Document your analysis of the agreement in the award file, as 
discussed in Sec.  37.1020.
    (c) Provide information about the award to offices responsible for 
reporting, as described in Sec.  37.1025.
    (d) Distribute copies of the award document, as required by Sec.  
37.1045.

[68 FR 47160, Aug. 7, 2003, as amended at 85 FR 51246, Aug. 19, 2020]

                           The Award Document



Sec.  37.1005  What are my general responsibilities concerning the
award document?

    You are responsible for ensuring that the award document is complete 
and accurate. Your objective is to create a document that:
    (a) Addresses all issues;
    (b) States requirements directly. It is not helpful to readers to 
incorporate statutes or rules by reference, without sufficient 
explanation of the requirements. You generally should not incorporate 
clauses from the Federal Acquisition Regulation (48 CFR parts 1-53) or 
Defense Federal Acquisition Regulation Supplement (48 CFR parts 201-
253), because those provisions are designed for procurement contracts 
that are used to acquire goods and services, rather than for TIAs or 
other assistance instruments.
    (c) Is written in clear and concise language, to minimize potential 
ambiguity.



Sec.  37.1010  What substantive issues should my award document address?

    You necessarily will design and negotiate a TIA individually to meet 
the specific requirements of the particular project, so the complete 
list of substantive issues that you will address in the award document 
may vary. Every award document must address:
    (a) Project scope. The scope is an overall vision statement for the 
project, including a discussion of the project's purpose, objectives, 
and detailed military and commercial goals. It is a critical provision 
because it provides a context for resolving issues that may arise during 
post-award administration. In a fixed-support TIA, you also must clearly 
specify the well-defined outcomes that reliably indicate the amount of 
effort expended and serve as the basis for the level of the fixed 
support (see Sec. Sec.  37.305 and 37.560(a)).
    (b) Project management. You should describe the nature of the 
relationship between the Federal Government and the recipient; the 
relationship among the participants, if the recipient is an 
unincorporated consortium; and the overall technical and administrative 
management of the project. TIAs are used to carry out collaborative 
relationships between the Federal Government and the recipient. 
Consequently, there must be substantial involvement of the DoD program 
official (see Sec.  37.220) and usually the administrative agreements 
officer. The program official provides technical insight, which differs 
from the usual technical oversight of a project. The management 
provision also should discuss how you and the recipient will make any 
modifications to the TIA.
    (c) Termination, enforcement, and disputes. Your TIA must provide 
for termination, enforcement remedies, and disputes and appeals 
procedures, in accordance with Sec.  37.925.
    (d) Funding. You must:
    (1) Show the total amount of the agreement and the total period of 
performance.
    (2) If the TIA is an expenditure-based award, state the Government's 
and recipient's agreed-upon cost shares. The award document should 
identify values for any in-kind contributions, determined in accordance 
with Sec. Sec.  37.530 through 37.555, to preclude later disagreements 
about them.
    (3) Specify the amount of Federal funds obligated and the 
performance period for those obligated funds.
    (4) State, if the agreement is to be incrementally funded, that the 
Government's obligation for additional funding is contingent upon the 
availability of funds and that no legal obligation on the part of the 
Government exists until additional funds are made available and the 
agreement is amended. You also must include a prior approval requirement 
for changes in plans requiring additional Government funding, in 
accordance with Sec.  37.825.
    (e) Payment. You must choose the payment method and tell the 
recipient

[[Page 118]]

how, when, and where to submit payment requests, as discussed in 
Sec. Sec.  37.805 through 37.815. Your payment method must take into 
account sound cash management practices by avoiding unwarranted cash 
advances. For an expenditure-based TIA, your payment provision must 
require the return of interest should excess cash balances occur, in 
accordance with Sec.  37.820. For any TIA using the milestone payment 
method described in Sec.  37.805(c), you must include language notifying 
the recipient that post-award administrators may adjust amounts of 
future milestone payments if a project's expenditures fall too far below 
the projections that were the basis for setting the amounts (see Sec.  
37.575(c) and Sec.  37.1105(c)).
    (f) Records retention and access to records. You must include the 
records retention requirement at Sec.  37.910. You also must provide for 
access to for-profit and nonprofit participants' records, in accordance 
with Sec.  37.915 and Sec.  37.920.
    (g) Patents and data rights. In designing the patents and data 
rights provision, you must set forth the minimum required Federal 
Government rights in intellectual property generated under the award and 
address related matters, as provided in Sec. Sec.  37.840 through 
37.875. It is important to define all essential terms in the patent 
rights provision.
    (h) Foreign access to technology. You must include a provision, in 
accordance with Sec.  37.875, concerning foreign access and domestic 
manufacture of products using technology generated under the award.
    (i) Title to, management of, and disposition of tangible property. 
Your property provisions for for-profit and nonprofit participants must 
be in accordance with Sec. Sec.  37.685 through 37.700.
    (j) Financial management systems. For an expenditure-based award, 
you must specify the minimum standards for financial management systems 
of both for-profit and nonprofit participants, in accordance with 
Sec. Sec.  37.615 and 37.620.
    (k) Allowable costs. If the TIA is an expenditure-based award, you 
must specify the standards that both for-profit and nonprofit 
participants are to use to determine which costs may be charged to the 
project, in accordance with Sec. Sec.  37.625 through 37.635, as well as 
Sec.  37.830.
    (l) Audits. If your TIA is an expenditure-based award, you must 
include an audit provision for both for-profit and nonprofit 
participants and subrecipients, in accordance with Sec. Sec.  37.640 
through 37.670.
    (m) Purchasing system standards. You should include a provision 
specifying the standards in Sec. Sec.  37.705 and 37.710 for purchasing 
systems of for-profit and nonprofit participants, respectively.
    (n) Program income. You should specify requirements for program 
income, in accordance with Sec.  37.835.
    (o) Financial and programmatic reporting. You must specify the 
reports that the recipient is required to submit and tell the recipient 
when and where to submit them, in accordance with Sec. Sec.  37.880 
through 37.905.
    (p) Assurances for applicable national policy requirements. You must 
incorporate assurances of compliance with applicable requirements in 
Federal statutes, Executive orders, or regulations (except for national 
policies that require certifications). Appendix D to this part contains 
a list of commonly applicable requirements that you need to augment with 
any specific requirements that apply in your particular circumstances 
(e.g., general provisions in the appropriations act for the specific 
funds that you are obligating).
    (q) Other routine matters. The agreement should address any other 
issues that need clarification, including who in the Government will be 
responsible for post-award administration and the statutory authority or 
authorities for entering into the TIA (see appendix B to this part for a 
discussion of statutory authorities). In addition, the agreement must 
specify that it takes precedence over any inconsistent terms and 
conditions in collateral documents such as attachments to the TIA or the 
recipient's articles of collaboration.

[68 FR 47160, Aug. 7, 2003, as amended at 85 FR 51246, Aug. 19, 2020]



Sec.  37.1015  How do I decide who must sign the TIA if the recipient
is an unincorporated consortium?

    (a) If the recipient is a consortium that is not formally 
incorporated and the consortium members prefer to have

[[Page 119]]

the agreement signed by all of them individually, you may execute the 
agreement in that manner.
    (b) If they wish to designate one consortium member to sign the 
agreement on behalf of the consortium as a whole, you should not decide 
whether to execute the agreement in that way until you review the 
consortium's articles of collaboration with legal counsel.
    (1) The purposes of the review are to:
    (i) Determine whether the articles properly authorize one 
participant to sign on behalf of the other participants and are binding 
on all consortium members with respect to the research project; and
    (ii) Assess the risk that otherwise could exist when entering into 
an agreement signed by a single member on behalf of a consortium that is 
not a legal entity. For example, you should assess whether the articles 
of collaboration adequately address consortium members' future 
liabilities related to the research project (i.e., whether they will 
have joint and severable liability).
    (2) After the review, in consultation with legal counsel, you should 
determine whether it is better to have all of the consortium members 
sign the agreement individually or to allow them to designate one member 
to sign on all members' behalf.

                  Reporting Information About the Award



Sec.  37.1020  What must I document in my award file?

    You should include in your award file an agreements analysis in 
which you:
    (a) Briefly describe the program and detail the specific military 
and commercial benefits that should result from the project supported by 
the TIA. If the recipient is a consortium that is not formally 
incorporated, you should attach a copy of the signed articles of 
collaboration.
    (b) Describe the process that led to the award of the TIA, including 
how you and program officials solicited and evaluated proposals and 
selected the one supported through the TIA.
    (c) Explain how you decided that a TIA was the most appropriate 
instrument, in accordance with the factors in Subpart B of this part. 
Your explanation must include your answers to the relevant questions in 
Sec.  37.225(a) through (d).
    (d) Explain how you valued the recipient's cost sharing 
contributions, in accordance with Sec. Sec.  37.530 through 37.555. For 
a fixed-support TIA, you must document the analysis you did (see Sec.  
37.560) to set the fixed level of Federal support; the documentation 
must explain how you determined the recipient's minimum cost share and 
show how you estimated the expenditures required to achieve the project 
outcomes.
    (e) Document the results of your negotiation, addressing all 
significant issues in the TIA's provisions. For example, this includes 
specific explanations if you:
    (1) Specify requirements for a participant's systems that vary from 
the standard requirements in Sec. Sec.  37.615(a), 37.625(a), 37.630, or 
37.705(a) in cases where those sections provide flexibility for you to 
do so.
    (2) Provide that any audits are to be performed by an IPA, rather 
than the DCAA, where permitted under Sec.  37.650. Your documentation 
must include:
    (i) The names and addresses of business units for which IPAs will be 
the auditors;
    (ii) Estimated amounts of Federal funds expected under the award for 
those business units; and
    (iii) The basis (e.g., a written statement from the recipient) for 
your judging that the business units do not currently perform under 
types of awards described in Sec.  37.650(b)(1) and (2) and are not 
willing to grant the DCAA audit access.
    (3) Include an intellectual property provision that varies from 
Bayh-Dole requirements.
    (4) Determine that cost sharing is impracticable.



Sec.  37.1025  Must I report information to the Defense Assistance Awards
Data System?

    Yes, you must give the necessary information about the award to the 
office in your organization that is responsible for preparing DD Form 
2566, ``DoD Assistance Award Action Report,'' reports for the Defense 
Assistance Award Data System, to ensure timely and accurate reporting of 
data required by 31

[[Page 120]]

U.S.C. 6101-6106 (see 32 CFR part 21, subpart E).

                Distributing Copies of the Award Document



Sec.  37.1045  To whom must I send copies of the award document?

    You must send a copy of the award document to the:
    (a) Recipient. You must include on the first page of the recipient's 
copy a prominent notice about the current DoD requirements for payment 
by electronic funds transfer (EFT).
    (b) Office you designate to administer the TIA. You are strongly 
encouraged to delegate post-award administration to the regional office 
of the Defense Contract Management Agency or Office of Naval Research 
that administers awards to the recipient. When delegating, you should 
clearly indicate on the cover sheet or first page of the award document 
that the award is a TIA, to help the post-award administrator 
distinguish it from other types of assistance instruments.
    (c) Finance and accounting office designated to make the payments to 
the recipient.



                   Subpart I_Post-Award Administration



Sec.  37.1100  What are my responsibilities generally as an administrative
agreements officer for a TIA?

    As the administrative agreements officer for a TIA, you have the 
responsibilities that your office agreed to accept in the delegation 
from the office that made the award. Generally, you will have the same 
responsibilities as a post-award administrator of a grant or cooperative 
agreement, as described in 32 CFR 22.715. Responsibilities for TIAs 
include:
    (a) Advising agreements officers before they award TIAs on how to 
establish award terms and conditions that better meet research 
programmatic needs, facilitate effective post-award administration, and 
ensure good stewardship of Federal funds.
    (b) Participating as the business partner to the DoD program 
official to ensure the Government's substantial involvement in the 
research project. This may involve attendance with program officials at 
kickoff meetings or post-award conferences with recipients. It also may 
involve attendance at the consortium management's periodic meetings to 
review technical progress, financial status, and future program plans.
    (c) Tracking and processing of reports required by the award terms 
and conditions, including periodic business status reports, programmatic 
progress reports, and patent reports.
    (d) Handling payment requests and related matters. For a TIA using 
advance payments, that includes reviews of progress to verify that there 
is continued justification for advancing funds, as discussed in Sec.  
37.1105(b). For a TIA using milestone payments, it includes making any 
needed adjustments in future milestone payment amounts, as discussed in 
Sec.  37.1105(c).
    (e) Coordinating audit requests and reviewing audit reports for both 
single audits of participants' systems and any award-specific audits 
that may be needed, as discussed in Sec. Sec.  37.1115 and 37.1120.
    (f) Responding, after coordination with program officials, to 
recipient requests for permission to sell or exclusively license 
intellectual property to entities that do not agree to manufacture 
substantially in the United States, as described in Sec.  37.875(b). 
Before you grant approval for any technology, you must secure assurance 
that the Government will be able to use the technology (e.g., a 
reasonable license for Government use, if the recipient is selling the 
technology) or seek reimbursement of the Government's investments.

[68 FR 47160, Aug. 7, 2003, as amended at 85 FR 51246, Aug. 19, 2020]



Sec.  37.1105  What additional duties do I have as the administrator of
a TIA with advance payments or payable milestones?

    Your additional post-award responsibilities as an administrative 
agreements officer for an expenditure-based TIA with advance payments or 
payable milestones are to ensure good cash management. To do so, you 
must:
    (a) For any expenditure-based TIA with advance payments or payable

[[Page 121]]

milestones, forward to the responsible payment office any interest that 
the recipient remits in accordance with Sec.  37.820(b). The payment 
office will return the amounts to the Department of the Treasury's 
miscellaneous receipts account.
    (b) For any expenditure-based TIA with advance payments, consult 
with the program official and consider whether program progress reported 
in periodic reports, in relation to reported expenditures, is sufficient 
to justify your continued authorization of advance payments under Sec.  
37.805(b).
    (c) For any expenditure-based TIA using milestone payments, work 
with the program official at the completion of each payable milestone or 
upon receipt of the next business status report to:
    (1) Compare the total amount of project expenditures, as recorded in 
the payable milestone report or business status report, with the 
projected budget for completing the milestone; and
    (2) Adjust future payable milestones, as needed, if expenditures lag 
substantially behind what was originally projected and you judge that 
the recipient is receiving Federal funds sooner than necessary for 
program purposes. Before making adjustments, you should consider how 
large a deviation is acceptable at the time of the milestone. For 
example, suppose that the first milestone payment for a TIA you are 
administering is $50,000, and that the awarding official set the amount 
based on a projection that the recipient would have to expend $100,000 
to reach the milestone (i.e., the original plan was for the recipient's 
share at that milestone to be 50% of project expenditures). If the 
milestone payment report shows $90,000 in expenditures, the recipient's 
share at this point is 44% ($40,000 out of the total $90,000 expended, 
with the balance provided by the $50,000 milestone payment of Federal 
funds). For this example, you should adjust future milestones if you 
judge that a 6% difference in the recipient's share at the first 
milestone is too large, but not otherwise. Remember that milestone 
payment amounts are not meant to track expenditures precisely at each 
milestone and that a recipient's share will increase as it continues to 
perform research and expend funds, until it completes another milestone 
to trigger the next Federal payment.



Sec.  37.1110  What other responsibilities related to payments do I have?

    If you are the administrative agreements officer, you have the 
responsibilities described in 32 CFR 22.810(c), regardless of the 
payment method. You also must ensure that you do not withhold payments, 
except in one of the circumstances described in 32 CFR 34.12(g).



Sec.  37.1115  What are my responsibilities related to participants' 
single audits?

    For audits of for-profit participant's systems, under Sec. Sec.  
37.640 through 37.660, you are the focal point within the Department of 
Defense for ensuring that participants submit audit reports and for 
resolving any findings in those reports. Nonprofit participants send 
their single audit reports to a Governmentwide clearinghouse. For those 
participants, the Office of the Assistant Inspector General (Auditing) 
should receive any DoD-specific findings from the clearinghouse and 
refer them to you for resolution, if you are the appropriate official to 
do so.



Sec.  37.1120  When and how may I request an award-specific audit?

    Guidance on when and how you should request additional audits for 
expenditure-based TIAs is identical to the guidance for grants officers 
in 32 CFR 34.16(d). If you require an award-specific examination or 
audit of a for-profit participant's records related to a TIA, you must 
use the auditor specified in the award terms and conditions, which 
should be the same auditor who performs periodic audits of the 
participant. The DCAA and the OIG, DoD, are possible sources of advice 
on audit-related issues, such as appropriate audit objectives and scope.



            Subpart J_Definitions of Terms Used in This Part



Sec.  37.1205  Advance.

    A payment made to a recipient before the recipient disburses the 
funds for

[[Page 122]]

program purposes. Advance payments may be based upon recipients' 
requests or predetermined payment schedules.



Sec.  37.1210  Advanced research.

    Research that creates new technology or demonstrates the viability 
of applying existing technology to new products and processes in a 
general way. Advanced research is most closely analogous to 
precompetitive technology development in the commercial sector (i.e., 
early phases of research and development on which commercial competitors 
are willing to collaborate, because the work is not so coupled to 
specific products and processes that the results of the work must be 
proprietary). It does not include development of military systems and 
hardware where specific requirements have been defined. It is typically 
funded in Research, Development, Test and Evaluation programs within 
Budget Activity 3, Advanced Technology Development.



Sec.  37.1215  Agreements officer.

    An official with the authority to enter into, administer, and/or 
terminate TIAs (see Sec.  37.125).



Sec.  37.1220  Applied research.

    Efforts that attempt to determine and exploit the potential of 
scientific discoveries or improvements in technology such as new 
materials, devices, methods and processes. It typically is funded in 
Research, Development, Test and Evaluation programs within Budget 
Activity 2, Applied Research (also known informally as research category 
6.2) programs. Applied research normally follows basic research but may 
not be fully distinguishable from the related basic research. The term 
does not include efforts whose principal aim is the design, development, 
or testing of specific products, systems or processes to be considered 
for sale or acquisition; these efforts are within the definition of 
``development.''



Sec.  37.1225  Articles of collaboration.

    An agreement among the participants in a consortium that is not 
formally incorporated as a legal entity, by which they establish their 
relative rights and responsibilities (see Sec.  37.515).



Sec.  37.1230  Assistance.

    The transfer of a thing of value to a recipient to carry out a 
public purpose of support or stimulation authorized by a law of the 
United States (see 31 U.S.C. 6101(3)). Grants, cooperative agreements, 
and technology investment agreements are examples of legal instruments 
used to provide assistance.



Sec.  37.1235  Award-specific audit.

    An audit of a single TIA, usually done at the cognizant agreements 
officer's request, to help resolve issues that arise during or after the 
performance of the research project. An award-specific audit of an 
individual award differs from a periodic audit of a participant (as 
defined in Sec.  37.1325).



Sec.  37.1240  Basic research.

    Efforts directed toward increasing knowledge and understanding in 
science and engineering, rather than the practical application of that 
knowledge and understanding. It typically is funded within Research, 
Development, Test and Evaluation programs in Budget Activity 1, Basic 
Research (also known informally as research category 6.1).



Sec.  37.1245  Cash contributions.

    A recipient's cash expenditures made as contributions toward cost 
sharing, including expenditures of money that third parties contributed 
to the recipient.



Sec.  37.1250  Commercial firm.

    A for-profit firm or segment of a for-profit firm (e.g., a division 
or other business unit) that does a substantial portion of its business 
in the commercial marketplace.



Sec.  37.1255  Consortium.

    A group of research-performing organizations that either is formally 
incorporated or that otherwise agrees to jointly carry out a research 
project (see definition of ``articles of collaboration,'' in Sec.  
37.1225).



Sec.  37.1260  Cooperative agreement.

    A legal instrument which, consistent with 31 U.S.C. 6305, is used to 
enter into the same kind of relationship as a

[[Page 123]]

grant (see definition of ``grant,'' in Sec.  37.1295), except that 
substantial involvement is expected between the Department of Defense 
and the recipient when carrying out the activity contemplated by the 
cooperative agreement. The term does not include ``cooperative research 
and development agreements'' as defined in 15 U.S.C. 3710a.



Sec.  37.1265  Cost sharing.

    A portion of project costs that are borne by the recipient or non-
Federal third parties on behalf of the recipient, rather than by the 
Federal Government.



Sec.  37.1270  Data.

    Recorded information, regardless of form or method of recording. The 
term includes technical data, which are data of a scientific or 
technical nature, and computer software. It does not include financial, 
cost, or other administrative information related to the administration 
of a TIA.



Sec.  37.1275  DoD Component.

    The Office of the Secretary of Defense, a Military Department, a 
Defense Agency, or a DoD Field Activity.



Sec.  37.1280  Equipment.

    Tangible property, other than real property, that has a useful life 
of more than one year and an acquisition cost of $5,000 or more per 
unit.



Sec.  37.1285  Expenditure-based award.

    A Federal Government contract or assistance award for which the 
amounts of interim payments or the total amount ultimately paid (i.e., 
the sum of interim payments and final payment) are subject to 
redetermination or adjustment, based on the amounts expended by the 
recipient in carrying out the purposes for which the award was made. 
Most Federal Government grants and cooperative agreements are 
expenditure-based awards.



Sec.  37.1290  Expenditures or outlays.

    Charges made to the project or program. They may be reported either 
on a cash or accrual basis, as shown in the following table:

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Sec.  37.1295  Grant.

    A legal instrument which, consistent with 31 U.S.C. 6304, is used to 
enter into a relationship:
    (a) The principal purpose of which is to transfer a thing of value 
to the recipient to carry out a public purpose of support or stimulation 
authorized by a law of the United States, rather than to acquire 
property or services for the Department of Defense's direct benefit or 
use.
    (b) In which substantial involvement is not expected between the 
Department of Defense and the recipient when carrying out the activity 
contemplated by the grant.



Sec.  37.1300  In-kind contributions.

    The value of non-cash contributions made by a recipient or non-
Federal third parties toward cost sharing.



Sec.  37.1305  Institution of higher education.

    An educational institution that:
    (a) Meets the criteria in section 101 of the Higher Education Act of 
1965 (20 U.S.C. 1001); and
    (b) Is subject to the provisions of OMB Circular A-110, 
``Administrative Requirements for Grants and Agreements with 
Institutions of Higher Education, Hospitals, and Other Non-Profit 
Organizations,'' as implemented by the Department of Defense at 32 CFR 
part 32.



Sec.  37.1310  Intellectual property.

    Inventions, data, works of authorship, and other intangible products 
of intellectual effort that can be owned by a person, whether or not 
they are patentable or may be copyrighted. The term also includes mask 
works, such as those used in microfabrication, whether or not they are 
tangible.



Sec.  37.1315  Nonprofit organization.

    (a) Any corporation, trust, association, cooperative or other 
organization that:
    (1) Is operated primarily for scientific, educational, service, or 
similar purposes in the public interest.
    (2) Is not organized primarily for profit; and

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    (3) Uses its net proceeds to maintain, improve, or expand the 
operations of the organization.
    (b) The term includes any nonprofit institution of higher education 
or nonprofit hospital.



Sec.  37.1320  Participant.

    A consortium member or, in the case of an agreement with a single 
for-profit entity, the recipient. Note that a for-profit participant may 
be a firm or a segment of a firm (e.g., a division or other business 
unit).



Sec.  37.1325  Periodic audit.

    An audit of a participant, performed at an agreed-upon time (usually 
a regular time interval), to determine whether the participant as a 
whole is managing its Federal awards in compliance with the terms of 
those awards. Appendix C to this part describes what such an audit may 
cover. A periodic audit of a participant differs from an award-specific 
audit of an individual award (as defined in Sec.  37.1235).



Sec.  37.1330  Procurement contract.

    A Federal Government procurement contract. It is a legal instrument 
which, consistent with 31 U.S.C. 6303, reflects a relationship between 
the Federal Government and a State, a local government, or other 
recipient when the principal purpose of the instrument is to acquire 
property or services for the direct benefit or use of the Federal 
Government. See the more detailed definition of the term ``contract'' at 
48 CFR 2.101.



Sec.  37.1335  Program income.

    Gross income earned by the recipient or a participant that is 
generated by a supported activity or earned as a direct result of a TIA. 
Program income includes but is not limited to: income from fees for 
performing services; the use or rental of real property, equipment, or 
supplies acquired under a TIA; the sale of commodities or items 
fabricated under a TIA; and license fees and royalties on patents and 
copyrights. Interest earned on advances of Federal funds is not program 
income.



Sec.  37.1340  Program official.

    A Federal Government program manager, scientific officer, or other 
individual who is responsible for managing the technical program being 
carried out through the use of a TIA.



Sec.  37.1345  Property.

    Real property, equipment, supplies, and intellectual property, 
unless stated otherwise.



Sec.  37.1350  Real property.

    Land, including land improvements, structures and appurtenances 
thereto, but excluding movable machinery and equipment.



Sec.  37.1355  Recipient.

    An organization or other entity that receives a TIA from a DoD 
Component. Note that a for-profit recipient may be a firm or a segment 
of a firm (e.g., a division or other business unit).



Sec.  37.1360  Research.

    Basic, applied, and advanced research, as defined in this subpart.



Sec.  37.1365  Supplies.

    Tangible property other than real property and equipment. Supplies 
have a useful life of less than one year or an acquisition cost of less 
than $5,000 per unit.



Sec.  37.1370  Termination.

    The cancellation of a TIA, in whole or in part, at any time prior to 
either:
    (a) The date on which all work under the TIA is completed; or
    (b) The date on which Federal sponsorship ends, as given in the 
award document or any supplement or amendment thereto.



Sec.  37.1375  Technology investment agreements.

    A special class of assistance instruments used to increase 
involvement of commercial firms in defense research programs and for 
other purposes (described in appendix A to this part) related to 
integrating the commercial and defense sectors of the nation's 
technology and industrial base. A technology investment agreement may be 
a cooperative agreement with provisions

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tailored for involving commercial firms (as distinct from a cooperative 
agreement subject to all of the requirements in 32 CFR part 34), or 
another kind of assistance transaction (see appendix B to this part).





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   Sec. Appendix A to Part 37--What Is the Civil-Military Integration 
     Policy That Is the Basis for Technology Investment Agreements?
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 Sec. Appendix B to Part 37--What Type of Instrument Is a TIA and What 
                   Statutory Authorities Does It Use?
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 Sec. Appendix C to Part 37--What Is the Desired Coverage for Periodic 
        Audits of For-Profit Participants To Be Audited by IPAs?
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Sec. Appendix D to Part 37--What Common National Policy Requirements May 
                 Apply and Need To Be Included in TIAs?

    Whether your TIA is a cooperative agreement or another type of 
assistance transaction, as discussed in Appendix B to this part, the 
terms and conditions of the agreement must provide for recipients' 
compliance with applicable Federal statutes and regulations. This 
appendix lists some of the more common requirements to aid you in 
identifying ones that apply to your TIA. The list is not intended to be 
all-inclusive, however, and you may need to consult legal

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counsel to verify whether there are others that apply in your situation 
(e.g., due to a provision in the appropriations act for the specific 
funds that you are using or due to a statute or rule that applies to a 
particular program or type of activity).

                            A. Certifications

    One requirement that applies to all TIAs currently requires you to 
obtain a certification at the time of proposal. That requirement is in a 
Governmentwide common rule about lobbying prohibitions, which is 
implemented by the DoD at 32 CFR part 28. The prohibitions apply to all 
financial assistance. Appendix A to 32 CFR part 22 includes a sample 
provision that you may use, to have proposers incorporate the 
certification by reference into their proposals.

                  B. Assurances That Apply to All TIAs

    DoD policy is to use a certification, as described in the preceding 
paragraph, only for a national policy requirement that specifically 
requires one. The usual approach to communicating other national policy 
requirements to recipients is to incorporate them as award terms or 
conditions, or assurances. Part 1122 of 2 CFR lists national policy 
requirements that commonly apply to DoD grants and cooperative 
agreements. It also has standard wording of general terms and conditions 
to incorporate the requirements in award documents. Of those 
requirements, the following six apply to all TIAs. (Note that TIAs must 
generally use the standard wording in 2 CFR part 1122 for the terms and 
conditions of these six requirements, but not the standard format.)
    1. Requirements concerning debarment and suspension in the OMB 
guidance in 2 CFR part 180, as implemented by the DoD at 2 CFR part 
1125. The requirements apply to all nonprocurement transactions.
    2. Requirements concerning drug-free workplace in the Governmentwide 
common rule that the DoD has codified at 32 CFR part 26. The 
requirements apply to all financial assistance.
    3. Prohibitions on discrimination on the basis of race, color, or 
national origin in Title VI of the Civil Rights Act of 1964 (42 U.S.C. 
2000d, et seq.), as implemented by DoD regulations at 32 CFR part 195. 
These apply to all financial assistance. They require recipients to flow 
down the prohibitions to any subrecipients performing a part of the 
substantive research program (as opposed to suppliers from whom 
recipients purchase goods or services).
    4. Prohibitions on discrimination on the basis of age, in the Age 
Discrimination Act of 1975 (42 U.S.C. 6101, et seq.). They apply to all 
financial assistance and require flow down to subrecipients, as 
implemented by Department of Health and Human Services regulations at 45 
CFR part 90.
    5. Prohibitions on discrimination on the basis of handicap, in 
section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), as 
implemented by Department of Justice regulations at 28 CFR part 41 and 
DoD regulations at 32 CFR part 56. They apply to all financial 
assistance recipients and require flow down to subrecipients.
    6. Preferences for use of U.S.-flag air carriers in the 
International Air Transportation Fair Competitive Practices Act of 1974 
(49 U.S.C. 40118), commonly referred to as the ``Fly America Act,'' and 
implementing regulations at 41 CFR 301-10.131 through 301-10.143, which 
apply to uses of U.S. Government funds.

                  C. Other National Policy Requirements

    Additional national policy requirements may apply in certain 
circumstances, as follows:
    1. If construction work is to be done under a TIA or its subawards, 
it is subject to the prohibitions in Executive Order 11246, as amended, 
on discrimination on the basis of race, color, religion, sex, sexual 
orientation, gender identity, or national origin. You must include the 
clause provided in 41 CFR 60-1.4(b) in any ``federally assisted 
construction contract'' (as defined in 41 CFR 60-1.3) under this award 
unless provisions of 41 CFR part 60-1 exempt the contract from the 
requirement. The clause will require the contractor to comply with equal 
opportunity requirements in 41 CFR chapter 60.
    2. If the research involves human subjects or animals, it is subject 
to the applicable requirements identified in appendix C of 2 CFR part 
1122.
    3. If the research involves actions that may affect the human 
environment, it is subject to the requirements of the National 
Environmental Policy Act in paragraph A.4.a of NP Article II, which is 
found in appendix B of 2 CFR part 1122. It also may be subject to one or 
more of the other requirements in paragraphs A.4.b through A.4.f, A.5, 
and A.6 of NP Article II, which concern flood-prone areas, coastal 
zones, coastal barriers, wild and scenic rivers, underground sources of 
drinking water, endangered species, and marine mammal protection.
    4. If the project may impact any property listed or eligible for 
listing on the National Register of Historic Places, it is subject to 
the National Historic Preservation Act of 1966 (54 U.S.C. 306108) as 
specified in paragraph 11.a of NP Article IV, which is found in appendix 
D of 2 CFR part 1122.
    5. If the project has potential under this award for irreparable 
loss or destruction of significant scientific, prehistorical, 
historical, or archeological data, it is subject to the Archaeological 
and Historic Preservation Act of 1974 (54 U.S.C. Chapter 3125) as

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specified in paragraph 11.b of NP Article IV, which is found in appendix 
D of 2 CFR part 1122.

[68 FR 47160, Aug. 7, 2003, as amended at 70 FR 49477, Aug. 23, 2005; 72 
FR 34999, June 26, 2007; 85 FR 51247, Aug. 19, 2020]



 Sec. Appendix E to Part 37--What Provisions May A Participant Need to 
         Include When Purchasing Goods or Services Under a TIA?

    A. As discussed in Sec.  37.705, you must inform recipients of any 
national policy requirements that flow down to their purchases of goods 
or services (e.g., supplies or equipment) under their TIAs. Note that 
purchases of goods or services differ from subawards, which are for 
substantive research program performance.
    B. Appendix A to 32 CFR part 34 lists ten national policy 
requirements that commonly apply to firms' purchases under grants or 
cooperative agreements. Of those ten, two that apply to all recipients' 
purchases under TIAs are:
    1. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352). A contractor 
submitting a bid to the recipient for a contract award of $100,000 or 
more must file a certification with the recipient that it has not and 
will not use Federal appropriations for certain lobbying purposes. The 
contractor also must disclose any lobbying with non-Federal funds that 
takes place in connection with obtaining any Federal award. For further 
details, see 32 CFR part 28, the DoD's codification of the 
Governmentwide common rule implementing this amendment.
    2. Debarment and suspension. A contract award with an amount 
expected to equal or exceed $25,000 and certain other contract awards 
(see 2 CFR 1125.220, which implements OMB guidance at 2 CFR 180.220) 
shall not be made to parties identified in the Exclusions area of the 
System for Award Management (SAM Exclusions) as being currently 
debarred, suspended, or otherwise excluded. This restriction is in 
accordance with the DoD adoption at 2 CFR part 1125 of the OMB guidance 
implementing E.O.s 12549 (3 CFR, 1986 Comp., p. 189) and 12689 (3 CFR, 
1989 Comp., p. 235), ``Debarment and Suspension.''
    C. The following requirements apply to recipient's purchases under 
TIAs in the situations specified below:
    1. Equal Employment Opportunity. Although construction work should 
happen rarely under a TIA, the agreements officer in that case should 
inform the recipient that Department of Labor regulations at 41 CFR 60-
1.4(b) prescribe a clause that must be incorporated into recipients' and 
subrecipients' construction contracts under their awards and subawards, 
respectively. Further details are provided in appendix B to part 22 of 
the DoDGARs (32 CFR part 22), in section b. under the heading 
``Nondiscrimination.'' any ``federally assisted construction contract'' 
(as defined in 41 CFR 60-1.3) under the award unless provisions of 41 
CFR part 60-1 exempt the contract from the requirement. The clause will 
require the contractor to comply with equal opportunity requirements in 
41 CFR chapter 60.
    2. Wage Rate Requirements (Construction), formerly the Davis Bacon 
Act. When required by Federal program legislation, you must take the 
following actions with respect to each construction contract for more 
than $2,000 to be awarded using funding provided under this award:
    a. Place in the solicitation under which the contract will be 
awarded a copy of the current prevailing wage determination issued by 
the Department of Labor;
    b. Condition the decision to award the contract upon the 
contractor's acceptance of that prevailing wage determination;
    c. Include in the contract the clauses specified at 29 CFR 5.5(a) in 
Department of Labor regulations (29 CFR part 5, ``Labor Standards 
Provisions Applicable to Contracts Governing Federally Financed and 
Assisted Construction'') to require the contractor's compliance with the 
Wage Rate Requirements (Construction), as amended (40 U.S.C. 3141-44, 
3146, and 3147); and
    d. Report all suspected or reported violations to the award 
administration office identified in this award.
    3. Fly America requirements. In each contract under which funds 
provided under this award might be used to participate in costs of 
international air travel or transportation for people or property, you 
must include a clause to require the contractor to:
    a. Comply with the International Air Transportation Fair Competitive 
Practices Act of 1974 (49 U.S.C. 40118, also known as the ``Fly 
America'' Act), as implemented by the General Services Administration at 
41 CFR 301-10.131 through 301-10.143, which provides that U.S Government 
financed international air travel and transportation of personal effects 
or property must use a U.S. Flag air carrier or be performed under a 
cost sharing arrangement with a U.S. carrier, if such service is 
available; and
    b. Include the requirements of the Fly America Act in all 
subcontracts that might involve international air transportation.
    4. Cargo preference for United States flag vessels. In each contract 
under which equipment, material, or commodities may be shipped by 
oceangoing vessels, you must include the clause specified in Department 
of Transportation regulations at 46 CFR 381.7(b) to require that at 
least 50 percent of equipment, materials or commodities purchased or 
otherwise obtained with Federal funds under this award, and transported 
by ocean

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vessel, be transported on privately owned U.S. flag commercial vessels, 
if available.

[85 FR 51247, Aug. 19, 2020]

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              SUBCHAPTER D_PERSONNEL, MILITARY AND CIVILIAN



    Cross Reference: For a revision of Standards for a Merit System of 
Personnel Administration, see 5 CFR part 900.



PART 44_SCREENING THE READY RESERVE--Table of Contents



Sec.
44.1 Purpose.
44.2 Applicability.
44.3 Definitions.
44.4 Policy.
44.5 Responsibilities.

Appendix A to Part 44--Guidance for Employers of Ready Reservists

    Authority: 10 U.S.C. 10149.

    Source: 85 FR 84241, Dec. 28, 2020, unless otherwise noted.



Sec.  44.1  Purpose.

    This rule updates Department of Defense (DoD) policy and 
responsibilities for the screening of Ready Reservists under 10 U.S.C. 
10149.



Sec.  44.2  Applicability.

    This rule applies to non-Federal employers of Ready Reservists 
filling key positions.



Sec.  44.3  Definitions.

    For purposes of this part, the following definitions apply:
    Extreme community hardship. A situation that, because of a Reserve 
member's mobilization, may have a substantially adverse effect on the 
health, safety, or welfare of the community. Any request for a 
determination of such hardship will be made by the Reserve member and 
must be supported by documentation, as required by the Secretary of the 
Military Department concerned.
    Inactive National Guard (ING). Members of the National Guard in an 
inactive status in the Ready Reserve and attached to a specific National 
Guard unit. These members do not participate in training activities but 
mobilize with their unit of assignment or with other units within their 
State on partial or full mobilization. They are not subject to a call-up 
pursuant to 10 U.S.C. 12304.
    Individual Ready Reserve (IRR). A manpower pool within the Ready 
Reserve of each of the RCs consisting of individuals who have had some 
training or who have served previously in the AC or in the Selected 
Reserve, and may have some period of their MSO remaining pursuant to 10 
U.S.C. 651. The IRR consists of members of the Ready Reserve who are not 
in the Selected Reserve or the ING. Additionally, the IRR also includes 
some personnel who are participating in officer training programs or in 
the Armed Forces Health Professions Scholarship and Financial Assistance 
Programs.
    Key employee. Any non-federal employee occupying a key position 
within an agency, company, local government, or organization.
    Key position. A public or private civilian position, not a job 
series, designated by the employer and approved by the Secretary of the 
Military Department concerned) that cannot be vacated during war or 
national emergency.
    Mobilization. The process by which the Armed Forces of the United 
States, or part of them, are brought to a state of readiness for war or 
other national emergency.
    Ready Reserve. The Selected Reserve and Individual Ready Reserve 
liable for active duty as prescribed by law.
    Selected Reserve. Those units and individuals within the Ready 
Reserve designated by their respective Military Service and approved by 
the Joint Chiefs of Staff as so essential to initial wartime missions 
that they have priority over all other reserves.



Sec.  44.4  Policy.

    It is DoD policy that:
    (a) Members of the Ready Reserve shall be screened (see the appendix 
to this part for specific screening guidance) at least annually to meet 
the provisions of 10 U.S.C. 10149 and to provide a Ready Reserve force 
composed of members who:
    (1) Meet Military Service readiness standards of mental, moral, 
professional, and physical fitness and possess the military 
qualifications required in the various ranks, ratings, and specialties.

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    (2) Are available immediately for active duty (AD) during a 
mobilization or as otherwise required by law.
    (b) Ready Reserve members whose immediate recall to AD during an 
emergency would create an extreme personal or community hardship shall 
be transferred to the Standby Reserve or the Retired Reserve, or shall 
be discharged, as applicable.
    (c) Ready Reserve members who occupy key positions shall be 
transferred to the Standby Reserve or the Retired Reserve, or shall be 
discharged, as appropriate.
    (d) After a mobilization is ordered, no deferment, delay, or 
exemption from mobilization will be granted to Ready Reserve members 
because of their civilian employment.



Sec.  44.5  Responsibilities.

    (a) The Under Secretary of Defense for Personnel and Readiness 
(USD(P&R)) adjudicates, before mobilization, conflicts the Ready Reserve 
screening process has identified, but has not resolved, between the 
mobilization manpower needs of the civilian sector and the Military 
Services.
    (b) The Assistant Secretary of Defense for Manpower and Reserve 
Affairs (ASD(M&RA)), under the USD(P&R), coordinates resolution of 
conflicts between the mobilization manpower needs of the civilian sector 
and the Military Services identified but not resolved through the Ready 
Reserve screening process.
    (c) The Secretaries of the Military Departments and Commandant, 
United States Coast Guard, ensure coordination with the ASD(M&RA) to 
resolve conflicts (identified, but not resolved through the Ready 
Reserve screening process) between the mobilization manpower needs of 
the civilian sector and the military. They will review petitions 
submitted by employers, take applicable action, and promptly transmit 
the results of that determination to the reservist concerned and their 
employer after making a determination in response to the petition. 
Materials provided or produced with regard to the petition will be 
retained by the Secretary Concerned.



 Sec. Appendix A to Part 44--Guidance for Employers of Ready Reservists

    (a) Employers of Ready Reserve members. Prior to any mobilization 
action, employers of Ready Reserve members are encouraged to adopt 
personnel management procedures designed to prevent conflicts between 
the emergency manpower needs of civilian and military activities that 
may occur during a military mobilization requiring Ready Reserve 
participation. Employers are encouraged to assess the internal 
capabilities of their own positions and the organic capacity to sustain 
emergency manpower needs prior to a military mobilization which can 
produce an accurate listing of what they consider key positions to their 
organization. Employers, via the head of or suitable designee within an 
agency, company, local government, or organization, are encouraged to 
use the below key position guidelines as a reference for considering 
designations and, when applicable, petitioning the respective Military 
Service if a Ready Reserve member fills a key position. Nothing in this 
part shall reduce, limit, or eliminate in any manner any right or 
benefit provided by USERRA. Employers must ensure that key position 
determinations are not undertaken in a manner that would violate USERRA.
    (b) Key position guidelines:
    (1) Designate individual positions that are essential in nature to, 
and within, the organization as ``key positions,'' and require they will 
not be filled by Ready Reserve members to prevent such positions from 
being vacated during a mobilization.
    (2) Consider the following questions to determine whether an 
individual position should be designated as a key position:
    (i) Can the position be filled in a reasonable time after 
mobilization? (Note that this factor must not be the sole factor relied 
on in making a key position determination.)
    (ii) Does the position require technical or managerial skills that 
are possessed uniquely by the incumbent employee?
    (iii) Is the position associated directly with defense mobilization?
    (iv) Does the position include a mobilization or relocation 
assignment in a federal agency that has emergency functions, as 
designated by E.O. 12656?
    (v) Is the position directly associated with industrial or manpower 
mobilization, as designated in E.O.s 12656 and 12919?
    (vi) Are there other factors related to the national defense, 
health, or safety that will make the incumbent of the position 
unavailable for mobilization? These factors should not be applied more 
broadly than intended as to encompass an entire class of workers, nor 
misapplied to conflict with USERRA, its implementing regulations at 20 
CFR part 1002, or other federal statutes and regulations.

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    (3) Conduct an annual review of key positions and employees as noted 
herein.
    (4) Petition to the respective Military Service any findings for 
adjudication of specific Ready Reserve members filling critical 
positions, as needed.
    (5) When employers consider a Ready Reserve member as filling a key 
position within their organization, they should petition the applicable 
Reserve personnel center for discussion and adjudication. An employer 
may not take any employment action with regard to the position for which 
approval is sought based upon an employee or potential employee's 
military service until such time as the petition for approval has been 
approved by the relevant Service Secretary. Below is the list of Reserve 
personnel centers to which petitions shall be forwarded:

Army Reserve: U.S. Army Human Resources, Command 1600 Spearhead 
Division, Avenue ATTN: AHRC-ROR-PPA, Fort Knox, KY 40122-5100, https://
www.hrc.army.mil/
Navy Reserve: Commander, Naval Military Personnel Command (Pers 91), 
5720 Integrity Drive, Millington, TN 38055-9100, https://
www.public.navy.mil/ bupers-npc/Pages/default.aspx
Marine Corps Reserve: Director, Marine Corps Individual Reserve Support 
Activity (MCIRSA), 2000 Opelousas Ave., New Orleans, LA 70114, https://
www.marforres.marines.mil/ Major-Subordinate-Commands/ Force-
Headquarters-Group/ Marine-Corps-Individual-Reserve-Support-Activity/
Air Force Reserve: Commander, Air Reserve Personnel Center/DPAM, 18420 
E. Silver Creek Ave., Bldg. 390, MS 68, Buckley AFB, CO 80011, https://
www.arpc.afrc.af.mil/
Coast Guard Reserve: Commander (PSC-RPM), U. S. Coast Guard Personnel 
Service Center, 2703 Martin Luther King Jr Ave. SE, Stop 7200, 
Washington, DC 20593-7200, https://www.dcms.uscg.mil/ Our-Organization/ 
Assistant-Commandant-for-Human-Resources-CG-1/ Personnel-Service-Center-
PSC/ Reserve-Personnel-Management-PSC-RPM/
Army and Air National Guard: Submit petitions to the Adjutant General of 
the appropriate State, Territory, or the District of Columbia.



PART 45_MEDICAL MALPRACTICE CLAIMS BY MEMBERS OF THE UNIFORMED SERVICES
(Eff. 7-19-21)--Table of Contents



Sec.
45.1 Purpose of this part.
45.2 Claims payable and not payable in general.
45.3 Authorized claimants.
45.4 Filing a claim.
45.5 Elements of payable claim: facilities and providers.
45.6 Element of payable claim: negligent or wrongful act or omission.
45.7 Element of payable claim: proximate cause.
45.8 Calculation of damages: disability rating.
45.9 Calculation of damages: economic damages.
45.10 Calculation of damages: non-economic damages.
45.11 Calculation of damages: offsets for DoD and VA Government 
          compensation.
45.12 Initial and Final Determinations.
45.13 Appeals.
45.14 Final and conclusive resolution.
45.15 Other claims procedures and administrative matters.

    Authority: 10 U.S.C. 2733a.

    Source: 86 FR 32208, June 17, 2021, unless otherwise noted.

    Effective Date Note: At 86 FR 32208, June 17, 2021, part 45 was 
added, effective July 19, 2021.



Sec.  45.1  Purpose of this part.

    (a) In general. The purpose of this part is to establish the rules 
and procedures for members of the uniformed services or their 
representatives to file claims for compensation for personal injury or 
death caused by the medical malpractice of a Department of Defense (DoD) 
health care provider. Claims under this part may be settled and paid by 
DoD under the Military Claims Act, Title 10, United States Code, Chapter 
163, specifically section 2733a of Title 10 (hereinafter 10 U.S.C. 
2733a, section 2733a, or the statute), as added to the Military Claims 
Act by section 731 of the National Defense Authorization Act for Fiscal 
Year 2020 (Pub. L. 116-92; 133 Stat. 1457). Claims are adjudicated under 
an administrative process. This administrative process follows a set of 
rules and procedures set forth in this part. These rules and procedures 
are based primarily on a number of detailed provisions in the statute.
    (b) Relationship to military and veterans' compensation programs. 
Federal law provides a comprehensive system of compensation for military 
members and their families in cases of death or disability incurred in 
military service. This system applies to all causes of death or 
disability incurred in service,

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whether due to combat injuries, training mishaps, motor vehicle 
accidents, naturally occurring illnesses, household events, with limited 
exceptions (e.g., when the member is absent without leave or the injury 
is due to the member's intentional misconduct or willful negligence). 
This comprehensive compensation system applies to cases of personal 
injury or death caused by medical malpractice incurred in service as it 
does to all other causes. This part provides for the possibility of 
separate compensation in certain cases of medical malpractice but in no 
other type of case. A medical malpractice claim under this part will 
have no effect on any other compensation the member or family is 
entitled to under the comprehensive compensation system applicable to 
all members. However, a claimant under this part does not receive 
duplicate compensation for the same harm. Thus, with some limited 
exceptions, a potential malpractice damages award under this part is 
reduced or offset by the total value of the compensation the claimant is 
expected to receive under the comprehensive compensation system, whether 
or not the claimant ultimately receives such compensation, and the 
ultimate amount of a settlement under this part will be the amount, if 
any, that a potential malpractice damages award determined under the 
terms and conditions of this part exceeds the value of all the 
compensation and benefits the claimant is otherwise expected to receive 
from DoD or the Department of Veterans Affairs (VA).
    (c) Relationship to Healthcare Resolutions Program. The medical 
malpractice claims process under this part is separate from the Military 
Health System Healthcare Resolutions Program. The Healthcare Resolutions 
Program, under Defense Health Agency Procedural Instruction 6025.17, is 
an independent, neutral, and confidential system that promotes full 
disclosure of factual information--including information involving 
adverse events and outcomes--and mediation of clinical conflicts. The 
program is part of the Military Health System's commitment to 
transparency, which also includes a patient's right to be heard as part 
of any quality assurance review of care provided. The Healthcare 
Resolutions Program is not involved in legal proceedings, compensation 
matters, or the adjudication of claims under this part. However, any 
member of the uniformed services may engage the Healthcare Resolutions 
Program to address non-monetary aspects of his or her belief that he or 
she has been harmed by medical malpractice by a DoD health care 
provider. Because it is not involved in claims or legal proceedings, the 
Healthcare Resolutions Program disengages when a claim is filed by a 
service member or his or her representative.



Sec.  45.2  Claims payable and not payable in general.

    (a) In general. This section sets forth a number of terms and 
conditions included in the statute (10 U.S.C. 2733a) that describe 
claims that are payable and not payable. Some of these terms and 
conditions are discussed in more detail in later sections of this part.
    (b) Claim not otherwise payable. As required by the statute (section 
2733a(b)(5)), a claim under this Part may only be paid if it is not 
allowed to be settled and paid under any other provision of law. This 
limitation provides that it cannot be a claim allowed under the Federal 
Tort Claims Act (FTCA), 28 U.S.C. 1346 and Chapter 171. Claims against 
the United States filed by members of the uniformed services or their 
representatives for personal injury or death incident to service are not 
allowed under the FTCA. These claims may be allowed under this Part if 
they meet the other applicable terms and conditions.
    (c) Time period for filing claims. (1) The statute (section 
2733a(b)(4)) requires that a claim must be received by DoD in writing 
within two years after the claim accrues. For mailed claims, timeliness 
of receipt will be determined by the postmark.
    (2) There is a special rule for claims filed during calendar year 
2020. Such claims must be presented to DoD in writing within three years 
after the claim accrues. The tolling provisions under the Servicemembers 
Civil Relief Act, 50 U.S.C. 3901-4043, are not applicable under this 
section.

[[Page 147]]

    (3) For purposes of applying the time limit for filing a claim, a 
claim accrues as of the latter of:
    (i) The date of the act or omission by a DoD health care provider 
that is the basis of the malpractice claim; or
    (ii) The date on which the claimant knew, or with the exercise of 
reasonable diligence should have known, of the injury and that 
malpractice was its possible cause.
    (4) State statutes of limitation or repose are inapplicable.
    (d) No claim for attorney's fees or expenses in addition to 
statutorily allowed amount.In calculating the amount that may be paid 
under this part, consistent with section 2733a(c)(2), there is no 
additional amount permitted for attorneys' fees or expenses associated 
with filing a claim or participating in any process relating to the 
adjudication of the claim. The adjudication of claims under this part is 
not an adversarial proceeding and there is no prevailing party to be 
awarded costs.
    (e) Claims adjudication based on national standards. As required by 
the statute (section 2733a(f)(2)(B)), claims are adjudicated based on 
national standards consistent with generally accepted standards used in 
a majority of States in adjudicating claims under the FTCA. The 
determination of the applicable law is without regard to the place of 
occurrence of the alleged medical malpractice giving rise to the claim 
or the military or executive department or service of the member of the 
uniformed services. Foreign law has no role in the case of claims 
arising in foreign countries. The legal standards set forth in other 
sections of this part apply to determinations with respect to:
    (1) Whether an act or omission by a DoD health care provider in the 
context of performing medical, dental, or related health care functions 
was negligent or wrongful, considering the specific facts and 
circumstances;
    (2) Whether the personal injury or death of the member was 
proximately caused by a negligent or wrongful act or omission of a DoD 
health care provider in the context of performing medical, dental, or 
related health care functions, considering the specific facts and 
circumstances;
    (3) Requirements relating to proof of duty, breach of duty, and 
causation resulting in compensable injury or loss, subject to such 
exclusions as may be established by this Part; and
    (4) Calculation of damages that may be paid.
    (f) Certain other claims not payable. The generally accepted legal 
standards under FTCA that are required to be reflected in the 
adjudication of claims under this Part include certain exclusions that 
are part of FTCA law.
    (1) The due care and discretionary function exceptions apply to 
claims under this part.
    (i) The due care and discretionary function exceptions, 28 U.S.C. 
2680(a), bar any claim based upon an act or omission of a DoD health 
care provider, exercising due care, in the execution of a statute or 
regulation or based upon the exercise or performance of any 
discretionary function or duty on the part of DoD or a DoD health care 
provider.
    (ii) The due care exception applies to any DoD health care 
provider's act, if carried out with due care, or omission, if omitted 
with due care, in the execution of a statute or regulation. The due care 
exception applies whether or not the statute or regulation is valid.
    (iii) The discretionary function exception applies to the exercise 
or performance or the failure to exercise or perform any discretionary 
function. The discretionary function exception applies whether or not 
the discretion involved was abused. It applies to any DoD health care 
provider's act or omission that is a permissible exercise of discretion 
under the applicable statutes, regulations, or directive and, by its 
nature, is susceptible to policy analysis. The discretionary function 
exception applies to DoD policy decisions regarding clinical practice, 
patient triage, force health protection, medical readiness, health 
promotion, disease prevention, medical screening, health assessment, 
resource management, hiring and retaining employees, selection of 
contractors, military standards, fitness for duty, duty limitations, and 
health information management, among other matters affecting or 
involving the provision of health care services.

[[Page 148]]

    (2) The quarantine exception applies to claims under this part. This 
exception, consistent with 28 U.S.C. 2680(f), bars any claim for damages 
caused by the imposition or establishment of a quarantine by any agency 
of the U.S. Government.
    (3) The combatant activities exception applies to claims under this 
part. This exception, consistent with 28 U.S.C. 2680(j), bars any claim 
arising out of the combatant activities of the military or naval forces, 
or the Coast Guard, in time of war.
    (4) The FTCA's exclusions under 28 U.S.C. 2674 of interest prior to 
judgment and punitive damages apply to any claim under this part.
    (5) Claims based on intentional or negligent infliction of emotional 
distress, other intentional torts, wrongful death/life, strict 
liability, products liability, informed consent, negligent 
credentialing, or joint and severable liability theories are not payable 
under this part.
    (6) Breach of medical confidentiality is not actionable under this 
part.



Sec.  45.3  Authorized claimants.

    (a) In general. This section describes who may file a claim under 
this part. A claim may be filed only by a member of a uniformed service 
or an authorized representative on behalf of a member who is deceased or 
otherwise unable to file the claim due to incapacitation. A member of 
the uniformed services includes a cadet or midshipman from the military 
academies. It does not include an applicant to join a uniformed service 
or a delayed entry program recruit who has not been accessed into active 
duty.
    (1) As provided in section 2733a(b)(1), the claim must be filed by 
the member of the uniformed services who is the subject of the medical 
malpractice claim or by an authorized representative on behalf of such 
member who is deceased or otherwise unable to file the claim due to 
incapacitation.
    (2) In some circumstances, a claim otherwise payable under this part 
may be filed by or on behalf of a reserve component member. As provided 
in section 2733a(i)(3), those circumstances are that the claim is in 
connection with personal injury or death that occurred while the member 
was in a Federal duty status. This circumstance includes personal 
injury, death, or negligent diagnosis resulting from a negligent or 
wrongful act or omission that occurred while the member was in a Federal 
duty status. In the case of a member of the National Guard of the United 
States, a period of Federal duty status may be under Title 10, U.S. 
Code, or, based on 10 U.S.C. 12602, duty under title 32, U.S. Code. 
Other duty under State control is not covered.
    (b) Third party claims not allowed. The statute only authorizes 
claims by members of the uniformed services. Thus, the regulation does 
not permit derivative claims or other claims from third parties alleging 
a separate injury as a result of harm to a member of the uniformed 
services. This prohibition includes claims by family members or 
survivors arising out of the circumstances of personal injury or death 
of a member.
    (c) Incident to service requirement. Under section 2733a(a), the 
member's personal injury or death must be incident to service. An injury 
or death is incident to service if the medical care provided is based on 
the member's status under this section.



Sec.  45.4  Filing a claim.

    (a) In general. A member of a uniformed service or, when applicable, 
an authorized representative may file a claim in writing. Any written 
claim will suffice as long as it is meets the requirements below and is 
signed by the claimant or authorized representative.
    (b) Contents of the claim. The filed claim must include the 
following:
    (1) The factual basis for the claim, including identification of the 
conduct allegedly constituting malpractice (e.g., the theory of 
liability and/or breach of the applicable standard of care);
    (2) A demand for a specified dollar amount;
    (3) If the claim is filed by an attorney, an affidavit from the 
claimant affirming the attorney's authority to file the claim on behalf 
of the claimant;
    (4) If the claim is filed by an authorized representative, an 
affidavit from

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the representative affirming his/her authority to file on behalf of the 
claimant;
    (5) If the claimant is not represented by an attorney, unless the 
alleged medical malpractice is within the general knowledge and 
experience of ordinary laypersons, an affidavit from the claimant 
affirming that the claimant consulted with a health care professional 
who opined that a DoD health care provider breached the standard of care 
that caused the alleged harm. Alternatively, if the claimant is 
represented by an attorney, unless the alleged medical malpractice is 
within the general knowledge and experience of ordinary laypersons, the 
claimant must submit an affidavit from the attorney affirming that the 
attorney consulted with a health care professional who opined that a DoD 
health care provider breached the standard of care that caused the 
alleged harm. The requirement in this paragraph does not apply to claims 
filed prior to the publication of this Interim Final Rule.
    (c) Additional information to file in support of claim. In the 
investigation and adjudication of a claim, DoD will access pertinent DoD 
records and information systems regarding the member in order to 
consider fully all facts that have a bearing on the claim. This 
collection may include information in personnel and medical records, the 
Defense Eligibility and Enrollment System (DEERS), reports of 
investigation, medical quality assurance records, and other information. 
Upon DoD's request, a claimant must identify any pertinent health care 
providers outside of DoD, and provide a copy of his or her medical 
records from each of the identified health care providers, including a 
statement that the records are complete. A claimant must provide medical 
release(s) upon DoD's request, enabling DoD to obtain medical records 
from these health care providers. Claimants may submit any other 
relevant information they believe supports their claim, such as 
information regarding the medical care involved, the acts or omissions 
the claimant believes constitute malpractice, medical opinions from non-
DoD providers, and evidence of pain and suffering or other harm.
    (d) Substantiating the claim. Under section 2733a(b)(6), DoD is 
allowed to pay a claim only if it is substantiated. The claimant has the 
burden to substantiate the claim by a preponderance of the evidence. 
Upon receipt of a claim, DoD may require that the claimant provide 
additional information DoD believes is necessary for adjudication of the 
claim, including the submission of an expert opinion at the claimant's 
expense. DoD may determine an expert opinion is not necessary when 
negligence is within the general knowledge and experience of ordinary 
laypersons, such as when a foreign object is unintentionally left in the 
body or an operation occurred on the wrong body part.
    (e) No discovery. There is no discovery process for adjudication of 
claims under this Part. However, claimants may obtain copies of records 
in DoD's possession that are part of their personnel and medical records 
in accordance with DoD Instruction 5400.11, ``DoD Privacy and Civil 
Liberties Programs''; DoD Instruction 6025.18, ``Health Insurance 
Portability and Accountability Act (HIPAA) Privacy Rule Compliance in 
DoD Health Care Programs,'' and supplemental DoD issuances to those 
Instructions. Claimants are not entitled to attorney work product, 
attorney client privileged communications, material that is part of a 
DoD Quality Assurance Program protected under 10 U.S.C. 1102, 
predecisional material, or other privileged information.



Sec.  45.5  Elements of payable claim: facilities and providers.

    (a) In general. This section describes some of the necessary 
elements of a payable claim. The health care involved must occur in a 
covered military medical treatment facility (MTF) and be provided by a 
DoD health care provider acting within the scope of employment.
    (b) Covered MTF. (1) As provided in section 2733a(b)(3) and (i)(1), 
the alleged act or omission constituting medical malpractice must have 
occurred in a covered MTF. For the purposes of this regulation, an MTF 
is a medical center, inpatient hospital, or ambulatory

[[Page 150]]

care center, as those facilities are described in 10 U.S.C. 1073d. Fixed 
dental clinics are also included.
    (2) A claim may not be based on health care services provided by DoD 
health care providers in any other location, such as in the field, 
battalion aid stations, ships, planes, deployed settings, or in any 
other place that is not a covered MTF.
    (c) DoD health care provider. As provided in section 2733a(i)(2), a 
DoD health care provider is a member of the uniformed services, DoD 
civilian employee, or personal services contractor of the Department 
(under 10 U.S.C. 1091) authorized by DoD to provide health care 
services. A non-personal services contractor or a volunteer working in 
an MTF is not a DoD health care provider for purposes of a payable claim 
under this part.
    (d) Scope of employment. As provided in section 2733a(b)(2), for a 
claim to be payable under this part, the DoD health care provider whose 
negligent or wrongful act or omission is the basis of a claim must be 
acting within the scope of employment, meaning that the provider was 
acting in furtherance of his or her duties in the MTF. For personal 
services contractors, ``scope of employment'' means the contractor was 
acting within the scope of his or her duties.



Sec.  45.6  Element of payable claim: negligent or wrongful act or omission.

    (a) In general. To establish the element of a negligent or wrongful 
act or omission, a member of a uniformed service (``claimant'') 
allegedly harmed incident to service by medical malpractice must prove 
by a preponderance of the evidence that one or more DoD health care 
providers in a covered MTF acting within the scope of employment had a 
professional duty to the patient involved and by act or omission 
breached that duty which proximately caused the injury or death.
    (b) Standard of care. The professional duty referred to in paragraph 
(a) of this section is a duty to exercise the same degree of skill, 
care, and knowledge ordinarily expected of providers in the same field 
or specialty in a comparable clinical setting. The standard of care is 
determined based on generally recognized national standards, not on the 
standards of a particular region, State or locality. However, standard 
of care in the military context may be impacted by the particular 
setting and the availability of resources in that setting.
    (c) Breach of the standard of care. A breach referred to in 
paragraph (a) occurs if the health care provider or providers by act or 
omission did not meet the standard of care.
    (d) Presenting evidence of the standard of care. A claimant may 
present evidence to support what the claimant believes is the standard 
of care relevant to the care involved in the claim.
    (e) Presenting evidence of a failure to meet the standard of care. 
(1) A claimant may present evidence to support what the claimant 
believes demonstrates the failure of one or more DoD health care 
providers to meet the standard of care. That evidence may be based on 
the medical records of the patient involved and other documentary 
evidence of the acts or omissions of health care providers involved, 
including expert reports.
    (2) Evidence of an apology by a health care provider or any other 
DoD or Military Department personnel, such as hospital directors or 
commanders, to or regarding a patient will not be considered evidence of 
medical malpractice. Providers often apologize for unexpected or adverse 
outcomes independent of whether the provider's acts or omissions met the 
standard of care.
    (f) Information DoD will consider in assessing whether there was a 
negligent or wrongful act or omission. (1) In addition to the 
information submitted by the claimant, DoD may consider all relevant 
information in DoD records and information systems or otherwise 
available to DoD, including information prepared by or on behalf of DoD 
in connection with adjudication of the claim.
    (2) DoD will consider medical quality assurance records relevant to 
the health care provided to the patient. DoD's Clinical Quality 
Management Program features reviews of many circumstances of clinical 
care. Results of any such reviews of the care involved

[[Page 151]]

in the claim that occurred before or after the claim was filed may be 
considered by DoD in the adjudication of the claim. As required by 10 
U.S.C. 1102, DoD medical quality assurance records are confidential. 
While such records may be used by DoD, any information contained in or 
derived from such records may not be disclosed to the claimant.



Sec.  45.7  Element of payable claim: proximate cause.

    (a) In general. (1) In a case otherwise payable under this part, a 
claimant must prove by a preponderance of evidence that a negligent or 
wrongful act or omission by one or more DoD health care providers was 
the proximate cause of the harm suffered by the member.
    (2) Under section 2733a(c)(1), DoD is liable for only the portion of 
compensable injury, loss, or damages attributable to the medical 
malpractice of a DoD health care provider. To the extent other causes 
contributed to the personal injury or death of the member, whether pre-
existing, concurrent, or subsequent, the potential amount of 
compensation under this regulation will be reduced by that proportion of 
the alternative cause(s).
    (b) Comparative negligence. A rule of modified comparative 
negligence will apply to claims under this part. If a claimant was 
contributorily negligent in relation to the health care provided, 
damages will be reduced by the proportion of fault assigned to the 
Service member. If the claimant's own negligence constituted more than 
50% of the fault, the claim is not payable.
    (c) Loss of chance or failure to diagnose. A claimant may recover 
for loss of chance for a more favorable clinical outcome in the 
diagnosis and treatment of his or her illness or injury. The claimant 
must prove by a preponderance of the evidence that one or more DoD 
health care providers in a covered MTF acting within the scope of 
employment had a professional duty to the claimant and by act or 
omission breached that duty and proximately caused harm. In proving that 
the claimant suffered harm, the claimant must prove that the lost chance 
for a better outcome or the failure to diagnose a condition is 
attributable to the provider or providers. The claimant must prove a 
substantial loss as opposed to a theoretical or de minimis loss. The 
portion of harm attributable to the breach of duty will be the 
percentage of chance lost in proportion to the overall clinical outcome. 
Damages will be calculated based on this portion of harm.
    (d) Information DoD will consider in assessing proximate cause. (1) 
In addition to the information submitted by the claimant, DoD may 
consider all relevant information in DoD records or information systems 
or otherwise available to DoD, including information prepared by or on 
behalf of DoD in connection with adjudication of the claim.
    (2) DoD will consider medical quality assurance records relevant to 
the health care provided to the patient. DoD's Clinical Quality 
Management Program features reviews of many circumstances of clinical 
care. Results of any such reviews of the care involved in the claim that 
occurred before or after the claim was filed may be considered by DoD in 
the adjudication of the claim. As required by 10 U.S.C. 1102, DoD 
medical quality assurance records are confidential. While such records 
may be used by DoD, any information contained in or derived from such 
records may not be disclosed to the claimant.



Sec.  45.8  Calculation of damages: disability rating.

    (a) In general. For certain purposes relating to calculating damages 
for a member in a claim under this part, DoD will use the disability 
rating established in the DoD Disability Evaluation System under DoD 
Instruction 1332.18 \1\ or otherwise established by the Department of 
Veterans Affairs (VA) to assess the extent of the harm alleged to have 
been caused by medical malpractice. This rating is stated as a 
disability percentage under the VA Schedule for Rating Disabilities 
(VASRD) under 38 CFR part 4 or a successor provision. Under 10 U.S.C. 
1216a, DoD is required to use the VASRD for assessing

[[Page 152]]

the degree of disability of a member under the Disability Evaluation 
System. DoD will use it for purposes of this part as well. A VASRD-based 
disability percentage represents the Government's estimate of the lost 
earning capacity attributable to an illness or injury incurred during 
military service. A Service member medically separated or retired 
through the Disability Evaluation System may receive distinct DoD and VA 
disability ratings. DoD will consider disability ratings, to the extent 
DoD deems pertinent, for other purposes relating to calculating damages, 
such as calculating loss of earning capacity and non-economic damages.
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    \1\ Available at https://www.esd.whs.mil/Portals/54/ Documents/DD/
issuances/ dodi/133218p.pdf?ver= 2018-05-24-133105-050.
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    (b) Disability rating procedures. (1) If a claimant disagrees with 
the disability rating received in the DoD or VA disability evaluation or 
claims processes, the member must pursue the appeal opportunities 
available within the DoD and/or VA to change the member's disability 
rating.
    (2) In any case in which a member has filed a claim under this part 
and also has a disability determination pending under DoD or VA 
disability evaluation or claims processes applicable to determinations 
or appeals, DoD may, in its discretion, hold in abeyance the claim under 
this part pending the outcome of the disability evaluation or claims 
process. DoD will notify the claimant that his or her claim is being 
held in abeyance.
    (3) In any case in which a member has not yet received a DoD or VA 
disability evaluation because the member is retained on active duty, DoD 
will use the VASRD as the standard for assessing the degree of 
disability of the member relevant to the member's claim under this part.



Sec.  45.9  Calculation of damages: economic damages.

    (a) In general. Economic damages are one component of a potential 
damages award. The claimant has the burden to prove the amount of 
economic damages by a preponderance of evidence. Estimates of future 
losses must be discounted to present value.
    (b) Elements of economic damages in personal injury cases. Elements 
of economic damage are limited to the following:
    (1) Past expenses, including medical, hospital, and related expenses 
actually incurred. These expenses do not include health care services 
provided or paid for by DoD or VA.
    (2) Future medical, hospital, and related expenses. These expenses 
do not include health care goods and services for which the member is 
entitled to receive from, or be reimbursed for by, DoD (including 
TRICARE) or VA. Goods and services provided or paid for by DoD or VA are 
deemed sufficient to meet the claimant's needs for that particular type 
of good or service.
    (3) Past lost earnings unrelated to compensation as a member of the 
uniformed services. Appropriate documentation is required.
    (4) Loss of earning capacity, after deducting for the claimant's 
personal consumption from the date of injury causing death until 
expiration of the claimant's work-life expectancy, as substantiated by 
appropriate documentation. In addition, loss of retirement benefits is 
compensable and similarly discounted after appropriate deductions. 
Estimates must be discounted to present value.
    (5) Compensation when the claimant can no longer perform essential 
household services on his or her own behalf, including activities of 
daily living. This compensation does not include goods and services the 
member is entitled to receive from, or be reimbursed for by, DoD or VA. 
Goods and services provided or paid for by DoD or VA are deemed 
sufficient to meet the claimant's needs for that particular type of good 
or service.
    (c) Information DoD will consider in calculating economic damages. 
In addition to the information submitted by the claimant, DoD may 
consider all relevant information in DoD records or information systems 
or otherwise available to DoD, including assessments from appropriate 
documentary sources and experts available to DoD.

[[Page 153]]



Sec.  45.10  Calculation of damages: non-economic damages.

    (a) In general. Non-economic damages are one component of a 
potential damages award. The claimant has the burden of proof on the 
amount of non-economic damages by a preponderance of evidence.
    (b) Elements of non-economic damages. Elements of non-economic 
damage are limited to the following:
    (1) Past and future conscious pain and suffering by the claimant. 
This element is physical discomfort as well as mental and emotional 
trauma or distress. Loss of enjoyment of life is compensable. The 
inability to perform daily activities that one performed prior to 
injury, such as recreational activities, is included in this element. 
DoD may request an interview of or statement from the member or other 
person with primary knowledge of the claimant.
    (2) Physical disfigurement. This element is impairment resulting 
from an injury to a member that causes diminishment of beauty or 
symmetry of appearance rendering the member unsightly, misshapen, 
imperfect, or deformed. DoD may require a medical statement and 
photographs, documenting the claimant's condition.
    (c) Cap on non-economic damages. In any claim under this part, total 
non-economic damages may not exceed a cap amount. The current cap amount 
is $500,000. Updates to cap amounts in subsequent years will be 
published periodically, consistent with changes in prevailing amounts in 
the majority of the States with non-economic damages caps.
    (d) Information DoD will consider in calculating non-economic 
damages. In addition to the information submitted by the claimant, DoD 
may consider all relevant information in DoD records or otherwise 
available to DoD, including assessments from appropriate documentary 
sources and experts available to DoD.



Sec.  45.11  Calculation of damages: offsets for DoD and VA Government
compensation.

    (a) In general. Total potential damages calculated under this Part, 
both economic and non-economic, are reduced by offsetting most of the 
compensation otherwise provided or expected to be provided by DoD or VA 
for the same harm that is the subject of the medical malpractice claim. 
The general rule is that prospective medical malpractice damage awards 
are offset by DoD or VA payments and benefits that are primarily funded 
by Government appropriations. However, there is no offset for U.S. 
Government payments and benefits that are substantially funded by the 
military member.
    (b) Eligibility for payments and benefits. In determining the 
offsets that are applied to a medical malpractice damages award under 
this part, DoD presumes that a claimant will receive all the payments 
and benefits for which the claimant is expected to be eligible, whether 
or not the claimant has taken steps to obtain the payment or benefit or 
ultimately receives such payment or benefit. A claimant may present 
evidence that he or she is not eligible for a payment or benefit to 
rebut the presumption.
    (c) Information considered. In determining offsets under this 
section, DoD will consider all data available in DoD records or 
information systems, other U.S. Government records systems, and other 
information available to DoD. This data may include information on 
military pay and allowances, Disability Evaluation System outcomes, VA 
disability claims, marital status, number and ages of dependents, 
survivor benefits, and other information. Access to all such information 
will be in accordance with the Privacy Act, 5 U.S.C. 552a, and 
applicable implementing regulations.
    (d) Present value of future payments and benefits. In determining 
offsets under this section, DoD will estimate the present value of 
future payments and benefits. Many such payments and benefits in cases 
of disability or death are lifetime benefits for members or survivors. 
With respect to any lifetime payments or benefits that may terminate 
upon the remarriage of a surviving spouse, DoD will not assume a 
remarriage. Estimates will be based on actuarial information provided by 
the Chief Actuary, DoD Office of the Actuary, taking into consideration 
methods and assumptions approved by the DoD

[[Page 154]]

Board of Actuaries and DoD Medicare-Eligible Retiree Health Care Board 
of Actuaries, respectively, as of the recent actuarial valuation date.
    (e) Payment and benefit programs. The listings in this section of 
certain programs that offset and do not offset potential medical 
malpractice damages awards are not all-inclusive and are subject to 
adjustment as necessary to account for compensation otherwise provided 
by DoD or VA for the same harm that resulted from the medical 
malpractice. Because compensation programs are often changed by 
Congress, Federal agencies, or judicial decisions, DoD will annually 
review relevant programs and take account of any such changes for 
purposes of applying the rules of this section to the adjudication of 
claims under this part.
    (f) Payments and benefits that are offsets. Potential damage awards 
under this part are offset by the present value of the following 
payments and benefits:
    (1) Pay and allowances while a member remains on active duty or in 
an active status.
    (2) Disability retired pay in the case of retirement due to the 
disability caused by the alleged medical malpractice.
    (3) Disability severance pay in the case of non-retirement 
disability separation caused by the alleged medical malpractice.
    (4) Incapacitation pay.
    (5) Involuntary and voluntary separation pays and incentives.
    (6) Death gratuity.
    (7) Housing allowance continuation.
    (8) Survivor Benefit Plan.
    (9) VA disability compensation, to include Special Monthly 
Compensation, attributable to the disability resulting from the 
malpractice.
    (10) VA Dependency and Indemnity Compensation, attributable to the 
disability resulting from the malpractice.
    (11) Special Survivor Indemnity Allowance.
    (12) Special Compensation for Assistance with Activities of Daily 
Living.
    (13) Program of Comprehensive Assistance for Family Caregivers.
    (14) Fry Scholarship.
    (15) TRICARE coverage, including TRICARE-for-Life, for a disability 
retiree, family, or survivors. Future TRICARE coverage is part of the 
Government's compensation package for a disability retiree or survivor.
    (g) Payments and benefits that are not offsets. Potential awards 
under this Part are not offset by the present value of the following 
payments and benefits.
    (1) Servicemembers Group Life Insurance.
    (2) Traumatic Servicemembers Group Life Insurance.
    (3) Social Security disability benefits.
    (4) Social Security survivor benefits.
    (5) Prior Government contributions to a Thrift Savings Plan.
    (6) Commissary, exchange, and morale, welfare, and recreation 
facility access.
    (7) Value of legal assistance and other services provided by DoD.
    (8) Medical care provided while in active service or in an active 
status prior to death, retirement, or separation.

[86 FR 32208, June 17, 2021; 86 FR 33885, June 28, 2021]



Sec.  45.12  Initial and Final Determinations.

    (a) Denial of claim--deficient filing. If a claim does not contain 
the information required by Sec.  45.4(b), DoD will issue an Initial 
Determination stating that DoD will issue a Final Determination denying 
the claim unless the deficiency is cured.
    (1) DoD will provide the claimant 30 calendar days following receipt 
of the Initial Determination to cure the deficiency, unless an extension 
of time is granted for good cause. The date of receipt of the Initial 
Determination will be presumed to be five calendar days after the date 
the Initial Determination was mailed or emailed, unless there is 
evidence to the contrary.
    (2) If the claimant does not timely cure the deficiency, DoD will 
issue a Final Determination denying the claim for failure to cure the 
deficiency. A Final Determination issued under paragraph (a) of this 
section may not be appealed.
    (b) Denial of claim--failure to state a claim. If a claim does not, 
based upon the information provided, state a claim cognizable under 10 
U.S.C. 2733a or this interim final rule, DoD will issue an

[[Page 155]]

Initial Determination denying the claim. Such an Initial Determination 
may be appealed under the procedures in Sec.  45.13.
    (c) Denial of claim--absence of an expert report. Where applicable, 
if the claimant initially does not submit an expert report in support of 
his or her claim and DoD intends to deny the claim, DoD will issue an 
Initial Determination stating, without more, that DoD will issue a Final 
Determination denying the claim in the absence of an expert report or 
manifest negligence.
    (1) DoD will provide the claimant 90 calendar days following receipt 
of the Initial Determination to submit an expert report, unless an 
extension of time is granted for good cause. The date of receipt of the 
Initial Determination will be presumed to be five calendar days after 
the date the Initial Determination was mailed or emailed, unless there 
is evidence to the contrary.
    (2) If the claimant does not timely submit an expert report, DoD 
will issue a Final Determination denying the claim and will provide a 
brief explanation of the basis for the denial to the extent practicable. 
A Final Determination issued under this paragraph (c) may not be 
appealed.
    (d) Initial Determination. (1) Upon consideration of the information 
provided by the claimant and relevant information available to DoD, DoD 
will issue the claimant a written Initial Determination.
    (2) The Initial Determination may be in the form of a certified 
letter and/or an email. The Initial Determination may take the form of a 
grant of a claim and an offer of a settlement or a denial of the claim. 
Subject to applicable confidentiality requirements, such as 10 U.S.C. 
1102, privileged information, and paragraph (a) of this section, DoD 
will provide a brief explanation of the basis for the Initial 
Determination to the extent practicable.
    (3) The Initial Determination will include information on the 
claimant's right to appeal if the claimant does not agree with the 
Initial Determination.
    (4) The claimant may request reconsideration of the damages 
calculation contained in an Initial Determination if, within the time 
otherwise allowed to file an administrative appeal, the claimant 
identifies an alleged clear error--a definite and firm conviction that a 
mistake has been committed--in the damages calculation. DoD will review 
the alleged clear error and will issue an Initial Determination on 
Reconsideration either granting or denying reconsideration of the 
Initial Determination and adjusting the damages calculation, if 
appropriate. The Initial Determination on Reconsideration will include 
information on the claimant's right to appeal under the procedures in 
Sec.  45.13.



Sec.  45.13  Appeals.

    (a) In general. This section describes the appeals process 
applicable to Initial Determinations under this part, which include 
Initial Determinations on Reconsideration. With the exception of Initial 
Determinations issued under Sec.  45.12(a), in any case in which the 
claimant disagrees with an Initial Determination, the claimant has a 
right to file an administrative appeal. The claimant should explain why 
he or she disagrees with the Initial Determination, but may not submit 
additional information in support of the claim unless requested to do so 
by DoD. An appeal must be received within 60 calendar days of the date 
of receipt by the claimant/counsel of the Initial Determination, unless 
an extension of time is granted for good cause. The date of receipt of 
the Initial Determination will be presumed to be five calendar days 
after the date the Initial Determination was mailed or emailed, unless 
there is evidence to the contrary. If no timely appeal is received, DoD 
will issue a Final Determination.
    (b) Appeals Board. Appeals will be decided by an Appeals Board 
administratively supported by the Defense Health Agency. Although there 
may be, in DoD's discretion, multiple offices that initially adjudicate 
claims under this part (such as offices in the Military Departments), 
there is a single DoD Appeals Board. The Appeals Board will consist of 
not fewer than three and no more than five DoD officials designated by 
the Defense Health Agency from that agency and/or the Military 
Departments who are experienced in medical malpractice claims 
adjudication. Appeals Board members must not have

[[Page 156]]

had any previous role in the claims adjudication under appeal. Appeals 
are decided on a written record and decisions will be approved by a 
majority of the members. There is no adversarial proceeding and no 
hearing. There is no opposing party. The Appeals Board may obtain 
information or assessments from appropriate sources, including from the 
claimant, to assist in deciding the appeal. The Appeals Board is bound 
by the provisions of this Part and will not consider challenges to them.
    (c) Burden of proof. The claimant on appeal has the burden of proof 
by a preponderance of evidence that the claim is substantiated in the 
written record considered as a whole.
    (d) Appeals Board decisions. (1) Every claimant will be provided a 
written Final Determination on the claimant's appeal. The Final 
Determination may adopt by reference the Initial Determination or revise 
the Initial Determination, as appropriate. If the Final Determination 
revises the Initial Determination, DoD will provide a brief explanation 
of the basis for the revisions to the extent practicable.
    (2) An Appeals Board decision is final and conclusive. 10 U.S.C. 
2735.
    (3) The Appeals Board may reverse the Initial Determination to grant 
or deny a claim and may adjust the settlement amount contained in the 
Initial Determination either upwards or downwards as appropriate.



Sec.  45.14  Final and conclusive resolution.

    (a) Administrative adjudication final. As provided in 10 U.S.C. 
2735, the adjudication and settlement of a claim under this part is 
final and conclusive and not subject to review in any court. Unlike the 
FTCA, the Military Claims Act, 10 U.S.C. chapter 163, which provides the 
authority for this part, does not give Federal courts jurisdiction over 
claims. Further, no claim under this Part may be paid unless the amount 
tendered is accepted by the claimant in full satisfaction.
    (b) Additional terms of settlement agreement. (1) Settlement 
agreements under this part will incorporate the requirement of section 
2733a(g)(1) that no attorney may charge, demand, receive, or collect for 
services rendered, fees in excess of 20 percent of any claim payment 
amount under this part.
    (2) Because settlement and payment of a claim under this part is 
under section 2733a(b)(5) conditional on the claim not being allowed to 
be settled and paid under any other provision of law, a settlement 
agreement under this part will include a provision that it bars any 
other claim against the United States or DoD health care providers 
arising from the same set of facts.



Sec.  45.15  Other claims procedures and administrative matters.

    (a) Payment of damages. In the event damages are awarded, the 
claimant or the claimant's estate is entitled to payment of those 
damages.
    (b) Communication through counsel. If the claimant is represented by 
counsel, all communications will be through the claimant's counsel.
    (c) Remedies for filing false claims or making false statements. 
Remedies available to the United States for filing false claims with 
Federal agencies or making false statements to Federal agencies and 
officials are applicable to claims and statements made in connection 
with claims under this part. Applicable authorities include 31 U.S.C. 
3729 and 18 U.S.C. 1001. False claims and claims supported by false 
statements will be denied.
    (d) Reports to the Defense Health Agency. As provided in section 
2733a(e), not later than 30 calendar days after a Final Determination of 
medical malpractice or the payment of all or a portion of a claim under 
this part, a report documenting that determination is sent to the 
Director, Defense Health Agency to be used for all necessary and 
appropriate purposes, including those actions undertaken as part of 
DoD's Clinical Quality Management Program.
    (e) Monitoring claims adjudications under this part. The General 
Counsel of the Defense Health Agency will monitor the performance of the 
claims adjudications structures and procedures under this part, 
including accounting for the number of claims processed under this part 
and the resolution of each claim and identifying means to enhance the 
effectiveness of the claims adjudication process.

[[Page 157]]

    (f) Authority for actions under this part. To ensure consistency and 
compliance with statutory requirements, supplementation of the 
procedures in this part is not permitted without approval in writing by 
the General Counsel of the Department of Defense. The General Counsel of 
the Department of Defense, under DoD Directive 5145.01, ``General 
Counsel of the Department of Defense,'' may delegate in writing 
authority for making Initial and Final Determinations, and other actions 
by DoD officials under this part. As used in this part, and at DoD's 
discretion, ``DoD'' may include, but is not limited to, Military 
Departments.



PART 47_ACTIVE DUTY SERVICE FOR CIVILIAN OR CONTRACTUAL GROUPS-
-Table of Contents



Sec.
47.1 Purpose.
47.2 Applicability and scope.
47.3 Definitions.
47.4 Policy.
47.5 Responsibilities.
47.6 Procedures.

Appendix A to Part 47--Instructions for Submitting Group Applications 
          Under Public Law 95-202
Appendix B to Part 47--The DoD Civilian/Military Service Review Board 
          and the Advisory Panel

    Authority: 38 U.S.C. 106 note.

    Source: 54 FR 39993, Sept. 29, 1989, unless otherwise noted.



Sec.  47.1  Purpose.

    This document:
    (a) Revises 32 CFR part 47 and implements Public Law 95-202.
    (b) Directs the Secretary of the Air Force to determine if an 
established group of civilian employees or contract workers provided 
service to the U.S. Armed Forces in a manner considered active military 
service for Department of Veterans Affairs (VA) benefits.
    (c) Establishes the DoD Civilian/Military Service Review Board and 
the Advisory Panel.
    (d) Establishes policy, assigns responsibilities, prescribes 
application procedures for groups and individuals, and clarifies the 
factors used to determine active duty (AD) service.



Sec.  47.2  Applicability and scope.

    This part:
    (a) Applies to the Office of the Secretary of Defense (OSD), the 
Military Departments, and by agreement with the Department of 
Transportation (DoT), the U.S. Coast Guard.
    (b) Applies to any group application considered under Public Law 95-
202 after September 11, 1989 and to any individual who applies for 
discharge documents as a member of a group recognized by the Secretary 
of the Air Force.



Sec.  47.3  Definitions.

    Armed conflict. A prolonged period of sustained combat involving 
members of the U.S. Armed Forces against a foreign belligerent. The term 
connotes more than a military engagement of limited duration or for 
limited objectives, and involves a significant use of military and 
civilian forces.
    (a) Examples of armed conflict are World Wars I and II, and the 
Korean and Vietnam Conflicts.
    (b) Examples of military actions that are not armed conflicts are as 
follows:
    (1) The incursion into Lebanon in 1958, and the peacekeeping force 
there in 1983 and 1984.
    (2) The incursions into the Dominican Republic in 1965 and into 
Libya in 1986.
    (3) The intervention into Grenada in 1983.
    Civilian or contractual group. An organization similarly situated to 
the Women's Air Forces Service Pilots (a group of Federal civilian 
employees attached to the U.S. Army Air Force in World War II). Those 
organization members rendered service to the U.S. Armed Forces during a 
period of armed conflict in a capacity that was then considered civilian 
employment with the Armed Forces, or the result of a contract with the 
U.S. Government, to provide direct support to the Armed Forces.
    Recognized group. A group whose service the Secretary of the Air 
Force administratively has determined to have been ``active duty for the 
purposes of all laws administered by the Department of Veterans 
Affairs''; i.e., VA benefits under 38 U.S.C. 101.

[[Page 158]]

    Similarly situated. A civilian or contractual group is similarly 
situated to the Women's Air Forces Service Pilots when it existed as an 
identifiable group at the time the service was being rendered to the 
U.S. Armed Forces during a period of armed conflict. Persons who 
individually provided support through civilian employment or contract, 
but who were not members of an identifiable group at the time the 
services were rendered, are not ``similarly situated'' to the Women's 
Air Forces Service Pilots of World War II.



Sec.  47.4  Policy.

    (a) Eligibility for consideration. To be eligible to apply for 
consideration under Public Law 95-202 and this part, a group must:
    (1) Have been similarly situated to the Women's Air Forces Service 
Pilots of World War II.
    (2) Have rendered service to the United States in what was 
considered civilian employment with the U.S. Armed Forces either through 
formal Civil Service hiring or less formal hiring if the engagement was 
created under the exigencies of war, or as the result of a contract with 
the U.S. Government to provide direct support to the U.S. Armed Forces.
    (3) Have rendered that service during a period of armed conflict.
    (4) Consist of living persons to whom VA benefits can accrue.
    (5) Not have already received benefits from the Federal Government 
for the service in question.
    (b) A determination of AD service that is considered to be 
equivalent to active military service is made on the extent to which the 
group was under the control of the U.S. Armed Forces in support of a 
military operation or mission during an armed conflict. The extent of 
control exerted over the group must be similar to that exerted over 
military personnel and shall be determined by, but not necessarily 
limited to, the following:
    (1) Incidents favoring equivalency--(i) Uniqueness of service. 
Civilian service (civilian employment or contractual service) is a vital 
element of the war-fighting capability of the Armed Forces. Civilian 
service during a period of armed conflict is not necessarily equivalent 
to active military service, even when performed in a combat zone. 
Service must be beyond that generally performed by civilian employees 
and must be occasioned by unique circumstances. For civilian service to 
be recognized under this part, the following factors must be present:
    (A) The group was created or organized by U.S. Government 
authorities to fill a wartime need or, if a group was not created 
specifically for a wartime need, but existed before that time, then its 
wartime mission was of a nature to substantially alter the 
organization's prewar character.
    (B) If the application is based on service in a combat zone, the 
mission of the group in a combat zone must have been substantially 
different from the mission of similar groups not in a combat zone.
    (ii) Organizational authority over the group. The concept of 
military control is reinforced if the military command authority 
determines such things as the structure of the civilian organization, 
the location of the group, the mission and activities of the group, and 
the staffing requirements to include the length of employment and pay 
grades of the members of the group.
    (iii) Integration into the military organization. Integrated 
civilian groups are subject to the regulations, standards, and control 
of the military command authority.
    (A) Examples include the following:
    (1) Exchanging military courtesies.
    (2) Wearing military clothing, insignia, and devices.
    (3) Assimilating the group into the military organizational 
structure.
    (4) Emoluments associated with military personnel; i.e., the use of 
commissaries and exchanges, and membership in military clubs.
    (B) A group fully integrated into the military would give the 
impression that the members of the group were military, except that they 
were paid and accounted for as civilians.
    (C) Integration into the military may lead to an expectation by 
members of the group that the service of the group imminently would be 
recognized as active military service. Such integration acts in favor of 
recognition.

[[Page 159]]

    (iv) Subjection to military discipline. During past armed conflicts, 
U.S. military commanders sometimes restricted the rights or liberties of 
civilian members as if they were military members.
    (A) Examples include the following:
    (1) Placing members under a curfew.
    (2) Requiring members to work extended hours or unusual shifts.
    (3) Changing duty assignments and responsibilities.
    (4) Restricting proximity travel to and from the military 
installation.
    (5) Imposing dress and grooming standards.
    (B) Consequences for noncompliance might include a loss of some 
privilege, dismissal from the group, or trial under military law. Such 
military discipline acts in favor of recognition.
    (v) Subjection to military justice. Military members are subject to 
the military criminal justice system. During times of war, ``persons 
serving with or accompanying an Armed Force in the field'' are subject 
to the military criminal justice code. Those who were serving with the 
U.S. Armed Forces may have been treated as if they were military and 
subjected to court-martial jurisdiction to maintain discipline. Such 
treatment is a factor in favor of recognition.
    (vi) Prohibition against members of the group joining the armed 
forces. Some organizations may have been formed to serve in a military 
capacity to overcome the operation of existing laws or treaty or because 
of a governmentally established policy to retain individuals in the 
group as part of a civilian force. These factors act in favor of 
recognition.
    (vii) Receipt of military training and/or achievement of military 
capability. If a group employed skills or resources that were enhanced 
as the result of military training or equipment designed or issued for 
that purpose, this acts toward recognition.
    (2) Incidents not favoring equivalency--(i) Submission to the U.S. 
Armed Forces for protection. A group that seeks protection and 
assistance from the U.S. Armed Forces and submits to military control 
for its own well-being is not deemed to have provided service to the 
Armed Forces equivalent to AD military service, even though the group 
may have been as follows:
    (A) Armed by the U.S. military for defensive purposes.
    (B) Routed by the U.S. military to avoid the enemy.
    (C) Instructed by the U.S. military for the defense of the group 
when attacked by, or in danger of attack by, the enemy.
    (D) Otherwise submitted themselves to the U.S. military for 
sustenance and protection.
    (ii) Permitted to resign. The ability of members to resign at will 
and without penalty acts against military control. Penalty may be direct 
and severe, such as confinement, or indirect and moderate, such as 
difficult and costly transportation from an overseas location.
    (iii) Prior recognition of group service. Recognition of a group's 
service by agencies of State or local government does not provide 
support in favor of recognition under this part.
    (3) Status of group in international law. In addition to other 
factors, consideration will be given to whether members of the group 
were regarded and treated as civilians, or assimilated to the Armed 
Forces as reflected in treaties, customary international law, judicial 
decisions, and U.S. diplomatic practice.
    (c) Reconsideration. Applications by groups previously denied a 
favorable determination by the Secretary of the Air Force shall be 
reconsidered under this part if the group submits evidence that is new, 
relevant, and substantive. Any request that the DoD Civilian/Military 
Service Review Board established hereunder (see Sec.  47.5(b)) 
determines does not provide new, relevant, and substantive evidence 
shall be returned to the applicant with the reasons for nonacceptance.
    (d) Counsel Representation. Neither the Department of Defense nor 
Department of Transportation shall provide representation by counsel or 
defray the cost of such representation with respect to any matter 
covered by this part.



Sec.  47.5  Responsibilities.

    (a) The Assistant Secretary of Defense (Force Management and 
Personnel) (ASD(FM&P)) shall:

[[Page 160]]

    (1) Appoint a primary and an alternate member in the grade of O-6 or 
GM-15 or higher to the DoD Civilian/Military Service Review Board.
    (2) Exercise oversight over the Military Departments and the U.S. 
Coast Guard for compliance with this Directive and in the issuance of 
discharge documents and casualty reports to members of recognized 
groups.
    (b) The Secretary of the Air Force, as the designated Executive 
Agent of the Secretary of Defense for the administration of Public Law 
95-202 shall:
    (1) Establish the DoD Civilian/Military Service Review Board and the 
Advisory Panel.
    (2) Appoint as board president a member or employee of the Air Force 
in grade O-6 or GM-15 or higher.
    (3) Request the Secretary of Transportation to appoint an additional 
voting member from the U.S. Coast Guard when the board is considering 
the application of a group claiming active Coast Guard service.
    (4) Provide a recorder and an assistant to maintain the records of 
the board and administer the functions of this part.
    (5) Provide nonvoting legal advisors and historians.
    (6) Publish notices of group applications and other Public Law 95-
202 announcements in the Federal Register.
    (7) Consider the rationale and recommendations of the DoD Civilian/
Military Service Review Board.
    (8) Determine whether the service rendered by a civilian or 
contractual group shall be considered AD service to the U.S. Armed 
Forces for all laws administered by the VA. The decision of the 
Secretary of the Air Force is final. There is no appeal.
    (9) Notify the following persons in writing when a group 
determination is made (if the Secretary of the Air Force disagrees with 
the rationale or recommendations of the board, the Secretary of the Air 
Force shall provide the decision and reasons for it in writing to these 
persons):
    (i) The applicant(s) for the group.
    (ii) The Secretary of the Department of Veterans Affairs.
    (iii) The Secretary of the Army.
    (iv) The Secretary of the Navy.
    (v) The ASD (FM&P).
    (vi) The Secretary of Transportation (when a group claims active 
Coast Guard service).
    (c) The Secretary of the Army, Secretary of the Navy, Secretary of 
the Air Force, and Commandant of the Coast Guard shall:
    (1) Appoint to the board a primary and an alternate member in the 
grades of O-6 or GM-15 or higher from their respective Military 
Services.
    (2) Process applications for discharge documents from individuals 
claiming membership in a recognized group in accordance with applicable 
laws, Directives, the Secretary of the Air Force rationale and 
instrument effecting a group determination, and any other instructions 
of the board.
    (3) Determine whether the applicant was a member of a recognized 
group after considering the individual's evidence of membership and 
verifying the service against available Government records.
    (4) Issue a DD Form 214, ``Certificate of Release or Discharge from 
Active Duty,'' and a DD Form 256, ``Honorable Discharge Certificate,'' 
or a DD Form 257, ``General Discharge Certificate,'' as appropriate, 
consistent with DoD Instruction 1336.1 \1\ and DoD Directive 1332.14 \2\ 
and the implementing documents of the appropriate statutes of the 
Military Department concerned or the DoT and the instructions of the DoD 
Civilian/Military Service Review Board.
---------------------------------------------------------------------------

    \1\ Copies may be obtained, if needed, from the U.S. Naval 
Publications and Forms Center, Attn: 1053, 5801 Tabor Avenue, 
Philadelphia, PA 19120.
    \2\ See footnote 1 to Sec.  47.5(c)(4).
---------------------------------------------------------------------------

    (5) Issue a DD Form 1300, ``Report of Casualty,'' in accordance with 
DoD Instruction 1300.9 \3\ if a verified member was killed during the 
period of AD service.
---------------------------------------------------------------------------

    \3\ See footnote 1 to Sec.  47.5(c)(4).
---------------------------------------------------------------------------

    (6) Ensure that each DD Form 214, ``Certificate of Release or 
Discharge from Active Duty,'' and each DD Form 1300, ``Report of 
Casualty,'' have the following statement entered in the ``Remarks'' 
section:

    This document, issued under Public Law 95-202 (38 U.S.C. 106 Note), 
administratively

[[Page 161]]

establishes active duty service for the purposes of Department of 
Veterans Affairs benefits.

    (7) Determine the equivalent military pay grade, when required by 
the Department of Veterans Affairs. For VA benefits, a pay grade is 
needed only in cases when an individual was killed or received service-
connected injuries or disease during the recognized period of AD 
service. A DD Form 1300 shall be issued with the equivalent pay grade 
annotated for a member who died during the recognized period of service. 
A DD Form 214 shall not include pay grade, unless the Department of 
Veterans Affairs requests that a grade determination be given. 
Determinations of equivalent grade shall be based on the following 
criteria in order of importance:
    (i) Officially recognized organizational grade or equivalent rank.
    (ii) The corresponding rank for civilian pay grade.
    (iii) If neither of the criteria in paragraphs (c)(7) (i) and (ii) 
of this section, and applies, only one of three grades may be issued; 
i.e., O-1, E-4, or E-1. Selection depends on the nature of the job 
performed, the level of supervision exercised, and the military 
privileges to which the individual was entitled.
    (8) Adjudicate applicant challenges to the period of AD service, 
characterization of service, or other administrative aspects of the 
discharge documents issued.



Sec.  47.6  Procedures.

    (a) Submitting group applications. Applications on behalf of a 
civilian or contractual group shall be submitted to the Secretary of the 
Air Force using the instructions in appendix A to this part.
    (b) Processing group applications. (1) When received, the recorder 
shall review the application for sufficiency and either return it for 
more information or accept it for consideration and announce acceptance 
in the Federal Register.
    (2) The recorder shall send the application to the appropriate 
advisory panel for historical review and analysis.
    (3) When received, the recorder shall send the advisory panel's 
report to the applicant for comment. The applicant's comments shall be 
referred to the advisory panel if significant disagreement requires 
resolution. Additional comments from the historians also shall be 
referred to the applicant for comment.
    (4) The DoD Civilian/Military Service Board shall consider the group 
application, as established, in paragraph (a) and paragraphs (b) (1) 
through (3) of this section.
    (5) After the Secretary of the Air Force makes a decision, the 
recorder shall notify the applicant of the decision and announce it in 
the ``Federal Register.''
    (c) Submitting individual applications. When a group is recognized, 
individual members may apply to the appropriate Military Department or 
to the Coast Guard for discharge documents. Submit applications on DD 
Form 2168, ``Application for Discharge of Member or Survivor of Member 
of Group Certified to Have Performed Active Duty with the Armed Forces 
of the United States.'' An application on behalf of a deceased or 
incompetent member submitted by the next of kin must be accompanied by 
proof of death or incompetence.



     Sec. Appendix A to Part 47--Instructions for Submitting Group 
                  Applications Under Public Law 95-202

    A. In Submitting a Group Application: 1. Define the group to include 
the time period that your group provided service to the U.S. Armed 
Forces.
    2. Show the relationship that the group had with the U.S. Armed 
Forces, the manner in which members of the group were employed, and the 
services the members of the group provided to the Armed Forces.
    3. Address each of the factors in Sec.  47.4.
    4. Substantiate and document the application. (The burden of proof 
rests with the applicant.)
    B. Send Completed Group Applications To: Secretary of the Air Force 
(SAF/MRC), DoD Civilian/Military Service Review Board, Washington, DC 
20330-1000.



  Sec. Appendix B to Part 47--The DoD Civilian/Military Service Review 
                      Board and the Advisory Panel

                     A. Organization and Management

    1. The board shall consist of a president selected from the 
Department of the Air Force and one representative each from the OSD,

[[Page 162]]

the Department of the Army, the Department of the Navy, the Department 
of the Air Force, and the U.S. Coast Guard (when the group claims active 
Coast Guard service). Each member shall have one vote except that the 
president shall vote only to break a tie. The board's decision is 
determined by majority vote. The president and two voting members shall 
constitute a quorum.
    2. The advisory panel shall act as a nonvoting adjunct to the board. 
It shall consist of historians selected by the Secretaries of the 
Military Departments and, if required, by the Secretary of 
Transportation. The respective Military Departments and the DOT shall 
ensure that the advisory panel is provided with administrative and legal 
support.

                              B. Functions

    1. The board shall meet in executive session at the call of the 
president, and shall limit its reviews to the following:
    a. Written submissions by an applicant on behalf of a civilian or 
contractual group. Presentations to the board are not allowed.
    b. Written report(s) prepared by the advisory panel.
    c. Any other relevant written information available.
    d. Factors established in this part for determining AD service.
    2. The board shall return to the applicant any application that does 
not meet the eligibility criteria established in Sec.  47.4(a). The 
board only needs to state the reasons why the group is ineligible for 
consideration under this part.
    3. If the board determines that an application is eligible for 
consideration under Sec.  47.4(a), the board shall provide, to the 
Secretary of the Air Force, a recommendation on the AD service 
determination for the group and the rationale for that recommendation 
that shall include, but not be limited to, a discussion of the factors 
listed in Sec.  47.4.
    a. No factors shall be established that require automatic 
recognition. Neither the board nor the Secretary of the Air Force shall 
be bound by any method in reaching a decision.
    b. Prior group determinations made under Public Law 95-202 do not 
bind the board or the Secretary of the Air Force. The board and the 
Secretary of the Air Force fully and impartially shall consider each 
group on its own merit in relation to the factors listed in section D. 
of this Directive.



PART 50_PERSONAL COMMERCIAL SOLICITATION ON DOD INSTALLATIONS-
-Table of Contents



                           General Provisions

Sec.
50.1 Purpose.
50.2 Applicability.
50.3 Definitions.
50.4 Policy.
50.5 Responsibilities.
50.6 Procedures.
50.7 Information requirements.

Appendix A to Part 50--Life Insurance Products and Securities
Appendix B to Part 50--Overseas Life Insurance Registration Program

    Authority: 5 U.S.C. 301.

    Source: 71 FR 38764, July 10, 2006, unless otherwise noted.

                           General Provisions



Sec.  50.1  Purpose.

    This part:
    (a) Implements section 577 of Public Law No. 109-163 (2006) and 
establishes policy and procedures for personal commercial solicitation 
on DoD installations.
    (b) Continues the established annual DoD registration requirement 
for the sale of insurance and securities on DoD installations overseas.
    (c) Identifies prohibited practices that may cause withdrawal of 
commercial solicitation privileges on DoD installations and establishes 
notification requirements when privileges are withdrawn.
    (d) Establishes procedures for persons solicited on DoD 
installations to evaluate solicitors.
    (e) Prescribes procedures for providing financial education programs 
to military personnel.



Sec.  50.2  Applicability.

    This part:
    (a) Applies to the Office of the Secretary of Defense, the Military 
Departments, the Chairman of the Joint Chiefs of Staff, the Combatant 
Commands, the Office of the Inspector General of the Department of 
Defense, the Defense Agencies, the DoD Field Activities, and all other 
organizational entities in the Department of Defense

[[Page 163]]

(hereafter referred to collectively as the ``DoD Components'').
    (b) Does not apply to services furnished by residential service 
companies, such as deliveries of milk, laundry, newspapers, and related 
services to personal residences on the installation requested by the 
resident and authorized by the installation commander.
    (c) Applies to all other personal commercial solicitation on DoD 
installations. It includes meetings on DoD installations of private, 
non-profit, tax-exempt organizations that involve commercial 
solicitation. Attendance at these meetings shall be voluntary and the 
time and place of such meetings are subject to the discretion of the 
installation commander or his or her designee.



Sec.  50.3  Definitions.

    Agent. An individual who receives remuneration as a salesperson or 
whose remuneration is dependent on volume of sales of a product or 
products. (Also referred to as ``commercial agent'' or ``producer''). In 
this part, the term ``agent'' includes ``general agent'' unless the 
content clearly conveys a contrary intent.
    ``Authorized'' Bank and/or Credit Union. Bank and/or credit union 
selected by the installation commander through open competitive 
solicitation to provide exclusive on-base delivery of financial services 
to the installation under a written operating agreement.
    Banking institution. An entity chartered by a State or the Federal 
Government to provide financial services.
    Commercial sponsorship. The act of providing assistance, funding, 
goods, equipment (including fixed assets), or services to an MWR program 
or event by an individual, agency, association, company or corporation, 
or other entity (sponsor) for a specified (limited) period of time in 
return for public recognition or advertising promotions. Enclosure 9 of 
DoD Instruction 1015.10 \1\ provides general policy governing commercial 
sponsorship.
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    \1\ Copies may be obtained at http://www.dtic.mil/whs/directives/.
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    Credit union. A cooperative nonprofit association, incorporated 
under the Credit Union Act (12 U.S.C. 1751), or similar state statute, 
for the purpose of encouraging thrift among its members and creating a 
source of credit at a fair and reasonable rate of interest.
    DoD installation. For the purposes of this part, any Federally 
owned, leased, or operated base, reservation, post, camp, building, or 
other facility to which DoD personnel are assigned for duty, including 
barracks, transient housing, and family quarters.
    DoD personnel. For the purposes of this part, all active duty 
officers (commissioned and warrant) and enlisted members of the Military 
Departments and all civilian employees, including nonappropriated fund 
employees and special Government employees, of the Department of 
Defense.
    Financial services. Those services commonly associated with 
financial institutions in the United States, such as electronic banking 
(e.g., ATMs), in-store banking, checking, share and savings accounts, 
fund transfers, sale of official checks, money orders and travelers 
checks, loan services, safe deposit boxes, trust services, sale and 
redemption of U.S. Savings Bonds, and acceptance of utility payments and 
any other consumer-related banking services.
    General agent. A person who has a legal contract to represent a 
company. See the definition of ``Agent'' in this section.
    Insurance carrier. An insurance company issuing insurance through an 
association reinsuring or coinsuring such insurance.
    Insurance product. A policy, annuity, or certificate of insurance 
issued by an insurer or evidence of insurance coverage issued by a self-
insured association, including those with savings and investment 
features.
    Insurer. An entity licensed by the appropriate department to engage 
in the business of insurance.
    Military services. See Joint Publication 1-02, ``DoD Dictionary of 
Military and Associated Terms.'' \2\
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    \2\ See http://www.dtic.mil/doctrine/ jel/doddict/indexs.html.
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    Normal home enterprises. Sales or services that are customarily 
conducted in a domestic setting and do not compete

[[Page 164]]

with an installation's officially sanctioned commerce.
    Personal commercial solicitation. Personal contact, to include 
meetings, meals, or telecommunications contact, for the purpose of 
seeking private business or trade.
    Securities. Mutual funds, stocks, bonds, or any product registered 
with the Securities and Exchange Commission except for any insurance or 
annuity product issued by a corporation subject to supervision by State 
insurance authorities.
    Suspension. Temporary termination of privileges pending completion 
of a commander's inquiry or investigation.
    Withdrawal. Termination of privileges for a set period of time 
following completion of a commander's inquiry or investigation.



Sec.  50.4  Policy.

    (a) It is DoD policy to safeguard and promote the welfare of DoD 
personnel as consumers by setting forth a uniform approach to the 
conduct of all personal commercial solicitation and sales to them by 
dealers and their agents. For those individuals and their companies that 
fail to follow this policy, the opportunity to solicit on military 
installations may be limited or denied as appropriate.
    (b) Command authority includes authority to approve or prohibit all 
commercial solicitation covered by this part. Nothing in this part 
limits an installation commander's inherent authority to deny access to 
vendors or to establish time and place restrictions on commercial 
activities at the installation.



Sec.  50.5  Responsibilities.

    (a) The Principal Deputy Under Secretary of Defense for Personnel 
and Readiness (PDUSD(P&R)), under the Under Secretary of Defense for 
Personnel and Readiness, shall:
    (1) Identify and publish policies and procedures governing personal 
commercial solicitation on DoD installations consistent with the policy 
set forth in this part.
    (2) Maintain and make available to installation commanders and 
appropriate Federal personnel the current master file of all individual 
agents, dealers, and companies who have their privileges withdrawn at 
any DoD installation.
    (3) Develop and maintain a list of all State Insurance 
Commissioners' points of contact for DoD matters and forward this list 
to the Military Services.
    (b) The Heads of the DoD Components shall:
    (1) Ensure implementation of this part and compliance with its 
provisions.
    (2) Require installations under their authority to report each 
instance of withdrawal of commercial solicitation privileges.
    (3) Submit lists of all individuals and companies who have had their 
commercial solicitation privileges withdrawn at installations under 
their authority to the PDUSD(P&R) in accordance with this part.



Sec.  50.6  Procedures.

    (a) General. (1) No person has authority to enter a DoD installation 
to transact personal commercial solicitation as a matter of right. 
Personal commercial solicitation may be permitted only if the following 
requirements are met:
    (i) The solicitor is duly licensed under applicable Federal, State, 
or municipal laws and has complied with installation regulations.
    (ii) A specific appointment has been made for each meeting with the 
individual concerned. Each meeting is conducted only in family quarters 
or in other areas designated by the installation commander.
    (iii) The solicitor agrees to provide each person solicited the 
personal commercial solicitation evaluation included in DD Form 2885 \3\ 
during the initial appointment. The person being solicited is not 
required to complete the evaluation. However, completed evaluations 
should be sent by the person who was solicited to the office designated 
by the installation commander on the back of the evaluation form.
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    \3\ Copies may be obtained from http://www.dtic.mil/whs/directives/ 
infomgt/forms/forminfo/ forminfopage2239.html.

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[[Page 165]]

    (iv) The solicitor agrees to provide DoD personnel with a written 
reminder, prior to their making a financial commitment, that free legal 
advice is available from the Office of the Staff Judge Advocate.
    (2) Solicitors on overseas installations shall be required to 
observe, in addition to the above, the applicable laws of the host 
country. Upon request, the solicitor must present documentary evidence 
to the installation commander that the company they represent, and its 
agents, meet the applicable licensing requirements of the host country.
    (b) Life insurance products and securities. (1) Life insurance 
products and securities offered and sold to DoD personnel shall meet the 
prerequisites described in Sec.  50.3.
    (2) Installation commanders may permit insurers and their agents to 
solicit on DoD installations if the requirements of paragraph (a) of 
this section are met and if they are licensed under the insurance laws 
of the State where the installation is located. Commanders will ensure 
the agent's license status and complaint history are checked with the 
appropriate State or Federal regulators before granting permission to 
solicit on the installation.
    (3) In addition, before approving insurance and financial product 
agents' requests for permission to solicit, commanders shall review the 
list of agents and companies currently barred, banned, or limited from 
soliciting on any or all DoD installations. This list may be viewed via 
the Personal Commercial Solicitation Report ``quick link'' at http://
www.commanderspage.com. In overseas areas, the DoD Components shall 
limit insurance solicitation to those insurers registered under the 
provisions of appendix B to this part.
    (4) The conduct of all insurance business on DoD installations shall 
be by specific appointment. When establishing the appointment, insurance 
agents shall identify themselves to the prospective purchaser as an 
agent for a specific insurer.
    (5) Installation commanders shall designate areas where interviews 
by appointment may be conducted. The opportunity to conduct scheduled 
interviews shall be extended to all solicitors on an equitable basis. 
Where space and other considerations limit the number of agents using 
the interviewing area, the installation commander may develop and 
publish local policy consistent with this concept.
    (6) Installation commanders shall make disinterested third-party 
insurance counseling available to DoD personnel desiring counseling. 
Financial counselors shall encourage DoD personnel to seek legal 
assistance or other advice from a disinterested third-party before 
entering into a contract for insurance or securities.
    (7) In addition to the solicitation prohibitions contained in 
paragraph (d) of this section, DoD Components shall prohibit the 
following:
    (i) The use of DoD personnel representing any insurer, dealing 
directly or indirectly on behalf of any insurer or any recognized 
representative of any insurer on the installation, or as an agent or in 
any official or business capacity with or without compensation.
    (ii) The use of an agent as a participant in any Military Service-
sponsored education or orientation program.
    (iii) The designation of any agent or the use by any agent of titles 
(for example, ``Battalion Insurance Counselor,'' ``Unit Insurance 
Advisor,'' ``Servicemen's Group Life Insurance Conversion Consultant,'') 
that in any manner, states, or implies any type of endorsement from the 
U.S. Government, the Armed Forces, or any State or Federal agency or 
government entity.
    (iv) The use of desk space for interviews for other than a specific 
prearranged appointment. During such appointment, the agent shall not be 
permitted to display desk signs or other materials announcing his or her 
name or company affiliation.
    (v) The use of an installation ``daily bulletin,'' marquee, 
newsletter, Web page, or other official notice to announce the presence 
of an agent and/or his or her availability.
    (c) Supervision of on-base commercial activities. (1) All pertinent 
installation regulations shall be posted in a place easily accessible to 
those conducting and receiving personal commercial solicitation on the 
installation.

[[Page 166]]

    (2) The installation commander shall make available a copy of 
installation regulations to anyone conducting on-base commercial 
solicitation activities warning that failure to follow the regulations 
may result in the loss of solicitation privileges.
    (3) The installation commander, or designated representative, shall 
inquire into any alleged violations of this part or of any questionable 
solicitation practices. The DD Form 2885 is provided as a means to 
supervise solicitation activities on the installation.
    (d) Prohibited practices. The following commercial solicitation 
practices shall be prohibited on all DoD installations:
    (1) Solicitation of recruits, trainees, and transient personnel in a 
group setting or ``mass'' audience and solicitation of any DoD personnel 
in a ``captive'' audience where attendance is not voluntary.
    (2) Making appointments with or soliciting military or DoD civilian 
personnel during their normally scheduled duty hours.
    (3) Soliciting in barracks, day rooms, unit areas, transient 
personnel housing, or other areas where the installation commander has 
prohibited solicitation.
    (4) Use of official military identification cards or DoD vehicle 
decals by active duty, retired or reserve members of the Military 
Services to gain access to DoD installations for the purpose of 
soliciting. When entering the installation for the purpose of 
solicitation, solicitors with military identification cards and/or DoD 
vehicle decals must present documentation issued by the installation 
authorizing solicitation.
    (5) Procuring, attempting to procure, supplying, or attempting to 
supply non-public listings of DoD personnel for purposes of commercial 
solicitation, except for releases made in accordance with DoD Directive 
5400.7. \4\
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    \4\ See footnote 1 to Sec.  50.3.
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    (6) Offering unfair, improper, or deceptive inducements to purchase 
or trade.
    (7) Using promotional incentives to facilitate transactions or to 
eliminate competition.
    (8) Using manipulative, deceptive, or fraudulent devices, schemes, 
or artifices, including misleading advertising and sales literature. All 
financial products, which contain insurance features, must clearly 
explain the insurance features of those products.
    (9) Using oral or written representations to suggest or give the 
appearance that the Department of Defense sponsors or endorses any 
particular company, its agents, or the goods, services, and commodities 
it sells.
    (10) DoD personnel making personal commercial solicitations or sales 
to DoD personnel who are junior in rank or grade, or to the family 
members of such personnel, except as authorized in Section 2-205 and 5-
409 of the Joint Ethics Regulation, DoD 5500.7-R. \5\
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    \5\ See footnote 1 to Sec.  50.3.
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    (11) Entering into any unauthorized or restricted area.
    (12) Using any portion of installation facilities, including 
quarters, as a showroom or store for the sale of goods or services, 
except as specifically authorized by DoD Directive 1330.17 \6\ and DoD 
Instructions 1015.10, 1000.15 \7\ and 1330.21. \8\ This does not apply 
to normal home enterprises that comply with applicable State and local 
laws and installation rules.
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    \6\ See footnote 1 to Sec.  50.3.
    \7\ See footnote 1 to Sec.  50.3.
    \8\ See footnote 1 to Sec.  50.3.
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    (13) Soliciting door to door or without an appointment.
    (14) Unauthorized advertising of addresses or telephone numbers used 
in personal commercial solicitation activities conducted on the 
installation, or the use of official positions, titles, or organization 
names, for the purpose of personal commercial solicitation, except as 
authorized in DoD 5500.7-R. Military grade and Military Service as part 
of an individual's name (e.g., Captain Smith, U.S. Marine Corps) may be 
used in the same manner as conventional titles, such as ``Mr.'', 
``Mrs.'', or ``Honorable''.
    (15) Contacting DoD personnel by calling a government telephone, 
faxing to a government fax machine, or by sending e-mail to a government 
computer, unless a pre-existing relationship (i.e., the DoD member is a 
current client or requested to be contacted) exists between the parties 
and the DoD

[[Page 167]]

member has not asked for contact to be terminated.
    (e) Denial, suspension, and withdrawal of installation solicitation 
privileges. (1) The installation commander shall deny, suspend, or 
withdraw permission for a company and its agents to conduct commercial 
activities on the base if such action is in the best interests of the 
command. The grounds for taking these actions may include, but are not 
limited to, the following:
    (i) Failure to meet the licensing and other regulatory requirements 
prescribed in this part or violations of the State law where the 
installation is located. Commanders will request that appropriate state 
officials determine whether a company or agent violated State law.
    (ii) Commission of any of the practices prohibited in paragraphs 
(b)(6) and (d) of this section.
    (iii) Substantiated complaints and/or adverse reports regarding the 
quality of goods, services, and/or commodities, and the manner in which 
they are offered for sale.
    (iv) Knowing and willful violations of Public Law 90-321.
    (v) Personal misconduct by a company's agent or representative while 
on the installation.
    (vi) The possession of, and any attempt to obtain supplies of direct 
deposit forms, or any other form or device used by Military Departments 
to direct a Service member's pay to a third party, or possession or use 
of facsimiles thereof. This includes using or assisting in using a 
Service member's ``MyPay'' account or other similar Internet medium for 
the purpose of establishing a direct deposit for the purchase of 
insurance or other investment product.
    (vii) Failure to incorporate and abide by the Standards of Fairness 
policies contained in DoD Instruction 1344.9. \9\
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    \9\ See footnote 1 to Sec.  50.3.
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    (2) The installation commander may determine that circumstances 
dictate the immediate suspension of solicitation privileges while an 
investigation is conducted. Upon suspending solicitation privileges, the 
commander shall promptly inform the agent and the company the agent 
represents, in writing.
    (3) In suspending or withdrawing solicitation privileges, the 
installation commander shall determine whether to limit such action to 
the agent alone or extend it to the company the agent represents. This 
decision shall be based on the circumstances of the particular case, 
including, but not limited to, the nature of the violations, frequency 
of violations, the extent to which other agents of the company have 
engaged in such practices and any other matters tending to show the 
culpability of an individual and the company.
    (4) If the investigation determines an agent or company does not 
possess a valid license or the agent, company, or product has failed to 
meet other State or Federal regulatory requirements, the installation 
commander shall immediately notify the appropriate regulatory 
authorities.
    (5) In a withdrawal action, the commander shall allow the individual 
or company an opportunity to show cause as to why the action should not 
be taken. To ``show cause'' means an opportunity must be given for the 
aggrieved party to present facts on an informal basis for the 
consideration of the installation commander or the commander's designee. 
The installation commander shall make a final decision regarding 
withdrawal based upon the entire record in each case. Installation 
commanders shall report concerns or complaints involving the quality or 
suitability of financial products or concerns or complaints involving 
marketing methods used to sell these products to the appropriate State 
and Federal regulatory authorities. Also, installation commanders shall 
report any suspension or withdrawal of insurance or securities products 
solicitation privileges to the appropriate State or Federal regulatory 
authorities.
    (6) The installation commander shall inform the Military Department 
concerned of any denial, suspension, withdrawal, or reinstatement of an 
agent or company's solicitation privileges and the Military Department 
shall inform the Office of the PDUSD(P&R), which will maintain a list of 
insurance and financial product companies and agents currently barred, 
banned, or otherwise

[[Page 168]]

limited from soliciting on any or all DoD installations. This list may 
be viewed at http://www.commanderspage.com. If warranted, the 
installation commander may recommend to the Military Department 
concerned that the action taken be extended to other DoD installations. 
The Military Department may extend the action to other military 
installations in the Military Department. The PDUSD(P&R), following 
consultation with the Military Department concerned, may order the 
action extended to other Military Departments.
    (7) All suspensions or withdrawals of privileges may be permanent or 
for a set period of time. If for a set period, when that period expires, 
the individual or company may reapply for permission to solicit through 
the installation commander or Military Department originally imposing 
the restriction. The installation commander or Military Department 
reinstating permission to solicit shall notify the Office of the 
PDUSD(P&R) and appropriate State and Federal regulatory agencies when 
such suspensions or withdrawals are lifted.
    (8) The Secretaries of the Military Departments may direct the Armed 
Forces Disciplinary Control Boards in all geographical areas in which 
the grounds for withdrawal action have occurred to consider all 
applicable information and take action that the Boards deem appropriate.
    (9) Nothing in this part limits the authority of the installation 
commander or other appropriate authority from requesting or instituting 
other administrative and/or criminal action against any person, 
including those who violate the conditions and restrictions upon which 
installation entry is authorized.
    (f) Advertising and commercial sponsorship. (1) The Department of 
Defense expects voluntary observance of the highest business ethics by 
commercial enterprises soliciting DoD personnel through advertisements 
in unofficial military publications when describing goods, services, 
commodities, and the terms of the sale (including guarantees, 
warranties, and the like).
    (2) The advertising of credit terms shall conform to the provisions 
of 15 U.S.C. 1601 as implemented by Federal Reserve Board Regulation Z 
according to 12 CFR part 226.
    (3) Solicitors may provide commercial sponsorship to DoD Morale, 
Welfare and Recreation programs or events according to DoD Instruction 
1015.10. However, sponsorship may not be used as a means to obtain 
personal contact information for any participant at these events without 
written permission from the individual participant. In addition, 
commercial sponsors may not use sponsorship to advertise products and/or 
services not specifically agreed to in the sponsorship agreement.
    (4) The installation commander may permit organizations to display 
sales literature in designated locations subject to command policies. In 
accordance with DoD 7000.14-R, \10\ Volume 7(a), distribution of 
competitive literature or forms by off-base banks and/or credit unions 
is prohibited on installations where an authorized on-base bank and/or 
credit union exists.
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    \10\ See footnote 1 to Sec.  50.3.
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    (g) Educational programs. (1) The Military Departments shall develop 
and disseminate information and provide educational programs for members 
of the Military Services on their personal financial affairs, including 
such subjects as insurance, Government benefits, savings, budgeting, and 
other financial education and assistance requirements outlined in DoD 
Instruction 1342.27. \11\ The Military Departments shall ensure that all 
instructors are qualified as appropriate for the subject matter 
presented. The services of representatives of authorized on-base banks 
and credit unions may be used for this purpose. Under no circumstances 
shall commercial agents, including representatives of loan, finance, 
insurance, or investment companies, be used for this purpose. 
Presentations shall only be conducted at the express request of the 
installation commander.
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    \11\ See footnote 1 to Sec.  50.3.
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    (2) The Military Departments shall also make qualified personnel and 
facilities available for individual counseling on loans and consumer 
credit transactions in order to encourage thrift and financial 
responsibility and

[[Page 169]]

promote a better understanding of the wise use of credit, as prescribed 
in DoD 7000.14-R.
    (3) The Military Departments shall encourage military members to 
seek advice from a legal assistance officer, the installation financial 
counselor, their own lawyer, or a financial counselor, before making a 
substantial loan or credit commitment.
    (4) Each Military Department shall provide advice and guidance to 
DoD personnel who have a complaint under DoD 1344.9 or who allege a 
criminal violation of its provisions, including referral to the 
appropriate regulatory agency for processing of the complaint.
    (5) Banks and credit unions operating on DoD installations are 
required to provide financial counseling services as an integral part of 
their financial services offerings. Representatives of and materials 
provided by authorized banks and/or credit unions located on military 
installations may be used to provide the educational programs and 
information required by this part subject to the following conditions:
    (i) If the bank or credit union operating on a DoD installation 
sells insurance or securities or has any affiliation with a company that 
sells or markets insurance or other financial products, the installation 
commander shall consider that company's history of complying with this 
part before authorizing the on-base financial institution to provide 
financial education.
    (ii) All prospective educators must agree to use appropriate 
disclaimers in their presentations and on their other educational 
materials. The disclaimers must clearly indicate that they do not 
endorse or favor any commercial supplier, product, or service, or 
promote the services of a specific financial institution.
    (6) Use of other non-government organizations to provide financial 
education programs is limited as follows:
    (i) Under no circumstances shall commercial agents, including 
employees or representatives of commercial loan, finance, insurance, or 
investment companies, be used.
    (ii) The limitation in paragraph (g)(6)(i) of this section does not 
apply to educational programs and information regarding the Survivor 
Benefits Program and other government benefits provided by tax-exempt 
organizations under section (c)(23) of 26 U.S.C. 501 or by any 
organization providing such a benefit under a contract with the 
Government.
    (iii) Educators from non-government, non-commercial organizations 
expert in personal financial affairs and their materials may, with 
appropriate disclaimers, provide the educational programs and 
information required by this part if approved by a Presidentially-
appointed, Senate-confirmed civilian official of the Military Department 
concerned. Presentations by approved organizations shall be conducted 
only at the express request of the installation commander. The following 
criteria shall be used when considering whether to permit a non-
government, non-commercial organization to present an educational 
program or provide materials on personal financial affairs:
    (A) The organization must qualify as a tax-exempt organization under 
5 U.S.C. 501(c)(3) or 5 U.S.C. 501(c)(23).
    (B) If the organization has any affiliation with a company that 
sells or markets insurance or other financial products, the approval 
authority shall consider that company's history of complying with this 
part.
    (C) All prospective educators must use appropriate disclaimers, in 
their presentations and on their other educational materials, which 
clearly indicate that they and the Department of Defense do not endorse 
or favor any commercial supplier, product, or service or promote the 
services of a specific financial institution.



Sec.  50.7  Information requirements.

    The reporting requirements concerning the suspension or withdrawal 
of solicitation privileges have been assigned Report Control Symbol 
(RCS) DD-P&R(Q)2182 in accordance with DoD 8910.1-M. \12\
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    \12\ See footnote 1 to Sec.  50.3.

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[[Page 170]]



   Sec. Appendix A to Part 50--Life Insurance Products and Securities

             A. Life Insurance Product Content Prerequisites

    Companies must provide DoD personnel a written description for each 
product or service they intend to market to DoD personnel on DoD 
installations. These descriptions must be written in a manner that DoD 
personnel can easily understand, and fully disclose the fundamental 
nature of the policy. Companies must be able to demonstrate that each 
form to be used has been filed with and approved, where applicable, by 
the insurance department of the State where the installation is located. 
Insurance products marketed to DoD personnel on overseas installations 
must conform to the standards prescribed by the laws of the State where 
the company is incorporated.
    1. Insurance products, other than certificates or other evidence of 
insurance issued by a self-insured association, offered and sold 
worldwide to personnel on DoD installations, must:
    a. Comply with the insurance laws of the State or country in which 
the installation is located and the requirements of this part.
    b. Contain no restrictions by reason of Military Service or military 
occupational specialty of the insured, unless such restrictions are 
clearly indicated on the face of the contract.
    c. Plainly indicate any extra premium charges imposed by reason of 
Military Service or military occupational specialty.
    d. Contain no variation in the amount of death benefit or premium 
based upon the length of time the contract has been in force, unless all 
such variations are clearly described in the contract.
    e. In plain and readily understandable language, and in type font at 
least as large as the font used for the majority of the policy, inform 
Service members of:
    1. The availability and cost of government subsidized Servicemen's 
Group Life Insurance.
    2. The address and phone number where consumer complaints are 
received by the State insurance commissioner for the State in which the 
insurance product is being sold.
    3. That the U.S. Government has in no way sanctioned, recommended, 
or encouraged the sale of the product being offered. With respect to the 
sale or solicitation of insurance on Federal land or facilitates located 
outside the United States, insurance products must contain the address 
and phone number where consumer complaints are received by the State 
insurance commissioner for the State which has issued the agent a 
resident license or the company is domiciled, as applicable.
    2. To comply with paragraphs A.1.b., A.1.c. and A.1.d., an 
appropriate reference stamped on the first page of the contract shall 
draw the attention of the policyholder to any restrictions by reason of 
Military Service or military occupational specialty. The reference shall 
describe any extra premium charges and any variations in the amount of 
death benefit or premium based upon the length of time the contract has 
been in force.
    3. Variable life insurance products may be offered provided they 
meet the criteria of the appropriate insurance regulatory agency and the 
Securities and Exchange Commission.
    4. Insurance products shall not be marketed or sold disguised as 
investments. If there is a savings component to an insurance product, 
the agent shall provide the customer written documentation, which 
clearly explains how much of the premium goes to the savings component 
per year broken down over the life of the policy. This document must 
also show the total amount per year allocated to insurance premiums. The 
customer must be provided a copy of this document that is signed by the 
insurance agent.

                          B. Sale of Securities

    1. All securities must be registered with the Securities and 
Exchange Commission.
    2. All sales of securities must comply with the appropriate 
Securities and Exchange Commission regulations.
    3. All securities representatives must apply to the commander of the 
installation on which they desire to solicit the sale of securities for 
permission to solicit.
    4. Where the accredited insurer's policy permits, an overseas 
accredited life insurance agent--if duly qualified to engage in security 
activities either as a registered representative of the National 
Association of Securities Dealers or as an associate of a broker or 
dealer registered with the Securities and Exchange Commission--may offer 
life insurance and securities for sale simultaneously. In cases of 
commingled sales, the allotment of pay for the purchase of securities 
cannot be made to the insurer.

                  C. Use of the Allotment of Pay System

    1. Allotments of military pay for life insurance products shall be 
made in accordance with DoD 7000.14-R.
    2. For personnel in pay grades E-4 and below, in order to obtain 
financial counseling, at least seven calendar days shall elapse between 
the signing of a life insurance application and the certification of a 
military pay allotment for any supplemental commercial life insurance. 
Installation Finance Officers are responsible for ensuring this seven-
day cooling-off period is monitored and enforced. The purchaser's 
commanding officer may grant a waiver of the seven-day cooling-off 
period requirement for

[[Page 171]]

good cause, such as the purchaser's imminent deployment or permanent 
change of station.

                        D. Associations--General

    The recent growth and general acceptability of quasi-military 
associations offering various insurance plans to military personnel are 
acknowledged. Some associations are not organized within the supervision 
of insurance laws of either a State or the Federal Government. While 
some are organized for profit, others function as nonprofit associations 
under Internal Revenue Service regulations. Regardless of the manner in 
which insurance is offered to members, the management of the association 
is responsible for complying fully with the policies contained in this 
part.



Sec. Appendix B to Part 50--Overseas Life Insurance Registration Program

                        A. Registration Criteria

                         1. Initial Registration

    a. Insurers must demonstrate continuous successful operation in the 
life insurance business for a period of not less than 5 years on 
December 31 of the year preceding the date of filing the application.
    b. Insurers must be listed in Best's Life-Health Insurance Reports 
and be assigned a rating of B + (Very Good) or better for the business 
year preceding the Government's fiscal year for which registration is 
sought.

                           2. Re-Registration

    a. Insurers must demonstrate continuous successful operation in the 
life insurance business, as described in paragraph A.1.a. of this 
appendix.
    b. Insurers must retain a Best's rating of B + or better, as 
described in paragraph A.1.b. of this appendix.
    c. Insurers must demonstrate a record of compliance with the 
policies found in this part.

                          3. Waiver Provisions

    Waivers of the initial registration or re-registration provisions 
shall be considered for those insurers demonstrating substantial 
compliance with the aforementioned criteria.

                       B. Application Instructions

    1. Applications Filed Annually. Insurers must apply by June 30 of 
each year for solicitation privileges on overseas U.S. military 
installations for the next fiscal year beginning October 1. Applications 
e-mailed, faxed, or postmarked after June 30 shall not be considered.
    2. Application prerequisites. A letter of application, signed by the 
President, Vice President, or designated official of the insurance 
company shall be forwarded to the Principal Deputy Under Secretary of 
Defense (Personnel and Readiness), Attention: Morale, Welfare and 
Recreation (MWR) Policy Directorate, 4000 Defense, Pentagon, Washington, 
DC 20301-4000. The registration criteria in paragraph A1.a. or A1.b. of 
this appendix must be met to satisfy application prerequisites. The 
letter shall contain the information set forth below, submitted in the 
order listed. Where criteria are not applicable, the letter shall so 
state.
    a. The overseas Combatant Commands (e.g., U.S. European Command, 
U.S. Pacific Command, U.S. Central Command, U.S. Southern Command) where 
the company presently solicits, or plans to solicit, on U.S. military 
installations.
    b. A statement that the company has complied with, or shall comply 
with, the applicable laws of the country or countries wherein it 
proposes to solicit. ``Laws of the country'' means all national, 
provincial, city, or county laws or ordinances of any country, as 
applicable.
    c. A statement that the products to be offered for sale conform to 
the standards prescribed in appendix A to this part and contain only the 
standard provisions such as those prescribed by the laws of the State 
where the company's headquarters are located.
    d. A statement that the company shall assume full responsibility for 
the acts of its agents with respect to solicitation. If warranted, the 
number of agents may be limited by the overseas command concerned.
    e. A statement that the company shall only use agents who have been 
licensed by the appropriate State and registered by the overseas command 
concerned to sell to DoD personnel on DoD installations.
    f. Any explanatory or supplemental comments that shall assist in 
evaluating the application.
    g. If the Department of Defense requires facts or statistics beyond 
those normally involved in registration, the company shall make separate 
arrangements to provide them.
    h. A statement that the company's general agent and other registered 
agents are appointed in accordance with the prerequisites established in 
section C of this appendix.
    3. If a company is a life insurance company subsidiary, it must be 
registered separately on its own merits.

                          C. Agent Requirements

    The overseas Combatant Commanders shall apply the following 
principles in registering agents:
    1. An agent must possess a current State license. This requirement 
may be waived for

[[Page 172]]

a registered agent continuously residing and successfully selling life 
insurance in foreign areas, who, through no fault of his or her own, due 
to State law (or regulation) governing domicile requirements, or 
requiring that the agent's company be licensed to do business in that 
State, forfeits eligibility for a State license. The request for a 
waiver shall contain the name of the State or jurisdiction that would 
not renew the agent's license.
    2. General agents and agents may represent only one registered 
commercial insurance company. This principle may be waived by the 
overseas Combatant Commander if multiple representations are in the best 
interest of DoD personnel.
    3. An agent must have at least 1 year of successful life insurance 
underwriting experience in the United States or its territories, 
generally within the 5 years preceding the date of application, in order 
to be approved for overseas solicitation.
    4. The overseas Combatant Commanders may exercise further agent 
control procedures as necessary.
    5. An agent, once registered in an overseas area, may not change 
affiliation from the staff of one general agent to another and retain 
registration, unless the previous employer certifies in writing that the 
release is without justifiable prejudice. Overseas Combatant Commanders 
will have final authority to determine justifiable prejudice. 
Indebtedness of an agent to a previous employer is an example of 
justifiable prejudice.

                     D. Announcement of Registration

    1. Registration by the Department of Defense upon annual 
applications of insurers shall be announced as soon as practicable by 
notice to each applicant and by a list released annually in September to 
the appropriate overseas Combatant Commanders. Approval does not 
constitute DoD endorsement of the insurer or its products. Any 
advertising by insurers or verbal representation by its agents, which 
suggests such endorsement, is prohibited.
    2. In the event registration is denied, specific reasons for the 
denial shall be provided to the applicant.
    a. The insurer shall have 30 days from the receipt of notification 
of denial of registration (sent certified mail, return receipt 
requested) in which to request reconsideration of the original decision. 
This request must be in writing and accompanied by substantiating data 
or information in rebuttal of the specific reasons upon which the denial 
was based.
    b. Action by the Office of the PDUSD(P&R) on a request for 
reconsideration is final.
    c. An applicant that is presently registered as an insurer shall 
have 90 calendar days from final action denying registration in which to 
close operations.
    3. Upon receiving an annual letter approving registration, each 
company shall send to the applicable overseas Combatant Commander a 
verified list of agents currently registered for overseas solicitation. 
Where applicable, the company shall also include the names and prior 
military affiliation of new agents for whom original registration and 
permission to solicit on base is requested. Insurers initially 
registered shall be furnished instructions by the Department of Defense 
for agent registration procedures in overseas areas.
    4. Material changes affecting the corporate status and financial 
condition of the company that occur during the fiscal year of 
registration must be reported to the MWR Policy Directorate at the 
address in paragraph B.2. of this appendix as they occur.
    a. The Office of the PDUSD(P&R) reserves the right to terminate 
registration if such material changes appear to substantially affect the 
financial and operational standards described in section A of this 
appendix on which registration was based.
    b. Failure to report such material changes may result in termination 
of registration regardless of how it affects the standards.
    5. If an analysis of information furnished by the company indicates 
that unfavorable trends are developing that could adversely affect its 
future operations, the Office of the PDUSD(P&R) may, at its option, 
bring such matters to the attention of the company and request a 
statement as to what action, if any, is considered to deal with such 
unfavorable trends.



PART 53_WEARING OF THE UNIFORM--Table of Contents



Sec.
53.1 Purpose.
53.2 Policy.

    Authority: 5 U.S.C. 301, 10 U.S.C. 772.



Sec.  53.1  Purpose.

    This part prescribes limitations on wearing of the uniform by 
members of the Armed Forces, and establishes policy with respect to 
wearing of the uniform by former members of the Armed Forces.

[35 FR 1236, Jan. 30, 1970]



Sec.  53.2  Policy.

    (a) Members of the Armed Forces (including retired members and 
members of reserve components). The wearing of the uniform is prohibited 
under any of the following circumstances:

[[Page 173]]

    (1) At any meeting or demonstration which is a function of, or 
sponsored by an organization, association, movement, group, or 
combination of persons which the Attorney General of the United States 
has designated, pursuant to E.O. 10450 as amended, as totalitarian, 
fascist, communist, or subversive, or as having adopted a policy of 
advocating or approving the commission of acts of force or violence to 
deny others their rights under The Constitution of the United States, or 
as seeking to alter the form of Government of the United States by 
unconstitutional means.
    (2) During or in connection with the furtherance of political 
activities, private employment or commercial interests, when an 
inference of official sponsorship for the activity or interest could be 
drawn.
    (3) Except when authorized by competent Service authority, when 
participating in activities such as public speeches, interviews, picket 
lines, marches, rallies or any public demonstrations (including those 
pertaining to civil rights), which may imply Service Sanction of the 
cause for which the demonstration or activity is conducted.
    (4) When wearing of the uniform would tend to bring discredit upon 
the Armed Forces.
    (5) When specifically prohibited by regulations of the department 
concerned.
    (b) Former members of the Armed Forces. (1) Unless qualified under 
another provision of this part or under the provisions of 10 U.S.C. 772, 
former members who served honorably during a declared or undeclared war 
and whose most recent service was terminated under honorable conditions 
may wear the uniform in the highest grade held during such war service 
only upon the following occasions and in the course of travel incidents 
thereto:
    (i) Military funerals, memorial services, weddings, and inaugurals.
    (ii) Parades on national or State holidays; or other parades or 
ceremonies of a patriotic character in which any active or reserve U.S. 
military unit is taking part.
    (2) Wearing of the uniform or any part thereof at any other time or 
for any other purpose is prohibited.
    (c) Medal of Honor holders. Persons who have been awarded the Medal 
of Honor may wear the uniform at their pleasure except under the 
circumstances set forth in paragraph (a) of this section.

[35 FR 1236, Jan. 30, 1970]



PART 56_NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS AND 
ACTIVITIES ASSISTED OR CONDUCTED BY THE DEPARTMENT OF DEFENSE-
-Table of Contents



Sec.
56.1 Purpose.
56.2 Applicability and scope.
56.3 Definitions.
56.4 Policy.
56.5 Responsibilities.
56.6 Information requirements.
56.7 Programs and activities subject to this part.
56.8 Guidelines for determining discriminatory practices.
56.9 Ensuring compliance with this part in Federal financial assistance 
          programs and activities.
56.10 Ensuring compliance with this part in programs and activities 
          conducted by the Department of Defense.

    Authority: Pub. L. 93-112, sec. 504 29 U.S.C. 794, as amended by 
Pub. L. 95-602, 92 Stat. 2982; Pub. L. 93-112, sec. 7, 29 U.S.C. 706, as 
amended by Pub. L. 93-516, 88 Stat. 1619; Executive Order 12250; 
Executive Order 12291; Executive Order 12067.

    Source: 47 FR 15124, Apr. 8, 1982, unless otherwise noted.



Sec.  56.1  Purpose.

    This part implements section 504 of Public Law 93-112, 
``Rehabilitation Act of 1973,'' September 26, 1973 (29 U.S.C. 794) 
(1976); section 111 of Pub. L. 93-516, ``Rehabilitation Act Amendments 
of 1974,'' December 7, 1974 (29 U.S.C. 706, 780, 790) (1976); section 
119 of Pub. L. 95-602, ``Rehabilitation, Comprehensive Services, and 
Developmental Disabilities Amendments of 1978,'' November 6, 1978 (29 
U.S.C. 794) (supp. III 1979); and Department of Justice Regulation, 
``Implementation of Executive Order 12250, Nondiscrimination on the 
Basis of Handicap in Federally Assisted Programs,'' August 11, 1981 (28 
CFR part

[[Page 174]]

41) to prohibit discrimination based on handicap in programs and 
activities receiving Federal financial assistance disbursed by the 
Department of Defense and in programs and activities conducted by the 
Department of Defense.



Sec.  56.2  Applicability and scope.

    (a) This part applies to the Office of the Secretary of Defense, the 
Military Departments, the Organization of the Joint Chiefs of Staff, the 
National Guard Bureau, and the Defense Agencies (hereafter referred to 
as ``DoD Components'') insofar as they:
    (1) Extend Federal financial assistance to programs and activities 
that affect handicapped persons in the United States and that are 
covered by this part (see Sec.  56.7(b)).
    (2) Conduct programs and activities that affect handicapped persons 
in the United States and that are covered by this part (see Sec.  
56.7(c)).
    (b) This part also applies to each recipient of Federal financial 
assistance disbursed by the Department of Defense and to each program 
and activity that receives or benefits from such assistance, insofar as 
such recipient, program, or activity affects a handicapped person in the 
United States.



Sec.  56.3  Definitions.

    (a) Facility. All or any portion of buildings, structures, 
equipment, roads, walks, parking lots, or other real or personal 
property or any interest in such property.
    (b) Federal financial assistance. Any grant, loan, contract (other 
than a procurement contract or a contract of insurance or guaranty), or 
any other arrangement by which the Federal Government provides or 
otherwise makes available assistance in the form of:
    (1) Funds.
    (2) Services performed by Federal personnel, including technical 
assistance, counseling, training, and provision of statistical or expert 
information.
    (3) Real and personal property or any interest in or use of such 
property, including:
    (i) Transfers or leases of such property for less than fair market 
value or for reduced consideration.
    (ii) Proceeds from a subsequent transfer or lease of such property 
if the Federal share of its fair market value is not returned to the 
Federal government.
    (c) Handicapped person. Any person who has a physical or mental 
impairment that substantially limits one or more major life activities, 
has a record of such an impairment, or is regarded as having such an 
impairment. For purposes of this Directive as it relates to employment 
programs of recipients, such term does not include any individual who is 
an alcoholic or drug abuser and whose current use of alcohol or drugs 
prevents such individual from performing the duties of the job in 
question, or whose employment, by reason of such current alcohol or drug 
abuse, would constitute a direct threat to property or to the safety of 
others. As used in this paragraph:
    (1) Physical or mental impairment. Any physiological disorder or 
condition, cosmetic disfigurement, or anatomical loss affecting one or 
more of the following body systems: Neurological; musculoskeletal and 
special sense organs; respiratory, including speech organs; 
cardiovascular; reproductive; digestive; genito-urinary; hemic and 
lymphatic; skin; and endocrine; or any mental or psychological disorder, 
such as mental retardation, organic brain syndrome, emotional or mental 
illness, and specific learning disabilities. The term includes such 
diseases and conditions as orthopedic, visual, speech, and hearing 
impairments; cerebral palsy, epilepsy, and muscular dystrophy; multiple 
sclerosis; cancer; heart disease; diabetes; drug abuse; and alcoholism.
    (2) Major life activities. Functions such as caring for one's self, 
performing manual tasks, walking, seeing, hearing, speaking, breathing, 
learning, and working.
    (3) Has a record of such an impairment. Has a history of, or has 
been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment. Has: (i) A physical or 
mental impairment that does not substantially

[[Page 175]]

limit major life activities but is treated by a recipient or DoD 
Component as constituting such a limitation;
    (ii) A physical or a mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) None of the impairments defined above, but is treated by a 
recipient or DoD Component as having such an impairment.
    (d) Historic properties. Those properties listed or eligible for 
listing in the National Register of Historic Places.
    (e) Include; such as. Not all the possible items are covered, 
whether like or unlike the ones named.
    (f) Qualified handicapped person. A handicapped person who:
    (1) With respect to employment, can perform the essential functions 
of the job in question with reasonable accommodation.
    (2) With respect to services, meets the essential eligibility 
requirements for receiving the services in question.
    (g) Recipient. Any State or political subdivision or instrumentality 
thereof, any public or private agency, institution, organization, or 
other entity, or any person that receives Federal financial assistance 
directly or through another recipient, including any successor, 
assignee, or transferee of a recipient, but not the ultimate beneficiary 
of the assistance. The term includes persons and entities applying to be 
recipients.
    (h) Substantial impairment. A significant loss of the integrity of 
finished materials, design quality, or special character resulting from 
a permanent alteration.



Sec.  56.4  Policy.

    It is DoD policy that no qualified handicapped person shall be 
subjected to discrimination on the basis of handicap under any program 
or activity that receives or benefits from Federal financial assistance 
disbursed by a DoD Component or under any Federal program or activity 
that is conducted by a DoD Component. Guidelines for determining actions 
that discriminate against handicapped persons are prescribed in Sec.  
56.8.



Sec.  56.5  Responsibilities.

    (a) The Assistant Secretary of Defense (Manpower, Reserve Affairs, 
and Logistics) (ASD(MRA&L)), or designee, shall monitor compliance with 
this part. In discharging this responsibility, the ASD(MRA&L), or 
designee, shall:
    (1) Coordinate efforts of DoD Components to enforce this part.
    (2) Assist in the development of standards and procedures 
promulgated pursuant to Sec.  56.9.
    (3) Perform the responsibilities assigned to the ASD(MRA&L) in Sec.  
56.8, 9, and 10.
    (4) Otherwise assist DoD Components in implementing this part.
    (b) The Heads of DoD Components shall comply with this part. In 
discharging this responsibility, they shall:
    (1) Designate a policy-level official to ensure compliance with this 
part receive and investigate complaints filed under this part and 
otherwise manage DoD Component responsibilities under this part.
    (2) Notify the ASD(MRA&L), or designee, of the name, position, 
location, and telephone number of persons selected by them to be policy-
level officials within 15 calendar days of such a selection.
    (3) Issue guidelines pursuant to Sec.  56.9.
    (4) Cooperate fully with the ASD(MRA&L), or designee, in that 
official's performance of the responsibilities assigned herein, 
including furnishing to the ASD(MRA&L), or designee, in a timely fashion 
any requested reports and information.
    (5) Assign sufficient personnel to implement and to ensure effective 
enforcement of this part.



Sec.  56.6  Information requirements.

    (a) Each DoD Component shall maintain a log of all complaints that 
are filed with it or its recipients under this part. The log shall 
contain the complainant's name (last name, first, and middle initial) 
and address (street address, city, State, and zip code), the recipient's 
name (if this refers to a person, last name, first, and middle initial) 
and address (street address, city, State, and zip code), the nature of 
the complaint, and the current status of

[[Page 176]]

the complaint investigation or resolution. Each DoD Component shall 
submit a narrative summary report on complaints by memorandum to the 
ASD(MRA&L), or designee, before July 15 and January 15 of each year. 
This reporting requirement has been assigned Report Control Symbol DD-
M(SA)1596.
    (b) Each DoD Component shall submit a narrative report by memorandum 
to the ASD(MRA&L), or designee, whenever, pursuant to enclosure 4 of 
this directive, the DoD Component notifies an applicant or recipient 
that noncompliance with this part is indicated. The report shall include 
the recipient's name (if this refers to a person, last name, first, and 
middle initial) and address (street address, city, State, and zip code), 
the date (YYMMDD) and nature of the finding, and the name of the 
applicable federally assisted program or activity. This reporting 
requirement has been assigned Report Control Symbol DD-M(AR)1597.
    (c) The recordkeeping requirements contained in Sec.  56.9(c)(2), 
have been approved by the Office of Management and Budget (OMB) under 44 
U.S.C. chapter 35 and have been assigned OMB No. 0704-0102.



Sec.  56.7  Programs and activities subject to this part.

    (a) This part applies to all DoD Components and recipients of 
Federal financial assistance disbursed by a DoD Component insofar as the 
programs and activities of the DoD Components and recipients affect 
handicapped persons in the United States. Existing programs and 
activities that are assisted or conducted by a DoD Component and that 
are subject to this part but do not appear in paragraph (b) or (c) of 
this section, are covered even though not listed. DoD Components must 
report new programs and activities that are subject to this part to the 
ASD (MRA&L), or designee, within 15 calendar days of their creation or 
funding.
    (b) Federal financial assistance programs subject to this part 
include: (1) title 32, United States Code, sections 101-716 (1976 and 
supp. III 1979): the Army and Air National Guard.
    (2) Title 40, U.S. Code, sections 483, 484, and 512 (1976); title 
49, U.S. Code, sections 1101 and 1107 (1976); and title 10, U.S. Code, 
sections 2541, 2544, 2571, 2576, 2662, 7308, 7541, 7542, 7545, 7546, and 
7547 (1976 and supp. IV 1980): Various programs involving the loan or 
other disposition of surplus, obsolete, or unclaimed property.
    (3) Title 10 U.S. Code, sections 4307-4311 (1976), and the annual 
Department of Defense Appropriations Act: National Program for the 
Promotion of Rifle Practice.
    (4) Secretary of the Navy Instruction 5720.19E, ``Navy Science 
Cruiser Program,'' February 24, 1977.
    (5) Title 10 U.S. Code, section 9441 (1976 and supp. IV 1980): Civil 
Air Patrol.
    (6) Title 41 U.S. Code, sections 501-509 (supp. III 1979): Federal 
grants and cooperative agreements.
    (7) Title 33 U.S. Code, section 426 (1976 and supp. III 1979): Army 
Corps of Engineers participation in cooperative investigations and 
studies concerning the erosion of shores of coastal and lake waters.
    (8) Title 33 U.S. Code, sections 426e-426h (1976): Army Corps of 
Engineers assistance in the construction of works for the restoration 
and protection of shores.
    (9) Title 16 U.S. Code, section 460d (1976): Construction and 
operation of public park and recreational facilities in water resource 
development projects under the administrative jurisdiction of the 
Department of the Army.
    (10) Title 33 U.S. Code, section 701c-3 (1976): Payment to States of 
lease receipts from lands acquired by the United States for flood 
control, navigation, and allied purposes.
    (11) Title 33 U.S. Code, sections 558c and 702d-1 (1976); title 10, 
U.S. Code, sections 2668 and 2669 (1976); title 43, U.S. Code, section 
961 (1976); and title 40, U.S. Code, section 319 (1976): Grants of 
easements without consideration, or at a nominal or reduced 
consideration, on land under the control of the Department of the Army 
at water resource development projects.
    (12) Title 33 U.S. Code, sections 540 and 577 (1976): Army Corps of 
Engineers assistance in the construction of small boat harbor projects.
    (13) Title 33 U.S. Code, section 701s (1976): Emergency bank 
protection

[[Page 177]]

works constructed by the Army Corps of Engineers for protection of 
highways, bridge approaches, and public works.
    (14) Title 33 U.S. Code, section 633 (1976): Army Corps of Engineers 
contracts for the protection, alteration, reconstruction, relocation, or 
replacement of structures and facilities.
    (15) Title 50 U.S. Code, section 453 (1976): Defense Logistics 
Agency loans of industrial equipment to educational institutions (Tools 
for Schools).
    (16) Title 33 U.S. Code, section 610 (1976): Provision of 
specialized services or technical information by the Army Corps of 
Engineers to State and local governments for the control of aquatic 
plant growths in rivers, harbors, and allied waters.
    (17) Title 42 U.S. Code, section 1962d-16 (1976): Provision of 
specialized services by the Army Corps of Engineers to any State for the 
preparation of comprehensive plans for drainage basins located within 
the boundaries of said State.
    (18) Title 33 U.S. Code, section 603a (1976): Provision of 
specialized services by the Army Corps of Engineers to improve channels 
for navigation.
    (19) Title 33 U.S. Code, section 701g (1976): Provision of 
specialized services by the Army Corps of Engineers to reduce flood 
damage.
    (20) Title 24 U.S. Code, sections 44c and 47 (1976): United States 
Soldiers' and Airmen's Home.
    (21) Title 10 U.S. Code, chapter 55, as implemented by DoD 6010.8-R, 
``Civilian Health and Medical Program of the Uniformed Services 
(CHAMPUS),'' January 10, 1977.
    (c) All programs and activities conducted by the Department of 
Defense that affect handicapped persons in the United States are subject 
to this part. They include:
    (1) Promulgation of rules and regulations for public comment in a 
manner that grants handicapped persons a reasonable opportunity for such 
comment (such as by making cassette recordings of proposed rules).
    (2) Public meetings, conferences, or seminars sponsored or conducted 
by a DoD Component but held in nongovernmental buildings.
    (3) Public meetings, conferences, or seminars sponsored or conducted 
by a DoD Component or by a non-DoD organization but held in a DoD 
building.
    (4) Open houses, memorial services, tours, or other ceremonies held 
on or in DoD property.
    (5) Military museums.
    (6) Historic vessels.
    (7) Historic buildings and properties maintained by a DoD Component 
and properties designated as historic under a statute of the appropriate 
State or local governmental body.
    (8) Schools operated by the Department of Defense within the United 
States pursuant to section 6 of Public Law 81-874, title 20, U.S. Code, 
section 241 (1976).



Sec.  56.8  Guidelines for determining discriminatory practices.

    (a) General prohibitions against discrimination. (1) No qualified 
handicapped person shall, on the basis of handicap, be excluded from 
participation in, be denied the benefit of, or otherwise be subjected to 
discrimination under any program or activity that is conducted by the 
Department of Defense or that receives or benefits from Federal 
financial assistance disbursed by the Department of Defense.
    (2) A recipient or DoD Component may not, directly or through 
contractual, licensing, or other arrangements, on the basis of handicap:
    (i) Provide different or separate aid, benefits, or services to 
handicapped persons than is provided to others unless such action is 
necessary to provide qualified handicapped persons with aid, benefits, 
or services that are equal to those provided to others;
    (ii) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (iii) Afford a qualified handicapped person an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iv) Provide a qualified handicapped person with an aid, benefit, or 
service that is not as effective as that afforded to others; or
    (v) Otherwise limit a qualified handicapped person in the enjoyment 
of any

[[Page 178]]

right, privilege, advantage, or opportunity granted to others receiving 
the aid, benefit, or service.
    (3) A recipient or DoD Component may not deny a qualified 
handicapped person the opportunity to participate in programs or 
activities that are not separate or different from regular programs or 
activities, even if such separate or different programs and activities 
are permissible under paragraph (a)(2)(i) of this section.
    (4) A recipient or DoD Component may not provide assistance to an 
agency, organization, or person that discriminates on the basis of 
handicap in providing any aid, benefit, or service to beneficiaries of 
the recipient's program or activity.
    (5) A recipient of DoD Component may not deny, on the basis of 
handicap, a qualified handicapped person the opportunity to participate 
as a member of planning or advisory boards.
    (6) A recipient or DoD Component may not use, directly or through 
contractual or other arrangements, criteria or methods of administration 
that:
    (i) Subject qualified handicapped persons to discrimination on the 
basis of handicap;
    (ii) Defeat or substantially impair accomplishment of the objectives 
of the recipient's or DoD Component's program or activity with respect 
to handicapped persons; or
    (iii) Perpetuate discrimination by another recipient if both 
recipients are subject to common administrative control or are agencies 
of the same State.
    (7) In determining the site or location of a facility, a recipient 
or DoD Component may not make selections that:
    (i) Exclude handicapped persons from, deny them the benefits of, or 
otherwise subject them to discrimination under any program or activity 
that receives or benefits from Federal financial assistance; or
    (ii) Defeat or substantially impair, with respect to handicapped 
persons, the accomplishment of the objectives of the program or 
activity.
    (8) Recipients and DoD Components shall administer programs and 
activities in the most integrated setting appropriate to the needs of 
qualified handicapped persons.
    (9) Recipients and DoD Components shall take appropriate steps to 
make communications with their applicants, employees, and beneficiaries 
available to persons with impaired vision and hearing.
    (10) This section may not be interpreted to prohibit the exclusion 
of:
    (i) Persons who are not handicapped from benefits, programs, and 
activities limited by Federal statute or Executive order to handicapped 
persons; or
    (ii) One class of handicapped persons from a program or activity 
limited by Federal statute or Executive order to a different class of 
handicapped persons.
    (11) Recipients and DoD Components shall take appropriate steps to 
ensure that no handicapped individual is denied the benefits of, 
excluded from participation in, or otherwise subjected to discrimination 
under any program or activity receiving or benefiting from Federal 
financial assistance disbursed by the Department of Defense or under any 
program or activity conducted by the Department of Defense because of 
the absence of auxiliary aids, such as certified sign-language 
interpreters, telecommunication devises (TDDs), or other telephonic 
devices for individuals with impaired sensory, manual, or speaking 
skills.
    (b) Prohibitions against employment discrimination by recipients. 
(1) No qualified handicapped person shall, on the basis of handicap, be 
subjected to discrimination in employment under any program or activity 
that receives or benefits from Federal financial assistance disbursed by 
the Department of Defense.
    (2) The prohibition against discrimination in employment applies to 
the following:
    (i) Recruitment, advertising, and processing of applications for 
employment.
    (ii) Hiring, upgrading, promotion, award of tenure, demotion, 
transfer, layoff, termination, right of return from layoff, and 
rehiring.
    (iii) Rates of pay or any other form of compensation and changes in 
compensation.

[[Page 179]]

    (iv) Job assignments, job classifications, organizational 
structures, position descriptions, lines of progression, and seniority 
lists.
    (v) Leaves of absence, sick leave, or any other leave.
    (vi) Fringe benefits available by virtue of employment, whether or 
not administered by the recipient.
    (vii) Selection and financial support for training, including 
apprenticeship, professional meetings, conferences and other related 
activities, and selection for leaves of absence for training.
    (viii) Programs and activities sponsored by the employer, including 
social and recreational programs.
    (ix) Any other term, condition, or privilege of employment.
    (3) A recipient may not participate in a contractual or other 
relationship that subjects qualified handicapped applicants or employees 
to discrimination prohibited by this section, including relationships 
with employment and referral agencies, labor unions, organizations 
providing or administering fringe benefits to employees of the 
recipient, and organizations providing training and apprenticeship 
programs.
    (4) A recipient shall make reasonable accommodation to the known 
physical or mental limitations of an otherwise qualified handicapped 
applicant or employee unless the recipient can demonstrate that the 
accommodation would impose an undue hardship on the operation of its 
program. Reasonable accommodation includes providing ramps, accessible 
restrooms, drinking fountains, interpreters for deaf employees, readers 
for blind employees, amplified telephones, TDDs such as Teletypewriters 
or Telephone Writers (TTYs), and tactile signs on elevators.
    (5) A recipient may not use employment tests or criteria that 
discriminate against handicapped persons, and shall ensure that 
employment tests are adapted for use by persons who have handicaps that 
impair sensory, manual, or speaking skills.
    (6) A recipient may not conduct a preemployment medical examination 
or make a preemployment inquiry about whether an applicant is a 
handicapped person or about the nature or severity of a handicap. A 
recipient may make, however, a preemployment inquiry into an applicant's 
ability to perform job-related functions.
    (7) When a recipient is taking remedial action to correct the 
effects of past discrimination or is taking voluntary action to overcome 
the effects of conditions that have resulted in limited participation by 
handicapped persons in its federally assisted program or activity, the 
recipient may invite applicants for employment to indicate whether and 
to what extent they are handicapped if:
    (i) The recipient makes clear to the applicants that the information 
is intended for use solely in connection with its remedial action 
obligations or its voluntary affirmative action efforts.
    (ii) The recipient makes clear to the applicants that the 
information is being requested on a voluntary basis, that it will be 
kept confidential as provided in paragraph (b)(9) in this section, that 
refusal to provide it will not subject the applicants to any adverse 
treatment, and that it will be used only in accordance with this part.
    (8) Nothing in this section shall prohibit a recipient from 
conditioning an offer of employment on the results of a medical 
examination conducted prior to the employee's entrance on duty if:
    (i) All entering employees are subjected to such an examination, 
regardless of handicap.
    (ii) The results of such an examination are used only in accordance 
with this part which prohibits discrimination against a qualified 
handicapped person on the basis of handicap.
    (9) Information obtained under this section concerning the medical 
condition or history of applicants shall be collected and maintained on 
separate forms that shall be accorded confidentiality as medical 
records, except that:
    (i) Supervisors and managers may be informed about restrictions on 
the work or duties of handicapped persons and about necessary 
accommodations.
    (ii) First aid and safety personnel may be informed, when 
appropriate, if a handicapping condition might require emergency 
treatment.
    (iii) Government officials investigating compliance with section 
504, Pub. L. 93-112, and this part shall be

[[Page 180]]

provided relevant information upon request.
    (c) Program accessibility--(1) General requirements. No qualified 
handicapped person shall, because a recipient's or DoD Component's 
facilities are inaccessible to or not usable by handicapped persons, be 
denied the benefits of, be excluded from participation in, or otherwise 
be subjected to discrimination under any program or activity that 
receives or benefits from Federal financial assistance disbursed by the 
Department of Defense or under any program or activity conducted by the 
Department of Defense.
    (2) Existing facilities. (i) A recipient or DoD Component shall 
operate each program or activity so that the program or activity, when 
viewed in its entirety, is readily accessible to and usable by 
handicapped persons. This does not necessarily require a recipient or 
DoD Component to make each of its existing facilities or every part of 
an existing facility accessible to and usable by handicapped persons. 
For guidance in determining the accessibility of facilities, see chapter 
18 of DoD 4270.1-M, ``Department of Defense Construction Criteria 
Manual,'' June 1, 1978, and Department of the Army, Office of the Chief 
of Engineers, Manual EM 1110-1-103, ``Design for the Physically 
Handicapped,'' October 15, 1976. Inquiries on specific accessibility 
design problems may be addressed to the ASD (MRA&L), or designee.
    (ii) When structural changes are necessary to make programs or 
activities in existing facilities accessible to the exent required by 
paragraph (c)(1) of this section.
    (A) Such changes shall be made as soon as practicable, but not later 
than 3 years after the effective date of this part however, if the 
program or activity is a particular mode of transportation (such as a 
subway station) that can be made accessible only through extraordinarily 
expensive structural changes to, or replacement of, existing facilities 
and if other accessible modes of transportation are available, the DoD 
Component concerned may extend this period of time. This extension shall 
be for a reasonable and definite period, which shall be determined after 
consultation with the ASD(MRA&L), or designee.
    (B) The recipient or DoD Component shall develop, with the 
assistance of interested persons or organizations and within a period to 
be established in each DoD Component's guidelines, a transition plan 
setting forth the steps necessary to complete such changes.
    (C) The recipient or DoD Component shall make a copy of the 
transition plan available for public inspection. At a minimum, the plan 
shall:
    (1) Identify physical obstacles in the recipient's or DoD 
Component's facilities that limit the accessibility of its program or 
activity to handicapped persons.
    (2) Describe in detail the methods that will be used to make the 
facilities accessible.
    (3) Specify the schedule for taking the steps necessary to achieve 
full program accessibility and, if the time period of the transition 
plan is longer than 1 year, identify steps that will be taken during 
each year of the transition period.
    (4) Indicate the person (last name, first, and middle initial) 
responsible for implementation of the transition plan.
    (iii) A recipient or DoD Component may comply with paragraphs 
(c)(2)(i) and (c)(2)(ii) of this section, through such means as the 
acquisition or redesign of equipment, such as telecommunication or other 
telephonic devices; relocation of classes or other services to 
accessible buildings; assignment of aides to beneficiaries, such as 
readers or certified sign-language interpreters; home visits; delivery 
of health, welfare, or other services at accessible alternate sites; 
alteration of existing facilities and construction of new facilities in 
conformance with paragraph (c)(3) in this section; or any other method 
that results in making the program or activity of the recipient or DoD 
Component accessible to handicapped persons.
    (iv) A recipient or DoD Component is not required to make structural 
changes in existing facilities when other methods are effective in 
achieving compliance with this section.
    (v) In choosing among available methods for meeting the requirements 
of this section, a recipient or DoD

[[Page 181]]

Component shall give priority to those methods that offer programs and 
activities to handicapped persons in the most integrated setting 
appropriate with nonhandicapped persons.
    (3) New Construction. New facilities shall be designed and 
constructed to be readily accessible to and usable by handicapped 
persons. Alterations to existing facilities shall be designed and 
constructed, to the maximum extent feasible, to be readily accessible to 
and usable by handicapped persons. For guidance in determining the 
accessibility of facilities, see chapter 18 of DoD 4270.1-M and 
Department of the Army, Office of the Chief of Engineers, Manual EM 
1110-1-103. Inquiries about specific accessibility design problems may 
be addressed to the ASD(MRA&L), or designee.
    (4) Historic properties. (i) In the case of historic properties, 
program accessibility shall mean that, when viewed in their entirety, 
programs are readily accessible to and usable by handicapped persons. 
Because the primary benefit of historic properties is the experience of 
the property itself, DoD Components and recipients shall give priority 
to those methods of achieving program accessibility that make the 
historic property, or portions thereof, physically accessible to 
handicapped persons.
    (ii) Methods of achieving program accessibility include:
    (A) Making physical alterations that give handicapped persons access 
to otherwise inaccessible areas or features of historic properties.
    (B) Using audiovisual materials and devices to depict otherwise 
inaccessible areas or features of historic properties.
    (C) Assigning individuals to guide handicapped persons into or 
through otherwise inaccessible portions of historic properties.
    (D) Adopting other innovative methods.
    (iii) When program accessibility cannot be achieved without causing 
a substantial impairment of significant historic features, the DoD 
Component or recipient may seek a modification or waiver of access 
standards from the ASD (MRA&L), or designee.
    (A) A decision to grant a modification or waiver shall be based on 
consideration of the following:
    (1) Scale of the property, reflecting its ability to absorb 
alterations.
    (2) Use of the property, whether primarily for public or private 
purposes.
    (3) Importance of the historic features of the property to the 
conduct of the program.
    (4) Costs of alterations in comparison to the increase in 
accessibility.
    (B) The ASD(MRA&L), or designee, shall review periodically any 
waiver granted under this paragraph and may withdraw it if technological 
advances or other changes warrant.
    (iv) The decision by the ASD(MRA&L), or designee, to grant a 
modification or waiver of access standards is subject to section 106 of 
the National Historic Preservation Act, as amended, and shall be made in 
accordance with the Advisory Council on Historic Preservation regulation 
on ``Protection of Historic and Cultural Properties'' (36 CFR part 800). 
When the property is federally owned or when Federal funds may be used 
for alterations, the ASD(MRA&L), or designee, shall obtain the comments 
of the Advisory Council on Historic Preservation when required by 
section 106 of the National Historic Preservation Act and the Advisory 
Council on Historic Preservation regulation on ``Protection of Historic 
and Cultural Properties'' (36 CFR part 800) prior to effectuation of 
structural alterations.
    (v) DoD Component guidelines prepared in accordance with Sec.  56.10 
shall include a listing of all historic properties, including historic 
ships, subject to this part and a plan for compliance with paragraph 
(c)(4) of this section.
    (5) Military museums. (i) In the case of military museums, program 
accessibility shall mean that exhibits, displays, tours, lectures, 
circulating or traveling exhibits, and other programs of military 
museums are accessible to and usable by handicapped persons. Methods of 
meeting this requirement include the following:
    (A) Museum programs may be made accessible to deaf and hearing-
impaired

[[Page 182]]

persons by means such as training museum staff, such as docents, in sign 
language; providing qualified sign-language interpreters to accompany 
deaf or hearing-impaired visitors; ensuring that clear, concise language 
is used on all museum signs and display labels; providing amplification 
devices; or providing printed scripts for films, videotapes, lectures, 
or tours. DoD Components are encouraged to use ``Museums and Handicapped 
Students: Guidelines for Educators,'' published by the National Air and 
Space Museum, Smithsonian Institution, Washington, DC 20560.
    (B) Museum programs may be made accessible to blind and visually-
impaired persons by means such as providing museum catalogues in a 
large-print edition printed over braille; providing cassette tapes, 
records, or discs for museum tours or exhibits; providing readers to 
accompany blind or visually impaired visitors; using large-print and 
braille display cards at exhibits; providing raised-line maps of the 
museum building; using raised-line drawings, reproductions, or models of 
large exhibits to facilitate tactile experiences when touching exhibits 
is prohibited; placing large-print and braille signs to identify 
galleries, elevators, restrooms, and other service areas; and permitting 
guide dogs in all museum facilities.
    (C) Museum programs may be made accessible to other physically 
impaired persons by means such as lowering display cases; spacing 
exhibits to facilitate movement; using ramps in galleries; increasing 
lighting in exhibit areas to facilitate viewing from a distance; 
providing places to sit in exhibit areas; making restrooms accessible; 
using large-print exhibit display cards to facilitate reading from a 
distance; and sensitizing museum staff to consider the needs of 
handicapped visitors when organizing exhibits.
    (ii) DoD Component guidelines developed in accordance with paragraph 
(c)(5) of this section shall identify military museums subject to 
paragraph (c) of this section and shall contain a plan for making museum 
programs accessible to handicapped persons. Technical assistance in the 
preparation and content of these plans may be obtained from the National 
Access Center, 1419 27th Street, NW., Washington, DC 20007 ((202) 333-
1712 or TTY (202) 333-1339). In addition, community organizations that 
serve handicapped persons and handicapped persons themselves shall be 
consulted in the preparation of these plans.
    (d) Reasonable accommodation. (1) A recipient or DoD Component shall 
make reasonable accommodation to the known physical or mental 
limitations of an otherwise qualified handicapped applicant or employee 
unless the recipient or DoD Component demonstrates to the ASD(MRA&L), or 
designee, that the accommodation would impose an undue hardship on the 
operation of its program.
    (2) Reasonable accommodation includes the following:
    (i) Making facilities used by employees readily accessible to and 
usable by handicapped persons.
    (ii) Job restructuring; part-time or modified work schedules; 
acquisition or modification of equipment or devices, such as 
telecommunication or other telephonic instruments; the provision of 
readers or certified sign-language interpreters; and similar actions.
    (3) In determining whether an accommodation would impose an undue 
hardship on the operation of a recipient's or DoD Component's program, 
the ASD(MRA&L), or designee, shall consider the following factors, at a 
minimum:
    (i) The overall size of the recipient's or DoD Component's program 
or activity, such as the number of employees, number and type of 
facilities, and size of budget.
    (ii) The size of the recipient's or DoD Component's operations, 
including the composition and structure of the recipient's or DoD 
Component's workforce.
    (iii) The nature and cost of the accommodation needed.
    (4) A recipient or DoD Component may not deny any employment 
opportunity to a qualified handicapped employee or applicant for 
employment if the basis for the denial is the need to make reasonable 
accommodation to the physical or mental limitations of the employee or 
applicant.

[[Page 183]]



Sec.  56.9  Ensuring compliance with this part in Federal financial
assistance programs and activities.

    (a) Supplementary guidelines issued by DoD Components. (1) Whenever 
necessary, DoD Components shall publish supplementary guidelines for 
each type of program or activity to which they disburse Federal 
financial assistance within 120 days of the effective date of this part 
or of the effective date of any subsequent statute authorizing Federal 
financial assistance to a new type of program or activity. DoD 
Components shall obtain approval of these supplementary guidelines from 
the ASD(MRA&L), or designee, before issuing them. Prior to their 
issuance, the ASD(MRA&L), or designee, shall submit supplementary 
guidelines prepared pursuant to paragraph (a)(1) of this section to the 
Coordination and Review Section, Civil Rights Division, Department of 
Justice, for review and approval. To the extent that supplementary 
guidelines issued by DoD Components deal with the employment of 
civilians in programs and activities subject to this part the 
ASD(MRA&L), or designee, shall also obtain the approval of the Equal 
Employment Opportunity Commission (EEOC) in accordance with Executive 
Order 12067.
    (2) The ASD(MRA&L), or designee, and DoD Components shall ensure 
that their supplementary guidelines conform to the requirements of this 
part and that they provide:
    (i) A description of the types of programs and activities covered.
    (ii) Examples of prohibited practices likely to arise with respect 
to those types of programs and activities.
    (iii) A list of the data collection and reporting requirements of 
the recipients.
    (iv) Procedures for processing and investigating complaints.
    (v) Procedures for hearings to determine compliance by recipients 
with this part.
    (vi) Requirements or suggestions for affirmative action on behalf of 
qualified handicapped persons.
    (vii) Requirements for the dissemination of program and complaint 
information to the public.
    (viii) A description of the form of the assurances that must be 
executed pursuant to paragraph (b) of this section, and sample 
assurances.
    (ix) Requirements concerning the frequency and nature of 
postapproval reviews conducted pursuant to paragraph (h) of this 
section.
    (x) A period of time, provided for by Sec.  56.8(c)(2)(ii)(B), for 
the development of a transition plan that sets out the steps necessary 
to complete structural changes that might be required by Sec.  56.8(c).
    (xi) The maximum period of time that may be allowed for extensions 
that might be granted pursuant to Sec.  56.8(c)(2)(ii).
    (xii) An appendix that contains a list of identified programs and 
activities of the type covered by the supplementary guidelines, 
including the names of the programs and activities and the authorizing 
statute, regulation, or directive for each program and activity.
    (xiii) Requirements for the recipient to designate a responsible 
official to coordinate the implementation of supplementary guidelines.
    (xiv) Requirements for any other actions or procedures necessary to 
implement this part.
    (3) When the head of a DoD Component determines that it would not be 
appropriate to include on or more of the provisions described in 
paragraph (a)(2) of this section, in the supplementary guidelines of 
that DoD Component or that it is not necessary to issue such guidelines 
at all, the reasons for such determination shall be stated in writing 
and submitted to the ASD(MRA&L), or designee, for review and approval. 
Once that determination is approved, the DoD Component shall make it 
available to the public upon request.
    (4) The heads of DoD Components, or designees, shall be responsible 
for keeping the supplementary guidelines current and accurate. When a 
DoD Component determines that a program or activity should be added to 
or deleted from the guidelines, the DoD Component shall notify the 
ASD(MRA&L), or designee, in writing.
    (b) Required assurances. (1) DoD Components shall require all 
recipients to file written assurances that their programs or activities 
will be conducted

[[Page 184]]

in accordance with this part and supplementary guidelines promulgated by 
DoD Components. If a recipient fails to provide an assurance that 
conforms to the requirements of this section, the DoD Component shall 
attempt to effect compliance pursuant to paragraphs (f) through (h) of 
this section, provided that if assistance is due and payable to the 
recipient based on an application approved prior to the effective date 
of this part the DoD Component shall continue the assistance while any 
proceedings required by paragraphs (n) through (v) of this section, are 
pending.
    (2) DoD Components shall advise each recipient of the required 
elements of the assurance and, with respect to each program or activity, 
of the extent to which those receiving assistance from recipients shall 
be required to execute similar assurances.
    (3) DoD Component shall ensure that each assurance:
    (i) Obligates the recipient to advise the DoD Component of any 
complaints received that allege discrimination against handicapped 
persons.
    (ii) Obligates the recipient to collect and provide the items of 
information that the DoD Component lists in its supplementary guidelines 
pursuant to paragraph (a)(2)(iii) of this section.
    (iii) Is made applicable to any Federal financial assistance that 
might be disbursed by a DoD Component without the submission of a new 
application.
    (iv) Obligates the recipient, when the financial assistance is in 
the form of proprerty, for the period during which the property is used 
under a financial assistance agreement or is possessed by the recipient.
    (v) Includes a provision recognizing that the U.S. Government has 
the right to seek judicial enforcement of section 504 and this part.
    (c) Self-evaluation and consultation with interested persons and 
organizations. (1) DoD Components shall require recipients to conduct, 
within 6 months of the effective date of this part or of first receiving 
Federal financial assistance disbursed by the Department of Defense, a 
self-evaluation with the assistance of interested persons, including 
handicapped persons or organizations that represent them. When 
appropriate, DoD Components also shall require recipients to consult at 
least annually with such persons. The ``Department of Health, Education, 
and Welfare Section 504 Technical Assistance Reserve Directory,'' April 
1980, shall be consulted to identify likely sources for consultation. In 
conducting its self-evaluation, each recipient shall:
    (i) Evaluate the effects of its policies and practices with respect 
to its compliance with this part and the applicable DoD Component's 
supplementary guidelines.
    (ii) Modify any policies that do not meet such requirements.
    (iii) Take appropriate remedial steps to eliminate the 
discriminatory effects of any such policies or practices.
    (2) For at least 3 years following the completion of a self-
evaluation required under paragraph (c)(1) of this section, a recipient 
shall maintain on file, make available for public inspection, and 
provide to the ASD(MRA&L), or designee, upon request:
    (i) A list of the interested persons (last names, first names, and 
middle initials) consulted.
    (ii) A description of areas examined and problems identified, if 
any, with respect to those areas.
    (iii) A description of any modification made and remedial steps 
taken.
    (d) Dissemination of information. (1) Within 90 days of the 
effective date of this part or of first receiving assistance from the 
Department of Defense and on a continuing basis thereafter, each 
recipient shall notify beneficiaries and employees of their rights under 
this part and shall take appropriate steps to notify participants, 
beneficiaries, applicants for employment and employees, including those 
with impaired vision or hearing, and unions or professional 
organizations involved in collective bargaining or professional 
agreements with the recipient that the recipient does not discriminate 
on the basis of handicap in violation of this part. The notification 
shall state, when appropriate, that the recipient does not discriminate 
in admitting or providing access to or treating or employing persons in 
its programs and activities. Such notification may be accomplished

[[Page 185]]

by posting notices, publishing announcements in newspapers and 
magazines, placing notices in its publications, or distributing 
memoranda or other written communications.
    (2) If a recipient publishes or uses and makes available to 
participants, beneficiaries, applicants for employment, or employees 
recruitment materials or publications containing general information 
about the recipient's programs and activities, it shall include in those 
materials or publications a statement of the policy described in 
paragraph (d)(1) of this section. This may be accomplished by including 
appropriate inserts in existing materials and publications or by 
revising and reprinting the materials and publications.
    (3) Understandable materials developed in accordance with this 
section shall be provided to ensure that all beneficiaries and employees 
of the recipient understand the information. In addition, recipients 
shall disseminate appropriate and comprehensive information about formal 
and informal complaint and appeal procedures, including directions on 
how and where to file complaints and to appeal DoD Component decisions.
    (e) Intimidation and interference. Recipients and DoD Components 
shall take reasonable steps to ensure that no person intimidates, 
threatens, coerces, or discriminates against any individual for the 
purpose of retaliating against, interfering with, or discouraging the 
filing of a complaint, furnishing of information, or assisting or 
participating in an investigation, compliance review, hearing, or other 
activity related to the administration of this part.
    (f) Staff responsibilities. All DoD Component determinations of 
recipient compliance with this part shall be subject to reviews by the 
ASD(MRA&L), or designee. When responsibility for approving applications 
for Federal financial assistance disbursed by a DoD Component is 
assigned to regional or area offices of the DoD Component, personnel in 
such offices shall be designated to perform the functions described in 
paragraphs (h) and (o) through (w) of this section.
    (g) Access to records and facilities. Each recipient shall permit 
access to its premises by DoD officials during normal business hours 
when such access is necessary for conducting onsite compliance reviews 
or complaint investigations, and shall allow such officials to 
photograph facilities and to inspect and copy any books, records, 
accounts, and other material relevant to determining the recipient's 
compliance with this part. Information so obtained shall be used only in 
connection with the administration of this part. If the recipient does 
not have the information requested, it shall submit to the DoD Component 
a written report that contains a certification that the information is 
not available and describes the good-faith efforts made to obtain the 
information.
    (h) Compliance review. DoD Components shall determine the compliance 
of each recipient with this part as follows: (1) General. Whenever 
possible, DoD Components shall perform compliance reviews in conjunction 
with their review and audit efforts implementing title VI of the Civil 
Rights Act of 1964.
    (2) Desk audit application review. Before approving an application 
for Federal financial assistance, the DoD Component concerned shall make 
a written determination as to whether the recipient is in compliance 
with this part, based on a review of the assurance of compliance 
executed by a recipient pursuant to paragraph (b) of this section, and 
other data submitted by the recipient. When a determination cannot be 
made from the assurance and other data submitted by the recipient, the 
DoD Component concerned shall require the recipient to submit additional 
information and shall take other steps as necessary to determine the 
recipient's compliance with this part. If this additional information 
demonstrates that the recipient is in compliance with this part, the DoD 
Component shall notify the recipient promptly that it is in compliance.
    (3) Preapproval onsite review. (i) When a desk audit application 
review conducted pursuant to paragraph (h)(2) of this section indicates 
that the recipient might not be in compliance with this part, the DoD 
Component concerned may conduct a preapproval onsite review at the 
recipient's facilities before approving the disbursement of

[[Page 186]]

Federal financial assistance to the recipient. The DoD Component shall 
conduct such a review:
    (A) When appropriate, if a desk audit application review reveals 
that the recipient's compliance posture is questionable because of a 
history of discrimination complaints, current discrimination complaints, 
a noncompliance determination by another government agency or DoD 
Component, or other indications of possible noncompliance; or
    (B) If Federal financial assistance is requested for construction, 
except under extraordinary circumstances, to determine whether the 
location and design of the project would provide service on a 
nondiscriminatory basis, in conformity with Sec.  56.8(c).
    (ii) Preapproval onsite reviews shall be conducted under DoD 
Component supplementary guidelines and in accordance with the provisions 
of paragraph (h)(4) of this section, concerning postapproval reviews.
    (4) Postapproval reviews. DoD Components shall: (i) Establish and 
maintain effective programs of postapproval reviews.
    (ii) Conduct such reviews of each recipient, the frequency and the 
nature of which shall be prescribed in the DoD Component supplemetary 
guidelines implementing this part.
    (iii) Require recipients periodically to submit compliance reports 
to them.
    (iv) Record the results of the reviews, including findings of fact 
and recommendations.
    (5) A DoD Component shall complete a review within 180 calendar days 
of initiating it unless an extension of time is granted by the 
ASD(MRA&L), or designee, for good cause shown, and shall either:
    (i) Find the recipient to be in compliance and notify the recipient 
of that finding; or
    (ii) Notify the recipient and the ASD(MRA&L), or designee, of a 
finding of probable noncompliance, pursuant to paragraph (o) of this 
section.
    (i) Filing of complaints against recipients. (1) DoD Components 
shall establish and publish in their supplementary guidelines procedures 
for the prompt processing and disposition of complaints against 
recipients, consistent with this section.
    (2) A DoD Component shall consider all complaints that: (i) Are 
filed with it within 180 days of the alleged discrimination or within a 
longer period of time if an extension is granted for good cause by the 
DoD Component with the approval of the ASD(MRA&L), or designee.
    (ii) Include the name, address, and telephone number, if any, of the 
complainant; the name and address of the recipient committing the 
alleged discrimination; a description of the acts or omissions 
considered to be discriminatory; and other pertinent information.
    (iii) Are signed by the complainant or the complainant's authorized 
representative (legal counsel or a person with power of attorney granted 
by the complainant).
    (3) DoD Components shall transmit a copy of each complaint filed 
with them to the ASD(MRA&L), or designee, within 10 calendar days after 
its receipt.
    (4) If the information in a complaint is incomplete, the DoD 
Component shall request the complainant to provide the additional 
information required. If the DoD Component does not receive this 
requested information within 30 calendar days of the date of the 
request, the case may be closed and the complainant so notified in 
writing.
    (5) If a complaint concerning a program or activity is filed with a 
DoD Component that does not have jurisdiction over it, the DoD Component 
shall refer the complaint to the ASD(MRA&L), or designee, and advise the 
complainant in writing of such referral. The ASD(MRA&L), or designee, 
then shall refer the complaint to the appropriate DoD Component and so 
notify the complainant in writing.
    (j) Investigation by DoD components. (1) DoD Components shall 
investigate complaints that involve recipients and that meet the 
standards described in paragraph (i) of this section, unless good cause 
for not investigating is stated in a written notification of the 
disposition of the complaint provided to the complainant.

[[Page 187]]

    (2) If an investigation of a complaint is conducted, the DoD 
Component concerned shall maintain a case record that contains:
    (i) The name (last name, first, and middle initial), address (street 
address, city, State, and zip code), and telephone number of each person 
interviewed.
    (ii) Copies, transcripts, or summaries of pertinent documents.
    (iii) A reference to at least one program or activity conducted by 
the recipient and receiving Federal financial assistance disbursed by a 
DoD Component, and a description of the amount and nature of the 
assistance.
    (iv) A narrative report of the results of the investigation that 
contains references to relevant exhibits and other evidence that relates 
to the alleged violations.
    (k) Investigations by recipients. (1) A DoD Component may require or 
permit recipients to investigate complaints alleging violation of this 
part. In such cases, the DoD Component shall:
    (i) Ensure that the recipient investigates the complaints in 
accordance with the standards, procedures, and requirements prescribed 
in paragraph (j) of this section.
    (ii) Require the recipient to submit a written report of each 
complaint and investigation to the DoD Component.
    (iii) Retain a review responsibility over the investigation and 
disposition of each complaint.
    (iv) Ensure that each complaint investigation is completed within 
180 calendar days of the receipt of the complaint by the proper DoD 
Component, unless an extension of time is granted for good cause by the 
ASD(MRA&L), or designee.
    (v) Require the recipient to maintain a log of all complaints filed 
against it, as described in Sec.  56.6(a)(1).
    (2) DoD Components that require or permit complaint investigations 
to be conducted by recipients shall review recipient complaint 
investigations pursuant to paragraphs (k) and (l) of this section.
    (l) Results of investigations. (1) Within 180 days of the receipt of 
a complaint, the DoD Component, recipient, or the ASD(MRA&L), or 
designee, shall give written notification:
    (i) Of the disposition of the complaint to the complainant and, as 
the case may be, to the recipient or DoD Component.
    (ii) To the complainant that within 30 calendar days of receipt of 
the written notification, the complainant may request that the 
ASD(MRA&L), or designee, review the findings in the notification 
pursuant to paragraph (m) of this section.
    (2) If the complaint investigation results in a determination by the 
DoD Component that a recipient is not complying with this part the DoD 
Component shall proceed as prescribed in paragraph (n) through (v) of 
this section. If the DoD Component determines that the recipient is in 
compliance, the DoD Component shall submit the complete case file to the 
ASD(MRA&L), or designee, within 15 calendar days after the notification 
of the disposition of the investigation to the complainant.
    (m) Reviewing completed investigations. (1) The ASD(MRA&L), or 
designee, may review all completed investigations.
    (2) The ASD(MRA&L), or designee, shall review the results of any 
investigation of a complaint if the complainant requests such a review 
pursuant to paragraph (l)(1)(ii) of this section.
    (3) After reviewing the results of an investigation, the ASD(MRA&L), 
or designee, may:
    (i) Find that no further investigation is necessary and approve the 
results of the investigation;
    (ii) Request further investigation by the DoD Component; or
    (iii) Require the DoD Component to take appropriate corrective 
action.
    (n) Effecting compliance. (1) When a compliance review or complaint 
investigation indicates that a recipient has violated this part, the 
applicable DoD Component's supplementary guidelines, or the assurances 
executed pursuant to paragraph (b) of this section, the responsible DoD 
Component or the ASD(MRA&L), or designee, shall attempt to effect 
compliance in accordance with paragraphs (o) and (p) of this section. 
The inability of a DoD Component to comply with any time frame 
prescribed by this part does not relieve a recipient of the 
responsibility for compliance with this part.

[[Page 188]]

    (2) The DoD Component may require, when necessary to overcome the 
effects of discrimination in violation of this part, a recipient to take 
remedial action:
    (i) With respect to handicapped persons who are no longer 
participants in the recipient's program or activity but who were 
participants in the program or activity when such discrimination 
occurred.
    (ii) With respect to handicapped persons who would have been 
participants in the recipient's program or activity had the 
discrimination not occurred.
    (iii) With respect to handicapped persons presently in the 
recipient's program or activity, but not receiving full benefits or 
equal and integrated treatment within the program or activity.
    (o) Written notice.  After evaluating the investigative report, the 
DoD Component shall issue to the recipient and, pursuant to paragraph 
(n)(2) of this section to the ASD(MRA&L), or designee, a written notice 
that:
    (1) Describes the apparent violation and the corrective actions 
necessary to achieve compliance.
    (2) Extends an offer to meet informally with the recipient.
    (3) Informs the recipient that failure to respond to the notice 
within 15 calendar days of its receipt shall result in the initiation of 
enforcement procedures described in paragraphs (r) through (v), of this 
section.
    (p) Attempting to achieve voluntary compliance by recipients. (1) If 
a DoD Component issues a notice pursuant to paragraph (o) of this 
section, the DoD Component shall attempt to meet with the recipient and 
shall attempt to persuade it to take the steps necessary to achieve 
compliance with this part.
    (2) If a recipient agrees to take remedial steps to achieve 
compliance, the DoD Component shall require that the agreement be in 
writing and:
    (i) Be signed by the head of the DoD Component concerned, or 
designee, and by the principal official of the recipient.
    (ii) Specify the action necessary to achieve compliance.
    (iii) Be made available to the public upon request.
    (iv) Be subject to the approval of the ASD(MRA&L), or designee.
    (3) If satisfactory adjustment or a written agreement has not been 
achieved within 60 calendar days of the recipient's receipt of the 
notice issued pursuant to paragraph (o) of this section, the DoD 
Component shall notify the ASD(MRA&L), or designee, and state the 
reasons therefor.
    (4) The DoD Component shall initiate the enforcement actions 
prescribed in paragraphs (r) through (v) of this section if:
    (i) The recipient does not respond to a notice pursuant to paragraph 
(o) of this section, within 15 calendar days of its receipt and 
satisfactory adjustments are not made within 45 calendar days of the 
date of the recipient's response; or
    (ii) The DoD Component or the ASD (MRA&L) determines at any time 
within 90 days after the recipient receives a notice pursuant to 
paragraph (o) of this section, that, despite reasonable efforts, it is 
not likely that the recipient will comply promptly and voluntarily.
    (5) If, pursuant to paragraph (p)(4) of this section, the DoD 
Component initiates enforcement action, it also shall continue its 
attempts to persuade the recipient to comply voluntarily.
    (q) Imposing sanctions--(1) Sanctions available. If a DoD Component 
has taken action pursuant to paragraphs (o) and (p) of this section, the 
DoD Component may, by order, subject to paragraph (q)(2) and (q)(3) of 
this section:
    (i) Terminate, suspend, or refuse to grant or continue assistance to 
such recipient.
    (ii) Refer the case to the Department of Justice for the initation 
of enforcement proceedings at a Federal, State, or local level.
    (iii) Pursue any remedies under State or local law.
    (iv) Impose other sanctions upon consultation with the ASD (MRASL), 
or designee.
    (2) Terminating, suspending, or refusing to grant or continue 
assistance. A DoD Component may not terminate or refuse to grant or 
continue Federal financial assistance unless:
    (i) Such action has been approved by the Secretary of Defense.

[[Page 189]]

    (ii) The DoD Component has given the recipient an opportunity for a 
hearing pursuant to the procedures set out in paragraph (r) of this 
section, and a finding of noncompliance has resulted.
    (iii) Thirty calendar days have elapsed since the Secretary of 
Defense has filed a written report describing the violation and action 
to be taken with the committees of the House of Representatives and 
Senate that have jurisdiction over the program or activity in which the 
violation of this part exists.
    (iv) Such action is limited to affect only the particular activity 
or program, or portion thereof, of the recipient where the violation 
exists.
    (3) Other sanctions. A DoD Component may not impose the sanctions 
set out in paragraphs (q)(1) (iii) and (iv) of this section, unless:
    (i) The DoD Component has given the recipient an opportunity for a 
hearing pursuant to paragraph (r) of this section, and a finding of 
noncompliance has resulted.
    (ii) The action has been approved by the Secretary of Defense.
    (iii) Ten calendar days have elapsed since the mailing of a notice 
informing the recipient of its continuing failure to comply with this 
part the action necessary to achieve compliance, and the sanction to be 
imposed.
    (iv) During those 10 calendar days the DoD Component has made 
additional efforts to persuade the recipient to comply.
    (r) Hearings for recipients--(1) General. When, pursuant to 
paragraph (q)(2)(ii) of this section, an opportunity for a hearing is 
given to a recipient, the DoD Component involved shall follow the 
procedures prescribed in paragraphs (r)(2) through (r)(6) of this 
section.
    (2) Notice. The DoD Component concerned shall notify the recipient 
of the opportunity for a hearing by registered or certified mail, return 
receipt requested, when the recipient denies a tentative finding of 
noncompliance with this part.
    (i) The DoD Component shall ensure that the notice:
    (A) Describes the proposed sanctions to be imposed.
    (B) Cites the section of this part under which the proposed action 
is to be taken.
    (C) States the name and office of the DoD Component official who is 
responsible for conducting the hearing (hereafter referred to as the 
``responsible DoD official'').
    (D) Outlines the issues to be decided at the hearing.
    (E) Advises the recipient either of a date, not less than 20 
calendar days after the date that the notice is received, by which the 
recipient may request that the matter be scheduled for a hearing, or of 
a reasonable time and place of a hearing that is subject to change for 
good cause shown.
    (ii) When a time and place for a hearing are set, the DoD Component 
shall give the recipient and the complainant, if any, reasonable notice 
of such time and place.
    (3) Waiver of a hearing. A recipient may waive a hearing and submit 
to the responsible DoD official, in writing, information or arguments on 
or before the date stated pursuant to paragraph (r)(2)(i)(E) of this 
section.
    (i) A recipient waives its right to a hearing if it fails to request 
a hearing on or before a date stated pursuant to paragraph (r)(2)(i)(E) 
of this section, or fails to appear at a hearing that has been scheduled 
pursuant to that paragraph.
    (ii) If a recipient waives its right to a hearing under this 
section, the responsible DoD official shall decide the issues and render 
a final decision that is based on the information available and that 
conforms to the requirements of paragraph (s)(4) of this section.
    (4) Hearing examiner. Hearings shall be conducted by the responsible 
DoD official or by a hearing examiner designated by the official, 
provided that the hearing examiner shall be a field grade officer or 
civilian employee above the grade of GS-12 (or the equivalent) who is 
admitted to practice law before a Federal court or the highest court of 
a State, territory, commonwealth, or the District of Columbia.
    (5) Right to counsel. In all proceedings under this section, the 
recipient and

[[Page 190]]

the DoD Component may be represented by counsel. The representation of 
the recipient will not be at U.S. Government expense.
    (6) Procedures. Hearings authorized under this section shall be 
subject to the following: (i) Hearings shall be open to the public.
    (ii) Formal rules of evidence will not apply. The DoD Component 
concerned and the recipient shall be entitled to introduce all relevant 
evidence on the issues stated in the notice of hearing issued pursuant 
to paragraph (r)(2) of this section, and those designated by the 
responsible DoD official or the hearing examiner at the outset of or 
during the hearing. The responsible DoD official or hearing examiner, 
however, may exclude irrelevant, immaterial, or repetitious evidence.
    (iii) All witnesses may be examined or cross-examined, as the case 
may be, by each party.
    (iv) All parties shall have the opportunity to examine all evidence 
offered or admitted for the record.
    (v) A transcript of the proceedings shall be maintained in either 
electronic or typewritten form and made available to all parties.
    (s) Decisions--(1) Initial or proposed decisions by a hearing 
examiner. If a hearing is conducted by a hearing examiner who is 
designated by the responsible DoD official pursuant to paragraph (r)(4) 
of this section, the hearing examiner shall either:
    (i) Make an initial decision, if so authorized, that conforms to the 
requirements of paragraph (s)(4) of this section; or
    (ii) Certify the entire record and submit to the responsible DoD 
official recommended findings and a proposed decision.
    (2) Review of initial decisions. Initial decisions made by a hearing 
examiner pursuant to paragraph (s)(1)(i) of this section, shall be 
reviewed as follows:
    (i) A recipient may file exceptions to an initial decision within 30 
calendar days of receiving notice of such initial decision. Reasons 
shall be stated for each exception.
    (ii) If the recipient does not file exceptions pursuant to paragraph 
(s)(2)(i) of this section, the responsible DoD official may notify the 
recipient within 45 calendar days of the initial decision that the 
responsible DoD official will review the decisions.
    (iii) If exceptions are filed pursuant to paragraph (s)(2)(i) of 
this section, or a notice of review is issued pursuant to paragraph 
(s)(2)(ii) of this section, the responsible DoD official shall review 
the initial decision and, after giving the recipient reasonable 
opportunity to file a brief or other written statement of its 
contentions, issue a final decision that addresses each finding and 
conclusion in the initial decision and each exception, if any.
    (iv) If the exceptions described in paragraph (s)(2)(i) of this 
section are not filed and the responsible DoD official does not issue 
the notice of review described in paragraph (s)(2)(ii) of this section, 
the initial decision of the hearing examiner shall constitute the final 
decision of the responsible DoD official.
    (3) Decisions by the responsible DoD official who conducts a hearing 
or receives a certified record. If a hearing examiner who is designated 
by the responsible DoD official certifies the entire record and submits 
recommended findings and a proposed decision to the responsible DoD 
official pursuant to paragraph (s)(1)(ii) of this section, or if the 
responsible DoD official conducts the hearing, after giving the 
recipient a reasonable opportunity to file a brief or other written 
statement of its contentions, the responsible DoD official shall render 
a final decision that conforms to paragraph (s)(4) of this section.
    (4) Contents of decisions. Each decision of a hearing examiner or 
responsible DoD official shall state all findings and conclusions and 
identify each violation of this part. The final decision may contain an 
order pursuant to paragraph (q) of this section, providing for the 
suspension or termination of or refusal to grant or continue all or some 
of the Federal financial assistance under the program or activity 
involved and contain terms, conditions, and other provisions that are 
consistent with and intended to achieve compliance with this Directive.
    (5) Notice of decisions and certifications. The responsible DoD 
official shall provide a copy of any certified

[[Page 191]]

record of a hearing and any initial or final decision to the recipient 
and the complainant, if any.
    (6) Review by the Secretary of Defense. The responsible DoD official 
shall transmit promptly any final decision that orders a suspension, 
termination, or denial of Federal financial assistance through the 
ASD(MRA&L) to the Secretary of Defense. The Secretary may;
    (i) Approve the decision;
    (ii) Vacate the decision; or
    (iii) Remit or mitigate any sanction imposed.
    (t) Restoring eligibility for financial assistance. (1) A recipient 
that is affected adversely by a final decision issued under paragraph 
(s) of this section, may at any time request the responsible DoD 
official to restore fully its eligibility to receive Federal financial 
assistance.
    (2) If the responsible DoD official determines that the information 
supplied by the recipient demonstrates that it has satisfied the terms 
and conditions of the order entered pursuant to paragraph (s) of this 
section, and that is complying with and has provided reasonable 
assurance that it will continue to comply with this part the responsible 
DoD official shall restore such eligibility immediately.
    (3) If the responsible DoD official denies a request for restoration 
of eligibility, the recipient may submit a written request for a hearing 
that states why it believes the responsible DoD official erred in 
denying the request. Following such a written request, the recipient 
shall be given an expeditious hearing under rules of procedure issued by 
the responsible DoD official to determine whether the requirements 
described in paragraph (t)(2) of this section, have been met. While any 
such proceedings are pending, the sanctions imposed by the order issued 
under paragraph (s) of this section, shall remain in effect.
    (u) Interagency cooperation and delegation. (1) When several 
recipients are receiving assistance for the same or similar purposes 
from a DoD Component and another Federal agency, the DoD Component shall 
notify the ASD (MRA&L), or designee. Such notification shall be in 
writing and shall contain:
    (i) A description of the programs and activities involved.
    (ii) A statement of the amount of money expended on the programs and 
activities in the previous and current fiscal year by the DoD Component 
and the agency.
    (iii) A list of the known primary recipients.
    (2) The ASD(MRA&L), or designee, shall attempt to negotiate with the 
Federal agency a written delegation agreement that designates the agency 
or the DoD Component as the primary agency for purposes of ensuring 
compliance with section 504 of Public Law 93-112, as amended, and this 
part depending upon which of them administers a larger financial 
assistance program with the common recipients and other relevant 
factors. If necessary, the agreement shall establish procedures to 
ensure the enforcement of section 504 of Public Law 93-112, as amended, 
and this part. The ASD(MRA&L), or designee, shall provide written 
notification to recipients of an agreement reached under this 
subsection.
    (3) When several recipients are receiving assistance for the same or 
similar purposes from two or more DoD Components, the DoD Components may 
negotiate a proposed written delegation agreement that:
    (i) Assigns responsibility for ensuring that the recipient complies 
with this part to one of the DoD Components.
    (ii) Provides for the notification to recipients and the responsible 
program officials of the DoD Components involved of the assignment of 
enforcement responsibility.
    (4) No delegation agreement reached in accordance with paragraph 
(u)(3) to this section shall be effective until it is approved by the 
ASD(MRA&L), or designee.
    (5) When possible, existing delegation agreements relating to title 
VI of the Civil Rights Act of 1964 shall be amended to provide for the 
enforcement of this part.
    (6) Any DoD Component conducting a compliance review or 
investigating a complaint of an alleged violation by a recipient shall 
notify any other affected agency or DoD Component

[[Page 192]]

through the ASD(MRA&L), or designee, upon discovery that the agency or 
DoD Component has jurisdiction over the program or activity in question 
and shall subsequently inform it of the finding made. Such reviews or 
investigations may be conducted on a joint basis.
    (7) When a compliance review or complaint investigation under this 
part reveals a possible violation of Executive Order 11246, titles VI or 
VII of the Civil Rights Act of 1964, or any other Federal law, the DoD 
Component shall notify the appropriate agency, through the ASD(MRA&L), 
or designee.
    (v) Coordination with sections 502 and 503. (1) DoD Components shall 
use DoD 4270.1-M and Department of the Army, Office of the Chief of 
Engineers, Manual EM 1110-1-103, in developing requirements for the 
accessibility of facilities. If DoD Components encounter issues with 
respect to section 502 of the Rehabilitation Act of 1973, as amended, 
that are not covered by these publications, the ASD(MRA&L), or designee, 
may be consulted. If necessary, the ASD(MRA&L), or designee, shall 
consult with the Architectural and Transportation Barriers Compliance 
Board in resolving such problems.
    (2) DoD Components may advise recipients to consult directly with 
the Architectural and Transportation Barriers Compliance Board in 
developing accessibility criteria.
    (3) DoD Components shall coordinate enforcement actions relating to 
the accessibility of facilities with the Architectural and 
Transportation Barriers Compliance Board and shall notify the 
ASD(MRA&L), or designee, of such coordination.
    (4) If a recipient is also a Federal contractor subject to section 
503 of the Rehabilitation Act of 1973, as amended, and the regulations 
thereunder (41 CFR part 60-741) and if a DoD Component has reason to 
believe that the recipient is in violation thereof, the DoD Component 
shall coordinate enforcement actions with the Department of Labor, 
Office of Federal Contract Compliance Programs. The DoD Component shall 
notify the ASD(MRA&L), or designee, of such coordination.



Sec.  56.10  Ensuring compliance with this part in programs and 
activities conducted by the Department of Defense.

    (a) Supplementary guidelines. (1) Whenever necessary, the 
ASD(MRA&L), or designee, shall publish supplementary guidelines for 
programs and activities that are conducted by DoD Components and that 
are subject to this Directive. Prior to their issuance, the ASD(MRA&L), 
or designee, shall submit supplementary guidelines prepared pursuant to 
this subsection to the Coordination and Review Section, Civil Rights 
Division, Department of Justice, for review.
    (2) The heads of DoD Components, or designees, shall be responsible 
for keeping the supplementary guidelines described in this section 
current and accurate. When a DoD Component head determines that a 
program or activity should be added to or deleted from the guidelines, 
that official shall notify the ASD(MRA&L), or designee, in writing.
    (b) Staff responsibilities. The ASD(MRA&L), or designee, shall 
determine DoD Component compliance with this part as it pertains to 
programs and activities that are conducted by DoD Components and are 
subject to this part.
    (c) Filing of complaints. (1) Complaints of discrimination in a 
program or activity conducted by a DoD Component may be filed directly 
with the ASD(MRA&L), or designee.
    (2) DoD Components shall develop procedures, such as posters or 
other devices, to notify participants in the programs and activities 
listed in Sec.  56.7(c) of their right to be free of discrimination 
because of handicap in those programs and activities and of their right 
to file complaints of discrimination with the ASD(MRA&L), or designee.
    (d) Investigations of complaints. (1) The ASD(MRA&L), or designee, 
shall investigate complaints of discrimination in programs and 
activities that are conducted by DoD Components and are subject to this 
part.
    (2) A case record of each investigation shall be compiled in 
accordance with Sec.  56.9(j)(2).
    (e) Results of investigations. If the complaint investigation 
results in a determination by the ASD(MRA&L), or

[[Page 193]]

designee, that a DoD Component's program or activity is not complying 
with Sec.  56.9, the ASD(MRA&L), or designee, shall proceed as 
prescribed in Sec.  56.9 (n) through (v). Hearings prescribed under 
Sec.  56.9(r) however, need not be conducted. If the ASD(MRA&L), or 
designee, determines that the DoD Component is in compliance, the 
ASD(MRA&L), or designee, shall notify the complainant within 15 calendar 
days of such determination.
    (f) Written notice. If an investigative report concludes that there 
has been a violation of this part in a program or activity conducted by 
a DoD Component and the ASD(MRA&L), or designee, accepts that 
conclusion, that official shall issue to the head of the DoD Component a 
written notice describing the apparent violation, the corrective actions 
necessary to achieve compliance, and a suspense date for completion of 
the corrective actions.
    (g) Effecting compliance. When necessary to overcome the effects of 
discrimination in violation of this part the ASD(MRA&L), or designee, 
may require a DoD Component to take remedial action similar to that in 
Sec.  56.9(n)(2).
    (h) Employment. DoD Components that conduct Federal programs or 
activities covered by this part that involve employment of civilian 
persons to conduct such a program or activity must comply with section 
501 of the Rehabilitation Act of 1973, as amended, and the implementing 
rules and regulations of the EEOC.



PART 57_PROVISION OF EARLY INTERVENTION AND SPECIAL EDUCATION SERVICES
TO ELIGIBLE DOD DEPENDENTS--Table of Contents



Sec.
57.1 Purpose.
57.2 Applicability.
57.3 Definitions.
57.4 Policy.
57.5 Responsibilities.
57.6 Procedures.

    Authority: 10 U.S.C. 2164, 20 U.S.C. 921-932 and chapter 33.

    Source: 80 FR 36660, June 25, 2015, unless otherwise noted.



Sec.  57.1  Purpose.

    This part:
    (a) Establishes policy and assigns responsibilities to implement, 
other than the funding and reporting provisions, chapter 33 of 20 U.S.C. 
(also known and hereinafter referred to in this part as ``Individuals 
with Disabilities Education Act (IDEA)'') pursuant to 20 U.S.C. 927(c) 
and 10 U.S.C. 2164(f) for:
    (1) Provision of early intervention services (EIS) to infants and 
toddlers with disabilities and their families, as well as special 
education and related services to children with disabilities entitled 
under this part to receive education services from the DoD in accordance 
with 20 U.S.C. 921-932, 10 U.S.C. 2164, and DoD Directive 1342.20, 
``Department of Defense Education Activity (DoDEA)'' (available at 
http://www.dtic.mil/whs/ directives/corres/ pdf/134220p.pdf), and the 
IDEA.
    (2) Implementation of a comprehensive, multidisciplinary program of 
EIS for infants and toddlers with disabilities and their DoD civilian-
employed and military families.
    (3) Provision of a free appropriate public education (FAPE), 
including special education and related services for children with 
disabilities who are eligible to enroll in DoDEA schools, as specified 
in their respective individualized education programs (IEP).
    (4) Monitoring of DoD programs providing EIS, or special education 
and related services for compliance with this part.
    (b) Establishes a DoD Coordinating Committee to recommend policies 
and provide compliance oversight for early intervention and special 
education.
    (c) Authorizes the issuance of other guidance as necessary.



Sec.  57.2  Applicability.

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

[[Page 194]]

    (b) Eligible infants, toddlers, and children receiving or entitled 
to receive early intervention services (EIS) or special education and 
related services from the DoD, whose parents have not elected voluntary 
enrollment in a non-Department of Defense Education Activity (DoDEA) 
school.
    (c) All schools operated under the oversight of the DoDEA, 
including:
    (1) Domestic Dependent Elementary and Secondary Schools (DDESS) 
operated by the DoD pursuant to 10 U.S.C. 2164.
    (2) Department of Defense Dependents Schools (DoDDS) operated by the 
DoD pursuant to 20 U.S.C. 921-932 (hereinafter referred to as 
``overseas'' schools).
    (d) Does not create any substantive rights or remedies not otherwise 
authorized by the IDEA or other relevant law; and may not be relied upon 
by any person, organization, or other entity to allege a denial of 
substantive rights or remedies not otherwise authorized by the IDEA or 
other relevant law.



Sec.  57.3  Definitions.

    Unless otherwise noted, these terms and their definitions are for 
the purpose of this part.
    Age of majority. The age when a person acquires the rights and 
responsibilities of being an adult. For purposes of this part, a child 
attains majority at age 18, unless the child has been determined by a 
court of competent jurisdiction to be incompetent, or, if the child has 
not been determined to be incompetent, he or she is incapable of 
providing informed consent with respect to his or her educational 
program.
    Alternate assessment. An objective and consistent process that 
validly measures the performance of students with disabilities unable to 
participate, even with appropriate accommodations provided as necessary 
and as determined by their respective CSC, in a system-wide assessment.
    Alternative educational setting (AES). A temporary setting in or out 
of the school, other than the setting normally attended by the student 
(e.g., alternative classroom, home setting, installation library) as 
determined by school authorities or the CSC, in accordance with Sec.  
57.6(b)(12) as the appropriate learning environment for a student 
because of a violation of school rules and regulations or disruption of 
regular classroom activities.
    Assistive technology device. Any item, piece of equipment, or 
product system, whether acquired commercially or off the shelf, 
modified, or customized, that is used to increase, maintain, or improve 
functional capabilities of children with disabilities. This term does 
not include a medical device that is surgically implanted or the 
replacement of that device.
    Assistive technology service. Any service that directly assists an 
individual with a disability in the selection, acquisition, or use of an 
assistive technology device. The term includes: Evaluating the needs of 
an individual with a disability, including a functional evaluation in 
the individual's customary environment; purchasing, leasing, or 
otherwise providing for the acquisition of assistive technology devices 
by individuals with disabilities; selecting, designing, fitting, 
customizing, adapting, applying, maintaining, repairing, or replacing 
assistive technology devices; coordinating and using other therapies, 
interventions, or services with assistive technology devices, such as 
those associated with existing educational and rehabilitative plans and 
programs; training or technical assistance for an individual with 
disabilities or the family of an individual with disabilities; and 
training or technical assistance for professionals (including 
individuals providing educational rehabilitative services), employers, 
or other individuals who provide services to, employ, or are otherwise 
substantially involved in the major life functions of an individual with 
a disability.
    Case study committee (CSC). A school-level multidisciplinary team, 
including the child's parents, responsible for making educational 
decisions concerning a child with a disability.
    Child-find. An outreach program used by DoDEA, the Military 
Departments, and the other DoD Components to locate, identify, and 
evaluate children from birth to age 21, inclusive, who may require EIS 
or special education and related services. All children who

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are eligible to attend a DoD school under 20 U.S.C. 921-932 or 10 U.S.C. 
2164 fall within the scope of the DoD child-find responsibilities. 
Child-find activities include the dissemination of information to 
Service members, DoD employees, and parents of students eligible to 
enroll in DoDEA schools; the identification and screening of children; 
and the use of referral procedures.
    Children with disabilities. Children, ages 3 through 21, inclusive, 
who are entitled to enroll, or are enrolled, in a DoD school in 
accordance with 20 U.S.C. 921-932 and 10 U.S.C. 2164, have not graduated 
from high school or completed the General Education Degree, have one or 
more disabilities in accordance with section 1401(3) of the IDEA, and 
need and qualify for special education and related services.
    Complainant. Person making an administrative complaint.
    Comprehensive system of personnel development (CSPD). A system of 
personnel development that is developed in coordination with the 
Military Departments and the Director, DoDEA. CSPD is the training of 
professionals, paraprofessionals, and primary referral source personnel 
with respect to the basic components of early intervention, special 
education, and related services. CSPD may also include implementing 
innovative strategies and activities for the recruitment and retention 
of personnel providing special education and related services, ensuring 
that personnel requirements are established and maintaining 
qualifications to ensure that personnel necessary to carry out the 
purposes of this part are appropriately and adequately prepared to 
provide special education and related services. Training of personnel 
may include working within the military and with military families, the 
emotional and social development of children, and transition services 
from early intervention to preschool and transitions within educational 
settings and to post-secondary environments.
    Consent. The permission obtained from the parent ensuring they are 
fully informed of all information about the activity for which consent 
is sought, in his or her native language or in another mode of 
communication if necessary, and that the parent understands and agrees 
in writing to the implementation of the activity for which permission is 
sought.
    Continuum of placement options. Instruction in general education 
classes, special classes, special schools, home instruction, and 
instruction in hospitals and institutions; includes provision for 
supplementary services (such as resource room or itinerant instruction) 
to be provided in conjunction with regular class placement.
    Controlled substance. As defined in Sections 801-971 of title 21, 
United States Code (also known as the ``Controlled Substances Act, as 
amended'').
    Day. A calendar day, unless otherwise indicated as a business day or 
a school day.
    (1) Business day. Monday through Friday except for Federal and State 
holidays.
    (2) School day. Any day, including a partial day, that children are 
in attendance at school for instructional purposes. School day has the 
same meaning for all children in school, including children with and 
without disabilities.
    Department of Defense Education Activity (DoDEA). The Department of 
Defense Education Activity is a DoD Field Activity under the direction, 
operation, and control of the Under Secretary of Defense for Personnel & 
Readiness (USD(P&R)) and the Assistant Secretary of Defense for 
Readiness & Force Management (ASD(R&FM)). The mission of DoDEA is to 
provide an exemplary education by effectively and efficiently planning, 
directing, and overseeing the management, operation, and administration 
of the DoD Domestic Dependent Elementary and Secondary Schools (DDESS) 
and the DoD Dependents Schools (DoDDS), which provide instruction from 
kindergarten through grade 12 to eligible dependents.
    Department of Defense Dependents Schools (DoDDS). The overseas 
schools (kindergarten through grade 12) established in accordance with 
20 U.S.C. 921-932.
    Department of Defense Education Activity School. A DDESS or DoDDS 
school operated under the oversight of DoDEA.

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    Developmental Delay in children ages 3 through 7. A child three 
through seven (or any subset of that age range, including ages 3 through 
5) who is experiencing developmental delays, as defined for infants and 
toddlers at Sec.  57.6(a)(4)(ii)(A) as measured by appropriate 
diagnostic instruments and procedures, in one or more of the following 
areas: Physical development, cognitive development, communication 
development, social or emotional development, or adaptive development, 
and who, by reason thereof, needs special education and related 
services. A child determined to have a developmental delay before the 
age of 7 may maintain that eligibility through age 9.
    Domestic Dependent Elementary and Secondary Schools (DDESS). The 
schools (pre-kindergarten through grade 12) established in accordance 
with 10 U.S.C. 2164.
    Early intervention service provider. An individual that provides 
early intervention services in accordance with this part.
    Educational and Developmental Intervention Services (EDIS). Programs 
operated by the Military Departments to provide EIS to eligible infants 
and toddlers with disabilities, and related services to eligible 
children with disabilities in accordance with this part.
    EIS. Developmental services for infants and toddlers with 
disabilities, as defined in this part, that are provided under the 
supervision of a Military Department, including evaluation, 
individualized family service plan (IFSP) development and revision, and 
service coordination, provided at no cost to the child's parents (except 
for incidental fees also charged to children without disabilities).
    Extended school year (ESY) services. Special education and related 
services that are provided to a child with a disability beyond the 
normal DoDEA school year, in accordance with the child's IEP, are at no 
cost to the parents, and meet the standards of the DoDEA school system.
    Evaluation. The method used by a multidisciplinary team to conduct 
and review the assessments of the child and other relevant input to 
determine whether a child has a disability and a child's initial and 
continuing need to receive EIS or special education and related 
services.
    Extracurricular and non-academic activities. Services and activities 
including counseling services; athletics; transportation; health 
services; recreational activities; special interest groups or clubs 
sponsored by the DoDEA school system; and referrals to agencies that 
provide assistance to individuals with disabilities and employment of 
students, including employment by a public agency and assistance in 
making outside employment available.
    FAPE. Special education and related services that are provided under 
the general supervision and direction of DoDEA at no cost to parents of 
a child with a disability, in conformity with an IEP, in accordance with 
the requirements of the IDEA and DoD guidance.
    Functional behavioral assessment. A process for identifying the 
events that predict and maintain patterns of problem behavior.
    General education curriculum. The curriculum adopted by the DoDEA 
school systems for all children from preschool through secondary school. 
To the extent applicable to an individual child with a disability, the 
general education curriculum can be used in any educational environment 
along a continuum of alternative placements.
    IEP. A written document that is developed, reviewed, and revised at 
a meeting of the CSC, identifying the required components of the 
individualized education program for a child with a disability.
    Individualized Family Service Plan (IFSP). A written document 
identifying the specially designed services for an infant or toddler 
with a disability and the family of such infant or toddler.
    Independent educational evaluation (IEE). An evaluation conducted by 
a qualified examiner who is not an EDIS examiner or an examiner funded 
by the DoDEA school who conducted the evaluation with which the parent 
is in disagreement.
    Infants and toddlers with disabilities. Children from birth up to 3 
years of age, inclusive, who need EIS because:

[[Page 197]]

    (1) They are experiencing developmental delays as measured by 
appropriate diagnostic instruments and procedures, in one or more of the 
following areas: Cognitive development, physical development including 
vision and hearing, communication development, social or emotional 
development, adaptive development; or
    (2) They have a diagnosed physical or mental condition that has a 
high probability of resulting in developmental delay.
    Inter-component. Cooperation among DoD organizations and programs, 
ensuring coordination and integration of services to infants, toddlers, 
children with disabilities, and their families.
    Manifestation determination. The process in which the CSC reviews 
all relevant information and the relationship between the child's 
disability and the child's behavior to determine whether the behavior is 
a manifestation of the child's disability.
    Mediation. A confidential, voluntary, informal dispute resolution 
process that is provided at no charge to the parents, whether or not a 
due process petition has been filed, in which the disagreeing parties 
engage in a discussion of issues related to the provision of the child's 
EIS or special education and related services in accordance with the 
requirements of IDEA and this part, in the presence of, or through, a 
qualified and impartial mediator who is trained in effective mediation 
techniques.
    Medical services. Those evaluative, diagnostic, and therapeutic, 
services provided by a licensed and credentialed medical provider to 
assist providers of EIS, regular and special education teachers, and 
providers of related services to develop and implement IFSPs and IEPs.
    Multidisciplinary. The involvement of two or more disciplines or 
professions in the integration and coordination of services, including 
evaluation and assessment activities and development of an IFSP or an 
IEP.
    Native language. When used with reference to an individual of 
limited English proficiency, the home language normally used by such 
individuals, or in the case of a child, the language normally used by 
the parents of the child.
    Natural environment. A setting, including home and community, in 
which children without disabilities participate.
    Non-DoD school or facility. A public or private school or other 
educational program not operated by DoD.
    Parent. The natural, adoptive, or foster parent of a child, a 
guardian, an individual acting in the place of a natural or adoptive 
parent with whom the child lives, or an individual who is legally 
responsible for the child's welfare if that person contributes at least 
one-half of the child's support.
    Personally identifiable information. Information that would make it 
possible to identify the infant, toddler, or child with reasonable 
certainty. Information includes: The name of the child, the child's 
parent or other family member; the address of the child; a personal 
identifier, such as the child's social security number or student 
number; or a list of personal characteristics or other information that 
would make it possible to identify the child with reasonable certainty.
    Primary referral source. Parents and the DoD Components, including 
child development centers, pediatric clinics, and newborn nurseries, 
that suspect an infant or toddler has a disability and bring the child 
to the attention of the EDIS.
    Psychological services. Psychological services include: 
Administering psychological and educational tests and other assessment 
procedures; interpreting assessment results; obtaining, integrating and 
interpreting information about child behavior and conditions relating to 
learning; consulting with other staff members in planning school 
programs to meet the special educational needs of children as indicated 
by psychological tests, interviews, direct observations, and behavioral 
evaluations; planning and managing a program of psychological services, 
including psychological counseling for children and parents; and 
assisting in developing positive behavioral intervention strategies.
    Public awareness program. Activities or print materials focusing on 
early identification of infants and toddlers

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with disabilities. Materials may include information prepared and 
disseminated by a military medical department to all primary referral 
sources and information for parents on the availability of EIS. 
Procedures to determine the availability of information on EIS to 
parents are also included in that program.
    Qualified. A person who meets the DoD-approved or recognized 
certification, licensing, or registration requirements or other 
comparable requirements in the area in which the person provides 
evaluation or assessment, EIS, special education or related services to 
an infant, toddler, or child with a disability.
    Rehabilitation counseling. Services provided by qualified personnel 
in individual or group sessions that focus specifically on career 
development, employment preparation, achieving independence, and 
integration in the workplace and community of the student with a 
disability. The term also includes vocational rehabilitation services 
provided to a student with disabilities by vocational rehabilitation 
programs funded in accordance with the Rehabilitation Act of 1973, 29 
U.S.C. chapter 16.
    Related services. Transportation and such developmental, corrective, 
and other supportive services, as required, to assist a child with a 
disability to benefit from special education under the child's IEP. The 
term includes services or consults in the areas of speech-language 
pathology; audiology services; interpreting services; psychological 
services; physical and occupational therapy; recreation including 
therapeutic recreation; social work services; and school nurse services 
designed to enable a child with a disability to receive a FAPE as 
described in the child's IEP; early identification and assessment of 
disabilities in children; counseling services including rehabilitation 
counseling; orientation and mobility services; and medical services for 
diagnostic or evaluative purposes. The term does not include a medical 
device that is surgically implanted or the replacement of such.
    Related services assigned to the Military Departments. Medical and 
psychological services, audiology, and optometry for diagnostic or 
evaluative purposes, including consults, to determine whether a 
particular child has a disability, the type and extent of the 
disability, and the child's eligibility to receive special services. In 
the overseas and domestic areas, transportation is provided as a related 
service by the Military Department when transportation is prescribed in 
an IFSP for an infant or toddler, birth to 3 years of age, with 
disabilities.
    Resolution meeting. The meeting between parents and relevant school 
personnel, which must be convened within a specified number of days 
after receiving notice of a due process complaint and prior to the 
initiation of a due process hearing, in accordance with the IDEA and 
this part. The purpose of the meeting is for the parent to discuss the 
due process complaint and the facts giving rise to the complaint so that 
the school has the opportunity to resolve the complaint.
    Resolution period. That period of time following a resolution 
meeting, the length of which is defined in this part, during which the 
school is afforded an opportunity to resolve the parent's concerns 
before the dispute can proceed to a due process hearing.
    Separate facility. A school or a portion of a school, regardless of 
whether it is operated by DoD, attended exclusively by children with 
disabilities.
    Serious bodily injury. A bodily injury, which involves a substantial 
risk of death; extreme physical pain; protracted and obvious 
disfigurement; or protracted loss or impairment of the function of a 
bodily member, organ, or mental faculty.
    Service coordination. Activities of a service coordinator to assist 
and enable an infant or toddler and the family to receive the rights, 
procedural safeguards, and services that are authorized to be provided.
    Special education. Specially designed instruction, which is provided 
at no cost to the parents, to meet the unique needs of a child with a 
disability, including instruction conducted in the classroom, in the 
home, in hospitals and institutions, and in other settings; and 
instruction in physical education.
    Supplementary aids and services. Aids, services, and other supports 
that are

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provided in regular education classes or other educational-related 
settings, and in extracurricular and non-academic settings to enable 
children with disabilities to be educated with non-disabled children to 
the maximum extent appropriate.
    Transition services. A coordinated set of activities for a child 
with a disability that is designed to be within a results-oriented 
process, that is focused on improving the academic and functional 
achievement of the child with a disability to facilitate the child's 
movement from school to post-school activities, including post-secondary 
education, vocational education, integrated employment (including 
supported employment), continuing and adult education, adult services, 
independent living, or community participation, and is based on the 
individual child's needs, taking into account the child's strengths, 
preferences, and interests and includes instruction, related services, 
community experiences, the development of employment and other post-
school adult living objectives, and when appropriate, acquisition of 
daily living skills and functional vocational evaluation.
    Transportation. A service that includes transportation and related 
costs, including the cost of mileage or travel by taxi, common carrier, 
tolls, and parking expenses, that are necessary to: enable an eligible 
child with a disability and the family to receive EIS, when prescribed 
in a child's IFSP; enable an eligible child with a disability to receive 
special education and related services, when prescribed as a related 
service by the child's IEP; and enable a child to obtain an evaluation 
to determine eligibility for special education and related services, if 
necessary. It also includes specialized equipment, including special or 
adapted buses, lifts, and ramps needed to transport children with 
disabilities.
    Weapon. Defined in Department of Defense Education Activity 
Regulation 2051.1, ``Disciplinary Rules and Procedures'' (available at 
http://www.dodea.edu/foia/ iod/pdf/2051_1a.pdf).



Sec.  57.4  Policy.

    It is DoD policy that:
    (a) Infants and toddlers with disabilities and their families who 
(but for the children's age) would be entitled to enroll in a DoDEA 
school in accordance with 20 U.S.C. 921-932 or 10 U.S.C. 2164 shall be 
provided EIS.
    (b) The DoD shall engage in child-find activities for all children 
age birth to 21, inclusive, who are entitled by 20 U.S.C. 921-932 or 10 
U.S.C. 2164 to enroll or are enrolled in a DoDEA school.
    (c) Children with disabilities who meet the enrollment eligibility 
criteria of 20 U.S.C. 921-932 or 10 U.S.C. 2164 shall be provided a FAPE 
in the least restrictive environment, including if appropriate to the 
needs of the individual child, placement in a residential program for 
children with disabilities in accordance with the child's IEP and at no 
cost to the parents.
    (d) The Military Departments and DoDEA shall cooperate in the 
delivery of related services prescribed by section 1401(26) of the IDEA 
and this part as may be required to assist eligible children with 
disabilities to benefit from special education.
    (e) Children with disabilities who are eligible to enroll in a DoDEA 
school in accordance with 20 U.S.C. 921-932 or 10 U.S.C. 2164 shall not 
be entitled to provision of a FAPE by DoDEA, or to the procedural 
safeguards prescribed by this part in accordance with the IDEA, if:
    (1) The sponsor is assigned to an overseas area where a DoDEA school 
is available within the commuting area of the sponsor's overseas 
assignment, but the sponsor does not elect to enroll the child in a 
DoDEA school for reasons other than DoDEA's alleged failure to provide a 
FAPE; or
    (2) The sponsor is assigned in the United States or in a U.S. 
territory, commonwealth, or possession and the sponsor's child meets the 
eligibility requirements for enrollment in a DoDEA school, but the 
sponsor does not elect to enroll the child in a DoDEA school for reasons 
other than DoDEA's alleged failure to provide a FAPE.



Sec.  57.5  Responsibilities.

    (a) The ASD(R&FM) under the authority, direction, and control of the 
USD(P&R) shall:

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    (1) Establish, in accordance with DoD Instruction 5105.18, ``DoD 
Intergovernmental and Intragovernmental Committee Management Program'' 
(available at http://www.dtic.mil/whs/ directives/corres/pdf/ 
510518p.pdf), a DoD Coordinating Committee to recommend policies 
regarding the provision of early intervention and special education 
services.
    (2) Ensure the development, implementation and administration of a 
system of services for infants and toddlers with disabilities and their 
families and children with disabilities; and provide compliance 
oversight for early intervention and special education in accordance 
with DoD Directive 5124.02, ``Under Secretary of Defense for Personnel 
and Readiness (USD(P&R))'' (available at http://www.dtic.mil/whs/ 
directives/corres/pdf/ 512402p.pdf); 20 U.S.C. 921-932; the applicable 
statutory provision of the IDEA; 10 U.S.C. 2164; DoD Directive 1342.20 
and implementing guidance authorized by this part.
    (3) Oversee DoD Component collaboration on the provision of services 
and transition support to infants, toddlers, and school-aged children.
    (4) Develop a DoD-wide comprehensive child-find system to identify 
eligible infants, toddlers, and children ages birth through 21 years, 
inclusive, who may require early intervention or special education 
services, in accordance with the IDEA.
    (5) Develop and provide guidance as necessary for the delivery of 
services for children with disabilities and for the protection of 
procedural rights consistent with the IDEA and implementing guidance 
authorized by this part.
    (6) Coordinate with the Secretaries of the Military Departments to 
ensure that their responsibilities, as detailed in paragraph (f) of this 
section, are completed.
    (7) Direct the development and implementation of a comprehensive 
system of personnel development (CSPD) for personnel serving infants and 
toddlers with disabilities and children with disabilities, and their 
families.
    (8) Develop requirements and procedures for compiling and reporting 
data on the number of eligible infants and toddlers with disabilities 
and their families in need of EIS and children in need of special 
education and related services.
    (9) Require DoDEA schools provide educational information for 
assignment coordination and enrollment in the Services' Exceptional 
Family Member Program or Special Needs Program consistent with DoD 
Instruction 1315.19, ``Authorizing Special Needs Family Members Travel 
Overseas at Government Expense'' (available at http://www.dtic.mil/whs/ 
directives/corres/pdf/ 131519p.pdf).
    (10) Identify representatives to serve on the Department of Defense 
Coordinating Committee on Early Intervention, Special Education, and 
Related Services (DoD-CC).
    (11) Ensure delivery of appropriate early intervention and 
educational services to eligible infants, toddlers, and children, and 
their families as appropriate pursuant to the IDEA and this part through 
onsite monitoring of special needs programs and submission of an annual 
compliance report.
    (b) The Assistant Secretary of Defense for Health Affairs (ASD(HA)), 
under the authority, direction, and control of the USD(P&R), shall:
    (1) Advise the USD(P&R) and consult with the General Counsel of the 
Department of Defense (GC, DoD) regarding the provision of EIS and 
related services.
    (2) Oversee development of provider workload standards and 
performance levels to determine staffing requirements for EIS and 
related services. The standards shall take into account the provider 
training needs, the requirements of this part, and the additional time 
required to provide EIS and related services in schools and the natural 
environments, and for the coordination with other DoD Components and 
other service providers, indirect services including analysis of data, 
development of the IFSP, transition planning, and designing 
interventions and accommodations.
    (3) Establish and maintain an automated data system to support the 
operation and oversight of the Military Departments' delivery of EIS and 
related services.

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    (4) Assign geographical areas of responsibility for providing EIS 
and related services under the purview of healthcare providers to the 
Military Departments. Periodically review the alignment of geographic 
areas to ensure that resource issues (e.g., base closures) are 
considered in the cost-effective delivery of services.
    (5) Establish a system for measuring EIS program outcomes for 
children and their families.
    (6) Resolve disputes among the DoD Components providing EIS.
    (c) The Director, Defense Health Agency (DHA), under the authority, 
direction, and control of the ASD(HA), shall identify representatives to 
serve on the DoD-CC.
    (d) The Director, DoD Education Activity (DoDEA), under the 
authority, direction, and control of the USD(P&R), and through the 
ASD(R&FM), in accordance with DoD Directive 5124.02, shall ensure that:
    (1) Children who meet the enrollment eligibility criteria of 20 
U.S.C. 921-932 or 10 U.S.C. 2164 are identified and referred for 
evaluation if they are suspected of having disabilities, and are 
afforded appropriate procedural safeguards in accordance with the IDEA 
and implementing guidance authorized by this part.
    (2) Children who meet the enrollment eligibility criteria of 20 
U.S.C. 921-932 or 10 U.S.C. 2164 shall be evaluated in accordance with 
the IDEA and implementing guidance authorized by this part, as needed. 
If found eligible for special education and related services, they shall 
be provided a FAPE in accordance with an IEP, with services delivered in 
the least restrictive environment and procedural safeguards in 
accordance with the requirements of the IDEA and implementing guidance 
authorized by this part.
    (3) Records are maintained on the special education and related 
services provided to children in accordance with this part, pursuant to 
32 CFR part 310.
    (4) Related services as prescribed in an IEP for a child with 
disabilities enrolled in a DoDEA school in the United States, its 
territories, commonwealths, or possessions are provided by DoDEA.
    (5) Transportation is provided by DoDEA in overseas and domestic 
areas as a related service to children with disabilities when 
transportation is prescribed in a child's IEP. The related service of 
transportation includes necessary accommodations to access and leave the 
bus and to ride safely on the bus and transportation between the child's 
home, the DoDEA school, or another location, as specified in the child's 
IEP.
    (6) Appropriate personnel participate in the development and 
implementation of a CSPD.
    (7) Appropriate written guidance is issued to implement the 
requirements pertaining to special education and related services under 
20 U.S.C. 921-932, 10 U.S.C. 2164, and the IDEA.
    (8) Activities to identify and train personnel to monitor the 
provision of services to eligible children with disabilities are funded.
    (9) DoDEA schools that operate pursuant to 20 U.S.C. 921-932 and 10 
U.S.C. 2164 conduct child-find activities for all eligible children;
    (10) A free appropriate public education (FAPE) and procedural 
safeguards in accordance with IDEA and this part available to children 
with disabilities who are entitled to enroll in DoDEA schools under the 
enrollment eligibility criteria of 20 U.S.C. 921-932 or 10 U.S.C. 2164. 
However, a FAPE, or the procedural safeguards prescribed by the IDEA and 
this part, shall NOT be available to such children, if:
    (i) The sponsor is assigned to an overseas area where a DoDEA school 
is available within the commuting area of the sponsor's assignment, but 
the sponsor does not elect to enroll his or her child in a DoDEA school 
for reasons other than DoDEA's alleged failure to provide a FAPE; or
    (ii) The sponsor is assigned in the United States or in a U.S. 
territory, commonwealth, or possession and the sponsor's child meets the 
eligibility requirements for enrollment in a DoDEA school, but the 
sponsor does not elect to enroll the child in a DoDEA school for reasons 
other than DoDEA's alleged failure to provide a FAPE.
    (11) The educational needs of children with and without disabilities 
are met comparably, in accordance with Sec.  57.6(b) of this part.

[[Page 202]]

    (12) Educational facilities and services (including the start of the 
school day and the length of the school year) operated by DoDEA for 
children with and without disabilities are comparable.
    (13) All programs providing special education and related services 
are monitored for compliance with this part and with the substantive 
rights, protections, and procedural safeguards of the IDEA and this part 
at least once every 3 years.
    (14) A report is submitted to the USD(P&R) not later than September 
30 of each year certifying whether all schools are in compliance with 
the IDEA and this part, and are affording children with disabilities the 
substantive rights, protections, and procedural safeguards of the IDEA.
    (15) Transition assistance is provided in accordance with IDEA and 
this part to promote movement from early intervention or preschool into 
the school setting.
    (16) Transition services are provided in accordance with IDEA and 
this part to facilitate the child's movement into different educational 
settings and post-secondary environments.
    (e) The GC, DoD shall identify representatives to serve on the DoD-
CC.
    (f) The Secretaries of the Military Departments shall:
    (1) Establish educational and developmental intervention services 
(EDIS) to ensure infants and toddlers with disabilities are identified 
and provided EIS where appropriate, and are afforded appropriate 
procedural safeguards in accordance with the requirements of the IDEA 
and implementing guidance authorized by this part.
    (2) Staff EDIS with appropriate professional staff, based on the 
services required to serve children with disabilities.
    (3) Provide related services required to be provided by a Military 
Department in accordance with the mandates of this part for children 
with disabilities. In the overseas areas served by DoDEA schools, the 
related services required to be provided by a Military Department under 
an IEP necessary for the student to benefit from special education 
include medical services for diagnostic or evaluative purposes; social 
work; community health nursing; dietary, audiological, optometric, and 
psychological testing and therapy; occupational therapy; and physical 
therapy. Transportation is provided as a related service by the Military 
Department when it is prescribed in a child's IFSP for an infant or 
toddler birth up to 3 years of age, inclusive, with disabilities. 
Related services shall be administered in accordance with guidance 
issued pursuant to this part, including guidance from the ASD(HA) on 
staffing and personnel standards.
    (4) Issue implementing guidance and forms necessary for the 
operation of EDIS in accordance with this part.
    (5) Provide EIS to infants and toddlers with disabilities and their 
families, and related services to children with disabilities as required 
by this part at the same priority that medical care is provided to 
active duty military members.
    (6) Provide counsel from the Military Department concerned or 
request counsel from the Defense Office of Hearings and Appeals (DOHA) 
to represent the Military Department in impartial due process hearings 
and administrative appeals conducted in accordance with this part for 
infants and toddlers birth up to 3 years of age, inclusive, with 
disabilities who are eligible for EIS.
    (7) Execute Departmental responsibilities under the Exceptional 
Family Member program (EFMP) prescribed by DoD Instruction 1315.19.
    (8) Train command personnel to fully understand their legal 
obligations to ensure compliance with and provide the services required 
by this part.
    (9) Fund activities to identify and train personnel to monitor the 
provision of services to eligible children with disabilities.
    (10) Require the development of policies and procedures for 
providing, documenting, and evaluating EDIS, including EIS and related 
services provided to children receiving special education in a DoDEA 
school.
    (11) Maintain EDIS to provide necessary EIS to eligible infants and 
toddlers with disabilities and related services to eligible children 
with disabilities in accordance with this part and the substantive 
rights, protections, and

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procedural safeguards of the IDEA, Sec.  57.6(a) and Sec.  57.6(c) of 
this part.
    (12) Implement a comprehensive, coordinated, inter-component, 
community-based system of EIS for eligible infants and toddlers with 
disabilities and their families using the procedures established in 
Sec.  57.6(a) of this part and guidelines from the ASD(HA) on staffing 
and personnel standards.
    (13) Provide transportation for EIS pursuant to the IDEA and this 
part.
    (14) Provide transportation for children with disabilities pursuant 
to the IDEA and this part. The Military Departments are to provide 
transportation for a child to receive medical or psychological 
evaluations at a medical facility in the event that the local servicing 
military treatment facility (MTF) is unable to provide such services and 
must transport the child to another facility.
    (15) Require that EDIS programs maintain the components of an EIS as 
required by the IDEA and this part, to include:
    (i) A comprehensive child-find system, including a system for making 
referrals for services that includes timelines and provides for 
participation by primary referral sources, and that establishes rigorous 
standards for appropriately identifying infants and toddlers with 
disabilities for services.
    (ii) A public awareness program focusing on early identification of 
infants and toddlers with disabilities to include:
    (A) Preparation of information materials for parents regarding the 
availability of EIS, especially to inform parents with premature infants 
or infants with other physical risk factors associated with learning or 
developmental complications.
    (B) Dissemination of those materials to all primary referral 
sources, especially hospitals and physicians, for distribution to 
parents.
    (C) A definition of developmental delay, consistent with Sec.  
57.6(g) of this part, to be used in the identification of infants and 
toddlers with disabilities who are in need of services.
    (D) Availability of appropriate EIS.
    (iii) A timely, comprehensive, multidisciplinary evaluation of the 
functioning of each infant or toddler and identification of the needs of 
the child's family to assist appropriately in the development of the 
infant or toddler.
    (iv) Procedures for development of an Individualized Family Service 
Plan (IFSP) and coordination of EIS for families of eligible infants and 
toddlers with disabilities.
    (v) A system of EIS designed to support infants and toddlers and 
their families in the acquisition of skills needed to become 
functionally independent and to reduce the need for additional support 
services as toddlers enter school.
    (vi) A central directory of information on EIS resources and experts 
available to military families.
    (16) Implement a comprehensive system of personnel development 
consistent with the requirements of the IDEA.
    (17) Require that EDIS participate in the existing MTF quality 
assurance program, which monitors and evaluates the medical services for 
children receiving such services as described by this part. Generally 
accepted standards of practice for the relevant medical services shall 
be followed, to the extent consistent with the requirements of the IDEA 
including provision of EIS in a natural environment, to ensure 
accessibility, acceptability, and adequacy of the medical portion of the 
program provided by EDIS.
    (18) Require transition services to promote movement from early 
intervention, preschool, and other educational programs into different 
educational settings and post-secondary environments.
    (19) Direct that each program providing EIS is monitored for 
compliance with this part, and the substantive rights, protections, and 
procedural safeguards of the IDEA, at least once every 3 years.
    (20) Submit a report to the USD(P&R) not later than September 30 of 
each year stating whether all EDIS programs are in compliance with this 
part and are affording infants and toddlers the substantive rights, 
protections, and procedural safeguards of the IDEA, as stated in Sec.  
57.6(f) of this part.
    (21) Compile and report EDIS workload and compliance data using the

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system established by the ASD(HA) as stated in Sec.  57.6(f).
    (g) The Director, DOHA, under the authority, direction, and control 
of the GC, DoD/Director, Defense Legal Services Agency, shall:
    (1) Ensure impartial due process hearings are provided in accordance 
with the IDEA and implementing guidance authorized by this part with 
respect to complaints related to special education and related services 
arising under the IDEA.
    (2) Ensure DOHA Department Counsel represents DoDEA in all due 
process proceedings arising under the IDEA for children age 3 through 21 
who are eligible for special education and related services.
    (3) Ensure DOHA Department Counsel, upon request by a Military 
Department, represents the Military Department in due process 
proceedings arising under the IDEA for infants and toddlers birth up to 
3 years of age with disabilities who are eligible for EIS.
    (4) Ensure the DOHA Center for Alternative Dispute Resolution (CADR) 
maintains a roster of mediators qualified in special education disputes 
and, when requested, provides a mediator for complaints related to 
special education and related services arising under the IDEA.



Sec.  57.6  Procedures.

    (a) Procedures for the Provision of EIS for Infants and Toddlers 
with Disabilities--(1) General. (i) There is an urgent and substantial 
need to:
    (A) Enhance the development of infants and toddlers with 
disabilities to minimize their potential for developmental delay and to 
recognize the significant brain development that occurs during a child's 
first 3 years of life.
    (B) Reduce educational costs by minimizing the need for special 
education and related services after infants and toddlers with 
disabilities reach school age.
    (C) Maximize the potential for individuals with disabilities to live 
independently.
    (D) Enhance the capacity of families to meet the special needs of 
their infants and toddlers with disabilities.
    (ii) All procedures and services within EIS must be in accordance 
with the IDEA and the provisions of this part.
    (2) Identification and screening. (i) Each Military Department shall 
develop and implement in its assigned geographic area a comprehensive 
child-find and public awareness program, pursuant to the IDEA and this 
part, that focuses on the early identification of infants and toddlers 
who are eligible to receive EIS pursuant to this part.
    (ii) The military treatment facility (MTF) and Family Advocacy 
Program must be informed that EDIS will accept direct referrals for 
infants and toddlers from birth up to 3 years of age who are:
    (A) Involved in a substantiated case of child abuse or neglect; or
    (B) Identified as affected by illegal substance abuse or withdrawal 
symptoms resulting from prenatal drug exposure.
    (iii) All other DoD Components will refer infants and toddlers with 
suspected disabilities to EDIS in collaboration with the parents.
    (iv) Upon receipt of a referral, EDIS shall appoint a service 
coordinator.
    (v) All infants and toddlers referred to the EDIS for EIS shall be 
screened to determine the appropriateness of the referral and to guide 
the assessment process.
    (A) Screening does not constitute a full evaluation. At a minimum, 
screening shall include a review of the medical and developmental 
history of the referred infant or toddler through a parent interview and 
a review of medical records.
    (B) If screening is conducted prior to the referral, or if there is 
a substantial or obvious biological risk, a screening following the 
referral may not be necessary.
    (C) If EDIS determines that an evaluation is not necessary based on 
screening results, EDIS will provide written notice to the parents in 
accordance with paragraph (a)(9) of this section.
    (3) Assessment and evaluation--(i) Assessments and evaluations. The 
assessment and evaluation of each infant and toddler must:
    (A) Be conducted by a multidisciplinary team.

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    (B) Include:
    (1) A review of records related to the infant's or toddler's current 
health status and medical history.
    (2) An assessment of the infant's or toddler's needs for EIS based 
on personal observation of the child by qualified personnel.
    (3) An evaluation of the infant's or toddler's level of functioning 
in each of the following developmental areas, including a 
multidisciplinary assessment of the unique strengths and needs of the 
child and the identification of services appropriate to meet those 
needs.
    (i) Cognitive development.
    (ii) Physical development, including functional vision and hearing.
    (iii) Communication development.
    (iv) Social or emotional development.
    (v) Adaptive development.
    (4) Informed clinical opinion of qualified personnel if the infant 
or toddler does not qualify based on standardized testing and there is 
probable need for services.
    (ii) Family assessments. (A) Family assessments must include 
consultation with the family members.
    (B) If EDIS conducts an assessment of the family, the assessment 
must:
    (1) Be voluntary on the part of the family.
    (2) Be conducted by personnel trained to utilize appropriate methods 
and procedures.
    (3) Be based on information provided by the family through a 
personal interview.
    (4) Incorporate the family's description of its resources, 
priorities, and concerns related to enhancing the infant's or toddler's 
development and the identification of the supports and services 
necessary to enhance the family's capacity to meet the developmental 
needs of the infant or toddler.
    (iii) Standards for Assessment Selection and Procedures. EDIS shall 
ensure, at a minimum, that:
    (A) Evaluators administer tests and other evaluations in the native 
language of the infant or toddler, or the family's native language, or 
other mode of communication, unless it is clearly not feasible to do so.
    (B) Assessment, evaluation procedures, and materials are selected 
and administered so as not to be racially or culturally discriminatory.
    (C) No single procedure is used as the sole criterion for 
determining an infant's or toddler's eligibility under this part.
    (D) Qualified personnel conduct evaluations and assessments.
    (iv) Delivery of Intervention Services. With parental consent, the 
delivery of intervention services may begin before the completion of the 
assessment and evaluation when it has been determined by a 
multidisciplinary team that the infant or toddler or the infant's or 
toddler's family needs the service immediately. Although EDIS has not 
completed all assessments, EDIS must develop an IFSP before the start of 
services and complete the remaining assessments in a timely manner.
    (4) Eligibility. (i) The EDIS team shall meet with the parents and 
determine eligibility. The EIS team shall document the basis for 
eligibility in an eligibility report and provide a copy to the parents.
    (ii) Infants and toddlers from birth up to 3 years of age with 
disabilities are eligible for EIS if they meet one of the following 
criteria:
    (A) The infant or toddler is experiencing a developmental delay in 
one or more of the following areas: Physical development; cognitive 
development; communication development; social or emotional development; 
or adaptive development, as verified by a developmental delay of two 
standard deviations below the mean as measured by diagnostic instruments 
and procedures in at least one area; a 25 percent delay in at least one 
developmental area on assessment instruments that yield scores in 
months; a developmental delay of 1.5 standard deviations below the mean 
as measured by diagnostic instruments and procedures in two or more 
areas; or a 20 percent delay in two or more developmental areas on 
assessment instruments that yield scores in months.
    (B) The infant or toddler has a diagnosed physical or mental 
condition that has a high probability of resulting in developmental 
delay. Includes conditions such as, chromosomal abnormalities; genetic 
or congenital disorders;

[[Page 206]]

severe sensory impairments; inborn errors of metabolism; disorders 
reflecting disturbance of the development of the nervous system; 
congenital infections; and disorders secondary to exposure to toxic 
substances, including fetal alcohol syndrome.
    (5) Timelines. (i) EIS shall complete the initial evaluation and 
assessment of each infant and toddler (including the family assessment) 
in a timely manner ensuring that the timeline in paragraph (a)(6)(ii) of 
this section is met.
    (ii) The Military Department responsible for providing EIS shall 
develop procedures requiring that, if circumstances make it impossible 
to complete the evaluation and assessment within a timely manner (e.g., 
if an infant or toddler is ill), EDIS shall:
    (A) Document those circumstances.
    (B) Develop and implement an appropriate interim IFSP in accordance 
with this part.
    (6) IFSP. (i) The EDIS shall develop and implement an IFSP for each 
infant and toddler with a disability, from birth up to 3 years of age, 
who meets the eligibility criteria for EIS.
    (ii) EDIS shall convene a meeting to develop the IFSP of an infant 
or toddler with a disability. The meeting shall be scheduled as soon as 
possible following its determination that the infant or toddler is 
eligible for EIS, but not later than 45 days from the date of the 
referral for services.
    (iii) The IFSP team meeting to develop and review the IFSP must 
include:
    (A) The parent or parents of the infant or toddler.
    (B) Other family members, as requested by the parent, if feasible.
    (C) An advocate or person outside of the family if the parent 
requests that person's participation.
    (D) The service coordinator who has worked with the family since the 
initial referral of the infant or toddler or who is responsible for the 
implementation of the IFSP.
    (E) The persons directly involved in conducting the evaluations and 
assessments.
    (F) As appropriate, persons who shall provide services to the infant 
or toddler or the family.
    (iv) If a participant listed in paragraph (a)(6)(iii) of this 
section is unable to attend a meeting, arrangements must be made for the 
person's involvement through other means, which may include:
    (A) A telephone conference call or other electronic means of 
communication.
    (B) Providing knowledgeable, authorized representation.
    (C) Providing pertinent records for use at the meeting.
    (v) The IFSP shall contain:
    (A) A statement of the infant's or toddler's current developmental 
levels including physical, cognitive, communication, social or 
emotional, and adaptive behaviors based on the information from the 
evaluation and assessments.
    (B) A statement of the family's resources, priorities, and concerns 
about enhancing the infant's or toddler's development.
    (C) A statement of the measurable results or measurable outcomes 
expected to be achieved for the infant or toddler and the family. The 
statement shall contain pre-literacy and language skills, as 
developmentally appropriate for the infant or toddler, and the criteria, 
procedures, and timelines used to determine the degree to which progress 
toward achieving the outcomes is being made and whether modification or 
revision of the results and services are necessary.
    (D) A statement of the specific EIS based on peer-reviewed research, 
to the extent practicable, necessary to meet the unique needs of the 
infant or toddler and the family, including the frequency, intensity, 
and method of delivering services.
    (E) A statement of the natural environments in which EIS will be 
provided including a justification of the extent, if any, to which the 
services shall not be provided in a natural environment because the 
intervention cannot be achieved satisfactorily for the infant or 
toddler. The IFSP must include a justification for not providing a 
particular early intervention service in the natural environment.
    (F) The projected dates for initiation of services and the 
anticipated length,

[[Page 207]]

duration, and frequency of those services.
    (G) The name of the service coordinator who shall be responsible for 
the implementation of the IFSP and for coordination with other agencies 
and persons. In meeting these requirements, EDIS may:
    (1) Assign the same service coordinator appointed at the infant or 
toddler's initial referral for evaluation to implement the IFSP;
    (2) Appoint a new service coordinator; or
    (3) Appoint a service coordinator requested by the parents.
    (H) A description of the appropriate transition services supporting 
the movement of the toddler with a disability to preschool or other 
services.
    (vi) EDIS shall explain the contents of the IFSP to the parents and 
shall obtain an informed, written consent from the parents before 
providing EIS described in the IFSP.
    (vii) The IFSP shall be implemented within ten business days of 
completing the document, unless the IFSP team, including the parents, 
documents the need for a delay.
    (viii) If a parent does not provide consent for participation in all 
EIS, EDIS shall still provide those interventions to which a parent does 
give consent.
    (ix) EDIS shall evaluate the IFSP at least once a year and the 
family shall be provided an opportunity to review the plan at 6-month 
intervals (or more frequently, based on the needs of the child and 
family). The purpose of the periodic review is to determine:
    (A) The degree to which progress toward achieving the outcomes is 
being made.
    (B) Whether modification or revision of the outcomes or services is 
necessary.
    (x) The review may be carried out by a meeting or by another means 
that is acceptable to the parents and other participants.
    (7) Transition from early intervention services. (i) EDIS shall 
provide a written transition plan for toddlers receiving EIS to 
facilitate their transition to preschool or other setting, if 
appropriate. A transition plan must be recorded on the IFSP between the 
toddler's second and third birthday and not later than 90 days before 
the toddler's third birthday and shall include the following steps to be 
taken:
    (A) A plan for discussions with, and training of, parents, as 
appropriate, regarding future transition from early intervention 
services, and for obtaining parental consent to facilitate the release 
of toddler records in order to meet child-find requirements of DoDEA, 
and to ensure smooth transition of services;
    (B) The specific steps to be taken to help the toddler adjust to, 
and function in, the preschool or other setting and changes in service 
delivery;
    (C) The procedures for providing notice of transition to the DoDEA 
CSC, for setting a pre-transition meeting with the CSC (with notice to 
parents), and for confirmation that child-find information, early 
intervention assessment reports, the IFSP, and relevant supporting 
documentation are transmitted to the DoDEA CSC;
    (D) Identification of transition services or other activities that 
the IFSP team determines are necessary to support the transition of the 
child.
    (ii) Families shall be included in the transition planning. EDIS 
shall inform the toddler's parents regarding future preschool, the 
child-find requirements of the school, and the procedures for 
transitioning the toddler from EIS to preschool.
    (iii) Not later than 6 months before the toddler's third birthday, 
the EDIS service coordinator shall obtain parental consent prior to 
release of identified records of a toddler receiving EIS to the DoD 
local school in order to allow the DoDEA school to meet child-find 
requirements.
    (iv) The EDIS service coordinator shall initiate a pre-transition 
meeting with the CSC, and shall provide the toddler's early intervention 
assessment reports, IFSP, and relevant supporting documentation. The 
parent shall receive reasonable notice of the pre-transition meeting, 
shall receive copies of any documents provided to the CSC, and shall 
have the right to participate in and provide input to the pre-transition 
meeting.

[[Page 208]]

    (v) As soon as reasonably possible following receipt of notice of a 
toddler potentially transitioning to preschool, the local DoDEA school 
shall convene a CSC. The CSC and EDIS shall cooperate to obtain parental 
consent, in accordance with IDEA and this part, to conduct additional 
evaluations if necessary.
    (vi) Based on the information received from EDIS, the CSC, 
coordinating with EDIS, will determine at the pre-transition meeting 
whether:
    (A) No additional testing or observation is necessary to determine 
that the toddler is eligible for special education and related services, 
in which case the CSC shall develop an eligibility report based on the 
EDIS early intervention assessment reports, IFSP, supporting 
documentation and other information obtained at the pre-transition 
meeting, in accordance with paragraph (b) of this section; or
    (B) Additional testing or observation is necessary to determine 
whether the toddler is eligible for special education and related 
services, in which case the CSC shall develop an assessment plan to 
collect all required information necessary to determine eligibility for 
special education and obtain parental consent, in accordance with IDEA 
and this part, for evaluation in accordance with paragraph (b) of this 
section.
    (vii) In the event that the toddler is first referred to EDIS fewer 
than 90 days before the toddler's third birthday, EDIS and the DoDEA 
school shall work cooperatively in the evaluation process and shall 
develop a joint assessment plan to determine whether the toddler is 
eligible for EIS or special education.
    (A) EDIS shall complete its eligibility determination process and 
the development of an IFSP, if applicable.
    (B) The CSC shall determine eligibility for special education.
    (viii) Eligibility assessments shall be multidisciplinary and 
family-centered and shall incorporate the resources of the EDIS as 
necessary and appropriate.
    (ix) Upon completion of the evaluations, the CSC shall schedule an 
eligibility determination meeting at the local school, no later than 90 
days prior to the toddler's third birthday.
    (A) The parents shall receive reasonable notice of the eligibility 
determination meeting, shall receive copies of any documents provided to 
the CSC, and shall have the right to participate in and provide input to 
the meeting.
    (B) EDIS and the CSC shall cooperate to develop an eligibility 
determination report based upon all available data, including that 
provided by EDIS and the parents, in accordance with paragraph (b) of 
this section.
    (x) If the toddler is found eligible for special education and 
related services, the CSC shall develop an individualized education 
program (IEP) in accordance with paragraph (b) of this section, and must 
implement the IEP on or before the toddler's third birthday.
    (xi) If the toddler's third birthday occurs during the period June 
through August (the traditional summer vacation period for school 
systems), the CSC shall complete the eligibility determination process 
and the development of an IEP before the end of the school year 
preceding the toddler's third birthday. An IEP must be prepared to 
ensure that the toddler enters preschool services with an instructional 
program at the start of the new school year.
    (xii) The full transition of a toddler shall occur on the toddler's 
third birthday unless the IFSP team and the CSC determine that an 
extended transition is in the best interest of the toddler and family.
    (A) An extended transition may occur when:
    (1) The toddler's third birthday falls within the last 6 weeks of 
the school year;
    (2) The family is scheduled to have a permanent change of station 
(PCS) within 6 weeks after a toddler's third birthday; or
    (3) The toddler's third birthday occurs after the end of the school 
year and before October 1.
    (B) An extended transition may occur if the IFSP team and the CSC 
determine that extended EIS beyond the toddler's third birthday are 
necessary and appropriate, and if so, how long extended services will be 
provided.
    (1) The IFSP team, including the parents, may decide to continue 
services in accordance with the IFSP until the

[[Page 209]]

end of the school year, PCS date, or until the beginning of the next 
school year.
    (2) Extended services must be delivered in accordance with the 
toddler's IFSP, which shall be updated if the toddler's or family's 
needs change on or before the toddler's third birthday.
    (3) The CSC shall maintain in its records meeting minutes that 
reflect the decision for EDIS to provide an extended transition for the 
specified period.
    (4) Prior to the end of the extended transition period, the CSC 
shall meet to develop an IEP that shall identify all special education 
and related services that will begin at the end of the transition period 
and meet all requirements of the IDEA and this part, in accordance with 
paragraph (b) of this section.
    (C) The IFSP team and the CSC may jointly determine that the toddler 
should receive services in the special education preschool prior to the 
toddler's third birthday.
    (1) If only a portion of the child's services will be provided by 
the DoDEA school, the information shall be identified in the IFSP, which 
shall also specify responsibilities for service coordination and 
transition planning. The CSC shall develop an IEP that shall identify 
all services to be delivered at the school, in accordance with paragraph 
(b) of this section.
    (2) If all the toddler's services will be provided by the DoDEA 
school, the services will be delivered pursuant to an IEP developed in 
accordance with paragraph (b) of this section. Transition activities and 
other services under the IFSP will terminate with the toddler's entry 
into the special education preschool.
    (3) Early entry into preschool services should occur only in 
exceptional circumstances (e.g., to facilitate natural transitions).
    (xiii) In the case of a child who may not be eligible for DoDEA 
preschool special education services, with the approval of the parents, 
EDIS shall make reasonable efforts to convene a conference among EDIS, 
the family, and providers of other services for children who are not 
eligible for special education preschool services (e.g., community 
preschools) in order to explain the basis for this conclusion to the 
parents and obtain parental input.
    (8) Maintenance of records. (i) EDIS officials shall maintain all 
EIS records, in accordance with 32 CFR part 310.
    (ii) EIS records, including the IFSP and the documentation of 
services delivered in accordance with the IFSP, are educational records 
consistent with 32 CFR part 285 and shall not be placed in the child's 
medical record.
    (9) Procedural safeguards. (i) Parents of an infant or toddler who 
is eligible for EIS shall be afforded specific procedural safeguards 
that must include:
    (A) The right to confidentiality of personally identifiable 
information in accordance with 32 CFR part 310, including the right of a 
parent to receive written notice and give written consent to the 
exchange of information between the Department of Defense and outside 
agencies in accordance with Federal law and 32 CFR part 310 and 32 CFR 
part 285.
    (B) The opportunity to inspect and review records relating to 
screening, evaluations and assessments, eligibility determinations, 
development and implementation of IFSPs.
    (C) The right to determine whether they or other family members will 
accept or decline any EIS, and to decline such a service after first 
accepting it without jeopardizing the provision of other EIS.
    (D) The right to written parental consent.
    (1) Consent must be obtained before evaluation of the infant or 
toddler in accordance with this section.
    (2) Consent must be obtained before initiation of EIS in accordance 
with this section.
    (3) If consent is not given, EDIS shall make reasonable efforts to 
ensure that the parent:
    (i) Is fully aware of the nature of the evaluation and assessment or 
the services that would be available.
    (ii) Understands that the infant or toddler will not be able to 
receive the evaluation and assessment or services unless consent is 
given.
    (E) The right to prior written notice.
    (1) Prior written notice must be given to the parents of an infant 
or toddler entitled to EIS a reasonable

[[Page 210]]

time before EDIS proposes to initiate or change, or refuses to initiate 
or change the identification, evaluation, or placement of the infant or 
toddler, or the provision of appropriate EIS to the infant or toddler 
and any family member.
    (2) The notice must be in sufficient detail to inform the parents 
about:
    (i) The action that is being proposed or refused.
    (ii) The reasons for taking the action.
    (iii) Each of the procedural safeguards that are available in 
accordance with this section, including availability of mediation, 
administrative complaint procedures, and due process complaint 
procedures that are available for dispute resolution as described in 
paragraph (d) of this section, including descriptions of how to file a 
complaint and the applicable timelines.
    (3) The notice must be provided in language written for a general 
lay audience and in the native language of the parent or other mode of 
communication used by the parent, unless it is clearly not feasible to 
do so.
    (F) The right to timely administrative resolution of complaints.
    (G) The availability of dispute resolution with respect to any 
matter relating to the provision of EIS to an infant or toddler, through 
the administrative complaint, mediation and due process procedures 
described in paragraph (d) of this section, except the requirement to 
conduct a resolution meeting, in the event of a dispute between the 
Military Department concerned and the parents regarding EIS.
    (H) Any party aggrieved by the decision regarding a due process 
complaint filed in accordance with paragraph (d) of this section shall 
have the right to bring a civil action in a district court of the United 
States of competent jurisdiction without regard to the amount in 
controversy.
    (ii) During the pendency of any proceeding or action involving a 
complaint by the parent of an infant or toddler with a disability 
relating to the provision of EIS, unless the parent and EDIS otherwise 
agree, the infant or toddler shall continue to receive the appropriate 
EIS currently being provided under the most recent signed IFSP or, if 
applying for initial EIS services, shall receive the services not in 
dispute.
    (10) Mediation and due process procedures. Mediation and due process 
procedures, described in paragraph (d) of this section, except the 
requirement to conduct a resolution meeting, are applicable to early 
intervention when the Military Department concerned and the parents will 
be the parties in the dispute.
    (b) Procedures for the provision of educational programs and 
services for children with disabilities, ages 3 through 21 years, 
inclusive--(1) Parent involvement and general provisions. (i) The CSC 
shall take reasonable steps to provide for the participation of the 
parent(s) in the special education program of his or her child. School 
officials shall use devices or hire interpreters or other intermediaries 
who might be necessary to foster effective communications between the 
school and the parent about the child. Special education parental rights 
and responsibilities will be provided in the parent's native language, 
unless it is clearly not feasible to do so, e.g., low incidence language 
or not a written language.
    (ii) The CSC shall afford the child's parents the opportunity to 
participate in CSC meetings to determine their child's initial or 
continuing eligibility for special education and related services, to 
prepare or change the child's IEP, or to determine or change the child's 
placement.
    (iii) No child shall be required to obtain a prescription for a 
substance covered by the Controlled Substances Act, as amended, 21 
U.S.C. 801 et seq. as a condition of attending school, receiving an 
evaluation, or receiving services.
    (iv) For meetings described in this section, the parent of a child 
with a disability and the DoDEA school officials may agree to use 
alternative means of meeting participation, such as video conferences 
and conference calls.
    (2) Identification and referral. (i) DoDEA shall:
    (A) Engage in child-find activities to locate, identify, and screen 
all children who are entitled to enroll in DDESS in accordance with DoD 
Instruction 1342.26, ``Eligibility Requirements for

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Minor Dependents to Attend Department of Defense Domestic Dependent 
Elementary and Secondary Schools (DDESS)'' (available at http://
www.dtic.mil/whs/ directives/corres/pdf/ 134226p.pdf) or in DoDDS in 
accordance with DoDEA Regulation 1342.13, ``Eligibility Requirements for 
Education of Elementary and Secondary School-Age Dependents in Overseas 
Areas'' (available at http://www.dodea.edu/foia/ iod/pdf/1342_13.pdf) 
who may require special education and related services.
    (B) Cooperate with the Military Departments to conduct ongoing 
child-find activities and periodically publish any information, 
guidelines, and directions on child-find activities for eligible 
children with disabilities, ages 3 through 21 years, inclusive.
    (C) Conduct the following activities to determine if children may 
need special education and related services:
    (1) Review school records for information about student performance 
on system-wide testing and other basic skills tests in the areas of 
reading and language arts and mathematics.
    (2) Review school health data such as reports of hearing, vision, 
speech, or language tests and reports from healthcare personnel about 
the health status of a child. For children with disabilities, any health 
records or other information that tends to identify a child as a person 
with a disability must be maintained in confidential files that are not 
co-mingled with other records and that are available only to essential 
staff for the purpose of providing effective education and services to 
the child.
    (3) Review school discipline records and maintain the 
confidentiality of such records and any information that tends to 
identify a child as a person with a disability.
    (4) Participate in transition activities of children receiving EIS 
who may require special education preschool services.
    (ii) DoDEA school system officials, related service providers, or 
others who suspect that a child has a possible disabling condition shall 
submit a child-find referral to the CSC containing, at a minimum, the 
name and contact information for the child and the reason for the 
referral.
    (iii) The screening of a student by a teacher or specialist to 
determine appropriate instructional strategies for curriculum 
implementation shall not be considered to be an evaluation for 
eligibility for special education and related services and does not 
require informed consent.
    (3) Incoming students. The DoDEA school will take the following 
actions, in consultation with the parent, when a child transfers to a 
DoDEA school with an active IEP:
    (i) If the current IEP is from a non-DoDEA school:
    (A) Promptly obtain the child's educational records including 
information regarding assessment, eligibility, and provision of special 
education and related services from the previous school.
    (B) Provide FAPE, including services comparable (i.e., similar or 
equivalent) to those described in the incoming IEP, which could include 
extended school year services, in consultation with the parents, until 
the CSC:
    (1) Conducts an evaluation, if determined necessary by such agency.
    (2) Develops, adopts, and implements a new IEP, if appropriate, in 
accordance with the requirements of the IDEA and this part within 30 
school days of receipt of the IEP.
    (ii) If the current IEP is from a DoDEA school, the new school must 
provide the child a FAPE, including services comparable to those 
described in the incoming IEP, until the new school either:
    (A) Adopts the child's IEP from the previous DoDEA school; or
    (B) Develops, adopts, and implements a new IEP that meets the 
requirements of the IDEA and this part within 30 school days of receipt 
of the incoming IEP.
    (iii) Coordinate assessments of children with disabilities who 
transfer with the child's previous school as quickly as possible to 
facilitate prompt completion of full evaluations.
    (4) Referral by a parent. A parent may submit a request for an 
evaluation if they suspect their child has a disability. The CSC shall 
ensure any such request is placed in writing and signed by the 
requesting parent and shall, within 15 school days, review the request 
and any information provided by

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the parents regarding their concerns, confer with the child's teachers, 
and gather information related to the educational concerns. Following a 
review of the information, the CSC shall:
    (i) Convene a conference among the parents, teachers, and one or 
more other members of the CSC to discuss the educational concerns and 
document their agreements. Following the discussion, the parents may 
agree that:
    (A) The child's needs are not indicative of a suspected disability 
and other supports and accommodations will be pursued;
    (B) Additional information is necessary and a pre-referral process 
will be initiated; or
    (C) Information from the conference will be forwarded to the CSC for 
action on the parent's request for an evaluation.
    (ii) Within 10 school days of receipt of information from the 
conference regarding the parents' request for evaluation, agree to 
initiate the preparation of an assessment plan for a full and 
comprehensive educational evaluation or provide written notice to the 
parent denying the formal evaluation.
    (5) Referral by a teacher. (i) Prior to referring a child who is 
struggling academically or behaviorally to the CSC for assessment and 
evaluation and development of an IEP, the teacher shall identify the 
child's areas of specific instructional need and target instructional 
interventions to those needs using scientific, research-based 
interventions as soon as the areas of need become apparent.
    (ii) If the area of specific instructional need is not resolved, the 
teacher shall initiate the pre-referral process involving other members 
of the school staff.
    (iii) If interventions conducted during pre-referral fail to resolve 
the area of specific instructional need, the teacher shall submit a 
formal referral to the CSC.
    (6) Assessment and evaluation. (i) A full and comprehensive 
evaluation of educational needs shall be conducted prior to eligibility 
determination and before an IEP is developed or placement is made in a 
special education program, subject to the provisions for incoming 
students transferring to a DoDEA school as set forth in paragraph (b)(3) 
of this section. When the school determines that a child should be 
evaluated for a suspected disability, the school will:
    (A) Issue a prior written notice to the parents of the school's 
intention to evaluate and a description of the evaluation in accordance 
with paragraph (b)(19) of this section.
    (B) Provide parents notice of procedural safeguards.
    (C) Request that the parent execute a written consent for the 
evaluation in accordance with paragraph (b)(17) of this section.
    (D) Make reasonable efforts to obtain the informed consent from the 
parent for an initial evaluation to determine whether the child is a 
child with a disability.
    (ii) The CSC shall ensure that the following elements are included 
in a full and comprehensive assessment and evaluation of a child:
    (A) Screening of visual and auditory acuity.
    (B) Review of existing school educational and health records.
    (C) Observation in an educational environment.
    (D) A plan to assess the type and extent of the disability. A child 
shall be assessed in all areas related to the suspected disability. The 
assessment plan shall include, as appropriate:
    (1) An assessment of the nature and level of communication and the 
level of functioning academically, intellectually, emotionally, 
socially, and in the family.
    (2) An assessment of physical status including perceptual and motor 
abilities.
    (3) An assessment of the need for transition services for students 
16 years and older.
    (iii) The CSC shall involve the parents in the assessment process in 
order to obtain information about the child's strengths and needs and 
family concerns.
    (iv) The CSC, where possible, shall conduct the evaluations in the 
geographic area where the child resides, and shall use all locally 
available community, medical, and school resources, including qualified 
examiners employed by the Military Departments, to

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accomplish the assessment and evaluation. At least one specialist with 
knowledge in each area of the suspected disability shall be a member of 
the multidisciplinary assessment team.
    (v) The CSC must obtain parental consent, in accordance with IDEA 
and this part, before conducting an evaluation. The parent shall not be 
required to give consent for an evaluation without first being informed 
of the specific evaluation procedures that the school proposes to 
conduct.
    (vi) The evaluation must be completed by the school within 45 school 
days following the receipt of the parent's written consent to evaluate 
in accordance with the school's assessment plan.
    (vii) The eligibility determination meeting must be conducted within 
10 school days after completion of the school's formal evaluation.
    (viii) All DoD elements including the CSC and related services 
providers shall:
    (A) Use a variety of assessment tools and strategies to gather 
relevant functional, developmental, and academic information, including 
information provided by the parent, which may assist in determining:
    (1) Whether the child has a disability.
    (2) The content of the child's IEP, including information related to 
enabling the child to be involved and progress in the general education 
curriculum or, for preschool children, to participate in appropriate 
activities.
    (B) Not use any single measure or assessment as the sole criterion 
for determining whether a child has a disability or determining an 
appropriate educational program for the child.
    (C) Use technically sound instruments that may assess the relative 
contribution of cognitive and behavioral factors, in addition to 
physical or developmental factors.
    (ix) The CSC and DoD related services providers shall ensure that 
assessment materials and evaluation procedures are:
    (A) Selected and administered so as not to be racially or culturally 
discriminatory.
    (B) Provided in the child's native language or other mode of 
communication and in the form most likely to yield accurate information 
on what the child knows and can do academically, developmentally, and 
functionally, unless it is clearly not feasible to so provide and 
administer.
    (C) Selected and administered to assess the extent to which the 
child with limited English proficiency has a disability and needs 
special education, rather than measuring the child's English language 
skills.
    (D) Validated for the specific purpose for which they are used or 
intended to be used.
    (E) Administered by trained and knowledgeable personnel in 
compliance with the instructions of the testing instrument.
    (F) Selected to assess specific areas of educational needs and 
strengths and not merely to provide a single general intelligence 
quotient.
    (G) Administered to a child with impaired sensory, motor, or 
communication skills so that the results accurately reflect a child's 
aptitude or achievement level or other factors the test purports to 
measure, rather than reflecting the child's impaired sensory, manual, or 
speaking skills.
    (x) As part of an initial evaluation and as part of any 
reevaluation, the CSC shall review existing evaluation data on the 
child, including:
    (A) The child's educational records.
    (B) Evaluations and information provided by the parents of the 
child.
    (C) Current classroom-based, local, or system-wide assessments and 
classroom observations.
    (D) Observations by teachers and related services providers.
    (xi) On the basis of that review and input from the child's parents, 
identify what additional data, if any, are needed to determine:
    (A) Whether the child has a particular category of disability or, in 
the case of a reevaluation of a child, whether the child continues to 
have such a disability.
    (B) The present levels of academic achievement and related 
developmental and functional needs of the child.
    (C) Whether the child needs special education and related services 
or, in the case of a reevaluation of a child,

[[Page 214]]

whether the child continues to need special education and related 
services.
    (D) Whether any additions or modifications to the special education 
and related services are needed to enable the child to meet the 
measurable annual goals set out in the IEP and to participate, as 
appropriate, in the general education curriculum.
    (xii) The CSC may conduct its review of existing evaluation data 
without a meeting.
    (xiii) The CSC shall administer tests and other evaluation materials 
as needed to produce the data identified in paragraph (b)(6)(ii) and 
(xi) of this section.
    (7) Eligibility. (i) The CSC shall:
    (A) Require that the full comprehensive evaluation of a child is 
accomplished by a multidisciplinary team including specialists with 
knowledge in each area of the suspected disability and shall receive 
input from the child's parent(s).
    (B) Convene a meeting to determine eligibility of a child for 
special education and related services not later than 10 school days 
after the child has been assessed by the school.
    (C) Afford the child's parents the opportunity to participate in the 
CSC eligibility meeting.
    (D) Determine whether the child is a child with a disability as 
defined by the IDEA and this part, and the educational needs of the 
child.
    (E) Issue a written eligibility determination report, including a 
synthesis of evaluation findings, that documents a child's primary 
eligibility in one of the disability categories described in paragraph 
(g) of this section, providing a copy of the eligibility determination 
report to the parent.
    (F) Determine that a child does NOT have a disability if the 
determinant factor is:
    (1) Lack of appropriate instruction in essential components of 
reading;
    (2) Lack of instruction in mathematics; or
    (3) Limited English proficiency.
    (ii) The CSC shall reevaluate the eligibility of a child with a 
disability every 3 years, or more frequently, if the child's educational 
or related services needs, including improved academic achievement and 
functional performance, warrant a reevaluation. School officials shall 
not reevaluate more often than once a year, unless the parents and the 
school officials agree otherwise.
    (A) The scope and type of the reevaluation shall be determined 
individually based on a child's performance, behavior, and needs during 
the reevaluation and the review of existing data.
    (B) If the CSC determines that no additional data are needed to 
determine whether the child continues to be a child with a disability, 
the CSC shall, in accordance with paragraph (b)(19) of this section, 
provide prior written notice to the child's parents of:
    (1) The determination that no additional assessment data are needed 
and the reasons for their determination.
    (2) The right of the parents to request an assessment to determine 
whether the child continues to have a disability and to determine the 
child's educational needs.
    (C) The CSC is not required to conduct assessments for the purposes 
described in paragraph Sec.  57.6(b)(7)(ii)(B), unless requested to do 
so by the child's parents.
    (iii) The CSC shall evaluate a child in accordance with paragraph 
(b)(7)(ii) of this section before determining that the child no longer 
has a disability.
    (iv) The CSC is not required to evaluate a child before the 
termination of the child's eligibility due to graduation from secondary 
school with a regular diploma, or due to exceeding the age of 
eligibility for FAPE.
    (v) When a child's eligibility has terminated due to graduation or 
exceeding the age of eligibility, the DoDEA school must provide the 
child, or the parent if the child has not yet reached the age of 
majority or is otherwise incapable of providing informed consent, with a 
summary of the child's academic achievement and functional performance.
    (A) The summary of performance must be completed during the final 
year of a child's high school education.
    (B) The summary must include:
    (1) Child's demographics.
    (2) Child's postsecondary goal.
    (3) Summary of performance in the areas of academic, cognitive, and 
functional levels of performance to include

[[Page 215]]

the child's present level of performance, and the accommodations, 
modifications, and assistive technology that were essential in high 
school to assist the student in achieving maximum progress.
    (4) Recommendations on how to assist the child in meeting the 
child's post-secondary goals.
    (8) IEP--(i) IEP development. (A) DoDEA shall ensure that the CSC 
develops and implements an IEP to provide FAPE for each child with a 
disability who requires special education and related services as 
determined by the CSC. An IEP shall be in effect at the beginning of 
each school year for each child with a disability eligible for special 
education and related services under the IDEA and this part.
    (B) In developing the child's IEP, the CSC shall consider:
    (1) The strengths of the child.
    (2) The concerns of the parents for enhancing the education of their 
child.
    (3) The results of the initial evaluation or most recent evaluation 
of the child.
    (4) The academic, developmental, and functional needs of the child.
    (ii) IEP development meeting. The CSC shall convene a meeting to 
develop the IEP of a child with a disability. The meeting shall:
    (A) Be scheduled within 10 school days from the eligibility meeting 
following a determination by the CSC that the child is eligible for 
special education and related services.
    (B) Include as participants:
    (1) An administrator or school representative other than the child's 
teacher who is qualified to provide or supervise the provision of 
special education and is knowledgeable about the general education 
curriculum and available resources.
    (2) Not less than one general education teacher of the child (if the 
child is, or may be, participating in the general education 
environment).
    (3) Not less than one special education teacher or, where 
appropriate, not less than one special education provider of such child.
    (4) The child's parents.
    (5) An EIS coordinator or other representative of EIS, if the child 
is transitioning from EIS.
    (6) The child, if appropriate.
    (7) A representative of the evaluation team who is knowledgeable 
about the evaluation procedures used and can interpret the instructional 
implications of the results of the evaluation.
    (8) Other individuals invited at the discretion of the parents or 
school who have knowledge or special expertise regarding the child or 
the IDEA, including related services personnel, as appropriate.
    (iii) IEP content. The CSC shall include in the IEP:
    (A) A statement of the child's present levels of academic 
achievement and functional performance including:
    (1) How the child's disability affects involvement and progress in 
the general education curriculum, or
    (2) For preschoolers, how the disability affects participation in 
appropriate activities.
    (3) For children with disabilities who take an alternate assessment, 
a description of short-term objectives.
    (B) A statement of measurable annual goals including academic and 
functional goals designed to meet:
    (1) The child's needs that result from the disability to enable the 
child to be involved in and make progress in the general education 
curriculum.
    (2) Each of the child's other educational needs resulting from his 
or her disability.
    (C) A description of how the child's progress toward meeting the 
annual goals shall be measured, and when periodic progress reports will 
be provided to the parents.
    (D) A statement of the special education and related services, 
supplementary aids and services (which are based on peer-reviewed 
research to the extent practicable and shall be provided to the child or 
on behalf of the child), and a statement of the program modifications or 
supports for school personnel that shall be provided for the child to:
    (1) Advance appropriately toward attaining the annual goals.
    (2) Be involved in and make progress in the general education 
curriculum and participate in extracurricular and other non-academic 
activities.

[[Page 216]]

    (3) Be educated and participate with other children who may or may 
not have disabilities.
    (E) An explanation of the extent, if any, to which the child will 
not participate with non-disabled children in the regular class and in 
non-academic activities.
    (F) A statement of any individualized appropriate accommodations 
necessary to measure the child's academic achievement and functional 
performance on system-wide or district-wide assessments. If the CSC 
determines that the child shall take an alternate assessment of a 
particular system-wide or district-wide assessment of student 
achievement (or part of an assessment), a statement of why:
    (1) The child cannot participate in the regular assessment.
    (2) The particular alternate assessment selected is appropriate for 
the child.
    (G) Consideration of the following special factors:
    (1) Assistive technology devices and services for all children.
    (2) Language needs for the child with limited English proficiency.
    (3) Instruction in Braille and the use of Braille for a child who is 
blind or visually impaired, unless the CSC determines, after an 
evaluation of the child's reading and writing skills, needs, and 
appropriate reading and writing media (including an evaluation of the 
child's future needs for instruction in Braille or the use of Braille) 
that instruction in Braille or the use of Braille is not appropriate for 
the child.
    (4) Interventions, strategies, and supports including positive 
behavioral interventions and supports to address behavior for a child 
whose behavior impedes his or her learning or that of others.
    (5) Language and communication needs, and in the case of a child who 
is deaf or hard of hearing, opportunities for direct communications with 
peers and professional personnel in the child's language and 
communication mode, academic level, and full range of needs, including 
opportunities for direct instruction in the child's communication mode.
    (H) A statement of the amount of time that each service shall be 
provided to the child, including the date for beginning of services and 
the anticipated frequency, number of required related services sessions 
to be provided by EDIS, location and duration of those services 
(including adjusted school day or an extended school year), and 
modifications.
    (I) A statement of special transportation requirements, if any.
    (J) Physical education services, specially designed if necessary, 
shall be made available to every child with a disability receiving a 
FAPE. Each child with a disability must be afforded the opportunity to 
participate in the regular physical education program available to non-
disabled children unless the child is enrolled full-time in a separate 
facility or needs specially designed physical education, as prescribed 
in the child's IEP.
    (iv) Transition services. (A) Beginning not later than the first IEP 
to be in effect when the child turns 16, or younger if determined 
appropriate by the CSC, and updated annually, thereafter, the IEP must 
include:
    (1) Appropriate measurable postsecondary goals based on age-
appropriate transition assessments related to training, education, 
employment and, where appropriate, independent living skills.
    (2) The transition services, including courses of study, needed to 
assist the child in reaching postsecondary goals.
    (B) Beginning at least 1 year before the child reaches the age of 
majority (18 years of age), except for a child with a disability who has 
been determined to be incompetent in accordance with Federal or State 
law, a statement that the child has been informed of those rights that 
transfer to him or her in accordance with this part.
    (9) Implementation of the IEP. (i) The CSC shall ensure that all IEP 
provisions developed for any child entitled to an education by the DoDEA 
school system are fully implemented.
    (ii) The CSC shall:
    (A) Seek to obtain parental agreement and signature on the IEP 
before delivery of special education and related services in accordance 
with that IEP is begun.
    (B) Provide a copy of the child's IEP to the parents.

[[Page 217]]

    (C) Ensure that the IEP is implemented as soon as possible following 
the IEP development meeting.
    (D) Ensure the provision of special education and related services, 
in accordance with the IEP.
    (E) Ensure that the child's IEP is accessible to each general 
education teacher, special education teacher, related service provider, 
and any other service provider who is responsible for its 
implementation, and that each teacher and provider is informed of:
    (1) His or her specific responsibilities related to implementing the 
child's IEP.
    (2) The specific accommodations, modifications, and supports that 
must be provided for the child in accordance with the IEP.
    (F) Review the IEP for each child periodically and at least annually 
in a CSC meeting to determine whether the child has been progressing 
toward the annual goals.
    (G) Revise the IEP, as appropriate, and address:
    (1) Any lack of progress toward the annual goals and in the general 
education curriculum, where appropriate.
    (2) The results of any reevaluation.
    (3) Information about the child provided by the parents, teachers, 
or related service providers.
    (4) The child's needs.
    (10) Placement and Least Restrictive Environment (LRE). (i) The CSC 
shall determine the educational placement of a child with a disability.
    (ii) The educational placement decision for a child with a 
disability shall be:
    (A) Determined at least annually.
    (B) Made in conformity with the child's IEP.
    (C) Made in conformity with the requirements of IDEA and this part 
for LRE.
    (1) A child with a disability shall be educated, to the maximum 
extent appropriate, with children who are not disabled.
    (2) A child with a disability shall not be removed from education in 
age-appropriate general education classrooms solely because of needed 
modifications in the general education classroom.
    (3) As appropriate, the CSC shall make provisions for supplementary 
services to be provided in conjunction with general education placement.
    (4) Special classes, separate schooling, or other removal of a child 
with a disability from the general education environment shall occur 
only when the nature or severity of the disability is such that 
education in general education classes with the use of supplementary 
aids and services cannot be achieved satisfactorily.
    (5) In providing or arranging for the provision of non-academic and 
extracurricular services and activities, including meals, recess 
periods, assemblies, and study trips, the CSC shall ensure that a child 
with a disability participates with non-disabled children in those 
services and activities to the maximum extent appropriate to the needs 
of that child.
    (iv) In determining the LRE for an individual student, the CSC 
shall:
    (A) Consider the needs of the individual child as well as any 
potential harmful effect on the child or the quality of services that he 
or she needs.
    (B) Make a continuum of placement options available to meet the 
needs of children with disabilities for special education and related 
services. The options on this continuum include the general education 
classroom, special classes (a self-contained classroom in the school), 
home bound instruction, or instruction in hospitals or institutions.
    (v) When special schools and institutions may be appropriate, the 
CSC shall consider such placement options in coordination with the Area 
Special Education Office.
    (vi) In the case of a disciplinary placement, school officials shall 
follow the procedures set forth in paragraph (b)(13) of this section.
    (11) Extended School Year (ESY) services. ESY services must be 
provided only if a child's IEP team determines that the services are 
necessary for the provision of FAPE to the child. DoDEA may not:
    (i) Limit ESY services to particular categories of disability; or
    (ii) Unilaterally limit the type, amount, or duration of ESY 
services.

[[Page 218]]

    (12) Discipline--(i) School discipline. All regular disciplinary 
rules and procedures applicable to children attending a DoDEA school 
shall apply to children with disabilities who violate school rules and 
regulations or disrupt regular classroom activities, except that:
    (A) A manifestation determination must be conducted for discipline 
proposed for children with disabilities in accordance with DoDEA 
disciplinary rules and regulations and paragraph (b)(12)(v) of this 
section, and
    (B) The child subject to disciplinary removal shall continue to 
receive educational services in accordance with DoD disciplinary rules 
and regulations and paragraph (b)(12)(iv) of this section.
    (ii) Change of placement. (A) It is a change of placement if a child 
is removed from his or her current placement for more than 10 
consecutive school days or for a series of removals that cumulates to 
more than 10 school days during the school year that meets the criteria 
of paragraph (b)(12)(ii)(C) of this section.
    (B) It is not a change of placement if a child is removed from his 
or her current academic placement for not more than 10 consecutive or 
cumulative days in a school year for one incident of misconduct. A child 
can be removed from the current educational placement for separate 
incidents of misconduct in the same school year (as long as those 
removals do not constitute a change of placement under IDEA) to the 
extent such a disciplinary alternative is applied to children without 
disabilities.
    (C) If a child has been removed from his or her current placement 
for more than 10 days in a school year, but not more than 10 consecutive 
school days, the CSC shall determine whether the child has been subject 
to a series of removals that constitute a pattern. The determination is 
made on a case-by-case basis and is subject to review by a hearing 
officer in accordance with the provisions of paragraph (d)(5) of this 
section. The CSC will base its determination on whether the child has 
been subjected to a series of removals that constitute a pattern by 
examining whether:
    (1) The child's behavior is substantially similar to his or her 
behavior in previous incidents that resulted in the series of removals, 
and;
    (2) Additional factors such as the length of each removal, the total 
amount of time the child has been removed, and the proximity of the 
removals to one another.
    (D) On the date the decision is made to remove a child with a 
disability because of misconduct, when the removal would change the 
child's placement, the school must notify the parents of that decision 
and provide the parents the procedural safeguards notice described in 
paragraph (b)(19) of this section.
    (iii) Alternate educational setting determination, period of 
removal. School personnel may remove a child with a disability for 
misconduct from his or her current placement:
    (A) To an appropriate interim alternate educational setting (AES), 
another setting, or suspension for not more than 10 consecutive school 
days to the extent those alternatives are applied to children without 
disabilities (for example, removing the child from the classroom to the 
school library, to a different classroom, or to the child's home), and 
for additional removals of not more than 10 consecutive school days in 
that same school year for separate incidents of misconduct as long as 
the CSC has determined that those removals do not constitute a pattern 
in accordance with paragraphs (b)(12)(ii) and (b)(12)(iv)(C) of this 
section; or
    (B) To an AES determined by the CSC for not more than 45 school 
days, without regard to whether the behavior is determined to be a 
manifestation of the child's disability, if the child, at school, on 
school-provided transportation, on school premises, or at a school-
sponsored event:
    (1) Carries a weapon or possesses a weapon;
    (2) Knowingly possesses or uses illegal drugs or sells or solicits 
the sale of a controlled substance; or
    (3) Has inflicted serious bodily injury upon another person; or
    (C) To an AES determined by the CSC, another setting or suspension 
for more than 10 school days, where the behavior giving rise to the 
violation was

[[Page 219]]

determined by the CSC not to be a manifestation of the child's 
disability, in accordance with (b)(12)(v) of this section.
    (D) After an expedited hearing if school personnel believe that 
returning the child to his or her current educational placement is 
substantially likely to cause injury to the child or to others.
    (iv) Required services during removal. (A) If a child with a 
disability is removed from his or her placement for 10 cumulative school 
days or less in a school year, the school is required only to provide 
services comparable to the services it provides to a child without 
disabilities who is similarly removed.
    (B) If a child with a disability is removed from his or her 
placement for more than 10 school days, where the behavior that gave 
rise to the violation of the school code is determined in accordance 
with paragraph (b)(12)(v) of this section not to be a manifestation of 
the child's disability, or who is removed under paragraph 
(b)(12)(iii)(B) of this section irrespective of whether the behavior is 
determined to be a manifestation of the child's disability, the school 
must:
    (1) Continue to provide the child with the educational services as 
identified by the child's IEP as a FAPE so as to enable the child to 
continue participating in the general education curriculum, although in 
another setting, and to progress toward meeting the goals set out in the 
child's IEP.
    (2) Provide, as appropriate, a functional behavioral assessment and 
behavioral intervention services and modifications designed to address 
the behavior violation so that it does not recur.
    (C) If a child with a disability has been removed for more than 10 
cumulative school days and the current removal is for 10 consecutive 
school days or less, then the CSC must determine whether the pattern of 
removals constitutes a change of placement in accordance with paragraph 
(b)(12)(ii) of this section.
    (1) If the CSC determines the pattern of removals is NOT a change of 
placement, then the CSC must determine the extent to which services are 
needed to enable the child to continue participating in the general 
education curriculum, although in another setting, and to progress 
toward meeting the goals set out in the child's IEP.
    (2) If the CSC determines that the pattern of removals IS a change 
of placement, then the CSC must conduct a manifestation determination.
    (v) Manifestation determination and subsequent action by CSC and 
school personnel. (A) A principal must give the notice required and 
convene a manifestation determination meeting with the CSC within 10 
school days of recommending, in accordance with DoDEA Regulation 2051.1, 
a disciplinary action that would remove a child with disabilities for:
    (1) More than 10 consecutive school days, or
    (2) A period in excess of 10 cumulative school days when the child 
has been subjected to a series of removals that constitute a pattern.
    (B) The manifestation CSC will review all relevant information in 
the child's file (including the IEP, any teacher observations, and any 
information provided by the sponsor or parent) and determine whether the 
misconduct was a manifestation of the child's disability.
    (1) The misconduct must be determined to be a manifestation of the 
child's disability if it is determined the misconduct:
    (i) Was caused by the child's disability or had a direct and 
substantial relationship to the child's disability; or
    (ii) Was the direct result of the school's failure to implement the 
IEP.
    (2) If the determination is made that the misconduct was a 
manifestation of the child's disability, the CSC must:
    (i) Conduct a functional behavioral assessment, unless the school 
conducted a functional behavioral assessment before the behavior that 
resulted in the change of placement occurred, and implement a behavioral 
intervention plan for the child; or
    (ii) Review any existing behavioral intervention or disciplinary 
plan and modify it, as necessary, to address the behavior; and
    (iii) Revise the student's IEP or placement and delivery system to 
address the school's failure to implement the IEP and to ensure that the 
student

[[Page 220]]

receives services in accordance with the IEP.
    (3) Unless the parent and school agree to a change of placement as 
part of the modification of the behavioral intervention plan, the CSC 
must return the child to the placement from which the child was removed:
    (i) Not later than the end of 10 days of removal; or
    (ii) Not later than the end of 45 consecutive school days, if the 
student committed a weapon or drug offense or caused serious bodily 
injury for which the student was removed to an AES.
    (4) If the determination is made that the misconduct in question was 
the direct result of the school's failure to implement the IEP, the 
school must take immediate steps to remedy those deficiencies.
    (5) If the determination is made that the behavior is NOT a 
manifestation of the child's disability, school personnel may apply the 
relevant disciplinary procedures in the same manner and for the same 
duration as the procedures that would be applied to children without 
disabilities, and must:
    (i) Forward the case and a recommended course of action to the 
school principal, who may then refer the case to a disciplinary 
committee for processing.
    (ii) Reconvene the CSC following a disciplinary decision that would 
change the student's placement, to identify, if appropriate, an 
educational setting and delivery system to ensure the child receives 
services in accordance with the IEP.
    (vi) Appeals of school decision regarding placement or manifestation 
determination. (A) The parent of a child with a disability who disagrees 
with any decision regarding placement or manifestation determination, or 
a school that believes maintaining the current placement of the child is 
substantially likely to result in injury to the child or others, may 
appeal the decision by requesting an expedited due process hearing 
before a hearing officer by filing a petition in accordance with 
paragraph (d)(5) of this section.
    (B) A hearing officer, appointed in accordance with paragraph (d) of 
this section, hears and makes a determination regarding an appeal. In 
making the determination the hearing officer may:
    (1) Return the child with a disability to the placement from which 
the child was removed if the hearing officer determines that the removal 
was a violation of the authority of school personnel in accordance with 
this part or that the child's behavior was a manifestation of the 
child's disability; or
    (2) Order a change of placement of the child with a disability to an 
appropriate interim AES for not more than 45 school days if the hearing 
officer determines that maintaining the child's current placement is 
substantially likely to result in injury to the child or to others.
    (C) At the end of the placement in the appropriate AES, the 
procedures for placement in an AES may be repeated, with the consent of 
the Area Director, if the school believes that returning the child to 
the original placement is substantially likely to result in injury to 
the child or to others.
    (D) When an appeal has been made by either the parent or the school, 
the child must remain in the interim AES pending the decision of the 
hearing officer or until the expiration of the specified time period, 
whichever occurs first, unless the parent and the DoDEA school system 
agree otherwise.
    (13) Children not yet determined eligible for special education. (i) 
A child who has not been determined to be eligible for special education 
and related services and who is subject to discipline may assert any of 
the protections provided for in paragraph (b)(19) of this section if the 
school had knowledge that the child was a child with a disability before 
the behavior that precipitated the disciplinary action occurred.
    (ii) DoDEA shall be deemed to have knowledge that a child is a child 
with a disability if, before the behavior that precipitated the 
disciplinary action occurred:
    (A) The parent of the child expressed concern in writing to a 
teacher of the child, the school principal or assistant principal, or 
the school special education coordinator that the child was in need of 
special education and related services;
    (B) The child presented an active IEP from another school;

[[Page 221]]

    (C) The parent of the child requested an evaluation of the child; or
    (D) The teacher of the child or other school personnel expressed 
specific concerns about a pattern of behavior demonstrated by the child 
directly to the principal or assistant principal, the special education 
coordinator, or to another teacher of the child.
    (iii) A school is deemed NOT to have knowledge that a child is a 
child with a disability if:
    (A) The parent of the child has not allowed an evaluation of the 
child or the parent has revoked consent, in writing, to the delivery of 
the child's special education and related services, in accordance with 
this part; or
    (B) The child has been evaluated and determined not to be a child 
with a disability.
    (iv) Conditions that apply if there is no basis of knowledge that 
the child is a child with a disability.
    (A) If a school has no basis of knowledge that a child is a child 
with a disability prior to taking disciplinary measures against the 
child, the child may be subjected to the disciplinary measures applied 
to non-disabled children who engage in comparable behaviors in 
accordance with paragraph (b)(12)(i) of this section.
    (B) If a request is made for an evaluation of a child during the 
time period when the child is subjected to disciplinary measures:
    (1) The evaluation must be expedited.
    (2) Until the evaluation is completed, the child remains in his or 
her then current educational placement, which can include suspension or 
expulsion without educational services.
    (v) If the child is determined to be a child with a disability, 
taking into consideration information from the evaluation conducted by 
the agency and information provided by the parents, the school must 
provide special education and related services in accordance with an 
IEP.
    (14) Referral to and action by law enforcement and judicial 
authorities--(i) Rule of construction. Nothing prohibits a school from 
reporting a crime threatened or committed by a child with a disability 
to appropriate authorities, or prevents military, host-nation, or State 
law enforcement and judicial authorities from exercising their 
responsibilities with regard to the application of Federal, host-nation, 
and State law to crimes committed or threatened by a child with a 
disability.
    (ii) Transmittal of records. An agency reporting a crime in 
accordance with this paragraph may transmit copies of the child's 
special education and disciplinary records only to the extent that the 
transmission is in accordance with 32 CFR part 285.
    (15) Children with disabilities who are placed in a non-DoDEA school 
or facility pursuant to an IEP.
    (i) Children with disabilities who are eligible to receive a DoDEA 
school education, but are placed in a non-DoD school or facility by 
DoDEA because a FAPE cannot be provided by DoD, shall have all the 
rights of children with disabilities who are enrolled in a DoDEA school.
    (ii) A child with a disability may be placed at DoD expense in a 
non-DoD school or facility only if required by the IEP.
    (iii) DoDEA school officials shall initiate and conduct a meeting to 
develop an IEP for the child before placement. A representative of the 
non-DoD school or facility should attend the meeting. If the 
representative cannot attend, the DoDEA school officials shall 
communicate in other ways to facilitate participation including 
individual or conference telephone calls. A valid IEP must document the 
necessity of the placement in a non-DoD school or facility. The IEP 
must:
    (A) Be signed by an authorized DoDEA official before it becomes 
valid.
    (B) Include a determination that the DoDEA school system does not 
currently have and cannot reasonably create an educational program 
appropriate to meet the needs of the child with a disability.
    (C) Include a determination that the non-DoD school or facility and 
its educational program and related services conform to the requirements 
of this part.
    (iv) The DoD shall not be required to reimburse the costs of special 
education and related services if DoDEA made FAPE available in 
accordance with the requirements of the IDEA and a parent unilaterally 
places the child

[[Page 222]]

in a non-DoD school without the approval of DoDEA.
    (A) Reimbursement may be ordered by a hearing officer if he or she 
determines that DoDEA had not made FAPE available in a timely manner 
prior to enrollment in the non-DoDEA school and that the private 
placement is appropriate.
    (B) Reimbursement may be reduced or denied:
    (1) If, at the most recent CSC meeting that the parents attended 
prior to removal of the child from the DoDEA school, the parents did not 
inform the CSC that they were rejecting the placement proposed by the 
DoDEA school to provide FAPE to their child, including stating their 
concerns and their intent to enroll their child in non-DoD school at DoD 
expense.
    (2) If, at least 10 business days (including for this purpose any 
holidays that occur on a Monday through Friday) prior to the removal of 
the child from the DoDEA school, the parents did not give written notice 
to the school principal or CSC chairperson of the information described 
in paragraph (b)(15)(iv)(B)(1) of this section.
    (3) If, the CSC informed the parents of its intent to evaluate the 
child, using the notice requirement described in paragraph (b)(6)(i) and 
paragraph (b)(19) of this section, but the parents did not make the 
child available; or
    (4) Upon a hearing officer finding of unreasonableness with respect 
to actions taken by the parents.
    (C) Reimbursement may not be reduced or denied for failure to 
provide the required notice if:
    (1) The DoDEA school prevented the parent from providing notice;
    (2) The parents had not received notification of the requirement 
that the school provide prior written notice required by paragraph 
(b)(19) of this section;
    (3) Compliance would result in physical or emotional harm to the 
child; or
    (4) The parents cannot read and write in English.
    (16) Confidentiality of the records. The DoDEA school and EDIS 
officials shall maintain all student records in accordance with 32 CFR 
part 310.
    (17) Parental consent--(i) Consent requirements. The consent of a 
parent of a child with a disability or suspected of having a disability 
shall be obtained before:
    (A) Initiation of formal evaluation procedures to determine whether 
the child qualifies as a child with a disability and prior to conducting 
a reevaluation;
    (B) Initial provision of special education and related services.
    (ii) Consent for initial evaluation. If the parent of a child does 
not provide consent for an initial evaluation or fails to respond to a 
request for consent for an initial evaluation, then DoDEA may use the 
procedures described in paragraph (d) of this section to pursue an 
evaluation of a child suspected of having a disability.
    (A) Consent to evaluate shall not constitute consent for placement 
or receipt of special education and related services.
    (B) If a parent declines to give consent for evaluation, DoDEA shall 
not be in violation of the requirement to conduct child-find, the 
initial evaluation, or the duties to follow evaluation procedures or 
make an eligibility determination and write an IEP as prescribed in this 
section.
    (iii) Consent for reevaluation. The school must seek to obtain 
parental consent to conduct a reevaluation. If the parent does not 
provide consent or fails to respond to a request for consent for a 
reevaluation, then the school may conduct the reevaluation without 
parental consent if the school can demonstrate that it has made 
reasonable efforts to obtain parental consent and documented its 
efforts. The documentation must include a record of the school's 
attempts in areas such as:
    (A) Detailed records of telephone calls made or attempted and the 
results of those calls.
    (B) Copies of correspondence sent to the parents and any responses 
received.
    (C) Detailed records of visits made to the parents' home, place of 
employment or duty station, and the results of those visits.
    (iv) Consent for the initial provision of special education and 
related services. The school that is responsible for making a FAPE 
available to a child with a disability under this part must seek to

[[Page 223]]

obtain informed consent from the parent of such child before providing 
special education and related services to the child. If the parent 
refuses initial consent for services, the DoDEA school:
    (A) May not use the procedures described in paragraph (d) of this 
section (mediation and due process) to obtain agreement or a ruling that 
the special education and related services recommended by the child's 
CSC may be provided to the child without parental consent.
    (B) Shall not be considered to be in violation of the requirement to 
make a FAPE available to the child for its failure to provide those 
services to the child for which parental consent was requested.
    (C) Shall not be required to convene an IEP meeting or develop an 
IEP for the child.
    (18) Parent revocation of consent for continued special education 
and related services. (i) Parents may unilaterally withdraw their 
children from further receipt of all special education and related 
services by revoking their consent for the continued provision of 
special education and related services to their children.
    (ii) Parental revocation of consent must be in writing.
    (iii) Upon receiving a written revocation of consent, the DoDEA 
school must cease the provision of special education and related 
services and must provide the parents prior written notice before 
ceasing the provision of services. The notice shall comply with the 
requirements of paragraph (b)(19) of this section and shall advise the 
parents:
    (A) Of any changes in educational placement and services that will 
result from the revocation of consent.
    (B) That the school will terminate special education and related 
services to the child on a specified date, which shall be within a 
reasonable time following the delivery of the written notice.
    (C) That DoDEA will not be considered to be in violation of the 
requirement to make FAPE available to the child because of the failure 
to provide the child with further special education and related 
services.
    (D) That the DoDEA school will not be deemed to have knowledge that 
the child is a child with a disability and the child may be disciplined 
as a general education student and will not be entitled to the IDEA 
discipline protections.
    (E) That the parents maintain the right to subsequently request an 
initial evaluation to determine if the child is a child with a 
disability who needs special education and related services and that 
their child will not receive special education and related services 
until eligibility has been determined.
    (F) That the DoDEA school will not challenge, through mediation or a 
due process hearing, the revocation of consent to the provision of 
special education or related services.
    (G) That while the school is not required to convene a CSC meeting 
or to develop an IEP for further provision of special education and 
related services, it is willing to convene a CSC meeting upon request of 
the parent prior to the date that service delivery ceases.
    (iv) Revocation of consent for a particular service:
    (A) Upon receiving a revocation of consent for a particular special 
education or related service, the DoDEA school must provide the parent 
prior written notice in accordance with the requirements of paragraph 
(b)(19) of this section.
    (B) If parents disagree with the provision of a particular special 
education or related service and the school members of the CSC and the 
parents agree that the child would be provided a FAPE if the child did 
not receive that service, the child's IEP may be modified to remove the 
service.
    (C) If the parent and the school members of the CSC disagree as to 
whether the child would be provided a FAPE if the child did not receive 
a particular service, the parent may use the mediation or due process 
procedures under this part to obtain a determination as to whether the 
service with which the parent disagrees is or is not appropriate to his 
or her child and whether it is necessary to FAPE, but the school may not 
cease the provision of a particular service.
    (19) Procedural safeguards--(i) Parental rights. Parents of 
children, ages 3

[[Page 224]]

through 21 inclusive, with disabilities must be afforded procedural 
safeguards with respect to the provision of FAPE which shall include:
    (A) The right to confidentiality of personally identifiable 
information in accordance with Federal law and DoD regulations.
    (B) The right to examine records and to participate in meetings with 
respect to assessment, screening, eligibility determinations, and the 
development and implementation of the IEP.
    (C) The right to furnish or decline consent in accordance with this 
section.
    (D) The right to prior written notice when the school proposes to 
initiate or change, or refuses to initiate or change the identification, 
evaluation, educational placement, or provision of FAPE to a child with 
a disability.
    (1) The notice shall include:
    (i) A description of the action that is being proposed or refused.
    (ii) An explanation of why the agency proposes or refuses to take 
the action.
    (iii) A description of each evaluation procedure, assessment, 
record, or report used as a basis for the proposed or refused action.
    (iv) A description of the factors that were relevant to the agency's 
proposal or refusal.
    (v) A description of any other options considered by the CSC and the 
reasons why those options were rejected.
    (vi) Each of the procedural safeguards that is available in 
accordance with the IDEA and this part.
    (vii) Sources for parents to contact to obtain assistance in 
understanding the provisions of this part.
    (viii) Dispute resolution procedures, including a description of 
mediation, how to file a complaint, due process hearing procedures, and 
applicable timelines.
    (2) The notice must be provided in language understandable to a lay 
person and in the native language of the parent or other mode of 
communication used by the parent, unless it is clearly not feasible to 
do so.
    (E) The right to obtain an independent educational evaluation (IEE) 
of the child.
    (F) The right to timely administrative resolution of complaints.
    (G) The availability of dispute resolution through the 
administrative complaint, mediation, and due process procedures 
described in paragraph (d) of this section with respect to any matter 
relating to the identification, evaluation, or educational placement of 
the child, or a FAPE for the child, age 3 through 21 years, inclusive.
    (H) The right of any party aggrieved by the decision regarding a due 
process complaint to bring a civil action in a district court of the 
United States of competent jurisdiction in accordance with paragraph 
(d)(21) of this section.
    (ii) Procedural safeguards notice. A DoDEA school shall not be 
required to give parents a copy of the procedural safeguards notice more 
than once a school year, except that a copy must be given to parents 
upon a request from the parents; upon initial referral for evaluation or 
parental request for evaluation; and upon receipt of the first due 
process complaint.
    (A) The procedural safeguards notice must include a full explanation 
of all of the procedural safeguards available, including:
    (1) Independent evaluation for children (3 through 21 years, 
inclusive).
    (2) Prior written notice.
    (3) Parental consent.
    (4) Access to educational records.
    (5) Dispute resolution procedures together with applicable timelines 
including:
    (i) The availability of mediation.
    (ii) Procedures for filing a due process complaint and the required 
time period within which a due process complaint must be filed.
    (iii) The opportunity for the DoDEA school system to resolve a due 
process complaint filed by a parent through the resolution process.
    (iv) Procedures for filing an administrative complaint and for 
administrative resolution of the issues.
    (6) The child's placement during pendency of due process proceedings 
in accordance with paragraph (d)(18) of this section.
    (7) Procedures for children (3 through 21 years, inclusive) who are 
subject to placement in an interim AES.
    (8) Requirements for unilateral placement by parents of children in 
private schools at public expense.

[[Page 225]]

    (9) Due process hearings, including requirements for disclosure of 
evaluation results and recommendations.
    (10) The right to bring a civil action in a district court of the 
United States in accordance with paragraph (d)(21) of this section, 
including the time period in which to file such action.
    (11) The possibility of an award of attorney's fees to the 
prevailing party in certain circumstances.
    (B) The procedural safeguards notice must be:
    (1) Written in language understandable to the general public.
    (2) Provided in the native language of the parent or other mode of 
communication used by the parent, unless it is clearly not feasible to 
do so. If the procedural safeguards notice is not translated into the 
native language of the parent, then the DoDEA school system shall ensure 
that:
    (i) The notice is translated orally or by other means for the parent 
in his or her native language or other mode of communication.
    (ii) The parent understands the content of the notice.
    (iii) There is written evidence that the requirements above have 
been met.
    (iii) Independent Educational Evaluation (IEE)--(A) Obtaining an 
IEE. The DoDEA school system shall provide to the parents, upon request 
for an IEE, information about the requirements to meet the DoDEA school 
system criteria, as set forth in paragraph (b)(19)(iii)(F) of this 
section, and identification of qualified resources available to meet the 
requirements of paragraph (b)(iii)(F)(2) of this section.
    (B) Right to IEE. The parents of a child with a disability have a 
right to an IEE at the DoDEA school system expense if the parent 
disagrees with an evaluation obtained by the DoDEA school system, 
subject to paragraph (b)(19)(iii)(C) to (H) of this section.
    (C) Written request for IEE. If a parent provides the DoDEA school 
system with a written request for an IEE funded by the school system, 
then the school system shall either:
    (1) Agree to fund an appropriate IEE that meets the criteria the 
DoDEA school system would use for an initial evaluation of a child as 
set forth in paragraph (b)(19)(iii)(F) of this section, or
    (2) Initiate a due process hearing in accordance with paragraph (d) 
of this section, without unnecessary delay, and demonstrate that its 
evaluation was appropriate under this part.
    (i) If the DoDEA school system initiates a due process hearing and 
the final decision is that the school system's evaluation is 
appropriate, the parent still has the right to an IEE, but not at public 
expense.
    (ii) If a parent requests an IEE, the DoDEA school system may ask 
for the parent's reason why he or she objects to the school system's 
evaluation. However, the parent may not be compelled to provide an 
explanation and the DoDEA school system may not unreasonably delay 
either agreeing to fund an IEE that meets DoDEA school system criteria 
or initiating a due process hearing to defend its evaluation.
    (D) Parent-initiated evaluations. If the parent obtains an IEE 
funded by the school system or shares with the DoDEA school system an 
evaluation obtained at private expense:
    (1) The results of the evaluation shall be considered by the DoDEA 
school if it meets the school system's criteria in any decision made 
with respect to the provision of FAPE to the child.
    (2) The results may be presented by any party as evidence at a due 
process hearing under this section regarding that child.
    (3) The DoDEA school system may not be required to fund an IEE that 
has been obtained by a parent if at a due process hearing initiated by 
either party and conducted under this section, the DoDEA school system 
demonstrates either that:
    (i) The parentally obtained evaluation was not educationally 
appropriate or failed to meet agency criteria; or
    (ii) The DoDEA school system's evaluation was appropriate.
    (E) Hearing officer order for evaluation. A hearing officer may only 
order an IEE at the DoDEA school system's expense as part of a due 
process hearing under this section if:
    (1) The school system has failed to demonstrate its assessment was 
appropriate; or

[[Page 226]]

    (2) The school system has not already funded an IEE in response to a 
given school evaluation.
    (F) DoDEA school system criteria. An IEE provided at the DoDEA 
school system's expense must:
    (1) Conform to the requirements of paragraph (b)(6)(viii) and (ix) 
of this section.
    (2) Be conducted, when possible, in the geographic area where the 
child resides utilizing available qualified resources, including 
qualified examiners employed by the Military Department, in accordance 
with (b)(6)(iv) of this part, unless the parent can demonstrate to the 
satisfaction of the DoDEA school system or in a due process hearing 
filed in accordance with paragraph (d) of this section, that the 
geographic limitation renders the IEE impossible.
    (G) Conditions. Except for the criteria in paragraph (b)(19)(iii)(F) 
of this section, the DoDEA school system shall not impose conditions or 
timelines related to obtaining an IEE at the DoDEA school system 
expense.
    (H) Limitations. A parent is entitled to only one IEE at DoDEA 
school system expense in response to a given DoDEA school system 
evaluation with which the parent disagrees.
    (iv) Placement during due process, appeal, or civil procedures. 
While an impartial due process proceeding, appeal proceeding, or civil 
proceeding is pending, unless the DoDEA school system and the parent of 
the child agree otherwise in writing, the child shall remain in his or 
her current placement, subject to the disciplinary procedures prescribed 
in paragraph (b)(12) of this section.
    (v) Transfer of parental rights at age of majority. (A) In the DoDEA 
school system, a child reaches the age of majority at age 18.
    (B) When a child with a disability reaches the age of majority 
(except for a child with a disability who has been determined to be 
incompetent in accordance with Federal or State law) the rights afforded 
to the parents in accordance with the IDEA and this part transfer to the 
child.
    (C) When a child reaches the age of majority, the DoDEA school shall 
notify the child and the parents of the transfer of rights.
    (D) When a child with a disability who has not been determined to be 
incompetent, but who does not have the ability to provide informed 
consent with respect to his or her educational program reaches the age 
of majority, the DoD shall appoint a parent or the parents of the child 
to represent the educational interests of the child throughout the 
period of eligibility for special education services.
    (c) Procedures for provision of related services by the military 
departments to students with disabilities in a DoDDS--(1) Evaluation 
procedures. (i) Upon request by a CSC, the responsible EDIS shall ensure 
that a qualified medical authority conducts or verifies a medical 
evaluation for use by the CSC in determining the medically related 
disability that results in a child's need for special education and 
related services, and shall oversee an EDIS evaluation used in 
determining a child's need for related services.
    (ii) The medical or related services evaluation, including necessary 
consultation with other medical personnel, shall be supervised by a 
physician or other qualified healthcare provider.
    (iii) The medical or related services evaluation shall be specific 
to the concerns addressed in the request from the CSC.
    (iv) The EDIS shall provide to the CSC an evaluation report that 
responds to the questions posed in the original request for an 
evaluation. The written report shall include:
    (A) Demographic information about the child, such as the child's 
name, date of birth, and grade level.
    (B) Behavioral observation of the child during testing.
    (C) Instruments and techniques used.
    (D) Evaluation results.
    (E) Descriptions of the child's strengths and limitations.
    (F) Instructional implications of the findings.
    (G) The impact of the child's medical condition(s), if applicable, 
on his or her educational performance.
    (v) If the EDIS that supports the DoDDS school requires assistance 
to conduct or complete an evaluation, the EDIS shall contact the MTF 
designated

[[Page 227]]

by the Military Department with geographic responsibility for the area 
where the EDIS is located.
    (vi) If EDIS determines that in order to respond to the CSC referral 
the scope of its assessment and evaluation must be expanded beyond the 
areas specified in the initial parental permission, EDIS must:
    (A) Obtain parental permission for the additional activities.
    (B) Complete its initial evaluation by the original due date.
    (C) Notify the CSC of the additional evaluation activities.
    (vii) When additional evaluation information is submitted by EDIS, 
the CSC shall review all data and determine the need for program changes 
and the reconsideration of eligibility.
    (viii) An EDIS provider shall serve on the CSC when eligibility, 
placement, or requirements for related services that EDIS provides are 
to be determined.
    (2) IEP--(i) EDIS shall be provided the opportunity to participate 
in the IEP meeting.
    (ii) EDIS shall provide related services assigned to EDIS that are 
listed on the IEP.
    (3) Liaison with DoDDS. Each EDIS shall designate a special 
education liaison officer to:
    (i) Provide liaison between the EDIS and DoDDS on requests for 
evaluations and other matters within their purview.
    (ii) Offer, on a consultative basis, training for school personnel 
on medical aspects of specific disabilities.
    (iii) Offer consultation and advice as needed regarding the medical 
services provided at school (for example, tracheotomy care, tube 
feeding, occupational therapy).
    (iv) Participate with school personnel in developing and delivering 
in-service training programs that include familiarization with various 
conditions that impair a child's educational endeavors, the relationship 
of medical findings to educational functioning, related services, and 
the requirements of the IDEA and this part.
    (d) Dispute resolution and due process procedures--(1) General. This 
section establishes requirements for resolving disputes regarding the 
provision of EIS to an infant or toddler up to 3 years of age, or the 
identification, evaluation, or educational placement of a child (ages 3 
through 21, inclusive), or the provision of a FAPE to such child in 
accordance with the IDEA and this part.
    (2) Conferences. Whenever possible, parties are encouraged to 
resolve disputes through the use of conferences at the lowest level 
possible between the parents and EDIS or the DoDEA school.
    (i) Within a DoDEA school, problems should be brought first to the 
teacher, then the school administrator, and then the district office.
    (ii) At EDIS, problems should be brought first to the EDIS provider, 
then the EDIS program manager, and then the local MTF commander.
    (3) Administrative complaints. (i) A complaint filed with the 
responsible agency, relating to the provision of services under the IDEA 
and this part, other than due process complaints filed in accordance 
with paragraph (d)(5) of this section, is known as an administrative 
complaint.
    (ii) An individual or organization may file an administrative 
complaint alleging issues relating to services required to be delivered 
under the IDEA and this part with:
    (A) The Office of the Inspector General of a Military Department 
when the issue involves services or programs for infants and toddlers 
with disabilities, or related services provided by the Military 
Departments to children with disabilities.
    (B) The DoDEA Director, Office of Investigations and Internal Review 
(OI&IR) when the issue involves the services or programs for children 
ages 3 through 21, inclusive that are under the direction or control of 
the DoDEA school system.
    (iii) An administrative complaint alleging issues relating to 
services required to be delivered under the IDEA or this part must 
include:
    (A) A statement that the Military Service or the DoDEA school system 
has violated a requirement of the IDEA or this part.
    (B) The facts on which the statement is based.
    (C) The signature and contact information for the complainant.

[[Page 228]]

    (D) If alleging violations with respect to specific children:
    (1) The name of the school the child is attending.
    (2) The name and address of the residence of the child.
    (3) A description of the nature of the problem of the child, 
including facts relating to the problem.
    (4) A proposed resolution of the problem to the extent known and 
available to the complainant at the time the complaint is filed.
    (iv) An administrative complaint may not allege a violation that 
occurred more than 1 year prior to the date that the complaint is 
received.
    (v) The complainant filing an administrative complaint alleging 
issues related to services required to be delivered under the IDEA or 
this part must forward a copy of the complaint to the DoDEA school or 
EDIS clinic serving the child at the same time the complainant files the 
complaint with the appropriate authority in paragraph (d)(3)(i) of this 
section.
    (A) Upon receipt of the complaint, the Inspector General of the 
Military Department concerned will notify the Secretary of the Military 
Department concerned, and the OI&IR will notify the Director, DoDEA, of 
the complaint.
    (B) Upon receipt of a complaint, the responsible Military Department 
Inspector General or the OCA shall, if warranted, promptly open an 
investigation consistent with its established procedures for 
investigating complaints.
    (1) The investigation shall afford the complainant an opportunity to 
submit additional information about the allegations.
    (2) The investigation shall afford the DoDEA school system or the 
Military Department an opportunity to:
    (i) Respond to the complaint;
    (ii) Propose a resolution to the complaint; or
    (iii) If the parties are willing, voluntarily engage in mediation of 
the complaint.
    (3) The investigation shall produce a report consistent with those 
the investigating agency routinely provides, shall determine whether its 
findings support the complaint, and shall state whether the DoDEA school 
system or the Military Department is violating a requirement of the IDEA 
or this part.
    (vi) The findings and conclusions of the report of investigation 
related to the administrative complaint shall be made available to the 
complainant and members of the public in accordance with the standard 
operating procedures of the investigating activity and 32 CFR parts 285 
and 310.
    (A) The investigating activity shall provide a copy of the report to 
the Director, DoDEA and the Secretary of a Military Department concerned 
or in accordance with the investigating activity's protocols.
    (B) The report shall be provided, to the extent practicable, within 
60 days of initiating the investigation, unless extended by the 
complainant and the DoDEA school system or the Military Department.
    (vii) The Secretary of the Military Department concerned or the 
Director, DoDEA shall resolve complaints within their respective area of 
responsibility when the Military Service or the DoDEA school system is 
found to have failed to provide appropriate services consistent with the 
requirements of the IDEA or this part. Remediation may include 
corrective action appropriate to address the needs of the child such as 
compensatory services, or monetary reimbursement where otherwise 
authorized by law.
    (viii) When a complaint received under this section is also the 
subject of a due process complaint regarding alleged violations of 
rights afforded under the IDEA and this part, or contains multiple 
issues of which one or more are part of that due process complaint, the 
investigation activity shall set aside any issues alleged in the due 
process complaint until a hearing is concluded in accordance with the 
IDEA and this part. Any issue that is not part of the due process 
hearing must be resolved using the procedures of this section.
    (ix) If an issue raised in a complaint filed under this section has 
been previously decided in a due process hearing involving the same 
parties:
    (A) The due process hearing decision is binding on that issue.

[[Page 229]]

    (B) The Director, DoDEA or the Secretary of the Military Department 
concerned shall so inform the complainant.
    (4) Mediation. (i) A parent, the Military Department concerned, or 
DoDEA may request mediation at any time, whether or not a due process 
petition has been filed, to informally resolve a disagreement on any 
matter relating to the provision of EIS to an infant or toddler (birth 
up to 3 years of age), or the identification, evaluation, or educational 
placement of a child (ages 3 through 21, inclusive), or the provision of 
a FAPE to such child.
    (ii) Mediation must be voluntary on the part of the parties and 
shall not be used to deny or delay a parent's right to a due process 
hearing or to deny other substantive or procedural rights afforded under 
the IDEA.
    (A) DoDEA school officials participate in mediation involving 
special education and related services; the cognizant Military 
Department participates in mediation involving EIS.
    (B) The initiating party's request must be written, include a 
description of the dispute, bear the signature of the requesting party, 
and be provided:
    (1) In the case of a parent initiating mediation, to:
    (i) The local EDIS program manager in disputes involving EDIS; or
    (ii) The school principal in disputes involving a DoDEA school.
    (2) In the case of the school or EDIS initiating mediation, to the 
parent.
    (C) Acknowledgment of the request for mediation shall occur in a 
timely manner.
    (D) Agreement to mediate shall be provided in writing to the other 
party in a timely manner.
    (iii) Upon agreement of the parties to mediate a dispute, the local 
EDIS or DoDEA school shall forward a request for a mediator to the 
Military Department or to DoDEA's Center for Early Dispute Resolution 
(CEDR), respectively.
    (iv) The mediator shall be obtained from the Defense Office of 
Hearings and Appeals (DOHA) unless another qualified and impartial 
mediator is obtained by the Military Department or CEDR.
    (A) Where DOHA is used, the DOHA Center for Alternate Dispute 
Resolution (CADR) shall provide the mediator from its roster of 
mediators qualified in special education disputes.
    (B) Where the Military Department or DoDEA elects to secure a 
mediator through its own DoD Component resources, the mediator shall be 
selected from the Component's roster of mediators qualified in special 
education disputes, or by contract with an outside mediator duly 
qualified in special education disputes and who is trained in effective 
mediation techniques.
    (v) The Military Department or DoDEA through CEDR shall obtain a 
mediator within 15 business days of receipt of a request for mediation, 
or immediately request a mediator from the Director, DOHA, through the 
DOHA CADR.
    (vi) When requested, the Director, DOHA, through the CADR, shall 
appoint a mediator within 15 business days of receiving the request, 
unless a party provides written notice to the Director, DOHA that the 
party refuses to participate in mediation.
    (vii) Unless both parties agree otherwise, mediation shall commence 
in a timely manner after both parties agree to mediation.
    (viii) The parents of the infant, toddler, or child, and EDIS or the 
school shall be parties in the mediation. With the consent of both 
parties, other persons may attend the mediation.
    (ix) Mediation shall be conducted using the following rules:
    (A) The Military Department concerned shall bear the cost of the 
mediation process in mediations concerning EIS.
    (B) DoDEA shall bear the cost of the mediation process in mediations 
concerning special education and related services.
    (C) Discussions and statements made during the mediation process, 
and any minutes, statements or other records of a mediation session 
other than a final executed mediation agreement, shall be considered 
confidential between the parties to that mediation and are not 
discoverable or admissible in a due process proceeding, appeal 
proceeding, or civil proceeding under this part.

[[Page 230]]

    (D) Mediation shall be confidential. The mediator may require the 
parties to sign a confidentiality pledge before the commencement of 
mediation.
    (E) Either party may request a recess of a mediation session to 
consult advisors, whether or not present, or to consult privately with 
the mediator.
    (F) The mediator shall ensure and the contract for mediation 
services shall require that any partial or complete resolution or 
agreement of any issue in mediation is reduced to writing, and that the 
written agreement is signed and dated by the parties, with a copy given 
to each party.
    (x) Any written agreement resulting from the mediation shall state 
that all discussions that occurred during the mediation process and all 
records of the mediation other than a final executed agreement shall be 
confidential and may not be discoverable or admissible as evidence in 
any subsequent due process proceeding, appeal proceeding, or civil 
proceeding, and shall be legally binding upon the parties and 
enforceable in a district court of the United States.
    (xi) All mediation sessions shall be held in a location that is 
convenient to both parties.
    (xii) No hearing officer or adjudicative body shall draw any 
inference from the fact that a mediator or a party withdrew from 
mediation or from the fact that mediation did not result in settlement 
of a dispute.
    (5) Due process complaint procedures. (i) Parents of infants, 
toddlers, and children who are covered by this part and the cognizant 
Military Department or DoDEA, are afforded impartial hearings and 
administrative appeals after the parties have waived or participated in 
and failed to resolve a dispute through:
    (A) Mediation, in the case of an infant or toddler; or
    (B) A resolution process, or mediation in lieu of the resolution 
process prior to proceeding to a due process hearing in the case of a 
child (ages 3 through 21 years, inclusive).
    (ii) An impartial due process hearing is available to resolve any 
dispute concerning the provision of EIS to infants and toddlers with 
disabilities or with respect to any matter relating to the 
identification, evaluation, educational placement of, and the FAPE 
provided by the Department of Defense to children (ages 3 through 21, 
inclusive) who are covered by this part, in accordance with the IDEA and 
this part.
    (A) Whenever the parents or the cognizant Military Department 
present a due process complaint (petition) in accordance with this part, 
an impartial due process hearing is available to resolve any dispute 
concerning the provision of EIS.
    (B) When the parents of children ages 3 through 21 years, inclusive, 
or the cognizant Military Department or DoDEA, present a due process 
complaint (petition) in accordance with this part relating to any matter 
regarding the identification, evaluation, placement, or the provision of 
FAPE, the parties shall first proceed in accordance with the 
requirements for a statutory resolution process in accordance with this 
part, after which time an impartial due process hearing is available to 
resolve the dispute set forth by the complaint.
    (iii) An expedited impartial due process hearing may be requested:
    (A) By a parent when the parent disagrees with the manifestation 
determination or any decision regarding the child's disciplinary 
placement.
    (B) By the school when it believes that maintaining a student in his 
or her current educational placement is substantially likely to result 
in injury to the student or others.
    (iv) Any party to a special education dispute may initiate a due 
process hearing by filing a petition stating the specific issues that 
are in dispute. The initiating party is the ``petitioner'' and the 
responding party is the ``respondent.'' The petition itself will remain 
confidential, in accordance with applicable law, not be released to 
those not a party to the litigation and its Personally Identifiable 
Information shall be protected in accordance with the DoD Privacy Act.
    (v) Petitioner and respondent are each entitled to representation by 
counsel at their own expense. The parent and child may choose to be 
assisted by a personal representative with special knowledge or training 
with respect

[[Page 231]]

to the problems of disabilities rather than by legal counsel.
    (vi) To file a petition that affords sufficient notice of the issues 
and commences the running of relevant timelines, petitioners shall 
specifically include in the petition:
    (A) The name and residential address of the child and the name of 
the school the child is attending or the location of the EDIS serving 
the child.
    (B) A description of the nature of the problem of the child relating 
to the proposed or refused initiation or change including facts (such as 
who, what, when, where, how, why of the problem).
    (C) A proposed resolution of the problem to the extent known and 
available to the petitioner at the time.
    (D) The signature of the parent, or if the petitioner is DoDEA or a 
Military Department, an authorized representative of that petitioner, or 
of the counsel or personal representative for the petitioner, and his or 
her telephone number and mailing address.
    (vii) When the cognizant Military Department or DoDEA petitions for 
a hearing, it shall additionally:
    (A) Inform the parent of the 10 business-day deadline (or 5 school 
days in the case of an expedited hearing) for filing a response that 
specifically addresses the issues raised in the petition.
    (B) Provide the parent with a copy of this part.
    (viii) A special rule applies for expedited hearing requests. The 
petitioner must state, as applicable to his or her petition:
    (A) The disciplinary basis for the child's change in placement to an 
interim AES or other removal from the child's current placement.
    (B) The reasons for the change in placement.
    (C) The reasoning of the manifestation determination committee in 
concluding that a particular act of misconduct was not a manifestation 
of the child's disability.
    (D) How the child's current educational placement is or is not 
substantially likely to result in injury to the child or others.
    (ix) The petition or request for an expedited due process hearing 
must be delivered to:
    (A) The Director, DOHA, by mail to P.O. Box 3656, Arlington, 
Virginia 22203, by fax to 703-696-1831, or email to 
[email protected]. Filing may also be made by hand 
delivery to the office of the Director, DOHA if approval from the 
Director, DOHA is obtained in advance of delivery.
    (B) The respondent by mail, fax, email, or hand delivery.
    (1) If the petitioner is a parent of a child (ages of 3 through 21, 
inclusive), or a child (in the event that rights have been transferred 
in accordance with paragraph (b)(19) of this section, the respondent is 
DoDEA and the petition must be delivered to and received by the 
principal of the school in which the child is enrolled, or if the child 
is enrolled in the Non-DoD School Program (NDSP) to the DoDEA General 
Counsel ([email protected]).
    (2) If the petitioner is the parent of an infant or toddler (birth 
up to 3 years of age), the respondent is the responsible Military 
Department and the petition must be delivered to and received by the 
EDIS manager.
    (3) If the petitioner is the responsible Military Department or 
DoDEA, the petition must be delivered to and received by the parent of 
the child.
    (C) Filing of the due process petition with DOHA is considered 
complete when received by DOHA.
    (x) The timelines for requesting and conducting a due process 
hearing are:
    (A) Timelines for requesting a hearing. A petitioner may not allege 
a violation that occurred more than 2 years before the date the 
petitioner knew, or should have known, about the alleged action that 
forms the basis of the complaint, unless the parent was prevented from 
requesting the hearing due to:
    (1) Specific misrepresentation by DoDEA or EDIS that it had resolved 
the problem forming the basis of the complaint.
    (2) The withholding of information by DoDEA or EDIS from the 
petitioning parent that was required to be provided to the parent in 
accordance with the IDEA and this part.
    (B) Timelines for conducting a due process hearing. Except as 
provided in

[[Page 232]]

paragraph (d)(5)(x)(D) and (d)(8)(ii) of this section, a hearing officer 
shall issue findings of fact and conclusions of law not later than 50 
business days:
    (1) In a case involving EDIS, following the filing and service of a 
legally sufficient petition or amended petition in accordance with this 
section.
    (2) In disputes involving a school and a child age 3 through 21, 
inclusive, following the filing and service of a legally sufficient 
petition or amended petition in accordance with this section and the 
hearing officer's receipt of notice that the 30-day resolution period 
concluded without agreement, the parties waived the resolution meeting, 
or the parties concluded mediation in lieu of the resolution process 
without reaching agreement.
    (C) Exceptions to the timelines for conduct of a hearing. (1) When 
the hearing officer grants a request for discovery made by either party, 
as provided for in paragraph (d)(10) of this section, in which case the 
time required for such discovery does not count toward the 50 business 
days.
    (2) When the hearing officer grants a specific extension of time for 
good cause in accordance with paragraph (d)(8) of this section.
    (D) Timeline for conducting an expedited hearing. In the event of a 
petition for expedited hearing is requested, a DOHA hearing officer 
shall arrange for the hearing to be held not later than 20 school days 
(when school is in session) of the date the request is filed with DOHA, 
subject to the timeline for scheduling a resolution meeting and the 15 
day resolution period requirements of this section. The hearing officer 
must make a determination within 10 school days after the hearing.
    (6) Responses and actions required following receipt of a petition 
or request for expedited hearing. (i) Immediately upon receipt of the 
petition, the Director, DOHA, shall appoint a hearing officer to take 
charge of the case.
    (A) The hearing officer shall immediately notify the parties of his 
or her appointment.
    (B) Upon receipt of notice that a hearing officer is appointed, the 
parties shall communicate all motions, pleadings, or amendments in 
writing to the hearing officer, with a copy to the opposing party, 
unless the hearing officer directs otherwise.
    (ii) Within 10 business days of receipt of the petition (5 school 
days when school is in session in the case of a petition for an 
expedited hearing), the respondent shall deliver a copy of the written 
response to the petitioner and file the original written response with 
the hearing officer. Filing may be made by mail to P.O. Box 3656, 
Arlington, Virginia 22203, by fax to 703-696-1831, by hand delivery if 
approved in advance by the hearing officer, or by email to 
[email protected]. If a hearing officer has not yet been 
appointed, the respondent will deliver the original written response to 
the Director, DOHA in accordance with paragraph (d)(5)(ix) of this 
section.
    (iii) The respondent shall specifically address the issues raised in 
the due process hearing petition.
    (iv) If the respondent is the cognizant Military Department or 
DoDEA, the response shall include:
    (A) An explanation of why the respondent proposed or refused to take 
the action at issue in the due process complaint.
    (B) A description of each evaluation procedure, assessment, record, 
or report the DoD Component used as the basis for the proposed or 
refused action.
    (C) A description of the options that the respondent considered and 
the reasons why those options were rejected.
    (D) A description of the other factors that are relevant to the 
respondent's proposed or refused action.
    (v) The respondent may file a notice of insufficient petition within 
15 business days of receiving a petition if the respondent wishes to 
challenge the sufficiency of the petition for failure to state the 
elements required by the IDEA. Within 5 business days of receiving a 
notice of insufficient petition, the hearing officer will issue a 
decision and will notify the parties in writing of that determination.
    (vi) A response to the petitioner under (d)(6)(ii) of this section 
shall not be construed to preclude the respondent from asserting that 
the due process complaint was insufficient using the

[[Page 233]]

procedures available under (d)(6)(v) of this section.
    (vii) Parties may amend a petition only if:
    (A) The other party consents in writing to such amendment and is 
given the opportunity to resolve the complaint through the resolution 
process; or
    (B) The hearing officer grants permission, except that the hearing 
officer may not grant such permission at any time later than 5 days 
before a due process hearing is scheduled to begin.
    (viii) The filing of an amended petition resets the timelines for:
    (A) The conduct of a resolution meeting and the resolution period 
relating to the amended petition, and
    (B) All deadlines for responses and actions required following the 
receipt of the amended petition, and for conducting a due process 
hearing on the amended petition.
    (7) Statutory resolution process. A resolution meeting shall be 
convened by DoDEA and a resolution period afforded, in accordance with 
this section, for any dispute in which a due process petition has been 
filed regarding the identification, evaluation, or educational 
placement, or the provision of FAPE for children ages 3 to 21, 
inclusive.
    (i) Within 15 calendar days of receiving the parent's petition for 
due process (7 calendar days in the case of an expedited hearing), 
DoDEA, through the pertinent school principal or superintendent, shall 
convene a dispute resolution meeting, which must be attended by:
    (A) The parents.
    (B) A legal representative of the parents if desired by the parents.
    (C) A DoDEA official designated and authorized by the District 
Superintendent or Area Director to exercise decision-making authority on 
behalf of DoDEA.
    (D) A DoDEA legal representative, only if the parents are 
represented by counsel at the resolution meeting.
    (E) The relevant members of the child's CSC who have specific 
knowledge of the facts identified in the petition.
    (ii) The parties may agree to mediate in lieu of conducting a 
resolution meeting or in lieu of completing the resolution period. The 
resolution meeting need not be held if the parties agree in writing to 
waive the meeting or agree to use the mediation process.
    (iii) Failure to convene or participate in resolution meeting.
    (A) If DoDEA has offered to convene a resolution meeting and has 
been unable to obtain parental participation in the resolution meeting 
after making and documenting its reasonable efforts, DoDEA may, at the 
conclusion of the resolution period (30 days or 15 days in the case of 
an expedited hearing) request that a hearing officer dismiss the 
parent's due process complaint or request for an expedited due process 
hearing.
    (B) If DoDEA fails to convene a resolution meeting within 15 days of 
receipt of a due process complaint or if it fails to participate in the 
resolution meeting, the parent may request the hearing officer to 
immediately convene the due process hearing without waiting for the 30-
day resolution period to expire.
    (iv) DoDEA shall have a 30-day resolution period, counted from the 
receipt of the complaint by the school principal, (15 days in the case 
of an expedited hearing request) within which to resolve the complaint 
to the satisfaction of the parents.
    (v) The resolution period may be adjusted because of one of the 
following events:
    (A) Both parties agree in writing to waive the resolution meeting.
    (B) After the resolution meeting starts, but before the end of the 
applicable resolution period, the parties agree in writing that no 
agreement is possible and agree to waive the balance of the resolution 
period.
    (C) Both parties agree in writing to continue the resolution meeting 
at the end of the applicable resolution period, but later the parent or 
the school withdraws from the resolution process.
    (vi) If a partial or complete resolution to the dispute is reached 
at the resolution meeting, the parties must execute a written agreement 
that is:
    (A) Signed by both the parents and a representative of the school 
with authority to bind the school to the terms of the agreement.

[[Page 234]]

    (B) Legally enforceable in a U.S. District Court of competent 
jurisdiction, unless the parties have voided the agreement within an 
agreement review period of 3 business days following the execution of 
the agreement.
    (vii) Discussions held, minutes, statements, and other records of a 
resolution meeting, and any final executed resolution agreement are not 
presumed confidential and therefore are discoverable and admissible in a 
due process proceeding, appeal proceeding, or civil proceeding, except 
when the parties have agreed to confidentiality.
    (viii) If DoDEA has not resolved the complaint to the satisfaction 
of the parents at the expiration of the resolution period or the 
adjusted resolution period, if applicable:
    (A) DoDEA shall provide written notice to the hearing officer, copy 
to the parents, within 3 business days (1 business day in the case of an 
expedited hearing) of the expiration of the resolution period or 
adjusted resolution period that the parties failed to reach agreement.
    (B) Upon receipt of that notification by the hearing officer, all of 
the applicable timelines for proceeding to a due process hearing under 
this section shall commence.
    (ix) If the parties execute a binding written agreement at the 
conclusion of the resolution period, and do not subsequently declare it 
void during the 3-business day agreement review period, then:
    (A) DoDEA shall provide written notice to the hearing officer, copy 
to the parents, at the conclusion of the agreement review period that 
the parties have reached an agreement for resolution of complaints set 
forth in the due process petition.
    (B) Upon receipt of that notification by the presiding hearing 
officer, no due process hearing shall proceed on the issues resolved.
    (8) The due process hearing--(i) Purpose. The purpose of the due 
process hearing is to establish the relevant facts necessary for the 
hearing officer to reach a fair and impartial determination of the case.
    (ii) Hearing officer duties. The hearing officer shall be the 
presiding officer, with judicial powers to manage the proceeding and 
conduct the hearing. Those powers shall include, but are not limited to, 
the authority to:
    (A) Determine the adequacy of pleadings.
    (B) Decide whether to allow amendment of pleadings, provided 
permission is granted to authorize the amendment not later than 5 days 
before a due process hearing occurs.
    (C) Rule on questions of timeliness and grant specific extension of 
time for good cause either on his or her own motion or at the request of 
either party.
    (1) Good cause includes the time required for mediation in 
accordance with paragraph (d)(4) of this section where the parties have 
jointly requested an extension of time in order to complete mediation.
    (2) If the hearing officer grants an extension of time, he or she 
shall identify the length of the extension and the reason for the 
extension in the record of the proceeding. Any such extension shall be 
excluded from the time required to convene a hearing or issue a final 
decision, and at the discretion of the hearing officer may delay other 
filing dates specified by this section.
    (D) Rule on requests for discovery and discovery disputes.
    (E) Order an evaluation of the child at the expense of the DoDEA 
school system or the Military Department concerned.
    (F) Rule on evidentiary issues.
    (G) Ensure a full and complete record of the case is developed.
    (H) Decide when the record in a case is closed.
    (I) Issue findings of fact and conclusions of law.
    (J) Issue a decision on substantive grounds based on a determination 
of whether the child received a FAPE. When the petition alleges a 
procedural violation, a hearing officer may find that a child did not 
receive a FAPE only if the procedural inadequacies:
    (1) Impeded the child's right to a FAPE;
    (2) Significantly impeded the parent's opportunity to participate in 
the decision-making process regarding the provision of FAPE to the 
child; or
    (3) Caused a deprivation of educational benefits.

[[Page 235]]

    (K) Order such relief as is necessary for the child to receive a 
FAPE or appropriate EIS, including ordering the DoDEA school system or 
the responsible Military Department to:
    (1) Correct a procedural deficiency that caused a denial of a FAPE 
or appropriate EIS;
    (2) Conduct evaluations or assessments and report to the hearing 
officer;
    (3) Change the school-aged child's placement or order the child to 
an AES for up to 45 days;
    (4) Provide EIS or specific school-age educational or related 
services to a child to remedy a denial of FAPE, including compensatory 
services when appropriate and in accordance with the current early 
intervention or educational program; or
    (5) Placement of a school-aged child in an appropriate residential 
program for children with disabilities at DoD expense, when appropriate 
under the law and upon a determination that DoDEA has failed to provide 
and cannot provide an otherwise eligible child with a FAPE at the 
appropriate DoD facility.
    (i) A residential program must be one that can address the specific 
needs of the child as determined by the DoDEA school.
    (ii) The program should, whenever possible, be located near members 
of the child's family.
    (9) Attendees at the hearing. Attendance at the hearing is limited 
to:
    (i) The parents and the counsel or personal representative of the 
parents.
    (ii) A representative of DoDEA or the EDIS concerned and the counsel 
representing DoDEA or the EDIS.
    (iii) Witnesses for the parties, including but not limited to the 
professional employees of DoDEA or the EDIS concerned and any expert 
witnesses.
    (iv) A person qualified to transcribe or record the proceedings.
    (v) Other persons with the agreement of the parties or the order of 
the hearing officer, in accordance with the privacy interests of the 
parents and the individual with disabilities.
    (10) Discovery. (i) Full discovery shall be available, with the 
Federal Rules of Civil Procedure, Rules 26-37, 28 U.S.C. appendix, 
serving as a guide to parties to a due process hearing or conducted in 
accordance with this part.
    (ii) If voluntary discovery cannot be accomplished, a party seeking 
discovery may file a motion with the hearing officer to accomplish 
discovery. The hearing officer shall grant an order to accomplish 
discovery upon a showing that the document or information sought is 
relevant or reasonably calculated to lead to the discovery of admissible 
evidence. An order granting discovery, or compelling testimony or the 
production of evidence shall be enforceable by all reasonable means 
within the authority of the hearing officer, to include the exclusion of 
testimony or witnesses, adverse inferences, and dismissal or summary 
judgment.
    (iii) Records compiled or created in the regular course of business, 
which have been provided to the opposing party at least 5 business days 
prior to the hearing, may be received and considered by the hearing 
officer without authenticating witnesses.
    (iv) A copy of the written or electronic transcription of a 
deposition taken by a Military Department or DoDEA shall be made 
available by the Military Department or DoDEA without charge to the 
opposing party.
    (11) Right to an open hearing. The parents, or child who has reached 
the age of majority, have the right to an open hearing upon waiving, in 
writing, their privacy rights and those of the individual with 
disabilities who is the subject of the hearing.
    (12) Location of hearing. Subject to modification by the hearing 
officer for good cause shown or upon the agreement of the parties, the 
hearing shall be held:
    (i) In the DoDEA school district attended by the child (ages 3 
through 21, inclusive):
    (ii) On the military installation of the EDIS serving infants and 
toddlers with disabilities; or
    (iii) At a suitable video teleconferencing facility convenient for 
the parents of the child involved in the hearing and available for the 
duration of a hearing.
    (13) Witnesses and documentary evidence. (i) At least 5 business 
days prior to a hearing, the parties shall exchange lists of all 
documents and materials

[[Page 236]]

that each party intends to use at the hearing, including all evaluations 
and reports. Each party also shall disclose the names of all witnesses 
it intends to call at a hearing along with a proffer of the anticipated 
testimony of each witness.
    (ii) At least 10 business days prior to a hearing, each party must 
provide the name, title, description of professional qualifications, and 
summary of proposed testimony of any expert witness it intends to call 
at the hearing.
    (iii) Failure to disclose documents, materials, or witnesses may 
result in the hearing officer barring their introduction at the hearing.
    (iv) Parties must limit evidence to the issues pleaded, except by 
order of the hearing officer or with the consent of the parties.
    (v) The rules of evidence shall be relaxed to permit the development 
of a full evidentiary record with the Federal Rules of Evidence, 28 
U.S.C. appendix, serving as guide.
    (vi) All witnesses testifying at the hearing shall be advised by the 
hearing officer that under 18 U.S.C. 1001, it is a criminal offense to 
knowingly and willfully make a materially false, fictitious, or 
fraudulent statement or representation to a department or agency of the 
U.S. Government as to any matter within the jurisdiction of that 
department or agency, and may result in a fine or imprisonment.
    (vii) A party calling a witness shall bear the witness' travel and 
incidental expenses associated with testifying at the hearing. The DoDEA 
school system or the Military Department concerned shall pay such 
expenses if a witness is called by the hearing officer.
    (viii) The parties shall have the right to cross-examine witnesses 
testifying at the hearing.
    (ix) The hearing officer may issue an order compelling a party to 
make a specific witness employed by or under control of the party 
available for testimony at the party's expense or to submit specific 
documentary or physical evidence for inspection by the hearing officer 
or for submission into the record on motion of either party or on the 
hearing officer's own motion.
    (x) When the hearing officer determines that a party has failed to 
obey an order to make a specific witness available for testimony or to 
submit specific documentary or physical evidence in accordance with the 
hearing officer's order, and that such failure is in knowing and willful 
disregard of the order, the hearing officer shall so certify as a part 
of the written record in the case and may order appropriate sanctions.
    (14) Transcripts. (i) A verbatim written transcription of any 
deposition taken by a party shall be provided to the opposing party in 
hardcopy written format or as attached to an electronic email with prior 
permission of the recipient. If a Military Department or DoDEA takes a 
deposition, the verbatim written transcript of that deposition shall be 
provided to the parent(s) without charge.
    (ii) A verbatim written transcription of the due process hearing 
shall be arranged by the hearing officer and shall be made available to 
the parties in hardcopy written format, or as an attachment to an 
electronic email, with prior permission of the recipient, on request and 
without cost to the parent(s), and a copy of the verbatim written 
transcript of the hearing shall become a permanent part of the record
    (15) Hearing officer's written decision. (i) The hearing officer 
shall make written findings of fact and conclusions of law and shall set 
forth both in a written decision addressing the issues raised in the due 
process complaint, the resolution of those issues, and the rationale for 
the resolution.
    (ii) The hearing officer's decision of the case shall be based on 
the record, which shall include the petition, the answer, the transcript 
of the hearing, exhibits admitted into evidence, pleadings or 
correspondence properly filed and served on all parties, and such other 
matters as the hearing officer may include in the record, if such matter 
is made available to all parties before the record is closed.
    (iii) The hearing officer shall file the written decision with the 
Director, DOHA, and additionally provide the Director, DOHA with a copy 
of that decision from which all personally identifiable information has 
been redacted.
    (iv) The Director, DOHA, shall forward to parents and to the DoDEA 
or

[[Page 237]]

the EDIS concerned, copies, unredacted and with all personally 
identifiable information redacted, of the hearing officer's decision.
    (v) The decision of the hearing officer shall become final unless a 
timely notice of appeal is filed in accordance with paragraph (d)(17) of 
this section.
    (vi) The DoDEA or the EDIS concerned shall implement the decision as 
soon as practicable after it becomes final.
    (16) Determination without hearing. (i) At the request of a parent 
of an infant or toddler, birth to 3 years of age, when EIS are at issue, 
or of a parent of a child age 3 through 21, inclusive, or child who has 
reached the age of majority, when special education (including related 
services) are at issue, the requirement for a hearing may be waived, and 
the case may be submitted to the hearing officer on written documents 
filed by the parties. The hearing officer shall make findings of fact 
and conclusions of law and issue a written decision within the period 
fixed by paragraph (d)(5)(x) of this section.
    (ii) DoDEA or the EDIS concerned may oppose a request to waive a 
hearing. In that event, the hearing officer shall rule on the request.
    (iii) Documentary evidence submitted to the hearing officer in a 
case determined without a hearing shall comply with the requirements of 
paragraph (d)(13) of this section. A party submitting such documents 
shall provide copies to all other parties.
    (17) Appeal of hearing officer decision. (i) A party may appeal the 
hearing officer's findings of fact and decision by filing a written 
notice of appeal within 15 business days of receipt of the hearing 
officer's decision with the Chairperson, DOHA Appeal Board by mail to 
P.O. Box 3656, Arlington, Virginia 22203, by fax to 703-696-1831, by 
email to [email protected], or by hand delivery to the 
office of the Chairperson, DOHA Appeal Board if approval from the 
Chairperson, DOHA Appeal Board is obtained in advance of delivery. The 
notice of appeal must contain the appealing party's certification that a 
copy of the notice of appeal has been provided to the other party by 
mail.
    (ii) Within 30 business days of filing the notice of appeal, the 
appealing party shall file a written statement of issues and arguments 
on appeal with the Chairperson, DOHA Appeal Board by mail to P.O. Box 
3656, Arlington, Virginia 22203, by fax to 703-696-1831, by email to 
[email protected], or by hand delivery to the office of 
the Chairperson, DOHA Appeal Board if approval from the Chairperson, 
DOHA Appeal Board is obtained in advance of filing. The appealing party 
shall deliver a copy to the other party by mail.
    (iii) The non-appealing party shall file any reply within 20 
business days of receiving the appealing party's statement of issues and 
arguments on appeal with the Chairperson, DOHA Appeal Board by mail to 
P.O. Box 3656, Arlington, Virginia 22203, by fax to 703-696-1831, by 
email to [email protected], or by hand delivery to the 
office of the Chairperson, DOHA Appeal Board if approval from the 
Chairperson, DOHA Appeal Board is obtained in advance of filing The non-
appealing party shall deliver a copy of the reply to the appealing party 
by mail.
    (iv) Appeal filings with DOHA are complete upon transmittal. It is 
the burden of the appealing party to provide timely transmittal to and 
receipt by DOHA.
    (v) The DOHA Appeal Board, shall issue a decision on all parties' 
appeals within 45 business days of receipt of the matter.
    (vi) The determination of the DOHA Appeal Board shall be a final 
administrative decision and shall be in written form. It shall address 
the issues presented and set forth a rationale for the decision reached. 
A determination denying the appeal of a parent in whole or in part shall 
state that the parent has the right, in accordance with the IDEA, to 
bring a civil action on the matters in dispute in a district court of 
the United States of competent jurisdiction without regard to the amount 
in controversy.
    (vii) No provision of this part or other DoD guidance may be 
construed as conferring a further right of administrative review. A 
party must exhaust all administrative remedies afforded by

[[Page 238]]

this section before seeking judicial review of a determination.
    (18) Maintenance of current educational placement. (i) Except when a 
child is in an interim AES for disciplinary reasons, during the pendency 
of any proceeding conducted pursuant to this section, unless the school 
and the parents otherwise agree, the child will remain in the then 
current educational placement.
    (ii) When the parent has appealed a decision to place a child in an 
interim AES, the child shall remain in the interim setting until the 
expiration of the prescribed period or the hearing officer makes a 
decision on placement, whichever occurs first, unless the parent and the 
school agree otherwise.
    (19) General hearing administration. The Director, DOHA, shall:
    (i) Exercise administrative responsibility for ensuring the 
timeliness, fairness, and impartiality of the hearing and appeal 
procedures to be conducted in accordance with this section.
    (ii) Appoint hearing officers from the DOHA Administrative judges 
who shall:
    (A) Be attorneys who are active members of the bar of the highest 
court of a State, U.S. Commonwealth, U.S. Territory, or the District of 
Columbia and permitted to engage in the active practice of law, who are 
qualified in accordance with DoD Instruction 1442.02, ``Personnel 
Actions Involving Civilian Attorneys'' (available at http://
www.dtic.mil/whs/directives/ corres/pdf/144202p.pdf).
    (B) Possess the knowledge of and ability to:
    (1) Understand the provisions of the IDEA and this part, and related 
Federal laws and legal interpretations of those regulations by Federal 
courts.
    (2) Conduct hearings in accordance with appropriate, standard legal 
practice.
    (3) Render and write decisions in accordance with the requirements 
of this part.
    (C) Be disqualified from presiding in any individual case if the 
hearing officer:
    (1) Has a personal or professional interest that conflicts with the 
hearing officer's objectivity in the hearing.
    (2) Is a current employee of, or military member assigned to, DoDEA 
or the Military Medical Department providing services in accordance with 
the IDEA and this part.
    (20) Publication and reporting of final decisions. The Director, 
DOHA, shall ensure that hearing officer and appeal board decisions in 
cases arising in accordance with this section are published and indexed 
with all personally identifiable information redacted to protect the 
privacy rights of the parents who are parties in the due process hearing 
and the children of such parents, in accordance with 32 CFR part 310.
    (21) Civil actions. Any party aggrieved by the final administrative 
decision of a due process complaint shall have the right to file a civil 
action in a district court of the United States of competent 
jurisdiction without regard to the amount in controversy. The party 
bringing the civil action shall have 90 days from the date of the 
decision of the hearing officer or, if applicable, the date of the 
decision of the DOHA Appeal Board, to file a civil action.
    (e) DoD-CC on early intervention, special education, and related 
services--(1) Committee membership. The DoD-CC shall meet at least 
annually to facilitate collaboration in early intervention, special 
education, and related services in the Department of Defense. The 
Secretary of Defense shall appoint representatives to serve on the DoD-
CC who shall be full-time or permanent part-time government employees or 
military members from:
    (i) USD(P&R), who shall serve as the Chair.
    (ii) Secretaries of the Military Departments.
    (iii) Defense Health Agency.
    (iv) DoDEA.
    (v) GC, DoD.
    (2) Responsibilities. The responsibilities of the DoD-CC include:
    (i) Implementation of a comprehensive, multidisciplinary program of 
EIS for infants and toddlers with disabilities and their families.
    (ii) Provision of a FAPE, including special education and related 
services, for children with disabilities who are enrolled full-time in 
the DoDEA school system, as specified in their IEP.

[[Page 239]]

    (iii) Designation of a subcommittee on compliance to:
    (A) Advise and assist the USD(P&R) in the performance of his or her 
responsibilities.
    (B) At the direction of the USD(P&R), advise and assist the Military 
Departments and DoDEA in the coordination of services among providers of 
early intervention, special education, and related services.
    (C) Monitor compliance in the provision of EIS for infants and 
toddlers and special education and related services for children ages 3 
to 21, inclusive.
    (D) Identify common concerns, facilitate coordination of effort, and 
forward issues requiring resolution to the USD(P&R).
    (E) Assist in the coordination of assignments of sponsors who have 
children with disabilities who are or who may be eligible for special 
education and related services through DoDEA or EIS through the Military 
Departments.
    (F) Perform other duties as assigned by the USD(P&R), including 
oversight for monitoring the delivery of services consistent with the 
IDEA and this part.
    (f) Monitoring--(1) Program monitoring and oversight. (i) The 
USD(P&R) shall monitor the implementation of the provisions of the IDEA 
and this part in the programs operated by the Department of Defense. The 
USD(P&R) will carry out his or her responsibilities under this section 
primarily through the DoD-CC.
    (ii) The primary focus of monitoring shall be on:
    (A) Improving educational results and functional outcomes for all 
children with disabilities.
    (B) Ensuring the DoD programs meet the requirements of the IDEA and 
this part.
    (iii) Monitoring shall include the following priority areas and any 
additional priority areas identified by the USD(P&R):
    (A) Provision of a FAPE in the LRE and the delivery of early 
intervention services.
    (B) Child-find.
    (C) Program management.
    (D) The use of dispute resolution including administrative 
complaints, due process and the mandatory resolution process, and 
voluntary mediation.
    (E) A system of transition services.
    (iv) The USD(P&R) shall develop quantifiable indicators in each of 
the priority areas and such qualitative indicators necessary to 
adequately measure performance.
    (v) DoDEA and the Military Departments shall establish procedures 
for monitoring special services and reviewing program compliance in 
accordance with the requirements of this section.
    (vi) By January 1 of each calendar year, the DoD-CC shall identify 
any additional information required to support compliance activities 
that will be included in the next annual compliance report to be 
submitted no later than September 30 of that year. The results of 
monitoring program areas described in paragraph (f)(1)(iii) of this 
section shall be reported in a manner that does not result in the 
disclosure of data identifiable to individual children.
    (2) Compliance reporting. The Director, DoDEA, and the Military 
Departments shall submit reports to the DoD-CC not later than September 
30 each year that summarize the status of compliance. The reports shall:
    (i) Identify procedures conducted at headquarters and at each 
subordinate level, including on-site visits, to evaluate compliance with 
the IDEA and this part.
    (ii) Summarize the findings and indicate the status of program 
compliance.
    (iii) Describe corrective actions required of the programs that did 
not meet the requirements of the IDEA and this part and identify the 
technical assistance that was or shall be provided to ensure compliance.
    (iv) Include applicable data on the operation of special education 
and early intervention in the Department of Defense. Data must be 
submitted in the format required by the DoD-CC to enable the aggregation 
of data across components. March 31 shall be the census date for 
counting children for the reporting period that begins on July 1 and 
ends on June 30 of the following year.
    (3) School level reporting. (i) The reporting requirements for 
school aged children (3 through 21, inclusive) with disabilities shall 
also include:

[[Page 240]]

    (A) Data to determine if significant disproportionality based on 
race and ethnicity is occurring with respect to:
    (1) The identification of school-aged children as children with 
disabilities including the identification of children as children with 
disabilities affected by a particular impairment described in paragraph 
(g) of this section.
    (2) The placement of these children in particular educational 
settings.
    (3) The incidence, duration, and type of disciplinary suspensions 
and expulsions.
    (4) Removal to an interim AES, the acts or items precipitating those 
removals, and the number of children with disabilities who are subject 
to long-term suspensions or expulsions.
    (5) The number and percentage of school-aged children with 
disabilities, by race, ethnicity, limited English proficiency status, 
gender, and disability category, who are:
    (i) Receiving special education and related services.
    (ii) Participating in regular education.
    (iii) In separate classes, separate schools or facilities, or public 
or private residential facilities.
    (B) The number of due process complaints requested, the number of 
hearings conducted, and the number of changes in placement ordered as a 
result of those hearings.
    (C) The number of mediations held and the number of settlement 
agreements reached through such mediations.
    (ii) For each year of age from age 16 through 21, children who 
stopped receiving special education and related services because of 
program completion (including graduation with a regular secondary school 
diploma) or other reasons, and the reasons why those children stopped 
receiving special education and related services.
    (4) Early intervention reporting. The reporting requirements for 
infants and toddlers with disabilities shall also include:
    (i) Data to determine if significant disproportionality based on 
race, gender, and ethnicity is occurring with respect to infants and 
toddlers with disabilities who:
    (A) Received EIS by criteria of developmental delay or a high 
probability of developing a delay.
    (B) Stopped receiving EIS because of program completion or for other 
reasons.
    (C) Received EIS in natural environments.
    (D) Received EIS in a timely manner as defined in paragraph (a) of 
this section.
    (ii) The number of due process complaints requested and the number 
of hearings conducted.
    (iii) The number of mediations held and the number of settlement 
agreements reached through such mediations.
    (5) USD(P&R) oversight. (i) On behalf of the USD(P&R), the DoD-CC 
shall make or arrange for periodic visits, not less than annually, to 
selected programs to ensure the monitoring process is in place; validate 
the compliance data and reporting; and address select focus areas 
identified by the DoD-CC and priority areas identified in paragraph 
(f)(1) of this section. The DoD-CC may use other means in addition to 
periodic visits to ensure compliance with the requirements established 
in this part.
    (ii) The DoD-CC shall identify monitoring team members to conduct 
monitoring activities.
    (iii) For DoD-CC monitoring visits, the Secretaries of the Military 
Departments shall:
    (A) Provide necessary technical assistance and logistical support to 
monitoring teams during monitoring visits to facilities for which they 
are responsible.
    (B) Provide necessary travel funding and support for their 
respective team members.
    (C) Cooperate with monitoring teams, including making all pertinent 
records available to the teams.
    (D) Promptly implement monitoring teams' recommendations concerning 
early intervention and related services for which the Secretary 
concerned has responsibility, including those to be furnished through an 
inter-Service agreement.
    (iv) For DoD-CC monitoring visits, the Director, DoDEA, shall:

[[Page 241]]

    (A) Provide necessary technical assistance and logistical support to 
monitoring teams during monitoring visits to facilities for which he or 
she is responsible.
    (B) Cooperate with monitoring teams, including making all pertinent 
records available to the teams.
    (C) Promptly implement monitoring teams' recommendations concerning 
special education and related services for which the DoDEA school system 
concerned has responsibility.
    (v) The ASD(HA) shall provide technical assistance to the DoD 
monitoring teams when requested.
    (vi) The GC, DoD shall:
    (A) Provide legal counsel to the USD(P&R), and, where appropriate, 
to DoDEA, monitored agencies, and monitoring teams regarding monitoring 
activities conducted pursuant to this part.
    (B) Provide advice about the legal requirements of this part and 
Federal law to the DoDEA school systems, military medical commanders, 
military installation commanders, and to other DoD personnel as 
appropriate, in connection with monitoring activities conducted pursuant 
to this part.
    (g) Types of disabilities in children ages 3 through 21. A child may 
be eligible for services under paragraph (b) of this section if by 
reason of one of the following disabilities the child needs special 
education and related services.
    (1) Autism Spectrum Disorder. A developmental disability 
significantly affecting verbal and nonverbal communication and social 
interaction that adversely affects a child's educational performance. 
Other characteristics often associated with autism are engagement in 
repetitive activities and stereotyped movements, resistance to 
environmental change or change in daily routines, and unusual responses 
to sensory experiences. Essential features are typically but not 
necessarily manifested before age 3. Autism may include autism spectrum 
disorders such as but not limited to autistic disorder, pervasive 
developmental disorder not otherwise specified, and Asperger's syndrome. 
The term does not apply if a child's educational performance is 
adversely affected primarily because the child has an emotional 
disturbance.
    (2) Deafness. A hearing loss or deficit so severe that it impairs a 
child's ability to process linguistic information through hearing, with 
or without amplification, and affects the child's educational 
performance adversely.
    (3) Deaf-blindness. A combination of hearing and visual impairments 
causing such severe communication, developmental, and educational needs 
that the child cannot be accommodated in programs specifically for 
children with deafness or children with blindness.
    (4) Developmental delay. A significant discrepancy, as defined and 
measured in accordance with paragraph (a)(4)(ii)(A) and confirmed by 
clinical observation and judgment, in the actual functioning of a child, 
birth through age 7, or any subset of that age range including ages 3 
through 5, when compared with the functioning of a non-disabled child of 
the same chronological age in any of the following developmental areas: 
Physical, cognitive, communication, social or emotional, or adaptive 
development. A child determined to have a developmental delay before the 
age of 7 may maintain that eligibility through age 9.
    (5) Emotional disturbance. A condition confirmed by clinical 
evaluation and diagnosis and that, over a long period of time and to a 
marked degree, adversely affects educational performance and exhibits 
one or more of the following characteristics:
    (i) Inability to learn that cannot be explained by intellectual, 
sensory, or health factors.
    (ii) Inability to build or maintain satisfactory interpersonal 
relationships with peers and teachers.
    (iii) Inappropriate types of behavior or feelings under normal 
circumstances.
    (iv) A general pervasive mood of unhappiness or depression.
    (v) A tendency to develop physical symptoms or fears associated with 
personal or school problems.
    (vi) Includes children who are schizophrenic, but does not include 
children who are socially maladjusted unless it is determined they are 
emotionally disturbed.
    (6) Hearing impairment. An impairment in hearing, whether permanent 
or fluctuating, that adversely affects a

[[Page 242]]

child's educational performance but is not included under the definition 
of deafness.
    (7) Intellectual disability. Significantly below-average general 
intellectual functioning, existing concurrently with deficits in 
adaptive behavior. This disability is manifested during the 
developmental period and adversely affects a child's educational 
performance.
    (8) Orthopedic impairment. A severe orthopedic impairment that 
adversely affects a child's educational performance. That term includes 
congenital impairments such as club foot or absence of some member; 
impairments caused by disease, such as poliomyelitis and bone 
tuberculosis; and impairments from other causes such as cerebral palsy, 
amputations, and fractures or burns causing contractures.
    (9) Other health impairment. Limited strength, vitality, or 
alertness including a heightened alertness to environmental stimuli that 
results in limited alertness with respect to the educational 
environment, that is due to chronic or acute health problems and that 
adversely affects a child's educational performance. Such impairments 
may include, but are not necessarily limited to, attention deficit 
disorder, attention deficit hyperactivity disorder, heart condition, 
tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, 
hemophilia, seizure disorder, lead poisoning, leukemia, or diabetes.
    (10) Specific learning disability. A disorder in one or more of the 
basic psychological processes involved in understanding or in using 
spoken or written language that may manifest itself as an imperfect 
ability to listen, think, speak, read, write, spell, remember, or do 
mathematical calculations. That term includes such conditions, 
recognizing that they may have been otherwise labeled with terms such as 
perceptual disabilities, brain injury, minimal brain dysfunction, 
dyslexia, and developmental aphasia. This term does not include learning 
problems that are primarily the result of visual, hearing, or motor 
disabilities; intellectual disability; emotional disturbance; or 
environmental, cultural, or economic differences.
    (11) Speech or language impairments. A communication disorder such 
as stuttering; impaired articulation; limited, impaired or delayed 
capacity to use expressive and/or receptive language; or a voice 
impairment that adversely affects a child's educational performance.
    (12) Traumatic brain injury. An acquired injury to the brain caused 
by an external physical force resulting in total or partial functional 
disability or psychosocial impairment (or both) that adversely affects 
educational performance. Includes open or closed head injuries resulting 
in impairments in one or more areas including cognition, language, 
memory, attention, reasoning, abstract thinking, judgment, problem 
solving, sensory, perceptual and motor abilities, psychosocial behavior, 
physical function, information processing, and speech. The term does not 
include brain injuries that are congenital or degenerative or brain 
injuries that are induced by birth trauma.
    (13) Visual impairment, including blindness. An impairment of vision 
that, even with correction, adversely affects a child's educational 
performance. Term includes both partial sight and blindness. DoD also 
recognizes that a child may be eligible for services under paragraph (b) 
if they demonstrate ``Multiple Disabilities'' which DoD defines as: 
``Concomitant impairments (such as intellectual disability-blindness or 
intellectual disability-orthopedic impairment), the combination of which 
causes such severe educational needs that they cannot be accommodated in 
special education programs solely for one of the impairments. Multiple 
disabilities does not include deaf-blindness, which is set forth as its 
own type of disability at Sec.  57.6(g)(3).



PART 60_FAMILY ADVOCACY COMMAND ASSISTANCE TEAM (FACAT)-
-Table of Contents



Sec.
60.1 Purpose.
60.2 Applicability.
60.3 Definitions.
60.4 Policy.
60.5 Responsibilities.
60.6 Procedures.

    Authority: 10 U.S.C. 1794; 42 U.S.C. 13031.

[[Page 243]]


    Source: 79 FR 25676, May 6, 2014, unless otherwise noted.



Sec.  60.1  Purpose.

    This part establishes policy, assigns responsibilities, and 
prescribes procedures for implementation and use of the FACAT in 
accordance with 10 U.S.C. 1794.



Sec.  60.2  Applicability.

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



Sec.  60.3  Definitions.

    Unless otherwise noted, these terms and their definitions are for 
the purpose of this part.
    Child. An unmarried person under 18 years of age for whom a parent, 
guardian, foster parent, caregiver, employee of a residential facility, 
or any staff person providing out-of-home care is legally responsible. 
The term ``child'' means a biological child, adopted child, stepchild, 
foster child, or ward. The term also includes a sponsor's family member 
(except the sponsor's spouse) of any age who is incapable of self-
support because of a mental or physical incapacity, and for whom 
treatment in a DoD medical treatment program is authorized.
    Child abuse. The physical or sexual abuse, emotional abuse, or 
neglect of a child by a parent, guardian, foster parent, or by a 
caregiver, whether the caregiver is intrafamilial or extrafamilial, 
under circumstances indicating the child's welfare is harmed or 
threatened. Such acts by a sibling, other family member, or other person 
shall be deemed to be child abuse only when the individual is providing 
care under express or implied agreement with the parent, guardian, or 
foster parent.
    Child sexual abuse. The employment, use, persuasion, inducement, 
enticement, or coercion of any child to engage in, or assist any other 
person to engage in, any sexually explicit conduct or simulation of such 
conduct for the purpose of producing a visual depiction of such conduct; 
or the rape, and in cases of caretaker or inter-familial relationships, 
statutory rape, molestation, prostitution, or other form of sexual 
exploitation of children, or incest with children.
    DoD-sanctioned activity. A U.S. Government activity or a 
nongovernmental activity authorized by appropriate DoD officials to 
perform child care or supervisory functions on DoD controlled property. 
The care and supervision of children may be either its primary mission 
or incidental in carrying out another mission (e.g., medical care). 
Examples include Child Development Centers, Department of Defense 
Dependents Schools, Youth Activities, School Age/Latch Key Programs, 
Family Day Care providers, and child care activities that may be 
conducted as a part of a chaplain's program or as part of another 
Morale, Welfare, or Recreation Program.
    FACAT. A multidisciplinary team composed of specially trained and 
experienced individuals who are on-call to provide advice and assistance 
on cases of child sexual abuse that involve DoD-sanctioned activities.
    Family Advocacy Program Director (FAPD). An individual designated by 
the Secretary of the Military Department or the head of another DoD 
Component to manage, monitor, and coordinate the FAP at the headquarters 
level.
    Family Advocacy Program Manager (FAPM). An individual designated by 
the Secretary of the Military Department to manage, monitor, and 
coordinate the FAP at the headquarters level.
    Military criminal investigative organization (MCIO). U.S. Army 
Criminal Investigation Command, Naval Criminal Investigative Service, 
and Air Force Office of Special Investigations.
    Out-of-home care. The responsibility of care for and/or supervision 
of a child

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in a setting outside the child's home by an individual placed in a 
caretaker role sanctioned by a DoD Component or authorized by a DoD 
Component as a provider of care. Examples include a child development 
center, school, recreation program, family child care, and child care 
activities that may be conducted as a part of a chaplain's program or as 
part of another morale, welfare, or recreation program.



Sec.  60.4  Policy.

    It is DoD policy to:
    (a) Provide a safe and secure environment for DoD personnel and 
their families by promoting the prevention, early identification, and 
intervention in all allegations of child abuse and neglect in accordance 
with DoD Directive 6400.1, ``Family Advocacy Program (FAP)'' (see http:/
/www.dtic.mil/whs/directives/ corres/pdf/640001p.pdf).
    (b) Promote early identification and intervention in allegations of 
extrafamilial child sexual abuse in accordance with DoD Directive 6400.1 
as it applies to DoD-sanctioned activities.
    (c) Provide a coordinated and comprehensive DoD response through the 
deployment of the FACAT to assist the Military Department upon DoD 
Component request to address allegations of extrafamilial child sexual 
abuse in DoD-sanctioned activities.
    (d) Foster cooperation among the DoD, other Federal agencies, and 
responsible civilian authorities when addressing allegations of 
extrafamilial child sexual abuse in DoD-sanctioned activities.
    (e) Promote timely and comprehensive reporting of all incidents 
covered by this part.
    (f) As appropriate, actively seek prosecution of alleged 
perpetrators to the fullest extent of the law.
    (g) Ensure that personally identifiable information, to include 
protected health information collected, used, and released by covered 
entities in the execution of this part is protected as required by DoD 
6025.18-R, ``DoD Health Information Privacy Regulation'' (see http://
www.dtic.mil/whs/directives/ corres/pdf/602518r.pdf) and 5 U.S.C. 552a 
as implemented in the Department of Defense by 32 CFR part 310.



Sec.  60.5  Responsibilities.

    (a) The Deputy Assistant Secretary of Defense for Military Community 
and Family Policy (DASD(MC&FP)), under the authority, direction, and 
control of the Assistant Secretary of Defense for Readiness and Force 
Management, shall:
    (1) Monitor compliance with this part.
    (2) Train, maintain, and support a team of full-time or permanent 
part-time federal officers or employees from various disciplines to 
comprise the FACAT and respond to child sexual abuse in DoD-sanctioned 
activities.
    (3) Develop and coordinate criteria for determining the appropriate 
professional disciplines, support staff, and the required capabilities 
of FACAT members.
    (4) Ensure that policies and guidelines on activation and use of the 
FACAT are shared and coordinated with the DoD Components.
    (5) Program, budget, and allocate funds for the FACAT.
    (6) Appoint the chief of the FACAT and team members, and provide 
required logistical support when the FACAT is deployed.
    (7) Coordinate the management and interaction of this effort with 
other Federal and civilian agencies as necessary.
    (8) Foster general awareness of FACAT goals and responsibilities.
    (b) The Secretaries of the Military Departments shall:
    (1) Ensure compliance with this part throughout their respective 
Departments.
    (2) Establish departmental procedures to implement with this part.
    (3) Designate nominees for the FACAT upon request and ensure 
replacements are nominated when vacancies are indicated.
    (4) Ensure that commanders and staff are aware of the availability 
and proper use of the FACAT and the procedures for requesting a FACAT to 
assist in addressing extrafamilial child sexual abuse allegations 
covered by this part.
    (5) Encourage timely and comprehensive reporting in accordance with 
this part.

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Sec.  60.6  Procedures.

    (a) Reporting requirements. Any person with a reasonable belief that 
an incident of child abuse has occurred in a DoD-sanctioned activity 
must report it to:
    (1) The appropriate civilian agency in accordance with 42 U.S.C. 
13031 and 28 CFR 81.1-81.5.
    (2) The installation FAP as required by DoD Directive 6400.1.
    (b) Notification of suspected abuse--(1) Physical or emotional abuse 
or neglect. If a report of suspected child physical abuse, emotional 
abuse, or neglect in a DoD-sanctioned activity is made to the FAP, the 
FAPM shall:
    (i) Notify the appropriate military or civilian law enforcement 
agency, or multiple law enforcement agencies as appropriate.
    (ii) Contact the appropriate civilian child protective services 
agency, if any, to request assistance.
    (2) Sexual abuse. If a report of suspected child sexual abuse in a 
DoD-sanctioned activity is made to the FAP, the FAPM, in addition to the 
procedures noted in paragraph (b)(1) of this section, shall:
    (i) Immediately notify the servicing MCIO and civilian law 
enforcement as appropriate.
    (ii) Forward the report DD Form 2951, ``Initial Report of Suspected 
Child Sexual Abuse in DoD Operated or Sponsored Activities,'' required 
by 10 U.S.C. 1794 through DoD Component FAP channels to the DASD(MC&FP) 
within 72 hours.
    (iii) Consult with the person in charge of the DoD-sanctioned 
activity and the appropriate law enforcement agency to estimate the 
number of potential victims and determine whether an installation 
response team may be appropriate to address the investigative, medical, 
psychological, and public affairs issues that may arise.
    (iv) Notify the installation commander of the allegation and 
recommend whether an installation response team may be appropriate to 
assess the current situation and coordinate the installation's response 
to the incidents.
    (v) Submit a written follow-up report using DD Form 2952, ``Closeout 
Report of Suspected Child Sexual Abuse in DoD Operated or Sponsored 
Activities,'' through DoD Component channels regarding all allegations 
of child sexual abuse to the DASD(MC&FP) when:
    (A) There have been significant changes in the status of the case;
    (B) There are more than five potential victims;
    (C) The sponsors of the victims are from different Military Services 
or DoD Components;
    (D) There is increased community sensitivity to the allegation; or
    (E) The DASD(MC&FP) has requested a follow-up report.
    (c) Requesting a FACAT. An installation commander may request a 
FACAT through appropriate DoD Component channels from the DASD(MC&FP) 
when alleged child sexual abuse by a care provider in a DoD-sanctioned-
activity has been reported and at least one of the following apply:
    (1) Additional personnel are needed to:
    (i) Fully investigate a report of child sexual abuse by a care 
provider or employee in a DoD-sanctioned activity;
    (ii) Assess the needs of the child victims and their families; or
    (iii) Provide supportive treatment to the child victims and their 
families.
    (2) The victims are from different Military Services or DoD 
Components, or there are multiple care providers who are the subjects of 
the report from different Military Services or DoD Components.
    (3) Significant issues in responding to the allegations have arisen 
between the Military Services or DoD Components and other Federal 
agencies or civilian authorities.
    (4) The situation has potential for widespread public interest that 
could negatively impact performance of the DoD mission.
    (d) Deployment of a FACAT. (1) The DASD(MC&FP) shall deploy a FACAT 
at the request of a DoD Component.
    (2) The DASD(MC&FP) may deploy a FACAT at the request of the Head of 
the DoD Component without a request from the installation commander. 
Such circumstances include a case where:
    (i) The victims are from different Military Services or DoD 
Components, or there are multiple care providers

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who are the subjects of the report from different Military Services or 
DoD Components;
    (ii) Significant issues in responding to the allegations have arisen 
between the Military Services or DoD Components and other Federal 
agencies or civilian authorities; or
    (iii) The situation has potential for widespread public interest 
that could negatively impact performance of the DoD mission.
    (3) The DASD(MC&FP) shall configure the FACAT based on the 
information and recommendations of the requestor, the installation FAPM, 
and the FAPD of the DoD Component.
    (4) The DASD(MC&FP) shall:
    (i) Request the FAPDs to identify several individuals from the FACAT 
roster who are available for deployment.
    (ii) Request, through the appropriate channels of the DoD Component, 
that the individuals' supervisors release them from normal duty 
positions to serve on temporary duty with the deploying FACAT.
    (5) The DASD(MC&FP) shall provide fund citations to the FACAT 
members for their travel orders and per diem and shall provide 
information regarding travel arrangements. The FACAT members shall be 
responsible for preparing travel orders and making travel arrangements.
    (6) FACAT members who are subject to DoD Instruction 6025.13, 
``Medical Quality Assurance (MQA) and Clinical Quality Management in the 
Military Health System (MHS)'' (see http://www.dtic.mil/whs/directives/ 
corres/pdf/602513p.pdf) shall be responsible for arranging temporary 
clinical privileges in accordance with DoD 6025.13-R, ``Military Health 
System (MHS) Clinical Quality Assurance (CQA) Program Regulation'' (see 
http://www.dtic.mil/whs/directives/ corres/pdf/602513r.pdf) at the 
installation to which they shall be deployed.
    (e) FACAT tasks. The FACAT shall meet with the installation's 
commanding officer, the MCIO, or designated response team to assess the 
current situation and assist in coordinating the installation's response 
to the incidents. Depending on the composition of the team, such tasks 
may include:
    (1) Investigating the allegations.
    (2) Conducting medical and mental health assessment of the victims 
and their families.
    (3) Developing and implementing plans to provide appropriate 
treatment and support for the victims and their families and for the 
non-abusing staff of the DoD-sanctioned activity.
    (4) Coordinating with local officials to manage public affairs 
tasks.
    (f) Reports of FACAT activities. The FACAT chief shall prepare three 
types of reports:
    (1) Daily briefs for the installation commander or designee.
    (2) Periodic updates to the FAPD of the DoD Component and to the 
DASD(MC&FP).
    (3) An after-action brief for the installation commander briefed at 
the completion of the deployment and transmitted to the DASD(MC&FP) and 
the FAPD of the DoD Component.



PART 61_FAMILY ADVOCACY PROGRAM (FAP)--Table of Contents



                 Subpart A_Family Advocacy Program (FAP)

Sec.
61.1 Purpose.
61.2 Applicability.
61.3 Definitions.
61.4 Policy.
61.5 Responsibilities.
61.6 Procedures.

                         Subpart B_FAP Standards

61.7 Purpose.
61.8 Applicability.
61.9 Definitions.
61.10 Policy.
61.11 Responsibilities.
61.12 Procedures.

Subparts C-D [Reserved]

 Subpart E_Guidelines for Clinical Intervention for Persons Reported as 
                            Domestic Abusers

61.25 Purpose.
61.26 Applicability.
61.27 Definitions.
61.28 Policy.
61.29 Responsibilities.
61.30 Procedures.

[[Page 247]]



                 Subpart A_Family Advocacy Program (FAP)

    Authority: 5 U.S.C. 552a; 10 U.S.C. 1058(b), 1783, 1787, and 1794; 
Public Law 103-337, Section 534(d)(2).

    Source: 80 FR 11780, Mar. 4, 2015, unless otherwise noted.



Sec.  61.1  Purpose.

    This part is composed of several subparts, each containing its own 
purpose. This subpart establishes policy and assigns responsibilities 
for addressing child abuse and domestic abuse through the FAP.



Sec.  61.2  Applicability.

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



Sec.  61.3  Definitions.

    Unless otherwise noted, these terms and their definitions are for 
the purposes of this subpart.
    Alleged abuser. An individual reported to the FAP for allegedly 
having committed child abuse or domestic abuse.
    Child. An unmarried person under 18 years of age for whom a parent, 
guardian, foster parent, caregiver, employee of a residential facility, 
or any staff person providing out-of-home care is legally responsible. 
The term means a biological child, adopted child, stepchild, foster 
child, or ward. The term also includes a sponsor's family member (except 
the sponsor's spouse) of any age who is incapable of self-support 
because of a mental or physical incapacity, and for whom treatment in a 
DoD medical treatment program is authorized.
    Child abuse. The physical or sexual abuse, emotional abuse, or 
neglect of a child by a parent, guardian, foster parent, or by a 
caregiver, whether the caregiver is intrafamilial or extrafamilial, 
under circumstances indicating the child's welfare is harmed or 
threatened. Such acts by a sibling, other family member, or other person 
shall be deemed to be child abuse only when the individual is providing 
care under express or implied agreement with the parent, guardian, or 
foster parent.
    DoD-sanctioned activity. A DoD-sanctioned activity is defined as a 
U.S. Government activity or a nongovernmental activity authorized by 
appropriate DoD officials to perform child care or supervisory functions 
on DoD controlled property. The care and supervision of children may be 
either its primary mission or incidental in carrying out another mission 
(e.g., medical care). Examples include Child Development Centers, 
Department of Defense Dependents Schools, or Youth Activities, School 
Age/Latch Key Programs, Family Day Care providers, and child care 
activities that may be conducted as a part of a chaplain's program or as 
part of another Morale, Welfare, or Recreation Program.
    Domestic abuse. Domestic violence or a pattern of behavior resulting 
in emotional/psychological abuse, economic control, and/or interference 
with personal liberty that is directed toward a person who is:
    (1) A current or former spouse.
    (2) A person with whom the abuser shares a child in common; or
    (3) A current or former intimate partner with whom the abuser shares 
or has shared a common domicile.
    Domestic violence. An offense under the United States Code, the 
Uniform Code of Military Justice (UCMJ), or State law involving the use, 
attempted use, or threatened use of force or violence against a person, 
or a violation of a lawful order issued for the protection of a person 
who is:
    (1) A current or former spouse.
    (2) A person with whom the abuser shares a child in common; or
    (3) A current or former intimate partner with whom the abuser shares 
or has shared a common domicile.
    Family Advocacy Command Assistance Team (FACAT). A multidisciplinary 
team composed of specially trained and experienced individuals who are 
on-call to provide advice and assistance on

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cases of child sexual abuse that involve DoD-sanctioned activities.
    Family advocacy committee (FAC). The policy-making, coordinating, 
recommending, and overseeing body for the installation FAP.
    FAP. A program designed to address prevention, identification, 
evaluation, treatment, rehabilitation, follow-up, and reporting of 
family violence. FAPs consist of coordinated efforts designed to prevent 
and intervene in cases of family distress, and to promote healthy family 
life.
    Family Advocacy Program Manager (FAPM). An individual designated by 
a Secretary of a Military Department or the head of another DoD 
Component to manage, monitor, and coordinate the FAP at the headquarters 
level.
    Incident determination committee (IDC). A multidisciplinary team of 
designated individuals working at the installation level, tasked with 
determining whether a report of domestic abuse or child abuse meets the 
relevant DoD criteria for entry into the Service FAP Central Registry as 
child abuse and domestic abuse incident. Formerly known as the Case 
Review Committee.
    Incident status determination. The IDC determination of whether or 
not the reported incident meets the relevant criteria for alleged child 
abuse or domestic abuse for entry into the Service FAP central registry 
of child abuse and domestic abuse reports.
    New Parent Support Program (NPSP). A standardized secondary 
prevention program under the FAP that delivers intensive, voluntary, 
strengths based home visitation services designed specifically for 
expectant parents and parents of children from birth to 3 years of age 
to reduce the risk of child abuse and neglect.
    Restricted reporting. A process allowing an adult victim of domestic 
abuse, who is eligible to receive military medical treatment, including 
civilians and contractors who are eligible to receive military 
healthcare outside the Continental United States on a reimbursable 
basis, the option of reporting an incident of domestic abuse to a 
specified individual without initiating the investigative process or 
notification to the victim's or alleged offender's commander.
    Unrestricted reporting. A process allowing a victim of domestic 
abuse to report an incident using current reporting channels, e.g. chain 
of command, law enforcement or criminal investigative organization, and 
FAP for clinical intervention.



Sec.  61.4  Policy.

    It is DoD policy to:
    (a) Promote public awareness and prevention of child abuse and 
domestic abuse.
    (b) Provide adult victims of domestic abuse with the option of 
making restricted reports to domestic abuse victim advocates and to 
healthcare providers in accordance with DoD Instruction 6400.06, 
``Domestic Abuse Involving DoD Military and Certain Affiliated 
Personnel'' (available at http://www.dtic.mil/whs/directives/ corres/
pdf/640006p.pdf).
    (c) Promote early identification; reporting options; and 
coordinated, comprehensive intervention, assessment, and support to:
    (1) Victims of suspected child abuse, including victims of extra-
familial child abuse.
    (2) Victims of domestic abuse.
    (d) Provide assessment, rehabilitation, and treatment, including 
comprehensive abuser intervention.
    (e) Provide appropriate resource and referral information to persons 
who are not covered by this subpart, who are victims of alleged child 
abuse or domestic abuse.
    (f) Cooperate with responsible federal and civilian authorities and 
organizations in efforts to address the problems to which this subpart 
applies.
    (g) Ensure that personally identifiable information (PII) collected 
in the course of FAP activities is safeguarded to prevent any 
unauthorized use or disclosure and that the collection, use, and release 
of PII is in compliance with 5 U.S.C. 552a.
    (h) Develop program standards (PSs) and critical procedures for the 
FAP that reflect a coordinated community risk management approach to 
child abuse and domestic abuse.

[[Page 249]]

    (i) Provide appropriate individualized and rehabilitative treatment 
that supplements administrative or disciplinary action, as appropriate, 
to persons reported to FAP as domestic abusers.
    (j) Maintain a central child abuse and domestic abuse database to:
    (1) Analyze the scope of child abuse and domestic abuse, types of 
abuse, and information about victims and alleged abusers to identify 
emerging trends, and develop changes in policy to address child abuse 
and domestic abuse.
    (2) Support the requirements of DoD Instruction 1402.5, ``Criminal 
History Background Checks on Individuals in Child Care Services'' 
(available at http://www.dtic.mil/whs/directives/ corres/pdf/
140205p.pdf).
    (3) Support the response to public, congressional, and other 
government inquiries.
    (4) Support budget requirements for child abuse and domestic abuse 
program funding.



Sec.  61.5  Responsibilities.

    (a) The Under Secretary of Defense for Personnel and Readiness 
(USD(P&R)) will:
    (1) Collaborate with the DoD Component heads to establish programs 
and guidance to implement the FAP elements and procedures in Sec.  61.6 
of this subpart.
    (2) Program, budget, and allocate funds and other resources for FAP, 
and ensure that such funds are only used to implement the policies 
described in Sec.  61.6 of this subpart.
    (b) Under the authority, direction, and control of the USD(P&R), the 
Assistant Secretary of Defense for Readiness and Force Management 
(ASD(R&FM)) or designee will review FAP instructions and policies prior 
to USD(P&R) signature.
    (c) Under the authority, direction, and control of the USD(P&R) 
through the ASD(R&FM), the Deputy Assistant Secretary of Defense for 
Military Community and Family Policy (DASD(MC&FP)) will:
    (1) Develop DoD-wide FAP policy, coordinate the management of FAP 
with other programs serving military families, collaborate with federal 
and State agencies addressing FAP issues, and serve on intra-
governmental advisory committees that address FAP-related issues.
    (2) Ensure that the information included in notifications of extra-
familial child sexual abuse in DoD-sanctioned activities is retained for 
1 month from the date of the initial report to determine whether a 
request for a FACAT in accordance with DoD Instruction 6400.03, ``Family 
Advocacy Command Assistance Team'' (available at http://www.dtic.mil/
whs/directives/ corres/pdf/640003p.pdf) may be forthcoming.
    (3) Monitor and evaluate compliance with this subpart.
    (4) Review annual summaries of accreditation/inspection reviews 
submitted by the Military Departments.
    (5) Convene an annual DoD Accreditation/Inspection Review Summit to 
review and respond to the findings and recommendations of the Military 
Departments' accreditation/inspection reviews.
    (d) The Secretaries of the Military Departments will:
    (1) Establish DoD Component policy and guidance on the development 
of FAPs, including case management and monitoring of the FAP consistent 
with 10 U.S.C. 1058(b), this subpart, and published FAP guidance, 
including DoD Instruction 6400.06 and DoD 6400.1-M, ``Family Advocacy 
Program Standards and Self-Assessment Tool'' (available at http://
www.dtic.mil/whs/directives/ corres/pdf/640001m.pdf).
    (2) Designate a FAPM to manage the FAP. The FAPM will have, at a 
minimum:
    (i) A masters or doctoral level degree in the behavioral sciences 
from an accredited U.S. university or college.
    (ii) The highest licensure in good standing by a State regulatory 
board in either social work, psychology, or marriage and family therapy 
that authorizes independent clinical practice.
    (iii) 5 years of post-license experience in child abuse and domestic 
abuse.
    (iv) 3 years of experience supervising licensed clinicians in a 
clinical program.
    (3) Coordinate efforts and resources among all activities serving 
families to promote the optimal delivery of services and awareness of 
FAP services.

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    (4) Establish standardized criteria, consistent with DoD Instruction 
6025.13, ``Medical Quality Assurance (MQA) and Clinical Quality 
Management in the Military Health System (MHS)'' (available at http://
www.dtic.mil/whs/directives/ corres/pdf/602513p.pdf) and DoD 6025.13-R, 
``Military Health System (MHS) Clinical Quality Assurance (CQA) 
Program'' (available at http://www.dtic.mil/whs/directives/ corres/pdf/
602513r.pdf), for selecting and certifying FAP healthcare and social 
service personnel who provide clinical services to individuals and 
families. Such staff will be designated as healthcare providers who may 
receive restricted reports from victims of domestic abuse as set forth 
in DoD Instruction 6400.06.
    (5) Establish a process for an annual summary of installation 
accreditation/inspection reviews of installation FAP.
    (6) Ensure that installation commanders or Service-equivalent senior 
commanders or their designees:
    (i) Appoint persons at the installation level to manage and 
implement the local FAPs, establish local FACs, and appoint the members 
of IDCs in accordance with DoD 6400.1-M and supporting guidance issued 
by the USD(P&R).
    (ii) Ensure that the installation FAP meets the standards in DoD 
6400.1-M.
    (iii) Ensure that the installation FAP immediately reports 
allegations of a crime to the appropriate law enforcement authority.
    (7) Notify the DASD(MC&FP) of any cases of extra-familial child 
sexual abuse in a DoD-sanctioned activity within 72 hours in accordance 
with the procedures in Sec.  61.6 of this subpart.
    (8) Submit accurate quarterly child abuse and domestic abuse 
incident data from the DoD Component FAP central registry of child abuse 
and domestic abuse incidents to the Director of the Defense Manpower 
Data Center in accordance with DoD 6400.1-M-1, ``Manual for Child 
Maltreatment and Domestic Abuse Incident Reporting System'' (available 
at http://www.dtic.mil/whs/directives/ corres/pdf/640001m1.pdf).
    (9) Submit reports of DoD-related fatalities known or suspected to 
have resulted from an act of domestic abuse; child abuse; or suicide 
related to an act of domestic abuse or child abuse on DD Form 2901, 
``Child Abuse or Domestic Violence Related Fatality Notification,'' by 
fax to the number provided on the form in accordance with DoD 
Instruction 6400.06 or by other method as directed by the DASD(MC&FP). 
The DD Form 2901 can be found at http://www.dtic.mil/whs/ directives/
infomgt/forms/ formsprogram.htm.
    (10) Ensure that fatalities known or suspected to have resulted from 
acts of child abuse or domestic violence are reviewed annually in 
accordance with DoD Instruction 6400.06.
    (11) Ensure the annual summary of accreditation/inspection reviews 
of installation FAPs are forwarded to OSD FAP as directed by 
DASD(MC&FP).
    (12) Provide essential data and program information to the USD(P&R) 
to enable the monitoring and evaluation of compliance with this subpart 
in accordance with DoD 6400.1-M-1.
    (13) Ensure that PII collected in the course of FAP activities is 
safeguarded to prevent any unauthorized use or disclosure and that the 
collection, use, and release of PII is in compliance with 5 U.S.C. 552a, 
also known as ``The Privacy Act of 1974,'' as implemented in the DoD by 
32 CFR part 310).



Sec.  61.6  Procedures.

    (a) FAP Elements. FAP requires prevention, education, and training 
efforts to make all personnel aware of the scope of child abuse and 
domestic abuse problems and to facilitate cooperative efforts. The FAP 
will include:
    (1) Prevention. Efforts to prevent child abuse and domestic abuse, 
including public awareness, information and education about the problem 
in general, and the NPSP, in accordance with DoD Instruction 6400.05, 
specifically directed toward potential victims, offenders, non-offending 
family members, and mandated reporters of child abuse and neglect.
    (2) Direct Services. Identification, treatment, counseling, 
rehabilitation, follow-up, and other services, directed toward the 
victims, their families, perpetrators of abuse, and their families. 
These services will be supplemented locally by:
    (i) A multidisciplinary IDC established to assess incidents of 
alleged

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abuse and make incident status determinations.
    (ii) A clinical case staff meeting (CCSM) to make recommendations 
for treatment and case management.
    (3) Administration. All services, logistical support, and equipment 
necessary to ensure the effective and efficient operation of the FAP, 
including:
    (i) Developing local memorandums of understanding with civilian 
authorities for reporting cases, providing services, and defining 
responsibilities when responding to child abuse and domestic abuse.
    (ii) Use of personal service contracts to accomplish program goals.
    (iii) Preparation of reports, consisting of incidence data.
    (4) Evaluation. Needs assessments, program evaluation, research, and 
similar activities to support the FAP.
    (5) Training. All educational measures, services, supplies, or 
equipment used to prepare or maintain the skills of personnel working in 
the FAP.
    (b) Responding to FAP Incidents. The USD(P&R) or designee will 
establish procedures for:
    (1) Reporting and responding to suspected child abuse consistent 
with 10 U.S.C. 1787 and 1794, 42 U.S.C. 13031, and 28 CFR part 81.
    (2) Providing victim advocacy services to victims of domestic abuse 
consistent with DoD Instruction 6400.06 and section 534(d)(2) of Public 
Law 103-337, ``National Defense Authorization Act for Fiscal Year 
1995.''
    (3) Responding to restricted and unrestricted reports of domestic 
abuse consistent with DoD Instruction 6400.06 and 10 U.S.C. 1058(b).
    (4) Collection of FAP data into a central registry and analysis of 
such data in accordance with DoD 6400.1-M-1.
    (5) Coordinating a comprehensive DoD response, including the FACAT, 
to allegations of extra-familial child sexual abuse in a DoD-sanctioned 
activity in accordance with DoD Instruction 6400.03 and 10 U.S.C. 1794.
    (c) Notification of Extra-Familial Child Sexual Abuse in DoD-
Sanctioned Activities. The names of the victim(s) and alleged abuser(s) 
will not be included in the notification. Notification will include:
    (1) Name of the installation.
    (2) Type of child care setting.
    (3) Number of children alleged to be victims.
    (4) Estimated number of potential child victims.
    (5) Whether an installation response team is being convened to 
address the investigative, medical, and public affairs issues that may 
be encountered.
    (6) Whether a request for the DASD(MC&FP) to deploy a FACAT in 
accordance with DoD Instruction 6400.03 is being considered.



                         Subpart B_FAP Standards

    Authority: 5 U.S.C. 552a, 10 U.S.C. chapter 47, 42 U.S.C. 13031.



Sec.  61.7  Purpose.

    (a) This part is composed of several subparts, each containing its 
own purpose. The purpose of the overall part is to implement policy, 
assign responsibilities, and provide procedures for addressing child 
abuse and domestic abuse in military communities.
    (b) This subpart prescribes uniform program standards (PSs) for all 
installation FAPs.



Sec.  61.8  Applicability.

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



Sec.  61.9  Definitions.

    Unless otherwise noted, the following terms and their definitions 
are for the purposes of this subpart.
    Alleged abuser. Defined in subpart A of this part.
    Case. One or more reported incidents of suspected child abuse or 
domestic abuse pertaining to the same victim.
    Clinical case staff meeting (CCSM). An installation FAP meeting of 
clinical service providers to assist the coordinated delivery of 
supportive services and clinical treatment in child abuse

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and domestic abuse cases, as appropriate. They provide: clinical 
consultation directed to ongoing safety planning for the victim; the 
planning and delivery of supportive services, and clinical treatment, as 
appropriate, for the victim; the planning and delivery of rehabilitative 
treatment for the alleged abuser; and case management, including risk 
assessment and ongoing safety monitoring.
    Child. Defined in subpart A of this part.
    Child abuse. The physical or sexual abuse, emotional abuse, or 
neglect of a child by a parent, guardian, foster parent, or by a 
caregiver, whether the caregiver is intrafamilial or extrafamilial, 
under circumstances indicating the child's welfare is harmed or 
threatened. Such acts by a sibling, other family member, or other person 
shall be deemed to be child abuse only when the individual is providing 
care under express or implied agreement with the parent, guardian, or 
foster parent.
    Clinical case management. The FAP process of providing or 
coordinating the provision of clinical services, as appropriate, to the 
victim, alleged abuser, and family member in each FAP child abuse and 
domestic abuse incident from entry into until exit from the FAP system. 
It includes identifying risk factors; safety planning; conducting and 
monitoring clinical case assessments; presentation to the Incident 
Determination Committee (IDC); developing and implementing treatment 
plans and services; completion and maintenance of forms, reports, and 
records; communication and coordination with relevant agencies and 
professionals on the case; case review and advocacy; case counseling 
with the individual victim, alleged abuser, and family member, as 
appropriate; other direct services to the victim, alleged abuser, and 
family members, as appropriate; and case transfer or closing.
    Clinical intervention. A continuous risk management process that 
includes identifying risk factors, safety planning, initial clinical 
assessment, formulation of a clinical treatment plan, clinical treatment 
based on assessing readiness for and motivating behavioral change and 
life skills development, periodic assessment of behavior in the 
treatment setting, and monitoring behavior and periodic assessment of 
outside-of-treatment settings.
    Domestic abuse. Domestic violence or a pattern of behavior resulting 
in emotional/psychological abuse, economic control, and/or interference 
with personal liberty that is directed toward a person who is:
    (1) A current or former spouse.
    (2) A person with whom the abuser shares a child in common; or
    (3) A current or former intimate partner with whom the abuser shares 
or has shared a common domicile.
    Domestic violence. An offense under the United States Code, the 
Uniform Code of Military Justice (UCMJ), or State law involving the use, 
attempted use, or threatened use of force or violence against a person, 
or a violation of a lawful order issued for the protection of a person 
who is:
    (1) A current or former spouse.
    (2) A person with whom the abuser shares a child in common; or
    (3) A current or former intimate partner with whom the abuser shares 
or has shared a common domicile.
    Family Advocacy Committee (FAC). Defined in subpart A of this part.
    Family Advocacy Command Assistance Team (FACAT). Defined in subpart 
A of this part.
    Family Advocacy Program (FAP). Defined in subpart A of this part.
    High risk for violence. A level of risk describing families or 
individuals experiencing severe abuse or the potential for severe abuse, 
or offenders engaging in high risk behaviors such as making threats to 
cause grievous bodily harm, preventing victim access to communication 
devices, stalking, etc. Such cases require coordinated community safety 
planning that actively involves installation law enforcement, command, 
legal, and FAP.
    Home visitation. A strategy for delivering services to parents in 
their homes to improve child and family functioning.
    Home visitor. A person who provides FAP services to promote child 
and family functioning to parents in their homes.

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    IDC. Defined in subpart A of this part.
    Installation. Any more or less permanent post, camp, station, base 
for the support or carrying on of military activities.
    Installation Family Advocacy Program Manager (FAPM). The individual 
at the installation level designated by the installation commander in 
accordance with Service FAP headquarters implementing guidance to manage 
the FAP, supervise FAP staff, and coordinate all FAP activities. If the 
Service FAP headquarters implementing guidance assigns the 
responsibilities of the local FAPM between two individuals, the FAPM is 
the individual who has been assigned the responsibility for implementing 
the specific procedure.
    NPSP. A standardized secondary prevention program under the FAP that 
delivers intensive, voluntary, strengths based home visitation services 
designed specifically for expectant parents and parents of children from 
birth to 3 years of age to reduce the risk of child abuse and neglect.
    Non-DoD eligible extrafamilial caregiver. A caregiver who is not 
sponsored or sanctioned by the DoD. It includes nannies, temporary 
babysitters certified by the Red Cross, and temporary babysitters in the 
home, and other non-DoD eligible family members who provide care for or 
supervision of children.
    Non-medical counseling. Short term, non-therapeutic counseling that 
is not appropriate for individuals needing clinical therapy. Non-medical 
counseling is supportive in nature and addresses general conditions of 
living, life skills, improving relationships at home and at work, stress 
management, adjustment issues (such as those related to returning from a 
deployment), marital problems, parenting, and grief and loss. This 
definition is not intended to limit the authority of the Military 
Departments to grant privileges to clinical providers modifying this 
scope of care consistent with current Military Department policy.
    Out-of-home care. The responsibility of care for and/or supervision 
of a child in a setting outside the child's home by an individual placed 
in a caretaker role sanctioned by a Military Service or Defense Agency 
or authorized by the Service or Defense Agency as a provider of care, 
such as care in a child development center, school, recreation program, 
or family child care. part.
    Primary managing authority (PMA). The installation FAP that has 
primary authority and responsibility for the management and incident 
status determination of reports of child abuse and unrestricted reports 
of domestic abuse.
    Restricted reporting. Defined in subpart A of this part.
    Risk management. The process of identifying risk factors associated 
with increased risk for child abuse or domestic abuse, and controlling 
those factors that can be controlled through collaborative partnerships 
with key military personnel and civilian agencies, including the active 
duty member's commander, law enforcement personnel, child protective 
services, and victim advocates. It includes the development and 
implementation of an intervention plan when significant risk of 
lethality or serious injury is present to reduce the likelihood of 
future incidents and to increase the victim's safety, continuous 
assessment of risk factors associated with the abuse, and prompt 
updating of the victim's safety plan, as needed.
    Safety planning. A process whereby a victim advocate, working with a 
domestic abuse victim, creates a plan, tailored to that victim's needs, 
concerns, and situation, that will help increase the victim's safety and 
help the victim to prepare for, and potentially avoid, future violence.
    Service FAP headquarters. The office designated by the Secretary of 
the Military Department to develop and issue Service FAP implementing 
guidance in accordance with DoD policy, manage the Service-level FAP, 
and provide oversight for Service FAP functions.
    Unrestricted reporting. Defined in subpart A of this part.
    Victim. A child or current or former spouse or intimate partner who 
is the subject of an alleged incident of child maltreatment or domestic 
abuse because he/she was allegedly maltreated by the alleged abuser.
    Victim advocate. An employee of the Department of Defense, a 
civilian

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working under contract for the Department of Defense, or a civilian 
providing services by means of a formal memorandum of understanding 
between a military installation and a local victim advocacy service 
agency, whose role is to provide safety planning services and 
comprehensive assistance and liaison to and for victims of domestic 
abuse, and to educate personnel on the installation regarding the most 
effective responses to domestic abuse on behalf of victims and at-risk 
family members. The advocate may also be a volunteer military member, a 
volunteer civilian employee of the Military Department, or staff 
assigned as collateral duty.



Sec.  61.10  Policy.

    According to subpart A of this part, it is DoD policy to:
    (a) Promote early identification; reporting; and coordinated, 
comprehensive intervention, assessment, and support to victims of child 
abuse and domestic abuse.
    (b) Ensure that personally identifiable information (PII) collected 
in the course of FAP activities is safeguarded to prevent any 
unauthorized use or disclosure and that the collection, use, and release 
of PII is in compliance with 5 U.S.C. 552a.



Sec.  61.11  Responsibilities.

    (a) Under the authority, direction, and control of the USD(P&R) 
through the Assistant Secretary of Defense for Readiness and Force 
Management, the Deputy Assistant Secretary of Defense for Military 
Community and Family Policy (DASD(MC&FP)):
    (1) Monitors compliance with this subpart.
    (2) Collaborates with the Secretaries of the Military Departments to 
develop policies and procedures for monitoring compliance with the PSs 
in Sec.  61.12 of this subpart.
    (3) Convenes an annual DoD Accreditation and Inspection Summit to 
review and respond to the findings and recommendations of the Military 
Departments' accreditation or inspection results.
    (b) The Secretaries of the Military Departments:
    (1) Develop Service-wide FAP policy, supplementary standards, and 
instructions to provide for unique requirements within their respective 
installation FAPs to implement the PSs in this subpart as appropriate.
    (2) Require all installation personnel with responsibilities in this 
subpart receive appropriate training to implement the PSs in Sec.  61.12 
of this subpart.
    (3) Conduct accreditation and inspection reviews outlined in Sec.  
61.12 of this subpart.



Sec.  61.12  Procedures.

    (a) Purposes of the standards--(1) Quality Assurance (QA) to address 
child abuse and domestic abuse. The FAP PSs provide DoD and Service FAP 
headquarters QA guidelines for installation FAP-sponsored prevention and 
clinical intervention programs. Therefore, the PSs presented in this 
section and cross referenced in the Index of FAP Topics in the Appendix 
to Sec.  61.12 represent the minimal necessary elements for effectively 
dealing with child abuse and domestic abuse in installation programs in 
the military community.
    (2) Minimum requirements for oversight, management, logistical 
support, procedures, and personnel requirements. The PSs set forth 
minimum requirements for oversight, management, logistical support, 
procedures, and personnel requirements necessary to ensure all military 
personnel and their family members receive family advocacy services from 
the installation FAPs equal in quality to the best programs available to 
their civilian peers.
    (3) Measuring quality and effectiveness. The PSs provide a basis for 
measuring the quality and effectiveness of each installation FAP and for 
systematically projecting fiscal and personnel resources needed to 
support worldwide DoD FAP efforts.
    (b) Installation response to child abuse and domestic abuse--(1) 
FAC--(i) PS 1: Establishment of the FAC. The installation commander must 
establish an installation FAC and appoint a FAC chairperson in 
accordance with subpart A of this part and Service FAP headquarters 
implementing policies and guidance to serve as the policy-making, 
coordinating, and advisory body to address child abuse and domestic 
abuse at the installation.

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    (ii) PS 2: Coordinated community response and risk management plan. 
The FAC must develop and approve an annual plan for the coordinated 
community response and risk management of child abuse and domestic 
abuse, with specific objectives, strategies, and measurable outcomes.
    The plan is based on a review of:
    (A) The most recent installation needs assessment.
    (B) Research-supported protective factors that promote and sustain 
healthy family relationships.
    (C) Risk factors for child abuse and domestic abuse.
    (D) The most recent prevention strategy to include primary, 
secondary, and tertiary interventions.
    (E) Trends in the installation's risk management approach to high 
risk for violence, child abuse, and domestic abuse.
    (F) The most recent accreditation review or DoD Component Inspector 
General inspection of the installation agencies represented on the FAC.
    (G) The evaluation of the installation's coordinated community 
response to child abuse and domestic abuse.
    (iii) PS 3: Monitoring coordinated community response and risk 
management plan. The FAC monitors the implementation of the coordinated 
community response and risk management plan. Such monitoring includes a 
review of:
    (A) The development, signing, and implementation of formal 
memorandums of understanding (MOUs) among military activities and 
between military activities and civilian authorities and agencies to 
address child abuse and domestic abuse.
    (B) Steps taken to address problems identified in the most recent 
accreditation review of the FAP and evaluation of the installation's 
coordinated community response and risk management approach.
    (C) FAP recommended criteria to identify populations at higher risk 
to commit or experience child abuse and domestic abuse, the special 
needs of such populations, and appropriate actions to address those 
needs.
    (D) Effectiveness of the installation coordinated community response 
and risk management approach in responding to high risk for violence, 
child abuse, and domestic abuse incidents.
    (E) Implementation of the installation prevention strategy to 
include primary, secondary, and tertiary interventions.
    (F) The annual report of fatality reviews that Service FAP 
headquarters fatality review teams conduct. The FAC should also review 
the Service FAP headquarters' recommended changes for the coordinated 
community response and risk management approach. The coordinated 
community response will focus on strengthening protective factors that 
promote and sustain healthy family relationships and reduce the risk 
factors for future child abuse and domestic abuse-related fatalities.
    (2) Coordinated Community Response--(i) PS 4: Roles, functions, and 
responsibilities. The FAC must ensure that all installation agencies 
involved with the coordinated community response to child abuse and 
domestic abuse comply with the defined roles, functions, and 
responsibilities in DoD Instruction 6400.06 and the Service FAP 
headquarters implementing policies and guidance.
    (ii) PS 5: MOUs. The FAC must verify that:
    (A) Formal MOUs are established as appropriate with counterparts in 
the local civilian community to improve coordination on: Child abuse and 
domestic abuse investigations; emergency removal of children from homes; 
fatalities; arrests; prosecutions; and orders of protection involving 
military personnel.
    (B) Installation agencies established MOUs setting forth the 
respective roles and functions of the installation and the appropriate 
federal, State, local, or foreign agencies or organizations (in 
accordance with status-of-forces agreements (SOFAs)) that provide:
    (1) Child welfare services, including foster care, to ensure ongoing 
and active collaborative case management between the respective courts, 
child protective services, foster care agencies, and FAP.
    (2) Medical examination and treatment.
    (3) Mental health examination and treatment.

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    (4) Domestic abuse victim advocacy.
    (5) Related social services, including State home visitation 
programs when appropriate.
    (6) Safety shelter.
    (iii) PS 6: Collaboration between military installations. The 
installation commander must require that installation agencies have 
collaborated with counterpart agencies on military installations in 
geographical proximity and on joint bases to ensure coordination and 
collaboration in providing child abuse and domestic abuse services to 
military families. Collaboration includes developing MOUs, as 
appropriate.
    (iv) PS 7: Domestic abuse victim advocacy services. The installation 
FAC must establish 24 hour access to domestic abuse victim advocacy 
services through personal or telephone contact in accordance with DoD 
Instruction 6400.06 and Service FAP headquarters implementing policy and 
guidance for restricted reports of domestic abuse and the domestic abuse 
victim advocate services.
    (v) PS 8: Domestic abuse victim advocate personnel requirements. The 
installation commander must require that qualified personnel provide 
domestic abuse victim advocacy services in accordance with DoD 
Instruction 6400.06 and Service FAP headquarters implementing policy and 
guidance.
    (A) Such personnel may include federal employees, civilians working 
under contract for the DoD, civilians providing services through a 
formal MOU between the installation and a local civilian victim advocacy 
service agency, volunteers, or a combination of such personnel.
    (B) All domestic abuse victim advocates are supervised in accordance 
with Service FAP headquarters policies.
    (vi) PS 9: 24-hour emergency response plan. An installation 24-hour 
emergency response plan to child abuse and domestic abuse incidents must 
be established in accordance with DoD Instruction 6400.06 and the 
Service FAP headquarters implementing policies and guidance.
    (vii) PS 10: FAP Communication with military law enforcement. The 
FAP and military law enforcement reciprocally provide to one another:
    (A) Within 24 hours, FAP will communicate all reports of child abuse 
involving military personnel or their family members to the appropriate 
civilian child protective services agency or law enforcement agency in 
accordance with subpart A of this part, 42 U.S.C. 13031, and 28 CFR 
81.2.
    (B) Within 24 hours, FAP will communicate all unrestricted reports 
of domestic abuse involving military personnel and their current or 
former spouses or their current or former intimate partners to the 
appropriate civilian law enforcement agency in accordance with subpart A 
of this part, 42 U.S.C. 13031, and 28 CFR 81.2.
    (viii) PS 11: Protection of children. The installation FAC in 
accordance with Service FAP headquarters implementing policies and 
guidance must set forth the procedures and criteria for:
    (A) The safety of child victim(s) of abuse or other children in the 
household when they are in danger of continued abuse or life-threatening 
child neglect.
    (B) Safe transit of such child(ren) to appropriate care. When the 
installation is located outside the continental United States, this 
includes procedures for transit to a location of appropriate care within 
the United States.
    (C) Ongoing collaborative case management between FAP, relevant 
courts, and child welfare agencies when military children are placed in 
civilian foster care.
    (D) Notification of the affected Service member's command when a 
dependent child has been taken into custody or foster care by local or 
State courts, or child welfare or protection agencies.
    (3) Risk Management--(i) PS 12: PMA. When an installation FAP 
receives a report of a case of child abuse or domestic abuse in which 
the victim is at a different location than the abuser, PMA for the case 
must be:
    (A) In child abuse cases:
    (1) The sponsor's installation when the alleged abuser is the 
sponsor; a non-sponsor DoD-eligible family member; or a non-sponsor, 
status unknown.
    (2) The alleged abuser's installation when the alleged abuser is a 
non-sponsor active duty Service member; a non-sponsor, DoD-eligible 
extrafamilial

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caregiver; or a DoD-sponsored out-of-home care provider.
    (3) The victim's installation when the alleged abuser is a non-DoD-
eligible extrafamilial caregiver.
    (B) In domestic abuse cases:
    (1) The alleged abuser's installation when both the alleged abuser 
and the victim are active duty Service members.
    (2) The alleged abuser's installation when the alleged abuser is the 
only sponsor.
    (3) The victim's installation when the victim is the only sponsor.
    (4) The installation FAP who received the initial referral when both 
parties are alleged abusers in bi-directional domestic abuse involving 
dual military spouses or intimate partners.
    (ii) PS 13: Risk management approach--(A) All installation agencies 
involved with the installation's coordinated community risk management 
approach to child abuse and domestic abuse must comply with their 
defined roles, functions, and responsibilities in accordance with 42 
U.S.C. 13031 and 28 CFR 81.2 and Service FAP headquarters implementing 
policies and guidance.
    (B) When victim(s) and abuser(s) are assigned to different servicing 
FAPs or are from different Services, the PMA is assigned according to PS 
12 (paragraph (b)(3)(i) of this section), and both serving FAP offices 
and Services are kept informed of the status of the case, regardless of 
who has PMA.
    (iii) PS 14: Risk assessments. FAP conducts risk assessments of 
alleged abusers, victims, and other family members to assess the risk of 
re-abuse, and communicate any increased levels of risk to appropriate 
agencies for action, as appropriate. Risk assessments are conducted:
    (A) At least quarterly on all open FAP cases.
    (B) Monthly on FAP cases assessed as high risk and those involving 
court involved children placed in out-of-home care, child sexual abuse, 
and chronic child neglect.
    (C) Within 30 days of any change since the last risk assessment that 
presents increased risk to the victim or warrants additional safety 
planning.
    (iv) PS 15: Disclosure of information in risk assessments. Protected 
information collected during FAP referrals, intake, and risk assessments 
is only disclosed in accordance with DoD 6025.18-R, ``DoD Health 
Information Privacy Regulation'' (available at http://www.dtic.mil/whs/ 
directives/corres/pdf/ 602518r.pdf) when applicable, 32 CFR part 310, 
and the Service FAP headquarters implementing policies and guidance.
    (v) PS 16: Risk management and deployment. Procedures are 
established to manage child abuse and domestic abuse incidents that 
occur during the deployment cycle of a Service member, in accordance 
with subpart A of this part and DoD Instruction 6400.06, and Service FAP 
headquarters implementing policies and guidance, so that when an alleged 
abuser Service member in an active child abuse or domestic abuse case is 
deployed:
    (A) The forward command notifies the home station command when the 
deployed Service member will return to the home station command.
    (B) The home station command implements procedures to reduce the 
risk of subsequent child abuse and domestic abuse during the 
reintegration of the Service member into the FAP case management 
process.
    (4) IDC--(i) PS 17: IDC established. An installation IDC must be 
established to review reports of child abuse and unrestricted reports of 
domestic abuse.
    (ii) PS 18: IDC operations. The IDC reviews reports of child abuse 
and unrestricted reports of domestic abuse to determine whether the 
reports meet the criteria for entry into the Service FAP headquarters 
central registry of child abuse and domestic abuse incidents in 
accordance with subpart A of this part and Service FAP headquarters 
implementing policies and guidance.
    (iii) PS 19: Responsibility for training FAC and IDC members. All 
FAC and IDC members must receive:
    (A) Training on their roles and responsibilities before assuming 
their positions on their respective teams.
    (B) Periodic information and training on DoD policies and Service 
FAP headquarters policies and guidance.
    (iv) PS 20: IDC QA. An IDC QA process must be established for 
monitoring

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and QA review of IDC decisions in accordance with Service FAP 
headquarters implementing policy and guidance.
    (c) Organization and management of the FAP--(1) General organization 
of the FAP--(i) PS 21: Establishment of the FAP. The installation 
commander must establish a FAP to address child abuse and domestic abuse 
in accordance with DoD policy and Service FAP headquarters implementing 
policies and guidance.
    (ii) PS 22: Operations policy. The installation FAC must ensure 
coordination among the following key agencies interacting with the FAP 
in accordance with subpart A of this part and Service FAP headquarters 
implementing policies and guidance:
    (A) Family center(s).
    (B) Substance abuse program(s).
    (C) Sexual assault and prevention response programs.
    (D) Child and youth program(s).
    (E) Program(s) that serve families with special needs.
    (F) Medical treatment facility, including:
    (1) Mental health and behavioral health personnel.
    (2) Social services personnel.
    (3) Dental personnel.
    (G) Law enforcement.
    (H) Criminal investigative organization detachment.
    (I) Staff judge advocate or servicing legal office.
    (J) Chaplain(s).
    (K) Department of Defense Education Activity (DoDEA) school 
personnel.
    (L) Military housing personnel.
    (M) Transportation office personnel.
    (iii) PS 23: Appointment of an installation FAPM. The installation 
commander must appoint in writing an installation FAPM to implement and 
manage the FAP. The FAPM must direct the development, oversight, 
coordination, administration, and evaluation of the installation FAP in 
accordance with subpart A of this part and Service FAP headquarters 
implementing policy and guidance.
    (iv) PS 24: Funding. Funds received for child abuse and domestic 
abuse prevention and treatment activities must be programmed and 
allocated in accordance with the DoD and Service FAP headquarters 
implementing policies and guidance, and the plan developed under PS 3, 
described in paragraph (b)(1)(ii) of this section.
    (A) Funds that OSD provides for the FAP must be used in direct 
support of the prevention and intervention for domestic abuse and child 
maltreatment; including management, staffing, domestic abuse victim 
advocate services, public awareness, prevention, training, intensive 
risk-focused secondary prevention services, intervention, record 
keeping, and evaluation as set forth in this subpart.
    (B) Funds that OSD provides for the NPSP must be used only for 
secondary prevention activities to support the screening, assessment, 
and provision of home visitation services to prevent child abuse and 
neglect in vulnerable families in accordance with DoD Instruction 
6400.05.
    (v) PS 25: Other resources. FAP services must be housed and equipped 
in a manner suitable to the delivery of services, including but not 
limited to:
    (A) Adequate telephones.
    (B) Office automation equipment.
    (C) Handicap accessible.
    (D) Access to emergency transport.
    (E) Private offices and rooms available for interviewing and 
counseling victims, alleged abusers, and other family members in a safe 
and confidential setting.
    (F) Appropriate equipment for 24/7 accessibility.
    (2) FAP personnel--(i) PS 26: Personnel requirements. The 
installation commander is responsible for ensuring there are a 
sufficient number of qualified FAP personnel in accordance with subpart 
A of this part, DoD Instruction 6400.06, and DoD Instruction 6400.05, 
and Service FAP headquarters implementing policy and guidance. FAP 
personnel may consist of military personnel on active duty, employees of 
the federal civil service, contractors, volunteers, or a combination of 
such personnel.
    (ii) PS 27: Criminal history record check. All FAP personnel whose 
duties involve services to children require a criminal history record 
check in accordance with DoD Instruction 1402.5, ``Criminal History 
Background Checks on Individuals in Child Care Services''

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(available at http://www.dtic.mil/whs/ directives/corres/pdf/ 
140205p.pdf).
    (iii) PS 28: Clinical staff qualifications. All FAP personnel who 
conduct clinical assessment of or provide clinical treatment to victims 
of child abuse or domestic abuse, alleged abusers, or their family 
members must have all of the following minimum qualifications:
    (A) A Master in Social Work, Master of Science, Master of Arts, or 
doctoral-level degree in human service or mental health from an 
accredited university or college.
    (B) The highest licensure in a State or clinical licensure in good 
standing in a State that authorizes independent clinical practice.
    (C) Two years of experience working in the field of child abuse and 
domestic abuse.
    (D) Clinical privileges or credentialing in accordance with Service 
FAP headquarters policies.
    (iv) PS 29: Prevention and Education Staff Qualifications. All FAP 
personnel who provide prevention and education services must have the 
following minimum qualifications:
    (A) A Bachelor's degree from an accredited university or college in 
any of the following disciplines:
    (1) Social work.
    (2) Psychology.
    (3) Marriage, family, and child counseling.
    (4) Counseling or behavioral science.
    (5) Nursing.
    (6) Education.
    (7) Community health or public health.
    (B) Two years of experience in a family and children's services 
public agency or family and children's services community organization, 
1 year of which is in prevention, intervention, or treatment of child 
abuse and domestic abuse.
    (C) Supervision by a qualified staff person in accordance with the 
Service FAP headquarters policies.
    (v) PS 30: Victim advocate staff qualifications. All FAP personnel 
who provide victim advocacy services must have these minimum 
qualifications:
    (A) A Bachelor's degree from an accredited university or college in 
any of the following disciplines:
    (1) Social work.
    (2) Psychology.
    (3) Marriage, family, and child counseling.
    (4) Counseling or behavioral science.
    (5) Criminal justice.
    (B) Two years of experience in assisting and providing advocacy 
services to victims of domestic abuse or sexual assault.
    (C) Supervision by a Master's level social worker.
    (vi) PS 31: NPSP staff qualifications. All FAP personnel who provide 
services in the NPSP must have qualifications in accordance with DoD 
Instruction 6400.05.
    (3) Safety and home visits--(i) PS 32: Internal and external duress 
system established. The installation FAPM must establish a system to 
identify and manage potentially violent clients and to promote the 
safety and reduce the risk of harm to staff working with clients and to 
others inside the office and when conducting official business outside 
the office.
    (ii) PS 33: Protection of home visitors. The installation FAPM must:
    (A) Issue written FAP procedures to ensure minimal risk and maximize 
personal safety when FAP or NPSP staff perform home visits.
    (B) Require that all FAP and NPSP personnel who conduct home visits 
are trained in FAP procedures to ensure minimal risk and maximize 
personal safety before conducting a home visit.
    (iii) PS 34: Home visitors' reporting of known or suspected child 
abuse and domestic abuse. All FAP and NPSP personnel who conduct home 
visits are to report all known or suspected child abuse in accordance 
with subpart A of this part and 42 U.S.C. 13031, and domestic abuse in 
accordance with DoD Instruction 6400.06 and the Service FAP headquarters 
implementing policy and guidance.
    (4) Management information system--(i) PS 35: Management information 
system policy. The installation FAPM must establish procedures for the 
collection, use, analysis, reporting, and distributing of FAP 
information in accordance with subpart A of this part, DoD 6025.18-R, 32 
CFR part 310, DoD 6400.1-M-1 and Service FAP headquarters implementing 
policy. These procedures ensure:

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    (A) Accurate and comparable statistics needed for planning, 
implementing, assessing, and evaluating the installation coordinated 
community response to child abuse and domestic abuse.
    (B) Identifying unmet needs or gaps in services.
    (C) Determining installation FAP resource needs and budget.
    (D) Developing installation FAP guidance.
    (E) Administering the installation FAP.
    (F) Evaluating installation FAP activities.
    (ii) PS 36: Reporting of statistics. The FAP reports statistics 
annually to the Service FAP headquarters in accordance with subpart A of 
this part and the Service FAP headquarters implementing policies and 
guidance, including the accurate and timely reporting of:
    (A) FAP metrics--(1) The number of new commanders at the 
installation whom the Service FAP headquarters determined must receive 
the FAP briefing, and the number of new commanders who received the FAP 
briefing within 90 days of taking command.
    (2) The number of senior noncommissioned officers (NCOs) in pay 
grades E-7 and higher whom the Service FAP headquarters determined must 
receive the FAP briefing annually, and the number of senior NCOs who 
received the FAP briefing within the year.
    (B) NPSP metric--(1) The number of high risk families who began 
receiving NPSP intensive services (two contacts per month) for at least 
6 months in the previous fiscal year.
    (2) The number of these families with no reports of child 
maltreatment incidents that met criteria for abuse for entry into the 
central registry (formerly, ``substantiated reports'') within 12 months 
after their NPSP services ended, in accordance with DoD Instruction 
6400.05.
    (C) Domestic abuse treatment metric--(1) The number of allegedly 
abusive spouses in incidents that met FAP criteria for domestic abuse 
who began receiving and successfully completed FAP clinical treatment 
services during the previous fiscal year.
    (2) The number of these spouses who were not reported as allegedly 
abusive in any domestic abuse incidents that met FAP criteria within 12 
months after FAP clinical services ended.
    (D) Domestic abuse victim advocacy metrics. The number of domestic 
abuse victims:
    (1) Who receive domestic abuse victim advocacy services, and of 
those, the respective totals of domestic abuse victims who receive such 
services from domestic abuse victim advocates or from FAP clinical 
staff.
    (2) Who initially make restricted reports to domestic abuse victim 
advocates and the total of domestic abuse victims who initially make 
restricted reports to FAP clinical staff, and of each of those, the 
total of domestic abuse victims who report being sexually assaulted.
    (3) Whose initially restricted reports to domestic abuse victim 
advocates became unrestricted reports, and the total of domestic abuse 
victims whose initially restricted reports to FAP clinical staff became 
unrestricted reports.
    (4) Initially making unrestricted reports to domestic abuse victim 
advocates and making unrestricted reports to FAP clinical staff and, of 
each of those, the total of domestic abuse victims who report being 
sexually assaulted.
    (d) Public awareness, prevention, NPSP, and training--(1) Public 
awareness activities--(i) PS 37: Implementation of public awareness 
activities in the coordinated community response and risk management 
plan. The FAP public awareness activities highlight community strengths; 
promote FAP core concepts and messages; advertise specific services; use 
appropriate available techniques to reach out to the military community, 
especially to military families who reside outside of the military 
installation; and are customized to the local population and its needs.
    (ii) PS 38: Collaboration to increase public awareness of child 
abuse and domestic abuse. The FAP partners and collaborates with other 
military and civilian organizations to conduct public awareness 
activities.
    (iii) PS 39: Components of public awareness activities. The 
installation public

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awareness activities promote community awareness of:
    (A) Protective factors that promote and sustain healthy parent/child 
relationships.
    (1) The importance of nurturing and attachment in the development of 
young children.
    (2) Infant, childhood, and teen development.
    (3) Programs, strategies, and opportunities to build parental 
resilience.
    (4) Opportunities for social connections and mutual support.
    (5) Programs and strategies to facilitate children's social and 
emotional development.
    (6) Information about access to community resources in times of 
need.
    (B) The dynamics of risk factors for different types of child abuse 
and domestic abuse, including information for teenage family members on 
teen dating violence.
    (C) Developmentally appropriate supervision of children.
    (D) Creating safe sleep environments for infants.
    (E) How incidents of suspected child abuse should be reported in 
accordance with subpart A of this part, 42 U.S.C. 13031, 28 CFR 81.2, 
and DoD Instruction 6400.03, ``Family Advocacy Command Assistance Team'' 
(available at http://www.dtic.mil/whs/ directives/corres/ pdf/
640003p.pdf) and the Service FAP headquarters implementing policy and 
guidance.
    (F) The availability of domestic abuse victim advocates.
    (G) Hotlines and crisis lines that provide 24/7 support to families 
in crisis.
    (H) How victims of domestic abuse may make restricted reports of 
incidents of domestic abuse in accordance with DoD Instruction 6400.06.
    (I) The availability of FAP clinical assessment and treatment.
    (J) The availability of NPSP home visitation services.
    (K) The availability of transitional compensation for victims of 
child abuse and domestic abuse in accordance with DoD Instruction 
1342.24, ``Transitional Compensation for Abused Dependents'' (available 
at http://www.dtic.mil/whs/ directives/corres/pdf/ 134224p.pdf) and 
Service FAP headquarters implementing policy and guidance.
    (2) Prevention activities--(i) PS 40: Implementation of prevention 
activities in the coordinated community response and risk management 
plan. The FAP implements coordinated child abuse and domestic abuse 
primary and secondary prevention activities identified in the annual 
plan.
    (ii) PS 41: Collaboration for prevention of child abuse and domestic 
abuse. The FAP collaborates with other military and civilian 
organizations to implement primary and secondary child abuse and 
domestic abuse prevention programs and services that are available on a 
voluntary basis to all persons eligible for services in a military 
medical treatment facility.
    (iii) PS 42: Primary prevention activities. Primary prevention 
activities include, but are not limited to:
    (A) Information, classes, and non-medical counseling as defined in 
Sec.  61.3 to assist Service members and their family members in 
strengthening their interpersonal relationships and marriages, in 
building their parenting skills, and in adapting successfully to 
military life.
    (B) Proactive outreach to identify and engage families during pre-
deployment, deployment, and reintegration to decrease the negative 
effects of deployment and other military operations on parenting and 
family dynamics.
    (C) Family strengthening programs and activities that facilitate 
social connections and mutual support, link families to services and 
opportunities for growth, promote children's social and emotional 
development, promote safe, stable, and nurturing relationships, and 
encourage parental involvement.
    (iv) PS 43: Identification of populations for secondary prevention 
activities. The FAP identifies populations at higher risk for child 
abuse or domestic abuse from a review of:
    (A) Relevant research findings.
    (B) One or more relevant needs assessments in the locality.
    (C) Data from unit deployments and returns from deployment.

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    (D) Data of expectant parents and parents of children 3 years of age 
or younger.
    (E) Lessons learned from Service FAP headquarters and local fatality 
reviews.
    (F) Feedback from the FAC, the IDC, and the command.
    (v) PS 44: Secondary prevention activities. The FAP implements 
secondary prevention activities that are results-oriented and evidence-
supported, stress the positive benefits of seeking help, promote 
available resources to build and sustain protective factors for healthy 
family relationships, and reduce risk factors for child abuse or 
domestic abuse. Such activities include, but are not limited to:
    (A) Educational classes and counseling to assist Service members and 
their family members with troubled interpersonal relationships and 
marriages in improving their interpersonal relationships and marriages.
    (B) The NPSP, in accordance with DoD Instruction 6400.05 and Service 
FAP headquarters implementing policy and guidance.
    (C) Educational classes and counseling to help improve the parenting 
skills of Service members and their family members who experience 
parenting problems.
    (D) Health care screening for domestic abuse.
    (E) Referrals to essential services, supports, and resources when 
needed.
    (3) NPSP--(i) PS 45: Referrals to NPSP. The installation FAPM 
ensures that expectant parents and parents with children ages 0-3 years 
may self-refer to the NPSP or be encouraged to participate by a health 
care provider, the commander of an active duty Service member who is a 
parent or expectant parent, staff of a family support program, or 
community professionals.
    (ii) PS 46: Informed Consent for NPSP. The FAPM ensures that parents 
who ask to participate in the NPSP are provided informed consent in 
accordance with subpart A of this part and DoD Instruction 6400.05 and 
Service FAP headquarters implementing policy and guidance to be:
    (A) Voluntarily screened for factors that may place them at risk for 
child abuse and domestic abuse.
    (B) Further assessed using standardized and more in-depth 
measurements if the screening indicates potential for risk.
    (C) Receive home visits and additional NPSP services as appropriate.
    (D) Assessed for risk on a continuing basis.
    (iii) PS 47: Eligibility for NPSP. Pending funding and staffing 
capabilities, the installation FAPM ensures that qualified NPSP 
personnel offer intensive home visiting services on a voluntary basis to 
expectant parents and parents with children ages 0-3 years who:
    (A) Are eligible to receive services in a military medical treatment 
facility.
    (B) Have been assessed by NPSP staff as:
    (1) At-risk for child abuse or domestic abuse.
    (2) Displaying some indicators of high risk for child abuse or 
domestic abuse, but whose overall assessment does not place them in the 
at-risk category.
    (3) Having been reported to FAP for an incident of abuse of a child 
age 0-3 years in their care who have previously received NPSP services.
    (iv) PS 48: Review of NPSP screening. Results of NPSP screening are 
reviewed within 3 business days of completion. If the screening 
indicates potential for risk, parents are invited to participate in 
further assessment by a NPSP home visitor using standardized and more 
in-depth measurements.
    (v) PS 49: NPSP services. The NPSP offers expectant parents and 
parents with children ages 0-3, who are eligible for the NPSP, access to 
intensive home visiting services that:
    (A) Are sensitive to cultural attitudes and practices, to include 
the need for interpreter or translation services.
    (B) Are based on a comprehensive assessment of research-based 
protective and risk factors.
    (C) Emphasize developmentally appropriate parenting skills that 
build on the strengths of the parent(s).
    (D) Support the dual roles of the parent(s) as Service member(s) and 
parent(s).
    (E) Promote the involvement of both parents when applicable.

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    (F) Decrease any negative effects of deployment and other military 
operations on parenting.
    (G) Provide education to parent(s) on how to adapt to parenthood, 
children's developmental milestones, age-appropriate expectations for 
their child's development, parent-child communication skills, parenting 
skills, and effective discipline techniques.
    (H) Empower parents to seek support and take steps to build 
proactive coping strategies in all domains of family life.
    (I) Provide referral to additional community resources to meet 
identified needs.
    (vi) PS 50: NPSP protocol. The installation FAPM ensures that NPSP 
personnel implement the Service FAP headquarters protocol for NPSP 
services, including the NPSP intervention plan with clearly measurable 
goals, based on needs identified by the standard screening instrument, 
assessment tools, the NPSP staff member's clinical assessment, and 
active input from the family.
    (vii) PS 51: Frequency of NPSP home visits. NPSP personnel exercise 
professional judgment in determining the frequency of home visits based 
on the assessment of the family, but make a minimum of two home visits 
to each family per month. If at least two home visits are not provided 
to a high risk family enrolled in the program, NPSP personnel will 
document what circumstance(s) occurred to preclude twice monthly home 
visits and what services/contacts were provided instead.
    (viii) PS 52: Continuing NPSP risk assessment. The installation FAPM 
ensures that NPSP personnel assess risk and protective factors impacting 
parents receiving NPSP home visitation services on an ongoing basis to 
continuously monitor progress toward intervention goals.
    (ix) PS 53: Opening, transferring, or closing NPSP cases. The 
installation FAPM ensures that NPSP cases are opened, transferred, or 
closed in accordance with Service FAP headquarters policy and guidance.
    (x) PS 54: Disclosure of information in NPSP cases. Information 
gathered during NPSP screening, clinical assessments, and in the 
provision of supportive services or treatment that is protected from 
disclosure under 5 U.S.C. 552a, DoD 6025.18-R, and 32 CFR part 310 is 
only disclosed in accordance with 5 U.S.C. 552a, DoD 6025.18-R, 32 CFR 
part 310, and the Service FAP headquarters implementing policies and 
guidance.
    (4) Training--(i) PS 55: Implementation of training requirements. 
The FAP implements coordinated training activities for commanders, 
senior enlisted advisors, Service members, and their family members, DoD 
civilians, and contractors.
    (ii) PS 56: Training for commanders and senior enlisted advisors. 
The installation commander or senior mission commander must require that 
qualified FAP trainers defined in accordance with Service FAP 
headquarters implementing policy and guidance provide training on the 
prevention of and response to child abuse and domestic abuse to:
    (A) Commanders within 90 days of assuming command.
    (B) Annually to NCOs who are senior enlisted advisors.
    (iii) PS 57: Training for other installation personnel. Qualified 
FAP trainers as defined in accordance with Service FAP headquarters 
implementing policy and guidance conduct training (or help provide 
subject matter experts who conduct training) on child abuse and domestic 
abuse in the military community to installation:
    (A) Law enforcement and investigative personnel.
    (B) Health care personnel.
    (C) Sexual assault prevention and response personnel.
    (D) Chaplains.
    (E) Personnel in DoDEA schools.
    (F) Personnel in child development centers.
    (G) Family home care providers.
    (H) Personnel and volunteers in youth programs.
    (I) Family center personnel.
    (J) Service members.
    (iv) PS 58: Content of training. FAP training for personnel, as 
required by PS 56 and PS 57, located at paragraphs (d)(4)(ii) and 
(d)(4)(iii) of this section, includes:

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    (A) Research-supported protective factors that promote and sustain 
healthy family relationships.
    (B) Risk factors for and the dynamics of child abuse and domestic 
abuse.
    (C) Requirements and procedures for reporting child abuse in 
accordance with subpart A of this part, 42 U.S.C. 13031, 28 CFR 81.2, 
and DoD Instruction 6400.03.
    (D) The availability of domestic abuse victim advocates and response 
to restricted and unrestricted reports of incidents of domestic abuse in 
accordance with DoD Instruction 6400.06.
    (E) The dynamics of domestic abuse, reporting options, safety 
planning, and response unique to the military culture that establishes 
and supports competence in performing core victim advocacy duties.
    (F) Roles and responsibilities of the FAP and the command under the 
installation's coordinated community response to a report of a child 
abuse, including the response to a report of child sexual abuse in a DoD 
sanctioned child or youth activity in accordance with subpart A of this 
part and DoD 6400.1-M-1, or domestic abuse incident, and actions that 
may be taken to protect the victim in accordance with subpart A of this 
part and DoD Instruction 6400.06.
    (G) Available resources on and off the installation that promote 
protective factors and support families at risk before abuse occurs.
    (H) Procedures for the management of child abuse and domestic abuse 
incidents that happen before a Service member is deployed, as set forth 
in PS 16, located at paragraph (b)(3)(v) of this section.
    (I) The availability of transitional compensation for victims of 
child abuse and domestic abuse in accordance with 5 U.S.C. 552a and DoD 
Instruction 6400.03, and Service FAP headquarters implementing policy 
and guidance.
    (v) PS 59: Additional FAP training for NPSP personnel. The 
installation FAPM ensures that all personnel offering NPSP services are 
trained in the content specified in PS 58, located at paragraph 
(d)(4)(iv) of this section, and in DoD Instruction 6400.05.
    (e) FAP Response to incidents of child abuse or domestic abuse--(1) 
Reports of child abuse--(i) PS 60: Responsibilities in responding to 
reports of child abuse. The installation commander in accordance with 
subpart A of this part and Service FAP headquarters implementing policy 
and guidance must issue local policy that specifies the installation 
procedures for responding to reports of:
    (A) Suspected incidents of child abuse in accordance with subpart A 
of this part, 42 U.S.C. 13031, 28 CFR 81.2, and Service FAP headquarters 
implementing policies and guidance, federal and State laws, and 
applicable SOFAs.
    (B) Suspected incidents of child abuse involving students, ages 3-
18, enrolled in a DoDEA school or any children participating in DoD-
sanctioned child or youth activities or programs.
    (C) Suspected incidents of the sexual abuse of a child in DoD-
sanctioned child or youth activities or programs that must be reported 
to the DASD(MC&FP) in accordance with DoD Instruction 6400.03 and 
Service FAP headquarters implementing policies and guidance.
    (D) Suspected incidents involving fatalities or serious injury 
involving child abuse that must be reported to OSD FAP in accordance 
with subpart A of this part and Service FAP headquarters implementing 
policies and guidance.
    (ii) PS 61: Responsibilities during emergency removal of a child 
from the home. (A) In responding to reports of child abuse, the FAP 
complies with subpart A of this part and Service FAP headquarters 
implementing policy and guidance and installation policies, procedures, 
and criteria set forth under PS 11, located at paragraph (b)(2)(vii) of 
this section, during emergency removal of a child from the home.
    (B) The FAP provides ongoing and direct case management and 
coordination of care of children placed in foster care in collaboration 
with the child welfare and foster care agency, and will not close the 
FAP case until a permanency plan for all involved children is in place.
    (iii) PS 62: Coordination with other authorities to protect 
children. The FAP coordinates with military and local civilian law 
enforcement agencies, military

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investigative agencies, and civilian child protective agencies in 
response to reports of child abuse incidents in accordance with subpart 
A of this part, 42 U.S.C. 13031, 28 CFR 81.2, and DoD 6400.1-M-1 and 
appropriate MOUs under PS 5, located at paragraph (b)(2)(i) of this 
section.
    (iv) PS 63: Responsibilities in responding to reports of child abuse 
involving infants and toddlers from birth to age 3. Services and support 
are delivered in a developmentally appropriate manner to infants and 
toddlers, and their families who come to the attention of FAP to ensure 
decisions and services meet the social and emotional needs of this 
vulnerable population.
    (A) FAP makes a direct referral to the servicing early intervention 
agency, such as the Educational and Developmental Intervention Services 
(EDIS) where available, for infants and toddlers from birth to 3 years 
of age who are involved in an incident of child abuse in accordance with 
20 U.S.C. 921 through 932 and chapter 33.
    (B) FAP provides ongoing and direct case management services to 
families and their infants and toddlers placed in foster care or other 
out-of-home placements to ensure the unique developmental, physical, 
social-emotional, and mental health needs are addressed in child 
welfare-initiated care plans.
    (v) PS 64: Assistance in responding to reports of multiple victim 
child sexual abuse in dod sanctioned out-of-home care. (A) The 
installation FAPM assists the installation commander in assessing the 
need for and implementing procedures for requesting deployment of a DoD 
FACAT in cases of multiple-victim child sexual abuse occurring in DoD-
sanctioned or operated activities, in accordance with DoD Instruction 
6400.03 and Service FAP headquarters implementing policies and guidance.
    (B) The installation FAPM acts as the installation coordinator for 
the FACAT before it arrives at the installation.
    (2) PS 65: Responsibilities in Responding to Reports of Domestic 
Abuse. Installation procedures for responding to unrestricted and 
restricted reports of domestic abuse are established in accordance with 
DoD Instruction 6400.06 and Service FAP headquarters implementing policy 
and guidance.
    (3) Informed consent--(i) PS 66: Informed consent for FAP clinical 
assessment, intervention services, and supportive services or clinical 
treatment. Every person referred for FAP clinical intervention and 
supportive services must give informed consent for such assessment or 
services. Clients are considered voluntary, non-mandated recipients of 
services except when the person is:
    (A) Issued a lawful order by a military commander to participate.
    (B) Ordered by a court of competent jurisdiction to participate.
    (C) A child, and the parent or guardian has authorized such 
assessment or services.
    (ii) PS 67: Documentation of informed consent. FAP staff document 
that the person gave informed consent in the FAP case record, in 
accordance with DoD Instruction 6400.06 and the Service FAP headquarters 
implementing policies and guidance.
    (iii) PS 68: Privileged communication. Every person referred for FAP 
clinical intervention and support services is informed of their right to 
the provisions of privileged communication by specified service 
providers in accordance with Military Rules of Evidence 513 and 514 in 
the Manual for Courts Martial, current edition (available at http://
www.apd.army.mil/ pdffiles/mcm.pdf, Section III, pages III-34 to III-
36.).
    (4) Clinical case management and risk management--(i) PS 69: FAP 
case manager. A clinical service provider is assigned to each FAP 
referral immediately when the case enters the FAP system in accordance 
with Service FAP headquarters implementing policy and guidance.
    (ii) PS 70: Initial risk monitoring. FAP monitoring of the risk of 
further abuse begins when the report of suspected child abuse or 
domestic abuse is received and continues through the initial clinical 
assessment. The FAP case manager requests information from a variety of 
sources, in addition to the victim and the abuser (whether alleged or 
adjudicated), to identify additional risk factors and to clarify the 
context of the use of any violence, and ascertains the level of risk and 
the risk of

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lethality using standardized instruments in accordance with subpart A of 
this part and DoD Instruction 6400.06, and Service FAP headquarters 
policies and guidance.
    (iii) PS 71: Ongoing risk assessment. (A) FAP risk assessment is 
conducted from the clinical assessment until the case closes:
    (1) During each contact with the victim;
    (2) During each contact with the abuser (whether alleged or 
adjudicated);
    (3) Whenever the abuser is alleged to have committed a new incident 
of child abuse or domestic abuse;
    (4) During significant transition periods for the victim or abuser;
    (5) When destabilizing events for the victim or abuser occur; or
    (6) When any clinically relevant issues are uncovered during 
clinical intervention services.
    (B) The FAP case manager monitors risk at least quarterly when 
civilian agencies provide the clinical intervention services or child 
welfare services through MOUs with such agencies.
    (C) The FAP case manager monitors risk at least monthly when the 
case is high risk or involves chronic child neglect or child sexual 
abuse.
    (iv) PS 72: Communication of increased risk. The FAPM communicates 
increases in risk or risk of lethality to the appropriate commander(s), 
law enforcement, or civilian officials. FAP clinical staff assess 
whether the increased risk requires the victim or the victim advocate to 
be urged to review the victim's safety plan.
    (5) Clinical assessment--(i) PS 73: Clinical assessment policy. The 
installation FAPM establishes procedures for the prompt clinical 
assessment of victims, abusers (whether alleged or adjudicated), and 
other family members, who are eligible to receive treatment in a 
military medical facility, in reports of child abuse and unrestricted 
reports of domestic abuse in accordance with subpart A of this part and 
DoD 6025.18-R when applicable and Service FAP headquarters policies and 
guidance, including:
    (A) A prompt response based on the severity of the alleged abuse and 
further risk of child abuse or domestic abuse.
    (B) Developmentally appropriate clinical tools and measures to be 
used, including those that take into account relevant cultural attitudes 
and practices.
    (C) Timelines for FAP staff to complete the assessment of an alleged 
abuse incident.
    (ii) PS 74: Gathering and disclosure of information. Service members 
who conduct clinical assessments and provide clinical services to 
Service member abusers (whether alleged or adjudicated) must adhere to 
Service policies with respect to advisement of rights in accordance with 
10 U.S.C. chapter 47, also known as ``The Uniform Code of Military 
Justice''. Clinical service providers must also seek guidance from the 
servicing legal office when a question of applicability arises. Before 
obtaining information about and from the person being assessed, FAP 
staff fully discuss with such person:
    (A) The nature of the information that is being sought.
    (B) The sources from which such information will be sought.
    (C) The reason(s) why the information is being sought.
    (D) The circumstances in accordance with 5 U.S.C. 552a, DoD 6025.18-
R, 32 CFR part 310, and Service FAP headquarters policies and guidance 
under which the information may be released to others.
    (E) The procedures under 5 U.S.C. 552a, DoD 6025.18-R, 32 CFR part 
310, and Service FAP headquarters policies and guidance for requesting 
the person's authorization for such information.
    (F) The procedures under 5 U.S.C. 552a, DoD 6025.18-R, 32 CFR part 
310, and Service FAP headquarters policies and guidance by which a 
person may request access to his or her record.
    (iii) PS 75: Components of clinical assessment. FAP staff conducts 
or ensures that a clinical service provider conducts a clinical 
assessment of each victim, abuser (whether alleged or adjudicated), and 
other family member who is eligible for treatment in a military

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medical treatment facility, in accordance with PS 73, located at 
paragraph (e)(5)(i) of this section, including:
    (A) An interview.
    (B) A review of pertinent records.
    (C) A review of information obtained from collateral contacts, 
including but not limited to medical providers, schools, child 
development centers, and youth programs.
    (D) A psychosocial assessment, including developmentally appropriate 
assessment tools for infants, toddlers, and children.
    (E) An assessment of the basic health, developmental, safety, and 
special health and mental health needs of infants and toddlers.
    (F) An assessment of the presence and balance of risk and protective 
factors.
    (G) A safety assessment.
    (H) A lethality assessment.
    (iv) PS 76: Ethical conduct in clinical assessments. When conducting 
FAP clinical assessments, FAP staff treat those being clinically 
assessed with respect, fairness, and in accordance with professional 
ethics.
    (6) Intervention strategy and treatment plan--(i) PS 77: 
Intervention strategy and treatment plan for the alleged abuser. The FAP 
case manager prepares an appropriate intervention strategy based on the 
clinical assessment for every abuser (whether alleged or adjudicated) 
who is eligible to receive treatment in a military treatment facility 
and for whom a FAP case is opened. The intervention strategy documents 
the client's goals for self, the level of client involvement in 
developing the treatment goals, and recommends appropriate:
    (A) Actions that may be taken by appropriate authorities under the 
coordinated community response, including safety and protective 
measures, to reduce the risk of another act of child abuse or domestic 
abuse, and the assignment of responsibilities for carrying out such 
actions.
    (B) Treatment modalities based on the clinical assessment that may 
assist the abuser (whether alleged or adjudicated) in ending his or her 
abusive behavior.
    (C) Actions that may be taken by appropriate authorities to assess 
and monitor the risk of recurrence.
    (ii) PS 78: Commanders' access to relevant information for 
disposition of allegations. FAP provides commanders and senior enlisted 
personnel timely access to relevant information on child abuse incidents 
and unrestricted reports of domestic abuse incidents to support 
appropriate disposition of allegations. Relevant information includes:
    (A) The intervention goals and activities described in PS 77, 
located at paragraph (e)(6)(i) of this section.
    (B) The alleged abuser's prognosis for treatment, as determined from 
a clinical assessment.
    (C) The extent to which the alleged abuser accepts responsibility 
for his or her behavior and expresses a genuine desire for treatment, 
provided that such information obtained from the alleged abuser was 
obtained in compliance with Service policies with respect to advisement 
of rights in accordance with 10 U.S.C. chapter 47.
    (D) Other factors considered appropriate for the command, including 
the results of any previous treatment of the alleged abuser for child 
abuse or domestic abuse and his or her compliance with the previous 
treatment plan, and the estimated time the alleged abuser will be 
required to be away from military duties to fulfill treatment 
commitments.
    (E) Status of any child taken into protective custody.
    (iii) PS 79: Supportive services plan for the victim and other 
family members. The FAP case manager prepares a plan for appropriate 
supportive services or clinical treatment, based on the clinical 
assessments, for every victim or family member who is eligible to 
receive treatment in a military treatment facility, who expresses a 
desire for FAP services, and for whom a FAP case is opened. The plan 
recommends one or more appropriate treatment modalities or support 
services, in accordance with subpart A of this part and DoD Instruction 
6400.05 and Service FAP headquarters policies and guidance.
    (iv) PS 80: Clinical consultation. All FAP clinical assessments and 
treatment plans for persons in incidents of

[[Page 268]]

child abuse or domestic abuse are reviewed in the CCSM, in accordance 
with DoD 6025.18-R when applicable, 32 CFR part 310, and Service FAP 
headquarters policies and guidance.
    (7) Intervention and treatment--(i) PS 81: Intervention services for 
abusers. Appropriate intervention services for an abuser (whether 
alleged or adjudicated) who is eligible to receive treatment in a 
military medical program are available either from the FAP or from other 
military agencies, contractors, or civilian services providers, 
including:
    (A) Psycho-educationally based programs and services.
    (B) Supportive services that may include financial counseling and 
spiritual support.
    (C) Clinical treatment specifically designed to address risk and 
protective factors and dynamics associated with child abuse or domestic 
abuse.
    (D) Trauma informed clinical treatment when appropriate.
    (ii) PS 82: Supportive services or treatment for victims who are 
eligible to receive treatment in a military treatment facility. 
Appropriate supportive services and treatment are available either from 
the FAP or from other military agencies, contractors, or civilian 
services providers, including:
    (A) Immediate and ongoing domestic abuse victim advocacy services, 
available 24 hours per day through personal or telephone contact, as set 
forth in DoD Instruction 6400.06 and Service FAP headquarters policies 
and guidance.
    (B) Supportive services that may include financial counseling and 
spiritual support.
    (C) Psycho-educationally based programs and services.
    (D) Appropriate trauma informed clinical treatment specifically 
designed to address risk and protective factors and dynamics associated 
with child abuse or domestic abuse victimization.
    (E) Supportive services, information and referral, safety planning, 
and treatment (when appropriate) for child victims and their family 
members of abuse by non-caretaking offenders.
    (iii) PS 83: Supportive services for victims or offenders who are 
not eligible to receive treatment in a military treatment facility. 
Victims must receive initial safety-planning services only and must be 
referred to civilian support services for all follow-on care. Offenders 
must receive referrals to appropriate civilian intervention or treatment 
programs.
    (iv) PS 84: Ethical conduct in supportive services and treatment for 
abusers and victims. When providing FAP supportive services and 
treatment, FAP staff treats those receiving such supportive services or 
clinical treatment with respect, fairness, and in accordance with 
professional ethics.
    (v) PS 85: CCSM review of treatment progress. Treatment progress and 
the results of the latest risk assessment are reviewed periodically in 
the CCSM in accordance with subpart A of this part.
    (A) Child sexual abuse cases are reviewed monthly in the CCSM.
    (B) Cases involving foster care placement of children are reviewed 
monthly in the CCSM.
    (C) All other cases are reviewed at least quarterly in the CCSM.
    (D) Cases must be reviewed within 30 days of any significant event 
or a pending significant event that would impact care, including but not 
limited to a subsequent maltreatment incident, geographic move, 
deployment, pending separation from the Service, or retirement.
    (vi) PS 86: Continuity of services. The FAP case manager ensures 
continuity of services before the transfer or referral of open child 
abuse or domestic abuse cases to other service providers:
    (A) At the same installation or other installations of the same 
Service FAP headquarters.
    (B) At installations of other Service FAP headquarters.
    (C) In the civilian community.
    (D) In child welfare services in the civilian community.
    (8) Termination and case closure--(i) PS 87: Criteria for case 
closure. FAP services are terminated and the case is closed when 
treatment provided to the abuser (whether alleged or adjudicated) is 
terminated and treatment or supportive services provided to the victim 
are terminated.
    (A) Treatment provided to the abuser(s) (whether alleged or 
adjudicated) is terminated only if either:

[[Page 269]]

    (1) The CCSM discussion produced a consensus that clinical 
objectives have been substantially met and the results of a current risk 
assessment indicate that the risk of additional abuse and risk of 
lethality have declined; or
    (2) The CCSM discussion produced a consensus that clinical 
objectives have not been met due to:
    (i) Noncompliance of such abuser(s) with the requirements of the 
treatment program.
    (ii) Unwillingness of such abuser(s) to make changes in behavior 
that would result in treatment progress.
    (B) Treatment and supportive services provided to the victim are 
terminated only if either:
    (1) The CCSM discussion produced a consensus that clinical 
objectives have been substantially met; or
    (2) The victim declines further FAP supportive services.
    (ii) PS 88: Communication of case closure. Upon closure of the case 
the FAP notifies:
    (A) The abuser (whether alleged or adjudicated) and victim, and in a 
child abuse case, the non-abusing parent.
    (B) The commander of an active duty victim or abuser (whether 
alleged or adjudicated).
    (C) Any appropriate civilian court currently exercising jurisdiction 
over the abuser (whether alleged or adjudicated), or in a child abuse 
case, over the child.
    (D) A civilian child protective services agency currently exercising 
protective authority over a child victim.
    (E) The NPSP, if the family has been currently receiving NPSP 
intensive home visiting services.
    (F) The domestic abuse victim advocate if the victim has been 
receiving victim advocacy services.
    (iii) PS 89: Disclosure of information. Information gathered during 
FAP clinical assessments and during treatment or supportive services 
that is protected from disclosure under 5 U.S.C. 552a, DoD 6025.18-R, 
and 32 CFR part 310 is only disclosed in accordance with 5 U.S.C. 552a, 
DoD 6025.18-R, 32 CFR part 310, and Service FAP headquarters 
implementing policies and guidance.
    (f) Documentation and records management--(1) Documentation of NPSP 
cases--(i) PS 90: NPSP case record documentation. For every client 
screened for NPSP services, NPSP personnel must document in accordance 
with Service FAP headquarters policies and guidance, at a minimum:
    (A) The informed consent of the parents based on the services 
offered.
    (B) The results of the initial screening for risk and protective 
factors and, if the risk was high, document:
    (1) The assessment(s) conducted.
    (2) The plan for services and goals for the parents.
    (3) The services provided and whether suspected child abuse or 
domestic abuse was reported.
    (4) The parents' progress toward their goals at the time NPSP 
services ended.
    (ii) PS 91: Maintenance, storage, and security of NPSP case records. 
NPSP case records are maintained, stored, and kept secure in accordance 
with DoD 6025.18-R when applicable, 32 CFR part 310, and Service FAP 
headquarters policies and guidance.
    (iii) PS 92: Transfer of NPSP case records. NPSP case records are 
transferred in accordance with DoD 6025.18-R when applicable, 32 CFR 
part 310, and Service FAP headquarters policies and procedures.
    (iv) PS 93: Disposition of NPSP records. NPSP records are disposed 
of in accordance with DoD 6025.18-R when applicable, 32 CFR part 310, 
and Service FAP headquarters policies and guidance.
    (2) Documentation of reported incidents--(i) PS 94: Reports of child 
abuse and unrestricted reports of domestic abuse. For every new reported 
incident of child abuse and unrestricted report of domestic abuse, the 
FAP documents, at a minimum, an accurate accounting of all risk levels, 
actions taken, assessments conducted, foster care placements, clinical 
services provided, and results of the quarterly CCSM from the initial 
report of an incident to case closure in accordance with Service FAP 
headquarters policies and guidance.
    (ii) PS 95: Documentation of multiple incidents. Multiple reported 
incidents of child abuse and unrestricted reports of domestic abuse 
involving the same Service member or family members are documented 
separately within one FAP case record.
    (iii) PS 96: Maintenance, storage, and security of FAP case records. 
FAP case

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records are maintained, stored, and kept secure in accordance with 
Service FAP headquarters policies and procedures.
    (iv) PS 97: Transfer of FAP case records. FAP case records are 
transferred in accordance with DoD 6025.18-R when applicable, 32 CFR 
part 310, and Service FAP headquarters policies and procedures.
    (v) PS 98: Disposition of FAP records. FAP records are disposed of 
in accordance with DoD Directive 5015.2, ``DoD Records Management 
Program'' (available at http://www.dtic.mil/whs/ directives/corres/pdf/ 
501502p.pdf) and Service FAP headquarters policies and guidance.
    (3) Central registry of child abuse and domestic abuse incidents--
(i) PS 99: Recording data into the Service FAP headquarters central 
registry of child abuse and domestic abuse incidents. Data pertaining to 
child abuse and unrestricted domestic abuse incidents reported to FAP 
are added to the Service FAP headquarters central registry of child and 
domestic abuse incidents. Quarterly edit checks are conducted in 
accordance with Service FAP headquarters policies and procedures. Data 
that personally identifies the sponsor, victim, or alleged abuser are 
not retained in the central registry for any incidents that did not meet 
criteria for entry or on any victim or alleged abuser who is not an 
active duty member or retired Service member, DoD civilian employee, 
contractor, or eligible beneficiary.
    (ii) PS 100: Access to the DoD central registry of child and 
domestic abuse incidents. Access to the DoD central registry of child 
and domestic abuse incidents and disclosure of information therein 
complies with DoD 6400.1-M-1 and Service FAP headquarters policies and 
guidance.
    (iii) PS 101: Access to Service FAP headquarters central registry of 
child and domestic abuse reports. Access to the Service FAP headquarters 
central registry of child and domestic abuse incidents and disclosure of 
information therein complies with DoD 6400.1-M-1 and Service FAP 
headquarters policies and procedures.
    (4) Documentation of restricted reports of domestic abuse--(i) PS 
102: Documentation of restricted reports of domestic abuse. Restricted 
reports of domestic abuse are documented in accordance with DoD 
Instruction 6400.06 and Service FAP headquarters policies and guidance.
    (ii) PS 103: Maintenance, storage, security, and disposition of 
restricted reports of domestic abuse. Records of restricted reports of 
domestic abuse are maintained, stored, kept secure, and disposed of in 
accordance with DoD Instruction 6400.06 and Service FAP headquarters 
policies and procedures.
    (g) Fatality notification and review--(1) Fatality notification--(i) 
PS 104: Domestic abuse fatality and child abuse fatality notification. 
The installation FAC establishes local procedures in compliance with 
Service FAP headquarters implementing policy and guidance to report 
fatalities known or suspected to have resulted from an act of domestic 
abuse, child abuse, or suicide related to an act of domestic abuse or 
child abuse that involve personnel assigned to the installation or 
within its area of responsibility. Fatalities are reported through the 
Service FAP headquarters and the Secretaries of the Military Departments 
to the DASD(MC&FP) in compliance with subpart A of this part and DoD 
Instruction 6400.06, and Service FAP headquarters implementing policy 
and guidance.
    (ii) PS 105: Timeliness of reporting domestic abuse and child abuse 
fatalities to DASD(MC&FP). The designated installation personnel report 
domestic abuse and child abuse fatalities through the Service FAP 
headquarters channels to the DASD(MC&FP) within the timeframe specified 
in DoD Instruction 6400.06 in accordance with the Service FAP 
headquarters implementing policy and guidance.
    (iii) PS 106: Reporting format for domestic abuse and child abuse 
fatalities. Installation reports of domestic abuse and child abuse 
fatalities are reported on the DD Form 2901, ``Child Abuse or Domestic 
Abuse Related Fatality Notification,'' and in accordance with subpart A 
of this part.
    (2) Review of fatalities--(i) PS 107: Information forwarded to the 
Service FAP headquarters fatality review. The installation provides 
written information concerning domestic abuse and child

[[Page 271]]

abuse fatalities that involve personnel assigned to the installation or 
within its area of responsibility promptly to the Service FAP 
headquarters fatality review team in accordance with DoD Instruction 
6400.06 and in the format specified in the Service FAP headquarters 
implementing policy and guidance.
    (ii) PS 108: Cooperation with non-DoD fatality review teams. 
Authorized installation personnel provide information about domestic 
abuse and child abuse fatalities that involve personnel assigned to the 
installation or within its area of responsibility to non-DoD fatality 
review teams in accordance with written MOUs and 5 U.S.C. 552a and 32 
CFR part 310.
    (h) QA and accreditation or inspections--(1) QA--(i) PS 109: 
Installation FAP QA program. The installation FAC will establish local 
QA procedures that address compliance with the PSs in this section in 
accordance with subpart A of this part and Service FAP headquarters 
implementing policy and guidance.
    (ii) PS 110: QA Training. All FAP personnel must be trained in 
installation QA procedures.
    (iii) PS 111: Monitoring FAP compliance with PSs. The installation 
FAPM monitors compliance of FAP personnel to installation QA procedures 
and the PSs in this section.
    (2) Accreditation or inspections--(i) PS 112: Accreditation or 
inspections. The installation FAP undergoes accreditation or inspection 
at least every 4 years to monitor compliance with the PSs in this 
section, in accordance with subpart A of this part and Service FAP 
headquarters policies and guidance.
    (ii) PS 113: Review of accreditation and inspection results. The 
installation FAC reviews the results of the FAP accreditation review or 
inspection and submits findings and corresponding corrective action 
plans to the Service FAP headquarters in accordance with its 
implementing policy and guidance.

              Appendix to Sec.   61.12--Index of FAP Topics
------------------------------------------------------------------------
               Topic                   PS number(s)      Page number(s)
------------------------------------------------------------------------
Accreditation/inspection of FAP...            109-113                 37
Case manager......................                 69                 27
Case closure......................              87-89              33-34
Case transfer.....................             92, 97              34-35
Central registry..................             99-101                 35
    Access to DoD central registry                100                 35
    Access to Service FAP                         101                 35
     Headquarters central registry
    Reporting of statistics.......                 36              17-18
Child abuse reports...............              60-64              25-26
    Coordination with other                        62                 26
     authorities..................
    Emergency removal of a child..                 61                 26
    FAP and military law                           10                 10
     enforcement communication....
    Protection of children........                 11                 10
    Involving infants and toddlers                 63                 26
     birth to age three...........
    Sexual abuse in DoD-sanctioned                 64                 26
     activities...................
Clinical assessment policy........                 73                 28
    Components of FAP clinical                     75                 29
     assessment...................
    Ethical conduct...............                 76                 30
    Gathering and disclosing                       74                 29
     information..................
    Informed consent..............              66-68                 27
Clinical consultation.............                 80                 31
Collaboration between military                      6                  9
 installations....................
Continuity of services............                 87                 33
Coordinated community response....                2-4                7-9
    Emergency response plan.......                  9                 10
    FAP and military law                           10                 10
     enforcement..................
    MOUs..........................                  5                  9
Criminal history record check.....                 27                 15
Disclosure of information.........     15, 54, 74, 90     12, 23, 28, 34
Disposition of records............
    FAP records...................                 98                 35
    NPSP records..................                 93                 34
    Restricted reports of domestic                103                 36
     abuse........................
Documentation.....................
    Informed consent..............                 67                 27
    Multiple incidents............                 95                 35
    NPSP cases....................                 90                 34
    Reports of child abuse........                 94                 35

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    Restricted reports of domestic                102                 36
     abuse........................
    Unrestricted reports of                        94                 34
     domestic abuse...............
Domestic abuse....................
    Clinical assessment...........              73-76              28-30
    Clinical case management......              69-72              27-28
    FAP and military law                           10                 10
     enforcement communication....
    FAP case manager..............                 69                 27
    Informed consent..............              66-69                 27
    Privileged communication......                 68                 27
    Response to reports...........                 65                 25
    Victim advocacy services......                  7                  9
Emergency response plan...........                  9                 10
FAC...............................                1-4                7-9
    Coordinated community response                  2                  7
     and risk management plan.....
    Establishment.................                  1                  7
    Monitoring of coordinated                       3                  8
     community response and risk
     management...................
    Risk management...............              3, 13              8, 11
    Roles, functions,                               4                  8
     responsibilities.............
FAP...............................
    Accreditation/inspection......            109-113                 37
    Clinical staff qualifications.                 28                 15
    Coordinated community response                  2                  7
     and risk management plan.....
    Criminal history background                    27                 15
     check........................
    Establishment.................                 21                 13
    FAP manager...................                 23                 14
    Funding.......................                 24                 14
    Internal and external duress                   32                 16
     system.......................
    Management information system                  35                 17
     policy.......................
    Metrics.......................                 36              17-18
    NPSP staff qualifications.....                 31                 16
    Operations policy.............                 22                 13
    Other resources...............                 25                 14
    Personnel requirements........                 26                 15
    Prevention and education staff                 29                 15
     qualifications...............
    QA............................            110-112                 37
    Victim advocate personnel                       8                  9
     requirements.................
    Victim advocate staff                          30                 16
     qualifications...............
Fatality notification.............            104-106                 36
    Reporting format..............                106                 36
    Timeliness of report to OSD...                105                 36
Fatality review...................            107-108                 36
    Cooperation with non-DoD                      108                 36
     fatality review teams........
    Service FAP headquarters                      107                 36
     fatality review process......
IDC...............................
    Establishment.................                 17                 12
    Operations....................                 18                 12
    QA............................                 20                 13
    Training of IDC members.......                 19                 12
Intervention strategy and
 treatment plan...................
    CCSM review of treatment                       85                 32
     progress.....................
    Clinical consultation.........                 80                 31
    Commander's access to                          78                 30
     information..................
    Communication of case closure.                 88                 33
    Continuity of services........                 86                 32
    Criteria for case closure.....                 87                 33
    Disclosure of information.....                 89                 34
    Ethical conduct in supportive                  84                 32
     services.....................
    Informed consent..............                 66                 27
    Intervention services for                      81                 31
     abusers......................
    Intervention strategy and                      77                 30
     treatment plan for abusers...
    Supportive services and                        82                 31
     treatment for eligible
     victims......................
    Supportive services for                        83                 32
     ineligible victims...........
Management information system.....              35-36              17-18
    Policy........................                 35                 17
    Reporting statistics..........                 36                 17
    Domestic abuse offender                        36                 17
     treatment....................
    Domestic abuse victim advocate                 36                 17
     metrics......................
    FAP metrics...................                 36                 17
    NPSP metrics..................                 36                 18
MOU...............................                  5                  9
Metrics...........................                 36              17-18
    Domestic abuse treatment......                 36                 18

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    Domestic abuse victim advocacy                 36                 18
    FAP...........................                 36                 17
    NPSP..........................                 36                 18
NPSP..............................
    Continuing risk assessment....                 53                 23
    Disclosure of information.....                 54                 23
    Disposition of records........                 93                 34
    Eligibility...................                 47                 22
    Frequency of home visits......                 51                 23
    Informed consent..............                 46                 21
    Internal and external duress                   32                 16
     system.......................
    Maintenance, storage, and                      91                 34
     security of records..........
    Opening, transferring, and                     53                 23
     closing cases................
    Protection of home visitors...                 33                 16
    Protocol......................                 50                 23
    Referrals to NPSP.............                 45                 21
    Reporting known or suspected                   34                 17
     child abuse..................
    Screening.....................                 48                 22
    Services......................                 49                 22
    Staff qualifications..........                 31                 16
    Training for NPSP personnel...                 59                 25
    Transfer of NPSP records......                 92                 34
Prevention activities.............              40-44              20-21
    Collaboration.................                 41                 20
    Identification of populations                  43                 20
     for secondary prevention
     activities...................
    Implementation of activities                   40                 20
     in coordinated community
     response and risk management
     plan.........................
    Primary prevention activities.                 42                 20
    Secondary prevention                           44                 21
     activities...................
PMA...............................                 12                 11
Public awareness..................              37-39              19-20
    Collaboration to increase                      38                 19
     public awareness.............
    Components....................                 39              19-20
    Implementation of activities                   37                 19
     in the annual FAP plan.......
QA................................            109-113                 37
    FAP QA program................                109                 37
    Monitoring FAP QA.............                111                 37
    Training......................                110                 37
Records Management................
    Disposition of FAP records....                 98                 35
    Disposition of NPSP records...                 93                 34
    FAP case records maintenance,                  96                 35
     storage, and security........
    NPSP case records maintenance,                 91                 34
     storage, and security........
    Transfer of FAP records.......                 97                 35
    Transfer of NPSP records......                 92                 34
    Unrestricted reports of                        94                 35
     domestic abuse...............
Risk management...................                 13                 11
    Assessments...................                 14                 11
    Case manager..................                 69                 27
    Communication of increased                     72                 28
     risk.........................
    Deployment....................                 16                 12
    Disclosure of information.....                 15                 12
    Initial risk monitoring.......                 70                 27
    Ongoing risk assessment.......                 71                 27
    Review and monitoring of the                 2, 3               7, 8
     coordinated community
     response and risk management
     plan.........................
    PMA...........................                 12                 11
Training..........................
    Commanders and senior enlisted                 56                 23
     advisors.....................
    Content.......................                 58                 24
    FAC and IDC...................                 19                 12
    Implementation of training                     55                 23
     requirements.................
    Installation personnel........                 57                 24
    NPSP personnel................                 59                 25
    QA............................                111                 37
------------------------------------------------------------------------


[[Page 274]]

Subparts C-D [Reserved]



 Subpart E_Guidelines for Clinical Intervention for Persons Reported as 
                            Domestic Abusers

    Authority: 10 U.S.C. chapter 47, 42 U.S.C. 5106g, 42 U.S.C. 13031.



Sec.  61.25  Purpose.

    (a) This part is composed of several subparts, each containing its 
own purpose. This subpart implements policy, assigns responsibilities, 
and provides procedures for addressing child abuse and domestic abuse in 
military communities.
    (b) Restricted reporting guidelines are provided in DoD Instruction 
6400.06, ``Domestic Abuse Involving DoD Military and Certain Affiliated 
Personnel'' (available at http://www.dtic.mil/whs/ directives/corres/
pdf/ 640006p.pdf). This subpart prescribes guidelines for Family 
Advocacy Program (FAP) assessment, clinical rehabilitative treatment, 
and ongoing monitoring of individuals who have been reported to FAP by 
means of an unrestricted report for domestic abuse against:
    (1) Current or former spouses, or
    (2) Intimate partners.



Sec.  61.26  Applicability.

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



Sec.  61.27  Definitions.

    Unless otherwise noted, the following terms and their definitions 
are for the purpose of this subpart.
    Abuser. An individual adjudicated in a military disciplinary 
proceeding or civilian criminal proceeding who is found guilty of 
committing an act of domestic violence or a lesser included offense, as 
well as an individual alleged to have committed domestic abuse, 
including domestic violence, who has not had such an allegation 
adjudicated.
    Abuser contract. The treatment agreement between the clinician and 
the abuser that specifies the responsibilities and expectations of each 
party. It includes specific abuser treatment goals as identified in the 
treatment plan and clearly specifies that past, present, and future 
allegations and threats of domestic abuse and child abuse or neglect 
will be reported to the active duty member's commander, to local law 
enforcement and child protective services, as appropriate, and to the 
potential victim.
    Clinical case management. Defined in subpart B of this part.
    Clinical case staff meeting (CCSM). Defined in subpart B of the 
part.
    Clinical intervention. Defined in subpart B of this part.
    Domestic abuse. Domestic violence or a pattern of behavior resulting 
in emotional/psychological abuse, economic control, and/or interference 
with personal liberty that is directed toward a person who is:
    (1) A current or former spouse;
    (2) A person with whom the abuser shares a child in common; or
    (3) A current or former intimate partner with whom the abuser shares 
or has shared a common domicile.
    Domestic violence. An offense under the United States Code, the 
UCMJ, or State law involving the use, attempted use, or threatened use 
of force or violence against a person, or a violation of a lawful order 
issued for the protection of a person, who is:
    (1) A current or former spouse.
    (2) A person with whom the abuser shares a child in common; or
    (3) A current or former intimate partner with whom the abuser shares 
or has shared a common domicile.
    FAP Manager. Defined in subpart A of this part.
    Incident determination committee. Defined in subpart A of this part.
    Intimate partner. A person with whom the victim shares a child in 
common, or a person with whom the victim shares or has shared a common 
domicile.
    Risk management. Defined in subpart B of this part.

[[Page 275]]

    Severe abuse. Exposure to chronic pattern of emotionally abusive 
behavior with physical or emotional effects requiring hospitalization or 
long-term mental health treatment. In a spouse emotional abuse incident, 
this designation requires an alternative environment to protect the 
physical safety of the spouse. Exposure to a chronic pattern of 
neglecting behavior with physical, emotional, or educational effects 
requiring hospitalization, long-term mental health treatment, or long-
term special education services. Physical abuse resulting in major 
physical injury requiring inpatient medical treatment or causing 
temporary or permanent disability or disfigurement; moderate or severe 
emotional effects requiring long-term mental health treatment; and may 
require placement in an alternative environment to protect the physical 
safety or other welfare of the victim. Sexual abuse involving oral, 
vaginal, or anal penetration that may or may not require one or more 
outpatient visits for medical treatment; may be accompanied by injury 
requiring inpatient medical treatment or causing temporary or permanent 
disability or disfigurement; moderate or severe emotional effects 
requiring long-term mental health treatment; and may require placement 
in an alternative environment to protect the physical safety or welfare 
of the victim.
    Unrestricted report. A process allowing a victim of domestic abuse 
to report an incident using current reporting channels, e.g. chain of 
command, law enforcement or criminal investigative organization, and FAP 
for clinical intervention.



Sec.  61.28  Policy.

    In accordance with subpart A of this part and DoD Instruction 
6400.06, it is DoD policy to:
    (a) Develop PSs and critical procedures for the FAP that reflect a 
coordinated community response to domestic abuse.
    (b) Address domestic abuse within the military community through a 
coordinated community risk management approach.
    (c) Provide appropriate individualized and rehabilitative treatment 
that supplements administrative or disciplinary action, as appropriate, 
to persons reported to FAP as domestic abusers.



Sec.  61.29  Responsibilities.

    (a) The Under Secretary of Defense for Personnel and Readiness 
(USD(P&R)):
    (1) Sponsors FAP research and evaluation and participates in other 
federal research and evaluation projects relevant to the assessment, 
treatment, and risk management of domestic abuse.
    (2) Ensures that research is reviewed every 3 to 5 years and that 
relevant progress and findings are distributed to the Secretaries of the 
Military Departments using all available Web-based applications.
    (3) Assists the Secretaries of the Military Departments to:
    (i) Identify tools to assess risk of recurrence.
    (ii) Develop and use pre- and post-treatment measures of 
effectiveness.
    (iii) Promote training in the assessment, treatment, and risk 
management of domestic abuse.
    (b) The Secretaries of the Military Departments issue implementing 
guidance in accordance with this part. The guidance must provide for the 
clinical assessment, rehabilitative treatment, and ongoing monitoring 
and risk management of Service members and eligible beneficiaries 
reported to FAP for domestic abuse by means of an unrestricted report.



Sec.  61.30  Procedures.

    (a) General principles for clinical intervention--(1) Components of 
clinical intervention. The change from abusive to appropriate behavior 
in domestic relationships is a process that requires clinical 
intervention, which includes ongoing coordinated community risk 
management, assessment, and treatment.
    (2) Military administrative and disciplinary actions and clinical 
intervention. The military disciplinary system and FAP clinical 
intervention are separate processes. Commanders may proceed with 
administrative or disciplinary actions at any time.
    (3) Goals of clinical intervention. the primary goals of clinical 
intervention

[[Page 276]]

in domestic abuse are to ensure the safety of the victim and community, 
and promote stopping abusive behaviors.
    (4) Therapeutic alliance--(i) Although clinical intervention must 
address abuser accountability, clinical assessment and treatment 
approaches should be oriented to building a therapeutic alliance with 
the abuser so that he or she is sincerely motivated to take 
responsibility for his or her actions, improve relationship skills, and 
end the abusive behavior.
    (ii) Clinical intervention will neither be confrontational nor 
intentionally or unintentionally rely on the use of shame to address the 
abuser's behavior. Such approaches have been correlated in research 
studies with the abuser's premature termination of or minimal compliance 
with treatment.
    (A) It is appropriate to encourage abusers to take responsibility 
for their use of violence; however, in the absence of a strong, 
supportive, therapeutic relationship, confrontational approaches may 
induce shame and are likely to reduce treatment success and foster 
dropout. Approaches that create and maintain a therapeutic alliance are 
more likely to motivate abusers to seek to change their behaviors, add 
to their relationship skills, and take responsibility for their actions. 
Studies indicate that a strong therapeutic alliance is related to 
decreased psychological and physical aggression.
    (B) A clinical style that helps the abuser identify positive 
motivations to change his or her behavior is effective in strengthening 
the therapeutic alliance while encouraging the abuser to evaluate his or 
her own behavior. Together, the therapist and abuser attempt to identify 
the positive consequences of change, identify motivation for change, 
determine the obstacles that lie in the path of change, and identify 
specific behaviors that the abuser can adopt.
    (5) Criteria for clinical intervention approaches. Clinical 
intervention approaches should reflect the current state of knowledge. 
This subpart recommends an approach (or multiple approaches) and 
procedures that have one or more of these characteristics:
    (i) Demonstrated superiority in formal evaluations in comparison to 
one or more other approaches.
    (ii) Demonstrated statistically significant success in formal 
evaluations, but not yet supported by a consensus of experts.
    (iii) The support of a consensus due to significant potential in the 
absence of statistically significant success.
    (iv) Significant potential when consensus does not yet exist.
    (6) Clinical intervention for female abusers. Findings from research 
and clinical experience indicate that women who are domestic abusers may 
require clinical intervention approaches other than those designed 
specifically for male abusers.
    (i) Attention should be given to the motivation and context for 
their use of abusive behaviors to discover whether or not using violence 
against their spouse, former spouse, or intimate partner has been in 
response to his or her domestic abuse.
    (ii) Although both men and women who are domestic abusers may have 
undergone previous traumatic experiences that may warrant treatment, 
women's traumatic experiences may require additional attention within 
the context of domestic abuse.
    (7) Professional standards. Domestic abusers who undergo clinical 
intervention will be treated with respect, fairness, and in accordance 
with professional ethics. All applicable rights of abusers will be 
observed, including compliance with the rights and warnings in 10 U.S.C. 
831, chapter 47, also known and referred to in this subpart as the 
``Uniform Code of Military Justice (UCMJ)'' for abusers who are Service 
members.
    (i) Clinical service providers who conduct clinical assessments of 
or provide clinical treatment to abusers will adhere to Service policies 
with respect to the advisement of rights pursuant to the UCMJ, will seek 
guidance from the supporting legal office when a question of 
applicability arises, and will notify the relevant military law 
enforcement investigative agency if advisement of rights has occurred.
    (ii) Clinical service providers and military and civilian victim 
advocates must follow the Privacy Act of 1974, as

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amended, and other applicable laws, regulations, and policies regarding 
the disclosure of information about victims and abusers.
    (iii) Individuals and agencies providing clinical intervention to 
persons reported as domestic abusers will not discriminate based on 
race, color, religion, gender, disability, national origin, age, or 
socioeconomic status. All members of clinical intervention teams will 
treat abusers with dignity and respect regardless of the nature of their 
conduct or the crimes they may have committed. Cultural differences in 
attitudes will be recognized, respected, and addressed in the clinical 
assessment process.
    (8) Clinical case management. The FAP clinical service provider has 
the responsibility for clinical case management.
    (b) Coordinated community risk management--(1) General. A 
coordinated community response to domestic abuse is the preferred method 
to enhance victim safety, reduce risk, and ensure abuser accountability. 
In a coordinated community response, the training, policies, and 
operations of all civilian and military human service and FAP clinical 
service providers are linked closely with one another. Since no 
particular response to a report of domestic abuse can ensure that a 
further incident will not occur, selection of the most appropriate 
response will be considered one of coordinated community risk 
management.
    (2) Responsibility for coordinated community risk management. 
Overall responsibility for managing the risk of further domestic abuse, 
including developing and implementing an intervention plan when 
significant risk of lethality or serious injury is present, lies with:
    (i) The Service member's commander when a Service member is a 
domestic abuser or is the victim (or their military dependent is the 
victim) of domestic abuse.
    (ii) The commander of the installation or garrison on which a 
Service member who is a domestic abuser or who is the victim (or their 
military dependent who is the victim) of domestic abuse may live.
    (iii) The commander of the military installation on which the 
civilian is housed for a civilian abuser accompanying U.S. military 
forces outside the United States.
    (iv) The FAP clinical service provider or case manager for liaison 
with civilian authorities in the event the abuser is a civilian.
    (3) Implementation. Coordinated community risk management requires:
    (i) The commander of the military installation to participate in 
local coalitions and task forces to enhance communication and strengthen 
program development among activities. In the military community, this 
may include inviting State, local, and tribal government representatives 
to participate in their official capacity as non-voting guests in 
meetings of the Family Advocacy Committee (FAC) to discuss coordinated 
community risk management in domestic abuse incidents that cross 
jurisdictions. (See subpart B of this part for FAC standards.)
    (A) Agreements with non-federal activities will be reflected in 
signed MOU.
    (B) Agreements may be among military installations of different 
Military Services and local government activities.
    (ii) Advance planning through the installation FAC by:
    (A) The commander of the installation.
    (B) FAP and civilian clinical service providers.
    (C) Victim advocates in the military and civilian communities.
    (D) Military chaplains.
    (E) Military and civilian law enforcement agencies.
    (F) Military supporting legal office and civilian prosecutors.
    (G) Military and civilian mental health and substance abuse 
treatment agencies.
    (H) DoDEA school principals or their designees.
    (I) Other civilian community agencies and personnel including:
    (1) Criminal and family court judges.
    (2) Court probation officials.
    (3) Child protective services agencies.
    (4) Domestic abuse shelters.
    (iii) FAP clinical service providers to address:

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    (A) Whether treatment approaches under consideration are based on 
individualized assessments and directly address other relevant risk 
factors.
    (B) Whether the operational tempo of frequent and lengthy 
deployments to accomplish a military mission affects the ability of 
active duty Service members to complete a State-mandated treatment 
program.
    (C) Respective responsibilities for monitoring abusers' behavior on 
an ongoing basis, developing procedures for disclosure of relevant 
information to appropriate authorities, and implementing a plan for 
intervention to address the safety of the victim and community.
    (4) Deployment. Risk management of a Service member reported to FAP 
as a domestic abuser prior to a military deployment, when his or her 
deployment is not cancelled, or reported to FAP as a domestic abuser 
while deployed requires planning for his or her return to their home 
station.
    (i) The installation FAC should give particular attention to special 
and early returns so during deployment of a unit, the forward command is 
aware of the procedures to notify the home station command of regularly-
scheduled and any special or early returns of such personnel to reduce 
the risk of additional abuse.
    (ii) An active duty Service member reported as a domestic abuser may 
be returned from deployment early for military disciplinary or civilian 
legal procedures, for rest and recuperation (R&R), or, if clinical 
conditions warrant, for treatment not otherwise available at the 
deployed location and if the commander feels early return is necessary 
under the circumstances. To prevent placing a victim at higher risk, the 
deployed unit commander will notify the home station commander and the 
installation FAP in advance of the early return, unless operational 
security prevents such disclosure.
    (5) Clinical case management. Ongoing and active case management, 
including contact with the victim and liaison with the agencies in the 
coordinated community response, is necessary to ascertain the abuser's 
sincerity and changed behavior. Case management requires ongoing liaison 
and contact with multiple information sources involving both military 
and surrounding civilian community agencies. Clinical case management 
includes:
    (i) Initial clinical case management. Initial case management begins 
with the intake of the report of suspected domestic abuse, followed by 
the initial clinical assessment.
    (ii) Periodic clinical case management. Periodic case management 
includes the FAP clinical service provider's assessment of treatment 
progress and the risk of recurrence of abuse. Treatment progress and the 
results of the latest risk assessment should be discussed whenever the 
case is reviewed at the CCSM.
    (iii) Follow-up. As a result of the risk assessment, if there is a 
risk of imminent danger to the victim or to another person, the FAP 
clinical service provider may need to notify:
    (A) The victim or other person at risk and the victim advocate to 
review, and possibly revise, the safety plan.
    (B) The appropriate military command, and military or civilian law 
enforcement agency.
    (C) Other treatment providers to modify their intervention with the 
abuser. For example, the provider of substance abuse treatment may need 
to change the requirements for monitored urinalysis.
    (c) Clinical assessment--(1) Purposes. A structured clinical 
assessment of the abuser is a critical first step in clinical 
intervention. The purposes of clinical assessment are to:
    (i) Gather information to evaluate and ensure the safety of all 
parties--victim, abuser, other family members, and community.
    (ii) Assess relevant risk factors, including the risk of lethality.
    (iii) Determine appropriate risk management strategies, including 
clinical treatment; monitoring, controlling, or supervising the abuser's 
behavior to protect the victim and any individuals who live in the 
household; and victim safety planning.
    (2) Initial information gathering. Initial information gathering and 
risk assessment begins when the unrestricted report of domestic abuse is 
received by FAP.

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    (i) Since the immediacy of the response is based on the imminence of 
risk, the victim must be contacted as soon as possible to evaluate her 
or his safety, safety plan, and immediate needs. If a domestic abuse 
victim advocate is available, the victim advocate must contact the 
victim. If a victim advocate is not available, the clinician must 
contact the victim. Every attempt must be made to contact the victim via 
telephone or email to request a face-to-face interview. If the victim is 
unable or unwilling to meet face-to-face, the victim's safety, safety 
plan, and immediate needs will be evaluated by telephone.
    (ii) The clinician must interview the victim and abuser separately 
to maximize the victim's safety. Both victim and abuser must be assessed 
for the risk factors in paragraphs (c)(4) and (c)(6) of this section.
    (A) The clinician must inform the victim and abuser of the limits of 
confidentiality and the FAP process before obtaining information from 
them. Such information must be provided in writing as early as 
practical.
    (B) The clinician must build a therapeutic alliance with the abuser 
using an interviewing style that assesses readiness for and motivates 
behavioral change. The clinician must be sensitive to cultural 
considerations and other barriers to the client's engagement in the 
process.
    (iii) The clinician must also gather information from a variety of 
other sources to identify additional risk factors, clarify the context 
of the use of any violence, and determine the level of risk. The 
assessment must include information about whether the Service member is 
scheduled to be deployed or has been deployed within the past year, and 
the dates of scheduled or past deployments. Such sources of information 
may include:
    (A) The appropriate military command.
    (B) Military and civilian law enforcement.
    (C) Medical records.
    (D) Children and other family members residing in the home.
    (E) Others who may have witnessed the acts of domestic abuse.
    (F) The FAP central registry of child maltreatment and domestic 
abuse reports.
    (iv) The clinician will request disclosure of information and use 
the information disclosed in accordance with 32 CFR part 310 and DoD 
6025.18-R, ``DoD Health Information Privacy Regulation'' (available at 
http://www.dtic.mil/whs/ directives/corres/pdf/ 602518r.pdf).
    (3) Violence contextual assessment. The clinical assessment of 
domestic abuse will include an assessment of the use of violence within 
the context of relevant situational factors to guide intervention. 
Relevant situational factors regarding the use of violence include, but 
are not limited to:
    (i) Exacerbating factors. Exacerbating factors include whether 
either victim or domestic abuser:
    (A) Uses violence as an inappropriate means of expressing 
frustrations with life circumstances.
    (B) Uses violence as a means to exert and maintain power and control 
over the other party.
    (C) Has inflicted injuries on the other party during the 
relationship, and the extent of such injuries.
    (D) Fears the other.
    (ii) Mitigating factors. Mitigating factors include whether either 
victim or domestic abuser uses violence:
    (A) In self-defense.
    (B) To protect another person, such as a child.
    (C) In retaliation, as noted in the most recent incident or in the 
most serious incident.
    (4) Lethality risk assessment. The clinician must assess the risk 
for lethality in every assessment for domestic abuse, whether or not 
violence was used in the present incident. The lethality assessment will 
assess the presence of these factors:
    (i) For both victim and domestic abuser:
    (A) Increased frequency and severity of violence in the 
relationship.
    (B) Ease of access to weapons.
    (C) Previous use of weapons or threats to use weapons.
    (D) Threats to harm or kill the other party, oneself, or another 
(especially a child of either party).
    (E) Excessive use of alcohol and use of illegal drugs.

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    (F) Jealousy, possessiveness, or obsession, including stalking.
    (ii) For the domestic abuser only:
    (A) Previous acts or attempted acts of forced or coerced sex with 
the victim.
    (B) Previous attempts to strangle the victim.
    (iii) For the victim only:
    (A) The victim's attempts or statements of intent to leave the 
relationship.
    (B) If the victim is a woman, whether the victim is pregnant and the 
abuser's attitude regarding the pregnancy.
    (C) The victim's fear of harm from the abuser to himself or herself 
or any child of either party or other individual living in the 
household.
    (5) Results of lethality risk assessment. When one or more lethality 
factors are identified:
    (i) The clinician will promptly contact the appropriate commander 
and military or civilian law enforcement agency and the victim advocate.
    (ii) The commander or military law enforcement agency will take 
immediate steps to protect the victim, addressing the lethality 
factor(s) identified.
    (iii) The victim advocate will contact the victim to develop or 
amend any safety plan to address the lethality factor(s) identified.
    (iv) The commander will intensify ongoing coordinated community risk 
management and monitoring of the abuser.
    (6) Assessment of other risk factors. The clinician will separately 
assess the victim and abuser for other factors that increase risk for 
future domestic abuse. Such risk factors to be assessed include, but are 
not limited to, the abuser's:
    (i) Previous physical and sexual violence and emotional abuse 
committed in the current and previous relationships. The greater the 
frequency, duration, and severity of such violence, the greater the 
risk.
    (ii) Use of abuse to create and maintain power and control over 
others.
    (iii) Attitudes and beliefs directly or indirectly supporting 
domestic abusive behavior. The stronger the attitudes and beliefs, the 
greater the risk.
    (iv) Blaming of the victim for the abuser's acts. The stronger the 
attribution of blame to the victim, the greater the risk.
    (v) Denial that his or her abusive acts were wrong and harmful, or 
minimization of their wrongfulness and harmfulness.
    (vi) Lack of motivation to change his or her behavior. The weaker 
the motivation, the greater the risk.
    (vii) Physical and/or emotional abuse of any children in the present 
or previous relationships. The greater the frequency, duration, and 
severity of such abuse, the greater the risk.
    (viii) Physical abuse of pets or other animals. The greater the 
frequency, duration, and severity of such abuse, the greater the risk.
    (ix) Particular caregiver stress, such as the management of a child 
or other family member with disabilities.
    (x) Previous criminal behavior unrelated to domestic abuse. The 
greater the frequency, duration, and severity of such criminal behavior, 
the greater the risk.
    (xi) Previous violations of civil or criminal court orders. The 
greater the frequency of such violations, the greater the risk.
    (xii) Relationship problems, such as infidelity or significant 
ongoing conflict.
    (xiii) Financial problems.
    (xiv) Mental health issues or disorders, especially disorders of 
emotional attachment or depression and issues and disorders that have 
not been treated successfully.
    (xv) Experience of traumatic events during military service, 
including events that resulted in physical injuries.
    (xvi) Any previous physical harm, including head or other physical 
injuries, sexual victimization, or emotional harm suffered in childhood 
and/or as a result of violent crime outside the relationship.
    (xvii) Fear of relationship failure or of abandonment.
    (7) Periodic risk assessment. The FAP clinical service provider will 
periodically conduct a risk assessment with input from the victim, 
adding the results of such risk assessments to the

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abuser's treatment record in accordance with subpart B of this part, and 
incorporating them into the abuser's clinical treatment plan and 
contract. Risk assessment will be conducted:
    (i) At least quarterly, but more frequently as required to monitor 
safety when the current situation is deemed high risk.
    (ii) Whenever the abuser is alleged to have committed a new incident 
of domestic abuse or an incident of child abuse.
    (iii) During significant transition periods in clinical case 
management, such as the change from assessment to treatment, changes 
between treatment modalities, and changes between substance abuse or 
mental health treatment and FAP treatment.
    (iv) After destabilizing events such as accusations of infidelity, 
separation or divorce, pregnancy, deployment, administrative or 
disciplinary action, job loss, financial issues, or health impairment.
    (v) When any clinically relevant issues are uncovered, such as 
childhood trauma, domestic abuse in a prior relationship, or the 
emergence of mental health problems.
    (8) Assessment of events likely to trigger the onset of future 
abuse. The initial clinical assessment will include a discussion of 
potential events that may trigger the onset of future abuse, such as 
pregnancy, upcoming deployment, a unilateral termination of the 
relationship, or conflict over custody and visitation of children in the 
relationship.
    (9) Tools and instruments for assessment. The initial clinical 
assessment process will include the use of appropriate standardized 
tools and instruments, Service-specific tools, and clinical 
interviewing. Unless otherwise indicated, the results from one or more 
of these tools will not be the sole determinant(s) for excluding an 
individual from treatment. The tools should be used for:
    (i) Screening for suitability for treatment.
    (ii) Tailoring treatment approaches, modalities, and content.
    (iii) Reporting changes in the level of risk.
    (iv) Developing risk management strategies.
    (v) Making referrals to other clinical service providers for 
specialized intervention when appropriate.
    (d) Clinical treatment--(1) Theoretical approaches. Based on the 
results of the clinical assessment, the FAP clinical service provider 
will select a treatment approach that directly addresses the abuser's 
risk factors and his or her use of violence. Such approaches include, 
but are not limited to, cognitive and dialectical behavioral therapy, 
psychodynamic therapy, psycho-educational programs, attachment-based 
intervention, and combinations of these and other approaches. See 
paragraph (a)(5) of this section for criteria for clinical intervention 
approaches.
    (2) Treatment Planning. A FAP clinical service provider will develop 
a treatment plan for domestic abuse that is based on a structured 
assessment of the particular relationship and risk factors present.
    (i) The treatment plan will not be based on a generic ``one-size-
fits-all'' approach. The treatment plan will consider that people who 
commit domestic abuse do not compose a homogeneous group, and may 
include people:
    (A) Of both sexes.
    (B) With a range of personality characteristics.
    (C) With mental illness and those with no notable mental health 
problems.
    (D) Who abuse alcohol or other substances and/or use illegal drugs 
and those who do not.
    (E) Who combine psychological abuse with coercive techniques, 
including violence, to maintain control of their spouse, former spouse, 
or intimate partner and those who do not attempt to exert coercive 
control.
    (F) In relationships in which both victim and domestic abuser use 
violence (excluding self-defense).
    (ii) Due to the demographics of the military population, structure 
of military organizations, and military culture, it is often possible to 
intervene in a potentially abusive relationship before the individual 
uses coercive techniques to gain and maintain control of the other 
party. Thus, a reliance on addressing the abuser's repeated use of power 
and control tactics as the sole or

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primary focus of treatment is frequently inapplicable in the military 
community.
    (iii) Treatment objectives, when applicable, will seek to:
    (A) Educate the abuser about what domestic abuse is and the common 
dynamics of domestic abuse in order for the abuser to learn to identify 
his or her own abusive behaviors.
    (B) Identify the abuser's thoughts, emotions, and reactions that 
facilitate abusive behaviors.
    (C) Educate the abuser on the potential for re-abusing, signs of 
abuse escalation and the normal tendency to regress toward previous 
unacceptable behaviors.
    (D) Identify the abuser's deficits in social and relationship 
skills. Teach the abuser non-abusive, adaptive, and pro-social 
interpersonal skills and healthy sexual relationships, including the 
role of intimacy, love, forgiveness, development of healthy ego 
boundaries, and the appropriate role of jealousy.
    (E) Increase the abuser's empathic skills to enhance his or her 
ability to understand the impact of violence on the victim and empathize 
with the victim.
    (F) Increase the abuser's self-management techniques, including 
assertiveness, problem solving, stress management, and conflict 
resolution.
    (G) Educate the abuser on the socio-cultural basis for violence.
    (H) Identify and address issues of gender role socialization and the 
relationship of such issues to domestic abuse.
    (I) Increase the abuser's understanding of the impact of emotional 
abuse and violence directed at children and violence that is directed to 
an adult but to which children in the family are exposed.
    (J) Facilitate the abuser's acknowledgment of responsibility for 
abusive actions and consequences of actions. Although the abuser's 
history of victimization should be addressed in treatment, it should 
never take precedence over his or her responsibility to be accountable 
for his or her abusive and/or violent behavior, or be used as an excuse, 
rationalization, or distraction from being held so accountable.
    (K) Identify and confront the abuser's issues of power and control 
and the use of power and control against victims.
    (L) Educate the abuser on the impact of substance abuse and its 
correlation to violence and domestic abuse.
    (iv) These factors should inform treatment planning:
    (A) Special objectives for female abusers. Findings from research 
and clinical experience indicate that clinical treatment based solely on 
analyses of male power and control may not be applicable to female 
domestic abusers. Clinical approaches must give special attention to the 
motivation and context for use of violence and to self-identified 
previous traumatic experiences.
    (B) Special Strategies for Grieving Abusers. When grief and loss 
issues have been identified in the clinical assessment or during 
treatment, the clinician will incorporate strategies for addressing 
grief and loss into the treatment plan. This is especially important if 
a victim has decided to end a relationship with a domestic abuser 
because of the abuse.
    (1) Abusers with significant attachment issues who are facing the 
end of a relationship with a victim are more likely to use lethal 
violence against the victim and children in the family. This is 
exemplified by the statement: ``If I can't have you no one else can have 
you.''
    (2) They are also more likely to attempt suicide. This is 
exemplified by the statement: ``Life without you is not worth living.''
    (C) Co-Occurrence of substance abuse. The coordinated community 
management of risk is made more difficult when the person committing 
domestic abuse also abuses alcohol or other substances. When the person 
committing domestic abuse also abuses alcohol or other substances:
    (1) Treatment for domestic abuse will be coordinated with the 
treatment for substance abuse and information shared between the 
treatment providers in accordance with applicable laws, regulations, and 
policies.
    (2) Special consideration will be given to integrating the two 
treatment programs or providing them at the same time.

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    (3) Information about the abuser's progress in the respective 
treatment programs will be shared between the treatment providers. 
Providing separate treatment approaches with no communication between 
the treatment providers complicates the community's management of risk.
    (D) Co-occurrence of child abuse. When a domestic abuser has 
allegedly committed child abuse, the clinician will:
    (1) Notify the appropriate law enforcement agency and other civilian 
agencies as appropriate in accordance with 42 U.S.C. 13031.
    (2) Notify the appropriate child protective services agency and the 
FAP supervisor to ascertain if a FAP child abuse case should be opened 
in accordance with DoD Instruction 6400.06 and 42 U.S.C. 5106g.
    (3) Address the impact of such abuse of the child(ren) as a part of 
the domestic abuser clinical treatment.
    (4) Seek to improve the abuser's parenting skills if appropriate in 
conjunction with other skills.
    (5) Continuously assess the abuser as a parent or caretaker as 
appropriate throughout the treatment process.
    (6) Address the impact of the abuser's domestic abuse directed 
against the victim upon children in the home as a part of the domestic 
abuser clinical treatment.
    (E) Occurrence of sexual abuse within the context of domestic abuse. 
Although sexual abuse is a subset of domestic abuse, victims may not 
recognize that sexual abuse can occur in the context of a marital or 
intimate partner relationship. Clinicians should employ specific 
assessment strategies to identify the presence of sexual abuse within 
the context of domestic abuse.
    (F) Deployment. Deployment of an active duty Service member who is a 
domestic abuser is a complicating factor for treatment delivery.
    (1) A Service member who is scheduled to deploy in the near future 
may be highly stressed and therefore at risk for using poor conflict 
management skills.
    (2) While on deployment, a Service member is unlikely to receive 
clinical treatment for the abuse due to mission requirements and 
unavailability of such treatment.
    (3) A deployed Service member reported to FAP as a domestic abuser 
may return from deployment early for military disciplinary or civilian 
legal procedures, for R&R, or if clinical conditions warrant early 
return from deployment for treatment not otherwise available at the 
deployed location and if the commander feels early return is necessary 
under the circumstances. The home station command and installation FAP 
must be notified in advance of the early return of a deployed Service 
member with an open FAP case, unless operational security prevents 
disclosure, so that the risk to the victim can be assessed and managed.
    (4) A Service member who is deployed in a combat operation or in an 
operation in which significant traumatic events occur may be at a higher 
risk of committing domestic abuse upon return.
    (5) The Service member may receive head injuries. Studies indicate 
that such an injury increases the risk of personality changes, including 
a lowered ability to tolerate frustration, poor impulse control, and an 
increased risk of using violence in situations of personal conflict. If 
the Service member has a history of a head injury prior to or during 
deployment, the clinician should ascertain whether the Service member 
received a medical assessment, was prescribed appropriate medication, or 
is undergoing current treatment.
    (6) The Service member may suffer from depression prior to, during, 
or after deployment and may be at risk for post-traumatic stress 
disorder. Studies indicate that males who are depressed are at higher 
risk of using violence in their personal relationships. If the Service 
member presents symptoms of depression, the clinician should ascertain 
whether the Service member has received a medical assessment, was 
prescribed appropriate medication, or is undergoing current treatment.
    (3) Treatment modalities. Clinical treatment may be provided in one 
or more of these modalities as appropriate to the situation:
    (i) Group therapy. Group therapy is the preferred mode of treatment 
for domestic abusers because it applies the

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concept of problem universality and offers opportunities for members to 
support one another and learn from other group members' experiences.
    (A) The decision to assign an individual to group treatment is 
initially accomplished during the clinical assessment process; however, 
the group facilitator(s) should assess the appropriateness of group 
treatment for each individual on an ongoing basis.
    (B) The most manageable maximum number of participants for a 
domestic abuser treatment group with one or two facilitators is 12.
    (C) A domestic abuser treatment group may be restricted to one sex 
or open to both sexes. When developing a curriculum or clinical 
treatment agenda for a group that includes both sexes, the clinician 
should consider that the situations in paragraphs (d)(3)(i)(C)(1) 
through (d)(3)(i)(C)(3) are more likely to occur in a group that 
includes both sexes.
    (1) Treatment-disruptive events such as sexual affairs or emotional 
coupling.
    (2) Jealousy on the part of the non-participant victim.
    (3) Intimidation of participants whose sex is in the minority within 
the group.
    (D) A group may have one or two facilitators; if there are two 
facilitators, they may be of the same or both sexes.
    (ii) Individual treatment. In lieu of using a group modality, 
approaches may be applied in individual treatment if the number of 
domestic abusers at the installation entering treatment is too small to 
create a group.
    (iii) Conjoint treatment with substance abusers. When small numbers 
of both domestic abusers and substance abusers make separate treatment 
groups impractical, therapists should consider combining abusers into 
the same group because co-occurrence of domestic abuse and substance 
abuse has been documented in scientific literature and the content for 
clinical treatment of domestic abuse and substance abuse is very 
similar. When domestic abusers and substance abusers are combined into 
the same group, the facilitator(s) must be certified in substance abuse 
treatment as well as meeting the conditions in paragraph (e) of this 
section.
    (iv) Conjoint treatment of victim and abuser. Domestic abuse in a 
relationship may be low-level in severity and frequency and without a 
pervasive pattern of coercive control.
    (A) Limitations on Use. Conjoint treatment may be considered in such 
cases where the abuser and victim are treated together, but only if all 
of these conditions are met:
    (1) Each of the parties separately and voluntarily indicates a 
desire for this approach.
    (2) Any abuse, especially any violence, was infrequent, not severe, 
and not intended or likely to cause severe injury.
    (3) The risk of future violence is periodically assessed as low.
    (4) Each party agrees to follow safety guidelines recommended by the 
clinician.
    (5) The clinician:
    (i) Has the knowledge, skills, and abilities to provide conjoint 
treatment therapy as well as treat domestic abuse.
    (ii) Fully understands the level of abuse and violence and 
specifically addresses these issues.
    (iii) Takes appropriate measures to ensure the safety of all 
parties, including regular monitoring of the victim and abuser, using 
all relevant sources of information. The clinician will take particular 
care to ensure that the victim participates voluntarily and without fear 
and is contacted frequently to ensure that violence has not recurred.
    (B) Contra-indications. Conjoint treatment will be suspended or 
discontinued if monitoring indicates an increase in the risk for abuse 
or violence. Conjoint treatment will not be used if one or more of these 
factors are present:
    (1) The abuser:
    (i) Has a history or pattern of violent behavior and/or of 
committing severe abuse.
    (ii) Lacks a credible commitment or ability to maintain the safety 
of the victim or any third parties. For example, the abuser refuses to 
surrender personal firearms, ammunition, and other weapons.
    (2) Either the victim or the abuser or both:
    (i) Participates under threat, coercion, duress, intimidation, or 
censure,

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and/or otherwise participates against his or her will.
    (ii) Has a substance abuse problem that would preclude him or her 
from substantially benefiting from conjoint treatment.
    (iii) Has one or more significant mental health issues (e.g., 
untreated mood disorder or personality disorder) that would preclude him 
or her from substantially benefiting from conjoint treatment.
    (v) Couple's meetings. Periodic case management meetings with the 
couple, as opposed to the ongoing conjoint therapy of a single victim 
and abuser, may be used only after the clinician (or clinicians) has 
made plans to ensure the safety of the victim. All couples meetings must 
be structured and co-facilitated by the clinician(s) providing treatment 
to the abusers and support for the victims to ensure support and 
protection for the victims.
    (4) Treatment contract. Properly informing the abuser of the 
treatment rules is a condition for treating violations as a risk 
management issue. The clinician will prepare and discuss with the abuser 
an agreement between them that will serve as a treatment contract. The 
agreement will be in writing and the clinician will provide a copy to 
the abuser and retain a copy in the treatment record. The contract will 
include:
    (i) Goals. Specific abuser treatment goals, as identified in the 
treatment plan.
    (ii) Time and attendance requirements. The frequency and duration of 
treatment and the number of absences permitted.
    (A) Clinicians may follow applicable State standards specifying the 
duration of treatment as a benchmark unless otherwise indicated.
    (B) An abuser may not be considered to have successfully completed 
clinical treatment unless he or she has completed the total number of 
required sessions. An abuser may not miss more than 10 percent of the 
total number of required sessions. On a case-by-case basis, the 
facilitator should determine whether significant curriculum content has 
been missed and make-up sessions are required.
    (iii) Crisis plan. A response plan for abuser crisis situations 
(information on referral services for 24-hour emergency calls and walk-
in treatment when in crisis).
    (iv) Abuser responsibilities. The abuser must agree to:
    (A) Abstain from all forms of domestic abuse.
    (B) Accept responsibility for previous abusive and violent behavior.
    (C) Abstain from purchasing or possessing personal firearms or 
ammunition.
    (D) Talk openly and process personal feelings.
    (E) Provide financial support to his or her spouse and children per 
the terms of an agreement with the spouse or court order.
    (F) Treat group members, facilitators, and clinicians with respect.
    (G) Contact the facilitator prior to the session when unable to 
attend a treatment session.
    (H) Comply with the rules concerning the frequency and duration of 
treatment, and the number of absences permitted.
    (v) Consequences of treatment contract violations. Violation of any 
of the terms of the abuser contract may lead to termination of the 
abuser's participation in the clinical treatment program.
    (A) Violations of the abuser contract may include, but are not 
limited to:
    (1) Subsequent incidents of abuse.
    (2) Unexcused absences from more than 10 percent of the total number 
of required sessions.
    (3) Statements or behaviors of the abuser that show signs of 
imminent danger to the victim.
    (4) Behaviors of the abuser that are escalating in severity and may 
lead to violence.
    (5) Non-compliance with co-occurring treatment programs that are 
included in the treatment contract.
    (B) If the abuser violates any of the terms of the abuser contract, 
the clinician or facilitator may terminate the abuser from the treatment 
program; notify the command, civilian criminal justice agency, and/or 
civilian court as appropriate; and notify the victim if contact will not 
endanger the victim.

[[Page 286]]

    (C) The command should take any action it deems appropriate when 
notified that the abuser's treatment has been terminated due to a 
contract violation.
    (vi) Conditions of information disclosure. The circumstances and 
procedures, in accordance with applicable laws, regulations, and 
policies, under which information may be disclosed to the victim and to 
any court with jurisdiction.
    (A) Past, present, and future acts and threats of child abuse or 
neglect will be reported to the member's commander; child protective 
services, when appropriate; and the appropriate military and/or civilian 
law enforcement agency in accordance with applicable laws, regulations, 
and policies.
    (B) Recent and future acts and threats of domestic abuse will be 
reported to the member's commander, the appropriate military and/or 
civilian law enforcement agency, and the potential victim in accordance 
with applicable laws, regulations, and policies.
    (vii) Complaints. The procedures according to which the abuser may 
complain regarding the clinician or the treatment.
    (5) Treatment outside the FAP. If the abuser's treatment is provided 
by a clinician outside the FAP, the FAP clinical service provider will 
follow procedures in accordance with relevant laws, regulations, and 
policies regarding the confidentiality and disclosure of information. 
FAP may not close an open FAP case as resolved if the abuser does not 
consent to release of information from the outside provider confirming 
goal achievement, treatment progress, or risk reduction.
    (6) Criteria for evaluating treatment progress and risk reduction. 
The FAP clinical service provider will assess progress in treatment and 
reduction of risk consistent with subpart B of this part. If a risk 
factor is not addressed within the FAP but is being addressed by a 
secondary clinical service provider, the FAP clinical service provider 
will ascertain the treatment progress or results in consultation with 
the secondary clinical service provider. Treatment progress should be 
assessed periodically using numerous sources, especially, but not 
limited to, the victim. In making contact with the victim and in using 
the information, promoting victim safety is the priority. Progress in 
clinical treatment and risk reduction is indicated by a combination of:
    (i) Abuser behaviors and attitudes. An abuser is demonstrating 
progress in treatment when, among other indicators, he or she:
    (A) Demonstrates the ability for self-monitoring and assessment of 
his or her behavior.
    (B) Is able to develop a relapse prevention plan.
    (C) Is able to monitor signs of potential relapse.
    (D) Has completed all treatment recommendations.
    (ii) Information from the victim and other relevant sources. The 
abuser is demonstrating progress in treatment when the victim and other 
relevant sources of information state any one or combination of the 
following: That the abuser has:
    (A) Ceased all domestic abuse.
    (B) Reduced the frequency of non-violent abusive behavior.
    (C) Reduced the severity of non-violent abusive behavior.
    (D) Delayed the onset of abusive behavior.
    (E) Demonstrated the use of improved relationship skills.
    (iii) Reduced ratings on risk assessment variables that are subject 
to change. The abuser has successfully reduced risk when the assessment 
of his or her risk is rated at the level the Military Service has 
selected for case closure.
    (e) Personnel qualifications--(1) Minimum qualifications. All 
personnel who conduct clinical assessments of and provide clinical 
treatment to domestic abusers must have these minimum qualifications:
    (i) A master's or doctoral-level human service and/or mental health 
professional degree from an accredited university or college.
    (ii) The highest license in a State or clinical license in good 
standing in a State that authorizes independent clinical practice.
    (iii) 1 year of experience in domestic abuse and child abuse 
counseling or treatment.
    (2) Additional training. All personnel who conduct clinical 
assessments of and/or provide clinical treatment to

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domestic abusers must undergo this additional training:
    (i) Within 6 months of employment, orientation into the military 
culture. This includes training in the Service rank structures and 
military protocol.
    (ii) A minimum of 15 hours of continuing education units within 
every 2 years that are relevant to domestic abuse and child abuse. This 
includes, but is not limited to, continuing education in interviewing 
adult victims of domestic abuse, children, and domestic abusers, and 
conducting treatment groups.
    (iii) Service FAP Managers must develop policies and procedures for 
continued education with clinical skills training that validates 
clinical competence, and not rely solely on didactic or computer 
disseminated training to meet continuing education requirements.
    (f) QA--(1) QA procedures. The FAP Manager must ensure that clinical 
intervention undergoes these QA procedures:
    (i) A quarterly peer review of a minimum of 10 percent of open 
clinical records that includes procedures for addressing any 
deficiencies with a corrective action plan
    (ii) A quarterly administrative audit of a minimum of 10 percent of 
open records that includes procedures for addressing any deficiencies 
with a corrective action plan.
    (2) FAC responsibilities. The installation FAC will analyze trends 
in risk management, develop appropriate agreements and community 
programs with relevant civilian agencies, promote military interagency 
collaboration, and monitor the implementation of such agreements and 
programs on a regular basis consistent with subpart B of this part.
    (3) Evaluation and accreditation review. The installation domestic 
abuse treatment program will undergo evaluation and/or accreditation 
every 4 years, including an evaluation and/or accreditation of its 
coordinated community risk management program consistent with subpart B 
of this part.



PART 66_QUALIFICATION STANDARDS FOR ENLISTMENT, APPOINTMENT, AND
INDUCTION--Table of Contents



Sec.
66.1 Purpose.
66.2 Applicability.
66.3 Definitions.
66.4 Policy.
66.5 Responsibilities.
66.6 Enlistment, appointment, and induction criteria.
66.7 Enlistment waivers.

    Authority: 10 U.S.C. 504, 505, 520, 532, 12102, 12201, and 12205.

    Source: 80 FR 16270, Mar. 27, 2015, unless otherwise noted.



Sec.  66.1  Purpose.

    In accordance with the authority in DoD Directive 5124.02, ``Under 
Secretary of Defense for Personnel and Readiness (USD(P&R))'' (available 
at http://www.dtic.mil/whs/ directives/corres/pdf/ 512402p.pdf), this 
part:
    (a) Updates established policies and responsibilities for basic 
entrance qualification standards for enlistment, appointment, and 
induction into the Military Services and delegates the authority to 
specify certain standards to the Secretaries of the Military 
Departments.
    (b) Establishes the standards for age, aptitude, citizenship, 
dependents, education, medical, character/conduct, physical fitness, and 
other disqualifying conditions, which are cause for non-qualification 
for military service. Other standards may be prescribed in the event of 
national emergency.
    (c) Sets standards designed to ensure that individuals under 
consideration for enlistment, appointment, or induction are able to 
perform military duties successfully, and to select those who are the 
most trainable and adaptable to Service life.



Sec.  66.2  Applicability.

    This part applies to:
    (a) Office of the Secretary of Defense, the Military Departments 
(including the Coast Guard at all times, including when it is a Service 
in the Department of Homeland Security by agreement with that 
Department), the Office of the Chairman of the Joint Chiefs of

[[Page 288]]

Staff and the Joint Staff, the Combatant Commands, the Office of the 
Inspector General of the Department of Defense, the Defense Agencies, 
the DoD Field Activities, and all other organizational entities within 
the DoD (referred to collectively in this part as the ``DoD 
Components'').
    (b) Applicants for initial enlistment into the Military Services 
Regular and Reserve Components.
    (c) Applicants for appointment as commissioned or warrant officers 
in the Regular and Reserve Components.
    (d) Applicants for reenlistment following release from active duty 
into subsequent Regular or Reserve Components (including the Army 
National Guard of the United States and the Air National Guard of the 
United States) after a period of more than 6 months has elapsed since 
discharge.
    (e) Applicants for contracting into the Reserve Officer Training 
Corps (ROTC), and all other Military Services special officer personnel 
procurement programs, including the Military Service Academies.
    (f) All individuals being inducted into the Military Services.



Sec.  66.3  Definitions.

    Unless otherwise noted, these terms and their definitions are for 
the purposes of this part.
    Adjudicating authority. Any government official who is empowered to 
make findings or determinations concerning an alleged criminal offense 
(adult and juvenile) and establish responsibility for commission of the 
offense. Examples include judges, courts, magistrates, prosecutors, 
hearing officers, military commanders (for Article 15 actions pursuant 
to 10 U.S.C. chapter 47, suspension of dependent privileges, or similar 
actions), probation officers, juvenile referees, and parole officers or 
boards.
    Adverse adjudication (adult or juvenile).
    (1) A finding, decision, sentence, or judgment by an adjudicating 
authority, against an individual, that was other than unconditionally 
dropped or dismissed or the individual was acquitted is considered 
adverse adjudication. If the adjudicating authority places a condition 
or restraint that leads to dismissal, drops the charges, acquits, or the 
records are later expunged, or the charge is dismissed after a certain 
period of time, the adjudication is still considered adverse. A 
suspension of sentence, not processed, or a dismissal after compliance 
with imposed conditions is also adverse adjudication. This includes 
fines and forfeiture of bond in lieu of trial.
    (2) A conviction for violating any federal law (including 10 U.S.C. 
chapter 47), or any State or municipal law or ordinance) is considered 
an adverse adjudication. For example, a shoplifter is reprimanded and 
required by the on-scene police officer, store security guard, or 
manager to pay for the item before leaving the store but is not charged, 
not found guilty, or is not convicted. In this situation, there is no 
adverse adjudication because no legal proceedings occurred and no 
adjudicating authority was involved.
    Conviction. The act of finding a person guilty of a crime, offense, 
or other violation of the law by an adjudicating authority.
    Dependent.
    (1) A spouse of an applicant for enlistment.
    (2) An unmarried step-child under the age of 18 living with the 
applicant.
    (3) An unmarried biological child or unmarried adopted child of the 
applicant under the age of 18.
    (4) Any person living with the applicant who is, by law or in fact, 
dependent upon the applicant for support, or who is not living with the 
applicant and is dependent upon the applicant for over one-half of his 
or her support.
    Reserve components. Includes the Army National Guard of the United 
States, the Army Reserve, the Navy Reserve, the Marine Corps Reserve, 
the Air National Guard of the United States, the Air Force Reserve, and 
the Coast Guard Reserve.
    Restitution. Any compensation in time, labor, or money for the 
adverse effects of an offense as a result of agreements from judicial or 
prosecutorial involvement. For example, an individual is adversely 
adjudicated for vandalism and is ordered by the adjudicating authority 
to replace or repair the damaged property.

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    Service review. A formal review of condition(s) or event(s) that, 
based on Service-specific standards, may make an applicant for 
enlistment ineligible to serve. Once a Service review is complete, the 
Service may grant an exception to policy to allow an individual to 
serve. These standards are subject to change at the discretion of the 
Service.
    Waiver. A formal request to consider the suitability for service of 
an applicant who because of inappropriate conduct, dependency status, 
current or past medical conditions, or drug use may not be qualified to 
serve. Upon the completion of a thorough examination using a ``whole 
person'' review, the applicant may be granted a waiver. The applicant 
must have displayed sufficient mitigating circumstances that clearly 
justify waiver consideration. The Secretaries of the Military 
Departments may delegate the final approval authority for all waivers.

[80 FR 16270, Mar. 27, 2015, as amended at 81 FR 64062, Sept. 19, 2016]



Sec.  66.4  Policy.

    It is DoD policy to:
    (a) Use common entrance qualification standards for enlistment, 
appointment, and induction into the Military Services.
    (b) Avoid inconsistencies and inequities based on ethnicity, gender, 
race, religion, or sexual orientation in the application of these 
standards by the Military Services.
    (c) Judge the suitability of individuals to serve in the Military 
Services on the basis of their adaptability, potential to perform, and 
conduct.



Sec.  66.5  Responsibilities.

    (a) Under the authority, direction, and control of the Under 
Secretary of Defense for Personnel and Readiness (USD(P&R)), the 
Assistant Secretary of Defense for Manpower and Reserve Affairs 
(ASD(M&RA)):
    (1) Acts as an advisor to the USD(P&R) on the Reserve enlistment and 
appointment standards.
    (2) Acts as an advisor to the USD(P&R) on the height and weight 
requirements of the standards in Sec.  66.6.
    (3) Ensures the U.S. Military Entrance Processing Command assists 
the Military Services in implementing the standards in Sec.  66.6.
    (b) Under the authority, direction, and control of the USD(P&R), the 
Assistant Secretary of Defense for Health Affairs (ASD(HA)) acts as an 
advisor to the USD(P&R) on the medical requirements of the standards in 
Sec.  66.6.
    (c) The Secretaries of the Military Departments:
    (1) Oversee conformance with this part.
    (2) Recommend suggested changes to this part to the USD(P&R) as 
necessary.
    (3) Establish other Service-specific standards as necessary to 
implement this part.
    (4) Review all standards on an annual basis.
    (5) Establish procedures to grant waivers, accomplish reviews, and 
require individuals to meet the appropriate standards or be granted an 
exception pursuant to 10 U.S.C. 504(a).
    (6) Request approval from the USD(P&R) for generalized exceptions to 
these standards as permitted by law.
    (7) Use the standards in Sec.  66.6 to determine the entrance 
qualifications for all individuals being enlisted, appointed, or 
inducted into any component of the Military Services.

[80 FR 16270, Mar. 27, 2015, as amended at 81 FR 64063, Sept. 19, 2016]



Sec.  66.6  Enlistment, appointment, and induction criteria.

    (a) General eligibility criteria--(1) Entrance considerations. 
Accession of qualified individuals will be a priority when processing 
applicants for the Military Services.
    (2) Eligibility determination. Eligibility will be determined by the 
applicant's ability to meet all requirements of this part, to include 
obtaining waivers. Applicants will not be enlisted, appointed, or 
inducted unless all requirements of this part are met.
    (b) Basic eligibility criteria--(1) Age. (i) To be eligible for 
Regular enlistment, the minimum age for enlistment is 17 years and the 
maximum age is 42 years in accordance with 10 U.S.C. 505. The maximum 
age for a prior service enlistee is determined by adding the 
individual's years of prior service to age 42. The Secretary concerned 
will establish

[[Page 290]]

enlistment age standards for the Reserve Components in accordance with 
10 U.S.C. 12102.
    (ii) Age limitations for appointment as a commissioned or warrant 
officer normally depend on the Military Service concerned. In accordance 
with 10 U.S.C. 532, most persons appointed as commissioned officers must 
be able to complete 20 years of active commissioned service before their 
62nd birthday to receive a Regular commission.
    (iii) In accordance with 10 U.S.C. 12201, a person will be at least 
18 years of age for appointment as a Reserve Officer. The maximum age 
qualification for initial appointment as a Reserve Officer will not be 
less than 47 years of age for individuals in a health profession 
specialty designated by the Secretary concerned as a specialty 
critically needed in wartime.
    (iv) In accordance with 32 U.S.C. 313, to be eligible for original 
enlistment in the National Guard, a person must be at least 17 years of 
age and under 45, or under 64 years of age and a former member of the 
Regular Army, Regular Navy, Regular Air Force, or Regular Marine Corps. 
To be eligible for reenlistment, a person must be under 64 years of age.
    (v) In accordance with 32 U.S.C. 313, to be eligible for appointment 
as an officer of the National Guard, a person must be at least 18 years 
of age and under 64 years of age.
    (2) Citizenship. (i) To be eligible for Regular or Reserve 
enlistment, an individual must meet one of the conditions outlined in 10 
U.S.C. 504(b); however, the Secretary concerned may authorize the 
enlistment of a person not described in this section if the Secretary 
determines that such enlistment is vital to the national interest.
    (ii) To be eligible for appointment as a commissioned officer (other 
than as a commissioned warrant officer) in the Regular Army, Regular 
Navy, Regular Air Force, or Regular Marine Corps, the individual must be 
a citizen of the United States as outlined in 10 U.S.C. 532. The 
Secretary of Defense (or the Secretary of Homeland Security for the 
Coast Guard, when not operating as a Service under the Navy), may waive 
the requirement of U.S. citizenship with respect to a person who has 
been lawfully admitted to the United States for permanent residence, or 
for a United States national otherwise eligible for appointment as a 
cadet or midshipman in accordance with 10 U.S.C. 2107(a), when the 
Secretary determines that the national security so requires, but only 
for an original appointment in a grade below the grade of major or 
lieutenant commander.
    (iii) To be eligible for appointment as a Reserve Officer in an 
armed force, the individual must be a citizen of the United States or 
lawfully admitted to the United States for permanent residence in 
accordance with 8 U.S.C. 1101 et seq. (also known as the ``Immigration 
and Nationality Act'') or have previously served in the Military 
Services or in the National Security Training Corps as outlined under 10 
U.S.C. 12201.
    (iv) To be eligible for enlistment in the National Guard, a person 
must meet one of the conditions in 10 U.S.C. 504(b); however, the 
Secretary concerned may authorize the enlistment of a person not 
described in this section if the Secretary determines that such 
enlistment is vital to the national interest.
    (v) To become an officer of the Army National Guard of the United 
States or the Air National Guard of the United States, the individual 
must first be appointed to, and be federally recognized in, the same 
grade in the Army National Guard or the Air National Guard. In 
accordance with 10 U.S.C. 12201, the individual must be a citizen of the 
United States or lawfully admitted to the United States for permanent 
residence in accordance with 8 U.S.C. 1101 et seq. or have previously 
served in Military Service or in the National Security Training Corps.
    (3) Education. (i) Possession of a high school diploma is desirable, 
although not mandatory, for enlistment in any component of the Military 
Services. 10 U.S.C. 520 states that a person who is not a high school 
graduate may not be accepted for enlistment in the Military Services 
unless the score of that person on the Armed Forces Qualification Test 
(AFQT) is at or above the thirty-first percentile. 10 U.S.C. 520 also 
states that a person may not be denied enlistment in the Military 
Services solely because he or she does not have

[[Page 291]]

a high school diploma if his or her enlistment is needed to meet 
established strength requirements.
    (ii) Bearers of an alternative credential (e.g., General Educational 
Development certificates and certificates of attendance) and non-
graduates may be assigned lower enlistment priority based on first-term 
attrition rates for those credentials. DoD Instruction 1145.01, 
``Qualitative Distribution of Military Manpower'' (available at http://
www.dtic.mil/whs/ directives/corres/pdf/ 114501p.pdf) identifies the 
authority for establishing the qualitative distribution objectives for 
accessions.
    (iii) Educational requirements for appointment as a commissioned or 
warrant officer are determined by each Military Service. 10 U.S.C. 12205 
establishes education requirements for certain Reserve appointments. 
Generally, and unless excepted under 10 U.S.C. 12205, a baccalaureate 
degree is required for appointment above the grade of first lieutenant 
in the Army, Air Force, and Marine Corps Reserves or lieutenant junior 
grade in the Navy Reserve, or to be federally recognized in a grade 
above the grade of first lieutenant as a member of the Army National 
Guard or Air National Guard. In addition, special occupations (e.g., 
physician or chaplain) may require additional vocational credentials as 
determined by the Secretary concerned.
    (4) Aptitude. (i) Overall aptitude requirements for enlistment and 
induction are based on applicant scores on the AFQT derived from the 
Armed Services Vocational Aptitude Battery. Applicant scores are grouped 
into percentile categories. Persons who score in AFQT Category V 
(percentiles 1-9) are ineligible to enlist. In accordance with 10 U.S.C. 
520, the number of persons who enlist in any Armed Force during any 
fiscal year (i.e., accession cohort) who score in AFQT Category IV 
(percentiles 10-30) may not exceed 20 percent of the total number of 
persons enlisted by Service. DoD Instruction 1145.01 identifies the 
authority for establishing the qualitative distribution objectives for 
accessions.
    (ii) For officers and warrant officers, no single test or instrument 
is used as an aptitude requirement for appointment.
    (5) Medical. (i) In accordance with DoD Instruction 6130.03, 
``Medical Standards for Appointment, Enlistment, or Induction in the 
Military Services'' (available at http://www.dtic.mil/whs/ directives/
corres/pdf/ 613003p.pdf), the pre-accession screening process will be 
structured to identify any medical condition, including mental health, 
that disqualifies an applicant for military service.
    (ii) Individuals who fail to meet established medical standards, as 
defined in DoD Instruction 6130.03, may be considered for a medical 
waiver. Each Service's waiver authority for medical conditions will make 
a determination based on all available information regarding the issue 
or condition. Waiver requirements are outlined in Sec.  66.7.
    (6) Physical fitness. (i) In accordance with DoD Instruction 1308.3, 
``DoD Physical Fitness and Body Fat Programs Procedures'' (available at 
http://www.dtic.mil/whs/ directives/corres/pdf/ 130803p.pdf), all 
individuals must meet the pre-accession height and weight standards as 
prescribed in Table 1 of DoD Instruction 1308.3.
    (ii) The Military Services may have additional physical fitness 
screening requirements.
    (7) Dependency status. (i) The Military Services may not enlist 
married individuals with more than two dependents under the age of 18 or 
unmarried individuals with custody of any dependents under the age of 
18; however, the Secretary concerned may grant a waiver for particularly 
promising entrants. Waiver requirements are outlined in Sec.  66.7 of 
this part.
    (ii) The Military Services will specify the circumstances under 
which individuals who have dependents may become commissioned officers 
or warrant officers; variations in policy may be affected by the 
commissioning source (e.g., Service Academies, ROTC, or Officer 
Candidate School).
    (8) Character/conduct. The underlying purpose of these enlistment, 
appointment, and induction standards is to minimize entrance of persons 
who are likely to become disciplinary cases, security risks, or who are 
likely to disrupt good order, morale, and discipline. The Military 
Services are responsible for the defense of the Nation and

[[Page 292]]

should not be viewed as a source of rehabilitation for those who have 
not subscribed to the legal and moral standards of society at-large. As 
a minimum, an applicant will be considered ineligible if he or she:
    (i) Is under any form of judicial restraint (bond, probation, 
imprisonment, or parole).
    (ii) Has a significant criminal record. 10 U.S.C. 504 prohibits any 
person who has been convicted of a felony from being enlisted in any of 
the Military Services; however, 10 U.S.C. 504 authorizes a waiver in 
meritorious cases. Except as limited by paragraph (b)(8)(iii) of this 
section, persons convicted of felonies may request a waiver to permit 
their enlistment. The waiver procedure is not automatic, and approval is 
based on each individual case. Waiver requirements are outlined in Sec.  
66.7 of this part.
    (iii) Has a State or federal conviction, or a finding of guilty in a 
juvenile adjudication, for a felony crime of rape, sexual abuse, sexual 
assault, incest, any other sexual offense, or when the disposition 
requires the person to register as a sex offender. In these cases, the 
enlistment, appointment, or induction will be prohibited and no waivers 
are allowed.
    (iv) Has been previously separated from the Military Services under 
conditions other than honorable or for the good of the Military Service 
concerned.
    (v) Has exhibited antisocial behavior or other traits of character 
that may render the applicant unfit for service.
    (vi) Receives an unfavorable final determination by the DoD 
Consolidated Adjudication Facility on a completed National Agency Check 
with Law and Credit (NACLC) or higher-level investigation, which is 
adjudicated to the National Security Standards in accordance with 
Executive Order 12968, during the accession process.
    (A) An applicant may be accessed (including shipping him or her to 
training or a first duty assignment) provided that a NACLC or higher-
level investigation was submitted and accepted by the investigative 
service provider (Office of Personnel Management (OPM)) and an advanced 
fingerprint was conducted, and OPM did not identify any disqualifying 
background information.
    (B) If NACLC adjudication is not completed until after accession, 
any additional disqualifying information identified during the 
adjudication should be transmitted to the appropriate personnel or human 
resource offices, as determined by the Services, for appropriate action.
    (9) Drugs and alcohol. A current or history of alcohol dependence, 
drug dependence, alcohol abuse, or other drug abuse is incompatible with 
military life and does not meet military standards in accordance with 
DoD Instruction 6130.03. Pursuant to DoD Instruction 1010.01, ``Military 
Personnel Drug Abuse Testing Program (MPDATP)'' (available at http://
www.dtic.mil/whs/ directives/corres/pdf/ 101001p.pdf), the pre-accession 
screening process is structured to identify individuals with a history 
of drug (including pharmaceutical medications, illegal drugs and other 
substances of abuse) and alcohol abuse.
    (i) Drug use (to include illegal drugs, other illicit substances, 
and pharmaceutical medications), drug abuse, and alcohol abuse may be 
self-admitted by an applicant, discovered during the medical screening 
process, or identified by the drug and alcohol test (DAT), which is 
administered at the Military Entrance Processing Stations (MEPS) or 
other approved military processing facility.
    (ii) Current or history of alcohol dependence, drug dependence, 
alcohol abuse, or other drug abuse may be a medically disqualifying 
condition based on the standards in accordance with DoD Instruction 
6130.03. The MEPS Chief Medical Officer or equivalent, when the physical 
is not performed at MEPS, will make that determination based on all of 
the information available on a case-by-case basis. These instances will 
be treated as a medical disqualification and handled in accordance with 
the guidance provided in paragraphs (b)(5)(i) through (b)(5)(ii) of this 
section.
    (iii) Individuals who test positive for illegal drugs on the DAT, 
which is administered as part of the accession physical, will be 
disqualified. A waiver may be requested. Waiver requirements are 
outlined in Sec.  66.7.

[[Page 293]]

    (iv) Service qualification standards, regarding drugs and alcohol, 
may be more restrictive.

[80 FR 16270, Mar. 27, 2015, as amended at 81 FR 64063, Sept. 19, 2016]



Sec.  66.7  Enlistment waivers.

    (a) Waiver requirements. In accomplishing whole person reviews of 
enlistment eligibility, the following categories and combinations of 
categories would require a favorable waiver determination by the 
Secretary of the Military Department concerned for the applicant to be 
considered qualified. The waiver procedure is not automatic, and 
approval is based on each individual case.
    (1) Medical waiver. A medical waiver is required for enlistment 
qualification of an applicant who has or may have had a disqualifying 
medical condition in accordance with DoD Instruction 6130.03.
    (2) Dependent waiver. A dependent waiver is required when an 
applicant is married with more than two dependents under the age of 18 
or when an applicant is unmarried and has custody of any dependents 
under the age of 18.
    (3) Conduct waiver. In processing conduct waiver requests, the 
Military Services will require information about the ``who, what, when, 
where, and why'' of the offense in question; and letters of 
recommendation from responsible community leaders, such as school 
officials, clergy, and law enforcement officials, attesting to the 
applicant's character or suitability for enlistment. Waivers are not 
authorized for cases noted in Sec.  66.6(b)(8)(iii).
    (i) A Conduct Waiver is required when the final finding of the 
courts or other adjudicating authority is a conviction or other adverse 
adjudication of:
    (A) One ``major misconduct'' offense, or;
    (B) Two ``misconduct'' offenses, or;
    (C) A pattern of misconduct.
    (1) One ``misconduct'' offense and four ``non-traffic'' offenses.
    (2) Five or more ``non-traffic'' offenses.
    (ii) Use the Table of this section to determine the appropriate 
level of offense and applicable code. See paragraph (b) of this section 
for additional guidance.
    (4) Drug waiver. A drug waiver is required when an applicant or 
enlistee is confirmed positive for the presence of drugs at the time of 
the original or subsequent physical examination (i.e., tests positive on 
the DAT at a MEPS or equivalent facility). Drug waivers for these 
applicants may be considered and granted or rejected only after the 
disqualification period established in section 6 of Enclosure 7 of DoD 
Instruction 1010.16, ``Technical Procedures for the Military Personnel 
Drug Abuse Testing Program (MPDATP)'' (available at http://www.dtic.mil/
whs/ directives/corres/pdf/ 101016p.pdf) ends.
    (b) Classifying conduct offenses. The procedures that will be used 
in the classifying and coding of all conduct offenses are:
    (1) Initial classification. Align the offense that is the subject of 
adverse adjudication with an offense from the Table of this section. As 
an exception, any offense classified as a felony under the appropriate 
State or federal jurisdiction will be treated as a major misconduct 
offense for DoD purposes regardless of where similar charges are listed.
    (2) Non-similar offenses. If unable to find a similar charge, the 
Military Services will:
    (i) Treat the offense as a major misconduct offense if the 
adjudicating authority can impose a maximum period of confinement that 
exceeds 1 year.
    (ii) Treat the offense as a misconduct offense if the adjudicating 
authority can impose a maximum period of confinement that exceeds 6 
months but is not more than 1 year.
    (iii) Treat all other offenses as either other non-traffic offenses 
or traffic offenses, depending on the nature of the offense.

[[Page 294]]



               Table to Sec.   66.7--Conduct Waiver Codes
------------------------------------------------------------------------
         Offense code                         Offense title
------------------------------------------------------------------------
                            TRAFFIC OFFENSES
------------------------------------------------------------------------
100...........................  Bicycle ordinance violation.
101...........................  Blocking or retarding traffic.
102...........................  Contempt of court for minor traffic
                                 offenses.
103...........................  Crossing yellow line; driving left of
                                 center.
104...........................  Disobeying traffic lights, signs, or
                                 signals.
105...........................  Driving on shoulder.
106...........................  Driving uninsured vehicle.
107...........................  Driving with blocked vision and/or
                                 tinted window.
108...........................  Driving with expired plates or without
                                 plates.
109...........................  Driving with suspended or revoked
                                 license.
110...........................  Driving without license.
111...........................  Driving without registration or with
                                 improper registration.
112...........................  Driving wrong way on one-way street.
113...........................  Failure to appear for traffic
                                 violations.
114...........................  Failure to comply with officer's
                                 directive.
115...........................  Failure to have vehicle under control.
116...........................  Failure to signal.
117...........................  Failure to stop or yield to pedestrian.
118...........................  Failure to submit report after accident.
119...........................  Failure to yield right-of-way.
120...........................  Faulty equipment such as defective
                                 exhaust, horn, lights, mirror, muffler,
                                 signal device, steering device, tail
                                 pipe, or windshield wipers.
121...........................  Following too closely.
122...........................  Hitchhiking.
123...........................  Improper backing such as backing into
                                 intersection or highway, backing on
                                 expressway, or backing over crosswalk.
124...........................  Improper blowing of horn.
125...........................  Improper passing such as passing on
                                 right, passing in no-passing zone,
                                 passing stopped school bus, or passing
                                 pedestrian in crosswalk.
126...........................  Improper turn.
127...........................  Invalid or unofficial inspection sticker
                                 or failure to display inspection
                                 sticker.
128...........................  Jaywalking.
129...........................  Leaving key in ignition.
130...........................  Leaving scene of accident (when not
                                 considered hit and run).
131...........................  License plates improperly displayed or
                                 not displayed.
132...........................  Operating overloaded vehicle.
133...........................  Racing, dragging, or contest for speed.
134...........................  Reckless, careless, or imprudent driving
                                 (considered a traffic offense when the
                                 fine is less than $300 and there is no
                                 confinement). Court costs are not part
                                 of a fine.
135...........................  Reserved for future use.
136...........................  Seat belt and/or child restraint
                                 violation.
137...........................  Skateboard, roller skate, or inline
                                 skate violation.
138...........................  Speeding.
139...........................  Spilling load on highway.
140...........................  Spinning wheels, improper start,
                                 zigzagging, or weaving in traffic.
141...........................  Violation of noise control ordinance.
142...........................  Other traffic offenses not specifically
                                 listed.
143...........................  Reserved for future use.
144...........................  Reserved for future use.
------------------------------------------------------------------------
                          NON-TRAFFIC OFFENSES
------------------------------------------------------------------------
200...........................  Altered driver's license or
                                 identification.
201...........................  Assault (simple assault with fine or
                                 restitution of $500 or less and no
                                 confinement).
202...........................  Carrying concealed weapon (other than
                                 firearm); possession of brass knuckles.
203...........................  Check, worthless, making or uttering,
                                 with intent to defraud or deceive (less
                                 than $500).
204...........................  Committing a nuisance.
205...........................  Conspiring to commit misdemeanor.
206...........................  Curfew violation.
207...........................  Damaging road signs.
208...........................  Discharging firearm through carelessness
                                 or within municipal limits.
209...........................  Disobeying summons; failure to appear
                                 (other than traffic).
210...........................  Disorderly conduct; creating
                                 disturbance; boisterous conduct.
211...........................  Disturbing the peace.
212...........................  Drinking alcoholic beverages on public
                                 transportation.
213...........................  Drunk in public.
214...........................  Dumping refuse near highway.
215...........................  Failure to appear, contempt of court
                                 (all offenses except felony
                                 proceedings).
216...........................  Failure to appear, contempt of court
                                 (felony proceedings).
217...........................  Failure to stop and render aid after
                                 accident.

[[Page 295]]

 
218...........................  Fare and/or toll evasion.
219...........................  Harassment, menacing, or stalking.
220...........................  Illegal betting or gambling; operating
                                 illegal handbook, raffle, lottery, or
                                 punchboard; cockfighting.
221...........................  Indecent exposure.
222...........................  Indecent, insulting, or obscene language
                                 communicated directly or by telephone
                                 to another person.
223...........................  Jumping turnstile (to include those
                                 States that adjudicate jumping a
                                 turnstile as petty larceny).
224...........................  Juvenile adjudications such as beyond
                                 parental control, incorrigible,
                                 runaway, truant, or wayward.
225...........................  Killing a domestic animal.
226...........................  Littering.
227...........................  Loitering.
228...........................  Malicious mischief (fine or restitution
                                 of $500 or less and no confinement).
229...........................  Pandering.
230...........................  Poaching.
231...........................  Purchase, possession, or consumption of
                                 alcoholic beverages or tobacco products
                                 by minor.
232...........................  Removing property from public grounds.
233...........................  Removing property under lien.
234...........................  Robbing an orchard.
235...........................  Shooting from highway.
236...........................  Throwing glass or other material in
                                 roadway.
237...........................  Trespass (non-criminal or simple).
238...........................  Unlawful assembly.
239...........................  Unlawful manufacture, sale, possession,
                                 or consumption of liquor in public
                                 place.
240...........................  Unlawful use of long-distance telephone
                                 calling card.
241...........................  Using or wearing unlawful emblem and/or
                                 identification.
242...........................  Vagrancy.
243...........................  Vandalism (fine or restitution of $500
                                 or less and no confinement).
244...........................  Violation of fireworks laws.
245...........................  Violation of fish and game laws.
246...........................  Violation of leash laws.
247...........................  Violation of probation.
248...........................  Other non-traffic offenses not
                                 specifically listed.
249...........................  Reserved for future use.
------------------------------------------------------------------------
                           MISCONDUCT OFFENSES
------------------------------------------------------------------------
300...........................  Aggravated assault, fighting, or battery
                                 (more than $500 fine or restitution or
                                 confinement).
301...........................  Carrying of weapon on school grounds
                                 (other than firearm).
302...........................  Concealment of or failure to report a
                                 felony.
303...........................  Contributing to delinquency of minor.
304...........................  Crimes against the family (non-payment
                                 of court-ordered child support and/or
                                 alimony).
305...........................  Criminal mischief (more than $500 fine
                                 or restitution or confinement).
306...........................  Criminal trespass.
307...........................  Desecration of grave.
308...........................  Domestic battery and/or violence not
                                 considered covered by 18 U.S.C. 922,
                                 referred to in this issuance as the
                                 ``Lautenberg Amendment'').
309...........................  Driving while drugged or intoxicated;
                                 driving while ability impaired;
                                 permitting driving under the influence.
310...........................  Illegal or fraudulent use of a credit
                                 card or bank card (value less than
                                 $500).
311...........................  Larceny or conversion (value less than
                                 $500).
312...........................  Leaving scene of an accident or hit and
                                 run.
313...........................  Looting.
314...........................  Mailbox destruction.
315...........................  Mailing of obscene or indecent matter
                                 (including e-mail).
316...........................  Possession of marijuana or drug
                                 paraphernalia.
317...........................  Prostitution or solicitation for
                                 prostitution.
318...........................  Reckless, careless, or imprudent driving
                                 (considered a misdemeanor when the fine
                                 is $300 or more or when confinement is
                                 imposed; otherwise, considered a minor
                                 traffic offense).
319...........................  Reckless endangerment.
320...........................  Resisting arrest or eluding police.
321...........................  Selling or leasing weapons.
322...........................  Stolen property, knowingly receiving
                                 (value less than $500).
323...........................  Throwing rocks on a highway; throwing
                                 missiles at sporting events; throwing
                                 objects at vehicles.
324...........................  Unauthorized use or taking of a vehicle
                                 or conveyance from family member; joy
                                 riding.
325...........................  Unlawful carrying of firearms or
                                 carrying concealed firearm.
326...........................  Unlawful entry.
327...........................  Use of telephone, Internet, or other
                                 electronic means to abuse, annoy,
                                 harass, threaten, or torment another.
328...........................  Vandalism (more than $500 fine or
                                 restitution or confinement).
329...........................  Willfully discharging firearm so as to
                                 endanger life; shooting in public.
330...........................  Other misconduct offenses not
                                 specifically listed.
331...........................  Reserved for future use.
332...........................  Reserved for future use.
------------------------------------------------------------------------

[[Page 296]]

 
                        MAJOR MISCONDUCT OFFENSES
------------------------------------------------------------------------
400...........................  Aggravated assault; assault with
                                 dangerous weapon; maiming.
401...........................  Arson.
402...........................  Attempt to commit a felony.
403...........................  Breaking and entering with intent to
                                 commit a felony.
404...........................  Bribery.
405...........................  Burglary.
406...........................  Carjacking.
407...........................  Carnal knowledge of a child.
408...........................  Carrying of weapon on school grounds
                                 (firearm).
409...........................  Check, worthless, making or uttering,
                                 with intent to defraud or deceive (over
                                 $500).
410...........................  Child abuse.
411...........................  Child pornography.
412...........................  Conspiring to commit a felony.
413...........................  Criminal libel.
414...........................  Domestic battery and/or violence as
                                 defined in the Lautenberg Amendment.
                                 (Waiver not authorized if applicant was
                                 convicted of this offense.)
415...........................  Embezzlement.
416...........................  Extortion.
417...........................  Forgery, knowingly uttering or passing
                                 forged instrument (except for altered
                                 identification cards).
418...........................  Grand larceny or larceny (value of $500
                                 or more).
419...........................  Grand theft auto.
420...........................  Hate crimes.
421...........................  Illegal and/or fraudulent use of a
                                 credit card, bank card, or automated
                                 card (value of $500 or more).
422...........................  Indecent acts or liberties with a child;
                                 molestation.
423...........................  Indecent assault.
424...........................  Kidnapping or abduction.
425...........................  Mail matter; abstracting, destroying,
                                 obstructing, opening, secreting,
                                 stealing, or taking (not including the
                                 destruction of mailboxes).
426...........................  Manslaughter.
427...........................  Murder.
428...........................  Narcotics or habit-forming drugs,
                                 wrongful possession or use (not
                                 including marijuana).
429...........................  Negligent or vehicular homicide.
430...........................  Perjury or subornation of perjury.
431...........................  Possession or intent to use materials in
                                 a manner to make a bomb or explosive
                                 device to cause bodily harm or
                                 destruction of property.
432...........................  Public record; altering, concealing,
                                 destroying, mutilating, obligation, or
                                 removing.
433...........................  Rape, sexual abuse, sexual assault,
                                 criminal sexual abuse, incest, or other
                                 sex crimes. (See paragraph (b)(8)(iii)
                                 of Sec.   66.6 of this part; waivers
                                 for these offenses are not authorized.)
434...........................  Riot.
435...........................  Robbery (including armed).
436...........................  Sale, distribution, or trafficking of
                                 cannabis (marijuana) or any other
                                 controlled substance (including
                                 intent).
437...........................  Sodomy (only when it is nonconsensual or
                                 involves a minor).
438...........................  Stolen property, knowingly received
                                 (value of $500 or more).
439...........................  Terrorist threats (including bomb
                                 threats).
440...........................  Violation of civil rights.
441...........................  Other major misconduct offenses not
                                 specifically listed.
442...........................  Reserved for future use.
443...........................  Reserved for future use.
------------------------------------------------------------------------


[80 FR 16270, Mar. 27, 2015, as amended at 81 FR 64063, Sept. 19, 2016]



PART 67_EDUCATIONAL REQUIREMENTS FOR APPOINTMENT OF RESERVE COMPONENT
OFFICERS TO A GRADE ABOVE FIRST LIEUTENANT OR LIEUTENANT (JUNIOR GRADE)-
-Table of Contents



Sec.
67.1 Purpose.
67.2 Applicability.
67.3 Definitions.
67.4 Policy.
67.5 Responsibilities.
67.6 Procedures.

    Authority: 10 U.S.C. 12205.

    Source: 62 FR 55517, Oct. 27, 1997, unless otherwise noted.



Sec.  67.1  Purpose.

    This part provides guidance for implementing policy, assigns 
responsibilities, and prescribes under 10 U.S.C.

[[Page 297]]

12205 for identifying criteria for determining educational institutions 
that award baccalaureate degrees which satisfy the educational 
requirement for appointment of officers to a grade above First 
Lieutenant in the Army Reserve, Air Force Reserve, and Marine Corps 
Reserve, or Lieutenant (Junior Grade) in the Naval Reserve, or for 
officers to be federally recognized in a grade level above First 
Lieutenant as a member of the Army National Guard or Air National Guard.



Sec.  67.2  Applicability.

    This part applies to the Office of the Secretary of Defense, and the 
Military Departments; the Chairman of the Joint Chiefs or Staff; and the 
Defense Agencies referred to collectively in this part as the ``DoD 
Components''). The term ``Military Departments,'' as used in this part, 
refers to the Departments of the Army, the Navy, and the Air Force. The 
term ``Secretary concerned'' refers to the Secretaries of the Military 
Departments. The term ``Military Services'' refers to the Army, the 
Navy, the Air Force, the Marine Corps. The term ``Reserve components'' 
refers to the Army Reserve, Army National Guard of the United States, 
Air Force Reserve, Air National Guard of the United States, Naval 
Reserve, Marine Corps Reserve.



Sec.  67.3  Definitions.

    Accredited educational institution. An educational institution 
accredited by an agency recognized by the Secretary of Education.
    Qualifying educational institution. An educational institution that 
is accredited, or an unaccredited educational institution that the 
Secretary of Defense designates pursuant to Sec.  67.6(a) and Sec.  
67.6(b).
    Unaccredited educational institution. An educational institution not 
accredited by an agency recognized by the Secretary of Education.



Sec.  67.4  Policy.

    (a) It is DoD policy under 10 U.S.C. 12205 to require Reserve 
component officers to have at least a baccalaureate degree from a 
qualifying educational institution before appointment to a grade above 
First Lieutenant in the Army Reserve, Air Force Reserve or Marine Corps 
Reserve, or Lieutenant (Junior Grade) in the Naval Reserve, or for 
officers to be federally recognized in a grade above First Lieutenant as 
a member of the Army National Guard or Air National Guard.
    (b) Exempt from this policy is any officer who was:
    (1) Appointed to or recognized in a higher grade for service in a 
health profession for which a baccalaureate degree is not a condition of 
original appointment or assignment.
    (2) Appointed in the Naval Reserve or Marine Corps Reserve as a 
limited duty officer.
    (3) Appointed in the Naval Reserve for service under the Naval 
Aviation Cadet (NAVCAD) program or the Seaman to Admiral program.
    (4) Appointed to or recognized in a higher grade if appointed to, or 
federally recognized in, the grade of captain or, in the case of the 
Navy, lieutenant before October 1, 1995.
    (5) Recognized in the grade of captain or major in the Alaska Army 
National Guard, who resides permanently at a location in Alaska that is 
more than 50 miles from each of the cities of Anchorage, Fairbanks, and 
Juneau, Alaska, by paved road, and who is serving in a Scout unit or a 
Scout support unit.
    (c) The Department of Defense will designate an unaccredited 
educational institution as a qualifying educational institution for the 
purpose of meeting this educational requirement if that institution 
meets the criteria established in this part.



Sec.  67.5  Responsibilities.

    (a) The Assistant Secretary of Defense for Reserve Affairs, under 
the Under Secretary of Defense for Personnel and Readiness, shall:
    (1) Establish procedures by which an unaccredited educational 
institution can apply for DoD designation as a qualifying educational 
institution.
    (2) Publish in the Federal Register DoD requirements and procedures 
for an unaccredited educational institution to apply for designation as 
a qualifying education institution.
    (3) Annually, provide to the Secretaries of the Military Departments 
a list of those unaccredited educational

[[Page 298]]

institutions that have been approved by the Department of Defense as a 
qualifying educational institution. This list shall include the year or 
years for which unaccredited educational institutions are designed as 
qualifying educational institutions.
    (b) The Secretaries of the Military Departments shall establish 
procedures to ensure that after September 30, 1995, those Reserve 
component officers selected for appointment to a grade above First 
Lieutenant in the Army Reserve, Air Force Reserve, or Marine Corps 
Reserve, or Lieutenant (Junior Grade) in the Naval Reserve, or for 
officers to be federally recognized in a grade above First Lieutenant as 
a member of the Army National Guard or Air National Guard, who are 
required to hold a baccalaureate degree, were awarded a baccalaureate 
degree from a qualifying educational institution before appointment to 
the next higher grade. For a degree from an unaccredited educational 
institution that has been recognized as qualifying educational 
institution by the Department of Defense to satisfy the educational 
requirements of 10 U.S.C. 12205, the degree must not have been awarded 
more than 8 years before the date the officer is to be appointed, or 
federally recognized, in the grade of Captain in the Army Reserve, Army 
National Guard, Air Force Reserve, Air National Guard, or Marine Corps 
Reserve, or in the grade of Lieutenant in the Naval Reserve.



Sec.  67.6  Procedures.

    (a) An unaccredited educational institution may obtain designation 
as a qualifying educational institution for a specific Reserve component 
officer who graduated from that educational institution by providing 
certification from registrars at three accredited educational 
institutions that maintain ROTC programs that their educational 
institutions would accept at least 90 percent of the credit hours earned 
by that officer at the unaccredited educational institution, as of the 
year of graduation.
    (b) For an unaccredited educational institution to be designated as 
a qualifying educational institution for a specific year, that 
educational institution must provide the Office of the Assistant 
Secretary of Defense for Reserve Affairs certification from the 
registrars at three different accredited educational institutions that 
maintain ROTC programs listing the major field(s) of study in which that 
educational institution would accept at least 90 percent of the credit 
hours earned by a student who was awarded a baccalaureate degree in that 
major field of study at the unaccredited educational institution.
    (c) For an unaccredited educational institution to be considered for 
designation as a qualifying educational institution, the unaccredited 
educational institution must submit the required documentation no later 
than January 1 of the year for which the unaccredited educational 
institution seeks to be designated a qualifying educational institution.
    (d) The required documentation must be sent to the following 
address: Office of the Assistant Secretary of Defense for Reserve 
Affairs, Attn: DASD (M&P), 1500 Defense Pentagon, Washington, DC 20301-
1500.
    (e) Applications containing the required documentation may also be 
submitted at any time from unaccredited educational institutions 
requesting designation as a qualifying educational institution for prior 
school years.



PART 68_VOLUNTARY EDUCATION PROGRAMS--Table of Contents



Sec.
68.1 Purpose.
68.2 Applicability.
68.3 Definitions.
68.4 Policy.
68.5 Responsibilities.
68.6 Procedures.

Appendix A to Part 68--DoD Voluntary Education Partnership Memorandum of 
          Understanding (MOU) Between DoD Office of the Under Secretary 
          of Defense for Personnel and Readiness (USD(P&R)) and [Name of 
          Educational Institution]
Appendix B to Part 68--Addendum for Education Services Between [Name of 
          Educational Institution] and the U.S. Air Force (USAF)
Appendix C to Part 68--Addendum for Education Services between [Name of 
          Educational Institution] and the U.S. Army

[[Page 299]]

Appendix D to Part 68--Addendum for Education Services between [Name of 
          Educational Institution] and the U.S. Marine Corps
Appendix E to Part 68--Addendum for Education Services between [Name of 
          Educational Institution] and the U.S. Navy

    Authority: 10 U.S.C. 2005, 2006a, 2007.

    Source: 79 FR 27737, May 15, 2014, unless otherwise noted.



Sec.  68.1  Purpose.

    This part:
    (a) Implements policy, assigns responsibilities, and prescribes 
procedures for the operation of voluntary education programs in the DoD.
    (b) Establishes policy stating the eligibility criteria for tuition 
assistance (TA) and the requirement for a memorandum of understanding 
(MOU) from all educational institutions providing educational programs 
through the DoD TA Program.
    (c) Establishes policy that:
    (1) All educational institutions providing education programs 
through the DoD Tuition Assistance (TA) Program:
    (i) Will provide meaningful information to students about the 
financial cost and attendance at an institution so military students can 
make informed decisions on where to attend school.
    (ii) Will not use unfair, deceptive, and abusive recruiting 
practices.
    (iii) Will provide academic and student support services to Service 
members and their families.
    (2) Creates rules to strengthen existing procedures for access to 
DoD installations by educational institutions.
    (3) Requires an annual review and notification process of uniform 
semester-hour (or equivalent) TA caps and annual TA ceilings.
    (4) Requires the Military Departments to provide their Service 
members with a joint services transcript (JST).
    (5) Implements the DoD Postsecondary Education Complaint System for 
Service members, spouses, and adult family members to register student 
complaints.
    (6) Authorizes the Military Departments to establish Service-
specific TA eligibility criteria and management controls.
    (d) Establishes the Interservice Voluntary Education Board.



Sec.  68.2  Applicability.

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



Sec.  68.3  Definitions.

    The following terms and their definitions are for the purpose of 
this part:
    Academic. Relating to education, educational studies, an educational 
institution, or the educational system.
    Academic skills. Competencies in English, reading, writing, 
speaking, mathematics, and computer skills that are essential to 
successful job performance and new learning. Also referred to as 
functional or basic skills.
    Active Guard and Reserve (AGR). National Guard or Reserve members of 
the Selected Reserve (SELRES) who are ordered to active duty or full-
time National Guard duty for a period of 180 consecutive days or more 
for the purpose of organizing, administering, recruiting, instructing, 
or training the Reserve Component (RC) units or duties as prescribed in 
10 U.S.C. 12310. All AGR members must be assigned against an authorized 
mobilization position in the unit they support. (Includes Navy full-time 
support (FTS), Marine Corps Active Reserve (ARs), and Coast Guard 
Reserve Personnel Administrators (RPAs)).
    American Council on Education (ACE). The major coordinating body for 
all of the Nation's higher education institutions. Seeks to provide 
leadership and a unifying voice on key higher education issues and 
publishes the ``Guide to the Evaluation of Educational Experiences in 
the Armed Services.''
    Annual TA Ceiling. The maximum dollar amount authorized for each 
Service member for TA per fiscal year. Each Service member participating 
in off-duty voluntary education programs

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will be entitled to the full amount authorized each fiscal year in 
accordance with DoD policy.
    Army/American Council on Education Registry Transcript System. A 
document sent directly from the Army American Council on Education 
Registry Transcript System Center to the educational institution to 
articulate a soldier's military experience and training and the American 
Council on Education-recommended college credit for this training and 
experience. The JST consolidates data from the legacy Army/ACE Registry 
Transcript System.
    Degree requirements. A document provided by the educational 
institution that outlines required courses and conditions to complete an 
educational program. The document presents the general education, major-
related, and elective course requirements, degree competencies (e.g., 
foreign language, computer literacy), and other requirements (e.g., 
examination, thesis, dissertation, practicum, grade point average, 
credits by course level, or academic residency) for the specified 
program of study. This document becomes the basis for the evaluated 
educational plan.
    DoD Installation. For the purposes of this Instruction, any active 
duty military, Reserve or National Guard owned, leased, or operated 
base, reservation, post, site, camp, building, or other facility to 
which DoD personnel are assigned for duty.
    Education advisor. A professionally qualified, subject matter expert 
or program manager in the Education Services Series 1740 or possessing 
equivalent qualifications at the education center. The following 
position titles may also be used for an education advisor: Education 
Services Specialist, Education Services Officer (ESO), Voluntary 
Education Director, Navy College Office Director, and Education and 
Training Section (ETS) Chief.
    Education center. A DoD installation facility, including office 
space, classrooms, laboratories, or other features, that is staffed with 
professionally qualified personnel and to conduct voluntary education 
programs. This may be located at an active duty military installation, 
Reserve and National Guard facility (state readiness center, armory, 
unit, etc.), or recruiting center (leased space inside a shopping mall 
or office building). For Navy, this is termed the ``Navy College 
Office.''
    Educational institution. A college, university, or other institution 
of higher education. For the purposes of this Instruction, the parent/
home/main campus and any sub-campuses included in the signed MOU with 
DoD.
    Educational institution agent. A lawful agent of the educational 
institution is limited to persons who have written authorization to act 
on behalf of the educational institutions.
    Educational institution representative. An employee of the 
educational institution.
    Eligible adult family member. The adult family member, over the age 
of 18, of an active duty, Reserve, National Guardsman, or DoD civilian 
with a valid DoD identification card.
    Evaluated educational plan. An individualized official academic 
document provided by the educational institution that:
    (1) Articulates all degree requirements for degree completion or in 
the case of a non-degree program, all educational requirements for 
completion of the program;
    (2) Identifies all courses required for graduation in the 
individual's intended academic discipline and level of postsecondary 
study; and
    (3) Includes an evaluation of all successfully completed prior 
coursework, and evaluated credit for military training and experience, 
and other credit sources applied to the institutional degree 
requirements. At a minimum, the evaluated educational plan will identify 
required courses and where appropriate, College Level Examination 
Program, DSST (formerly known as the DANTES Subject Standardized Tests) 
Program, and potential American Council on Education recommended college 
credits for training and experiences. For participating SOC Degree 
Network System institutions, the SOC Degree Network System Student 
Agreement serves as this evaluated educational plan. For some 
educational institutions this may be termed a degree audit.
    Individual Ready Reserve (IRR). A manpower pool consisting 
principally

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of individuals who have had training, have previously served in the 
Active Component or in the SELRES, and have some period of their 
military service obligation or other contractual obligation remaining. 
Some individuals volunteer to remain in the IRR beyond their military 
service or contractual obligation and participate in programs providing 
a variety of professional assignments and opportunities for earning 
retirement points and military benefits.
    Joint services transcript (JST). An official education transcript 
tool for documenting the recommended ACE college credits for a variety 
of professional military education, training courses, and occupational 
experience of Service members across the Services. The JST consolidates 
data from legacy documents such as the Army/ACE Registry Transcript 
System, the Sailor/Marine ACE Registry Transcript System, the Community 
College of the Air Force transcript, and the Coast Guard Institute 
transcript.
    Needs assessment. A process used to determine the staffing 
requirements, course offerings, size of facilities, funding, or other 
standards for delivery of educational programs.
    Off-duty. Time when the Service member is not scheduled to perform 
official duties.
    Ready Reserve. Composed of military members of the Reserve and 
National Guard, organized in units or as individuals, or both, and 
liable for involuntary order to active duty in time of war or national 
emergency pursuant to 10 U.S.C. 12310 and 12301 and 14 U.S.C. 712 in the 
case of members of the Coast Guard Reserve. The Ready Reserve consists 
of the SELRES, the IRR, and the Inactive National Guard.
    Sailor/Marine American Council on Education Registry Transcript 
System. A document sent directly from the Sailor/Marine ACE Registry 
Transcript System Operations Center to the educational institution to 
articulate a Sailor's or Marine's military experience and training and 
the American Council on Education recommended college credit for this 
training and experience. The JST consolidates data from the legacy 
Sailor/Marine ACE Registry Transcript System.
    Semester-hour TA cap. The maximum dollar amount authorized for TA 
per semester-hour (or equivalent) credit. A Service will pay no more 
than the established DoD cap per semester-unit (or equivalent) for 
tuition.
    Servicemembers Opportunity Colleges (SOC). A consortium of over 
1,800 colleges and universities, created in 1972 that seeks to enhance 
the educational opportunities to Service members who may have difficulty 
in completing college programs due to frequent military moves.
    Third Party Education Assessment. A third-party evaluation of 
voluntary education programs covered by the DoD Voluntary Education 
Partnership MOU.
    Top-Up. An option, under the Montgomery G.I. Bill and the Post-9/11 
G.I. Bill, that enables active duty Service members and certain 
Reservists to receive from the VA those tuition costs that exceed or are 
not authorized in the amount of TA provided to the Service member by his 
or her Service. Entitlement is charged differently depending on which 
G.I. Bill program a Service member uses. The Montgomery G.I. Bill 
entitlement is charged based on the dollar amount of benefits VA pays to 
the individual. The Service member will be charged one month of 
entitlement for each payment received that is equal to the full-time 
monthly rate for the Montgomery G.I. Bill. The Post-9/11 entitlement is 
charged based on the enrolled amount of time and the individual's rate 
of pursuit during the period of enrollment. If a Service member is 
attending classes part-time or at the 1/2 time level, the charge is 1/2 
month of Post-9/11 G.I. Bill benefits for each month enrolled and 
receiving G.I. Bill benefits.
    Troops-to-Teachers program (TTT). A DoD program to assist 
transitioning Service members and veterans in meeting the requirements 
necessary to become a teacher and facilitating their subsequent 
employment.
    Tuition assistance (TA). Funds provided by the Military Services or 
U.S. Coast Guard to pay a percentage of the charges of an educational 
institution for the tuition of an active duty, Reserve or National Guard 
member of the Military Services, or Coast Guard

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member, enrolled in approved courses of study during off-duty time.
    Voluntary education programs. Continuing, adult, or postsecondary 
education programs of study that Service members elect to participate in 
during their off-duty time, and that are available to other members of 
the military community.



Sec.  68.4  Policy.

    It is DoD policy, consistent with DoD Directive 1322.08E, 
``Voluntary Education Programs for Military Personnel'' (available at 
http://www.dtic.mil/whs/ directives/corres/pdf/ 132208p.pdf), that:
    (a) Members of the Military Services serving on active duty and 
members of the Selected Reserve (SELRES) will be afforded the 
opportunity to complete their high school education through a state-
funded or Service component sponsored program; earn an equivalency 
diploma, improve their academic skills or level of literacy, enroll in 
career and technical education schools, receive college credit for 
military training and experience in accordance with the American Council 
on Education (ACE) Guide to the Evaluation of Educational Experiences in 
the Armed Services (available at http://www.acenet.edu/ news-room/Pages/ 
Military-Guide-Online.aspx), take tests to earn college credit, and 
enroll in postsecondary education programs that lead to industry-
recognized credentials, and undergraduate and graduate degrees.
    (b) Service members' costs to participate in the DoD Voluntary 
Education Program as authorized by 10 U.S.C. 2007, will be reduced 
through financial support, including TA that is administered uniformly 
across the Military Services. On an annual basis and no later than the 
end of the second quarter of the fiscal year, the Under Secretary of 
Defense for Personnel and Readiness (USD(P&R)), in coordination with the 
Military Departments, will review the uniform semester-hour (or 
equivalent) TA caps and annual TA ceilings to determine possible changes 
for the upcoming fiscal year. If there are any changes in the uniform 
semester-hour (or equivalent) caps and annual TA ceilings, a memorandum 
will be released from the USD(P&R), in coordination with the Military 
Departments, and a corresponding notice will be published in the Federal 
Register.
    (c) Professional education counseling will be readily available and 
easy to access so that Service members can make informed decisions 
concerning available educational opportunities and benefits. Education 
counseling will be provided by qualified professional (Education 
Services Series 1740 or an individual with equivalent qualifications) in 
sufficient numbers to operate voluntary education programs as determined 
by individual Service standards.
    (d) In accordance with Executive Order (E.O.) 13607:
    (1) Educational institutions receiving funding from federal military 
educational benefits programs, such as the DoD TA Program, will:
    (i) Provide meaningful information to students on the financial cost 
and attendance at an educational institution so military students can 
make informed decisions on where to attend school as stated in section 3 
of Appendix A.
    (ii) Prevent unfair, deceptive, and abusive recruiting practices 
that target Service members as defined by the Dodd-Frank Wall Street 
Reform and Consumer Protection Act and as stated in section 3 of 
Appendix A.
    (iii) Provide academic and student support services specific to the 
institutions' programs to all enrolled Service members, spouses and 
adult family members.
    (2) DoD will implement a centralized online complaint system for 
Service members, spouses, and adult family members that will register, 
track, and respond to student complaints. DoD or the assigned Military 
Service will work with educational institutions to resolve any filed 
complaints. Educational institutions having recurring, substantive 
complaints or demonstrating an unwillingness to resolve complaints may 
face a range of penalties from a directed Third Party Education 
Assessment to revocation of the DoD Voluntary Education Partnership MOU 
and removal from participation in the DoD TA Program. As appropriate, 
DoD will refer student complaints to other

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government agencies/regulators including but not limited to the Federal 
Trade Commission (FTC), Department of Justice (DOJ), Consumer Financial 
Protection Bureau (CFPB), Department of Veterans Affairs (VA), and 
Department of Education (ED).
    (e) Educational institutions accredited by a national or regional 
accrediting agency recognized by ED will be encouraged to provide degree 
programs on DoD installations and the Military Services will facilitate 
their operations on the DoD installations referred to in Sec.  68.6(c).
    (f) To the extent that space is otherwise available, eligible adult 
family members of Service members, DoD civilian employees and their 
eligible adult family members, and military retirees may enroll in 
postsecondary education programs offered on a DoD installation at no 
cost to the individual Service TA programs.



Sec.  68.5  Responsibilities.

    (a) The USD(P&R) will:
    (1) Monitor implementation of and ensure compliance with this part 
and DoD Directive 1322.08E.
    (2) Establish rates of TA and ensure uniformity across the Military 
Services as required by DoD Directive 1322.08E and this part. The 
uniform semester-hour (or equivalent) TA caps and annual TA ceilings 
will be reviewed annually and if changed, a memorandum from the USD(P&R) 
will be released following coordination with each of the Military 
Departments. Additionally, if the uniform TA rates are changed, a notice 
will be published in the Federal Register at approximately the start of 
the fiscal year.
    (3) Establish, under the provisions of DoD Instruction 5105.18, 
``DoD Intergovernmental and Intragovernmental Committee Management 
Program'' (available at http://www.dtic.mil/whs/ directives/corres/pdf/ 
510518p.pdf), the Interservice Voluntary Education Board, which will be 
composed of full-time or permanent part-time federal employees.
    (4) Maintain a program to assess the effectiveness of the voluntary 
education programs.
    (5) Issue written supplemental guidance annually for the funding and 
operation of the Defense Activity for Non-Traditional Education Support 
(DANTES) for those items not reflected in paragraph (f) of Sec.  68.6.
    (b) The Assistant Secretary of Defense for Readiness and Force 
Management (ASD(R&FM)), under the authority, direction, and control of 
the USD(P&R) will:
    (1) Provide administrative assistance to the Deputy Assistant 
Secretary of Defense for Military Community and Family Policy 
(DASD(MCFP)), in support of the voluntary education programs.
    (2) Respond to matters that are referred by the DASD(MCFP).
    (c) The DASD(MCFP), under the authority, direction, and control of 
the ASD(R&FM), will:
    (1) Monitor compliance with this part and DoD Directive 1322.08E and 
related issuances by personnel under his or her authority, direction, 
and control.
    (2) Oversee the DoD Voluntary Education Program.
    (3) Provide ongoing and routine clarifying guidance for the DoD 
Voluntary Education Program.
    (4) Provide representatives to professional education and cross-
agency panels addressing issues impacting the DoD Voluntary Education 
Program, its regulatory scope, clientele, and partners.
    (5) Designate the Voluntary Education Chief within the Office of the 
DASD(MCFP) as the Chair of the Interservice Voluntary Education Board 
and oversee implementation of Board and DANTES procedures as detailed in 
Sec.  68.6 of this part.
    (6) Oversee the DoD Postsecondary Education Complaint System through 
which Service members, spouses, and adult family members receiving 
federal military and veterans educational benefits can register on-line 
complaints that will be tracked and responded to by DoD, VA, ED, CFPB, 
DOJ, FTC, and other relevant agencies. The DoD Postsecondary Education 
Complaint System is web-based and accessible on-line at https://
afaems.langley. af.mil/pecs/DoDPECS. This complaint system contains the 
uniform procedures for the processing of the complaint intake (DD Form 
2961, ``DoD Postsecondary Education Complaint Intake'').

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    (7) Oversee the Third-Party Education Assessment, which is a third 
party review process to assess the quality, delivery, and coordination 
of the voluntary education programs provided to military personnel on 
the DoD installation, in the community, and via distance learning (DL). 
It assists in improving the quality of the delivery of these programs 
through recommendation to educational institutions, DoD installations, 
and the Military Services. DASD(MCFP) will monitor actions:
    (i) By the Military Services to resolve recommendations for 
improvement identified on the respective Military Service's installation 
during the Third Party Education Assessment.
    (ii) By the DoD Voluntary Education Chief to resolve recommendations 
for improvement concerning educational institutions operating off the 
DoD installation or via DL identified during Third Party Education 
Assessments. These educational institutions will provide corrective 
actions taken within 6 months of the assessment to the DoD Voluntary 
Education Chief. In instances when the issue cannot be resolved within 
the 6 month timeframe, the educational institution will submit a status 
report every 3 months to the DoD Voluntary Education Chief until the 
recommendation is resolved.
    (8) Prepare written supplemental guidance annually for the USD(P&R) 
regarding the funding and operation of DANTES for those items not 
reflected in paragraph (f) of Sec.  68.6.
    (9) Oversee the policy of the JST.
    (d) The Assistant Secretary of Defense for Reserve Affairs 
(ASD(RA)), under the authority, direction, and control of the USD(P&R), 
will:
    (1) Monitor compliance with this part and DoD Directive 1322.08E and 
related issuances by personnel under his or her authority, direction, 
and control.
    (2) Appoint a representative to serve on the Interservice Voluntary 
Education Board.
    (3) Arrange the assignment of, on a rotating basis, a field grade 
officer, to serve as the RC Advisor to the Voluntary Education Chief and 
a representative on the Interservice Voluntary Education Board.
    (e) The Secretaries of the Military Departments will:
    (1) Monitor compliance with this part and DoD Directive 1322.08E and 
related issuances by personnel under their respective authority, 
direction, and control.
    (2) Establish, maintain, coordinate, and operate voluntary education 
programs that encompass a broad range of educational experiences 
including, but not limited to, academic skills development, high school 
completion programs, vocational programs, career and technical programs, 
and programs leading to the award of undergraduate and graduate degrees.
    (3) Require that sufficient funding is available to provide Service 
members with TA support consistent with the requirements in Sec.  68.6 
and appendices A, B, C, D, and E to this part.
    (4) Require that educational counseling is available to Service 
members so they will have sufficient information and guidance to plan an 
appropriate program of study. Educational counseling will be provided by 
qualified professional (Education Services Series 1740 or an individual 
with equivalent qualifications) individuals.
    (5) Require that voluntary education programs participate in the 
DoD-established third-party review process titled the Third Party 
Education Assessment.
    (i) Within 6 months of the Third Party Education Assessment on their 
installation, the responsible Military Service will resolve 
recommendations received as a result of the assessment and provide the 
resolutions to the DoD Voluntary Education Chief. In instances when the 
issue cannot be resolved within the 6 month timeframe, the Military 
Service will submit a status report every 3 months to the DoD Voluntary 
Education Chief until the recommendation is resolved.
    (ii) If the recommendation(s) requires involvement of an educational 
institution operating on their respective installation, the Military 
Service will coordinate the submission of corrective actions taken by 
the educational institution(s) through the appropriate Education 
Advisor, and forward the submission through their respective Military 
Service leadership to the DoD Voluntary Education Chief.

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    (iii) Waivers to the Third Party Education Assessment must be 
submitted to and approved by the DoD Voluntary Education Chief.
    (6) Provide one representative to serve on the Interservice 
Voluntary Education Board responsible for their Services' voluntary 
education policy from each of the following Military Services: Army, 
Navy, Air Force, and Marine Corps. Each Service representative's 
membership will be on a permanent basis and changed only when their 
voluntary education policy position is changed.
    (7) Assign, on a rotating basis, a senior enlisted Service member in 
the military pay grade E-9 to serve as the DANTES enlisted advisor.
    (8) Assign, on a rotating basis, a field-grade officer to serve as 
the DANTES RC advisor.
    (9) Require that military test control officers and test centers 
comply with the guidance and procedures published in the DANTES 
Examination Program Handbook, available at http://www.dantes.doded.mil/ 
Programs/Docs/DEPH_part1.pdf.
    (10) Require that personnel who provide counseling, advice, and 
program management related to voluntary education programs have access 
to the DoD Voluntary Education homepage and other Web sites so they can 
provide current and accurate information to Service members.
    (11) Provide opportunities for Service members to access the 
Internet, where available, to enroll in and complete postsecondary 
courses that are part of their evaluated educational plan leading to an 
educational goal.
    (12) Submit requested quarterly and annual information for the 
Voluntary Education Management Information System (VEMIS) by the 20th 
day of the month after the end of each fiscal quarter for the quarterly 
reports and November 15th each year for the annual report. Reporting 
information includes, but is not limited to, voluntary education program 
data on enrollments, participation, and costs.
    (13) Respond to and resolve Service-specific student complaints 
received and managed through the DoD Postsecondary Education Complaint 
System.
    (14) Provide Service members with a JST. At a minimum, the JST will 
include documented military student data, courses, and military 
occupations evaluated by ACE, including descriptions, learning outcomes, 
and equivalent college credit recommendations, as well as national 
college-level exam results. The U.S. Air Force (USAF) will continue to 
use the Community College of the Air Force (CCAF) to document its 
members' academic and military credit.
    (f) Secretary of the Navy. The Secretary of the Navy, as the DoD 
Executive Agent (DoD EA) for DANTES pursuant to DoD Directive 1322.08E 
and DoD Directive 5101.1, ``DoD Executive Agent'' (available at http://
www.dtic.mil/whs/ directives/corres/pdf/ 510101p.pdf), and in addition 
to the responsibilities in this section, will:
    (1) Transmit supplemental annual guidance issued by the USD(P&R) to 
DANTES for those items not reflected in paragraph (f) of Sec.  68.6.
    (2) Require that the Director, DANTES, provide updates on DANTES 
plans, operations, and activities to the USD(P&R).
    (3) Through its civilian personnel system, advertise the position of 
Director, DANTES, when the position is vacated and appoint the Director, 
DANTES, in accordance with the procedures outlined in Sec.  68.6.



Sec.  68.6  Procedures.

    (a) TA for Service members participating in education programs. (1) 
TA will be available for Service members participating in high school 
completion and approved courses from accredited undergraduate or 
graduate education programs or educational institutions. Approved 
courses are those that are part of an identified course of study leading 
to a postsecondary certificate or degree and non-degree oriented 
language courses integral to the Defense Language Transformation Roadmap 
(available at http://www.defense.gov/news/ Mar2005/
d20050330roadmap.pdf).
    (i) Use of TA for non-degree oriented language courses is limited to 
those published by the Under Secretary of Defense (P&R) on the DoD 
Strategic Language List.

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    (ii) Dominant-in-the-force languages and languages deemed by DoD as 
already having sufficient strategic capacity will not be funded under 10 
U.S.C. 2007, except for assignments outside the continental United 
States.
    (2) TA will be applied as follows:
    (i) For 100 percent of the cost of approved high school completion 
programs for Service members who have not been awarded a high school or 
equivalency diploma and who are enrolled in such programs.
    (ii) In support of the voluntary education of active duty Service 
members during their off-duty periods, each Military Service will pay 
all or a portion, as specified in paragraphs (a)(2)(ii)(A) through (F) 
of this section, of the charges of an educational institution for 
education during the member's off-duty periods. TA funding will only be 
paid to educational institutions accredited by an accrediting 
organization recognized by ED, approved VA funding, and certified to 
participate in federal student aid programs through the ED under Title 
IV of Public Law 89-329, also known and referred to in this part as the 
Higher Education Act of 1965. Whenever ED withdraws the recognition of 
any accrediting agency, an institution of higher education that meets 
the requirements of accreditation, eligibility, and certification on the 
day before such withdrawal, may, notwithstanding the withdrawal, 
continue to participate in the TA program for a period not to exceed 18 
months from the date of the withdrawal of recognition.
    (A) When an educational institution's charges are equal to or less 
than the established cap per semester-hour of credit or its equivalent, 
the responsible Service will pay the entire amount charged by the 
educational institution. In computing credit equivalency, the following 
conversions will apply: 1 quarter-hour credit = 2/3 semester-hour 
credit; and 45 contact hours will be considered equivalent to 1 
semester-hour credit when neither semester- nor quarter-hours are 
specified for the education for which the Service member is enrolled.
    (B) When an educational institution's charges exceed the established 
cap per semester-hour of credit, or its equivalent, the responsible 
Service, will pay no more than the established cap per semester-unit (or 
equivalent) for tuition.
    (C) Each Service member participating in off-duty, voluntary 
education will be allowed no more than the established annual ceiling, 
in aggregate, for each fiscal year.
    (D) Covered charges include those that are submitted to the Service 
by the educational institution for tuition only. Educational 
institutions that bundle tuition, fees, or books into a consolidated 
cost must detail the charges of fees and books separately for Service 
members participating in the TA program. Fees include any charge not 
directly related to course instruction including but not limited to 
costs associated with room, board, distance learning, equipment, 
supplies, books/materials, exams, insurance, parking, transportation, 
admissions, registration, or fines.
    (E) TA funds are not to be used for the purchase of books to include 
textbooks, ebooks, CDs/DVDs, or reference or instructional materials. 
Additionally, institutional education revenue generated from military TA 
funds cannot be used to support textbook grants or scholarships.
    (F) To be eligible to receive TA, a Service member must meet the 
minimum requirement of successfully completing basic training. RC 
members are exempt from the requirement to first attend basic training 
before authorized to receive TA. Additional, respective Service 
requirements must be met to include training qualification, unit 
assignment, and time in service criteria.
    (iii) The TA rate, credit-cap, and annual per capita ceiling, will 
be reviewed annually in consideration of inflation and other effects, 
and will be applicable uniformly whether instruction is delivered 
traditionally in-the-classroom or through distance education. Rates of 
TA other than as identified in paragraphs (a)(2)(ii)(A) through (F) of 
this section are not authorized.
    (3) Service-specific TA eligibility requirements. (i) Service-
specific eligibility criteria and management controls are determined by 
each Military Service.

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    (ii) Service-specific TA eligibility criteria and management 
controls may include, but are not limited to, applying TA:
    (A) For courses leading to a certificate or required for a 
credentialing program. All payments for courses must comply with the 
allowable caps and ceilings.
    (B) For graduate studies through the master's degree level. All 
payments for courses must comply with the allowable caps and ceilings.
    (C) For same level degrees, subject to the availability of funds. 
However, TA is primarily intended to raise the academic degree level of 
the Service member.
    (4) TA is available to a commissioned officer on active duty, other 
than an officer serving in the Ready Reserves (addressed in paragraphs 
(a)(5)(i) and (a)(6)(i) of this section), only if the officer agrees to 
remain on active duty, for a period of at least 2 years after the 
completion of the education or training for which TA was paid (see 10 
U.S.C. 2007).
    (5) The Secretary of the Military Department concerned may only make 
TA available to a member of the SELRES, pursuant to 10 U.S.C. 2007, 
under the following conditions:
    (i) In the case of a commissioned officer, the officer must agree to 
remain a member of the SELRES for at least 4 years after completion of 
the education or training for which TA is paid.
    (ii) In the case of an enlisted member, the Secretary concerned may 
require the member of the SELRES to enter into an agreement to remain a 
member of the SELRES for up to 4 years after completion of the education 
or training for which TA is paid.
    (6) The Secretary of the Military Department concerned may only make 
TA available to a member of the IRR who has a military occupational 
specialty designated by the Secretary concerned pursuant to 10 U.S.C. 
2007 and only under the following conditions:
    (i) In the case of a commissioned officer, the officer must agree to 
remain a member of the SELRES or IRR for at least 4 years after 
completion of the education or training for which TA was paid.
    (ii) In the case of an enlisted member, the Secretary concerned may 
require the member of the IRR to enter into an agreement to remain a 
member of the IRR for up to 4 years after completion of the education or 
training for which TA is paid.
    (7) Members performing Active Guard and Reserve (AGR) duty under 
either 10 U.S.C. 12310 or active duty under 14 U.S.C. 712 are eligible 
for TA under paragraph (a)(4) of this section.
    (8) The Secretary of the Military Department concerned may make TA 
available to National Guard members in accordance with paragraph (a)(4), 
except for National Guard members assigned to the Inactive National 
Guard.
    (9) Reimbursement and repayment requirements:
    (i) If a commissioned officer or member of the RR does not fulfill a 
specified Service obligation as required by 10 U.S.C. 2007, they are 
subject to the repayment provisions of 37 U.S.C. 303a(e).
    (ii) For other conditions pursuant to 10 U.S.C. 2005, the Secretary 
concerned may require a Service member to enter into a written agreement 
when providing advanced education assistance. If the Service member does 
not fulfill any terms or conditions as prescribed by the Secretary 
concerned, the Service member will be subject to the repayment 
provisions of 37 U.S.C. 303a(e).
    (iii) Pursuant to 37 U.S.C. 303a(e), the Secretary concerned may 
establish procedures for determining the amount of the repayment 
required from the Service member and the circumstances under which an 
exception to the required repayment may be granted.
    (iv) Reimbursement will be required from the Service member if a 
successful course completion is not obtained. For the purpose of 
reimbursement, a successful course completion is defined as a grade of 
``C'' or higher for undergraduate courses, a ``B'' or higher for 
graduate courses and a ``Pass'' for ``Pass/Fail'' grades. Reimbursement 
will also be required from the Service member if he or she fails to make 
up a grade of ``I'' for incomplete within the time limits stipulated by 
the educational institution or 6 months after the completion of the 
class, whichever

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comes first. The Secretary of the Military Department will establish 
recoupment processes for unsuccessful completion of courses.
    (10) Students using TA must maintain a cumulative grade point 
average (GPA) of 2.0 or higher after completing 15 semester hours, or 
equivalent, in undergraduate studies, or a GPA of 3.0 or higher after 
completing 6 semester hours, or equivalent, in graduate studies, on a 
4.0 grading scale. If the GPA for TA funded courses falls below these 
minimum GPA limits, TA will not be authorized and Service members will 
use alternative funding (such as financial aid or personal funds) to 
enroll in courses to raise the cumulative GPA to 2.0 for undergraduate 
studies or 3.0 for graduate studies.
    (11) TA will not be authorized for any course for which a Service 
member receives reimbursement in whole or in part from any other Federal 
source such as veterans' education benefits (GI Bill and other programs) 
and Service-funded programs (ROTC scholarship, education-related 
incentive or bonus, and advanced civil schooling) when the payment would 
constitute a duplication of benefits paid to that educational 
institution. Federal student aid loan, grant, and work-study programs 
will not be considered a duplication of benefit. Educational 
institutions have the responsibility to notify the Service if there is 
any duplication of benefits, determine the amount of credit that should 
be returned, and credit the amount back to the Service. The use of funds 
related to veterans' education benefits to supplement TA received by 
active duty and RC personnel is authorized in accordance with applicable 
VA guidelines.
    (12) Pell Grants may be used in conjunction with TA assistance to 
pay that portion of tuition costs not covered by TA.
    (13) TA will be provided for courses provided by educational 
institutions awarding degrees based on demonstrated competency, if:
    (i) Competency rates are equated to semester or quarter units of 
credit, and
    (ii) The educational institution publishes traditional grade 
correlations with ``Pass/Fail'' grades, and
    (iii) The educational institution provides a breakdown by course 
equivalent for Service members.
    (14) Enrollment in a professional practicum integral to these types 
of programs is also authorized. However, normal DoD TA caps and ceilings 
apply; the cost of expanded levels of enrollment over and above these 
enrollment levels and normal caps and ceilings must be borne by the 
student.
    (15) When used for postsecondary education, TA will be provided only 
for courses offered by postsecondary educational institutions whose home 
campus is operating within the United States, to include the District of 
Columbia and U.S. territories, which are accredited by a national or 
regional accrediting body recognized by the ED.
    (16) On a date to be determined, but not earlier than 60 days 
following the publication of this part in the Federal Register, to 
receive TA, all educational institution home campuses must sign the 
revised DoD Voluntary Education Partnership Memorandum of Understanding 
(MOU) in appendices A, B, C, D, and E to this part, and the name of the 
educational institution must be posted on the DoD MOU Web site under the 
'Participating Institutions' tab (located at http://www.dodmou.com). One 
signed, revised DoD Voluntary Education Partnership MOU with the 
educational institution's home campus will cover any program offered by 
the educational institution, regardless of location. The requirement to 
sign the revised DoD Voluntary Education Partnership MOU contained in 
this part applies to institutions with a previously approved and signed 
DoD Voluntary Education Partnership MOU posted on the DoD MOU Web site.
    (17) To the extent that any provision of the standard language of 
the DoD Voluntary Education Partnership MOU template in appendices A, B, 
C, D, and E to this part, results from DoD policy that conflicts with a 
state law or regulation, the DASD(MCFP) may authorize amending the 
standard language of the DoD Voluntary Education Partnership MOU 
template on a case-by-case basis to the extent permissible by Federal 
law or regulation.
    (18) A DoD Voluntary Education Partnership MOU with an educational

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institution may be suspended or terminated by DoD in these 
circumstances:
    (i) The DoD Voluntary Education Partnership MOU with an educational 
institution may be terminated by the ASD(R&FM) following written notice 
and an opportunity to respond for the failure to comply with any element 
of this part of the DoD Voluntary Education Partnership MOU. In 
addition, an otherwise qualified educational institution may be 
suspended from participating in the tuition assistance program by the 
ASD(R&FM) following written notice and an opportunity to respond through 
either the termination of an existing DoD Voluntary Education 
Partnership MOU or the refusal by DoD to enter into a new DoD Voluntary 
Education Partnership MOU upon indictment of the educational institution 
or any senior official of the educational institution on a criminal 
charge related to the operation of the educational institution. The 
decision of the ASD(R&FM) in either of these cases may be appealed to 
the USD(P&R), and the decision of the USD(P&R) will be deemed to be the 
final administrative action by DoD on the matter.
    (ii) An otherwise qualified educational institution may also be 
immediately suspended from participating in the tuition assistance 
program through either the termination of an existing DoD Voluntary 
Education Partnership MOU or the refusal to enter into a new DoD 
Voluntary Education Partnership MOU by the USD(P&R) on national security 
grounds. Written notice of the action will be provided to the 
educational institution, and, if practicable without damaging national 
security, the written notice will include a short unclassified summary 
of the reasons for the action. Such a decision of the USD(P&R) is only 
appealable to the Secretary of Defense, who has authorized the Deputy 
Secretary of Defense to act on such an appeal.
    (iii) The authorities pursuant to this paragraph are not delegable.
    (b) Guidelines for establishing, maintaining, and operating 
voluntary education programs. (1) Education programs established under 
this part by each Military Service will:
    (i) Provide for the academic, technical, intellectual, personal, and 
professional development of Service members, thereby contributing to the 
readiness of the Military Services and the quality of life of Service 
members and their families.
    (ii) Increase Service members' opportunities for advancement and 
leadership by reinforcing their academic skills and occupational 
competencies with new skills and knowledge.
    (iii) Lead to a credential, such as a high school diploma, 
certificate, or college degree, signifying satisfactory completion of 
the educational program.
    (iv) Include an academic skills program, which allows personnel to 
upgrade their reading, writing, computation, and communication abilities 
in support of academic skills and military occupations and careers. 
Academic skills programs may include English as a Second Language, 
mathematics and basic science.
    (v) Include programs and college offerings that support findings 
from periodic needs assessments conducted by the appropriate DoD 
installation official (normally the Education Services Officer) for 
programs provided on the DoD installation. The DoD installation needs 
assessment process is used to determine such items as staffing 
requirements, course offerings, size of facilities, funding, or other 
standards for delivery of educational programs. Duplication of course 
offerings on a DoD installation should be avoided. However, the 
availability of similar courses through correspondence or electronic 
delivery will not be considered duplication.
    (vi) Be described in a publication or on-line source that includes 
on-installation educational programs, programs available at nearby DoD 
installations, and colleges and universities nearby the DoD 
installation.
    (2) Each Military Service, in cooperation with community educational 
service providers, will provide support essential to operating effective 
education programs. This support includes:
    (i) Adequate funds for program implementation, administration, and 
TA.
    (ii) Adequately trained staff to determine program needs, counsel 
students,

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provide testing services, and procure educational programs and services. 
Education counseling will be provided by qualified professional 
(Education Services Series 1740 or an individual with equivalent 
qualifications) individuals.
    (iii) Adequate and appropriate classroom, laboratory, and office 
facilities and equipment, including computers to support local needs.
    (iv) Access to telecommunications networks, computers, and physical 
or online libraries at times convenient to active duty personnel.
    (3) In operating its programs, each Military Service will:
    (i) Provide to newly assigned personnel, as part of their 
orientation to each new DoD installation or unit of assignment for RC 
personnel, information about voluntary education programs available at 
that DoD installation, unit, or State for RC personnel.
    (ii) Maintain participants' educational records showing education 
accomplishments and educational goals.
    (iii) Provide for the continuing professional development of their 
education services staff, including the participation of field staff in 
professional, as well as Service-sponsored, conferences, symposiums, and 
workshops.
    (iv) Provide educational services, including TA counseling, academic 
advice and testing to their personnel and to personnel of other Services 
(including the U.S. Coast Guard when operating as a service in the Navy) 
who are assigned for duty at DoD installations of the host Service. 
These educational services will be provided by qualified professional 
(Education Services Series 1740 or an individual with equivalent 
qualifications) individuals in sufficient numbers to operate voluntary 
education programs as determined by individual Service standards. 
Outcomes from these educational services will include:
    (A) A prior learning assessment that includes a review of all 
education transcripts to include the JST, the CCAF transcript, and 
academic transcript recommendations for ACE recommended credit.
    (B) An assessment of the Service members' readiness to accomplish 
the degree requirements as outlined in the evaluated educational plan 
and a discussion of academic skills development programs.
    (C) Discussion and review of technical credentials that can be 
obtained concurrent to academic pursuits.
    (D) Discussion of credit-by-examination options.
    (E) Review of academic program options, leading to a degree plan.
    (F) Discussion with prospective military students on payment options 
and the use of education benefits for postsecondary courses to include 
the DoD TA Program, VA education benefit programs, State and federal 
grants and loans, commercial lending, and out-of-pocket costs for the 
Service member. Discussion will include streamlined tools and 
information to compare educational institutions using key measures of 
affordability and value through the VA eBenefits portal at http://
www.ebenefits.va.gov. The eBenefits portal is updated by VA to 
facilitate access to school performance information and key federal 
financial aid documents.
    (v) Continually assess the state of its voluntary education programs 
and periodically conduct a formal needs assessment by the appropriate 
DoD installation official (normally the Education Services Officer) to 
ensure that the best possible programs are available to their members at 
each DoD installation or in their State or area command for RC 
personnel. It is essential that a formal needs assessment be conducted 
if there is a significant change in the demographic profile of the DoD 
installation population.
    (4) Eligible adult family members of Service members, DoD civilian 
employees and their eligible adult family members, and military retirees 
may participate in installation postsecondary education programs on a 
space-available basis at no cost to the individual Service TA programs.
    (5) At locations where an educational program that is offered on a 
DoD installation is not otherwise conveniently available outside the DoD 
installation, civilians who are not directly employed by the DoD or 
other Federal agencies, and who are not eligible adult family members of 
DoD personnel, may

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be allowed to participate in DoD installation educational programs. 
While such participation contributes to positive community relations, 
participation must be on a student-funded, space-available basis at no 
cost to the individual Service TA programs, after the registration of 
Service members, DoD civilian employees, eligible adult family members, 
and military retirees. Additionally, a review of these potential 
participants by the relevant DoD installation ethics counselor may be 
required as part of the installation commander's access requirements. 
Participation may also be subject to the terms of status-of-forces or 
other regulating agreements.
    (6) Education centers will maintain liaison with appropriate State 
planning and approving agencies and coordinating councils to ensure that 
planning agencies for continuing, adult, or postsecondary education are 
aware of the educational needs of military personnel located within 
their jurisdiction.
    (7) In supporting a high school completion program, each Military 
Service will:
    (i) Ensure that all Service members with less than a high school 
education have the opportunity to attain a high school diploma or its 
equivalent.
    (ii) Ensure that neither a Military Service nor DANTES issues a 
certificate or similar document to Service members based on performance 
on high school equivalency tests. Military Services will recognize 
attainment of high school completion or equivalency only after a State- 
or territory-approved agency has awarded the appropriate credential.
    (iii) Pay 100 percent of the cost of high school equivalency 
instruction or proficiency testing and credentialing for Service 
members.
    (iv) Ensure that Service sponsored high school diploma programs are 
delivered by institutions that are State-funded or a Service component 
program accredited by a regional accrediting body or recognized by a 
State's secondary school authority.
    (c) Procedures for the responsible education advisor, on behalf of 
the installation commander, to follow to provide voluntary education 
programs and services from postsecondary educational institutions. (1) 
Contacts by an educational institution with a Service member for the 
purpose of asking or encouraging the member to sign up for one of the 
educational institution's programs (assuming the program has some cost) 
are considered personal commercial solicitations. The responsible 
education advisor will ensure educational institutions comply with DoD 
Instruction 1344.07, ``Personal Commercial Solicitation on DoD 
Installations'' (available at http://www.dtic.mil/ whs/directives/
corres/pdf/ 134407p.pdf) and all requirements established by the 
installation commander for solicitation. Materials available through the 
education center that provide basic information about the educational 
institution or its programs or services in compliance with this MOU will 
not be considered personal commercial solicitation including, but not 
limited to, brochures, flyers, and catalogs provided by the educational 
institution. The responsible education advisor will ensure adequate and 
appropriate materials are available at no cost to the Service member and 
at no additional charge to the educational institution meeting the 
requirements as stated in the policy section of this part and in 
compliance with the DoD Voluntary Education Partnership MOU.
    (2) The responsible education advisor will limit DoD installation 
access to educational institutions or their agents meeting the 
requirements as stated in the policy section of this part and in 
compliance with the DoD Voluntary Education Partnership MOU. Agents 
representing education institutions in the performance of contracted 
services are permitted DoD installation access only in accordance with 
the requirements of their contract and/or agreement.
    (3) Educational institutions interested in providing education, 
guidance, training opportunities, and participating in sanctioned 
education fairs on a DoD installation provide their requests to the 
responsible education advisor, who will review and analyze these 
requests on behalf of the installation commander.
    (4) The responsible education advisor will ensure all educational 
institutions

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and its agents granted access to DoD installations to provide education, 
guidance, training opportunities, and participate in sanctioned 
education fairs to Service members:
    (i) Adhere to federal law, DoD Instruction 1344.07, DoD Instruction 
1322.19, ``Voluntary Education Programs in Overseas Areas'' (available 
at http://www.dtic.mil/ whs/directives/corres/pdf/ 132219p.pdf; and the 
cognizant Military Service's policies and regulations.
    (ii) Comply with applicable DoD installation policies and procedures 
designated by the installation commander on such matters as fire and 
safety, environment, physical security, personnel background checks, 
vehicle inspection and registration, and any other applicable statues or 
regulations designated by the installation commander.
    (5) Monitor educational institutions and its agents granted access 
to a DoD installation to ensure they do not:
    (i) Use unfair, deceptive, abusive or fraudulent devices, schemes, 
or artifices, including misleading advertising or sales literature.
    (ii) Engage in unfair, deceptive, or abusive marketing tactics, such 
as during unit briefings or assemblies; engaging in open recruiting 
efforts; or distributing marketing materials on the DoD installation at 
unapproved locations or events.
    (iii) Market to or recruit newly assigned military personnel to the 
DoD installation, unless the Service member has received information 
about voluntary education programs and educational services available at 
that DoD installation, to include TA, from their education services 
staff or as part of their orientation to the new DoD installation.
    (6) Ensure educational institutions granted access to DoD 
installations to provide programs, services, or education guidance to 
their students meet these criteria:
    (i) Have a signed Voluntary Education Partnership MOU with DoD.
    (ii) Are in compliance with State authorization requirements 
consistent with regulations issued by ED including 34 CFR 600.9. 
Educational institutions must meet the requirements of the state where 
services will be rendered to include compliance with all state laws as 
they relate to distance education.
    (iii) Are State approved for the use of veterans' education 
benefits. Copies of the certification will be filed with the appropriate 
State approving agency for the military or veteran student.
    (iv) Are certified to participate in federal student aid programs 
through the ED under Title IV of the Higher Education Act of 1965. Title 
IV certification may be provisional so long as the educational 
institution maintains eligibility to participate in the Federal Direct 
Loan Program.
    (v) Are accredited by a national or regional accrediting body 
recognized by the ED and conduct programs only from among those offered 
or authorized by the main administrative and academic office in 
accordance with standard procedures for authorization of degree programs 
by the educational institution.
    (7) DoD installations seeking an educational institution to provide 
on-installation education programs, through the responsible education 
advisor, must:
    (i) Communicate the educational needs of the DoD installation to a 
wide variety of potential providers.
    (ii) Seek favorable tuition rates, student services, and 
instructional support from providers.
    (iii) Provide to interested providers:
    (A) The level of services and instruction desired, and specific 
degree programs being sought.
    (B) A demographic profile of the DoD installation population and 
probable volume of participation in the program.
    (C) Facilities and level of security at no charge to the educational 
institution.
    (D) Cost associated with equipment and supporting services provided 
at the discretion of the DoD installation.
    (E) A copy of this part.
    (F) Special requirements, such as:
    (1) Format (e.g., distance, evening, or weekend classes), 
independent study, short seminar, or other mode of delivery of 
instruction.
    (2) Unique scheduling problems related to the operational mission of 
the DoD installation.

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    (3) Any DoD installation restrictions, limitations, or special 
considerations relevant to using an alternate delivery system (e.g., 
DL).
    (4) Available computer hardware and supporting equipment.
    (5) Electrical, satellite, and network capabilities at the site.
    (8) In evaluating proposals, responsible education advisors must 
ensure potential providers meet, at a minimum, these criteria:
    (i) Programs satisfy objectives defined by the most recent needs 
assessment.
    (ii) Programs, courses, and completion requirements are the same as 
those at the provider's main administrative and academic campus.
    (iii) The educational institution granting undergraduate academic 
credit must adhere to the Servicemembers Opportunity Colleges (SOC) 
Principles and Criteria (available at http://www.soc.aascu.org/ 
socconsortium/PublicationsSOC.html) regarding the transferability of 
credit, the awarding of credit for military training and experience, and 
residency requirements.
    (iv) The provider is prepared to:
    (A) Offer academic counseling and flexibility in accommodating 
special military schedules.
    (B) Ensure main administrative and academic office approval in 
faculty selection, assignment, and orientation; and participation in 
monitoring and evaluation of programs. Adjunct or part-time faculty will 
possess comparable qualifications as full-time permanent faculty 
members.
    (C) Conduct on-installation or online courses that carry identical 
credit values, represent the same content and experience, and use the 
same student evaluation procedures as courses offered through the main 
administrative and academic campus. All substantive course change 
requirements must follow the schools accreditation agencies 
requirements. If the educational institution's accrediting agency's 
substantive change policy requires new courses or program offerings to 
be submitted to the agency for approval, the educational institution 
will be required to submit such items for approval before admitting 
Service members using military TA.
    (D) Maintain the same admission and graduation standards that exist 
for the same programs at the main administrative and academic office, 
and include credits from courses taken at a branch or auxiliary campus 
of the same educational institution in establishing academic residency 
to meet degree requirements.
    (E) Provide library and other reference and research resources, in 
either print or electronic format, that are appropriate and necessary to 
support course offerings.
    (F) Establish procedures to maintain regular communication among 
central institutional academic leadership and administrators, and off-
campus representatives and faculty. Any educational institution's 
proposal must specify these procedures.
    (G) Provide students with regular and accessible academic and 
financial counseling services either electronically or in-person. At a 
minimum, this includes Title IV and VA education benefits.
    (H) Charge tuition that is not more than tuition charged to 
nonmilitary students.
    (I) Have established policies for awarding credit for military 
training by examinations, experiential learning, and courses completed 
using modes of delivery other than instructor-delivered, on-site 
classroom instruction.
    (J) Conduct programs only from among those offered or authorized by 
the main administrative and academic office in accordance with standard 
procedures for authorization of degree programs by the educational 
institution.
    (d) Requirements and procedures for educational institutions seeking 
access to the DoD installation solely to provide academic counseling or 
student support services to students. (1) Educational institutions must 
meet the criteria in paragraphs (c)(6)(i) through (v) of this section.
    (2) Educational institutions must request access through the 
responsible education advisor via a written proposal. If a request is 
received from an educational institution seeking access

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to a joint DoD installation, the responsible education advisor from the 
education center will determine the appropriate Military Service to work 
the request. The request should include as a minimum:
    (i) Educational institution name and intent or purpose of the visit.
    (ii) Number and names of educational institution representatives 
that will be available.
    (iii) Counseling delivery method: By appointment or walk-in.
    (iv) Communication process used to inform students of their 
availability for counseling.
    (3) The responsible education advisor will review and analyze the 
request on behalf of the installation commander. The installation 
commander has the final authority to approve, deny, suspend, or withdraw 
DoD installation access permission from an educational institution, as 
deemed appropriate.
    (4) If a request is received from an educational institution seeking 
access to a DoD installation, the responsible education advisor will:
    (i) Fully consider requests from those educational institutions 
complying with requirements as stated in paragraphs (d)(1) through (3) 
of this section and be consistent in treatment of educational 
institutions in accordance with this part. Also, consider the value to 
the Service member as it relates to geographic location, accessibility 
and mission tempo.
    (ii) If request is denied, provide a timely response to the 
educational institution and inform the educational institution they may 
reapply for access once reasons for denial are addressed.
    (iii) Maintain copies of all correspondence in accordance with the 
DoD installation records management schedule and disposition, with a 
minimum time requirement of 2 years.
    (5) If a DoD installation grants access to an educational 
institution to provide guidance to their students, the educational 
institution and its agents will:
    (i) Only advise or counsel students at the education center or at a 
location approved by the responsible education advisor.
    (ii) Maintain a record of students counseled and provide a copy to 
the education office. The record will annotate the type of program and 
the status of the Service member (current or reenrollment).
    (iii) Comply with applicable DoD installation policies and 
procedures designated by the installation commander on such matters as 
fire and safety, environment, physical security, personnel background 
checks, vehicle inspection and registration, and any other applicable 
statues or regulations designated by the installation commander.
    (e) Interservice Voluntary Education Board. Under the direction of 
the Voluntary Education Chief, the Interservice Voluntary Education 
Board is composed of full-time or permanent part-time employees of DoD 
or military members, and consists of one representative responsible for 
policy from the Office of the ASD(RA), and the senior voluntary 
education advisor responsible for policy each from the Army, Navy, Air 
Force, and Marine Corps. The Director, DANTES, will serve as an ex-
officio member. Meeting quarterly, the Board will:
    (1) Provide a forum for the exchange of information and discussion 
of issues related to voluntary education programs.
    (2) Develop recommendations for changes in policies and procedures.
    (3) Develop recommendations for DANTES' activities and operations 
that support voluntary education programs.
    (4) Review and prioritize DANTES activities that support DoD 
voluntary education programs, to include budget execution and recommend 
execution year adjustments.
    (5) Develop recommended policy and program guidance for DANTES for 
the Future-Year Defense Program.
    (f) DANTES. (1) Guidance and recommendations for DANTES will be 
developed with the advice of the Interservice Voluntary Education Board.
    (2) The selection and rating of the Director, DANTES will be as 
follows:
    (i) The DASD(MCFP) will convene and chair the search committee 
responsible for replacing the Director, DANTES, when the position is 
vacated. At the request of the USD(P&R), the

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Secretaries of the Military Departments will provide a senior manager to 
sit on the search committee. The committee will recommend the best 
qualified candidate to the DoD EA for DANTES, for possible appointment 
as the Director, DANTES.
    (ii) The DoD EA for DANTES will designate the rater of the Director, 
DANTES. The Director, State Liaison and Educational Opportunity within 
the Office of the USD(P&R), MCFP, will provide input to the DoD EA 
designated rater concerning the performance of the Director, DANTES.
    (3) DANTES will:
    (i) Support the Service voluntary education programs by executing 
the program outlined in this part and the annual USD(P&R) supplemental 
guidance for those items not reflected in this paragraph of this 
section.
    (ii) Provide execution information to the Interservice Voluntary 
Education Board quarterly and provide information required to assist 
with the program objective memorandum development as requested by the 
Board.
    (iii) Support DoD off-duty, voluntary education programs and conduct 
special projects and developmental activities in support of education-
related DoD functions.
    (iv) Assist the Military Services in providing high-quality and 
valuable educational opportunities for Service members, their eligible 
adult family members, and DoD personnel, and assist personnel in 
achieving professional and personal educational objectives. This role 
includes the consolidated management of programs that prevent 
duplication of effort among the Services. Through its activities, DANTES 
supports DoD recruitment, retention, and the transition efforts.
    (v) Assume responsibilities and functions that include:
    (A) Managing and facilitating the delivery of a wide variety of 
examinations including the General Equivalency Diploma test, college 
admissions, and credit-by-examination programs.
    (B) Upon request, issuing transcripts for the United States Armed 
Forces Institute and the examination and certification programs.
    (C) Managing the contract through which former DoD Dependents 
Schools students can obtain copies of archived transcripts.
    (D) Managing the contract and functions related to the evaluation of 
educational experiences in the Military Services that are covered by the 
contract.
    (E) Providing or developing and distributing educational materials, 
reference books, counseling publications, educational software, and key 
educational resource information to Defense Agencies and DoD 
installations.
    (F) Managing the SOC program contract and related functions.
    (G) Managing the DoD contract that provides for periodic third-party 
reviews of DoD voluntary education programs titled the Third Party 
Education Assessment.
    (H) Managing the contract and data received on the voluntary 
education programs for the VEMIS, which includes gathering, collating, 
and verifying participation and cost data from the Services. Providing 
requisite consolidated reports to USD(P&R). Requested data from the 
Military Services on voluntary education programs is located and stored 
at https://afaems.langley.af. mil/vemis. A user guide containing 
voluntary education program data and report information for the Military 
Services and DANTES is also available at this Web site, under the 
``Resources'' tab.
    (I) Managing the DoD independent study catalog and its support 
systems, as required.
    (J) Negotiating, administering, and coordinating contracts for DoD 
Worldwide Education Symposiums in support of and in conjunction with the 
Interservice Voluntary Education Board.
    (K) Establishing, refining, updating, and maintaining information on 
worldwide education support of DoD off-duty, voluntary education 
programs on the Internet. Maintaining necessary infrastructure to ensure 
that information on the Internet is always current and available to 
leadership, agency personnel, the public, and others.
    (L) Administering the TTT program in accordance with section 1154 of 
chapter 58 of 10 U.S.C.
    (M) Monitoring new technological developments, providing reports, 
cost

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analyses, and recommendations on educational innovations, and conducting 
special projects requested by the Department of Defense and the 
Services, approved by the Interservice Voluntary Education Board, and as 
reflected and approved in DANTES' annual policy guidance.
    (N) Conducting staff development training on DANTES' policies, 
procedures, and practices related to voluntary education testing 
programs, and providing additional training as requested by the Office 
of the Secretary of Defense and the Services.
    (O) Serving as the Defense Media Activity's point of contact for 
information on DANTES programs for military personnel.
    (P) Providing support, as requested, to DoD and Service Quality of 
Life and Transition support programs.
    (Q) Providing other support in mission areas as directed by the 
USD(P&R) and the DASD(MCFP).
    (R) Managing DoD contingency Tri-Service contracts, which provide 
educational opportunities for deployed Service members with guidance and 
oversight from the DoD Voluntary Education Chief.
    (S) Monitoring and maintaining liaison with the office responsible 
for consolidating and distributing the JST for the Services.
    (vi) Maintain liaison with education services officials of the 
Military Services, and appropriate Federal and State agencies and 
educational associations, in matters related to the DANTES mission and 
assigned functions.
    (vii) Serve on panels and working groups designated by the 
DASD(MCFP).
    (viii) Serve as the Executive Secretary at the Interservice 
Voluntary Education Board meeting convened annually to review DANTES 
programs and to develop recommendations for inclusion in annual policy 
guidance for DANTES. In this role, the Director, DANTES, will coordinate 
the meeting, prepare the agenda, review and analyze DANTES programs and 
initiatives outlined in the prior year's operational plan, and provide 
minutes after the meeting.
    (ix) Assist the Services in screening candidates for the DANTES 
Senior Enlisted Advisor and DANTES RC Advisor positions.
    (x) Maintain the repository for the DoD Voluntary Education 
Partnership MOU between USD(P&R) and partner educational institutions, 
to include Service-specific addendums (see the Appendix to this section 
for the template of the DoD Voluntary Education Partnership MOU). DANTES 
will:
    (A) Administer and update the system that is the repository of the 
MOUs per guidance from USD(P&R).
    (B) Create, track, and maintain a centrally managed database for all 
signed documents.
    (C) Publish an Internet-based list of all educational institutions 
that have a signed DoD Voluntary Education Partnership MOU.
    (D) Generate reports in accordance with guidance from the USD(P&R) 
and procedures in DTM 12-004, ``DoD Internal Information Collections'' 
(available at http://www.dtic.mil/whs/ directives/corres/pdf/ DTM-12-
004.pdf) and DoD 8910-1-M, ``Department of Defense Procedures for 
Management of Information Requirements'' (available at http://
www.dtic.mil/ whs/directives/corres/ pdf/891001m.pdf).
    (x) Provide data analyses and generate reports required by DoD and 
the Interservice Voluntary Education Board as needed.

[79 FR 27737, May 15, 2014, as amended at 86 FR 27976, May 25, 2021]



    Sec. Appendix A to Part 68--DoD Voluntary Education Partnership 
   Memorandum of Understanding (MOU) Between DoD Office of the Under 
Secretary of Defense for Personnel and Readiness (USD(P&R)) and [Name of 
                        Educational Institution]

    1. Preamble.
    a. Providing access to quality postsecondary education opportunities 
is a strategic investment that enhances the U.S. Service member's 
ability to support mission accomplishment and successfully return to 
civilian life. A forward-leaning, lifelong learning environment is 
fundamental to the maintenance of a mentally powerful and adaptive 
leadership-ready force. Today's fast-paced and highly mobile 
environment, where frequent deployments and mobilizations are required 
to support the Nation's policies and

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objectives, requires DoD to sponsor postsecondary educational programs 
using a variety of learning modalities that include instructor-led 
courses offered both on- and off-installation, as well as distance 
learning options. All are designed to support the professional and 
personal development and progress of the Service members and our DoD 
civilian workforce.
    b. Making these postsecondary programs available to the military 
community as a whole further provides Service members, their eligible 
adult family members, DoD civilian employees, and military retirees ways 
to advance their personal education and career aspirations and prepares 
them for future vocational pursuits, both inside and outside of DoD. 
This helps strengthen the Nation by producing a well-educated citizenry 
and ensures the availability of a significant quality-of-life asset that 
enhances recruitment and retention efforts in an all-volunteer force.
    2. Purpose.
    a. This MOU articulates the commitment and agreement educational 
institutions provide to DoD by accepting funds via each Service's 
tuition assistance (TA) program in exchange for education services.
    b. This MOU is not an obligation of funds, guarantee of program 
enrollments by DoD personnel, their eligible adult family members, DoD 
civilian employees, or retirees in an educational institution's academic 
programs, or a guarantee for DoD installation access.
    c. This MOU covers courses delivered by educational institutions 
through all modalities. These include, but are not limited to, classroom 
instruction, distance education (i.e., web-based, CD-ROM, or multimedia) 
and correspondence courses.
    d. This MOU includes high school programs, academic skills programs, 
and adult education programs for military personnel and their eligible 
adult family members.
    e. This MOU articulates regulatory and governing directives and 
instructions:
    (1) Eligibility of DoD recipients is governed by Federal law, DoD 
Instruction 1322.25, DoD Directive 1322.08E, and the cognizant Military 
Service's policies, regulations, and fiscal constraints.
    (2) Postsecondary educational programs provided to Service members 
using TA on DoD installations outside of the United States, will be 
operated in accordance with guidance from DoD Instruction 1322.25, DoD 
Instruction 1322.19, section 1212 of Public Law 99-145, as amended by 
section 518 of Public Law 101-189; and under the terms of the Tri-
Services contract currently in effect.
    f. This MOU is subject at all times to Federal law and the rules, 
guidelines, and regulations of DoD. Any conflicts between this MOU and 
such Federal law, rules, guidelines, and regulations will be resolved in 
favor of the Federal law, rules, guidelines, or regulations.
    3. Educational Institution (Including Certificate and Degree 
Granting Educational Institutions) Requirements for TA. Educational 
institutions must:
    a. Sign and adhere to requirements of this MOU, including Service-
specific addendums as appropriate, prior to being eligible to receive TA 
payments.
    (1) Those educational institutions that have a current Voluntary 
Education Partnership MOU with DoD will sign this MOU:
    (a) At the expiration of their current MOU (renewal);
    (b) At the request of DoD or the specific Military Service holding a 
separate current MOU. The DoD Voluntary Education Partnership MOU (which 
includes the Service-specific addendums) is required for an educational 
institution to participate in the DoD TA Program. An ``installation 
MOU'' (which is separate from this MOU) is only required if an 
educational institution is operating on a DoD installation. The 
installation MOU:
    1. Contains the installation-unique requirements that the 
responsible education advisor coordinated, documented, and retained; is 
approved by the appropriate Service voluntary education representative; 
and is presented to the installation commander for final approval.
    2. Cannot conflict with the DoD Voluntary Education Partnership MOU 
and governing regulations.
    (2) Educational institutions must comply with this MOU and the 
requirements in Service-specific addendums that do not conflict with 
governing Federal law and rules, guidelines, and regulations, which 
include, but are not limited to, Title 10 of the U.S. Code; DoD 
Directive 1322.08E, ``Voluntary Education Programs for Military 
Personnel''; DoD Instruction 1322.25, ``Voluntary Education Programs''; 
DoD Instruction 1322.19, ``Voluntary Education Programs in Overseas 
Areas''; and all DoD installation requirements imposed by the 
installation commander, if the educational institution has been approved 
to operate on a particular base. Educational institutions failing to 
comply with the requirements set forth in this MOU may receive a letter 
of warning, be denied the opportunity to establish new programs, have 
their MOU terminated, be removed from the DoD installation, and may have 
the approval of the issuance of TA withdrawn by the Service concerned.
    b. Be accredited by a national or regional accrediting agency 
recognized by ED, approved for VA funding, and certified to participate 
in Federal student aid programs through ED under Title IV of the Higher 
Education Act of 1965.
    c. Comply with the regulatory guidance provided by DoD and the 
Services.

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    d. Comply with state authorization requirements consistent with 
regulations issued by ED, including 34 CFR 600.9. Educational 
institutions must meet all State laws as they relate to distance 
education as required.
    e. Participate in the Third Party Education Assessment process when 
requested. This requirement applies not only to educational institutions 
providing courses on DoD installations, but also to those educational 
institutions that provide postsecondary instruction located off the DoD 
installation or via DL. Educational institutions may be selected for 
Third Party Education Assessment based on provider offerings (on-
installation, off-installation, or DL), education benefits received 
(large provider in terms of enrollments or TA funds), or an observed 
promising practice. Educational institutions may also be selected as a 
result of reports of non-compliance with the DoD Voluntary Education 
Partnership MOU, complaint(s) received, or negative information received 
from other government agencies and regulators. Educational institutions 
demonstrating an unwillingness to resolve findings may receive a range 
of penalties from a written warning to revocation of the DoD Voluntary 
Education Partnership MOU and removal from participation in the DoD TA 
Program. As appropriate, Third Party Education Assessment findings will 
be shared with other government agencies/regulators including but not 
limited to CFPB, VA, ED, DOJ, and FTC.
    (1) If an educational institution is operating on the DoD 
installation, the educational institution will resolve the assessment 
report findings and provide corrective actions taken within 6 months of 
the Third Party Education Assessment to the responsible education 
advisor on the DoD installation, the appropriate Service Voluntary 
Education Chief, and the DoD Voluntary Education Chief.
    (2) If an educational institution is operating off the DoD 
installation or via DL, the educational institution will resolve the 
assessment report findings and provide corrective actions taken within 6 
months of the Third Party Education Assessment to the DoD Voluntary 
Education Chief.
    (3) In instances when the resolution action cannot be completed 
within the 6 month timeframe, the educational institution will submit a 
status report every 3 months to the responsible education advisor on the 
DoD installation if the educational institution is operating on the DoD 
installation, and the DoD Voluntary Education Chief, until the 
recommendation is resolved.
    f. Before enrolling a Service member, provide each prospective 
military student with specific information to locate, explain, and 
properly use the following ED and CFPB tools:
    (1) The College Scorecard which is a consumer planning tool and 
resource to assist prospective students and their families as they 
evaluate options in selecting a school and is located at: http://
collegecost.ed.gov/scorecard/.
    (2) The College Navigator which is a consumer tool that provides 
school information to include tuition and fees, retention and graduation 
rates, use of financial aid, student loan default rates and features a 
cost calculator and school comparison tool. The College Navigator is 
located at: http://nces.ed.gov/collegenavigator/.
    (3) The Financial Aid Shopping Sheet which is a model aid award 
letter designed to simplify the information that prospective students 
receive about costs and financial aid so they can easily compare 
institutions and make informed decisions about where to attend school. 
The shopping sheet can be accessed at: http://www2.ed.gov/ policy/
highered/guid/ aid-offer/index.html.
    (4) The 'Paying for College' Web page which can be used by 
prospective students to enter the names of up to three schools and 
receive detailed financial information on each one and to enter actual 
financial aid award information. The tool can be accessed at: http://
www.consumerfinance.gov/ paying-for-college/.
    g. Designate a point of contact or office for academic and financial 
advising, including access to disability counseling, to assist Service 
members with completion of studies and with job search activities.
    (1) The designated person or office will serve as a point of contact 
for Service members seeking information about available, appropriate 
academic counseling, financial aid counseling, and student support 
services at the educational institution;
    (2) The point of contact will have a basic understanding of the 
military tuition assistance program, ED Title IV funding, education 
benefits offered by the VA, and familiarity with institutional services 
available to assist Service members.
    (3) The point of contact does not need to be exclusively dedicated 
to providing these services and, as appropriate, may refer the Service 
member to other individuals with an ability to provide these services, 
both on- and off-campus.
    h. Before offering, recommending, arranging, signing-up, dispersing, 
or enrolling Service members for private student loans, provide Service 
members access to an institutional financial aid advisor who will make 
available appropriate loan counseling, including, but not limited to:
    (1) Providing a clear and complete explanation of available 
financial aid, including Title IV of the Higher Education Act of 1965, 
as amended.
    (2) Describing the differences between private and federal student 
loans to include

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terms, conditions, repayment and forgiveness options.
    (3) Disclosing the educational institution's student loan Cohort 
Default Rate (CDR), the percentage of its students who borrow, and how 
its CDR compares to the national average. If the educational 
institution's CDR is greater than the national average CDR, it must 
disclose that information and provide the student with loan repayment 
data.
    (4) Explaining that students have the ability to refuse all or 
borrow less than the maximum student loan amount allowed.
    i. Have a readmissions policy for Service members that:
    (1) Allows Service members and reservists to be readmitted to a 
program if they are temporarily unable to attend class or have to 
suspend their studies due to service requirements.
    (2) Follows the regulation released by ED (34 CFR 668.18) regarding 
readmissions requirements for returning Service members seeking 
readmission to a program that was interrupted due to a Military service 
obligation, and apply those provisions to Service members that are 
temporarily unable to attend classes for less than 30 days within a 
semester or similar enrollment period due to a Military service 
obligation when such absence results in a withdrawal under institution 
policies. A description of the provisions for U.S. Armed Forces members 
and their families is provided in Chapter 3 of Volume 2 of the Federal 
Student Aid Handbook.
    j. Have policies in place compliant with program integrity 
requirements consistent with the regulations issued by ED (34 CFR 
668.71-668.75 and 668.14) related to restrictions on misrepresentation, 
recruitment, and payment of incentive compensation. This applies to the 
educational institution itself and its agents including third party lead 
generators, marketing firms, or companies that own or operate the 
educational institution. As part of efforts to eliminate unfair, 
deceptive, and abusive marketing aimed at Service members, educational 
institutions will:
    (1) Ban inducements including any gratuity, favor, discount, 
entertainment, hospitality, loan, transportation, lodging, meals, or 
other item having a monetary value of more than a de minimis amount to 
any individual, entity, or its agents including third party lead 
generators or marketing firms other than salaries paid to employees or 
fees paid to contractors in conformity with all applicable laws for the 
purpose of securing enrollments of Service members or obtaining access 
to TA funds. Educational institution sponsored scholarships or grants 
and tuition reductions available to military students are permissible.
    (2) Refrain from providing any commission, bonus, or other incentive 
payment based directly or indirectly on securing enrollments or federal 
financial aid (including TA funds) to any persons or entities engaged in 
any student recruiting, admission activities, or making decisions 
regarding the award of student financial assistance.
    (3) Refrain from high-pressure recruitment tactics such as making 
multiple unsolicited contacts (3 or more), including contacts by phone, 
email, or in-person, and engaging in same-day recruitment and 
registration for the purpose of securing Service member enrollments.
    k. Refrain from automatic program renewals, bundling courses or 
enrollments. The student and Military Service must approve each course 
enrollment before the start date of the class.
    l. The educational institution will obtain the approval of their 
accrediting agency for any new course or program offering, provided such 
approval is required under the substantive change requirements of the 
accrediting agency. Approval must be obtained before the enrollment of a 
Service member into the new course or program offering.
    m. If the educational institution is a member of the Servicemembers 
Opportunity Colleges (SOC), in addition to the requirements stated in 
paragraphs 3.a through 3.l of this MOU, the educational institution 
will:
    (1) Adhere to the SOC Principles, Criteria, and Military Student 
Bill of Rights. (located at http://www.soc.aascu.org/ socconsortium/
PublicationsSOC.html).
    (2) Provide processes to determine credit awards and learning 
acquired for specialized military training and occupational experience 
when applicable to a Service member's degree program.
    (3) Recognize and use the ACE Guide to the Evaluation of Educational 
Experiences in the Armed Services to determine the value of learning 
acquired in military service. Award credit for appropriate learning 
acquired in military service at levels consistent with ACE Guide 
recommendations and/or those transcripted by CCAF, when applicable to a 
Service member's program.
    n. If an educational institution is not a member of SOC, in addition 
to the requirements stated in paragraphs 3.a. through 3.l. of this MOU, 
the educational institution will:
    (1) Disclose its transfer credit policies and articulated credit 
transfer agreements before a Service member's enrollment. Disclosure 
will explain acceptance of credits in transfer is determined by the 
educational institution to which the student wishes to transfer and 
refrain from making unsubstantiated representations to students about 
acceptance of credits in transfer by another institution.
    (a) If the educational institution accepts transfer credit from 
other accredited institutions, then the educational institution agrees 
to evaluate these credits in conformity with the principles set forth in 
the Joint Statement on the Transfer and Award

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of Credit developed by members of the American Association of Collegiate 
Registrars and Admissions Officers, the American Council on Education, 
and the Council for Higher Education Accreditation. The educational 
institution will then award appropriate credit, to the extent 
practicable within the framework of its institutional mission and 
academic policies.
    (b) Decisions about the amount of transfer credit accepted, and how 
it will be applied to the student's program, will be left to the 
educational institution.
    (2) Disclose its policies on how they award academic credit for 
prior learning experiences, including military training and experiential 
learning opportunities provided by the Military Services, at or before a 
Service member's enrollment.
    (a) In so far as the educational institution's policies generally 
permit the award of credit for comparable prior learning experiences, 
the educational institution agrees to evaluate the learning experiences 
documented on the Service member's official Service transcripts, and, if 
appropriate, award credit.
    (b) The JST is an official education transcripts tool for 
documenting the recommended college credits for professional military 
education, training courses, and occupational experiences of Service 
members across the Services. The JST incorporates data from documents 
such as the Army/ACE Registry Transcript System, the Sailor/Marine ACE 
Registry Transcript System, the Community College of the Air Force 
transcript, and the Coast Guard Institute transcript.
    (c) Decisions about the amount of experiential learning credit 
awarded, and how it will be applied to the student's program, will be 
left to the educational institution. Once an educational institution has 
evaluated a particular military training or experiential learning 
opportunity for a given program, the educational institution may rely on 
its prior evaluation to make future decisions about awarding credit to 
Service members with the same military training and experience 
documentation, provided that the course content has not changed.
    (3) If general policy permits, award transfer credit or credit for 
prior learning to:
    (a) Replace a required course within the major;
    (b) Apply as an optional course within the major;
    (c) Apply as a general elective;
    (d) Apply as a basic degree requirement; or
    (e) Waive a prerequisite.
    (4) Disclose to Service members any academic residency requirements 
pertaining to the student's program of study, including total and any 
final year or final semester residency requirement at or before the time 
the student enrolls in the program.
    (5) Disclose basic information about the educational institution's 
programs and costs, including tuition and other charges to the Service 
member. This information will be made readily accessible without 
requiring the Service member to disclose any personal or contact 
information.
    (6) Before enrollment, provide Service members with information on 
institutional ``drop/add,'' withdrawal, and readmission policies and 
procedures to include information on the potential impact of military 
duties (such as unanticipated deployments or mobilization, activation, 
and temporary duty assignments) on the student's academic standing and 
financial responsibilities. For example, a Service member's military 
duties may require relocation to an area where he or she is unable to 
maintain consistent computer connectivity with the educational 
institution, which could have implications for the Service member's 
enrollment status. This information will also include an explanation of 
the educational institution's grievance policy and process.
    (7) Conduct academic screening and competency testing; make course 
placement based on student readiness.
    4. TA Program Requirements for Educational Institutions.
    a. One Single Tuition Rate. All Service members attending the same 
educational institution, at the same location, enrolled in the same 
course, will be charged the same tuition rate without regard to their 
Service component. This single tuition rate includes active duty Service 
members and the National Guard and Reservists who are activated under 
Title 10 and using Title 10 Military Tuition Assistance, in order to 
assure that tuition rate distinctions are not made based on the Service 
members' branches of Service.
    (1) It is understood tuition rates may vary by mode of delivery 
(traditional or online), at the differing degree levels and programs, 
and residency designations (in-state or out-of-state). Tuition rates may 
also vary based on full-time or part-time status, daytime vs. evening 
classes, or matriculation date, such as in the case of a guaranteed 
tuition program.
    (2) It is also understood that some States have mandated State rates 
for Guard and Reservists within the State. (Those Guard and Reservists 
not activated on Title 10, U.S. Code orders).
    b. Course Enrollment Information. The educational institutions will 
provide course enrollment, course withdrawal, course cancellation, 
course completion or failure, grade, verification of degree completion, 
and billing information to the TA issuing Service's education office, as 
outlined in the Service's regulations and instructions.
    (1) Under section 1232g of title 20, United States Code (also known 
as ``The Family

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Educational Rights and Privacy Act'' and hereinafter referred to as 
``FERPA''), DoD recognizes that educational institutions are required to 
obtain consent before sharing personally identifiable non-directory 
information with a third party. Service members must authorize the 
educational institutions to release and forward course enrollment 
information required in 4.b. to DoD prior to approval of course 
enrollment using tuition assistance.
    (2) If an educational institution wants to ensure confidentiality 
during the transmission of data to the third party, then the educational 
institution can contact the appropriate Service TA management point of 
contact to discuss security and confidentiality concerns prior to 
transmitting information.
    c. Degree Requirements and Evaluated Educational Plans.
    (1) Educational institutions will disclose general degree 
requirements for the Service member's educational program (evaluated 
educational plan) to the member and his or her Service before the 
enrollment of the Service member at the educational institution. These 
requirements, typically articulated in the educational institution's 
course catalog, should:
    (a) Include the total number of credits needed for graduation.
    (b) Divide the coursework students must complete in accordance with 
institutional academic policies into general education, required, and 
elective courses.
    (c) Articulate any additional departmental or graduate academic 
requirements, such as satisfying institutional and major field grade 
point average requirements, a passing grade in any comprehensive exams, 
or completion of a thesis or dissertation.
    (2) In addition to providing degree requirements, the educational 
institution will provide to Service members who have previous coursework 
from other accredited institutions and relevant military training and 
experiential learning an evaluated educational plan that indicates how 
many, if any, transfer credits it intends to award and how these will be 
applied toward the Service member's educational program. The evaluated 
educational plan will be provided within 60 days after admission to the 
educational institution in which the individual has selected a degree 
program and all required official transcripts have been received.
    (3) When a Service member changes his or her educational goal or 
major at the attending school and the Services' education advisor 
approves the change, then the educational institution will provide a new 
evaluated educational plan to the Service member and the Service within 
60 days. Only courses listed in the Service member's evaluated 
educational plan will be approved for TA.
    (4) Degree requirements in effect at the time of each Service 
member's enrollment will remain in effect for a period of at least 1 
year beyond the program's standard length, provided the Service member 
is in good academic standing and has been continuously enrolled or 
received an approved academic leave of absence. Adjustments to degree 
requirements may be made as a result of formal changes to academic 
policy pursuant to institutional or departmental determination, provided 
that:
    (a) They go into effect at least 2 years after affected students 
have been notified; or
    (b) In instances when courses or programs are no longer available or 
changes have been mandated by a State or accrediting body, the 
educational institution will identify low or no cost solutions, working 
with affected Service members to identify substitutions that would not 
hinder the student from graduating in a timely manner.
    (5) Degree requirements and evaluated educational plans will meet 
educational requirements for credentialing in stated career field and 
graduates of a program will be eligible for relevant professional 
license or certification. Educational institutions will disclose any 
conditions (state or agency limitations) or additional requirements 
(training, experience, or exams) required to obtain relevant 
credentials.
    d. Approved and TA Eligible Courses.
    (1) Approved Courses. If an eligible Service member decides to use 
TA, educational institutions will enroll him or her only after the TA is 
approved by the individual's Service. Service members will be solely 
responsible for all tuition costs without this prior approval. This 
requirement does not prohibit an educational institution from pre-
registering a Service member in a course in order to secure a slot in 
the course. If a school enrolls the Service member before the 
appropriate Service approves Military TA, then the Service member could 
be responsible for the tuition. All Military TA must be requested and 
approved prior to the start date of the course. The Military TA is 
approved on a course-by-course basis and only for the specific course(s) 
and class dates that a Service member requests. If a military student 
``self-identifies'' their eligibility and the Service has not approved 
the funding, then the Service member will be solely responsible for all 
tuition costs, not the Service.
    (2) TA Eligible Courses. Courses will be considered eligible for TA 
if they are:
    (a) Part of an individual's evaluated educational plan; or
    (b) Prerequisites for courses within the individual's evaluated 
educational plan; or
    (c) Required for acceptance into a higher-level degree program, 
unless otherwise specified by Service regulations.
    e. Use of Financial Aid with TA.

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    (1) ``Top-Up'' eligible active duty DoD personnel may use their 
Montgomery or Post-9/11 G.I. Bill benefit in conjunction with TA funds 
from their Service to cover those course costs to the Service member 
that exceed the amount of TA paid by his or her Service. RC members who 
qualify for Montgomery G.I. Bill benefits may use those benefits 
concurrently with TA. RC members who have earned entitlement for the 
Post-9/11 G.I. Bill can use both VA education benefits and TA, but VA 
will only pay for the portion of tuition not covered by TA; therefore, 
the combination of VA education benefits and TA will not exceed 100 
percent of the actual costs of tuition.
    (2) DoD personnel are entitled to consideration for all forms of 
financial aid that educational institutions make available to students 
at their home campus. Educational institution financial aid officers 
will provide information and application processes for Title IV student 
aid programs, scholarships, fellowships, grants, loans, etc., to DoD TA 
recipients.
    (3) Service members identified as eligible DoD TA recipients, who 
qualify for Pell Grants through ED's student aid program, will have 
their TA benefits applied to their educational institution's account 
prior to the application of their Pell Grant funds to their account. 
Unlike TA funds, which are tuition-restricted, Pell Grant funds are not 
tuition-restricted and may be applied to other allowable charges on the 
account.
    f. Administration of Tuition.
    (1) The Services will provide TA in accordance with DoD- and 
Service-appropriate regulations.
    (2) Educational institutions will comply with these requirements for 
the return of TA funds:
    (a) Return any TA Program funds directly to the Military Service, 
not to the Service member.
    (b) Up to the start date, return all (100 percent) TA funds to the 
appropriate Military Service when the Service member does not:
    (i) begin attendance at the institution or
    (ii) start a course, regardless of whether the student starts other 
courses
    (c) Return any TA funds paid for a course that is cancelled by the 
educational institution.
    (d) Have an institutional policy that returns any unearned TA funds 
on a proportional basis through at least the 60 percent portion of the 
period for which the funds were provided. TA funds are earned 
proportionally during an enrollment period, with unearned funds returned 
based upon when a student stops attending. In instances when a Service 
member stops attending due to a military service obligation, the 
educational institution will work with the affected Service member to 
identify solutions that will not result in a student debt for the 
returned portion.
    (3) Tuition charged to a Service member will in no case exceed the 
rate charged to nonmilitary students, unless agreed upon in writing by 
both the educational institution and the Service.
    (4) Educational institutions will provide their tuition charges for 
each degree program to the Services on an annual basis. Any changes in 
the tuition charges will be provided to and explained to all the 
Services, as soon as possible, but not fewer than 90 days prior to 
implementation.
    (a) Tuition charges at many public institutions are established by 
entities over which they have no jurisdiction, such as State 
legislatures and boards. As such, in some instances tuition decisions 
will not be made within the 90-day requirement window.
    (b) When this happens, the educational institution will request a 
waiver (via the DoD MOU Web page) and provide the Services with the new 
tuition charges. To the extent practicable by State law or regulation, 
Service members already enrolled will not be impacted by changes in 
tuition charges.
    (5) TA invoicing information is located in the Service-specific 
addendums attached to this MOU.
    g. Course Cancellations. Educational institutions are responsible 
for notifying Service members of class cancellations for both classroom 
and DL courses.
    h. Materials and Electronic Accessibility.
    (1) Educational institutions will ensure that course materials are 
readily available, either electronically or in print medium, and provide 
information about where the student may obtain class materials at the 
time of enrollment or registration.
    (2) Educational institution representatives will refrain from 
encouraging or requiring students to purchase course materials prior to 
confirmation of sufficient enrollments to conduct the class. Students 
will be encouraged to verify course acceptance by CCAF (Air Force only) 
or other program(s), with the responsible education advisor before 
enrolling or requesting TA.
    (3) Educational institutions will provide, where available, 
electronic access to their main administrative and academic center's 
library materials, professional services, relevant periodicals, books, 
and other academic reference and research resources in print or online 
format that are appropriate or necessary to support the courses offered. 
Additionally, educational institutions will ensure adequate print and 
non-print media resources to support all courses being offered are 
available at base or installation library facilities, on-site 
Institution resource areas, or via electronic transmission.
    i. Graduation Achievement Recognition.

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    (1) The educational institution will issue, at no cost to the 
Government, documentation as proof of completion, such as a diploma or 
certificate, to each student who completes the respective program 
requirements and meets all financial obligations.
    (2) In accordance with Service requirements, the educational 
institution will report to the Service concerned those TA recipients who 
have completed a certificate, diploma, or degree program. Reporting will 
occur at least annually and include the degree level, major, and program 
requirements completion date.
    (3) The academic credentials for certificate, diploma, or degree 
completion will reflect the degree-granting educational institution and 
campus authorized to confer the degree.
    (a) If the Service member attends a branch of a large, multi-branch 
university system, the diploma may indicate the credential of the 
specific campus or branch of the educational institution from which the 
student received his or her degree.
    (b) Credentials will be awarded to Service members with the same 
institutional designation as non-Service members who completed the same 
course work for a degree from the same institution.
    (4) The educational institution will provide students with the 
opportunity to participate in a graduation ceremony.
    j. Reporting Requirements and Performance Metrics.
    (1) The educational institution will provide reports via electronic 
delivery on all DoD TA recipients for programs and courses offered to 
personnel as required by the cognizant Service. This includes, but is 
not limited to, TA transactions, final course grades to include 
incompletes and withdrawals, degrees awarded, certificates earned, 
evaluated educational plans, courses offered, and military graduation. 
Educational institutions providing face-to-face courses on a DoD 
installation will provide a class roster to the responsible education 
advisor. The class roster will include information such as the name of 
the instructor, the first and last name of each student (military and 
non-military), the course title, the class meeting day(s), the start and 
ending time of the class, and the class location (e.g., building and 
room number).
    (a) All reporting and transmitting of this information will be done 
in conformity with all applicable privacy laws, including FERPA.
    (b) Educational institutions will respond to these requests in a 
timely fashion, which will vary based on the specific nature and scope 
of the information requested.
    (2) The cognizant Service may evaluate the educational institution's 
overall effectiveness in administering its academic program, courses, 
and customer satisfaction to DoD. A written report of the findings will 
be provided to the educational institution. The educational institution 
will have 90 calendar days to review the report, investigate if 
required, and provide a written response to the findings.
    (3) The Services may request reports from an educational institution 
at any time, but not later than 2 years after termination of the MOU 
with such educational institution. Responses to all requests for reports 
will be provided within a reasonable period of time, and generally 
within 14 calendar days. Institutional response time will depend on the 
specific information sought by the Services in the report.
    5. Requirements and Responsibilities for the Delivery of On-
Installation Voluntary Education Programs and Services
    a. The requirements in this section pertain to educational 
institutions operating on a DoD installation.
    An installation MOU:
    (1) Is required if an educational institution is operating on a DoD 
installation.
    (2) Contains only the installation-unique requirements coordinated 
by the responsible education advisor, with concurrence from the 
appropriate Service voluntary education representative, and approved by 
the installation commander.
    (3) Cannot conflict with the DoD Voluntary Education Partnership MOU 
and governing regulations.
    b. Educational institutions will:
    (1) Agree to have a separate installation MOU if they have a Service 
agreement to provide on-installation courses or degree programs.
    (2) Comply with the installation-unique requirements in the 
installation MOU.
    (3) Agree to coordinate degree programs offered on the DoD 
installation with the responsible education advisor, who will receive 
approval from the installation commander, prior to the opening of 
classes for registration.
    (4) Admit candidates to the educational institution's on-
installation programs at their discretion; however, priority for 
registration in DoD installation classes will be given in the following 
order:
    (a) Service members.
    (b) Federally funded DoD civilian employees.
    (c) Eligible adult family members of Service members and DoD 
civilian employees.
    (d) Military retirees.
    (e) Non-DoD personnel.
    (5) Provide the responsible education advisor, as appropriate, a 
tentative annual schedule of course offerings to ensure that the 
educational needs of the military population on the DoD installation are 
met and to ensure no course or scheduling conflicts with other on-
installation programs.

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    (6) Provide instructors for their DoD installation courses who meet 
the criteria established by the educational institution to qualify for 
employment as a faculty member on the main administrative and academic 
center.
    (7) Inform the responsible education advisor about cancellations for 
classroom-based classes on DoD installations per the guidelines set 
forth in the separate installation MOU.
    c. The Services' designated installation representative (usually the 
responsible education advisor), will be responsible for determining the 
local voluntary education program needs for the serviced military 
population and for selecting the off-duty educational programs to be 
provided on the DoD installation, in accordance with the Services' 
policies. The Service, in conjunction with the educational institution, 
will provide support services essential to operating effective 
educational programs. All services provided will be commensurate with 
the availability of resources (personnel, funds, and equipment). This 
support includes:
    (1) Classroom and office space, as available. The Service will 
determine the adequacy of provided space.
    (2) Repairs as required to maintain office and classroom space in 
``good condition'' as determined by the Service, and utility services 
for the offices and classrooms of the educational institution located on 
the DoD installation (e.g., electricity, water, and heat).
    (3) Standard office and classroom furnishings within available 
resources. No specialized equipment will be provided.
    (4) Janitorial services in accordance with DoD installation facility 
management policies and contracts.
    d. The Service reserves the right to disapprove DoD installation 
access to any employee or agent of the educational institution employed 
to carry out any part of this MOU.
    e. Operation of a privately owned vehicle by educational institution 
employees on the DoD installation will be governed by the DoD 
installation's policies.
    f. The responsible education advisor will check with his or her 
Service's responsible office for voluntary education before allowing an 
educational institution to enter into an MOU with the DoD installation.
    6. Review, Modifications, Signatures, Effective Date, Expiration 
Date, and Cancellation Provision.
    a. Review. The signatories (or their successors) will review this 
MOU periodically in coordination with the Services, but no less than 
every 5 years to consider items such as current accreditation status, 
updated program offerings, and program delivery services.
    b. Modifications. Modifications to this MOU will be in writing and, 
except for those required due to a change in State or Federal law, will 
be subject to approval by both of the signatories below, or their 
successors.
    c. Signatures. The authorized signatory for DoD will be designated 
by the USD(P&R). The authorized signatory for the educational 
institution will be determined by the educational institution.
    d. Effective Date. This MOU is effective on the date of the later 
signature.
    e. Expiration Date. This MOU will expire 5 years from the effective 
date, unless terminated or updated prior to that date in writing by DoD 
or the educational institution.
    f. Cancellation Provision. This MOU may be cancelled by either DoD 
or the educational institution 30 days after receipt of the written 
notice from the cancelling party. In addition, termination and 
suspension of an MOU with an educational institution may be done at any 
time for failure to follow a term of this MOU or misconduct in 
accordance paragraphs (a)(18)(i) through (a)(18)(iii) of Sec.  68.6.

FOR THE DEPARTMENT OF DEFENSE:

________________________________________________________________________
DESIGNATED SIGNATORY

________________________________________________________________________
DATE

________________________________________________________________________
FOR THE EDUCATIONAL INSTITUTION:

________________________________________________________________________
PRESIDENT or Designee

________________________________________________________________________
DATE

________________________________________________________________________



  Sec. Appendix B to Part 68--Addendum for Education Services Between 
     [Name of Educational Institution] and the U.S. Air Force (USAF)

    1. Purpose. This addendum is between (Name of Educational 
Institution), hereafter referred to as the ``Institution,'' and the 
United States Air Force (USAF). The purpose of this agreement is to 
provide guidelines and procedures for the delivery of educational 
services to Service members, DoD civilian employees, eligible adult 
family members, military retirees, and non-DoD personnel not covered in 
the DoD Voluntary Education Partnership Memorandum of Understanding 
(MOU) between the DoD Office of the Under Secretary of Defense for 
Personnel and Readiness and the Institution. This addendum is not to be 
construed in any way as giving rise to a contractual obligation of the 
USAF to provide funds to the Institution that would be contrary to 
Federal law.
    2. Responsibilities.
    a. USAF Education and Training Section (ETS) Chief. The USAF ETS 
Chief will:

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    (1) Maintain a continuing liaison with the designated Institution 
representative and be responsible for inspections and the acceptance of 
the Institution's services. The ETS Chief will assist the Institution 
representative to provide military and USAF culture orientation to the 
Institution personnel.
    (2) Review requests from Institutions with no on-installation MOU 
for permission of DoD installation access and space within the ETS to 
counsel current students, provide information briefings and materials, 
attend education fairs, and provide other informational services 
approved by the installation commander. Approval depends on the 
installation commander. Approval of any school eligible for Military TA 
will be extended equally to all such schools; same time allotment, 
space, and frequency.
    (3) Assist the Institution or refer them to the information 
technology contractor for training in the use of the Academic 
Institution Portal (AI Portal) regarding input of Institution 
information, degree offerings, tuition rates, grades, invoices, degree 
completions, and search tools pre-built into the USAF online Voluntary 
Education System.
    b. Institutions will:
    (1) Appoint and designate an Institution representative to maintain 
a continuing liaison with the USAF ETS Chief.
    (2) Provide general degree requirements to each member for his or 
her education program and the ETS as soon as he or she makes known their 
intention to register with the Institution and while awaiting final 
evaluation of transfer credits.
    (3) Assume responsibility for the administration and proctoring of 
all course examinations not normally administered and proctored within 
the traditional, in-the-classroom setting.
    (4) Provide to airmen, upon their request, information on 
Institution policies including, but not limited to, course withdrawal 
dates and penalties, course cancellation procedures, course grade 
publication, billing practices, and policy regarding incompletion of a 
course. Face-to-face counseling is not required.
    (5) Register and use the AI Portal to input Institution basic 
information, degree offerings, tuition rates, invoice submission, course 
grades submission, degree completions, and to pull pre-established 
educational institution reports while conducting business with the USAF.
    (6) Submit one consolidated invoice per term via the AI Portal for 
each class in which active duty military airmen are enrolled using Mil 
TA. Submission will be made during the term, no earlier than after the 
final add/drop/census date, and no later than 30 calendar days after the 
end of the term.
    (7) Submit course grades via the AI Portal for each class in which 
active duty military airmen are enrolled using Mil TA. Submission will 
be made no later than 30 calendar days after the end of the term.
    (8) Adopt the AI Portal procedures for all payment processing. 
Institutions with a current waiver may continue to participate at the 
discretion of Air Force Voluntary Education Branch.
    (9) Provide a list of program graduates via the AI Portal consisting 
of student name, program title, program type (such as bachelor's 
degree), and date of graduation no later than 30 calendar days after the 
end of the term in which graduation requirements are completed. If the 
AI Portal is not available, provide directly to the base Education and 
Training Section.
    c. Institutions with no on-installation MOU are authorized to 
request permission for DoD installation access and space within the ETS 
to counsel current students, provide information briefings and 
materials, attend education fairs, and other informational services. 
Approval depends on the installation commander. If approval is granted, 
then all other permissions will be authorized equally for any school 
eligible for Military TA; the same time allotment, space, and frequency.
    d. All Institutions with an on-installation MOU or invitation for an 
on-installation activity, such as an educational fair, are authorized to 
counsel or provide information on any of their programs.
    3. Additional Guidelines
    a. In addition to DoD policy outlined in the DoD Voluntary Education 
Partnership MOU, the authorization of Mil TA is further governed by Air 
Force Instruction (AFI) 36-2306, as well as applicable policy and 
guidance.
    b. DoD installation access of non-DoD and non-installation personnel 
is at the discretion of the installation commander. Access once provided 
can be revoked at any time due to military necessity or due to conduct 
that violates DoD installation rules or policies.
    c. No off-base school will be given permanent space or scheduled for 
regularly recurring time on-base for student counseling.



  Sec. Appendix C to Part 68--Addendum for Education Services Between 
           [Name of Educational Institution] and the U.S. Army

    1. Purpose. This addendum is between (Name of Educational 
Institution), hereafter referred to as the ``Institution,'' and the 
United States Army. The purpose of this agreement is to provide 
guidelines and procedures for the delivery of educational services to 
Service members, DoD civilian employees, eligible adult family members, 
military retirees, and non-DoD personnel not covered in the DoD 
Voluntary Education Partnership Memorandum of Understanding

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between the DoD Office of the Under Secretary of Defense for Personnel 
and Readiness and the Institution. This addendum is not to be construed 
in any way as giving rise to a contractual obligation of the U.S. Army 
to provide funds to the Institution that would be contrary to Federal 
law.
    2. Responsibilities.
    a. Army Education Services Officer (ESO): In support of this 
addendum, the Army ESO will maintain a continuing liaison with a 
designated Institution representative and be responsible for inspections 
and the acceptance of the Institution's services. The ESO will provide 
assistance to the Institution representative to provide military and 
Army culture orientation to the Institution personnel.
    b. Institutions. The Institution will:
    (1) Appoint and designate an Institution representative to maintain 
a continuing liaison with the Army ESO.
    (2) Adopt the GoArmyEd processes. GoArmyEd is the Army Continuing 
Education System (ACES) centralized and streamlined management system 
for the Army's postsecondary voluntary education programs. Existing MOUs 
or Memorandums of Agreement, Tri-Services contracts, or other contracts 
that Institutions may have with DoD installations and ACES remain in 
place and will be supplemented with DoD Instruction 1322.25.
    (3) Agree to all of the terms in the ACES policies and procedures, 
available at https://www.hrc.army.mil/ site/education/GoArmyEd_ 
School_Instructions.html, such as: Invoicing, grades, reports, library 
references, etc. For non-Letter of Instruction (LOI) institutions 
satisfying paragraph 3.f. of this MOU, any requirements in ACES policies 
and procedures requiring institutions to be a member of SOC are hereby 
waived.
    (4) Institutions currently participating with GoArmyEd as LOI and 
non-LOI schools, may continue to do so at the discretion of 
Headquarters, ACES. Non-LOI schools will be subject to the requirements 
of paragraphs 2.b.(2) and 2.b.(3) of this MOU only to the extent that 
their existing non-LOI agreement with the U.S. Army provides.



  Sec. Appendix D to Part 68--Addendum for Education Services Between 
       [Name Of Educational Institution] and the U.S. Marine Corps

    1. Purpose. This addendum is between (Name of Educational 
Institution), hereafter referred to as the ``Institution,'' and the U.S. 
Marine Corps. The purpose of this agreement is to provide guidelines and 
procedures for the delivery of educational services to Service members, 
DoD civilian employees, eligible adult family members, military 
retirees, and non-DoD personnel not covered in the DoD Voluntary 
Education Partnership Memorandum of Understanding between the DoD Office 
of the Under Secretary of Defense for Personnel and Readiness and the 
Institution. This addendum is not to be construed in any way as giving 
rise to a contractual obligation of the U.S. Marine Corps to provide 
funds to the Institution that would be contrary to Federal law.
    2. Responsibilities.
    a. Marine Corps Education Services Officer (ESO): In support of this 
addendum, the Marine Corps ESO will maintain a continuing liaison with a 
designated Institution representative and be responsible for inspections 
and the acceptance of the Institution's services. The ESO will provide 
assistance to the Institution representative to provide military and 
Marine Corps culture orientation to the Institution personnel.
    b. Institution. The Institution will:
    (1) Appoint and designate an Institution representative to maintain 
a continuing liaison with the Marine Corps ESO.
    (2) Provide open enrollment during a designated time periods in 
courses conducted through media (e.g., portable media devices or 
computer-aided). Those courses will be on an individual enrollment 
basis.
    (3) When operating on a Marine Corps installation, provide all 
required equipment when the Institution provides instruction via media.
    (4) When operating on a Marine Corps installation, provide library 
services to the Marine Corps installation for students in the form of 
research and reference materials (e.g., books, pamphlets, magazines) of 
similar quality to the support provided students on the institution's 
home campus. Services will also include research and reference material 
in sufficient quantity to meet curriculum and program demands. Materials 
will be, at a minimum, the required readings of the instructor(s) for a 
particular course or program, or the ability for the student to request 
a copy of such material, from the institution's main library, without 
any inconvenience or charge to the student (e.g., a library computer 
terminal that may allow students to order material and have it mailed to 
their residence).
    (5) Permit employment of off-duty military personnel or Government 
civilian employees by the institution, provided such employment does not 
conflict with the policies set forth in DoD Regulation 5500.7-R. 
However, Government personnel employed in any way in the administration 
of this addendum will be excluded from such employment because of 
conflict of interest.
    3. Billing Procedures, And Formal Grades.
    a. Comply with wide area work flow process for invoicing tuition 
assistance available at https://www.navycollege.navy.mil/links.
    b. Grades will be submitted through the Navy College Management 
Information System grade entry application.

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    c. Grade reports will be provided to the Naval Education and 
Training Professional Development and Technology Center within 30 days 
of term ending or completion of the course, whichever is earlier.



  Sec. Appendix E to Part 68--Addendum for Education Services Between 
           [Name of Educational Institution] and the U.S. Navy

    1. Purpose. This addendum is between (Name of Educational 
Institution), hereafter referred to as the ``Institution,'' and the U.S. 
Navy. The purpose of this agreement is to provide guidelines and 
procedures for the delivery of educational services to Service members, 
DoD civilian employees, eligible adult family members, military 
retirees, and non-DoD personnel not covered in the DoD Voluntary 
Education Partnership Memorandum of Understanding (MOU) between the DoD 
Office of the Under Secretary of Defense for Personnel and Readiness and 
the Institution. This addendum is not to be construed in any way as 
giving rise to a contractual obligation of the Department of the Navy to 
provide funds to the Institution that would be contrary to Federal law.
    2. Responsibilities.
    a. Commanding Officer responsible for execution of the Voluntary 
Education Program. The commanding officer responsible for execution of 
the voluntary education program will:
    (1) Determine the local voluntary education program needs for the 
Navy population to be served and recommend to the installation commander 
the educational programs to be offered on the base;
    (2) Administer this agreement and provide program management 
support;
    (3) Manage the Navy College Program Distance Learning Partnership 
(NCPDLP) agreements.
    b. Navy College Office (NCO): In support of this addendum, the NCO 
will maintain a continuing liaison with the designated Institution 
representative and be responsible for inspections and the acceptance of 
the Institution's services. The NCO will provide assistance to the 
Institution representative to provide military and Navy culture 
orientation to the Institution personnel.
    c. Institution. The Institution will:
    (1) If a distance learning partner institution:
    (i) Comply with NCPDLP agreements, if an institution participates in 
NCPDLP.
    (ii) Provide a link to the institution through the Navy College 
Program Web site, only if designated as an NCPDLP school.
    (iii) Display the Institution's advertising materials (i.e., 
pamphlets, posters, and brochures) at all NCOs, only if designated as an 
NCPDLP school.
    (2) Appoint and designate an Institution representative to maintain 
a continuing liaison with the NCO staff.
    (3) Comply with wide area work flow processes for invoicing of 
tuition assistance available at https://www.navycollege.navy.mil/links. 
Grades will be submitted to the Navy College Management Information 
System grade entry application.
    (4) Ensure library resource arrangements are in accordance with the 
standards of the Institution's accrediting association and the State 
regulatory agency having jurisdiction over the Institution.
    (5) Respond to email messages from students within a reasonable 
period of time--generally within two workdays, unless extenuating 
circumstances would justify additional time.
    (6) Comply with host command procedures before starting instructor-
based courses on any Navy installation. The NCO will negotiate a 
separate agreement with the Institution in concert with the host command 
procedures.
    (7) Mail an official transcript indicating degree completion, at no 
cost to the sailor or the Government to: Center for Personal and 
Professional Development, ATTN: Virtual Education Center, 1905 Regulus 
Ave., Suite 234, Virginia Beach, VA 23461-2009.



PART 69_SCHOOL BOARDS FOR DEPARTMENT OF DEFENSE DOMESTIC DEPENDENT
ELEMENTARY AND SECONDARY SCHOOLS--Table of Contents



Sec.
69.1 Purpose.
69.2 Applicability and scope.
69.3 Definitions.
69.4 Policy.
69.5 Responsibilities.
69.6 Procedures.

    Authority: 10 U.S.C. 2164.

    Source: 61 FR 60563, Nov. 29, 1996, unless otherwise noted.



Sec.  69.1  Purpose.

    This part prescribes policies and procedures for the establishment 
and operation of elected School Boards for schools operated by the 
Department of Defense (DoD) under 10 U.S.C. 2164, 32 CFR part 345, and 
Public Law 92-463.



Sec.  69.2  Applicability and scope.

    This part applies to:
    (a) The Office of the Secretary of Defense (OSD), the Military 
Departments, the Coast Guard when operating as a service of the 
Department of the Navy

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or by agreement between DoD and the Department of Transportation, the 
Chairman of the Joint Chiefs of Staff, the Unified and Specified 
Combatant Commands, the Inspector General of the Department of Defense, 
the Uniformed Services University of the Health Sciences, the Defense 
Agencies, and the DoD Field Activities.
    (b) The schools (prekindergarten through grade 12) operated by the 
DoD under 10 U.S.C. 2164 and 32 CFR part 345 within the continental 
United States, Alaska, Hawaii, Puerto Rico, Wake Island, Guam, American 
Samoa, the Northern Mariana Islands, and the Virgin Islands, known as 
DoD DDESS Arrangements.
    (c) This part does not apply to elected school boards established 
under state or local law for DoD DDESS special arrangements.



Sec.  69.3  Definitions.

    (a) Arrangements. Actions taken by the Secretary of Defense to 
provide a free public education to dependent children under 10 U.S.C. 
2164 through DoD DDESS arrangements or DoD DDESS special arrangements:
    (1) DDESS arrangement. A school operated by the Department of 
Defense under 10 U.S.C. 2164 and 32 CFR 345 to provide a free public 
education for eligible children.
    (2) DDESS special arrangement. An agreement, under 10 U.S.C. 2164, 
between the Secretary of Defense, or designee, and a local public 
education agency whereby a school or a school system operated by the 
local public education agency provides educational services to eligible 
dependent children of U.S. military personnel and federally employed 
civilian personnel. Arrangements result in partial or total Federal 
funding to the local public education agency for the educational 
services provided.
    (b) Parent. The biological father or mother of a child when parental 
rights have not been legally terminated; a person who, by order of a 
court of competent jurisdiction, has been declared the father or mother 
of a child by adoption; the legal guardian of a child; or a person in 
whose household a child resides, provided that such person stands in 
loco parentis to that child and contributes at least one-half of the 
child's support.



Sec.  69.4  Policy.

    (a) Each DoD DDESS arrangement shall have an elected school board, 
established and operated in accordance with this part and other 
pertinent guidance.
    (b) Because members of DoD DDESS elected school boards are not 
officers or employees of the United States appointed under the 
Appointments Clause of the United States Constitution (Art. II, Sec. 2, 
Cl. 2), they may not exercise discretionary governmental authority, such 
as the taking of personnel actions or the establishment of governmental 
policies. This part clarifies the role of school boards in the 
development and oversight of fiscal, personnel, and educational 
policies, procedures, and programs for DoD DDESS arrangements, subject 
to these constitutional limitations.
    (c) The DoD DDESS chain of command for matters relating to school 
arrangements operated under 10 U.S.C. 2164 and 32 CFR part 345 shall be 
from the Director, DoD DDESS, to the Superintendent of each school 
arrangement. The Superintendent will inform the school board of all 
matters affecting the operation of the local school arrangement. Direct 
liaison among the school board, the Director, and the Superintendent is 
authorized for all matters pertaining to the local school arrangement.



Sec.  69.5  Responsibilities.

    The Assistant Secretary of Defense for Force Management Policy (ASD 
(FMP)), under the Under Secretary of Defense for Personnel and 
Readiness, shall:
    (a) Make the final decision on all formal appeals to directives and 
other guidance submitted by the school board or Superintendent.
    (b) Ensure the Director, DoD DDESS shall:
    (1) Ensure the establishment of elected school boards in DoD DDESS 
arrangements.
    (2) Monitor compliance by the Superintendent and school boards with 
applicable statutory and regulatory requirements, and this part. In the 
event of

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suspected noncompliance, the Director, DoD DDESS, shall take appropriate 
action, which will include notification of the Superintendent and the 
school board president of the affected DoD DDESS arrangement.
    (3) Determine when the actions of a school board conflict with an 
applicable statute, regulation, or other guidance or when there is a 
conflict in the views of the school board and the Superintendent. When 
such conflicts occur, the Director, DoD DDESS, shall assist the 
Superintendent and the school board in resolving them or direct that 
such actions be discontinued. Such disapprovals must be in writing to 
the school board and the Superintendent concerned and shall state the 
specific supporting reason or reasons.
    (c) Ensure the school board for DoD DDESS arrangements shall:
    (1) Participate in the development and oversight of fiscal, 
personnel, and educational policies, procedures, and programs for the 
DoD DDESS arrangement concerned, consistent with this part.
    (2) Approve agendas and prepare minutes for school board meetings. A 
copy of the approved minutes of school board meetings shall be forwarded 
to the Director, DoD DDESS, within 10 working days after the date the 
minutes are approved.
    (3) Provide to the Director, DoD DDESS, names of applicants for a 
vacancy in the Superintendent's position after a recruitment has been 
accomplished. The school board shall submit to the Director, DoD DDESS, 
a list of all applicants based on its review of the applications and 
interviews (either in person or telephonically) of the applicants. The 
list of applicants will be accompanied by the recommended choice of the 
school board. The Director will select the Superintendent and will 
submit written notice with justification to the school board if the 
recommendation of the school board is not followed.
    (4) Prepare an annual written on-site review of the Superintendent's 
performance for consideration by the Director, DoD DDESS. The written 
review shall be based on critical elements recommended by the school 
board and Superintendent and approved by the Director, DoD DDESS. The 
school board's review will be an official attachment to the 
Superintendent's appraisal.
    (5) Participate in the development of the school system's budget for 
submission to the Director, DoD DDESS, for his or her approval as 
endorsed by the school board; and participate in the oversight of the 
approved budget, in conjunction with the Superintendent, as appropriate 
for operation of the school arrangement.
    (6) Invite the Superintendent or designee to attend all school board 
meetings.
    (7) Provide counsel to the Superintendent on the operation of the 
school and the implementation of the approved budget.
    (8) Channel communications with school employees to the DoD DDESS 
Superintendent. Refer all applications, complaints, and other 
communications, oral or written, to the DoD DDESS Arrangement 
Superintendents.
    (9) Participate in the development of school policies, rules, and 
regulations, in conjunction with the Superintendent, and recommend which 
policies shall be reflected in the School Policy Manual. At a minimum, 
the Policy Manual, which shall be issued by the Superintendent, shall 
include following:
    (i) A statement of the school philosophy.
    (ii) The role and responsibilities of school administrative and 
educational personnel.
    (iii) Provisions for promulgation of an annual school calendar.
    (iv) Provisions on instructional services, including policies for 
development and adoption of curriculum and textbooks.
    (v) Regulations affecting students, including attendance, grading, 
promotion, retention, and graduation criteria, and the student code of 
rights, responsibilities, and conduct.
    (vi) School policy on community relations and noninstructional 
services, including maintenance and custodial services, food services, 
and student transportation.
    (vii) School policy and legal limits on financial operations, 
including accounting, disbursing, contracting, and

[[Page 330]]

procurement; personnel operations, including conditions of employment, 
and labor management regulations; and the processing of, and response 
to, complaints.
    (viii) Procedures providing for new school board member orientation.
    (ix) Any other matters determined by the school board and the 
superintendent to be necessary.
    (10) Under 10 U.S.C. 2164(b)(4)(B), prepare and submit formal 
appeals to directives and other guidance that in the view of the school 
board adversely impact the operation of the school system either through 
the operation and management of DoD DDESS or a specific DoD DDESS 
arrangement. Written formal appeals with justification and supporting 
documentation shall be submitted by the school board or Superintendent 
to ASD(FMP). The ASD(FMP) shall make the final decision on all formal 
appeals. The Director, Dod DDESS, will provide the appealing body 
written review of the findings relating to the merits of the appeal. 
Formal appeals will be handled expeditiously by all parties to minimize 
any adverse impact on the operation of the DoD DDESS system.
    (d) Ensure school board operating procedures are as follows:
    (1) The school board shall operate from a written agenda at all 
meetings. Matters not placed on the agenda before the start of the 
meeting, but approved by a majority of the school board present, may be 
considered at the ongoing meeting and added to the agenda at that time.
    (2) A majority of the total number of school board members 
authorized shall constitute a quorum.
    (3) School board meetings shall be conducted a minimum of 9 times a 
year. The school board President or designee will provide school board 
members timely notice of all meetings. All regularly scheduled school 
board meetings will be open to the public. Executive session meetings 
may be closed under 10 U.S.C. 2164(d)(6).
    (4) The school board shall not be bound in any way by any action or 
statement of an individual member or group of members of the board 
except when such action or statement is approved by a majority of the 
school board members during a school board meeting.
    (5) School board members are eligible for reimbursement for official 
travel in accordance with the DoD Joint Travel Regulations and guidance 
issued by the Director, DoD DDESS.
    (6) School board members may be removed by the ASD (FMP) for 
dereliction of duty, malfeasance, or other grounds for cause shown. The 
school board concerned may recommend such removal with a two-thirds 
majority vote. Before a member may be removed, the member shall be 
afforded due process, to include written notification of the basis for 
the action, review of the evidence or documentation considered by the 
school board, and an opportunity to respond to the allegations.



Sec.  69.6  Procedures.

    (a) Composition of school board. (1) The school board shall 
recommend to the Director, DoD DDESS, the number of elected school board 
voting members, which shall be not fewer than 3 and no more than 9, 
depending upon local needs. The members of the school board shall select 
by majority vote of the total number of school board members authorized 
at the beginning of each official school board term, one member to act 
as President and another to act as Vice President. The President and 
Vice President shall each serve for 1 year. The President shall preside 
over school board meetings and provide leadership for related activities 
and functions. The Vice President shall serve in the absence of the 
President. If the position of President is vacated for any reason, the 
Vice President shall be the President until the next regularly scheduled 
school board election. The resulting vacancy in the position of the Vice 
President shall be filled by the majority vote of all members of the 
incumbent board.
    (2) The DoD DDESS Arrangement Superintendent, or designee, shall 
serve as a non-voting observer to all school board meetings. The 
Installation Commander, or designee, shall convey command concerns to 
the school board and the Superintendent and keep the school board and 
the Superintendent informed of changes and other matters

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within the host installation that affect school expenditures or 
operations.
    (3) School board members may not receive compensation for their 
service on the school board.
    (4) Members of the school board may not have any financial interest 
in any company or organization doing business with the school system. 
Waivers to this restriction may be granted on a case-by-case basis by 
the Director, DoD DDESS, in coordination with the Office of General 
Counsel of the Department of Defense.
    (b) Electorate of the school board. The electorate for each school 
board seat shall be composed of parents of the students attending the 
school. Each member of the electorate shall have one vote.
    (c) Election of school board members. (1) To be elected as a member 
of the school board, an individual must be a resident of the military 
installation in which the DoD DDESS arrangement is located, or in the 
case of candidates for the Antilles Consolidated School System School 
Board, be the parent of an eligible child currently enrolled in the 
school system. Personnel employed by a DoD DDESS arrangement may not 
serve as school board members.
    (2) The board shall determine the term of office for elected 
members, not to exceed 3 years, and the limit on the number of terms, if 
any. If the board fails to set these terms by the first day of the first 
full month of the school year, the terms will be set at 3 years, with a 
maximum of 2 consecutive terms.
    (3) When there is a sufficient number of school board vacancies that 
result in not having a quorum, which is defined as a majority of seats 
authorized, a special election shall be called by the DoD DDESS 
Arrangement Superintendent or designee. A special election is an 
election that is held between the regularly scheduled annual school 
board election. The nomination and election procedures for a special 
election shall be the same as those of regularly scheduled school board 
elections. Individuals elected by special election shall serve until the 
next regularly scheduled school board election. Vacancies may occur due 
to the resignation, death, removal for cause, transfer, or disenrollment 
of a school board member's child(ren) from the DoD DDESS arrangement.
    (4) The board shall determine a schedule for regular elections. 
Parents shall have adequate notice of the time and place of the 
election. The election shall be by secret ballot. All votes must be cast 
in person at the time and place of the election. The candidate(s) 
receiving the greatest number of votes shall be elected as school board 
member(s).
    (5) Each candidate for school board membership must be nominated in 
writing by at least one member of the electorate to be represented by 
the candidate. Votes may be cast at the time of election for write-in 
candidates who have not filed a nomination petition if the write-in 
candidates otherwise are qualified to serve in the positions sought.
    (6) The election process shall provide staggered terms for board 
members; e.g., on the last day of the last month of each year, the term 
for some board members will expire.
    (7) The DoD DDESS Superintendent, in consultation with the school 
board, shall be responsible for developing the plans for nominating 
school board members and conducting the school board election and the 
special election process. The DoD DDESS Superintendent shall announce 
election results within 7 working days of the election.



PART 70_DISCHARGE REVIEW BOARD (DRB) PROCEDURES AND STANDARDS-
-Table of Contents



Sec.
70.1 Reissuance and purpose.
70.2 Applicability.
70.3 Definitions.
70.4 Responsibilities.
70.5 Procedures.
70.6 Information requirements.
70.7 Effective date and implementation.
70.8 Discharge review procedures.
70.9 Discharge review standards.
70.10 Complaints concerning decisional documents and index entries.
70.11 DoD semiannual report.

    Authority: 10 U.S.C. 1553 and 38 U.S.C. 101 and 3103, as amended.

    Source: 47 FR 37785, Aug. 26, 1982, unless otherwise noted.

[[Page 332]]



Sec.  70.1  Reissuance and purpose.

    This part is reissued and:
    (a) Establishes uniform policies, procedures, and standards for the 
review of discharges or dismissals under 10 U.S.C. 1553.
    (b) Provides guidelines for discharge review by application or on 
motion of a DRB, and the conduct of discharge reviews and standards to 
be applied in such reviews which are designed to ensure historically 
consistent uniformity in execution of this function, as required under 
Pub. L. 95-126.
    (c) Assigns responsibility for administering the program.
    (d) Makes provisions for public inspection, copying, and 
distribution of DRB documents through the Armed Forces Discharge Review/
Correction Board Reading Room.
    (e) Establishes procedures for the preparation of decisional 
documents and index entries.
    (f) Provides guidance for processing complaints concerning 
decisional documents and index entries.



Sec.  70.2  Applicability.

    The provisions of this part 70 apply to the Office of the Secretary 
of Defense (OSD) and the Military Departments. The terms, ``Military 
Services,'' and ``Armed Forces,'' as used herein, refer to the Army, 
Navy, Air Force and Marine Corps.



Sec.  70.3  Definitions.

    (a) Applicant. A former member of the Armed Forces who has been 
discharged or dismissed administratively in accordance with Military 
Department regulations or by sentence of a court-martial (other than a 
general court-martial) and under statutory regulatory provisions whose 
application is accepted by the DRB concerned or whose case is heard on 
the DRB's own motion. If the former member is deceased or incompetent, 
the term ``applicant'' includes the surviving spouse, next-of-kin, or 
legal representative who is acting on behalf of the former member. When 
the term ``applicant'' is used in Sec. Sec.  70.8 through 70.10, it 
includes the applicant's counsel or representative, except that the 
counsel or representative may not submit an application for review, 
waive the applicant's right to be present at a hearing, or terminate a 
review without providing the DRB an appropriate power of attorney or 
other written consent of the applicant.
    (b) Complainant. A former member of the Armed Forces (or the former 
member's counsel) who submits a complaint under Sec.  70.10 with respect 
to the decisional document issued in the former member's own case; or a 
former member of the Armed Forces (or the former member's counsel) who 
submits a complaint under Sec.  70.10 stating that correction of the 
decisional document will assist the former member in preparing for an 
administrative or judicial proceeding in which the former member's own 
discharge will be at issue.
    (c) Counsel or Representative. An individual or agency designated by 
the applicant who agrees to represent the applicant in a case before the 
DRB. It includes, but is not limited to: a lawyer who is a member of the 
bar of a Federal court or of the highest court of a State; an accredited 
representative designated by an organization recognized by the 
Administrator of Veterans Affairs; a representative from a State agency 
concerned with veterans affairs; and representatives from private 
organizations or local government agencies.
    (d) Discharge. A general term used in this Directive that includes 
dismissal and separation or release from active or inactive military 
status, and actions that accomplish a complete severance of all military 
status. This term also includes the assignment of a reason for such 
discharge and characterization of service (32 CFR part 41).
    (e) Discharge Review. The process by which the reason for 
separation, the procedures followed in accomplishing separation, and the 
characterization of service are evaluated. This includes determinations 
made under the provisions of 38 U.S.C. 3103(e)(2).
    (f) Discharge Review Board (DRB). An administrative board 
constituted by the Secretary of the Military Department concerned and 
vested with discretionary authority to review discharges and dismissals 
under the provisions of 10 U.S.C. 1553. It may be configured as

[[Page 333]]

one main element or two or more elements as designated by the Secretary 
concerned.
    (g) DRB Panel. An element of a DRB, consisting of five members, 
authorized by the Secretary concerned to review discharges and 
dismissals.
    (h) DRB Traveling or Regional Panel. A DRB panel that conducts 
discharge reviews in a location outside the National Capital Region 
(NCR).
    (i) Hearing. A review involving an appearance before the DRB by the 
applicant or on the applicant's behalf by a counsel or representative.
    (j) Hearing Examination. The process by which a designated officer 
of a DRB prepares a presentation for consideration by a DRB in 
accordance with regulations prescribed by the Secretary concerned.
    (k) National Capital Region (NCR). The District of Columbia; Prince 
Georges and Montgomery Counties in Maryland; Arlington, Fairfax, 
Loudoun, and Prince William Counties in Virginia; and all cities and 
towns included within the outer boundaries of the foregoing counties.
    (l) President, DRB. A person designated by the Secretary concerned 
and responsible for the supervision of the discharge review function and 
other duties as assigned.



Sec.  70.4  Responsibilities.

    (a) The Secretaries of the Military Departments have the authority 
for final decision and the responsibility for the operation for their 
respective discharge review programs under 10 U.S.C. 1553.
    (b) The Assistant Secretary of Defense (Manpower, Reserve Affairs, 
and Logistics) (ASD(MRA&L)) shall:
    (1) Resolve all issues concerning DRBs that cannot be resolved among 
the Military Departments.
    (2) Ensure uniformity among the Military Departments in the rights 
afforded applicants in discharge reviews.
    (3) Modify or supplement the enclosures to this part.
    (4) Maintain the index of decisions and provide for timely 
modification of index categories to reflect changes in discharge review 
policies, procedures, and standards issued by the OSD and the Military 
Departments.
    (c) The Secretary of the Army, as the designated administrative 
focal point for DRB matters, shall:
    (1) Effect necessary coordination with other governmental agencies 
regarding continuing applicability of this part and resolve 
administrative procedures relating thereto.
    (2) Review suggested modifications to this part, including 
implementing documents; monitor the implementing documents of the 
Military Departments; resolve differences, when practicable; recommend 
specific changes; provide supporting rationale to the ASD(MRA&L) for 
decision; and include appropriate documentation through the Office of 
the ASD(MRA&L) and the OSD Federal Register liaison officer to effect 
publication in the Federal Register.
    (3) Maintain the DD Form 293, ``Application for Review of Discharge 
or Separation from the Armed Forces of the United States,'' and 
republish as necessary with appropriate coordination of the other 
Military Departments and the Office of Management and Budget.
    (4) Respond to all inquiries from private individuals, 
organizations, or public officials with regard to DRB matters. When the 
specific Military Service can be identified, refer such correspondence 
to the appropriate DRB for response or designate an appropriate activity 
to perform this task.
    (5) Provide overall guidance and supervision to the Armed Forces 
Discharge Review/Correction Board Reading Room with staff augmentation, 
as required, by the Departments of the Navy and Air Force.
    (6) Ensure that notice of the location, hours of operation, and 
similar types of information regarding the Reading Room is published in 
the Federal Register.



Sec.  70.5  Procedures.

    (a) Discharge review procedures are prescribed in Sec.  70.8.
    (b) Discharge Review Standards are prescribed in Sec.  70.9 and 
constitute the basic guidelines for the determination whether to grant 
or deny relief in a discharge review.

[[Page 334]]

    (c) Complaint Procedures about decisional documents are prescribed 
in Sec.  70.10.



Sec.  70.6  Information requirements.

    (a) Reporting requirements. (1) The reporting requirement prescribed 
in Sec.  70.8(n) is assigned Report Control Symbol DD-M(SA)1489.
    (2) All reports must be consistent with DoD Directive 5000.11, 
``Data Elements and Data Codes Standardization Program,'' December 7, 
1964.
    (b) Use of standard data elements. The data requirements prescribed 
by this part shall be consistent with DoD 5000.12-M, ``DoD Manual for 
Standard Data Elements,'' December 1981. Any reference to a date should 
appear as (YYMMDD), while any name entry should appear as (Last name, 
first name, middle initial).



Sec.  70.7  Effective date and implementation.

    This part is effective immediately for the purpose of preparing 
implementing documents. DoD Directive 1332.28, March 29, 1978, is 
officially canceled, effective November 27, 1982. This part applies to 
all discharge review proceedings conducted on or after November 27, 
1982. Sec.  70.10 applies to all complaint proceedings conducted on or 
after September 28, 1982. Final action on complaints shall not be taken 
until September 28, 1982, unless earlier corrective action is requested 
expressly by the applicant (or the applicant's counsel) whose case is 
the subject of the decisional document. If earlier corrective action is 
requested, it shall be taken in accordance with Sec.  70.10.



Sec.  70.8  Discharge review procedures.

    (a) Application for review--(1) General. Applications shall be 
submitted to the appropriate DRB on DD Form 293, ``Application for 
Review of Discharge or Separation from the Armed Forces of the United 
States,'' with such other statements, affidavits, or documentation as 
desired. It is to the applicant's advantage to submit such documents 
with the application or within 60 days thereafter in order to permit a 
thorough screening of the case. The DD Form 293 is available at most DoD 
installations and regional offices of the Veterans Administration, or by 
writing to: DA Military Review Boards Agency, Attention: SFBA (Reading 
Room), Room 1E520, The Pentagon, Washington, DC 20310.
    (2) Timing. A motion or request for review must be made within 15 
years after the date of discharge or dismissal.
    (3) Applicant's responsibilities. An applicant may request a change 
in the character of or reason for discharge (or both).
    (i) Character of discharge. Block 7 of DD Form 293 provides an 
applicant an opportunity to request a specific change in character of 
discharge (for example, General Discharge to Honorable Discharge; Other 
than Honorable Discharge to General or Honorable Discharge). Only a 
person separated on or after 1 October 1982 while in an entry level 
status may request a change from Other than Honorable Discharge to Entry 
Level Separation. A request for review from an applicant who does not 
have an Honorable Discharge shall be treated as a request for a change 
to an Honorable Discharge unless the applicant requests a specific 
change to another character of discharge.
    (ii) Reason for discharge. Block 7 of DD Form 293 provides an 
applicant an opportunity to request a specific change in the reason for 
discharge. If an applicant does not request a specific change in the 
reason for discharge, the DRB shall presume that the request for review 
does not involve a request for change in the reason for discharge. Under 
its responsibility to examine the propriety and equity of an applicant's 
discharge, the DRB shall change the reason for discharge if such a 
change is warranted.
    (iii) The applicant must ensure that issues submitted to the DRB are 
consistent with the request for change in discharge set forth in block 7 
of the DD Form 293. If an ambiguity is created by a difference between 
an applicant's issue and the request in block 7, the DRB shall respond 
to the issue in the context of the action requested in block 7. In the 
case of a hearing, the DRB shall attempt to resolve the ambiguity under 
paragraph (a)(5) of this section.
    (4) Request for consideration of specific issues. An applicant may 
request the

[[Page 335]]

DRB to consider specific issues which, in the opinion of the applicant, 
form a basis for changing the character of or reason for discharge, or 
both. In addition to the guidance set forth in this section, applicants 
should consult the other sections in this part (particularly paragraphs 
(c), (d), and (e) of this section and Sec. Sec.  70.9 and 70.10 before 
submitting issues for consideration by the DRB.
    (i) Submission of issues on DD Form 293. Issues must be provided to 
the DRB on DD Form 293 before the DRB closes the review process for 
deliberation.
    (A) Issues must be clear and specific. An issue must be stated 
clearly and specifically in order to enable the DRB to understand the 
nature of the issue and its relationship to the applicant's discharge.
    (B) Separate listing of issues. Each issue submitted by an applicant 
should be listed separately. Submission of a separate statement for each 
issue provides the best means of ensuring that the full import of the 
issue is conveyed to the DRB.
    (C) Use of DD Form 293. DD Form 293 provides applicants with a 
standard format for submitting issues to the DRB, and its use:
    (1) Provides a means for an applicant to set forth clearly and 
specifically those matters that, in the opinion of the applicant, 
provide a basis for changing the discharge;
    (2) Assists the DRB in focusing on those matters considered to be 
important by an applicant;
    (3) Assists the DRB in distinguishing between a matter submitted by 
an applicant in the expectation that it will be treated as a decisional 
issue under paragraph (e) of this section, and those matters submitted 
simply as background or supporting materials;
    (4) Provides the applicant with greater rights in the event that the 
applicant later submits a complaint under Sec.  70.10(d)(1)(iii) 
concerning the decisional document;
    (5) Reduces the potential for disagreement as to the content of an 
applicant's issue.
    (D) Incorporation by reference. If the applicant makes an additional 
written submission, such as a brief, in support of the application, the 
applicant may incorporate by reference specific issues set forth in the 
written submission in accordance with the guidance on DD Form 293. The 
reference shall be specific enough for the DRB to identify clearly the 
matter being submitted as an issue. At a minimum, it shall identify the 
page, paragraph, and sentence incorporated. Because it is to the 
applicant's benefit to bring such issues to the DRB's attention as early 
as possible in the review, applicants who submit a brief are strongly 
urged to set forth all such issues as a separate item at the beginning 
of the brief. If it reasonably appears that the applicant inadvertently 
has failed expressly to incorporate an issue which the applicant clearly 
identifies as an issue to be addressed by the DRB, the DRB shall respond 
to such an issue under paragraphs (d) and (e) of this section.
    (E) Effective date of the new Form DD 293. With respect to 
applications received before November 27, 1982, the DRB shall consider 
issues clearly and specifically stated in accordance with the rules in 
effect at the time of submission. With respect to applications received 
on or after November 27, 1982, if the applicant submits an obsolete DD 
Form 293, the DRB shall accept the application, but shall provide the 
applicant with a copy of the new form and advise the applicant that it 
will only respond to issues submitted on the new form in accordance with 
this part.
    (ii) Relationship of issues to character of or reason for discharge. 
If the application applies to both character of and reason for 
discharge, the applicant is encouraged, but not required, to identify 
the issue as applying to the character of or reason for discharge (or 
both). Unless the issue is directed at the reason for discharge 
expressly or by necessary implication, the DRB will presume that it 
applies solely to the character of discharge.
    (iii) Relationship of issues to the standards for discharge review. 
The DRB reviews discharges on the basis of issues of propriety and 
equity. The standards used by the DRB are set forth in Sec.  70.9. The 
applicant is encouraged to review those standards before submitting any 
issue upon which the applicant believes a change in discharge should be 
based.

[[Page 336]]

    (A) Issues concerning the equity of the discharge. An issue of 
equity is a matter that involves a determination whether a discharge 
should by changed under the equity standards of Sec.  70.9. This 
includes any issue, submitted by the applicant in accordance with 
paragraph (a)(4)(i) of this section, that is addressed to the 
discretionary authority of the DRB.
    (B) Issues concerning the propriety of a discharge. An issue of 
propriety is a matter that involves a determination whether a discharge 
should be changed under the propriety standards of Sec.  70.9. This 
includes an applicant's issue, submitted in accordance with paragraph 
(a)(4)(i) of this section, in which the applicant's position is that the 
discharge must be changed because of an error in the discharge 
pertaining to a regulation, statute, constitutional provision, or other 
source of law (including a matter that requires a determination whether, 
under the circumstances of the case, action by military authorities was 
arbitrary, capricious, or an abuse of discretion). Although a numerical 
reference to the regulation or other sources of law alleged to have been 
violated is not necessarily required, the context of the regulation or a 
description of the procedures alleged to have been violated normally 
must be set forth in order to inform the DRB adequately of the basis for 
the applicant's position.
    (C) The applicant's identification of an issue. The applicant is 
encouraged, but not required, to identify an issue as pertaining to the 
propriety or the equity to the discharge. This will assist the DRB in 
assessing the relationship of the issue to propriety or equity under 
paragraph (e)(1)(iii) of this section.
    (iv) Citation of matter from decisions. The primary function of the 
DRB involves the exercise of dicretion on a case-by-case basis. See 
Sec.  70.9(b)(3). Applicants are not required to cite prior decisions as 
the basis for a change in discharge. If the applicant wishes to bring 
the DRB's attention to a prior decision as background or illustrative 
material, the citation should be placed in a brief or other supporting 
documents. If, however, it is the applicant's intention to submit an 
issue that sets forth specific principles and facts from a specific 
cited decision, the following requirements apply with respect to 
applications received on or after November 27, 1982.
    (A) The issue must be set forth or expressly incorporated in the 
``Applicant's Issue'' portion of DD Form 293.
    (B) If an applicant's issue cites a prior decision (of the DRB, 
another Board, an agency, or a court), the applicant shall describe the 
specific principles and facts that are contained in the prior decision 
and explain the relevance of cited matter to the applicant's case.
    (C) To ensure timely consideration of principles cited from 
unpublished opinions (including decisions maintained by the Armed Forces 
Discharge Review Board/Corrective Board Reading Room), applicants must 
provide the DRB with copies of such decisions or of the relevant portion 
of the treatise, manual, or similar source in which the principles were 
discussed. At the applicant's request, such materials will be returned.
    (D) If the applicant fails to comply with the requirements in 
paragraphs (a)(4)(iv) (A), (B), and (C), the decisional document shall 
note the defect, and shall respond to the issue without regard to the 
citation.
    (5) Identification by the DRB of issues submitted by an applicant. 
The applicant's issues shall be identified in accordance with this 
section after a review of the materials noted under paragraph (c)(4), is 
made.
    (i) Issues on DD Form 293. The DRB shall consider all items 
submitted as issues by an applicant on DD Form 293 (or incorporated 
therein) in accordance with paragraph (a)(4)(i). With respect to 
applications submitted before November 27, 1982, the DRB shall consider 
all issues clearly and specifically stated in accordance with the rules 
in effect at the time of the submission.
    (ii) Amendment of issues. The DRB shall not request or instruct an 
applicant to amend or withdraw any matter submitted by the applicant. 
Any amendment or withdrawal of an issue by an applicant shall be 
confirmed in writing by the applicant. Nothing in this provision:

[[Page 337]]

    (A) Limits the DRB's authority to question an applicant as to the 
meaning of such matter;
    (B) Precludes the DRB from developing decisional issues based upon 
such questions;
    (C) Prevents the applicant from amending or withdrawing such matter 
any time before the DRB closes the review process for deliberation; or
    (D) Prevents the DRB from presenting an applicant with a list of 
proposed decisional issues and written information concerning the right 
of the applicant to add to, amend, or withdraw the applicant's 
submission. The written information will state that the applicant's 
decision to take such action (or decline to do so) will not be used 
against the applicant in the consideration of the case.
    (iii) Additional issues identified during a hearing. The following 
additional procedure shall be used during a hearing in order to promote 
the DRB's understanding of an applicant's presentation. If, before 
closing the case for deliberation, the DRB believes that an applicant 
has presented an issue not listed on DD Form 293, the DRB may so inform 
the applicant, and the applicant may submit the issue in writing or add 
additional written issues at that time. This does not preclude the DRB 
from developing its own decisional issues.
    (6) Notification of possible bar to benefits. Written notification 
shall be made to each applicant whose record indicates a reason for 
discharge that bars receipt of benefits under 38 U.S.C. 3103(a). This 
notification will advise the applicant that separate action by the Board 
for Correction of Military or Naval Records or the Veterans 
Administration may confer eligibility for VA benefits. Regarding the bar 
to benefits based upon the 180 days consecutive unauthorized absence, 
the following applies:
    (i) Such absence must have been included as part of the basis for 
the applicant's discharge under other than honorable conditions.
    (ii) Such absence is computed without regard to the applicant's 
normal or adjusted expiration of term of service.
    (b) Conduct of reviews--(1) Members. As designated by the Secretary 
concerned, the DRB and its panels, if any, shall consist of five 
members. One member of the DRB shall be designated as the president and 
may serve as a presiding officer. Other officers may be designated to 
serve as presiding officers for DRB panels under regulations prescribed 
by the Secretary concerned.
    (2) Locations. Reviews by a DRB will be conducted in the NCR and 
such other locations as designated by the Secretary concerned.
    (3) Types of review. An applicant, upon request, is entitled to:
    (i) Record review. A review of the application, available service 
records, and additional documents (if any) submitted by the applicant.
    (ii) Hearing. A review involving an appearance before the DRB by the 
applicant or counsel or representative (or both).
    (4) Applicant's expenses. Unless otherwise specified by law or 
regulation, expenses incurred by the applicant, witnesses, counsel or 
representative will not be paid by the Department of Defense.
    (5) Withdrawal of application. An applicant shall be permitted to 
withdraw an application without prejudice at any time before the 
scheduled review.
    (6) Failure to appear at a hearing or respond to a scheduling 
notice. (i) Except as otherwise authorized by the Secretary concerned, 
further opportunity for a hearing shall not be made available in the 
following circumstances to an applicant who has requested a hearing:
    (A) When the applicant has been sent a letter containing the month 
and location of a proposed hearing and fails to make a timely response; 
or
    (B) When the applicant, after being notified by letter of the time 
and place of the hearing, fails to appear at the appointed time, either 
in person or by representative, without having made a prior, timely 
request for a continuation, postponement, or withdrawal.
    (ii) In such cases, the applicant shall be deemed to have waived the 
right to a hearing, and the DRB shall complete its review of the 
discharge. Further request for a hearing shall not be granted unless the 
applicant can demonstrate that the failure to appear or respond was due 
to circumstances beyond the applicant's control.

[[Page 338]]

    (7) Continuance and postponements. (i) A continuance of a discharge 
review hearing may be authorized by the president of the DRB or 
presiding officer of the panel concerned, provided that such continuance 
is of reasonable duration and is essential to achieving a full and fair 
hearing. When a proposal for continuance is indefinite, the pending 
application shall be returned to the applicant with the option to 
resubmit when the case is fully ready for review.
    (ii) Postponements of scheduled reviews normally shall not be 
permitted other than for demonstrated good and sufficient reason set 
forth by the applicant in a timely manner, or for the convenience of the 
government.
    (8) Reconsideration. A discharge review shall not be subject to 
reconsideration except:
    (i) When the only previous consideration of the case was on the 
motion of the DRB;
    (ii) When the original discharge review did not involve a hearing 
and a hearing is now desired, and the provisions of paragraph (b)(6) of 
this section do not apply;
    (iii) When changes in discharge policy are announced after an 
earlier review of an applicant's discharge, and the new policy is made 
expressly retroactive;
    (iv) When the DRB determines that policies and procedures under 
which the applicant was discharged differ in material respects from 
policies and procedures currently applicable on a Service-wide basis to 
discharges of the type under consideration, provided that such changes 
in policies or procedures represent a substantial enhancement of the 
rights afforded a respondent in such proceedings;
    (v) When an individual is to be represented by a counsel or 
representative, and was not so represented in any previous consideration 
of the case by the DRB;
    (vi) When the case was not previously considered under uniform 
standards published pursuant to Pub. L. 95-126 and such application is 
made within 15 years after the date of discharge; or
    (vii) On the basis of presentation of new, substantial, relevant 
evidence not available to the applicant at the time of the original 
review. The decision whether evidence offered by an applicant in support 
of a request for reconsideration is in fact new, substantial, relevant, 
and was not available to the applicant at the time of the original 
review will be based on a comparison of such evidence with the evidence 
considered in the previous discharge review. If this comparison shows 
that the evidence submitted would have had a probable effect on matters 
concerning the propriety or equity of the discharge, the request for 
reconsideration shall be granted.
    (9) Availability of records and documents. (i) Before applying for 
discharge review, potential applicants or their designated 
representatives may obtain copies of their military personnel records by 
submitting a General Services Administration Standard Form 180, 
``Request Pertaining to Military Records,'' to the National Personnel 
Records Center (NPRC), 9700 Page Boulevard, St. Louis, MO 62132. Once 
the application for discharge review (DD Form 293) is submitted, an 
applicant's military records are forwarded to the DRBs where they cannot 
be reproduced. Submission of a request for an applicant's military 
records, including a request under the Freedom of Information Act (32 
CFR part 286) or Privacy Act (32 CFR part 286a) after the DD Form 293 
has been submitted, shall result automatically in the temporary 
suspension of processing of the application for discharge review until 
the requested records are sent to an appropriate location for copying, 
are copied, and are returned to the headquarters of the DRB. Processing 
of the application shall then be resumed at whatever stage of the 
discharge review process is practicable. Applicants are encouraged to 
submit any request for their military records before applying for 
discharge review rather than after submitting DD Form 293, to avoid 
delays in processing of applications and scheduling of reviews. 
Applicants and their counsel also may examine their military personnel 
records at the site of their scheduled review before the hearing. DRBs 
shall notify applicants of the dates the records are available for 
examination in their standard scheduling information.

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    (ii) If the DRB is not authorized to provide copies of documents 
that are under the cognizance of another government department, office, 
or activity, applications for such information must be made by the 
applicant to the cognizant authority. The DRB shall advise the applicant 
of the mailing address of the government department, office, or activity 
to which the request should be submitted.
    (iii) If the official records relevant to the discharge review are 
not available at the agency having custody of the records, the applicant 
shall be so notified and requested to provide such information and 
documents as may be desired in support of the request for discharge 
review. A period of not less than 30 days shall be allowed for such 
documents to be submitted. At the expiration of this period, the review 
may be conducted with information available to the DRB.
    (iv) A DRB may take steps to obtain additional evidence that is 
relevant to the discharge under consideration beyond that found in the 
official military records or submitted by the applicant, if a review of 
available evidence suggests that it would be incomplete without the 
additional information, or when the applicant presents testimony or 
documents that require additional information to evaluate properly. Such 
information shall be made available to the applicant, upon request, with 
appropriate modifications regarding classified material.
    (A) In any case heard on request of an applicant, the DRB shall 
provide the applicant and counsel or representative, if any, at a 
reasonable time before initiating the decision process, a notice of the 
availability of all regulations and documents to be considered in the 
discharge review, except for documents in the official personnel or 
medical records and any documents submitted by the applicant. The DRB 
shall also notify the applicant or counsel or representative:
    (1) Of the right to examine such documents or to be provided with 
copies of the documents upon request;
    (2) Of the date by which such requests must be received; and
    (3) Of the opportunity to respond within a reasonable period of time 
to be set by the DRB.
    (B) When necessary to acquaint the applicant with the substance of a 
classified document, the classifying authority, on the request of the 
DRB, shall prepare a summary of or an extract from the document, 
deleting all references to sources of information and other matters, the 
disclosure of which, in the opinion of the classifying authority, would 
be detrimental to the national security interests of the United States. 
Should preparation of such summary be deemed impracticable by the 
classifying authority, information from the classified sources shall not 
be considered by the DRB in its review of the case.
    (v) Regulations of a Military Department may be obtained at many 
installations under the jurisdiction of the Military Department 
concerned or by writing to the following address: DA Military Review 
Boards Agency, Attention: SFBA (Reading Room), room 1E520, Washington, 
DC 20310.
    (10) Recorder/Secretary or Assistant. Such a person shall be 
designated to assist in the functioning of each DRB in accordance with 
the procedures prescribed by the Secretary of the Military Department 
concerned.
    (11) Hearings. Hearings (including hearing examinations) that are 
conducted shall recognize the rights of the individual to privacy. 
Accordingly, presence at hearings of individuals other than those 
required shall be limited to persons authorized by the Secretary 
concerned or expressly requested by the applicant, subject to reasonable 
limitations based upon available space. If, in the opinion of the 
presiding officer, the presence of other individuals could be 
prejudicial to the interests of the applicant or the government, 
hearings may be held in closed session.
    (12) Evidence and testimony. (i) The DRB may consider any evidence 
obtained in accordance with this part.
    (ii) Formal rules of evidence shall not be applied in DRB 
proceedings. The presiding officer shall rule on matters

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of procedure and shall ensure that reasonable bounds of relevancy and 
materiality are maintained in the taking of evidence and presentation of 
witnesses.
    (iii) Applicants undergoing hearings shall be permitted to make 
sworn or unsworn statements, if they so desire, or to introduce 
witnesses, documents, or other information on their behalf, at no 
expense to the Department of Defense.
    (iv) Applicants may also make oral or written arguments personally 
or through counsel or representatives.
    (v) Applicants who present sworn or unsworn statements and witnesses 
may be questioned by the DRB. All testimony shall be taken under oath or 
affirmation unless the applicant specifically requests to make an 
unsworn statement.
    (vi) There is a presumption of regularity in the conduct of 
governmental affairs. This presumption can be applied in any review 
unless there is substantial credible evidence to rebut the presumption.
    (c) Decision process. (1) The DRB or the DRB panel, as appropriate, 
shall meet in plenary session to review discharges and exercise its 
discretion on a case-by-case basis in applying the standards set forth 
in Sec.  70.9.
    (2) The presiding officer is responsible for the conduct of the 
discharge review. The presiding officer shall convene, recess, and 
adjourn the DRB panel as appropriate and shall maintain an atmosphere of 
dignity and decorum at all times.
    (3) Each DRB member shall act under oath or affirmation requiring 
careful, objective consideration of the application. DRB members are 
responsible for eliciting all facts necessary for a full and fair 
hearing. They shall consider all information presented to them by the 
applicant. In addition, they shall consider available Military Service 
and health records, together with other records that may be in the files 
of the Military Department concerned and relevant to the issues before 
the DRB, and any other evidence obtained in accordance with this part.
    (4) The DRB shall identify and address issues after a review of the 
following material obtained and presented in accordance with this part 
and the implementing instructions of the DRB: Available official 
records, documentary evidence submitted by or on behalf of an applicant, 
presentation of a hearing examination, testimony by or on behalf of an 
applicant, oral or written arguments presented by or on behalf of an 
applicant, and any other relevant evidence.
    (5) If an applicant who has requested a hearing does not respond to 
a notification letter or does not appear for a scheduled hearing, the 
DRB may complete the review on the basis of material previously 
submitted.
    (6) Application of standards. (i) When a DRB determines that an 
applicant's discharge was improper (Sec.  70.9(b)), the DRB will 
determine which reason for discharge should have been assigned based 
upon the facts and circumstances before the discharge authority, 
including the Service regulations governing reasons for discharge at the 
time the applicant was discharged. Unless it is also determined that the 
discharge was inequitable (Sec.  70.9(c)), the provisions as to 
characterization in the regulation under which the applicant should have 
been discharged will be considered in determining whether further relief 
is warranted.
    (ii) When the DRB determines that an applicant's discharge was 
inequitable (see Sec.  70.9(c)), any change will be based on the 
evaluation of the applicant's overall record of service and relevant 
regulations of the Military Service of which the applicant was a member.
    (7) Voting shall be conducted in closed session, a majority of the 
five members' votes constituting the DRB decision. Voting procedures 
shall be prescribed by the Secretary of the Military Department 
concerned.
    (8) Details of closed session deliberations of a DRB are privileged 
information and shall not be divulged.
    (9) There is no requirement for a statement of minority views in the 
event of a split vote. The minority, however, may submit a brief 
statement of its views under procedures established by the Secretary 
concerned.
    (10) DRBs may request advisory opinions from staff officers of their 
Military Departments. These opinions are advisory in nature and are not 
binding

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on the DRB in its decision-making process.
    (11) The preliminary determinations required by 38 U.S.C. 3103(e) 
shall be made upon majority vote of the DRB concerned on an expedited 
basis. Such determination shall be based upon the standards set forth in 
Sec.  70.9 of this part.
    (12) The DRB shall: (i) Address items submitted as issues by the 
applicant under paragraph (d) of this section;
    (ii) Address decisional issues under paragraph (e) of this section; 
and
    (iii) Prepare a decisional document in accordance with paragraph (h) 
of this section.
    (d) Response to items submitted as issues by the applicant--(1) 
General guidance. (i) If an issue submitted by an applicant contains two 
or more clearly separate issues, the DRB should respond to each issue 
under the guidance of this paragraph as if it had been set forth 
separately by the applicant.
    (ii) If an applicant uses a ``building block'' approach (that is, 
setting forth a series of conclusions on issues that lead to a single 
conclusion purportedly warranting a change in the applicant's 
discharge), normally there should be a separate response to each issue.
    (iii) Nothing in this paragraph precludes the DRB from making a 
single response to multiple issues when such action would enhance the 
clarity of the decisional document, but such response must reflect an 
adequate response to each separate issue.
    (2) Decisional issues. An item submitted as an issue by an applicant 
in accordance with this part shall be addressed as a decisional issue 
under paragraph (e), in the following circumstances:
    (i) When the DRB decides that a change in discharge should be 
granted, and the DRB bases its decision in whole or in part on the 
applicant's issue; or
    (ii) When the DRB does not provide the applicant with the full 
change in discharge requested, and the decision is based in whole or in 
part on the DRB's disagreement on the merits with an issue submitted by 
the applicant.
    (3) Response to items not addressed as decisional issues. (i) If the 
applicant receives the full change in discharge requested (or a more 
favorable change), that fact shall be noted and the basis shall be 
addressed as a decisional issue. No further response is required to 
other issues submitted by the applicant.
    (ii) If the applicant does not receive the full change in discharge 
requested with respect to either the character of or reason for 
discharge (or both), the DRB shall address the items submitted by the 
applicant under paragraph (e) of this section (decisional issues) unless 
one of the following responses is applicable:
    (A) Duplicate issues. The DRB may state that there is a full 
response to the issue submitted by the applicant under a specified 
decisional issue. This response may be used only when one issue clearly 
duplicates another or the issue clearly requires discussion in 
conjunction with another issue.
    (B) Citations without principles and facts. The DRB may state that 
the applicant's issue, which consists of a citation to a decision 
without setting forth any principles and facts from the decision that 
the applicant states are relevant to the applicant's case, does not 
comply with the requirements of paragraph (a)(4)(iv)(A).
    (C) Unclear issues. The DRB may state that it cannot respond to an 
item submitted by the applicant as an issue because the meaning of the 
item is unclear. An issue is unclear if it cannot be understood by a 
reasonable person familiar with the discharge review process after a 
review of the materials considered under paragraph (c)(4) of this 
section.
    (D) Nonspecific issues. The DRB may state that it cannot respond to 
an item submitted by the applicant as an issue because it is not 
specific. A submission is considered not specific if a reasonable person 
familiar with the discharge review process after a review of the 
materials considered under paragraph (c)(4) of this section, cannot 
determine the relationship between the applicant's submission and the 
particular circumstances of the case. This response may be used only if 
the submission is expressed in such general terms that no other response 
is applicable. For example, if the DRB disagrees with the applicant as 
to the relevance of matters set forth in the submission,

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the DRB normally will set forth the nature of the disagreement under the 
guidance in paragraph (e) of this section, with respect to decisional 
issues, or it will reject the applicant's position on the basis of 
paragraphs (d)(3)(ii)(A) or (d)(3)(ii)(B) of this section. If the 
applicant's submission is so general that none of those provisions is 
applicable, then the DRB may state that it cannot respond because the 
item is not specific.
    (e) Decisional issues--(1) General. Under the guidance in this 
section, the decisional document shall discuss the issues that provide a 
basis for the decision whether there should be a change in the character 
of or reason for discharge. In order to enhance clarity, the DRB should 
not address matters other than issues relied upon in the decision or 
raised by the applicant.
    (i) Partial change. When the decision changes a discharge, but does 
not provide the applicant with the full change in discharge requested, 
the decisional document shall address both the issues upon which change 
is granted and the issues upon which the DRB denies the full change 
requested.
    (ii) Relationship of issue to character of or reason for discharge. 
Generally, the decisional document should specify whether a decisional 
issue applies to the character of or reason for discharge (or both), but 
it is not required to do so.
    (iii) Relationship of an issue to propriety or equity. (A) If an 
applicant identifies an issue as pertaining to both propriety and 
equity, the DRB will consider it under both standards.
    (B) If an applicant identifies an issue as pertaining to the 
propriety of the discharge (for example, by citing a propriety standard 
or otherwise claiming that a change in discharge is required as a matter 
of law), the DRB shall consider the issue solely as a matter of 
propriety. Except as provided in paragraph (e)(1)(iii)(D) of this 
section, the DRB is not required to consider such an issue under the 
equity standards.
    (C) If the applicant's issue contends that the DRB is required as a 
matter of law to follow a prior decision by setting forth an issue of 
propriety from the prior decision and describing its relationship to the 
applicant's case, the issue shall be considered under the propriety 
standards and addressed under paragraph (e)(2) or (e)(3) of this 
section.
    (D) If the applicant's issue sets forth principles of equity 
contained in a prior DRB decision, describes the relationship to the 
applicant's case, and contends that the DRB is required as a matter of 
law to follow the prior case, the decisional document shall note that 
the DRB is not bound by its discretionary decisions in prior cases under 
the standards in Sec.  70.9. However, the principles cited by the 
applicant, and the description of the relationship of the principles to 
the applicant's case, shall be considered under the equity standards and 
addressed under paragraph (e)(5) or (e)(6) of this section.
    (E) If the applicant's issue cannot be identified as a matter of 
propriety or equity, the DRB shall address it as an issue of equity.
    (2) Change of discharge: issues of propriety. If a change in the 
discharge is warranted under the propriety standards in Sec.  70.9 the 
decisional document shall state that conclusion and list the errors of 
expressly retroactive changes in policy that provide a basis for the 
conclusion. The decisional document shall cite the facts in the record 
that demonstrate the relevance of the error or change in policy to the 
applicant's case. If the change in discharge does not constitute the 
full change requested by the applicant, the reasons for not granting the 
full change shall be addressed under the guidance in paragraph (e)(3) or 
(e)(6) of this section.
    (3) Denial of the full change requested: issues of propriety. (i) If 
the decision rejects the applicant's position on an issue of propriety, 
or if it is otherwise decided on the basis of an issue of propriety that 
the full change in discharge requested by the applicant is not 
warranted, the decisional document shall note that conclusion.
    (ii) The decisional document shall list reasons for its conclusion 
on each issue of propriety under the following guidance:
    (A) If a reason is based in whole or in part upon a regulation, 
statute, constitutional provision, judicial determination, or other 
source of law, the DRB shall cite the pertinent source of law and the 
facts in the record that

[[Page 343]]

demonstrate the relevance of the source of law to the particular 
circumstances in the case.
    (B) If a reason is based in whole or in part on a determination as 
to the occurrence or nonoccurrence of an event or circumstance, 
including a factor required by applicable Service regulations to be 
considered for determination of the character of and reason for the 
applicant's discharge, the DRB shall make a finding of fact for each 
such event or circumstance.
    (1) For each such finding, the decisional document shall list the 
specific source of the information relied upon. This may include the 
presumption of regularity in appropriate cases. If the information is 
listed in the service record section of the decisional document, a 
citation is not required.
    (2) If a finding of fact is made after consideration of 
contradictory evidence in the record (including information cited by the 
applicant or otherwise identified by members of the DRB), the decisional 
document shall set forth the conflicting evidence and explain why the 
information relied upon was more persuasive than the information that 
was rejected. If the presumption of regularity is cited as the basis for 
rejecting such information, the decisional document shall set forth the 
basis for relying on the presumption of regularity and explain why the 
contradictory evidence was insufficient to overcome the presumption. In 
an appropriate case, the explanation as to why the contradictory 
evidence was insufficient to overcome the presumption of regularity may 
consist of a statement that the applicant failed to provide sufficient 
corroborating evidence, or that the DRB did not find the applicant's 
testimony to be sufficiently credible to overcome the presumption.
    (C) If the DRB disagrees with the position of the applicant on an 
issue of propriety, the following guidance applies in addition to the 
guidance in paragraphs (e)(3)(ii) (A) and (B) of this section:
    (1) The DRB may reject the applicant's position by explaining why it 
disagrees with the principles set forth in the applicant's issue 
(including principles derived from cases cited by the applicant in 
accordance with paragraph (e)(4)(iv) of this section).
    (2) The DRB may reject the applicant's position by explaining why 
the principles set forth in the applicant's issue (including principles 
derived from cases cited by the applicant in accordance with paragraph 
(a)(4)(iv) of this section) are not relevant to the applicant's case.
    (3) The DRB may reject an applicant's position by stating that the 
applicant's issue of propriety is not a matter upon which the DRB grants 
a change in discharge, and by providing an explanation for this 
position. When the applicant indicates that the issue is to be 
considered in conjunction with one or more other specified issues, the 
explanation will address all such specified issues.
    (4) The DRB may reject the applicant's position on the grounds that 
other specified factors in the case preclude granting relief, regardless 
of whether the DRB agreed with the applicant's position.
    (5) If the applicant takes the position that the discharge must be 
changed because of an alleged error in a record associated with the 
discharge, and the record has not been corrected by the organization 
with primary responsibility for corrective action, the DRB may respond 
that it will presume the validity of the record in the absence of such 
corrective action. If the organization empowered to correct the record 
is within the Department of Defense, the DRB should provide the 
applicant with a brief description of the procedures for requesting 
correction of the record. If the DRB on its own motion cites this issue 
as a decisional issue on the basis of equity, it shall address the issue 
under paragraph (d)(5) or (d)(6) of this section.
    (6) When an applicant's issue contains a general allegation that a 
certain course of action violated his or her constitutional rights, the 
DRB may respond in appropriate cases by noting that the action was 
consistent with statutory or regulatory authority, and by citing the 
presumption of constitutionality that attaches to statutes and 
regulations. If, on the other hand, the applicant makes a specific 
challenge to the constitutionality of the action by

[[Page 344]]

challenging the application of a statute or regulation in a particular 
set of circumstances, it is not sufficient to respond solely by citing 
the presumption of constitutionality of the statute or regulation when 
the applicant is not challenging the constitutionality of the statute or 
regulation. Instead, the response must address the specific 
circumstances of the case.
    (4) Denial of the full change in discharge requested when propriety 
is not at issue. If the applicant has not submitted an issue of 
propriety and the DRB has not otherwise relied upon an issue of 
propriety to change the discharge, the decisional document shall contain 
a statement to that effect. The DRB is not required to provide any 
further discussion as to the propriety of the discharge.
    (5) Change of discharge: issues of equity. If the DRB concludes that 
a change in the discharge is warranted under the equity standards in 
Sec.  70.9 the decisional document shall list each issue of equity upon 
which this conclusion is based. The DRB shall cite the facts in the 
record that demonstrate the relevance of the issue to the applicant's 
case. If the change in discharge does not constitute the full change 
requested by the applicant, the reasons for not giving the full change 
requested shall be discussed under the guidance in paragraph (e)(6) of 
this section.
    (6) Denial of the full change in discharge requested: issues of 
equity. (i) If the DRB rejects the applicant's position on an issue of 
equity, or if the decision otherwise provides less than the full change 
in discharge requested by the applicant, the decisional document shall 
note that conclusion.
    (ii) The DRB shall list reasons for its conclusion on each issue of 
equity under the following guidance:
    (A) If a reason is based in whole or in part upon a regulation, 
statute, constitutional provision, judicial determination, or other 
source of law, the DRB shall cite the pertinent source of law and the 
facts in the record that demonstrate the relevance of the source of law 
to the exercise of discretion on the issue of equity in the applicant's 
case.
    (B) If a reason is based in whole or in part on a determination as 
to the occurrence or nonoccurrence of an event or circumstance, 
including a factor required by applicable Service regulations to be 
considered for determination of the character of and reason for the 
applicant's discharge, the DRB shall make a finding of fact for each 
such event or circumstance.
    (1) For each such finding, the decisional document shall list the 
specific source of the information relied upon. This may include the 
presumption of regularity in appropriate cases. If the information is 
listed in the service record section of the decisional document, a 
citation is not required.
    (2) If a finding of fact is made after consideration of 
contradictory evidence in the record (including information cited by the 
applicant or otherwise identified by members of the DRB), the decisional 
document shall set forth the conflicting evidence and explain why the 
information relied upon was more persuasive than the information that 
was rejected. If the presumption of regularity is cited as the basis for 
rejecting such information, the decisional document shall set forth the 
basis for relying on the presumption of regularity and explain why the 
contradictory evidence was insufficient to overcome the presumption. In 
an appropriate case, the explanation as to why the contradictory 
evidence was insufficient to overcome the presumption of regularity may 
consist of a statement that the applicant failed to provide sufficient 
corroborating evidence, or that the DRB did not find the applicant's 
testimony to be sufficiently credible to overcome the presumption.
    (C) If the DRB disagrees with the position of the applicant on an 
issue of equity, the following guidance applies in addition to the 
guidance in paragraphs (e)(6)(ii) (A) and (B) of this section:
    (1) The DRB may reject the applicant's position by explaining why it 
disagrees with the principles set forth in the applicant's issue 
(including principles derived from cases cited by the applicant in 
accordance with paragraph (a)(4)(iv) of this section).
    (2) The DRB may reject the applicant's position by explaining why 
the principles set forth in the applicant's issue (including principles 
derived from

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cases cited by the applicant) are not relevant to the applicant's case.
    (3) The DRB may reject an applicant's position by explaining why the 
applicant's issue is not a matter upon which the DRB grants a change in 
discharge as a matter of equity. When the applicant indicates that the 
issue is to be considered in conjunction with other specified issues, 
the explanation will address all such specified issues.
    (4) The DRB may reject the applicant's position on the grounds that 
other specified factors in the case preclude granting relief, regardless 
of whether the DRB agreed with the applicant's position.
    (5) If the applicant takes the position that the discharge should be 
changed as a matter of equity because of an alleged error in a record 
associated with the discharge, and the record has not been corrected by 
the organization with primary responsibility for corrective action, the 
DRB may respond that it will presume the validity of the record in the 
absence of such corrective action. However, the DRB will consider 
whether it should exercise its equitable powers to change the discharge 
on the basis of the alleged error. If it declines to do so, it shall 
explain why the applicant's position did not provide a sufficient basis 
for the change in the discharge requested by the applicant.
    (D) When the DRB concludes that aggravating factors outweigh 
mitigating factors, the DRB must set forth reasons such as the 
seriousness of the offense, specific circumstances surrounding the 
offense, number of offenses, lack of mitigating circumstances, or 
similar factors. The DRB is not required, however, to explain why it 
relied on any such factors unless the applicability or weight of such a 
factor is expressly raised as an issue by the applicant.
    (E) If the applicant has not submitted any issues and the DRB has 
not otherwise relied upon an issue of equity for a change in discharge, 
the decisional document shall contain a statement to that effect, and 
shall note that the major factors upon which the discharge was based are 
set forth in the service record portion of the decisional document.
    (f) The recommendation of the DRB President--(1) General. The 
president of the DRB may forward cases for consideration by the 
Secretarial Reviewing Authority (SRA) under rules established by the 
Secretary concerned. There is no requirement that the President submit a 
recommendation when a case is forwarded to the SRA. If the president 
makes a recommendation with respect to the character of or reason for 
discharge, however, the recommendation shall be prepared under the 
guidance in paragraph (f)(2) of this section.
    (2) Format for recommendation. If a recommendation is provided, it 
shall contain the president's views whether there should be a change in 
the character of or reason for discharge (or both). If the president 
recommends such a change, the particular change to be made shall be 
specified. The recommendation shall set forth the president's position 
on decisional issues and issues submitted by the applicant under the 
following guidance:
    (i) Adoption of the DRB's decisional document. The recommendation 
may state that the president has adopted the decisional document 
prepared by the majority. The president shall ensure that the decisional 
document meets the requirements of this section.
    (ii) Adoption of the specific statements from the majority. If the 
President adopts the views of the majority only in part, the 
recommendation shall cite the specific matter adopted from the majority. 
If the president modifies a statement submitted by the majority, the 
recommendation shall set forth the modification.
    (iii) Response to issues not included in matter adopted from the 
majority. The recommendation shall set forth the following if not 
adopted in whole or in part from the majority:
    (A) The issues on which the president's recommendation is based. 
Each such decisional issue shall be addressed by the president under 
paragraph (e) of this section,
    (B) The president's response to items submitted as issues by the 
applicant under paragraph (d) of this section.
    (C) Reasons for rejecting the conclusions of the majority with 
respect to decisional issues which, if resolved in

[[Page 346]]

the applicant's favor, would have resulted in greater relief for the 
applicant than that afforded by the president's recommendation. Suh 
issues shall be addressed under the principles in paragraph (e) of this 
section.
    (g) Secretarial reviewing authority (SRA)--(1) Review by the SRA. 
The Secretarial Reviewing Authority (SRA) is the Secretary concerned or 
the official to whom Secretary's discharge review authority has been 
delegated.
    (i) The SRA may review the following types of cases before issuance 
of the final notification of a decision:
    (A) Any specific case in which the SRA has an interest.
    (B) Any specific case that the president of the DRB believes is of 
significant interest to the SRA.
    (ii) Cases reviewed by the SRA shall be considered under the 
standards set forth in Sec.  70.9.
    (2) Processing the decisional document. (i) The decisional document 
shall be transmitted by the DRB president under paragraph (e) of this 
section.
    (ii) The following guidance applies to cases that have been 
forwarded to the SRA except for cases reviewed on the DRB's own motion 
without the participation of the applicant or the applicant's counsel:
    (A) The applicant and counsel or representative, if any, shall be 
provided with a copy of the proposed decisional document, including the 
DRB president's recommendation to the SRA, if any. Classified 
information shall be summarized.
    (B) The applicant shall be provided with a reasonable period of 
time, but not less than 25 days, to submit to the SRA a rebuttal. An 
issue in rebuttal consists of a clear and specific statement by the 
applicant in support of or in opposition to the statements of the DRB or 
DRB president on decisional issues and other clear and specific issues 
that were submitted by the applicant in accordance with paragraph 
(a)(4)(i) of this section. The rebuttal shall be based solely on matters 
in the record before when the DRB closed the case for deliberation or in 
the president's recommendation.
    (3) Review of the decisional document. If corrections in the 
decisional document are required, the decisional document shall be 
returned to the DRB for corrective action. The corrected decisional 
document shall be sent to the applicant (and counsel, if any), but a 
further opportunity for rebuttal is not required unless the correction 
produces a different result or includes a substantial change in the 
discussion by the DRB (or DRB president) of the issues raised by the 
majority or the applicant.
    (4) The Addendum of the SRA. The decision of the SRA shall be in 
writing and shall be appended as an addendum to the decisional document 
under the guidance in this subsection.
    (i) The SRA's decision. The addendum shall set forth the SRA's 
decision whether there will be a change in the character of or reason 
for discharge (or both); if the SRA concludes that a change is 
warranted, the particular change to be made shall be specified. If the 
SRA adopts the decision recommended by the DRB or the DRB president, the 
decisional document shall contain a reference to the matter adopted.
    (ii) Discussion of issues. In support of the SRA's decision, the 
addendum shall set forth the SRA's position on decisional issues, items 
submitted as issues by an applicant in accordance with paragraph 
(a)(4)(i) of this section, and issues raised by the DRB and the DRB 
president in accordance with the following guidance:
    (A) Adoption of the DRB president's recommendation. The addendum may 
state that the SRA has adopted the DRB president's recommendation.
    (B) Adoption of the DRB's proposed decisional document. The addendum 
may state that the SRA has adopted the proposed decisional document 
prepared by the DRB.
    (C) Adoption of specific statements from the majority or the DRB 
president. If the SRA adopts the views of the DRB or the DRB president 
only in part, the addendum shall cite the specific statements adopted. 
If the SRA modifies a statement submitted by the DRB or the DRB 
president, the addendum shall set forth the modification.
    (D) Response to issues not included in matter adopted from the DRB 
or the DRB president. The addendum shall set forth the following if not 
adopted in whole or

[[Page 347]]

in part from the DRB or the DRB president:
    (1) A list of the issues on which the SRA's decision is based. Each 
such decisional issue shall be addressed by the SRA under paragraph (e) 
of this section. This includes reasons for rejecting the conclusion of 
the DRB or the DRB president with respect to decisional issues which, if 
resolved in the applicant's favor, would have resulted in change to the 
discharge more favorable to the applicant than that afforded by the 
SRA's decision. Such issues shall be addressed under the principles in 
paragraph (e) of this section.
    (2) The SRA's response to items submitted as issues by the applicant 
under paragraph (d) of this section.
    (iii) Response to the rebuttal. (A) If the SRA grants the full 
change in discharge requested by the applicant (or a more favorable 
change), that fact shall be noted, the decisional issues shall be 
addressed under paragraph (e) of this section, and no further response 
to the rebuttal is required.
    (B) If the SRA does not grant the full change in discharge requested 
by the applicant (or a more favorable change), the addendum shall list 
each issue in rebuttal submitted by an applicant in accordance with this 
section, and shall set forth the response of the SRA under the following 
guidance:
    (1) If the SRA rejects an issue in rebuttal, the SRA may respond in 
accordance with the principles in paragraph (e) of this section.
    (2) If the matter adopted by the SRA provides a basis for the SRA's 
rejection of the rebuttal material, the SRA may note that fact and cite 
the specific matter adopted that responds to the issue in rebuttal.
    (3) If the matter submitted by the applicant does not meet the 
requirements for rebuttal material in paragraph (b)(2)(ii)(B) of this 
section.
    (iv) Index entries. Appropriate index entries shall be prepared for 
the SRA's actions for matters that are not adopted from the DRB's 
proposed decisional document.
    (h) The decisional document. A decisional document shall be prepared 
for each review. At a minimum, this document shall contain:
    (1) The circumstances and character of the applicant's service as 
extracted from available service records, including health records, and 
information provided by other Government authorities or the applicant, 
such as, but not limited to:
    (i) Information concerning the discharge at issue in the review, 
including:
    (A) Date (YYMMDD) of discharge.
    (B) Character of discharge.
    (C) Reason for discharge.
    (D) The specific regulatory authority under which the discharge was 
issued.
    (ii) Date (YYMMDD) of enlistment.
    (iii) Period of enlistment.
    (iv) Age at enlistment.
    (v) Length of service.
    (vi) Periods of unauthorized absence.
    (vii) Conduct and efficiency ratings (numerical or narrative).
    (viii) Highest rank received.
    (ix) Awards and decorations.
    (x) Educational level.
    (xi) Aptitude test scores.
    (xii) Incidents of punishment pursuant to Article 15, Uniform Code 
of Military Justice (including nature and date (YYMMDD) of offense or 
punishment).
    (xiii) Convictions by court-martial.
    (xiv) Prior military service and type of discharge received.
    (2) A list of the type of documents submitted by or on behalf of the 
applicant (including a written brief, letters of recommendation, 
affidavits concerning the circumstances of the discharge, or other 
documentary evidence), if any.
    (3) A statement whether the applicant testified, and a list of the 
type of witnesses, if any, who testified on behalf of the applicant.
    (4) A notation whether the application pertained to the character of 
discharge, the reason for discharge, or both.
    (5) The DRB's conclusions on the following:
    (i) Whether the character of or reason for discharge should be 
changed.
    (ii) The specific changes to be made, if any.
    (6) A list of the items submitted as issues on DD Form 293 or 
expressly incorporated therein and such other

[[Page 348]]

items submitted as issues by the applicant that are identified as 
inadvertently omitted under paragraph (a)(4)(i)(D) of this section. If 
the issues are listed verbatim on DD Form 293, a copy of the relevant 
portion of the Form may be attached. Issues that have been withdrawn or 
modified with the consent of the applicant need not be listed.
    (7) The response to the items submitted as issues by the applicant 
under the guidance in paragraph (d) of this section.
    (8) A list of decisional issues and a discussion of such issues 
under the guidance in paragraph (e) of this section.
    (9) Minority views, if any, when authorized under rules of the 
Military Department concerned.
    (10) The recommendation of the DRB president when required by 
paragraph (f) of this section.
    (11) The addendum of the SRA when required by paragraph (g) of this 
section.
    (12) Advisory opinions, including those containing factual 
information, when such opinions have been relied upon for final decision 
or have been accepted as a basis for rejecting any of the applicant's 
issues. Such advisory opinions or relevant portions thereof that are not 
fully set forth in the discussion of decisional issues or otherwise in 
response to items submitted as issues by the application shall be 
incorporated by reference. A copy of opinions incorporated by reference 
shall be appended to the decision and included in the record of 
proceedings.
    (13) A record of the voting, including:
    (i) The number of votes for the DRB's decision and the number of 
votes in the minority, if any.
    (ii) The DRB member's names (last name, first name, M.I.) and votes. 
The copy provided to the applicant may substitute a statement that the 
names and votes will be made available to the applicant at the 
applicant's request.
    (14) Index entries for each decisional issue under appropriate 
categories listed in the index of decisions.
    (15) An authentication of the document by an appropriate official.
    (i) Issuance of decisions following discharge review. The applicant 
and counsel or representative, if any, shall be provided with a copy of 
the decisional document and of any further action in review. The 
applicant (and counsel, if any) shall be notified of the availability of 
the complaint process under Sec.  70.10. Final notification of decisions 
shall be issued to the applicant with a copy to the counsel or 
representative, if any, and to the Military Service concerned.
    (1) Notification to applicants, with copies to counsel or 
representatives, shall normally be made through the U.S. Postal Service. 
Such notification shall consist of a notification of decision, together 
with a copy of the decisional document.
    (2) Notification to the Military Services shall be for the purpose 
of appropriate action and inclusion of review matter in personnel 
records. Such notification shall bear appropriate certification of 
completeness and accuracy.
    (3) Actions on review by superior authority, when occurring, shall 
be provided to the applicant and counsel or representative in the same 
manner as the notification of the review decision.
    (j) Record of DRB proceedings. (1) When the proceedings in any 
review have been concluded, a record thereof will be prepared. Records 
may include written records, electromagnetic records, videotape 
recordings, or a combination thereof.
    (2) At a minimum, the record will include the following:
    (i) The application for review;
    (ii) A record of the testimony in verbatim, summarized, or recorded 
form at the option of the DRB concerned;
    (iii) Documentary evidence or copies thereof, considered by the DRB 
other than the Military Service record;
    (iv) Briefs and arguments submitted by or on behalf of the 
applicant;
    (v) Advisory opinions considered by the DRB, if any;
    (vi) The findings, conclusions, and reasons developed by the DRB;
    (vii) Notification of the DRB's decision to the cognizant custodian 
of the applicant's records, or reference to the notification document;
    (viii) Minority reports, if any;
    (ix) A copy of the decisional document.

[[Page 349]]

    (k) Final disposition of the Record of Proceedings. The original 
record of proceedings and all appendices thereto shall in all cases be 
incorporated in the Military Service record of the applicant and the 
Military Service record shall be returned to the custody of the 
appropriate records holding facility. If a portion of the original 
record of the proceedings cannot be stored with the Military Service 
record, the Military Service record shall contain a notation as to the 
place where the record is stored. Other copies shall be filed and 
disposed of in accordance with appropriate Military Service regulations.
    (l) Availability of Discharge Review Board documents for inspection 
and copying. (1) A copy of the decisional document prepared in 
accordance with paragraph (d) of this section shall be made available 
for public inspection and copying promptly after a notice of final 
decision is sent to the applicant.
    (2) To prevent a clearly unwarranted invasion of personal privacy, 
identifying details of the applicant and other persons will be deleted 
from documents made available for public inspection and copying.
    (i) Names, addresses, social security numbers, and Military Service 
numbers must be deleted. Written justification shall be made for all 
other deletions and shall be available for public inspection.
    (ii) Each DRB shall ensure that there is a means for relating a 
decisional document number to the name of the applicant to permit 
retrieval of the applicant's records when required in processing a 
complaint under Sec.  70.10.
    (3) Any other privileged or classified material contained in or 
appended to any documents required by this part to be furnished the 
applicant and counsel or representative or made available for public 
inspection and copying may be deleted therefrom only if a written 
statement of the basis for the deletions is provided the applicant and 
counsel or representative and made available for public inspection. It 
is not intended that the statement be so detailed as to reveal the 
nature of the withheld material.
    (4) DRB documents made available for public inspection and copying 
shall be located in the Armed Forces Discharge Review/Correction Board 
Reading Room. The documents shall be indexed in a usable and concise 
form so as to enable the public, and those who represent applicants 
before the DRBs, to isolate from all these decisions that are indexed, 
those cases that may be similar to an applicant's case and that indicate 
the circumstances under or reasons for (or both) which the DRB or the 
Secretary concerned granted or denied relief.
    (i) The reading file index shall include, in addition to any other 
items determined by the DRB, the case number, the date, character of, 
reason and authority for the discharge. It shall also include the 
decisions of the DRB and reviewing authority, if any, and the issues 
addressed in the statement of findings, conclusions, and reasons.
    (ii) The index shall be maintained at selected permanent locations 
throughout the United States. This ensures reasonable availability to 
applicants at least 30 days before a traveling panel review. A list of 
these locations shall be published in the Federal Register by the 
Department of the Army. The index shall also be made available at sites 
selected for traveling panels or hearing examinations for such periods 
as the DRB or a hearing examiner is present and in operation. An 
applicant who has requested a traveling panel review or a hearing 
examination shall be advised in the notice of such review of the 
permanent index locations.
    (iii) The Armed Forces Discharge Review/Correction Board Reading 
Room shall publish indexes quarterly for all DRBs. All DRBs shall be 
responsible for timely submission to the Reading Room of individual case 
information required for update of the indexes. In addition, all DRBs 
shall be responsible for submission of new index categories based upon 
published changes in policy, procedures, or standards. These indexes 
shall be available for public inspection or purchase (or both) at the 
Reading Room. When the DRB has accepted an application, information 
concerning the availability of the index shall be provided in the DRB's 
response to the application.
    (iv) Copies of decisional documents will be provided to individuals 
or organizations outside the NCR in response

[[Page 350]]

to written requests for such documents. Although the Reading Room shall 
try to make timely responses to such requests, certain factors such as 
the length of a request, the volume of other pending requests, and the 
impact of other responsibilities of the staff assigned to such duties 
may cause some delays. A fee may be charged for such documents under 
appropriate DoD and Department of the Army directives and regulations. 
The manual that accompanies the index of decisions shall notify the 
public that if an applicant indicates that a review is scheduled for a 
specific date, an effort will be made to provide requested decisional 
documents before that date. The individual or organization will be 
advised if that cannot be accomplished.
    (v) Correspondence relating to matters under the cognizance of the 
Reading Room (including requests for purchase of indexes) shall be 
addressed to: DA Military Review Boards Agency, Attention: SFBA (Reading 
Room), Room 1E520, The Pentagon, Washington, DC 20310.
    (m) Privacy Act information. Information protected under the Privacy 
Act is involved in the discharge review functions. The provisions of 
part 286a of this title shall be observed throughout the processing of a 
request for review of discharge or dismissal.
    (n) Information requirement. Each Military Department shall provide 
the Deputy Assistant Secretary of Defense (Military Personnel and Force 
Management) DASD (MP&FM), Office of the ASD (MRA&L), with a semiannual 
report of discharge review actions in accordance with Sec.  70.11.

[47 FR 37785, Aug. 26, 1982, as amended at 48 FR 9855, Mar. 9, 1983; 48 
FR 35644, Aug. 5, 1983]



Sec.  70.9  Discharge review standards.

    (a) Objective of review. The objective of a discharge review is to 
examine the propriety and equity of the applicant's discharge and to 
effect changes, if necessary. The standards of review and the underlying 
factors that aid in determining whether the standards are met shall be 
historically consistent with criteria for determining honorable service. 
No factors shall be established that require automatic change or denial 
of a change in discharge. Neither a DRB nor the Secretary of the 
Military Department concerned shall be bound by any methodology of 
weighting of the factors in reaching a determination. In each case, the 
DRB or the Secretary of the Military Department concerned shall give 
full, fair, and impartial considerations to all applicable factors 
before reaching a decision. An applicant may not rceive a less favorable 
discharge than that issued at the time of separation. This does not 
preclude correction of clerical errors.
    (b) Propriety. (1) A discharge shall be deemed proper unless, in the 
course of discharge review, it is determined that:
    (i) There exists an error of fact, law, procedure, or discretion 
associated with the discharge at the time of issuance; and that the 
rights of the applicant were prejudiced thereby (such error shall 
constitute prejudicial error if there is substantial doubt that the 
discharge would have remained the same if the error had not been made); 
or
    (ii) A change in policy by the Military Service of which the 
applicant was a member, made expressly retroactive to the type of 
discharge under consideration, requires a change in the discharge.
    (2) When a record associated with the discharge at the time of 
issuance involves a matter in which the primary responsibility for 
corrective action rests with another organization (for example, another 
Board, agency, or court), the DRB will recognize an error only to the 
extent that the error has been corrected by the organization with 
primary responsibility for correcting the record.
    (3) The primary function of the DRB is to exercise its discretion on 
issues of equity by reviewing the individual merits of each application 
on a case-by-case basis. Prior decisions in which the DRB exercised its 
discretion to change a discharge based on issues of equity (including 
the factors cited in such decisions or the weight given to factors in 
such decisions) do not bind the DRB in its review of subsequent cases 
because no two cases present the same issues of equity.

[[Page 351]]

    (4) The following applies to applicants who received less than fully 
Honorable administrative discharges because of their civilian misconduct 
while in an inactive reserve component and who were discharged or had 
their discharge reviewed on or after April 20, 1971: the DRB shall 
either recharacterize the discharge to Honorable without any additional 
proceedings or additional proceedings shall be conducted in accordance 
with the Court's Order of December 3, 1981, in Wood v. Secretary of 
Defense to determine whether proper grounds exist for the issuance of a 
less than Honorable discharge, taking into account that;
    (i) An Other than Honorable (formerly undesirable) Discharge for an 
inactive reservist can only be based upon civilian misconduct found to 
have affected directly the performance of military duties;
    (ii) A General Discharge for an inactive reservist can only be based 
upon civilian misconduct found to have had an adverse impact on the 
overall effectiveness of the military, including military morale and 
efficiency.
    (c) Equity. A discharge shall be deemed to be equitable unless:
    (1) In the course of a discharge review, it is determined that the 
policies and procedures under which the applicant was discharged differ 
in material respects from policies and procedures currently applicable 
on a Service-wide basis to discharges of the type under consideration 
provided that:
    (i) Current policies or procedures represent a substantial 
enhancement of the rights afforded a respondent in such proceedings; and
    (ii) There is substantial doubt that the applicant would have 
received the same discharge if relevant current policies and procedures 
had been available to the applicant at the time of the discharge 
proceedings under consideration.
    (2) At the time of issuance, the discharge was inconsistent with 
standards of discipline in the Military Service of which the applicant 
was a member.
    (3) In the course of a discharge review, it is determined that 
relief is warranted based upon consideration of the applicant's service 
record and other evidence presented to the DRB viewed in conjunction 
with the factors listed in this section and the regulations under which 
the applicant was discharged, even though the discharge was determined 
to have been otherwise equitable and proper at the time of issuance. 
Areas of consideration include, but are not limited to:
    (i) Quality of service, as evidenced by factors such as:
    (A) Service history, including date of enlistment, period of 
enlistment, highest rank achieved, conduct or efficiency ratings 
(numerical or narrative);
    (B) Awards and decorations;
    (C) Letters of commendation or reprimand;
    (D) Combat service;
    (E) Wounds received in action;
    (F) Records of promotions and demotions;
    (G) Level of responsibility at which the applicant served;
    (H) Other acts of merit that may not have resulted in a formal 
recognition through an award or commendation;
    (I) Length of service during the service period which is the subject 
of the discharge review;
    (J) Prior military service and type of discharge received or 
outstanding postservice conduct to the extent that such matters provide 
a basis for a more thorough understanding of the performance of the 
applicant during the period of service which is the subject of the 
discharge review;
    (K) Convictions by court-martial;
    (L) Records of nonjudicial punishment;
    (M) Convictions by civil authorities while a member of the Service, 
reflected in the discharge proceedings or otherwise noted in military 
service records;
    (N) Records of periods of unauthorized absence;
    (O) Records relating to a discharge instead of court-martial.
    (ii) Capability to serve, as evidenced by factors such as:
    (A) Total capabilities. This includes an evaluation of matters, such 
as age, educational level, and aptitude scores. Consideration may also 
be given whether the individual met normal military standards of 
acceptability for military service and similar indicators

[[Page 352]]

of an individual's ability to serve satisfactorily, as well as ability 
to adjust to military service.
    (B) Family and Personal Problems. This includes matters in 
extenuation or mitigation of the reason for discharge that may have 
affected the applicant's ability to serve satisfactorily.
    (C) Arbitrary or capricious action. This includes actions by 
individuals in authority that constitute a clear abuse of such authority 
and that, although not amounting to prejudicial error, may have 
contributed to the decision to discharge or to the characterization of 
service.
    (D) Discrimination. This includes unauthorized acts as documented by 
records or other evidence.



Sec.  70.10  Complaints concerning decisional documents and index entries.

    (a) General. (1) The procedures in this section--are established for 
the sole purpose of ensuring that decisional documents and index entries 
issued by the DRBs of the Military Departments comply with the 
decisional document and index entry principles of this part.
    (2) This section may be modified or supplemented by the DASD(MP&FM).
    (3) The following persons may submit complaints:
    (i) A former member of the Armed Forces (or the former member's 
counsel) with respect to the decisional document issued in the former 
member's own case; and
    (ii) A former member of the Armed Forces (or the former member's 
counsel) who states that correction of the decisional document will 
assist the former member in preparing for an administrative or judicial 
proceeding in which the former member's own discharge will be at issue.
    (4) The Department of Defense is committed to processing of 
complaints within the priorities and processing goals set forth in 
paragraph (d)(1)(iii) of this section. This commitment, however, is 
conditioned upon reasonable use of the complaint process under the 
following considerations. The DRBs were established for the benefit of 
former members of the Armed Forces. The complaint process can aid such 
persons most effectively if it is used by former members of the Armed 
Forces when necessary to obtain correction of their own decisional 
documents or to prepare for discharge reviews. If a substantial number 
of complaints submitted by others interferes with the ability of the 
DRBs to process applications for discharge review in a timely fashion, 
the Department of Defense will adjust the processing goals to ensure 
that the system operates to the primary advantage of applicants.
    (5) The DASD(MP&FM) is the final authority with respect to action on 
such correspondence.
    (b) The Joint Service Review Activity (JSRA). A three member JSRA 
consisting of one judge advocate from each Military Department shall 
advise the DASD(MP&FM). The operations of the JSRA shall be coordinated 
by a full-time administrative director, who shall serve as recorder 
during meetings of the JSRA. The members and the administrative director 
shall serve at the direction of the DASD(MP&FM).
    (c) Classification and control of correspondence--(1) Address of the 
JSRA. Correspondence with the OSD concerning decisional documents or 
index entries issued by the DRBs shall be addressed as follows: Joint 
Service Review Activity, OASD(MRA&L) (MP&FM), Washington, DC 20301.
    (2) Docketing. All such correspondence shall be controlled by the 
administrative director through the use of a uniform docketing 
procedure.
    (3) Classification. Correspondence shall be reviewed by the 
administrative director and categorized either as a complaint or an 
inquiry in accordance with the following:
    (i) Complaints. A complaint is any correspondence in which it is 
alleged that a decisional document issued by a DRB or SRA contains a 
specifically identified violation of the Stipulation of Dismissal, 
Settlement Agreement, or related Orders in the Urban Law case or the 
decisional document or index entry principles of this Directive. A 
complainant who alleges error with respect to a decisional document 
issued to another person is encouraged to set forth specifically the 
grounds for determining that a reasonable person familiar with the 
discharge review process

[[Page 353]]

cannot understand the basis for the decision. See paragraph (d)(1)(i)(B) 
of this section.
    (ii) Inquiries. An inquiry is any correspondence other than a 
complaint.
    (d) Review of complaints--(1) Guidance. The following guidance 
applies to review of complaints:
    (i) Standards. Complaints shall be considered under the following 
standards:
    (A) The applicant's case. A complaint by an applicant with respect 
to the decisional document issued in the applicant's own discharge 
review shall be considered under the Stipulation of Dismissal in the 
Urban Law case and other decisional document requirements applicable at 
the time the document was issued, including those contained in the 
Settlement Agreement and related Orders, subject to any limitations set 
forth therein with respect to dates of applicability. If the authority 
empowered to take corrective action has a reasonable doubt whether a 
decisional document meets applicable requirements of the Urban Law case 
or other applicable rules, the complaint shall be resolved in the 
applicant's favor.
    (B) Other cases. With respect to all other complaints, the standard 
shall be whether a reasonable person familiar with the discharge review 
process can understand the basis for the decision, including the 
disposition of issues raised by the applicant. This standard is designed 
to ensure that the complaint process is not burdened with the need to 
correct minor errors in the preparation of decisional documents.
    (ii) Use of DD Form 293. With respect to any decisional document 
issued on or after November 27, 1982, a complaint alleging failure of 
the DRB to address adequately matter not submitted on DD Form 293 or 
expressly incorporated therein will be resolved in the complainant's 
favor only if the failure to address the issue was arbitrary, 
capricious, or an abuse of discretion.
    (iii) Scope of review. When a complaint concerns a specific issue in 
the applicant's own discharge review, the complaint review process shall 
involve a review of all the evidence that was before the DRB or SRA, 
including the testimony and written submissions of the applicant, to 
determine whether the issue was submitted, and if so, whether it was 
addressed adequately with respect to the Stipulation of Dismissal, 
Settlement Agreement, or related Orders in the Urban Law case and other 
applicable provisions of this Directive. With respect to all other 
complaints about specific issues, the complaint review process may be 
based solely on the decisional document, except when the complainant 
demonstrates that facts present in the review in question raise a 
reasonable likelihood of a violation of applicable provisions of the 
Stipulation of Dismissal and a reasonable person, familiar with the 
discharge review process, could resolve the complaint only after a 
review of the evidence that was before the DRB.
    (iv) Allegations pertaining to an applicant's submission. The 
following additional requirements apply to complaints about modification 
of an applicant's issue or the failure to list or address an applicant's 
issue:
    (A) When the complaint is submitted by the applicant, and the record 
of the hearing is ambiguous on the question whether there was a meeting 
of minds between the applicant and the DRB as to modification or 
omission of the issue, the ambiguity will be resolved in favor of the 
applicant.
    (B) When the complaint is submitted by a person other than the 
applicant, it must set forth facts (other than the mere omission or 
modification of an issue) demonstrating a reasonable likelihood that the 
issue was omitted or modified without the applicant's consent.
    (C) When the complaint is rejected on the basis of the presumption 
of regularity, the response to the complaint must be set forth the 
reasons why the evidence submitted by the complainant was not sufficient 
to overcome the presumption.
    (D) With respect to decisional documents issued on or after the 
effective date of the amendments to Sec.  70.8, any change in wording of 
an applicant's issue which is effected in violation of the principles 
set forth in Sec.  70.8(a)(5)(iii) constitutes an error requiring 
corrective action. With respect to a decisional document issued before

[[Page 354]]

that date, corrective action will be taken only when there has been a 
complaint by the applicant or counsel with respect to the applicant's 
own decisional document and it is determined that the wording was 
changed or the issue was omitted without the applicant's consent.
    (E) If there are references in the decisional document to matters 
not raised by the applicant and not otherwise relied upon in the 
decision, there is no requirement under the Urban Law case that such 
matters be accompanied by a statement of findings, conclusions, or 
reasons. For example, when the DRB discusses an aspect of the service 
record not raised as an issue by the applicant, and the issue is not a 
basis for the DRB's decision, the DRB is not required to discuss the 
reasons for declining to list that aspect of the service record as an 
issue.
    (v) Guidance as to other types of complaints. The following guidance 
governs other specified types of complaints:
    (A) The Stipulation of Dismissal requires only that those facts that 
are essential to the decision be listed in the decisional document. The 
requirement for listing specified facts from the military record was not 
established until March 29, 1978, in 32 CFR part 70 Decisional documents 
issued prior to that date are sufficient if they meet the requirements 
of the Stipulation.
    (B) When an applicant submits a brief that contains material in 
support of a proposed conclusion on an issue, the DRB is not required to 
address each aspect of the supporting material in the brief. However, 
the decisional document should permit the applicant to understand the 
DRB's position on the issue and provide reviewing authorities with an 
explanation that is sufficient to permit review of the DRB's decision. 
When an applicant submits specific issues and later makes a statement 
before the DRB that contains matter in support of that issue, it is not 
necessary to list such supporting matter as a separate issue.
    (C) For all decisional documents issued before November 27, 1982, 
failure to respond to an issue raised by an applicant constitutes error 
unless it reasonably may be inferred from the record that the DRB 
response relied on one of the exceptions listed in Sec.  70.8(d)(3)(ii); 
(e)(3)(ii)(C) (3) through (4) and (e)(6)(ii)(C) (3) through (4). If the 
decisional document supports a basis for not addressing an issue raised 
by the applicant (for example, if it is apparent that resolving the 
issue in the applicant's favor would not warrant an upgrade), there is 
no requirement in the Stipulation of Dismissal that the decisional 
document explain why the DRB did not address the issue. With respect to 
decisional documents issued on or after November 27, 1982, a response 
shall be prepared in accordance with the decisional document principles 
set forth in Sec.  70.8.
    (D) When a case is reviewed upon request of an applicant, and the 
DRB upgrades the discharge to ``General,'' the DRB must provide reasons 
why it did not upgrade to ``Honorable'' unless the applicant expressly 
requests lesser relief. This requirement applies to all requests for 
corrective action submitted by an applicant with respect to his or her 
decisional document. In all other cases, this requirement applies to 
decisional documents issued on or after November 9, 1978. When the DRB 
upgrades to General, its explanation for not upgrading to Honorable may 
consist of reference to adverse matter from the applicant's military 
record. When a discharge is upgraded to General in a review on the DRB's 
own motion, there is no requirement to explain why the discharge was not 
upgraded to Honorable.
    (E) There is no requirement under the Stipulation of Dismissal to 
provide reasons for uncontested findings. The foregoing applies to 
decisional documents issued before November 27, 1982. With respect to 
decisional documents issued on or after that date, the following 
guidance applies with respect to an uncontested issue of fact that forms 
the basis for a grant or denial of a change in discharge: the decisional 
document shall list the specific source of information relied upon in 
reaching the conclusion, except when the information is listed in the 
portion of the decisional document that summarizes the service record.

[[Page 355]]

    (F) The requirements of Sec.  70.8(e)(3) (ii)(B)(2) and (e)(6) 
(ii)(B)(2) with respect to explaining use of the presumption of 
regularity apply only to decisional documents issued on or after 
November 27, 1982. When a complaint concerning a decisional document 
issued before that date addresses the adequacy of the DRB's use of the 
presumption of regularity, or words having a similar import, corrective 
action will be required only if a reasonable person familiar with the 
discharge review process can not understand the basis for relying on the 
presumption.
    (G) When the DRB balances mitigrating factors against aggravating 
factors as the reason for a conclusion, the Stipulation of Dismissal 
does not require the statement of reasons to set forth the specific 
factors that were balanced if such factors are otherwise apparent on the 
fact of the decisional document. The foregoing applies to decisional 
documents prepared before November 27, 1982. With respect to decisional 
documents prepared after that date, the statements addressing decisional 
issues in such a case will list or refer to the factors supporting the 
conclusion in accordance with Sec.  70.8(e)(6)(ii).
    (vi) Documents that were the subject of a prior complaint. The 
following applies to a complaint concerning a decisional document that 
has been the subject of prior complaints:
    (A) If the complaint concerns a decisional document that was the 
subject of a prior complaint in which action was completed, the 
complainant will be informed of the substance and disposition of the 
prior complaint, and will be further informed that no additional action 
will be taken unless the complainant within 30 days demonstrates that 
the prior disposition did not produce a decisional document that 
comports with the requirements of paragraph (d)(1)(i)(A) of this 
section.
    (B) If the complaint concerns a decisional document that is the 
subject of a pending complaint, the complainant will be informed that he 
or she will be provided with the results of the pending complaint.
    (C) These limitations do not apply to the initial complaint 
submitted on or after the effective date of the amendments to this 
section by an applicant with respect to his or her own decisional 
document.
    (2) Duties of the administrative director. The administrative 
director shall take the following actions:
    (i) Acknowledge receipt of the complaint;
    (ii) Assign a docket number and note the date of receipt; and
    (iii) Forward the complaint to the Military Department concerned, 
except that the case may be forwarded directly to the DASD (MP&FM) when 
the administrative director makes an initial determination that 
corrective action is not required.
    (3) Administrative processing. The following guidance applies to 
administrative processing of complaints:
    (i) Complaints normally shall be processed on a first-in/first-out 
basis, subject to the availability of records, pending discharge review 
actions, and the following priorities:
    (A) The first priority category consists of cases in which (1) there 
is a pending discharge review and the complainant is the applicant; and 
(2) the complainant sets forth the relevance of the complaint to the 
complainant's pending discharge review application.
    (B) The second priority category consists of requests for correction 
of the decisional document in the complainant's own discharge review 
case.
    (C) The third priority category consists of complaints submitted by 
former members of the Armed Forces (or their counsel) who state that the 
complaint is submitted to assist the former member's submission of an 
application for review.
    (D) The fourth priority category consists of other complaints in 
which the complainant demonstrates that correction of the decisional 
document will substantially enhance the ability of applicants to present 
a significant issue to the DRBs.
    (E) The fifth priority category consists of all other cases.
    (ii) Complainants who request consideration in a priority category 
shall set forth in the complaint the facts that give rise to the claim 
of placement in

[[Page 356]]

the requested category. If the complaint is relevent to a pending 
discharge review in which the complainant is applicant or counsel, the 
scheduled date of the review should be specified.
    (iii) The administrative director is responsible for monitoring 
compliance with the following processing goals:
    (A) The administrative director normally shall forward 
correspondence to the Military Department concerned within 3 days after 
the date of receipt specified in the docket number. Correspondence 
forwarded directly to the DASD(MP&FM) under paragraph (d)(2)(iii) of 
this section, normally shall be transmitted within 7 days after the date 
of receipt.
    (B) The Military Department normally shall request the necessary 
records within 5 working days after the date of receipt from the 
administrative director. The Military Department normally shall complete 
action under paragraph (d)(4) of this section within 45 days after 
receipt of all necessary records. If action by the Military Department 
is required under paragraph (d)(9) of this section, normally it shall be 
completed within 45 days after action is taken by the DASD(MP&FM).
    (C) The JSRA normally shall complete action under paragraph (d)(7) 
of this section at the first monthly meeting held during any period 
commencing 10 days after the administrative director receives the action 
of the Military Department under paragraph (d)(5) of this section.
    (D) The DASD(MP&FM) normally shall complete action under paragraph 
(d)(8) of this section within 30 days after action is taken by the JSRA 
under paragraph (d)(7) of this section or by the administrative director 
under paragraph (d)(2)(iii) of this section.
    (E) If action is not completed within the overall processing goals 
specified in this paragraph, the complainant shall be notified of the 
reason for the delay by the administrative director and shall be 
provided with an approximate date for completion of the action.
    (iv) If the complaints are submitted in any 30 day period with 
respect to more than 50 decisional documents, the administrative 
director shall adjust the processing goals in light of the number of 
complaints and discharge review applications pending before the DRBs.
    (v) At the end of each month, the administrative director shall send 
each Military Department a list of complaints, if any, in which action 
has not been completed within 60 days of the docket date. The Military 
Department shall inform the administrative director of the status of 
each case.
    (4) Review of complaints by the Military Departments. The Military 
Department shall review the complaint under the following guidance:
    (i) Rejection of complaint. If the Military Department determines 
that all the allegations contained in the complaint are not specific or 
have no merit, it shall address the allegations using the format at 
attachment 1 (Review of Complaint).
    (ii) Partial agreement. If the Military Department determines that 
some of the allegations contained in the complaint are not specific or 
have no merit and that some of the allegations contained in the 
complaint have merit, it shall address the allegations using the format 
at attachment 1 and its DRB shall take appropriate corrective action in 
accordance with paragraph (d)(4)(v) of this section.
    (iii) Full agreement. If the Military Department determines that all 
of the allegations contained in the complaint have merit, its DRB shall 
take appropriate corrective action in accordance with paragraph 
(d)(4)(v) of this section.
    (iv) Other defects. If, during the course of its review, the 
Military Department notes any other defects in the decisional document 
or index entries (under the applicable requirements of the Urban Law 
case or under this part) the DRB shall take appropriate corrective 
action under paragraph (d)(4)(v) of this section. This does not 
establish a requirement for the Military Department to review a 
complaint for any purpose other than to determine whether the 
allegations contained in the complaint are specific and have merit; 
rather, it simply provides a format for the Military Department to 
address other defects noted during the course of processing the 
complaint.

[[Page 357]]

    (v) Appropriate corrective action. The following procedures govern 
appropriate corrective action:
    (A) If a complaint concerns the decisional document in the 
complainant's own discharge review case, appropriate corrective action 
consists of amending the decisional document or providing the 
complainant with an opportunity for a new discharge review. An amended 
decisional document will be provided if the applicant requests that form 
of corrective action.
    (B) If a complaint concerns a decisional document involving an 
initial record review under the Special Discharge Review Program or the 
Pub. L. 95-126 rereview program, appropriate corrective action consists 
of (1) amending the decisional document; or (2) notifying the applicant 
and counsel, if any, of the opportunity to obtain a priority review 
using the letter providing at attachment 6. When the DRB takes 
corrective action under this provision by amending a decisional 
document, it shall notify the applicant and counsel, if any, of the 
opportunity to request a de novo review under the Special Discharge 
Review Program or under Pub. L. 95-126 rereview program, as appropriate.
    (C) When corrective action is taken with respect to a decisional 
document in cases prepared under Pub. L. 95-126 the DRB must address 
issues previously raised by the DRB or the applicant during review of 
the same case during the SDRP only insofar as required by the following 
guidance:
    (1) When the DRB bases its decision upon issues previously 
considered during the SDRP, the new decisional document under Pub. L. 
95-126 must address those issues;
    (2) If, during consideration of the case under Pub. L. 95-126 the 
applicant presents issues previously considered during the SDRP, the new 
decisional document must address those issues; and
    (3) If a decisional document concerning an initial record review 
under Pub. L. 95-126 is otherwise defective and corrective action is 
taken after a request by the applicant for a priority review in response 
to the letter at attachment 6, the new decisional document shall address 
all issues previously raised by the applicant during the SDRP.
    (D) Except for cases falling under paragraph (d)(4)(v)(B) of this 
section, if a complaint concerns a decisional document in which the 
applicant received an Honorable Discharge and the full relief requested, 
if any, with respect to the reason for discharge, appropriate corrective 
action consists of amending the decisional document.
    (E) In all other cases, appropriate corrective action consists of 
amending the decisional document or providing the applicant with the 
opportunity for a new review, except that an amended decisional document 
will be provided when the complainant expressly requests that form of 
corrective action.
    (vi) Amended decisional documents. One that reflects a determination 
by a DRB panel (or the SRA) as to what the DRB panel (or SRA) that 
prepared the defective decisional document would have entered on the 
decisional document to support its decision in this case.
    (A) The action of the amending authority does not necessarily 
reflect substantive agreement with the decision of the original DRB 
panel (or SRA) on the merits of the case.
    (B) A corrected decisional document created by amending a decisional 
document in response to a complaint will be based upon the complete 
record before the DRB (or the SRA) at the time of the original defective 
statement was issued, including, if available, a transcript, tape 
recording, videotape or other record of a hearing, if any. The new 
decisional document will be indexed under categories relevant to the new 
statements.
    (C) When an amended decisional document is required under paragraphs 
(d)(4)(v)(A) and (d)(4)(v)(D) of this section and the necessary records 
cannot be located, a notation to that effect will be made on the 
decisional document, and the applicant and counsel, if any, will be 
afforded an opportunity for a new review, and the complainant will be 
informed of the action.
    (D) When an amended decisional document is requested under paragraph 
(d)(4)(v)(C) and the necessary records cannot be located, a notation to 
that effect will be made on the decisional

[[Page 358]]

document, and the complainant will be informed that the situation 
precludes further action.
    (vii) Time limit for requesting a new review. An applicant who is 
afforded an opportunity to request a new review may do so within 45 
days.
    (viii) Interim notification. When the Military Department determines 
that some or all of the allegations contained in the complaint are not 
specific or have no merit but its DRB takes corrective action under 
paragraph (d)(4)(ii) or (d)(4)(iv) of this section, the DRB's 
notification to the applicant and counsel, if any, and to the 
complainant, if other than the applicant or counsel, should include the 
following or similar wording: ``This is in partial response to (your)/
(a) complaint to the Office of the Assistant Secretary of Defense 
(Manpower, Reserve Affairs, and Logistics) dated ____ concerning ____ 
Discharge Review Board decisional document ____. A final response to 
(your)/(the) complaint, which has been returned to the Office of the 
Assistant Secretary of Defense (Manpower, Reserve Affairs, and 
Logistics) for further review, will be provided to you in the near 
future.''
    (ix) Final notification. When the Discharge Review Board takes 
corrective action under paragraphs (d)(4)(iii) and (d)(9) of this 
section ____ its notification to the applicant and counsel, if any, and 
to the complainant, if other than the applicant or counsel, should 
include the following or similar wording: ``This is in response to 
(your)/(a) complaint to the Office of the Assistant Secretary of Defense 
(Manpower, Reserve Affairs, and Logistics) dated ____ concerning ____ 
Discharge Review Board decisional document ____.
    (5) Transmittal to the administrative director. The Military 
Department shall return the complaint to the administrative Director 
with a copy of the decisional document and, when applicable, any of the 
following documents:
    (i) The ``Review of Complaint.''
    (ii) A copy of the amendment to the decisional document and the 
accompanying transmittal letter or letters to the applicant and counsel, 
if any, and to the complainant, if other than the applicant or counsel.
    (iii) A copy of the notification to the applicant and counsel, if 
any, of the opportunity to request a new review, and a copy of the 
notification to the complainant, if other than the applicant or counsel, 
that the applicant has been authorized a new review.
    (6) Review by the administrative director. The administrative 
director shall review the complaint and accompanying documents to ensure 
the following:
    (i) If the Military Department determined that any of the 
allegations contained in the complaint are not specific or have no 
merit, the JSRA shall review the complaint and accompanying documents. 
The JSRA shall address the allegations using the format at attachment 2 
(Review of and Recommended Action on Complaint) and shall note any other 
defects in the decisional document or index entries not previously noted 
by the Military Department. This does not establish a requirement for 
the JSRA to review such complaints for any purpose other than to address 
the allegations contained in the complaint; rather, it simply provides a 
format for the JSRA to address other defects noted in the course of 
processing the complaint.
    (ii) If the Military Department determined that all of the 
allegations contained in the complaint have merit and its DRB amended 
the decisional document, the amended decisional document shall be 
subject to review by the JSRA on a sample basis each quarter using the 
format at attachment 3 (Review of any Recommendation on Amended 
Decisional Document).
    (iii) If the Military Department determined that all of the 
allegations contained in the complaint have merit and its DRB notified 
the applicant and counsel, if any, of the opportunity to request a new 
review, review of such corrective action is not required.
    (7) Review by the JSRA. The JSRA shall meet for the purpose of 
conducting the reviews required in paragraphs (d)(6)(i), (d)(6)(ii), and 
(d)(9)(iii)(A) of this section. The Administrative director shall call 
meetings once a month, if necessary, or more frequently depending upon 
the number of matters before the JSRA.

[[Page 359]]

Matters before the JSRA shall be presented to the members by the 
recorder. Each member shall have one vote in determining matters before 
the JSRA, a majority vote of the members determining all matters. 
Determinations of the JSRA shall be reported to the DASD(MP&FM) as JSRA 
recommendations using the prescribed format. If a JSRA recommendation is 
not unanimous, the minority member may prepare a separate recommendation 
for consideration by the DASD(MP&FM) using the same format. 
Alternatively, the minority member may indicate ``dissent'' next to his 
signature on the JSRA recommendation.
    (8) Review by the DASD(MP&FM). The DASD(MP&FM) shall review all 
recommendations of the JSRA and the administrative director as follows:
    (i) The DASD(MP&FM) shall review complaints using the format at 
Attachment 4 (Review of and Action on Complaint). The DASD(MP&FM) is the 
final authority in determining whether the allegations contained in a 
complaint are specific and have merit. If the DASD(MP&FM) determines 
that no further action by the Military Department is warranted, the 
complainant and the Military Department shall be so informed. If the 
DASD(MP&FM) determines that further action by the Military Department is 
required, the Military Department shall be directed to ensure that 
appropriate corrective action is taken by its DRB and the complainant 
shall be provided an appropriate interim response.
    (ii) The DASD(MP&FM) shall review amended decisional documents using 
the format at attachment 5 (Review of and Action on Amended Decisional 
Document). The DASD(MP&FM) is the final authority in determining whether 
an amended decisional document complies with applicable requirements of 
the Urban Law case and, when applicable, this Directive. If the 
DASD(MP&FM) determines that no further corrective action by the Military 
Department is warranted, the Military Department shall be so informed. 
If the DASD(MP&FM) determines that further corrective action by the 
Military Department is required, the Military Department shall be 
directed to ensure that appropriate corrective action is taken by its 
DRB.
    (iii) It is noted that any violation of applicable requirements of 
the Urban Law case is also a violation of this part. However, certain 
requirements under this part are not requirements under the Urban Law 
case. If the allegations contained in a complaint are determined to have 
merit or if an amended decisional document is determined to be defective 
on the basis of one of these additional requirements under this part the 
DASD(MP&FM) determination shall reflect this fact.
    (9) Further action by the Military Department. (i) With respect to a 
determination by the DASD (MP&FM) that further action by the Military 
Department is required, its DRB shall take appropriate corrective action 
in accordance with paragraph (d)(4) of this section.
    (ii) The Military Department shall provide the administrative 
director with the following documents when relevant to corrective action 
taken in accordance with paragraph (d)(4) of this section:
    (A) A copy of the amendment to the decisional document and the 
accompanying transmittal letter or letters to the applicant and counsel, 
if any, and to the complainant, if other than the applicant or counsel.
    (B) A copy of the notification to the applicant and counsel, if any, 
of the opportunity to request a new review, and a copy of the 
notification to the complainant, if other than the applicant or counsel, 
that the applicant has been authorized a new review.
    (iii) The administrative director shall review the documents 
relevant to corrective action taken in accordance with paragraph (d)(4) 
of this section, and ensure the following:
    (A) If the DRB amended the decisional document, the amended 
decisional document shall be subject to review by the JSRA on a sample 
basis each quarter using the format at attachment 3 (Review of and 
Recommended Action on Amended Decisional Document).
    (B) If the DRB notified the applicant and counsel, if any, of the 
opportunity to request a new review, review of such corrective action is 
not required.

[[Page 360]]

    (10) Documents required by the JSRA or DASD (MP&FM). Upon request, 
the Military Department shall provide the administrative director with 
other documents required by the JSRA or the DASD (MP&FM) in the conduct 
of their reviews.
    (e) Responses to inquiries. The following procedures shall be used 
in processing inquiries:
    (1) The administrative director shall assign a docket number to the 
inquiry.
    (2) The administrative director shall forward the inquiry to the 
Military Department concerned.
    (3) The Military Department shall prepare a response to the inquiry 
and provide the administrative director with a copy of the response.
    (4) The Military Department's response shall include the following 
or similar wording: ``This is in response to your inquiry to the Office 
of the Assistant Secretary of Defense (Manpower, Reserve Affairs, and 
Logistics) dated ____ concerning ____.
    (f) Indexing. The DRB concerned shall reindex all amended decisional 
documents and shall provide copies of the amendments to the decisional 
documents to the Armed Forces Discharge Review/Correction Board Reading 
Room.
    (g) Disposition of documents. The administrative director is 
responsible for the disposition of all Military Department, DRB, JSRA, 
and DASD (MP&FM) documents relevant to processing complaints and 
inquiries.
    (h) Referral by the General Counsel, Department of Defense. The 
Stipulation of Dismissal permits Urban Law plaintiffs to submit 
complaints to the General Counsel, DoD, for comment. The General 
Counsel, DoD, may refer such complaints to the Military Department 
concerned or to the JSRA for initial comment.
    (i) Decisional document and index entry principles. The DASD (MP&FM) 
shall identify significant principles concerning the preparation of 
decisional documents and index entries as derived from decisions under 
this section and other opinions of the Office of General Counsel, DoD. 
This review shall be completed not later than October 1 and April 1 of 
each year, or more frequently if deemed appropriate by the DASD (MP&FM). 
The significant principles identified in the review shall be coordinated 
as proposed as amendments to the sections of this part.
    (j) Implementation of amendments. The following governs the 
processing of any correspondence that is docketed prior to the effective 
date of amendments to this section except as otherwise provided in such 
amendments:
    (1) Any further action on the correspondence shall be taken in 
accordance with the amendments; and
    (2) No revision of any action taken prior to the effective date of 
such amendments is required.

                    Attachment 1--Review of Complaint

                          Military Department:

                       Decisional Document Number:

                          Name of Complainant:

                             Docket Number:

                          Date of this Review:

    1. Specific allegation(s) noted:
    2. With respect in support of the conclusion, enter the following 
information:
    a. Conclusion whether corrective action is required.
    b. Reasons in support of the conclusion, including findings of fact 
upon which the conclusion is based.
    3. Other defects noted in the decisional document or index entries:
(Authentication)

               Attachment 2--Joint Service Review Activity

Office of the Assistant Secretary of Defense (Manpower, Reserve Affairs, 
                             and Logistics)

               Review by the Joint Service Review Activity

                          Military Department:

                       Decisional Document Number:

                          Name of Complainant:

                           Name of Applicant:

                             Docket Number:

                          Date of this Review:

    1. The Military Department's ``Review of Complaint'' is attached as 
enclosure 1.
    2. Specific Allegations: See part 1 of Military Department's 
``Review of Complaint'' (enclosure 1).
    3. Specific allegation(s) not noted by the Military Department:
    4. With respect to each allegation, enter the following information:

[[Page 361]]

    a. Conclusion as to whether corrective action is required.
    b. Reasons in support of the conclusion, including findings of fact 
upon which conclusion is based.

    Note. If JSRA agrees with the Military Departments, the JSRA may 
respond by entering a statement of adoption.

    5. Other defects in the decisional document or index entries not 
noted by the Military Departments:
    6. Recommendation:
    [ ] The complainant and the Military Department should be informed 
that no further action on the complaint is warranted.
    [ ] The Military Department should be directed to take corrective 
action consistent with the above comments.

Army Member, JSRA
Air Force Member, JSRA
Navy Member, JSRA
Recorder, JSRA

               Attachment 3--Joint Service Review Activity

Office of the Assistant Secretary of Defense (Manpower, Reserve Affairs, 
                             and Logistics)

        Review of Amended Decisional Document (Quarterly Review)

                          Military Department:

                       Decisional Document Number:

                          Name of Complainant:

                           Name of Applicant:

                             Docket Number:

                          Date of this Review:

                             Recommendation:

    [ ] The amended decisional document complies with the requirements 
of the Stipulation of Dismissal and, when applicable, DoD Directive 
1332.28. The Military Department should be informed that no further 
corrective action is warranted.
    [ ] The amended decisional document does not comply with the 
Stipulation of Dismissal or DoD Directive 1332.28 as noted herein. The 
Military Department should be directed to ensure that corrective action 
consistent with the defects noted is taken by its Discharge Review 
Board.

Army Member, JSRA
Air Force Member, JSRA
Navy Member, JSRA
Recorder, JSRA

------------------------------------------------------------------------
   Yes       No        NA             Item                 Source
------------------------------------------------------------------------
[ballot]  [ballot]  [ballot]  1. Date of discharge  1. DoD Directive
                                                     1332.28, enclosure
                                                     3, subsection H.1.;
                                                     Stipulation (Jan.
                                                     31, 1977) para.
                                                     5.A.(1)(d)(i)
                                                     (reference (1)).
[ballot]  [ballot]  [ballot]    a. Date of
                                 discharge.
[ballot]  [ballot]  [ballot]    b. Character of
                                 discharge.
[ballot]  [ballot]  [ballot]    c. Reason for
                                 discharge.
[ballot]  [ballot]  [ballot]    d. Specific
                                 regulatory
                                 authority under
                                 which discharge
                                 was issued.
[ballot]  [ballot]  [ballot]  2. Service data.      2. DoD Directive
                               (This requirement     1332.28, enclosure
                               applies only in       3, subsection H.1.;
                               conjunction with      Annex B, (June __,
                               Military Department   1982) para. 2-2
                               Implementation of     (reference (1)).
                               General Counsel,
                               DoD, letter dated
                               July 20, 1977, or
                               to discharge
                               reviews conducted
                               on or after March
                               29, 1978.)
[ballot]  [ballot]  [ballot]    a. Date of
                                 enlistment.
[ballot]  [ballot]  [ballot]    b. Period of
                                 enlistment.
[ballot]  [ballot]  [ballot]    c. Age at
                                 enlistment.
[ballot]  [ballot]  [ballot]    d. Length of
                                 service.
[ballot]  [ballot]  [ballot]    e. Periods of
                                 unauthorized
                                 absence*.
[ballot]  [ballot]  [ballot]    f. Conduct and
                                 efficiency
                                 ratings
                                 (numerical and
                                 narrative)*.
[ballot]  [ballot]  [ballot]    g. Highest rank
                                 achieved.
[ballot]  [ballot]  [ballot]    h. Awards and
                                 decorations*.
[ballot]  [ballot]  [ballot]    i. Educational
                                 level.
[ballot]  [ballot]  [ballot]    j. Aptitude test
                                 scores.
[ballot]  [ballot]  [ballot]    k. Art. 15s
                                 (including nature
                                 and date of
                                 offense or
                                 punishment)*.
[ballot]  [ballot]  [ballot]    l. Convictions by
                                 court-martial*.
[ballot]  [ballot]  [ballot]    m. Prior military
                                 service and type
                                 of discharge(s)
                                 received*.

[[Page 362]]

 
[ballot]  [ballot]  [ballot]  3. Reference to       3. DoD Directive
                               materials presented   1332.28, enclosure
                               by applicant. (This   3, subsection H.2.;
                               requirement applies   H.3.
                               only to discharge
                               reviews conducted
                               on or after March
                               29, 1978.)
[ballot]  [ballot]  [ballot]    a. Written brief*.
[ballot]  [ballot]  [ballot]    b. Documentary
                                 evidence*.
[ballot]  [ballot]  [ballot]    c. Testimony*.....
[ballot]  [ballot]  [ballot]  4. Items submitted    4. DoD Directive
                               as issues. (See       1332.28, enclosure
                               issues worksheet).    3, subsection H.6.
[ballot]  [ballot]  [ballot]  5. Conclusions. The   5. Dod Directive
                               decisional document   1332.28, enclosure
                               must indicate         3, subsection H.5.;
                               clearly the DRB's     Stipulation (Jan.
                               conclusion            31, 1977),
                               concerning:           paragraph
                                                     5.A.(1)(d)(iv)
                                                     (reference (1)).
[ballot]  [ballot]  [ballot]    a. Determination
                                 of whether a
                                 discharge
                                 upgraded under
                                 SDRP would have
                                 been upgraded
                                 under DoD
                                 Directive
                                 1332.28. (This
                                 applies only to
                                 mandatory reviews
                                 under P.L. 95-126
                                 or Special
                                 Discharge Review
                                 Program (SDRP).
[ballot]  [ballot]  [ballot]    b. Character of
                                 discharge, when
                                 applicable \1\.
[ballot]  [ballot]  [ballot]    c. Reason for
                                 discharge, when
                                 applicable \2\.
[ballot]  [ballot]  [ballot]  6. Reasons for        6. DoD Directive
                               conclusions. The      1332.28, enclosure
                               decisional document   3, subsection H.7.,
                               must list and         H.8.; Stipulation
                               discuss the items     (Jan. 31, 1977)
                               submitted as issues   para. 5.A.(1)(d)(v)
                               by the applicant;     (reference (1)).
                               and list and
                               discuss the
                               decisional issues
                               providing the basis
                               for the DRB's
                               conclusion
                               concerning:
[ballot]  [ballot]  [ballot]    a. Whether a
                                 discharge
                                 upgraded under
                                 the SDRP would
                                 have been
                                 upgraded under
                                 DoD Directive
                                 1332.28. (This
                                 applies only to
                                 mandatory
                                 rereviews under
                                 P.L. 95-126 or
                                 SDRP reviews.).
[ballot]  [ballot]  [ballot]    b. Character of
                                 discharge, where
                                 applicable \1\.
[ballot]  [ballot]  [ballot]    c. Reason for
                                 discharge, where
                                 applicable \2\.
[ballot]  [ballot]  [ballot]  7. Advisory           7. DoD Directive
                               opinions*.            1332.28, enclosure
                                                     3, subsection
                                                     H.12., Stipulation
                                                     (Jan. 31, 1977)
                                                     para. 5.A.(1)(f)
                                                     (reference (1)).
[ballot]  [ballot]  [ballot]  8. Recommendation of  8. DoD Directive
                               DRB President.        1332.28, enclosure
                                                     3, subsection
                                                     H.12., Stipulation
                                                     (Jan. 31, 1977)
                                                     para. 5.A.(1)(g)
                                                     (reference (1)).
[ballot]  [ballot]  [ballot]  9. A record of        9. DoD Directive
                               voting.               1332.28, enclosure
                                                     3, subsection
                                                     H.13., Stipulation
                                                     (Jan. 31, 1977)
                                                     para. 5.A.(3)
                                                     (reference (1)).
[ballot]  [ballot]  [ballot]  10. Indexing of       10. DoD Directive
                               decisional document.  1332.28, enclosure
                                                     3, subsection
                                                     H.14., Stipulation
                                                     (Jan. 31, 1977)
                                                     para. 5.A.(5)(a)
                                                     (reference (1)).
[ballot]  [ballot]  [ballot]  11. Authentication    11. DoD Directive
                               of decisional         1332.28, enclosure
                               document. (This       3, subsection H.15.
                               requirement applies
                               only to discharge
                               reviews conducted
                               on or after March
                               29, 1978.)
[ballot]  [ballot]  [ballot]  12. Other...........  12. As appropriate.
------------------------------------------------------------------------
                   Explanation of items marked ``No.''
------------------------------------------------------------------------
 Key:
Yes: The decisional document meets the requirements of the Stipulation
  of Dismissal and, when applicable, DoD Directive 1332.28.
No: The decisional document does not meet the requirements of the
  Stipulation of Dismissal or DoD Directive 1332.28.
NA: Not applicable.
 
*Items marked by an asterisk do not necessarily pertain to each review.
  If the decisional document contains no reference to such an item, NA
  shall be indicated. When there is a specific complaint with respect to
  an item, the underlying discharge review record shall be examined to
  address the complaint.
\1\ In this instance ``when applicable'' means all reviews except:
a. Mandatory rereviews under P.L. 95-126 or SDRP reviews.
b. Reviews in which the applicant requested only a change in the reason
  for discharge and the DRB did not raise the character of discharge as
  a decisional issue.
\2\ In this instance ``when applicable'' means all reviews in which:
a. The applicant requested a change in the reason for discharge.
b. The DRB raised the reason for discharge as a decisional issue.
c. A change in the reason for discharge is a necessary component of a
  change in the character of discharge.


[[Page 363]]


                   Attachment 4--Issues Worksheets \1\
------------------------------------------------------------------------
                                                             Corrective
                                   Listed       Addressed      action
                                                              required
------------------------------------------------------------------------
A. Decisional issues providing
 a basis for the conclusion
 regarding a change in the
 character of or reason for
 discharge. (DoD Directive
 1332.28, enclosure 3,
 subsection D.2):
    1.                          [ballot]      [ballot]      [ballot]
    2.                          [ballot]      [ballot]      [ballot]
    3.                          [ballot]      [ballot]      [ballot]
B. Items submitted as issues
 by the applicant that are not
 identified as decisional
 issues. (DoD Directive
 1332.28, enclosure 3,
 subsection D.3):
    1.                          [ballot]      [ballot]      [ballot]
    2.                          [ballot]      [ballot]      [ballot]
    3.                          [ballot]      [ballot]      [ballot]
C. Remarks:
 
------------------------------------------------------------------------
\1\ This review may be made based upon the decisional document without
  reference to the underlying discharge review record except as follows:
  if there is an allegation that a specific contention made by the
  applicant to the DRB was not addressed by the DRB. In such a case, the
  complaint review process shall involve a review of all the evidence
  that was before the DRB, including the testimony and written
  submissions of the applicant, to determine whether the contention was
  made, and if so, whether it was addressed adequately with respect to
  the Stipulation of Dismissal and, when applicable, DoD Directive
  1332.28.
This review may be based upon the decisional document without reference
  to the regulation governing the discharge in question except as
  follows: if there is a specific complaint that the DRB failed to
  address a specific factor required by applicable regulations to be
  considered for determination of the character of and reason for the
  discharge in question [where such factors are a basis for denial of
  any of the relief requested by the applicant]. (The material in
  brackets pertains only to discharge reviews conducted on or before
  March 28, 1978.)

 Attachment 5--Office of the Assistant Secretary of Defense (Manpower, 
                     Reserve Affairs, and Logistics)

                    Review of Complaint (DASD(MP&FM))

                          Military Department:

                       Decisional Document Number:

                          Name of Complainant:

                           Name of Applicant:

                             Docket Number:

                          Date of this Review:

    1. Each allegation is addressed as follows:
    a. Allegation.
    b. Conclusion whether corrective action is required.
    c. Reasons in support of the conclusion, including findngs of fact 
upon which the conclusion is based.

    Note: If the DASD(MP&FM) agrees with the JSRA, he may respond by 
entering a statement of adoption.

    2. Other defects noted in the decisional document or index entries:
    3. Determinations:
    [ ] No further action on the complaint is warranted.
    [ ] Corrective action consistent with the above comments is 
required.

Deputy Assistant Secretary of Defense
(Military Personnel & Force Management)

 Attachment 6--Office of the Assistant Secretary of Defense (Manpower, 
                     Reserve Affairs, and Logistics)

          Review of Amended Decisional Document (DASD (MP&FM))

                          Military Department:

                       Decisional Document Number:

                          Name of Complainant:

                           Name of Applicant:

                             Docket Number:

                          Date of this Review:

                             Recommendation:

    [ ] The amended decisional document complies with the requirements 
of the Stipulation of Dismissal and, when applicable, DoD Directive 
1332.28. No further corrective action is warranted.
    [ ] The amended decisional document does not comply with the 
Stipulation of Dismissal or DoD Directive 1332.28 as noted herein. 
Further corrective action is required consistent with the defects noted 
in the attachment.

Deputy Assistant Secretary of Defense
(Military Personnel & Force Management)

Remarks:

                              Attachment 7

Dear ___:
    It has been determined that the decisional document issued in your 
case by the (Army) (Navy) (Air Force) Discharge Review Board

[[Page 364]]

during the (Special Discharge Review Program) (rereview program under 
Pub. L. No. 95-126) should be reissued to improve the clarity of the 
statement of findings, conclusions, and reasons for the decision in your 
case.
    In order to obtain a new decisional document you may elect one of 
the following options to receive a new review under the (Special 
Discharge Review Program) (rereview program mandated by Pub. L. No. 95-
126):
    1. You may request a new review, including a personal appearance 
hearing if you so desire, by responding on or before the suspense date 
noted at the top of this letter. Taking this action will provide you 
with a priority review before all other classes of cases.
    2. You may request correction of the original decisional document 
issued to you by responding on or before the suspense date noted at the 
top of this letter. After you receive a corrected decisional document, 
you will be entitled to request a new review, including a personal 
appearance hearing if you so desire. If you request correction of the 
original decisional document, you will not receive priority processing 
in terms of correcting your decisional document or providing you with a 
new review; instead, your case will be handled in accordance with 
standard processing procedures, which may mean a delay of several months 
or more.
    If you do not respond by the suspense date noted at the top of this 
letter, no action will be taken. If you subsequently submit a complaint 
about this decisional document, it will be processed in accordance with 
standard procedures.
    To ensure prompt and accurate processing of your request, please 
fill out the form below, cut it off at the dotted line, and return it to 
the Discharge Review Board of the Military Department in which you 
served at the address listed at the top of this letter.
Check only one:
    [ ] I request a new review of my case on a priority basis. I am 
requesting this priority review rather than requesting correction of the 
decisional document previously issued to me. I have enclosed DD Form 293 
as an application for my new review.
    [ ] I request correction of the decisional document previously 
issued to me. I understand that this does not entitle me to priority 
action in correcting my decisional document. I also understand that I 
will be able to obtain a further review of my case upon my request after 
receiving the corrected decisional document, but that such a review will 
not be held on a priority basis.
Dates___________________________________________________________________
Signatures______________________________________________________________
Printed Name and Address
________________________________________________________________________

[47 FR 37785, Aug. 26, 1982, as amended at 48 FR 9856, Mar. 9, 1983]



Sec.  70.11  DoD semiannual report.

    (a) Semiannual reports will be submitted by the 20th of April and 
October for the preceding 6-month reporting period (October 1 through 
March 31 and April 1 through September 30).
    (b) The reporting period will be inclusive from the first through 
the last days of each reporting period.
    (c) The report will contain four parts:
    (1) Part 1. Regular Cases.
    (2) Part 2. Reconsideration of President Ford's Memorandum of 
January 19, 1977, and Special Discharge Review Program Cases.
    (3) Part 3. Cases Heard under Pub. L. 95-126 by waiver of 10 U.S.C. 
1553, with regard to the statute of limitations.
    (4) Part 4. Total Cases Heard.

                                                Semiannual DRB Report--RCS DD-M(SA) 1489; Summary of Statistics for Discharge Review Board (FY )
                                                                                         [Sample format]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                 Nonpersonal appearance                                             Personal appearance                                        Total
                               -----------------------------------------------------------------------------------------------------------------------------------------------------------------
         Name of board                                                                                                                                                                 Percent
                                     Applied        Number approved    Percent approved       Applied        Number approved   Percent approved       Applied       Number approved    approved
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                .................  .................  .................  .................  .................  ................  ................  ................  ...........
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
 Identify numbers separately for traveling panels, regional panels, or hearing examiners, as appropriate.
 Use of additional footnotes to clarify or amplify the statistics being reported is encouraged.



PART 74_APPOINTMENT OF DOCTORS OF OSTEOPATHY AS MEDICAL OFFICERS--Table of Contents



Sec.
74.1 Purpose.
74.2 Policy.

    Authority: 10 U.S.C. 3294, 5574, 8294.

    Source: 25 FR 14370, Dec. 31, 1960, unless otherwise noted.

[[Page 365]]



Sec.  74.1  Purpose.

    The purpose of this part is to implement the provisions of Pub. L. 
763, 84th Congress (70 Stat. 608), relating to the appointment of 
doctors of osteopathy as medical officers.



Sec.  74.2  Policy.

    In the interest of obtaining maximum uniformity, the following 
criteria are established for the appointment of doctors of osteopathy as 
medical officers:
    (a) To be eligible for appointment as Medical Corps officers in the 
Army and Navy or designated as medical officers in the Air Force, a 
doctor of osteopathy must:
    (1) Be a citizen of the United States;
    (2) Be a graduate of a college of osteopathy whose graduates are 
eligible for licensure to practice medicine or surgery in a majority of 
the States, and be licensed to practice medicine, surgery, or osteopathy 
in one of the States or Territories of the United States or in the 
District of Columbia;
    (3) Possess such qualifications as the Secretary concerned may 
prescribe for his service, after considering the recommendations for 
such appointment by the Surgeon General of the Army or the Air Force or 
the Chief of the Bureau of Medicine and Surgery of the Navy;
    (4) Have completed a minimum of three years college work prior to 
entrance into a college of osteopathy;
    (5) Have completed a four-year course with a degree of Doctor of 
Osteopathy from a school of osteopathy approved by the American 
Osteopathic Association; and
    (6) Have had subsequent to graduation from an approved school of 
osteopathy 12 months or more of intern or residency training approved by 
the American Osteopathic Association.
    (b) [Reserved]



PART 75_EXCEPTIONAL FAMILY MEMBER PROGRAM (EFMP)--Table of Contents



                            Subpart A_General

Sec.
75.1 Purpose.
75.2 Applicability.
75.3 Definitions.

                            Subpart B_Policy

75.4 Policy.

                          Subpart C_Procedures

75.5 DoD criteria for identifying family members with special needs.
75.6 Civilian employees on overseas assignment.

    Authority: 10 U.S.C. 1781c.

    Source: 84 FR 3690, Feb. 13, 2019, unless otherwise noted.



                            Subpart A_General



Sec.  75.1  Purpose.

    This part:
    (a) Provides guidance and prescribes procedures for:
    (1) Identifying a family member with special needs who is eligible 
for services as defined in this part.
    (2) Processing DoD civilian employees who have family members with 
special needs for an overseas assignment.
    (b) Does not create any rights or remedies in addition to those 
already otherwise existing in law or regulation, and may not be relied 
upon by any person, organization, or other entity to allege a denial of 
such rights or remedies.



Sec.  75.2  Applicability.

    This part applies to:
    (a) Service members who have family members with special needs as 
described in this part.
    (b) All DoD civilian employees in overseas locations and selectees 
for overseas positions who have family members with special needs as 
described in this part.



Sec.  75.3  Definitions.

    Unless otherwise noted, these terms and their definitions are for 
the purpose of this part.
    Assistive technology device. Any item, piece of equipment, or 
product system, whether acquired commercially off the shelf modified, or 
customized, that is used to increase, maintain, or improve functional 
capabilities of individuals with disabilities.
    Assistive technology service. Any service that directly assists an 
individual

[[Page 366]]

with a disability in the selection, acquisition, or use of an assistive 
technology device.
    CONUS. The 48 contiguous states of the United States, excluding 
Alaska, Hawaii, and U.S. territories or other overseas insular areas of 
the United States.
    Early Intervention Services (EIS). Developmental services for 
infants and toddlers with disabilities, as defined in 32 CFR part 57, 
that are provided under the supervision of a Military Department, 
including evaluation, IFSP development and revision, and service 
coordination provided at no cost to the child's parents.
    Evaluations. Medical, psychological, and educational assessments 
required to define a medical or educational condition suspected after a 
screening procedure.
    Family member. A dependent as defined by 37 U.S.C. 401, to include a 
spouse and certain children of a Service member, who is eligible to 
receive a DoD identification card, medical care in a DoD Military 
Treatment Facility, and command sponsorship or DoD-sponsored travel. To 
the extent authorized by law and in accordance with Service implementing 
guidance, the term may also include other nondependent family members of 
a Service member. For the purposes of Sec.  75.6 of this part only, this 
definition also includes the dependents of a civilian employee on an 
overseas assignment, or being considered for an overseas assignment, who 
are, or will be, eligible to receive a DoD identification card during 
that overseas assignment. To the extent authorized by law and in 
accordance with Service implementing guidance, the term may also include 
other nondependent family members of a civilian employee on an overseas 
assignment, or being considered for an overseas assignment.
    Family member travel. Refers to family member permanent change of 
station authorization that is requested by a Service member or civilian 
employee for the purposes of Sec.  75.6 of this part only.
    Family support services. Encompasses the non-clinical case 
management delivery of information and referral for families with 
special needs, including the development and maintenance of an 
individualized Services Plan (SP).
    Individualized Education Program (IEP). A written document that is 
developed, reviewed, and revised at a meeting of the Case Study 
Committee, identifying the required components of the individualized 
education program for a child with a disability.
    Individualized Family Service Plan (IFSP). A written document 
identifying the specially designed services for an infant or toddler 
with a disability and the family of such infant or toddler.
    Overseas. Any location outside of the 48 contiguous United States 
including Alaska, Hawaii, and all U.S. Territories or other overseas 
insular areas of the United States.
    Related services. Transportation and such developmental, corrective, 
and other supportive services required to assist a child with a 
disability to benefit from special education under the child's IEP. The 
term includes services or consults in the areas of speech-language 
pathology, audiology services, interpreting services, psychological 
services, physical and occupational therapy, recreation (including 
therapeutic recreation), social work services, school nurse services 
designed to enable a child with a disability to receive a Free 
Appropriate Public Education (FAPE) as described in the child's IEP, 
early identification and assessment of disabilities in children, 
counseling services (including rehabilitation counseling), orientation 
and mobility services, and medical services for diagnostic or evaluative 
purposes.
    Related services assigned to the military medical departments 
overseas. Services provided by Educational and Developmental 
Intervention Services to Department of Defense Dependent School students 
for the development or implementation of an IEP, which are necessary for 
the student to benefit from special education. Those services may 
include medical services for diagnostic or evaluative purposes, social 
work, community health nursing, nutrition, occupational therapy, 
physical therapy, audiology, ophthalmology, and psychological testing 
and therapy.
    Responsible military department. The Military Department responsible 
for providing EIS or related services in the

[[Page 367]]

geographic areas assigned under 32 CFR part 57.
    Special education. Specially designed instruction (including 
instruction in physical education) provided at no cost to the parent to 
meet the unique needs of a child with a disability, conducted in the 
classroom, in the home, in hospitals and institutions, and in other 
settings.
    Special needs. Includes special medical and educational needs of 
family members who meet the DoD criteria for enrollment in the EFMP as 
found in Sec.  75.5 of this part.
    Specialty care. Specialized health care required for health 
maintenance and provided by a physician whose training focused primarily 
in a specific field, such as neurology, cardiology, rheumatology, 
dermatology, oncology, orthopedics, or ophthalmology.



                            Subpart B_Policy



Sec.  75.4  Policy.

    It is DoD policy that:
    (a) The EFMP identifies family members with special needs, enrolls 
sponsors in the program, and participates in the coordination of 
assignments for active duty Service members in order for the special 
needs of family members to be considered during the assignment process.
    (b) Active duty Service members whose families include a member with 
special needs must enroll in the EFMP to ensure their family member's 
special needs are considered during the assignment process.
    (c) The special needs of a civilian employee's family member will 
not be considered in the selection of a civilian for an overseas 
position.



                          Subpart C_Procedures



Sec.  75.5  DoD criteria for identifying family members with special needs.

    (a) Special medical needs. Individuals who meet one or more of the 
criteria in this section will be identified as a family member with 
special medical needs:
    (1) Potentially life-threatening conditions or chronic (duration of 
6 months or longer) medical or physical conditions requiring follow-up 
care from a primary care manager (to include pediatricians) more than 
once a year or specialty care.
    (2) Current and chronic (duration of 6 months or longer) mental 
health conditions (such as bi-polar, conduct, major affective, thought, 
or personality disorders); inpatient or intensive (greater than one 
visit monthly for more than 6 months) outpatient mental health service 
within the last 5 years; or intensive mental health services required at 
the present time. This includes medical care from any provider, 
including a primary care manager.
    (3) A diagnosis of asthma or other respiratory-related diagnosis 
with chronic recurring symptoms that involves one or more of the 
following:
    (i) Scheduled use of inhaled or oral anti-inflammatory agents or 
bronchodilators.
    (ii) History of emergency room use or clinic visits for acute asthma 
exacerbations or other respiratory-related diagnosis within the last 
year.
    (iii) History of one or more hospitalizations for asthma, or other 
respiratory-related diagnosis within the past 5 years.
    (4) A diagnosis of attention deficit disorder or attention deficit 
hyperactivity disorder that involves one or more of the following:
    (i) Includes a co-morbid psychological diagnosis.
    (ii) Requires multiple medications, psycho-pharmaceuticals (other 
than stimulants) or does not respond to normal doses of medication.
    (iii) Requires management and treatment by a mental health provider 
(e.g., psychiatrist, psychologist, social worker or psychiatric nurse 
practitioner).
    (iv) Requires the involvement of a specialty consultant, other than 
a primary care manager, more than twice a year on a chronic basis.
    (v) Requires modifications of the educational curriculum or the use 
of behavioral management staff.
    (5) A chronic condition that requires:
    (i) Adaptive equipment (such as an apnea home monitor, home 
nebulizer, wheelchair, custom-fit splints/braces/orthotics (not over-
the-counter), hearing aids, home oxygen therapy, home ventilator, etc.).

[[Page 368]]

    (ii) Assistive technology devices (such as communication devices) or 
services.
    (iii) Environmental or architectural considerations (such as 
medically required limited numbers of steps, wheelchair accessibility, 
or housing modifications and air conditioning).
    (b) Special educational needs. Family members of active duty Service 
members (regardless of location) and civilian employees appointed to an 
overseas location eligible for enrollment in a DoDEA school on a space-
required basis will be identified as having special educational needs if 
they have, or are found eligible for, either an IFSP or an IEP under 32 
CFR part 57.



Sec.  75.6  Civilian employees on overseas assignment.

    (a) Vocabulary. Section 75.3 provides definitions of ``family 
member'' that apply only to this section.
    (b) Employee rights. (1) The DoD Components must select civilian 
employees for specific positions based on job requirement and merit 
factors in accordance with 5 U.S.C. 2302, and 29 U.S.C. 791 through 
794d. Selection for an overseas position must not be influenced by the 
special needs of a civilian employee's family member(s), or any other 
prohibited factor.
    (2) The civilian employee or selectee will be given comprehensive 
medical, dental, and educational information about the overseas 
community where the position is located to help the employee make an 
informed choice about accepting the position.
    (3) Refer to the Joint Travel Regulations (available at https://
www.defensetravel.dod.mil/ Docs/perdiem/JTR.pdf) for PCS travel and 
transportation allowances for eligible civilian employees and their 
family members.
    (4) Civilian employees or selectees assigned to positions overseas 
are generally responsible for obtaining medical and dental services and 
paying for such services, except services provided pursuant to 32 CFR 
part 57. Their family members may have access to the MHS on a space-
available, reimbursable basis only, except for services pursuant to 32 
CFR part 57.
    (i) DoDEA and the Military Medical Department responsible for the 
provision of related services to support DoDEA at the duty station are 
required to evaluate school-aged children (ages 3 through 21 years, 
inclusive) eligible for enrollment in a DoDEA school on a space- 
required basis and provide them with the special education and related 
services included in their IEPs in accordance with 32 CFR part 57.
    (ii) The Military Departments are required to provide infants and 
toddlers (from birth up to 3 years of age, inclusive) eligible for 
enrollment in a DoDEA school on a space-required basis with the EIS 
identified in the IFSPs in accordance with 32 CFR part 57.
    (c) Processing a civilian employee for an overseas position. (1) 
When recruiting for an overseas position, DoD human resources 
representatives will:
    (i) Provide information on the requirements of this part related to 
civilian employees or applicants for employment, including employee 
rights provided in DoD Instruction 1315.19.
    (ii) Provide information on the availability of medical and 
educational services, including a point of contact for the applicant to 
ask about specific special needs. This information must be contained in 
any document used for recruitment for overseas positions.
    (iii) Include the following statements in recruitment information:
    (A) If an employee brings a child to an overseas location and that 
child is entitled to attend a DoD school on a space-required basis in 
accordance with DoDEA Regulation 1342.13 (available at http://
www.dodea.edu/aboutDoDEA/ upload/1342_13.pdf), DoDEA and the Military 
Department responsible for providing related services will ensure that 
the child, if eligible for special education, receives a free 
appropriate public education, including special education and related 
services pursuant to 32 CFR part 57.
    (B) If an employee brings an infant or toddler (up to 3 years of 
age) to an overseas location, and that infant or toddler, but for the 
child's age, is entitled to attend the DoDEA on a space-required basis 
in accordance with DoDEA Regulation 1342.13, then the Military 
Department responsible for EIS will provide the infant or toddler with 
the required EIS in accordance

[[Page 369]]

with the eligibility criteria consistent with 32 CFR part 57.
    (C) If an employee brings a family member to an overseas location 
who requires medical or dental care, then the employee will be 
responsible for obtaining and paying for such care. Access for civilian 
employees and their families to military medical and dental treatment 
facilities is on a space-available and reimbursable basis only.
    (2) When the gaining human resources representatives process a 
civilian for an overseas position where family member travel is 
authorized at government expense, then they must ask the selectee to 
determine whether a family member has special needs, using the criteria 
provided in Sec.  75.5 of this part. All selectees must be asked only 
after they have been notified of their selection in accordance with 29 
U.S.C. 791 through 794d, and 29 CFR 1630.14. If the selectee indicates 
that a family member has special needs:
    (i) The DoD civilian human resources representatives may not coerce 
or pressure the selectee to decline the job offer in light of that 
information.
    (ii) The selectee may voluntarily forward to the civilian human 
resources representative completed DD Forms 2792 or 2792-1 for each 
family member with special needs to provide information on the 
availability of medical and educational services. DD Form 2792-1 must be 
submitted if the selectee intends to enroll his or her child in a school 
funded by the DoD or a school in which DoD is responsible for paying the 
tuition for a space-required family member.
    (3) The gaining human resources activity will coordinate with the 
appropriate military medical and educational personnel on availability 
of services and inform the selectee in writing of the availability of 
medical, educational, and early intervention resources and services to 
allow the civilian employee to make an informed choice whether to accept 
the position. The notice will include:
    (i) Comprehensive medical, dental, and educational information on 
the overseas community where the position is located.
    (ii) A description of the local DoDEA facility and programs, 
specifying the programs for children with special education needs.
    (iii) A description of the local EIS available for infants and 
toddlers with disabilities.
    (iv) A statement indicating that the lack of EIS or special 
education resources (including related services assigned to the military 
medical departments) cannot serve as a basis for the denial of family 
travel at government expense and required services will be provided even 
if a local program is not currently established in accordance with 32 
CFR part 57.
    (d) Use of EFMP Family Support Services. Civilian employees may 
utilize EFMP family support services on a space-available basis.



PART 79_CHILD DEVELOPMENT PROGRAMS (CDPs)--Table of Contents



Sec.
79.1 Purpose.
79.2 Applicability.
79.3 Definitions.
79.4 Policy.
79.5 Responsibilities.
79.6 Procedures.

    Authority: 10 U.S.C. 1783, 1791 through 1800, 2809, and 2812.

    Source: 79 FR 28409, May 16, 2014, unless otherwise noted.



Sec.  79.1  Purpose.

    This part:
    (a) Reissues DoD Instruction (DoDI) 6060.2 in accordance with the 
authority in DoD Directive (DoDD) 5124.02, ``Under Secretary of Defense 
for Personnel and Readiness (USD(P&R))'' (available at http://
www.dtic.mil/whs/ directives/corres/pdf/ 512402p.pdf) and DoD 
Instruction 1342.22, ``Military Family Readiness'' (available at http://
www.dtic.mil/whs/ directives/corres/pdf/ 134222p.pdf) and the 
requirements of DoDD 1020.1
    (b) Updates established policy, assigns responsibilities, and 
prescribes procedures for providing care to minor children (birth 
through age 12 years) of individuals who are eligible for care in DoD 
CDPs. This includes:
    (1) Center-based care and community-based care.
    (2) Family child care (FCC).
    (3) School-age care (SAC).

[[Page 370]]

    (4) Supplemental child care.
    (c) Cancels DODI 6060.3
    (d) Implements 10 United States Code (U.S.C.) 1791 through 1800.
    (e) Authorizes the publication of supporting guidance for the 
implementation of CDP policies and responsibilities, including child 
development training modules, program aids, and other management tools.
    (f) Establishes the DoD Effectiveness Rating and Improvement System 
(ERIS), in accordance with 10 U.S.C. 1791 through 1800.



Sec.  79.2  Applicability.

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



Sec.  79.3  Definitions.

    Unless otherwise noted, these terms and their definitions are for 
the purpose of this part.
    Accreditation. Verification that a CDP has been assessed by an 
appropriate, external national accrediting body and meets the standards 
of quality established by that body.
    Affiliated family child care (FCC). Home-based child care services 
that are provided by licensed individuals in homes located off of the 
installation, who agree to comply with the standards outlined in this 
part.
    Appropriated funds (APF). Funds appropriated by Congress and 
received by the U.S. Government as tax dollars.
    APF employees. Civilian employees hired by DoD Components with APF. 
Includes temporary employees, 18 years or older.
    Caregiver. For the purpose of determining priority, a parent or an 
individual who performs the functions of a parent.
    Caregiving personnel. Civilian employees of a CDP who are directly 
involved with the care and supervision of children and are counted in 
the staff to child ratios.
    Child development program (CDP). Child care services for children of 
DoD personnel from birth through 12 years of age.
    CDP employee. A civilian employed by the DoD to work in a DoD CDP 
(regardless of whether the employee is paid from APF or NAF).
    Child(ren). A person under 18 years of age for whom a parent, 
guardian, or foster parent, is legally responsible.
    Child care fees. NAF derived from fees paid by Military members and 
other authorized users of child care services provided at a military CDC 
or other DoD-approved facility-based CDP. Also referred to as user fees 
or parent fees.
    Child care hour. One hour of care provided to one child. If a 
provider cares for six children for 10 hours, that is the equivalent of 
60 child care hours.
    Combat related wounded warrior. A term referring to the entire 
population of wounded, ill and injured Service members and veterans who 
have incurred a wound, illness, or injury for which the member was 
awarded the Purple Heart or whose wound, illness, or injury was incurred 
as a direct result of armed conflict or while engaged in hazardous 
service or in the performance of duty under conditions simulating war, 
or through an instrumentality of war.
    Direct care personnel. Staff members whose main responsibility 
focuses on providing care to children and youth.
    DoD CDP Employee Wage Plan. The wage plan that uses a NAF pay 
banding system to provide direct service personnel with rates of pay 
substantially equivalent to other employees at the installation with 
similar training, seniority, and experience. Pay increases and 
promotions are tied to completion of training. Completion of training is 
a condition of employment. This wage plan does not apply to CDPs 
constructed and operated by contractors under DoDI 1015.15, 
``Establishment, Management and Control of Nonappropriated Fund 
Instrumentalities and Financial Management of Supporting Resources'' 
(see http://www.dtic.mil/whs/ directives/corres/pdf/ 101515p.pdf).
    DoD Certification to Operate. Certification issued to each DoD CDP 
after the program has been inspected by a

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representative(s) of the DoD Component or a major command, and found to 
be in compliance with DoD standards in Sec.  79.6, paragraphs (a), (c)-
(f), (i) and (j).
    DoD Child Abuse and Safety Hotline. A hotline (found at DoD's 
Military Homefront Web site) required by 10 U.S.C. 1794 that enables 
parents and visitors to anonymously report suspected child abuse or 
safety violations at a military CDP or home.
    Eligible patron. Patrons who qualify for CDP services, to include 
active duty Military Service members, DoD civilian employees paid from 
APF and NAF, Reserve Component Military Service members on inactive duty 
training, combat related wounded warriors, surviving spouses of military 
members who died from a combat related incident, eligible employees of 
DoD contractors, other Federal employees, and those acting in loco 
parentis of the aforementioned eligible patrons.
    Eligible employee of a DoD contractor. An employee of a DoD 
contractor or subcontractor, or individual under contract or subcontract 
to DoD, who requires physical access to DoD facilities at least two days 
out of a work week.
    Facility-based program. Refers to child care that is provided within 
a building, structure, or other improvement to real property. Does not 
include FCC homes.
    Family child care (FCC). Home-based child care services that are 
provided for Military Service members, DoD civilian employees, or 
eligible employees of a DoD contractor by an individual who is certified 
by the Secretary of the Military Department or Director of the Defense 
Agency or DoD Field Activity concerned as qualified to provide those 
services, and provides those services for 10 hours or more per week per 
child on a regular basis for compensation. Also referred to as family 
home day care, family home care, child development homes, and family day 
care.
    FCC administrator. DoD civilian employees or contract personnel, 
either APF or NAF, who are responsible for FCC program management, 
training, inspections, and other services to assist FCC providers. 
Includes program directors, monitors, outreach workers, United States 
Department of Agriculture (USDA) CACFP monitors, and administrative 
personnel.
    FCC provider. An individual 18 years of age or older who provides 
child care for 10 hours or more per week per child on a regular basis in 
his or her home with the approval and certification of the commanding 
officer, and has responsibility for planning and carrying out a program 
that meets the children's needs at their various stages of development 
and growth.
    Family member. For a Military Service member, the member's spouse or 
unmarried dependent child, or an unmarried dependent child of the 
member's spouse. For an eligible DoD civilian employee or eligible 
employee of a DoD contractor, the employee's spouse or same-sex domestic 
partner, or unmarried dependent child of the employee, employee's 
spouse, or the employee's same-sex domestic partner.
    Financial hardship. A severe hardship resulting from, but not 
limited to: Sudden and unexpected illness or accident of the spouse or 
the same-sex domestic partner of an eligible DoD Civilian employee; loss 
of the spouse's or eligible DoD Civilian's same-sex domestic partner's 
employment or wages; property damage not covered by insurance; 
extraordinary and unforeseeable circumstances arising as a result of 
events beyond the control of the patron.
    Full-day care. This care meets the needs of parents working outside 
the home who require child care services 6 hours or more per day on a 
regular basis, usually at least 4 days per week.
    Hourly care. Care provided in a CDP that meets the needs of parents 
requiring short-term child care services on an intermittent basis. 
Hourly care includes on-site group care.
    Individual with a disability. A handicapped person as defined in 32 
CFR part 56, in accordance with 29 U.S.C. 705, also known as ``Section 7 
of The Rehabilitation Act of 1973,'' as amended, and consistent with 42 
U.S.C. 12102, also known as ``The Americans with Disabilities Act, as 
amended''. Synonymous with the phrase ``person with a disability.''

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    Identification Action Team. A multidisciplinary team that supports 
families of children with special needs that consider the needs of the 
child, the disability, and the environment of group care in child 
development facilities or home-based care, staffing needs and training 
requirements, and the resources of the program.
    Infant. A child, aged birth through 12 months.
    In loco parentis. In the place or position of a parent. An ``in loco 
parentis'' relationship is one in which a person takes on the role of a 
lawful parent by assuming the obligations and discharging the duties of 
a parent without formally becoming an adoptive parent or legal guardian. 
The child(ren) must reside with and be supported by the person. A 
special power of attorney to act ``in loco parentis'' is required to be 
on file.
    Military approved community based program. Military approved child 
care available to geographically dispersed eligible families.
    Military CDP facility. A facility on a military installation or 
operated by a DoD Component at which child care services are provided 
for Military Service members or DoD civilian employees or any other 
facility at which such child care services are provided that is operated 
by the Secretary of a Military Department.
    Military installation. Defined in 32 CFR 238.3.
    Mixed-age group. A group of children that includes children from 
more than one age group.
    Multidisciplinary inspection team. An inspection team led by a 
representative of the installation commander with authority to verify 
compliance with standards.
    Non-appropriated funds (NAF). Funds derived from CDP fees paid by 
eligible patrons.
    NAF employees. Civilian employees hired by DoD Components and 
compensated from NAFI funds. Includes temporary employees, 18 years or 
older.
    Off-site group care. An option which provides child care on an 
occasional rather than a daily basis and allows on-site hourly group 
care when parents of children in care are attending command functions in 
the same facility.
    On-site group care. A child care program that provides on-site 
hourly group child care when a parent or guardian of the children in 
care are attending the same function and are in the same facility.
    Operational hardship. A program's inability to operate at full 
capacity due to documented staffing shortages.
    Parent. The biological father or mother of a child; a person who, by 
order of a court of competent jurisdiction, has been declared the father 
or mother of a child by adoption; the legal guardian of a child; or a 
person in whose household a child resides at least 25 percent of the 
time in any month, provided that such person stands in loco parentis to 
that child and contributes at least one-half of the child's support.
    Parent board. A group established pursuant to 10 U.S.C. 1783 and 
1795 comprised of parents who are also Military Service members, retired 
Military Service members, or spouses of Military Service members or 
retired Military Service members of children attending DoD CDPs, 
including FCC. This board shall act in an advisory capacity, providing 
recommendations for improving services. The board shall meet 
periodically with staff of the CDP. The board, with the advice of the 
program staff, shall be responsible for developing and overseeing the 
implementation of the parent participation program in accordance with 10 
U.S.C. 1795.
    Parent participation plan. A planned group of activities and 
projects established by the Parent Board to encourage parents to 
volunteer in CDPs, including special events and activities (such as 
field trips, holiday events, and special curriculum programs), small 
group activities, special projects (such as playground improvement, 
procurement of equipment, and administrative aid), and parent education 
programs and training workshops to include child abuse prevention 
education for parents.
    Part-day care. This care meets the needs of parents working outside 
the home who require child care services on a seasonal or regularly 
scheduled

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part-day basis for fewer than 6 hours per day, usually fewer than 4 days 
per week.
    Preschool-age. Children 36 months through 5 years of age.
    Pre-toddler. A child 13 months through 24 months of age.
    Qualifying children. Children of an eligible patron or their spouse 
or the same-sex domestic partner of eligible DoD civilian employees.
    Resource and referral (R&R). A service that provides information 
about child care services on and off the installation to meet patrons' 
child care needs and maximize use of available sources of child care.
    Respite child care. Care for children that provides a parent or 
guardian temporary respite from their role as a primary caregiver.
    Same-sex domestic partner. A person in a same-sex domestic 
partnership with a uniformed service member, civilian employee or 
employee of a DoD contractor of the same-sex.
    Same-sex domestic partnership. A committed relationship between two 
adults of the same-sex in which the partners:
    (1) Are each other's sole same-sex domestic partner and intend to 
remain so indefinitely;
    (2) Are not married (legally or by common law) to, joined in civil 
union with, or in a same-sex domestic partnership with anyone else;
    (3) Are at least 18 years of age and mentally competent to consent 
to contract;
    (4) Share responsibility for a significant measure of each other's 
common welfare and financial obligations;
    (5) Are not related in a way that, if they were of opposite sex, 
would prohibit legal marriage in the state or U.S. jurisdiction in which 
they reside; and,
    (6) Maintain a common residence and intend to continue the 
arrangement (or would maintain a common residence but for the 
requirements of military service, an assignment abroad, or other 
employment-related, financial, or similar obstacle).
    School age care (SAC). Either facility-based or home-based care for 
children ages 6-12, or those attending kindergarten, who require 
supervision before and after school, or during duty hours, school 
holidays, or school closures.
    School-age children. Children aged 6 years through 12, or attending 
kindergarten through sixth grade, enrolled in a SAC program.
    Screen time. Time spent watching television, playing video games, or 
on the computer.
    Special needs. Children with special needs are children who may need 
accommodations to make child care accessible or may otherwise require 
more than routine and basic care; including children with or at risk of 
disabilities, chronic illnesses and physical, developmental, behavioral, 
or emotional conditions that require health and related services of a 
type or amount beyond that required by children in general.
    Staff:child ratio. The number of children for whom individual 
caregiving personnel or FCC providers shall be responsible.
    Sudden Infant Death Syndrome (SIDS). The sudden, unexplained death 
of an infant younger than 1 year old.
    Supplemental child care. Child care programs and services that 
augment and support CDC and FCC programs to increase the availability of 
child care for military and DoD civilian employees. These may include, 
but are not limited to, resource and referral services, contract-
provided services, short-term, hourly child care at alternative 
locations, and interagency initiatives.
    Support staff. Person(s) responsible for providing services not 
directly related to direct child care services, such as, but not limited 
to, janitorial, food service, clerical, and administrative duties.
    Surviving spouse. A spouse of a Service member who dies on active 
duty, active duty training, inactive duty training, or within 120 days 
after release from active duty if the death is due to a service-related 
disability.
    Third party administrator (TPA). An independent organization or 
entity contracted to perform identified services on behalf of the plan 
administrator. These services may include clerical and administrative 
functions such as enrollment and claims administration, payment of 
subsidies to providers and information services.

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    Toddler. A child between the ages of 24 and 36 months of age.
    Total family income (TFI). Includes all earned income including 
wages, salaries, tips, long-term disability benefits, voluntary salary 
deferrals, basic allowance for housing Reserve Component/Transit (BAH 
RC/T) and subsistence allowances and in-kind quarters and subsistence 
received by a Military Service member, civilian employee, a spouse, or, 
in the case of an eligible DoD civilian employee, the same-sex domestic 
partner, and anything else of value, even if not taxable, that was 
received for providing services. BAH RC/T and subsistence allowances 
mean the Basic Allowance for Quarters and the Basic Allowance for 
Subsistence received by military personnel and civilian personnel when 
provided (with respect to grade and status) and the value of meals and 
lodging furnished in-kind to military personnel residing on military 
bases.
    Training & curriculum specialist--Personnel whose main 
responsibility is providing training and oversight to other CDC or SAC 
employees.
    Unmet need. The number of children whose parents cannot work outside 
the home because child care is not available.
    Waiting list. List of children waiting for a CDP space and whose 
parents have requested space in a CDP and none is available.



Sec.  79.4  Policy.

    In accordance with DoD Instruction 1342.22, and 10 U.S.C. 1783, 1791 
through 1800, 2809, and 2812, it is DoD policy to:
    (a) Ensure that the CDPs support the mission readiness, family 
readiness, retention, and morale of the total force during peacetime, 
overseas contingency operations, periods of force structure change, 
relocation of military units, base realignment and closure, and other 
emergency situations (e.g. natural disasters, and epidemics). Although 
child care supports working parents, it is not an entitlement and 
parents must pay their share of the cost of child care.
    (b) Reduce the stress of families who have the primary 
responsibility for the health, safety and well-being of their children 
and help them balance the competing demands of family life and the DoD 
mission. CDPs provide access and referral to available, affordable, 
quality programs and services that meet the basic needs of children, 
from birth through 12 years of age, in a safe, healthy, and nurturing 
environment.
    (c) Conduct an annual internal certification process to ensure that 
all installation-operated CDPs are operating in accordance with all 
applicable Federal mandates and statutory requirements.
    (d) Provide child care to support the personnel and the mission of 
DoD. Eligibility is contingent on the status of the sponsor.
    (1) Eligible patrons include:
    (i) Active duty military personnel
    (ii) DoD civilian employees paid from either appropriated funds 
(APF) or non-appropriated funds (NAF).
    (iii) Reserve Component military personnel on active duty or 
inactive duty training status.
    (iv) Combat related wounded warriors.
    (v) Surviving spouses of Military members who died from a combat 
related incident.
    (vi) Those acting in loco parentis for the dependent child of an 
otherwise eligible patron.
    (vii) Eligible employees of DoD contractors.
    (viii) Others authorized on a space available basis.
    (2) In the case of unmarried, legally separated parents with joint 
custody, or divorced parents with joint custody, children are eligible 
for child care only when they reside with the Military Service member or 
eligible civilian sponsor at least 25 percent of the time in a month 
that the child receives child care through a DoD program. There may be 
exceptions as addressed in Sec.  79.6.
    (e) Promote the cognitive, social, emotional, cultural, language and 
physical development of children through programs and services that 
recognize differences in children and encourage self-confidence, 
curiosity, creativity, self-discipline, and resiliency.
    (f) Employ qualified direct program staff whose progression from 
entry

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level to positions of greater responsibility is determined by training, 
education, experience, and competency. Ensure that civilian employees 
maintain their achieved position and salary as they move within the 
military child care system.
    (g) Certify qualified FCC providers who can support the mission 
requirements of the installation.
    (h) Facilitate the availability and expansion of quality, 
affordable, child care off of military installations that meet the 
standards of this part to ensure that geographically dispersed eligible 
families have access to legally operating military-approved community-
based child care programs.
    (i) Promote the early identification and reporting of alleged child 
abuse and neglect in DoD CDPs in accordance with DoD Directive 6400.1, 
``Family Advocacy Program (FAP)'' (see http://www.dtic.mil/whs/ 
directives/corres/pdf/ 640001p.pdf).
    (j) Ensure that funding is available to meet Military Child Care Act 
requirements pursuant to 10 U.S.C. 1791 through 1800 and protect the 
health, safety, and well-being of children in care.



Sec.  79.5  Responsibilities.

    (a) The Assistant Secretary of Defense for Readiness and Force 
Management (ASD(R&FM)), under the authority, direction, and control of 
the USD (P&R) shall:
    (1) Monitor compliance with this part by personnel under his or her 
authority, direction, and control.
    (2) Annually review and issue a child care fee policy based upon 
total family income (TFI) for use by programs in the DoD child 
development system of care.
    (b) The Deputy Assistant Secretary of Defense for Military Community 
and Family Policy (DASD(MC&FP)), under the authority, direction, and 
control of the ASD(R&FM), shall:
    (1) Work across functional areas of responsibility and collaborate 
with other federal and non-governmental organizations to ensure access 
to a continuum of quality, affordable CDPs.
    (2) Program, budget, and allocate funds and other resources to meet 
the objectives of this part.
    (3) Issue DD Form 2636, ``Child Development Program, Department of 
Defense Certificate to Operate,'' to the Military Departments for each 
CDP found to be in compliance with this part.
    (4) Require that the policies and related documents are updated and 
relevant to the program.
    (5) Report DoD Component program data to support legislative, 
research, and other requirements.
    (c) The Heads of the DoD Components shall:
    (1) Establish implementing guidance and ensure full implementation 
within 12 months of the publication date, consistent with this part, to 
monitor compliance through regular inspection of CDPs and follow-up 
oversight actions as needed.
    (2) Program, budget, and allocate funds and other resources to meet 
the requirements of this part.
    (3) Establish a priority system for all patrons seeking to enroll 
children in CDPs in accordance with paragraph (a) of Sec.  79.6.
    (4) Assess DoD Component demand and take appropriate action to 
address the child care capability needed on and off the installation in 
accordance with paragraph (g) of Sec.  79.6.
    (5) Establish a hardship waiver policy to address financial and 
operational situations.
    (6) Submit fiscal year annual summary of operations reports to the 
DASD(MC&FP) by December 30 of each year using Report Control Symbol DD-
P&R(A) 1884, ``Department of Defense Child Development Program (CDP) 
Annual Summary of Operations.''
    (7) Require that background checks are conducted for individuals who 
have contact with children in DoD CDPs in accordance with DoDI 1402.5, 
``Criminal History Background Checks on Individuals in Child Care 
Services'' (available at http://www.dtic.mil/whs/ directives/corres/pdf/ 
140205p.pdf) and 32 CFR part 86 and paragraph (c)(1) of Sec.  79.6.
    (8) Require that all individuals who have contact with children in a 
DoD CDP complete a DD Form X656 ``Basic Criminal History and Statement 
of Admission''.

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    (9) Require that each CDP establishes a Parent Board in accordance 
with 10 U.S.C. 1783 and 1795.
    (10) Forward the results of DoD Component inspections to the 
DASD(MC&FP).
    (11) Ensure that all incidents that occur within a DoD CDP and 
involve allegations of child abuse or neglect, revocation of 
accreditation, or hospitalization of a child, are reported to DASD 
(MC&FP) through the Office of Family Policy (OFP/CY) within 72 hours of 
the incident.
    (12) Notify the DASD(MC&FP) through OFP/CY if, at any time, a 
facility in the CDP is closed due to a violation (see paragraph 
(c)(4)(ii) of Sec.  79.6, for more information on violations).
    (13) Provide the DASD(MC&FP) through OFP/CY with a copy of 
applications made in accordance with DoD Instruction 5305.5, ``Space 
Management Procedures, National Capital Region'' (see http://
www.dtic.mil/whs/ directives/corres/pdf/ 530505p.pdf) and 40 U.S.C. 590 
to the U.S. General Services Administration (GSA) for building space for 
use in providing child care for DoD personnel, and comply with GSA 
standards for funding and operation of child care programs in GSA-
controlled space.
    (i) Where the DoD is the sole sponsoring agency and the space has 
been delegated to the DoD by the GSA, the space must comply with the 
requirements prescribed in this part.
    (ii) For the National Capital Region, space acquisition procedures 
in DoD Instruction 5305.5 shall be used to gain the assignment of space 
in Government-owned or Government-leased facilities from the GSA.
    (14) Require that CDPs follow the recommendations of the Advisory 
Committee on Immunization Practices (ACIP) and comply with generally 
accepted practices endorsed by the American Academy of Pediatrics (AAP) 
and Centers for Disease Control or the latest guidance provided by OFP/
CY.
    (15) Establish and implement DoD Component-specific child care fees 
based on the DoD-issued fee policy on an annual basis, and issue 
supplemental guidance on fees for school-age programs, hourly care, 
preschool programs, DoD Component approved community-based programs, and 
FCC subsidies. Submit DoD Component-specific requests for waiver for any 
deviation from DoD policy, including selection of the high or low cost 
fee option, to the Office of the DASD (MC&FP) through OFP/CY for 
approval.
    (16) Establish guidelines for communication between command, 
installation, and educational and behavioral support systems.
    (17) Require that all military installations under their authority 
follow guidance that addresses the ages and circumstances under which a 
child under 13 years of age can be left at home alone without adult 
supervision, also known as a ``home alone policy,'' or ``self-care 
policy.'' The installation commander should approve this policy in 
consultation with the installation director of the Family Advocacy 
Program. Guidance is consistent with or more stringent than applicable 
laws and ordinances of the State and country in which the installations 
are located.
    (18) Establish guidance and operating procedures to provide services 
for children with special needs in accordance with 32 CFR part 56, 
``Nondiscrimination on the Basis of Handicap in Programs and Activities 
Assisted or conducted by the Department of Defense'' that implement 
section 504 of the Rehabilitation Act for federally conducted and 
federally assisted programs and 42 U.S.C. 12102, ``The American 
Disabilities Act'' as they apply to children and youth with special 
needs.
    (i) Require procedures for reviewing and making reasonable 
accommodation for children with special needs that do not fundamentally 
alter the nature of the program.
    (ii) Consider the needs of the child, the disability, and the 
environment of group care in child development facilities or home-based 
care, staffing needs and training requirements, and the resources of the 
program.
    (iii) Include CDPs as part of the Multidisciplinary Inclusion Action 
Team that supports families of children with special needs.
    (19) Establish guidance and operating procedures to provide services 
for children of the deployed.
    (20) Establish standard risk management procedures for responding to

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emergency or contingency situations. This includes, but is not limited 
to, natural disasters, pandemic disease outbreaks, allegations of child 
abuse or neglect, active shooter, or an installation or facility 
lockdown.
    (21) Require that vehicles used to transport children comply with 
Federal motor vehicle safety standards in accordance with 49 U.S.C. 
30125 and applicable State or host nation requirements.
    (22) Notify applicable civilian patrons annually of their potential 
tax liability associated with child care subsidies, and ensure that 
information required by the third party administrator (TPA) is provided 
in accordance with 26 U.S.C. 129.
    (23) Require that a current plan to implement direct cash subsidies 
to military-approved child care providers to expand the availability of 
child care spaces and meet specialized child care needs, such as weekend 
and evening care, special needs, deployment support, and respite child 
care support, is in place.
    (d) The Secretaries of the Military Departments, in addition to the 
responsibilities in paragraph (c) of this section, shall:
    (1) Work with the Heads of the DoD Components to implement CDPs in 
accordance with this part.
    (2) Notify the OFP/CY of any Service-wide specific requirements that 
will require a waiver to deviate from existing policy.
    (e) The Installation Commanders (under the authority, direction, and 
control of the Secretary of the Military Department concerned) shall:
    (1) Require that CDPs within his or her jurisdiction are in 
compliance with this part.
    (2) Require that child care fees are used in accordance with DoD 
Instruction 5305.5 and paragraph (c)(2) of Sec.  79.6.
    (3) Require that CDP direct program staff are paid in accordance 
with Volume 1405 of DoD Instruction 1400.25, ``DoD Civilian Personnel 
Management System: Nonappropriated Fund (NAF) Pay and Allowances'' 
(available at http://www.dtic.mil/whs/ directives/corres/pdf/ 1400.25-
V1405.pdf). Ensure 75 percent of the program's direct program staff 
total labor hours are paid to direct program staff who are in benefit 
status.
    (4) Require that there are adequate numbers of qualified 
professional staff to manage the CDPs according to the Service manpower 
and child space staffing requirements and referenced in paragraphs (c) 
and (d) of Sec.  79.6 of this part.
    (5) Manage child care priority policy, as directed by their 
respective DoD Component.
    (6) Manage hardship waiver policy (financial and operational), as 
directed by their respective DoD Component.
    (7) Review and validate the demand for installation child care 
capacity and take appropriate action to expand the availability of care 
as needed. See paragraph (h) of Sec.  79.6 of this part.
    (8) Convene a Parent Board, and ensure that a viable Parent 
Participation Program is in accordance with 10 U.S.C. 1783 and 1795.
    (9) Implement mandated annual and periodic inspections and complete 
required corrective and follow-up actions within timeframes specified by 
their respective DoD Component.
    (f) Directors of the Defense Agencies and DoD Field Activities. In 
addition to the responsibilities in paragraph (c) of this section, the 
Directors of the Defense Agencies and DoD Field Activities shall:
    (1) Require that CDPs within his or her jurisdiction are in 
compliance with this part.
    (2) Require that child care fees are used in accordance with DoD 
Instruction 5305.5 and paragraph (c)(2) of Sec.  79.6.
    (3) Require that CDP direct program staff are paid in accordance 
with Volume 1405 of DoD Instruction 1400.25. Ensure 75 percent of the 
program's direct program staff total labor hours are paid to direct 
program staff who are in benefit status.
    (4) Require that there are adequate numbers of qualified 
professional staff to manage the CDPs according to the Service manpower 
and child space staffing requirements and referenced in paragraphs (c) 
and (d) of Sec.  79.6 of this part.
    (5) Manage child care priority policy, as directed by their 
respective DoD Component.

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    (6) Manage hardship waiver policy (financial and operational), as 
directed by their respective DoD Component.
    (7) Review and validate the demand for installation child care 
capacity and take appropriate action to expand the availability of care, 
as needed. See paragraph (h) of Sec.  79.6 of this part.
    (8) Convene a Parent Board, and require that a viable Parent 
Participation Program is in accordance with 10 U.S.C. 1783 and 1795.
    (9) Implement mandated annual and periodic inspections and complete 
required corrective and follow-up actions within timeframes specified by 
their respective DoD Component.



Sec.  79.6  Procedures.

    (a) Priority System. To the extent possible, CDPs shall be offered 
to the qualifying children of eligible patrons.
    (1) Priority 1. The highest priority for full-time care shall be 
given to qualifying children from birth through 12 years of age of 
combat related wounded warriors, child development program direct care 
staff, single or dual active duty Military Service members, single or 
dual DoD civilian employees paid from APF and NAF, surviving spouses of 
military members who died from a combat related incident, and those 
acting in loco parentis on behalf of the aforementioned eligible 
patrons. With the exception of combat related wounded warriors, ALL 
eligible parents or caregivers residing with the child are employed 
outside the home.
    (2) Priority 2. The second priority for full-time care shall be 
given equally to qualifying children from birth through 12 years of age 
of active duty Military Service members, DoD civilian employees paid 
from APF and NAF, surviving spouses of military members who died from a 
combat related incident, and those acting in loco parentis on behalf of 
the aforementioned eligible patrons, where a non-working spouse, or in 
the case of a DoD civilian employee with a same-sex domestic partner, is 
actively seeking employment. The status of actively seeking employment 
must be verified every 90 days.
    (3) Priority 3. The third priority for full-time care shall be given 
equally to qualifying children from birth through 12 years of age of 
active duty Military Service members, DoD civilian employees paid from 
APF and NAF, surviving spouses of military members who died from a 
combat related incident, and those acting in loco parentis on behalf of 
the aforementioned eligible patrons, where a non-working spouse, or in 
the case of a DoD civilian employee with a same-sex domestic partner, is 
enrolled in an accredited post-secondary institution. The status of 
post-secondary enrollment must be verified every 90 days.
    (4) Space Available. After meeting the needs of parents in 
priorities 1, 2, and 3, CDPs shall support the need for full-time care 
for other eligible patrons such as active duty Military Service members 
with non-working spouses, DoD civilian employees paid from APF and NAF 
with non-working spouses or same-sex domestic partners, eligible 
employees of DoD Contractors, Federal employees from non-DoD agencies, 
and military retirees on a space available basis. In this category, CDPs 
may also authorize otherwise ineligible patrons in accordance with 10 
U.S.C. 1783, 1791 through 1800, 2809, and 2812 to enroll in the CDP to 
make more efficient use of DoD facilities and resources.
    (5) Individual priorities will be determined based on the date of 
application with the DoD Component. Components may only establish sub-
priorities if unique mission related installation requirements are 
identified by higher headquarters.
    (b) Types of Care. The types of care offered for children from birth 
through 12 years of age include 24/7 care and care provided on a full-
day, part-day, short-term or intermittent basis.
    (1) Military-Operated CDPs. Military-operated (on and off 
installation) CDPs generally include:
    (i) CDCs. Reference Table 1 of this section of this part for 
standards of operation for CDCs. CDCs primarily offer care to children 
from birth to 5 years of age, but may also be used to provide SAC 
programs.
    (ii) SAC Programs. Reference Table 1 of this section for SAC 
standards of operation. SAC programs primarily offer care to children 
from 6 to 12 years of age. Care may be offered in CDCs and other 
installation facilities, such as youth centers and schools.

[[Page 379]]

    (iii) FCC. Reference Table 2 of this section for FCC standards of 
operation. Child care services are available to children from infancy 
through 12 years of age and are provided in government housing or in 
state licensed/regulated homes in the community.
    (iv) Supplemental Child Care. Services include short-term 
alternative child care options in approved settings on and off 
installation.
    (v) Part-Day and Hourly Programs. CDP space used for part-day and 
hourly programs, including programs to provide respite child care, shall 
not exceed 20 percent of the CDP program's capacity during duty hours.
    (2) Military Department, Defense Agency, and DoD Field Activity-
Approved Supplemental Child Care Programs. See paragraph (g) of this 
section.
    (c) Administration, Funding and Oversight of Military Operated CDPs. 
Unless otherwise noted, the requirements in this section apply to all 
DoD-operated CDPs.
    (1) Background Checks. All background checks for individuals who 
have regular, recurring contact with children and youth in CDPs, 
including adult family members of FCC providers and any individual over 
the age of 18 living in a home where child care is provided, and persons 
who serve as substitute or backup providers, shall be conducted in 
accordance with 32 CFR part 86.
    (2) Funding. CDPs are funded by a combination of APF and NAF.
    (i) The amount of APF used to operate CDPs shall be no less than the 
amount collected through child care fees, except for CDCs that operate 
under a long-term facility's contract or lease-purchase agreement under 
10 U.S.C. 2809 and 2812.
    (A) A family's child care fee category is determined based on an 
initial and subsequent annual verification of TFI. Families pay the 
child care fee assigned to that TFI category. A family's fees may only 
be adjusted once per year, with exceptions listed in paragraph 
(c)(2)(i)(E) of this section. TFI is determined utilizing DD Form 2652.
    (B) APF may be used to subsidize child care in military-approved 
civilian programs in accordance with 10 U.S.C. 1791 through 1800.
    (C) DoD Components establishing child care fee assistance programs 
for their employees must contribute the amounts required to pay 
subsidies out of agency APFs.
    (D) FCC providers are private contractors. Fees are established 
between the provider and parent, unless such providers receive direct 
monetary subsidies. When FCC providers receive direct monetary subsidies 
to reduce the cost of care for the families they service, the 
installation commander or DoD Component shall determine relevant fees 
charged by FCC providers.
    (E) Fees may be adjusted:
    (1) By the installation commander, Defense Agency Director, or DoD 
Field Activity Director:
    (i) On a case-by-case basis for families who are facing financial 
hardship or unusual circumstances that merit review, in accordance with 
established DoD Component guidance.
    (ii) For parents participating in an approved parent participation 
program.
    (2) By the DoD Components, Defense Agency Director, or DoD Field 
Activity Director:
    (i) To accommodate an optional high market rate when it is necessary 
to pay higher wages to compete with local labor or at those 
installations where wages are affected by non-foreign area cost of 
living allowance (COLA), post differential or locality pay. The optional 
low market rate may be used in areas where costs for comparable care 
within the installation catchment area are significantly lower. A 
request to utilize the high or low market rate options must be submitted 
to OFP/CY for approval.
    (ii) To reflect changes in employment status, relocation, and annual 
internal reviews that find inaccurate determination or calculation of 
TFI.
    (iii) For CDP employees when CDC programs are facing operational 
hardships.
    (ii) Child Development Program Element APF may be used for:
    (A) Salaries of CDP employees.
    (B) Food.
    (C) Training and education.
    (D) Program accreditation fees and support services.
    (E) Travel and transportation.

[[Page 380]]

    (F) Marketing, to include recruitment, retention, and participation 
efforts.
    (G) Supplies and equipment, to include lending libraries and 
training materials for use by FCC providers.
    (H) Local travel expenses incurred by FCC program staff using their 
private vehicles to perform government functions.
    (I) Direct monetary subsidies to FCC providers.
    (iii) To the maximum extent possible, child care fees shall cover 
the NAF cost of care, and NAF costs not covered by child care fees are 
to be minimized. Child care fees shall only be used for:
    (A) Compensation of direct care CDP employees who are classified as 
NAF employees, to include training and education, and recruitment and 
retention initiatives approved by the DoD Component.
    (B) Food-related expenses not paid by the USDA or DoD APFs.
    (C) Consumable supplies.
    (3) Facility Requirements and Construction.
    (i) Minimum prescribed construction standards:
    (A) For all Marine Corps, Navy, and Air Force CDC facility 
construction, the Unified Facilities Criteria (UFC) 4-740-14, ``Design: 
Child Development Centers'' (see http://www.wbdg.org/ ccb/DOD/UFC/ufc_ 
4_740_14.pdf) apply.
    (B) For all Army CDC facility construction, the Army Standard for 
Child Development Centers (see https://mrsi.usace.army.mil/ fdt/
Army%20Standards/ CDC%20age%206 wk%20to%205yr% 20Army%20Standard.pdf) 
apply.
    (C) When SAC is provided in youth facilities, UFC 4-740-06, ``Youth 
Centers'' (see http://www.wbdg.org/ ccb/DOD/UFC/ufc_ 4_740_06.pdf) and 
Service-specific exceptions to the UFC apply.
    (D) State and local construction standards may be used but are not 
required, except if the CDC facility is located on an area over which 
the United States has no legislative jurisdiction and then only if State 
and local standards are more stringent than those in UFC 4-740-14.
    (ii) All facilities shall comply with the structural requirements of 
the National Fire Protection Association 101, ``Life Safety 
Code[supreg]'' 2012 (available at http://www.nfpa.org/aboutthecodes/ 
AboutTheCodes.asp? DocNum=101& cookie%5Ftest=1)
    (4) Oversight.
    (i) DoD Certification Inspection. Installation-operated CDPs in 
which care is provided for 10 or more child care hours per week on a 
regular basis shall be certified to operate through inspections 
occurring no fewer than four (4) times a year. Inspections must be 
unannounced, and parent and staff feedback shall be solicited as part of 
the inspection process.
    (A) Three local inspections and one higher headquarters inspection 
shall be conducted to verify compliance with this part and DoD Component 
implementing guidance. Local inspection teams are led by a 
representative of the installation commander, Defense Agency Director, 
or Defense Field Activity Director, and a multidisciplinary team, to 
include human resource, fire, health, and safety proponents, with 
expertise and authority to verify compliance with this part.
    (1) Local inspections include an annual comprehensive health and 
sanitation inspections, annual comprehensive fire and safety 
inspections, and a multidisciplinary inspection whose team that includes 
parent representation. Community representation on the team by 
appropriate professionals is highly encouraged.
    (2) DoD Component inspection teams inspecting CDPs serving children 
birth through 12 years of age shall include staff possessing:
    (i) A baccalaureate degree in child development, early childhood 
education (ECE), home economics (early childhood emphasis), elementary 
education, special education, or other degree appropriate to the 
position filled from an accredited college;
    (ii) Knowledge of child/youth development programs; or
    (iii) A combination of education and experience that provide 
knowledge comparable to that normally acquired through the successful 
completion of a 4-year degree (experience must include at least 3 years 
of full-time teaching or management experience with children of the 
appropriate age group).

[[Page 381]]

    (3) Parents shall be interviewed as part of the DoD Component 
inspection. Additional inspections shall be conducted in response to 
program complaints in accordance with paragraph (b) of Sec.  79.5.
    (4) Results of DoD Component inspections shall be provided by the 
DoD Component to the ODASD(MC&FP) through OFP/CY. CDPs whose inspection 
results demonstrate compliance with this part shall receive DD Form 
2636. Certificates shall be displayed in a prominent location in the 
CDP.
    (5) Inspection results shall be made available to parents. Results 
from inspections of CDC programs shall be available online.
    (6) Periodic, unannounced inspections shall be made by the 
ODASD(MC&FP) to ensure compliance with the requirements in this part.
    (7) In response to each inspection, a corrective action plan with 
appropriate timelines shall be developed to address any deficiencies 
identified during inspection.
    (ii) Violations. The installation commander, Defense Agency Director 
or DoD Field Activity Director shall ensure the immediate remedy of any 
life-threatening violation of this part or other safety, health, and 
child welfare laws or regulations (discovered at an inspection or 
otherwise) at a DoD CDP, or he or she will close the facility (or 
affected parts of the facility).
    (A) In the case of a violation that is not life-threatening, the 
commander of the major command under which the installation concerned 
operates, or the Director of the Defense Agency or DoD Field Activity 
concerned, may waive the requirement that the violation be remedied 
immediately for up to 90 days beginning on the date of discovery of the 
violation.
    (B) If the violation that is not life-threatening is not remedied by 
the end of that 90-day period, the facility or parts involved will be 
closed until the violation is remedied.
    (C) The Secretary of the Military Department, or Director of the 
Defense Agency or DoD Field Activity concerned, may request a waiver of 
the requirements of the preceding sentence to authorize the program to 
remain open in a case where the violation cannot reasonably be remedied 
within the 90-day period or in which major facility reconstruction is 
required. A waiver request must be submitted to OFP/CY for approval.
    (iii) Accreditation. Eligible CDP facilities (excluding FCC) shall 
be accredited by a DoD-approved national accrediting body. CDP oversight 
is a statutory requirement involving an external nationally recognized 
accreditation process and internal DoD Certification process.
    (A) FCC providers shall be encouraged to seek accreditation from an 
appropriate national accrediting body.
    (B) The percentage of CDP facilities successfully achieving 
accreditation shall be reflected in the Annual Summary of Operations 
report referenced in Sec.  79.5.
    (iv) Monitoring. There shall be a system in place to monitor FCC 
homes on a regular basis during all hours of operation. The following 
information shall be maintained for FCC providers:
    (A) Results of family interview.
    (B) Background check with suitability determination.
    (C) Inspection results.
    (D) Insurance.
    (E) Training records.
    (F) Monitoring visit records.
    (5) Parent Board. In accordance with 10 U.S.C. 1783 and 1795, each 
CDP shall establish a Parent Board to discuss problems and concerns and 
to provide recommendations for improving CDPs. The Board, with the staff 
of the program, is responsible for coordinating a parent participation 
program.
    (i) The Board shall be composed only of parents of children enrolled 
in the installation CDP facilities that are Military Service members, 
retired Military Service members, or spouses of Military Service members 
or retired Military Service members, and chaired by such a parent.
    (ii) The Board shall meet periodically with the staff of the program 
and the installation commander, Defense Agency Director, or DoD Field 
Activity Director to discuss problems and concerns. Board 
recommendations shall be forwarded to the installation commander, 
Defense Agency Director, or DoD Field Activity Director for review

[[Page 382]]

and disposition. These recommendations are reviewed during the DoD 
certification inspection.
    (iii) The Board shall coordinate a parent participation program with 
CDP staff to ensure parents are involved in CDP planning and evaluation. 
In accordance with 10 U.S.C. 1795, parents participating in such program 
may be eligible for child care fees at a rate lower than the rate that 
otherwise applies.
    (6) Enrollment. To enroll in the CDP, parents shall complete DD Form 
2606 or electronic equivalent, DoD Child Development Program Request for 
Care Record. At the time of enrollment in an installation-based CDP, 
parents shall provide:
    (i) Child(ren)'s health and emergency contact information.
    (ii) Documentation that children have been fully immunized.
    (A) Children who have not received their age-appropriate 
immunizations prior to enrollment and do not have a documented religious 
or medical exemption from routine childhood immunizations shall show 
evidence of an appointment for immunizations; the immunization series 
must be initiated within 30 days.
    (B) Children in SAC are not required to provide documentation if 
they are enrolled in a local public school system where proof of 
currency of vaccination is required.
    (iii) Children's records shall be updated annually or as needed for 
their health, safety, or well-being.
    (7) Immunizations. Children enrolling in or currently enrolled in 
DoD CDPs must provide written documentation of immunizations appropriate 
for the child's age. Per AR 40-562/BUMEDINST 6230.15A/AFJI 48-110/CG 
COMDTINST M6230.4F, ``Immunizations and Chemoprophylaxis'' (see http://
www.vaccines.mil/ documents/969r40_ 562.pdf), immunizations recommended 
by the ACIP are required.
    (i) All records shall be updated at least annually and kept on file. 
Any child not enrolled in a school system where proof of currency of 
vaccination is required must provide proof of currency.
    (ii) Children enrolled in a local public school system and volunteer 
sports coaches are excluded from this requirement.
    (iii) A waiver for an immunization exemption may be granted for 
medical or religious reasons. Philosophical exemptions are not 
permitted. The DoD Component must provide guidance on the waiver 
process.
    (A) A statement from the child's health care provider is required if 
an immunization may not be administered because of a medical condition. 
The statement must document the reason why the child is exempt.
    (B) If an immunization is not administered because of a parent's 
religious beliefs, the parent must provide a written statement stating 
that he or she objects to the vaccination based upon religious beliefs.
    (C) During a documented outbreak of a contagious disease (as 
determined by local DoD Medical authorities) that has a vaccine, the 
child who is attending the program under an immunization waiver for that 
vaccine, will be excluded from the program for his or her protection and 
the safety of the other children and staff until the contagious period 
is over.
    (iv) Civilian employees (including specified regular volunteers) and 
FCC providers shall obtain appropriate immunization against communicable 
diseases in accordance with recommendations from the ACIP. The 
requirement for appropriate immunization is a condition of continued 
employment or active participation in the program or organization.
    (A) This requirement is waived if a current immunization, a 
protective titer, or a medical exemption is approved and documented. A 
waiver for an immunization exemption may also be granted for religious 
reasons. Philosophical exemptions are not permitted.
    (B) The DoD Component must provide guidance on the waiver process. 
The DoD Component must approve all waivers and documentation of the 
waiver kept on file.
    (C) During a documented outbreak of a contagious disease, staff with 
a waiver will be excluded from the program for their protection and the 
safety of the other children and staff until the contagious period is 
over.

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    (8) Child Abuse Prevention and Reporting. In accordance with 10 
U.S.C. 1794, CDPs shall minimize the risk for child abuse.
    (i) CDPs shall have standard operating procedures for reporting 
cases of suspected child abuse and neglect, and all employees, employees 
of DoD contractors, individuals working with CDPs, providers, volunteers 
and parents shall be informed of child abuse prevention, and 
identification and reporting requirements. Staff shall be knowledgeable 
of the child abuse reporting requirements.
    (ii) In accordance with 10 U.S.C. 1794, the DoD Child Abuse and 
Safety Hotline telephone number shall be posted in highly visible areas, 
including the facility lobby, where parents have easy access to the 
telephone number. The hotline number shall be published in parent 
handbooks and other media.
    (9) Programming and Standards of Operation. All CDPs shall establish 
a planned program of developmentally appropriate activities, and adhere 
to the standards of operation outlined in Tables 1 and 2 of this 
section.
    (d) Personnel. Installation-based CDP personnel and FCC providers 
shall meet the following requirements:
    (1) CDC Directors. CDC directors shall have at a minimum:
    (i) A baccalaureate degree in child development, ECE, home economics 
(early childhood emphasis), elementary education, special education, or 
other degree appropriate to the position filled from an accredited 
college; or
    (ii) A combination of education and experiences, which provide 
knowledge comparable to that normally acquired through the successful 
completion of the 4-year course of study in a child-related field.
    (2) SAC Directors. Directors shall have at a minimum:
    (i) A baccalaureate degree in a field of child or youth development, 
such as youth recreation, physical education, elementary education, 
secondary education, child development, psychology, social work, or 
other degree appropriate to the position filled from an accredited 
college; or
    (ii) A combination of education and experiences, which provide 
knowledge comparable to that normally acquired through the successful 
completion of the 4-year course of study in a child development or 
youth-related field.
    (3) Training and Curriculum Specialists. Each program within the CDP 
shall employ at least one training and curriculum specialist. Training 
and curriculum specialists shall have at a minimum:
    (i) A baccalaureate degree with a major course of study directly 
related to child or youth development, ECE or an equivalent field of 
study from an accredited college, or a combination of education and 
experiences, which provide knowledge comparable to that normally 
acquired through the successful completion of the 4-year course of study 
in the field of child or youth development or ECE.
    (ii) Knowledge of early childhood or youth education principles, 
concepts, and techniques to develop, interpret, monitor, and evaluate 
the execution of curriculum and age-appropriate activities.
    (iii) Knowledge of adult learning techniques and strategies and 
experience training adult learners.
    (iv) Ability to support DoD certification, accreditation, and staff 
credentialing (Child Development Associate (CDA), Associate of Arts (AA) 
Degree) by ensuring that required training is administered and 
successfully accomplished to meet statutory and program requirements.
    (4) FCC Administrators. FCC administrators shall have at a minimum:
    (i) A baccalaureate degree with a major course of study directly 
related to child or youth development, family studies, or an equivalent 
field of study from an accredited university; or
    (ii) A combination of education and experiences, which provide 
knowledge comparable to that normally acquired through the successful 
completion of the 4-year course of study in the field of child or youth 
development or family studies.
    (5) CDP Direct Care Personnel, Support Staff, and FCC Providers. CDP 
direct care personnel and support staff, as a condition of employment, 
and FCC providers shall, as a condition of participation:
    (i) Be at least 18 years of age.

[[Page 384]]

    (ii) Hold a high school diploma or equivalent.
    (iii) Read, speak, and write English.
    (iv) Successfully pass a pre-employment physical, maintain current 
immunizations and be physically and behaviorally capable of performing 
the duties of the job.
    (e) Training. Each CDP must have a DoD Component-approved training 
program. Satisfactory completion of training is a condition of 
employment for staff in a center-based program and for providers 
offering care in FCC homes.
    (1) CDP Management Personnel. CDP management personnel, including 
CDP directors (CDC directors, FCC administrators, and SAC directors), 
shall receive annual training, which includes the following topics:
    (i) Child abuse prevention, identification, and reporting.
    (ii) Program administration, including APF and NAF financial 
management, funding metrics, and fiscal accountability.
    (iii) Staff development and personnel management.
    (iv) Prevention of illness and injury and promotion of health.
    (v) Emergency procedures and preparedness.
    (vi) Working with children with special needs.
    (vii) Developmentally appropriate practices.
    (2) Training and Curriculum Specialists. Training and curriculum 
specialists shall receive annual training, to include the following 
topics:
    (i) Child abuse prevention, identification, and reporting.
    (ii) Developmentally appropriate practices.
    (iii) Principles of adult learning.
    (iv) Prevention of illness and injury and promotion of health.
    (v) Emergency procedures.
    (vi) Working with children with special needs.
    (3) CDP Direct Care Personnel and FCC Providers.
    (i) Training requirements for direct care personnel (excluding FCC 
providers) shall be linked to the DoD CDP Employee Wage Plan implemented 
in response to 10 U.S.C. 1783, and 1791 through 1800 to include 
completion of the DoD-approved competency based training modules within 
DoD Component specified time frames.
    (ii) All newly hired CDP direct care personnel and FCC providers 
shall complete 40 hours of orientation. Orientation shall begin prior to 
working with children, with the full 40 hours completed within the first 
90 days of employment. Orientation completion shall be documented for 
each direct care personnel or FCC provider. Orientation includes:
    (A) Working with children of different ages, including 
developmentally appropriate activities and environmental observations.
    (B) Age-appropriate guidance and discipline techniques.
    (C) Applicable regulations, policies, and procedures.
    (D) Child safety and fire prevention.
    (E) Child abuse prevention, identification, and reporting.
    (F) Parent and family relations.
    (G) Health and sanitation procedures, including blood-borne 
pathogens, occupational health hazards for direct care personnel, and 
recognizing symptoms of illness.
    (H) Emergency health and safety procedures, including pediatric 
cardiopulmonary resuscitation (CPR) and first aid.
    (I) Safe infant sleep practices and Sudden Infant Death Syndrome 
(SIDS) prevention.
    (J) Nutrition, obesity prevention, and meal service.
    (K) Working with children with special needs.
    (L) Accountability and child supervision training.
    (M) For FCC providers only, infant and child (pediatric) CPR and 
first aid must be completed prior to accepting children for care. 
Training shall be updated as necessary to maintain current 
certifications.
    (N) For FCC providers only, training in business operations.
    (iii) CDP direct care personnel and FCC providers shall complete 
additional training specified by the DoD Component within 90 days of 
beginning work. The training shall include, at a minimum, in-depth 
training on the subjects covered in the orientation as well as infant 
and child (pediatric) CPR

[[Page 385]]

and first aid, which shall be updated as necessary to maintain current 
certifications.
    (iv) CDP direct care personnel and FCC providers shall complete a 
minimum of 24 hours per year of ongoing training by the DoD Component 
approved training program. Training shall include child abuse 
prevention, identification and reporting, safe infant sleep practices 
and SIDS prevention, working with children with special needs, and if 
required, administering medication.
    (v) Substitute FCC providers must complete a basic orientation and 
background checks prior to providing care. Such orientation includes 
child abuse prevention, identification and reporting, working with 
children with special needs, safety procedures and pediatric CPR and 
first aid, and SIDS prevention. The FCC provider's spouse may serve as a 
backup provider on a limited basis, as designated by the DoD Component 
and must complete the required substitute FCC provider training.
    (4) CDP Support Staff. CDP support staff shall participate in annual 
training related to the latest techniques and procedures in child care, 
including topics on child abuse prevention, identification and 
reporting, and other training related to their position.
    (f) Volunteers. All volunteers shall be screened, trained, and 
supervised in accordance with DoD Instruction 1402.5 and 32 CFR part 86; 
and DoD Instruction 1100.21, ``Voluntary Services in the Department of 
Defense'' (see http://www.dtic.mil/ whs/directives/corres/ pdf/
110021p.pdf) and DoD Component implementing guidance, as appropriate to 
their role. Volunteers may not be alone with children and are not 
counted in the staff ratio. All regularly scheduled volunteers shall be 
trained in:
    (1) Program orientation.
    (2) Age-appropriate learning activities.
    (3) Child abuse identification, reporting and prevention.
    (4) Age-appropriate guidance and discipline.
    (5) Working with children with special needs.
    (6) Child health and safety.
    (7) Safe infant sleep practices and SIDS prevention.
    (8) Emergency procedures.
    (9) Applicable regulations and installation policy.
    (10) Role of the volunteer in the CDP.
    (g) Supplemental Child Care. On-site group care services are 
designed to provide occasional, intermittent care to children on an 
hourly basis, including respite child care.
    (1) When on-site group care is provided in an installation CDP 
facility by CDP staff members, the requirements of this part apply.
    (2) When on-site group care is provided in a non-CDP facility by CDP 
personnel and parents are not on site, the requirements of this part 
apply.
    (3) When on-site group care is provided in a non-CDP facility by CDP 
personnel and parents remain on site, the facility is not required to 
meet the requirements of this part.
    (4) When on-site group care is provided in an alternative facility 
by volunteers or parents, and the parent or guardian remain on site, the 
requirements of this part do not apply.
    (h) Administration and Oversight of Community-Based Care Providers. 
(1) Types of Care. Efforts shall be made to expand the availability of 
these programs through referrals to comparable programs off of the 
installation through participation in consortiums with other Federal and 
non-governmental entities.
    (i) Efforts shall be made to ensure quality, affordable child care 
options exist for all eligible patrons, including those who are 
geographically dispersed active duty military and their families. 
Community-based child care options are designed to supplement, not 
replace, child care programs on the installation.
    (ii) Care may be delivered through military-approved community-based 
CDPs, utilizing a myriad of delivery systems, including existing child 
care facilities, schools, recreation and after-school and summer 
programs, and home-based care programs.
    (iii) Programs that support the needs of eligible deployed families 
in military-approved community-based child care programs where care is 
needed for a short-term basis during the deployment phase must meet the 
State licensing regulations and requirements

[[Page 386]]

and be inspected by an outside agency once a year. All other types of 
care must meet the intent of this part.
    (iv) Programs shall meet State licensing standards for background 
checks.
    (v) Military-approved community-based child care programs will be 
encouraged to participate in an evaluation process utilizing the ERIS in 
this section, a detailed assessment tool developed by the DoD to 
evaluate facility-based child care providers.
    (2) Subsidies.
    (i) The DoD Components may subsidize a portion of the cost of child 
care incurred by eligible active duty and DoD civilian employees.
    (ii) Subsidies resulting from the child care provided to children of 
active duty military members are excluded from gross income pursuant to 
26 U.S.C. 134.
    (iii) Subsidies provided to DoD civilian employees may qualify for 
exclusion from gross income, provided the specific program used 
qualifies under 26 U.S.C. 129(d) and the employee receives the subsidy 
for an eligible purpose on behalf of an eligible child as described in 
26 U.S.C. 21(a) and 21(b). Subsidies in excess of the excludable amounts 
will be treated as gross income under 26 U.S.C. 61. Employees are 
advised to consult with a qualified tax expert with questions or 
concerns related to taxability of child care subsidies.
    (iv) Child care programs and providers who offer their services 
under this provision must comply with the standards outlined in this 
part and must be approved by the plan administrator or designee prior to 
issuance of subsidy payments by a DoD Component.
    (v) The DoD Components are responsible for budgeting for child care 
subsidies and are not to establish a special fund out of which child 
care subsidies are paid, nor will eligible users of Military Child 
Development Programs be required to make a contribution as a condition 
of receiving a child care subsidy.
    (vi) The DoD Components have the discretion to amend or terminate 
their participation in a child care subsidy program under this plan at 
any time. The benefits in this section are not guaranteed and may be 
reduced by plan amendment.
    (vii) The OFP/CY will designate a TPA to administer the Military 
Department, Defense Agency, and DoD Field Activity civilian child care 
subsidy program for all DoD Components. Each civilian sponsor must 
register with the TPA contracted by the Defense Department.
    (A) The TPA shall annually document family and provider eligibility, 
TFI, child data, and other information required to comply with reporting 
requirements, in accordance with 26 U.S.C. 21(a), 21(b), 61, 129, and 
134.
    (B) The TPA shall provide authorization and payment of child care 
subsidies to the provider. All subsidy payments shall be made to the 
child care provider.
    (C) The TPA shall comply with fee assistance guidelines established 
by the individual DoD Components.
    (i) Augmented Program Support. When possible, CDPs should utilize 
personnel, such as behavioral health consultants and school liaison 
officers to assist the program staff and parents with children's social-
emotional development and behavior. These personnel shall assist staff, 
parents, and children in developing skills to respond to challenging 
behaviors and reduce stress for staff and participating children.
    (j) CDC and SAC Standards of Operation, FCC Standards of Operation, 
and the ERIS. (1) Table 1 outlines the minimum operational standards 
required for installation-based CDCs and SACs to receive the DoD 
Certificate to Operate. These standards implement the policy 
requirements of paragraphs (a), (c)-(f), and (i) of this section. When a 
SAC program operates within a CDC, SAC standards of operation shall be 
used for the SAC portion of the program.
    (2) Table 2 outlines the minimum operational standards required for 
installation-based and affiliated FCC providers to receive the DoD 
Certificate to Operate. These standards implement the policy 
requirements outlined in the body of this part.
    (3) Table 3 outlines the operational standards for community-based 
child

[[Page 387]]

care facilities. These standards, in addition to the state licensing 
requirements, may be used to determine eligibility of child care 
subsidies under conditions designated by the DoD Components. Programs 
eligible to receive child care subsidies when the Service member is 
deployed must meet the state licensing requirements and be annually 
inspected.

      Table 1--CDC and School-Age Programs Standards of Operations
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
A. Administrative
------------------------------------------------------------------------
Both CDC and SAC
------------------------------------------------------------------------
The program has implemented the fee policy in accordance with current
 DoD and DoD Component guidance. If appropriate, the program has an
 approved waiver to utilize the high cost fee option.
75 percent of the program's total labor hours are paid to direct program
 staff who are in benefit status.
Unannounced inspections are conducted by program staff following
 complaints.
------------------------------------------------------------------------
B. Facility
------------------------------------------------------------------------
Facility: Both CDC and SAC
------------------------------------------------------------------------
The DoD Certificate to Operate is displayed in a prominent location.
Newly constructed CDP facilities follow the UFC or Service guidance for
 program capacity and capability.
The facility food service area supports the sanitary preparation and
 service of healthy foods.
All playgrounds, playground surfaces, and equipment meet American
 Society for Testing and Materials and Consumer Product Safety
 Commission (CPSC) guidelines.
There is a balance of sun and shade on the playground and a variety of
 surfaces, such as resilient surfaces, and natural elements. CDC
 playgrounds include equipment for riding, climbing, balancing, and
 swinging.
The program provides opportunities for active play every day, indoors
 and outdoors. Children have ample opportunity to do vigorous activities
 such as running, climbing, dancing, skipping, and jumping.
Programs use gardens to educate children about healthy eating.
The square footage of useable space for each child in each activity room
 meets the requirements of the UFC or Service-specific guidelines.
Sound absorbing materials, such as ceiling tiles and rugs are used to
 minimize noise levels.
Areas used by children have adequate lighting for safety, evacuation,
 and security measures, are ventilated and kept at a comfortable
 temperature.
There is adequate and convenient storage space for equipment and
 materials.
Individual space is provided for each child's belongings.
Supervised private areas where children can play or work alone or with a
 friend are available indoors and outdoors.
Bathrooms, drinking water, and hand-washing facilities are easily
 accessible to children.
Clean, sanitary drinking water is readily available at all times.
The facility includes a place for adults to take a break away from
 children, an adult bathroom, a secure place for staff to store their
 personal belongings, and an administrative area for planning or
 preparing materials that is separated from the children's areas.
The facility includes soft elements that help create a home-like
 environment.
------------------------------------------------------------------------
Facility: CDC ONLY
------------------------------------------------------------------------
The square footage of activity space per child meets the requirements of
 the UFC or Service specifications for facilities built after 2002. A
 minimum of 50 square feet per child of activity space is provided for
 infants in facilities built prior to 2002.
If more than one care group occupies a single room, each group has its
 own defined physical space and primary interest centers.

[[Page 388]]

 
Outdoor play areas directly adjoin CDCs. Playgrounds for alternative
 program options must be accessible via a route free from hazards and
 are located within 1/8 mile from the facility.
Playgrounds are enclosed by a fence and meet the requirements of the
 UFC.
The square footage of playground space per child meets the requirements
 of the UFC or Service specific guidelines. The playground area is
 capable of supporting 30 percent of the total capacity of the CDC in a
 center of 100 or more children, and all the children in centers with a
 capacity of fewer than 100 children.
The facility has a designated place set aside for breastfeeding mothers
 who want to come during work to breastfeed, as well as a private area
 with an outlet (not a bathroom) for mothers to pump their breast milk.
------------------------------------------------------------------------
Facility: SAC ONLY
------------------------------------------------------------------------
There are separate male and female bathrooms for children as well as
 separate multi-unit restrooms for staff and visitors or a system to
 ensure that adults and teens do not use the bathrooms at the same time
 as children in SAC.
------------------------------------------------------------------------
C. Health and Sanitation
------------------------------------------------------------------------
Health and Sanitation: Both CDC and SAC
------------------------------------------------------------------------
A comprehensive health and sanitation inspection has been conducted
 within the last 12 months, corrective actions have been completed per
 specified timelines, and the inspection report is available for review.
The program shall require that all children enrolling in CDPs provide
 written documentation of immunizations appropriate for the child's age
 in accordance with Army Standard for Child Development Center. Children
 enrolled in the SAC program are not required to provide documentation
 if they are enrolled in a local public school system.
Staff employed by the CDP and regular volunteers shall be current for
 all immunizations recommended for adults by the ACIP of the Centers for
 Disease Control and Prevention. All must provide written documentation
 of immunization.
There is a policy in place that addresses the daily informal screening
 for illness based on criteria established by the DoD Component. This
 policy also addresses admission back into the CDP after an illness.
There is a policy in place that addresses food or other allergies,
 special accommodations, or potentially life-threatening conditions.
Individual medical problems and accidents are recorded and reported to
 management staff and families, and a written record is kept of such
 incidents.
Only physician-prescribed medications are administered; medications are
 only given with the written approval of the child's parents; and
 medications given are documented.
Providers have documented parental permission to apply basic topical
 care items such as sunscreen, insect repellant, and lotion.
A plan exists for dealing with medical emergencies that include written
 parental consent forms, and transportation arrangements approved by the
 DoD Component.
Policies and procedures are followed for administering and storing
 medication. Designated staff are trained to administer medications, and
 the training is updated annually or as required by state laws.
The facility is cleaned daily, and as needed throughout the day. Food
 preparation areas, bathrooms, diapering areas, hand-washing facilities,
 and drinking fountains are sanitary.
A sink with running water at a comfortable temperature of no more than
 110 degrees temperature is very close to bathrooms and diapering areas.
Staff and children wash hands before and after eating, after toileting
 and diapering, after handling animals, after entering the facility from
 outdoors, before water play, after wiping their nose, and after any
 other activity when the hands become contaminated. Signs are posted
 reminding staff and children of proper hand-washing procedures.

[[Page 389]]

 
Staff and volunteers follow universal precautions to prevent
 transmission of blood-borne diseases and the program has a blood-borne
 pathogen procedure, as required by the Occupational Safety and Health
 Administration (OSHA).
The program requires parents to provide proper attire for active play
 indoors and outdoors.
At least one staff member, who has certification in first aid treatment,
 including CPR for infants and children and emergency management of
 choking, is always present. Current certificates are kept on file.
------------------------------------------------------------------------
Health and Sanitation: CDC ONLY
------------------------------------------------------------------------
Infant equipment is washed and disinfected at least daily. Toys that are
 mouthed are removed immediately after mouthing and are washed and
 sanitized prior to being used by another child.
Individual bedding is washed at least once a week and used by only one
 child between washings. Individual cribs, cots, and mats are washed if
 soiled.
Diapering procedures are in accordance with national recommendations and
 are posted in diapering areas.
Sinks used for diapering are not co-located with food service areas or
 the sink used for dishwashing.
------------------------------------------------------------------------
D. Fire and Safety
------------------------------------------------------------------------
Fire and Safety: Both CDC and SAC
------------------------------------------------------------------------
Comprehensive fire and safety inspections have been completed within the
 last 12 months, corrective actions have been completed per specified
 timelines, and the inspection reports are available for review.
A safety walk-through of all play areas is conducted daily. Safety
 concerns are identified, documented, and corrected immediately or put
 off limits to children until they can be corrected.
The building, playground, and all equipment are maintained in safe,
 clean condition, are in good repair, and there are no observable safety
 hazards in the indoor and outdoor program space.
Stairways and ramps are well lighted and equipped with handrails, where
 appropriate.
Fire extinguishers, smoke detectors, and carbon monoxide detectors,
 where required, are in working order, and documentation shows status is
 checked monthly.
Adequate first aid supplies are readily available and maintained. First
 aid supplies are available during field trips and outings.
Toys and materials do not present a choking hazard for children under
 age 3 years.
Chemicals and potentially dangerous products, such as medicine or
 cleaning supplies, are stored in original, labeled containers in locked
 cabinets inaccessible to children. Diluted bleach solution must be
 accessible to staff in an unlocked location, but inaccessible to
 children.
There is a written plan for reporting and managing emergencies,
 including terrorist attacks, severe storm warnings, medical and
 pandemic emergencies, or a lost or missing child, which includes
 shelter in place and evacuation procedures. Staff and volunteers
 understand the plan.
Evacuation drills are conducted monthly at different times of the day or
 evening when children are in care. The drills are documented.
Emergency telephone numbers including police, fire, rescue, and poison
 control services are posted by telephones and are available at all
 times.
Staff and regular volunteers are familiar with primary and secondary
 evacuation routes and practice evacuation procedures monthly with
 children.
A system is in place to keep unauthorized people from taking children
 from the program.
Smoking and use of tobacco is not permitted in the facility or in the
 sight or presence of children.
------------------------------------------------------------------------
Fire and Safety: CDC ONLY
------------------------------------------------------------------------

[[Page 390]]

 
Cribs meet the current CPSC guidelines.
CPSC crib safety guidelines are followed: infants are placed on their
 backs for sleeping; soft cushions, such as pillows, comforters, thick
 blankets, quilts, or bumper pads are not used in cribs.
------------------------------------------------------------------------
E. Parent Involvement/Participation
------------------------------------------------------------------------
Parent Involvement/Participation: Both CDC and SAC
------------------------------------------------------------------------
Parents have access to their children at all times, are helped to feel
 welcome and comfortable, and are treated with respect.
Written information is available to families, including operating
 policies and procedures, program philosophy, and a parent participation
 plan.
Programs are encouraged to include the culture and language of the
 families they serve. Families are encouraged to share their heritage
 and culture.
Parents are offered a program orientation as a part of the child
 enrollment process.
Parents are informed about the program and curriculum and about policy
 or regulatory changes and other critical issues that could potentially
 affect the program, through newsletters, bulletin boards, technology,
 and other appropriate means.
Families are encouraged to participate in the planning and evaluation of
 the CDC and SAC programs with regards to their child's care and
 development. They are encouraged to be involved in the program in
 various ways, taking into consideration working parents and those with
 little spare time.
There is a parent board that meets on a scheduled basis through in-
 person or virtual meetings. The board meets periodically to provide
 opportunities for families to have input regarding policies,
 procedures, and plans for meeting children's needs.
Staff work in collaborative partnerships with families, establishing and
 maintaining daily or ongoing two-way communication with children's
 parents to build trust, share changes in a child's physical or
 emotional state regularly, facilitate smooth transitions for children,
 and ensure that children's learning and developmental needs are met.
Policies ensure that staff and parents have an effective way of
 negotiating difficulties and differences that arise in their
 interactions.
Programs inform families on how to increase physical activity, improve
 nutrition, and reduce screen time (TV, video games, computers, etc.).
The program provides information to parents to ensure that each child
 has routine health assessment by the child's primary care provider,
 according to standards of the AAP, to include evaluation for nutrition-
 related medical problems.
------------------------------------------------------------------------
Parent Involvement/Participation: CDC ONLY
------------------------------------------------------------------------
Conferences are held at least once per year and at other times, as
 needed, to discuss children's progress, accomplishments, and
 difficulties at home and at the program.
------------------------------------------------------------------------
F. Learning Activities and Interaction with Children
------------------------------------------------------------------------
Both CDC and SAC
------------------------------------------------------------------------
Learning activities reflect the program's written statement of its
 philosophy and goals for children. This statement is available to all
 staff and families.
The program is designed to reasonably accommodate and be inclusive of
 all children, including those with identified disabilities as well as
 special learning, medical, and developmental needs.
Programs have established a planned program of developmentally
 appropriate activities that recognizes the individual differences of
 children and provides an environment that encourages children's self-
 confidence, self-help, life skills, curiosity, creativity, and self-
 discipline.
Staff include age-appropriate nutrition education activities in the
 curriculum.
The daily schedule provides a balance of activities in consideration of
 the child's daily routine and experience.

[[Page 391]]

 
Staff are engaged and interact frequently with children, speaking in a
 friendly, positive, and courteous manner, respectful of gender, race,
 religion, family background, special needs, and culture. The physical
 environment supports these interactions.
Staff conduct smooth and unregimented transitions between activities and
 are flexible in changing planned or routine activities, as appropriate.
 Infants and toddlers are not expected to function in large group
 activities.
Staff use a variety of teaching strategies to enhance children's
 learning and development throughout the day.
Staff addresses bullying and supports positive behavior by modeling
 appropriate behavior, responding consistently to issues, and
 encouraging children to resolve their own conflicts, when possible and
 appropriate.
The outdoor environment meets the needs of children, allows them to be
 independent and creative, and have access to a variety of age-
 appropriate outdoor equipment and games. Staff plan and participate in
 children's active play.
Program materials are in good condition, sufficient for the number of
 children in the program, developmentally appropriate for the age of the
 children, and appropriate to the activities offered.
Screen time and the use of passive media is limited and developmentally
 appropriate. Media viewing and computer use is not permitted for
 children younger than 2 years.
------------------------------------------------------------------------
CDC Only
------------------------------------------------------------------------
There is a DoD Component-approved curriculum that supports school
 readiness. It is based on knowledge of child and youth development and
 learning, and assessment of individual needs and interests.
Developmentally appropriate activities emphasize concrete experiential
 learning and promote development in six developmental domains: social,
 physical, language and literacy, cognitive and intellectual, emotional,
 and cultural.
Individual observations of children's development and learning are
 written, compiled, assessed, and are used as a basis for planning
 appropriate learning activities.
Staff plan with families to make toileting, feeding, and the development
 of other self-regulation skills a positive experience for children.
------------------------------------------------------------------------
SAC Only
------------------------------------------------------------------------
Developmentally appropriate activities encourage physical fitness;
 positive self-esteem; intellectual, social, and physical achievement;
 leadership skills and initiative; lifelong recreation skill; positive
 use of leisure time; moral development and community leadership; self-
 reliance and independence; and respect for diversity.
SAC daily schedules are flexible, provide stability without being rigid,
 allow youth to
meet their physical needs (e.g., water, food, restrooms) in a relaxed
 way, allow children to move smoothly from one activity to another
 (usually at their own pace), and facilitate smooth transitions when it
 is necessary for children to move as a group.
Appropriate protected internet access and programs that teach technology
 are available.
------------------------------------------------------------------------
G. Nutrition and Food Service
------------------------------------------------------------------------
Both CDC and SAC
------------------------------------------------------------------------
Meals and snacks are a pleasant, social learning experience for
 children.
The DoD Components will establish policies that are consistent with USDA
 guidelines for meals provided by parents. Under limited circumstances
 when meals are provided by parents, food storage and handling
 procedures are approved by local health and sanitation authorities.
Unless documented circumstances approved by the DoD Component prevent
 enrollment, all programs must enroll in the USDA CACFP (United States
 Department of Agriculture Child and Adult Care Food Program).

[[Page 392]]

 
Dietary modifications are made on the basis of recommendations by the
 child's primary medical care provider and are documented. Documentation
 is available for religious and medical dietary substitutions. Menus
 contain some vegetarian meals.
The program provides or posts menus showing all foods to be served
 during that month. Core and cyclical menus are approved by a
 nutritionist or registered dietician. Foods typical of the child's
 culture and religious preferences, as well as a variety of healthful
 foods that may not be familiar to the child, are included.
The program provides healthy meals and snacks that include restrictions
 on the provision of juice and beverages with added sweeteners and no
 fried, high-fat, or highly salted foods.
Meals and snacks are conducted using family-style dining. In SAC
 programs, snacks may be served buffet style.
------------------------------------------------------------------------
CDC Only
------------------------------------------------------------------------
The program encourages, provides arrangements for, and supports
 breastfeeding.
There is an accountability system in place for bottles, including
 bottles for breast milk. Bottle-feeding is done in such a way as to
 minimize disease and promote interaction. Infants are held for bottle-
 feeding, bottles are never propped, never heated in a crock pot or
 microwave, and infants are never put to sleep with a bottle.
One adult should not feed more than one infant for bottle feeding, two
 children in high chairs, or three children who need assistance with
 feeding at the same time.
------------------------------------------------------------------------
H. Supervision of Children
------------------------------------------------------------------------
Both CDC and SAC
------------------------------------------------------------------------
The following staffing requirements are met at all times, except during
 nap time (for CDC):
    a. For infants from birth to 12 months, there are never more than
     four children per staff member.
    b. For pre-toddlers 13 months to 24 months, there are never more
     than five children per staff member.
    c. For toddlers, 25 months to 36 months, there are never more than
     seven children per staff member.
    d. For children 37 months through 5 years, there are never more than
     twelve children per staff member.
    e. For children 6 years through 12 years, there are never more than
     fifteen children per staff member.
During rest time, the staff-to-child ratios for children over 24 months
 of age may increase to twice the non-napping staff-to-child ratio.
 Sufficient staff are required to remain in the building during rest
 time to meet the non-napping ratios and be available to assist with
 emergencies.
The following maximum group sizes are followed at all times:
    a. For infants birth to 12 months, there are never more than eight
     children per group.
    b. For pre-toddlers 13 months to 24 months, there are never more
     than ten children per group.
    c. For toddlers, 25 to 36 months, there are never more than fourteen
     children per group.
    d. For children thirty-seven months through five years, there are
     never more than twenty-four children per group.
    e. For SAC, there are never more than thirty children per group.
In multi-age groupings, the Service may follow the ratio per age group.
 For example, four infants and five pre-toddlers equal a group of nine
 with two direct care personnel, or seven toddlers and twelve
 preschoolers equal a group of nineteen with two direct care personnel.
Volunteers or persons under 18 years of age may not be counted in
 determining compliance with staff-to-child ratios and are not allowed
 to work alone with children.
The program has an accountability system in place. Each staff member has
 primary responsibility and accountability for a group of children.
 There is specific accountability for each child by one staff member.
 Systems are in place for accounting for children's whereabouts,
 especially during periods of transition and emergencies.

[[Page 393]]

 
Children are released only to their parents or guardian. Children may be
 released to a designee when signed permission is given by the parent or
 guardian.
Families are notified about procedures and policies for field trips.
 Families are notified of all activities outside the center.
Children are under adult supervision at all times. Staff are not
 permitted to use personal electronic devices (including, but not
 limited to cell phones, iPods, smart phones, etc.) when supervising
 children.
------------------------------------------------------------------------
CDC Only
------------------------------------------------------------------------
At least two staff members must be present with each group of children
 at all times. When one staff person is alone with a single ratio of
 children, the program director or designee frequently monitors the room
 through closed circuit television or visual access panels to ensure
 oversight by more than one adult. In this case, the staff member must
 have an initiated National Agency Check Investigation (NACI) and the
 program director or designee must have a completed NACI.
Infants and toddlers spend the majority of the time interacting with
 staff who have primary responsibility for them each day.
------------------------------------------------------------------------
SAC Only
------------------------------------------------------------------------
At least two paid staff members shall be present whenever children are
 in the facility.
Adult volunteers may supplement paid staff during field trips and other
 activities away from the facility. Only paid staff are counted in the
 ratio.
Signed permission is given by the parent allowing the child to self-
 release for a specific organized activity. Self-release procedures are
 consistent with the installation home alone policy or self-care policy.
------------------------------------------------------------------------
I. Child Abuse Prevention and Reporting
------------------------------------------------------------------------
Both CDC and SAC
------------------------------------------------------------------------
A NACI to include a name-based criminal history record check (State and
 Federal) and fingerprint check has been initiated on all staff.
 Background checks are tracked to ensure completion in a timely manner.
All individuals in a CDP who have contact with children have completed a
 DD Form X656 ``Basic Criminal History and Statement of Admission''
Updates to the background checks are completed every five years.
Newly hired staff without a completed background check are readily
 identifiable and work within line of sight of a staff member with a
 completed check.
Hiring practices include careful checking of references of all potential
 employees and volunteers.
The program has a written guidance, discipline, and touch policy that is
 available to staff and families. Staff do not use corporal punishment
 or other negative discipline methods that hurt, humiliate, or frighten
 children.
The program has a child abuse and neglect policy that includes reporting
 requirements for staff as well as procedures to be followed should a
 staff member be accused of abuse or neglect. This information is
 included in employee handbooks. All staff are knowledgeable of the
 policy.
The DoD Child Abuse and Safety Hotline telephone number is displayed in
 a highly visible area where parents can see it. The telephone number is
 published in parent handbooks and other brochures.
The facility is designed in accordance with the Unified Facilities
 Criteria (UFC) 4-740-14, ``Design: Child Development Centers,'' to help
 minimize the risk of child abuse:
    a. Access to children by those not employed by the program is
     restricted.
    b. Areas to which a child or children can be taken out of view of
     others are limited.
    c. All exit doors that do not open onto a fenced area have operating
     alarms, except the main entrance to the facility and the kitchen
     entrance.

[[Page 394]]

 
    d. Evening or weekend care is provided in rooms located near the
     front entryway to facilitate additional supervision by the front
     desk staff and parents.
    e. In the CDC:
        1) Children can be observed at all times by parents and
         supervisors.
        2) There is visual access into and throughout activity rooms
         used for care, including nap time. Closed-circuit television,
         vision panels, and convex mirrors are used as necessary to
         facilitate visual access.
        3) Diapering areas are visible.
All persons other than employees and family members bringing in or
 picking up children sign in and out at the front desk or with
 appropriate personnel. Visitors to the CDP shall sign in and out of the
 facility and wear a visitors badge at all times while they are in the
 facility or on playgrounds.
If transportation is provided for children by the program, vehicles are
 equipped with age-appropriate restraint devices in accordance with
 State and Federal requirements. The program maintains documentation
 that vehicles used in transporting children are appropriately licensed,
 inspected, and maintained. A current copy of the appropriate driver's
 license and Department of Motor Vehicles driving record is on file for
 staff members who transport children.
In SAC programs, a procedure for accountability when a child fails to
 show for the program is in place and followed.
------------------------------------------------------------------------


                   Table 2--FCC Standards of Operation
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
A. Administrative
------------------------------------------------------------------------
The installation regulates FCC in accordance with DoD Component
 requirements, ensuring care is not permitted unless subject to
 inspection and approval.
Processes are in place to support recruitment and retention of FCC
 providers.
Unannounced inspections are conducted by program staff following
 complaints.
------------------------------------------------------------------------
B. Home
------------------------------------------------------------------------
Where applicable, the DoD Component has a process to register and
 certify homes located off the installation or in privatized government
 housing.
The Certificate to Operate, issued by the DoD Component or designee, is
 displayed in a prominent location.
Providers can demonstrate proof of current liability insurance.
There is a signed contract between each family and provider. Parents are
 informed of changes in the provider's household composition.
Children are cared for by the provider or an approved substitute.
 Parents and the FCC administrator are informed when a substitute
 provider will be caring for their children. Civilian members of the
 provider's household providing care as a substitute must be approved
 and trained. Active duty Military Service members may serve as
 substitute providers only under circumstances approved by the DoD
 component.
There is adequate space indoors and outdoors in the home for the number
 of children in care to play, rest, and eat.
------------------------------------------------------------------------
C. Health and Sanitation
------------------------------------------------------------------------
On installations, comprehensive fire, safety, and sanitation inspections
 have been completed within the last 12 months, and the inspection
 reports are available for review.
The provider notifies parents and FCC of medical emergencies,
 communicable diseases or illness of the children, the provider, or the
 provider's family member(s). Health consultants will be informed based
 on installation policy.
Children are informally screened daily for illness based on criteria
 established by the DoD Component. Children are readmitted after illness
 only when their presence no longer endangers the health of other
 children.

[[Page 395]]

 
Only physician-prescribed medications are administered; medications are
 only given with the written approval of the child's parents; and
 medications given are documented.
Providers have documented parental permission to apply basic topical
 care items such as sunscreen, insect repellant, and lotion.
Procedures for diapering, hand washing, and toileting are followed in
 accordance with national recommendations.
Providers follow universal precautions to prevent transmission of blood-
 borne diseases, and the provider has a blood-borne pathogen procedure,
 as required by OSHA.
Providers and children wash hands before and after eating, after
 toileting and diapering, after handling animals, after entering the
 home from outdoors, before water play, after wiping their nose, and
 after any other activity when the hands become contaminated. Signs are
 posted reminding providers and children of proper hand-washing
 procedures.
Homes are maintained in a sanitary manner.
Individual bedding is washed at least once a week and used by only one
 child between washings. Individual cribs, cots, and mats are washed if
 soiled.
Infant equipment is washed and disinfected at least daily. Toys that are
 mouthed are removed immediately after mouthing and are washed and
 sanitized prior to being used by another child.
All windows used for ventilation are properly screened.
Providers do not consume alcohol while children are in care.
Smoking is not permitted in the home or outdoor area while children are
 in care.
------------------------------------------------------------------------
D. Fire and Safety
------------------------------------------------------------------------
There are policies in place to ensure the home operates to protect
 children against the risk of fire and safety hazards.
There is a policy to keep children protected from hazards stemming from
 poisoning, toxic materials, electrical shock, standing water, unsafe
 playground equipment, and strangulation.
There is a written plan for reporting and managing emergencies,
 including terrorist attacks, severe storm warnings, medical and
 pandemic emergencies, or a lost or missing child, which includes
 shelter in place and evacuation procedures. Providers and volunteers
 understand the plan.
First aid supplies are readily available for emergencies and maintained.
Evacuation drills are conducted monthly at different times of the day or
 evening when children are in care. The drills are documented.
There is a working landline or cellular phone within the home. Emergency
 telephone numbers including police, fire, rescue, and poison control
 services, and instructions are accessible or kept with the
 telephone(s).
Providers use safety gates to prevent children from falls. Door locks
 that can entrap children inside a bathroom or bedroom may be opened
 from the outside.
If there are firearms in the home, the ammunition must be removed from
 the firearm. Firearms and ammunition are stored separately in locked
 cabinets that are inaccessible to children.
Young infants are placed on their backs for sleeping to lower the risk
 of SIDS. Soft cushions, pillows, thick blankets, and comforters are not
 used in cribs.
Providers shall not permit children to sleep in family beds unless a
 separate bed is designated for the child and clean linens are provided.
Cribs meet CPSC guidelines. The sides of infants' cribs shall be in a
 locked position when cribs are occupied and do not present a
 strangulation or entrapment hazard.
Providers inform parents if they will be taking children from the home
 while they are in care.
If transportation is provided for children by the provider, age-
 appropriate restraint devices are used, and appropriate safety
 precautions are taken.
A current copy of the driver's license and proof of insurance is on file
 for providers who transport children.
------------------------------------------------------------------------
E. Parent Involvement/Participation
------------------------------------------------------------------------
Parents are given access to the home at all times when their children
 are present.
Parents are provided with a copy of policies governing FCC.

[[Page 396]]

 
The provider communicates regularly with parents and recognizes them as
 partners in the care of children, and there is a prominent place to
 display information for parents.
Parents are provided with information about the importance of routine
 health supervision by the child's primary care provider, according to
 standards of the AAP, to include evaluation for nutrition-related
 medical problems.
------------------------------------------------------------------------
F. Learning Activities and Interaction with Children
------------------------------------------------------------------------
Activities and experiences are provided daily that enhance children's
 physical, social, emotional, and cognitive development.
Activities include age-appropriate nutrition education.
There are enough toys and materials, home-made or purchased, to engage
 all the children in developmentally appropriate ways.
Toys, materials, and equipment are in good repair and are arranged so
 children are able to select and put toys and materials away with little
 or no assistance.
A variety of daily activities is planned for indoors and outdoors. There
 is a balance between child-initiated and adult-directed activities. A
 daily schedule of activities is posted for parents to see.
The provider plans and participates in children's active play.
The provider interacts frequently with the children and shows them
 affection and respect. The provider speaks to children in a friendly,
 courteous manner.
Children's routines are handled in a relaxed and individualized manner
 that promotes respect and opportunities to develop self-esteem, self-
 discipline, and learning by doing.
Screen time (e.g., non-active video games) and the use of passive media,
 (e.g., television, audio tapes), are limited and developmentally
 appropriate. Media viewing and computer use are not permitted for
 children younger than 2 years.
The provider observes and evaluates each child's growth and development
 for program planning.
------------------------------------------------------------------------
G. Nutrition and Meal Service
------------------------------------------------------------------------
Unless documented circumstances prevent enrollment, providers are
 offered the opportunity to enroll in the USDA CACFP and all meals and
 snacks are prepared, handled, transported, and served according to USDA
 CACFP guidelines found in 7 CFR part 226.
Providers develop written menus showing all foods to be served during
 that month, and the menus are available to parents and guardians. Menus
 are posted for meals and snacks.
Dietary modifications are made on the basis of recommendations by the
 child's primary care provider and are documented. Documentation is
 available for religious and medical dietary substitutions. Menus
 contain some vegetarian meals.
Meals and snacks include restrictions on the provision of juice and
 beverages with added sweeteners and limited high-fat and salted foods.
Food is prepared, served and stored in a sanitary manner. If meals are
 provided by parents, food storage and handling procedures are approved
 by local health and sanitation authorities.
All children present are served meals or snacks. Meals and snacks for
 toddlers, preschool, and school-age children use family-style dining.
Bottle-feeding is done in such a way as to minimize disease and promote
 interaction. Infants are held for bottle-feeding. Bottles are never
 propped, never heated in a crock pot or microwave, and infants are
 never put to sleep with a bottle.
There is an accountability system in place for bottles, including
 bottles for breast milk.
The provider encourages, provides arrangements for, and supports
 breastfeeding. There is an accountability system in place for bottles.
------------------------------------------------------------------------
H. Supervision of Children
------------------------------------------------------------------------
The maximum group size in a home is six children per provider, including
 the provider's own children under the age of eight.

[[Page 397]]

 
    a. When all children are under the age of two, the maximum group
     size at any one time is three.
    b. In mixed-age groups, the number of children under two years of
     age is limited to two children.
    c. When all children are school-age, the maximum group size is
     eight.
Parents sign children in and out of the home on a daily basis. Children
 are only released to persons that parents have authorized in writing.
 Children may sign themselves out of the home consistent with the
 installation home alone policy or self-care policy and parental
 consent.
Providers supervise all children in care both inside and outdoors.
 School-age children may be outside without direct supervision as long
 as they are within sight or sound of the provider.
------------------------------------------------------------------------
I. Child Abuse Prevention and Reporting
------------------------------------------------------------------------
Providers, substitute providers, and individuals age 18 and older living
 in the home, must complete a background check annually.
All individuals in a CDP who have contact with children have completed a
 DD Form X656 ``Basic Criminal History and Statement of Admission''.
The DoD Child Abuse and Safety Hotline telephone number is displayed in
 a highly visible area where parents can see it. The telephone number is
 published in parent materials.
Children are never left alone with a visitor or another adult who is not
 authorized to care for children.
There is a guidance policy in place, and providers do not use corporal
 punishment or other negative discipline methods that hurt, humiliate,
 or frighten children.
------------------------------------------------------------------------


                              Table 3--ERIS
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Oversight
------------------------------------------------------------------------
The State Child Care Licensing/Regulating Agency conducts an annual on-
 site inspection of the facility and program.
------------------------------------------------------------------------
SCR 01--Staff-Child Ratio/Group Size (SCR)
------------------------------------------------------------------------
                                Standard
------------------------------------------------------------------------
SCR 01.01.........................  RATIO (number of children per child
                                     care provider/staff). Ratios must
                                     be equal to or lower than:
                                      1:4 or less for infants (birth to
                                    12 months).
                                      1:5 or less for pre-toddlers (13-
                                    24 months).
                                      1:7 or less for toddlers (25-36
                                    months).
                                      1:12 or less for preschool (37
                                    months-5 years).
                                      1:15 or less for school age (6-12
                                    years).
SCR 01.02.........................  GROUP SIZE (the total number of
                                     children within various age
                                     groups). Group size must be equal
                                     to or lower than:
                                      Eight or less for infants (birth
                                    to 12 months) with two caregiving
                                    staff per eight infants.
                                      Ten or less for pre-toddlers (13-
                                    24 months) with two caregiving staff
                                    per ten pre-toddlers.
                                      Fourteen or less for toddlers (25-
                                    36 months) with two caregiving staff
                                    per fourteen toddlers.
                                      Twenty four or less for preschool
                                    (27 months-5 years) with two
                                    caregiving staff per twenty four
                                    preschoolers.
                                      Twenty four/thirty or less for
                                    school age (6-12 years) with two
                                    caregiving staff per twenty four/
                                    thirty school agers.

[[Page 398]]

 
SCR 01.03.........................  MULTI-AGE GROUPINGS (more than one
                                     age group in a room). No more than
                                     TWO AGE GROUPs may be combined
                                     within 18 month range (THIS DOES
                                     NOT APPLY TO SAC). Each age group
                                     is represented by appropriate
                                     ratio. Examples: two caregiving
                                     staff: four infants and five pre-
                                     toddlers; twp caregiving staff:
                                     five pre-toddlers and seven
                                     toddlers; two caregiving staff:
                                     seven toddlers and twelve
                                     preschoolers.
------------------------------------------------------------------------
BAC 02--Background Check/Child Abuse Prevention (BAC)
------------------------------------------------------------------------
                                Standard
------------------------------------------------------------------------
BAC 2.01..........................  Background checks are completed and
                                     documented for each employee or
                                     regular volunteer who is in contact
                                     with children, including
                                     management, administration,
                                     classroom, support staff, and
                                     individuals contracted for hire.
BAC 02.02.........................  Background checks are renewed and
                                     documented every 5 years for each
                                     employee or regular volunteer who
                                     is in contact with children,
                                     including management and
                                     administration, classroom staff,
                                     and support staff.
BAC 02.03.a.......................  Background checks include
                                     documentation of State Criminal
                                     History Repository completed for
                                     all states that an employee or
                                     prospective employee lists as
                                     current and former residences, in
                                     an employment application by using
                                     fingerprints.
BAC 02.03.b.......................  Background checks include
                                     documentation of FBI fingerprint
                                     check and name-based criminal
                                     history records check of law
                                     enforcement records completed for
                                     any States lived in by applicant
                                     during the past 5 years.
BAC 02.03.c.......................  Background checks include
                                     documentation of a review of the
                                     State Child Abuse Registry.
BAC 02.03.d.......................  Background checks include a review
                                     of the State Sex Offender Registry.
BAC 02.04.........................  Each employee and regular volunteer
                                     is trained annually about child
                                     abuse prevention, common symptoms,
                                     and signs of child abuse.
BAC 02.05.........................  All employees and regular volunteers
                                     are trained annually on HOW to
                                     report, WHERE to report, and WHEN
                                     to report possible child abuse or
                                     neglect.
------------------------------------------------------------------------
SR 03--Staff Requirements (SR)
------------------------------------------------------------------------
                                Standard
------------------------------------------------------------------------
SR 03.01.a........................  Director has a minimum of a
                                     Bachelor's Degree (BA) in childhood
                                     education, child development,
                                     social work, nursing, or other
                                     child-related field AND experience
                                     working with the age groups
                                     enrolled in the program.
                                    In the event that the director does
                                     not have a BA degree in those
                                     areas, the director must have an AA
                                     degree and must be working toward
                                     the completion of a BA degree.
SR 03.01.b........................  The director is not responsible for
                                     a classroom of children.
SR 03.02..........................  The direct care personnel are at
                                     least 18 years old and have a high
                                     school diploma or a graduation
                                     equivalency diploma (GED).
------------------------------------------------------------------------
TRG 04--Training Requirements (TRG)
------------------------------------------------------------------------

[[Page 399]]

 
                                Standard
------------------------------------------------------------------------
TRG 04.01.........................  Orientation is provided for each
                                     staff member and includes training
                                     on the following: early childhood
                                     development and education; child
                                     abuse recognition, prevention, and
                                     reporting; safety; first aid;
                                     proper hygiene; and positive
                                     guidance.
TRG 04.02.a.......................  There is an annual training plan for
                                     directors. Topics shall include,
                                     but are not limited to:
                                      Child abuse prevention and
                                    positive guidance.
                                      Universally accepted health and
                                    safety practices to include hand
                                    washing.
                                      Emergency preparedness and
                                    evacuation procedures.
                                      Social and emotional needs of
                                    children.
                                      Developmentally appropriate
                                    practices.
                                      General management practices, such
                                    as financial management, facility
                                    management, staff development, and
                                    working with parents.
                                      Safe sleep practices.
TRG 04.02.b.......................  There is an annual training plan for
                                     staff that include topics such as:
                                      Child abuse prevention and
                                    positive guidance.
                                      Universally accepted health and
                                    safety practices to include hand
                                    washing.
                                      Social and emotional needs of
                                    children.
                                      Developmentally appropriate
                                    practices.
TRG 04.03.........................  Staff complete forty hours of
                                     initial orientation training within
                                     the first three months.
TRG 04.04.........................  Staff are required to complete at
                                     least 24 hours of training per
                                     year.
TRG 04.05.........................  At least one staff member certified
                                     in emergency pediatric first aid
                                     treatment, including CPR for
                                     infants and children and emergency
                                     management of choking, is present
                                     in the facility during hours of
                                     operation.
------------------------------------------------------------------------
IMM 05--Immunizations (IMM)
------------------------------------------------------------------------
                                Standard
------------------------------------------------------------------------
IMM 05.01.........................  Children's records include EITHER:
                                      Documentation of current age-
                                    appropriate immunizations, as
                                    recommended by the AAP; OR
                                      A letter of exception on file and
                                    a statement of medical religious
                                    exception.
IMM 05.02.........................  Staff files include a copy of a TB
                                     screening. Also included is
                                     documentation of a general health
                                     assessment or a physical
                                     examination completed during
                                     employment in-processing.
                                     Information is available at: http://
                                     www.cdc.gov/media/.
------------------------------------------------------------------------
SUP 06--Supervision/Guidance (SUP)
------------------------------------------------------------------------
                                Standard
------------------------------------------------------------------------
SUP 06.01.a.......................  The written policies and practices
                                     of the program specify that staff
                                     supervise children at all times,
                                     including nap times. No child is
                                     left alone or unsupervised.
SUP 06.01.b.......................  The written policies and practices
                                     of the program specify that
                                     children are released only to
                                     persons listed on the child's
                                     registration form or for whom the
                                     parents have provided written
                                     authorization.
SUP 06.01.c.......................  The written policies and practices
                                     of the program specify that parent,
                                     or authorized adult, signs children
                                     in and out upon arrival and
                                     departure each day, and attendance
                                     records are kept.

[[Page 400]]

 
                                    A system is in place for accounting
                                     for school-age arriving from school
                                     or other activities without the
                                     parent (for example, children
                                     transported to the program by a
                                     school bus).
SUP 06.02.........................  Organizational policy prohibits:
                                     punishment by spanking or hitting
                                     or other physical means, to include
                                     corporal punishment; isolation from
                                     adult sight; confinement, binding,
                                     humiliation, or verbal abuse;
                                     deprivation of food and water,
                                     outdoor play or activities, or
                                     other program components;
                                     inappropriate touch; and punishment
                                     for lapses in toilet training or
                                     refusing food.
------------------------------------------------------------------------
DRL 07--Evacuation and Fire Drills (DRL)
------------------------------------------------------------------------
                                Standard
------------------------------------------------------------------------
DRL 07.01.........................  The program has a written plan for
                                     emergency evacuation (for example,
                                     a plan for evacuating building
                                     occupants in case of fire, tornado,
                                     earthquake, hurricane, or other
                                     disaster that could pose a health
                                     and safety hazard).
DRL 07.02.........................  Procedures are in place to ensure
                                     all children in attendance are
                                     accounted for during an evacuation
                                     drill or event.
DRL 07.03.........................  There is an automatic fire detection
                                     and alarm system in place, and it
                                     is operational.
DRL 07.04.........................  A fire extinguisher is accessible
                                     and in operating condition.
DRL 07.05.........................  Fire and emergency evacuation drill
                                     procedures are practiced at least
                                     monthly.
------------------------------------------------------------------------
HWD 08--Hand Washing and Diapering (HWD)
------------------------------------------------------------------------
                                Standard
------------------------------------------------------------------------
HWD 08.01.........................  Policies are in place to ensure
                                     staff and children wash their hands
                                     with soap and warm running water:
                                      Before eating or food preparation.
                                      After toileting or changing
                                    diapers.
                                      After handling animals, and after
                                    any other activity when the hands
                                    may become contaminated to include
                                    returning from outside.
HWD 08.02.........................  Toileting and diapering areas are
                                     not located in food preparation
                                     areas. The areas are in easily
                                     visible locations and are sanitary.
------------------------------------------------------------------------
MED 09--Medication and Health (MED)
------------------------------------------------------------------------
                                Standard
------------------------------------------------------------------------
                                    If the program does not administer
                                     medications, proceed to 09.02.
MED 09.01.a.......................  The program has a written policy and
                                     clear procedures on administering
                                     medicine, proper storage, and
                                     labeling.
MED 09.01.b.......................  If medication (prescription and/or
                                     over-the-counter) is administered,
                                     written parental permission is kept
                                     on file and instructions from a
                                     physician are required (``N/A'' is
                                     allowed if no children currently
                                     receive medication).
MED 09.01.c.......................  Designated staff are trained to
                                     administer the medicine, and the
                                     training is updated annually.
MED 09.02.........................  First aid kits are readily available
                                     and maintained.
MED 09.03.a.......................  Programs provide healthy meals and
                                     snacks consistent the U.S. Dietary
                                     Guidelines and are encouraged to
                                     participate in the USDA CACFP.
MED 09.03.b.......................  Programs are encouraged to limit
                                     sugar-sweetened juices, beverages,
                                     and snacks, and high-fat and high-
                                     salt foods.

[[Page 401]]

 
MED 09.04.........................  Bottle-feeding is done in such a way
                                     to minimize disease and promote
                                     interaction. For example, infants
                                     are held for bottle-feeding,
                                     bottles are never propped, never
                                     heated in a crock pot or microwave,
                                     and infants are never put to sleep
                                     with a bottle.
------------------------------------------------------------------------
EMG 10--Emergency Plan/Contact Information (EMG)
------------------------------------------------------------------------
                                Standard
------------------------------------------------------------------------
EMG 10.01.a.......................  There is a written plan for
                                     reporting and managing a lost or
                                     missing child.
EMG 10.01.b.......................  There is a written plan for
                                     reporting and managing injuries
                                     requiring medical or dental care,
                                     including hospitalization or
                                     serious injury.
EMG 10.01.c.......................  There is a written plan for
                                     reporting and managing abuse or
                                     neglect of a child.
EMG 10.01.d.......................  There is a written policy that
                                     requires all parents to provide
                                     emergency information to include:
                                      Multiple contact phone numbers
                                    (work, cellular, home).
                                      Emergency contact phone numbers
                                    (relatives or friends) authorized to
                                    pick up the child if parent cannot
                                    be reached.
                                      The child's physician, dentist,
                                    and emergency room preference.
------------------------------------------------------------------------
OUT 11--Outdoor Play Area (OUT)
------------------------------------------------------------------------
                                Standard
------------------------------------------------------------------------
OUT 11.01.........................  The playground and all equipment are
                                     maintained in safe, clean
                                     condition, in good repair, and
                                     there are no observable safety
                                     hazards and no entrapment areas.
OUT 11.02.........................  Playground equipment is surrounded
                                     by resilient surfaces (e.g., fine,
                                     loose sand, wood chips, wood mulch)
                                     of an acceptable depth (9 inches)
                                     or by rubber mats manufactured for
                                     such use.
OUT 11.03.........................  The playground equipment is arranged
                                     to ensure that a child is visible
                                     and supervision is maintained.
OUT 11.04.........................  There is a plan to check and inspect
                                     playgrounds on a weekly basis. Each
                                     staff member is responsible for
                                     immediately reporting hazards or
                                     unsafe areas to the director.
------------------------------------------------------------------------
HAZ 12--Hazardous Materials and General Safety (HAZ)
------------------------------------------------------------------------
                                Standard
------------------------------------------------------------------------
HAZ 12.01.........................  Accident protection and liability
                                     insurance coverage are maintained
                                     for children and adults.
HAZ 12.02.........................  All chemicals and potentially
                                     dangerous products, such as
                                     medicine or cleaning supplies are
                                     stored in original, labeled
                                     containers in locked cabinets
                                     inaccessible to children.
HAZ 12.03.........................  Poisonous or potentially harmful
                                     plants on the premises are
                                     inaccessible to children.
HAZ 12.04.........................  Children are protected from
                                     accidental drowning by limiting
                                     access to all bodies of water.
HAZ 12.05.........................  Electrical outlets are covered in
                                     all areas accessible to children,
                                     including corridors.
HAZ 12.06.........................  Toys and art supplies are made of
                                     safe, non-toxic, durable, and
                                     cleanable materials.
HAZ 12.07.........................  There are no items that could cause
                                     choking or strangulation.
                                    Additional information is available
                                     at: http://www.cpsc.gov/.

[[Page 402]]

 
HAZ 12.08.a.......................  Infants are placed on their backs
                                     for sleeping to lower the risk of
                                     SIDS.
HAZ 12.08.b.......................  Staff make sure that soft surfaces
                                     such as pillows, quilts, thick
                                     blankets, and soft bumpers are not
                                     used in the crib.
HAZ 12.09.........................  The building has been inspected for
                                     dangerous substances such as lead,
                                     radon, formaldehyde, asbestos,
                                     etc., in accordance with State
                                     requirements.
------------------------------------------------------------------------
PAR 13--Parent Involvement (PAR)
------------------------------------------------------------------------
                                Standard
------------------------------------------------------------------------
PAR 13.01.........................  Families are offered an orientation
                                     and information prior to enrolling
                                     to include: hours of operation,
                                     enrollment policies, program costs,
                                     inclusion of special needs
                                     children, and opportunities for
                                     parent involvement.
PAR 13.02.........................  The program policy clearly includes
                                     open door policy; family members
                                     are welcome visitors in the program
                                     at all times.
PAR 13.03.........................  The program provides opportunities
                                     for communication between parents
                                     and staff verbally or in writing on
                                     a daily basis.
------------------------------------------------------------------------
DEV 14--Developmentally Appropriate Environment and Materials (DEV)
------------------------------------------------------------------------
                                Standard
------------------------------------------------------------------------
DEV 14.01.........................  Classrooms are arranged to
                                     facilitate a variety of activities
                                     for each age group and provide
                                     areas where children can play and
                                     work independently or with friends.
DEV 14.02.........................  Classrooms are well lit, ventilated,
                                     and kept at a comfortable
                                     temperature.
DEV 14.03.a.......................  Staff offer a variety of
                                     developmentally appropriate
                                     activities and materials for
                                     children indoors and outdoors that
                                     are respective of children's race,
                                     gender, religion, family
                                     background, culture, age, and
                                     special needs and include:
                                      Language and literacy.
                                      Physical development.
                                      Health, safety, and nutrition.
                                      Creative expression.
                                      Cognitive development.
                                      Social and emotional development.
DEV 14.03.b.......................  Weekly classroom schedules include
                                     opportunities for alternating
                                     periods of quiet and active play,
                                     child-initiated and teacher-
                                     initiated activity, and individual,
                                     small group, and large group
                                     activities. Schedules are available
                                     for parents to review.
DEV 14.03.c.......................  Programs provide an opportunity for
                                     physical activity on a daily basis.
DEV 14.03.d.......................  Screen time (e.g., non-active video
                                     games) and the use of passive media
                                     (e.g., television, audio tapes) are
                                     limited and developmentally
                                     appropriate.
------------------------------------------------------------------------



PART 86_BACKGROUND CHECKS ON INDIVIDUALS IN DOD CHILD CARE SERVICES 
PROGRAMS--Table of Contents



Sec.
86.1 Purpose.
86.2 Applicability.
86.3 Definitions.
86.4 Policy.
86.5 Responsibilities.
86.6 Procedures.

    Authority: 5 U.S.C. 2105, 10 U.S.C. chapter 47, and 42 U.S.C. 13041.

[[Page 403]]


    Source: 80 FR 55756, Sept. 17, 2015, unless otherwise noted.



Sec.  86.1  Purpose.

    This part establishes policy, assigns responsibilities, and provides 
procedures to conduct criminal history checks on individuals involved in 
the provision of child care services for children under the age of 18 in 
DoD programs.



Sec.  86.2  Applicability.

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



Sec.  86.3  Definitions.

    Unless otherwise noted, these terms and their definitions are for 
the purposes of this part.
    Adjudication. The evaluation of pertinent data in a background 
investigation, as well as any other available information that is 
relevant and reliable, to determine whether an individual is suitable 
for work.
    Adult. An individual 18 years of age or older regarded in the eyes 
of the law as being able to manage his or her own affairs.
    Applicant. A person upon whom a criminal history background check 
is, will be, or has been conducted, including individuals who have been 
selected or are being considered for a position subject to a criminal 
history background check, and individuals undergoing a recurring 
criminal history background check. Includes current employees.
    Child. A person under 18 years of age.
    Care provider. Current or prospective individuals hired with 
appropriated funds (APF) and nonappropriated funds (NAFs) for education, 
treatment or healthcare, child care or youth activities; individuals 
employed under contract who work with children; and those who are 
certified for care. Individuals working within programs that include: 
Child Development Programs, DoD dependents schools, DoD-operated or -
sponsored activities, foster care, private organizations on DoD 
installations, and youth programs.
    Child care services. Care or services provided to children under the 
age of 18 in settings including child protective services (including the 
investigation of child abuse and neglect reports), social services, 
health and mental health care, child (day) care, education (whether or 
not directly involved in teaching), foster care, residential care, 
recreational or rehabilitative programs, and detention, correctional, or 
treatment services, as defined in 42 U.S.C. 13041.
    Class. With regard to the designation of positions, a categorical 
descriptor identifying employee, contractor, provider, or volunteer 
positions by group rather than by individual position or title (e.g., 
``doctors'' or ``individuals supervising children in a school'').
    Contractor. Any individual, firm, corporation, partnership, 
association, or other legal non-Federal entity that enters into a 
contract directly with DoD or a DoD Component to furnish supplies, 
services, or both including construction. Foreign governments or 
representatives of foreign governments that are engaged in selling to 
DoD or a DoD Component are defense contractors when acting in that 
context. A subcontractor is any supplier, distributor, vendor, or firm 
that furnishes supplies or services to or for a prime contractor or 
another subcontractor.
    Covered position. Defined in volume 731 of DoD Instruction 1400.25, 
``DoD Civilian Personnel Management System'' (available at http://
www.dtic.mil/whs/ directives/corres/pdf/ 140025v731.pdf).
    Criminal history background checks. A review of records, 
investigative reports, and other investigative elements to generate 
criminal history background findings to be used to make fitness or 
suitability determinations.
    Derogatory information. Information that may reasonably justify an 
unfavorable personnel suitability or fitness determination because of 
the nexus between the issue or conduct and the core duties of the 
position.
    DoD affiliation. A prior or current association, relationship, or 
involvement

[[Page 404]]

with the DoD or any elements of DoD, including the Military Departments.
    DoD-sanctioned programs. Any program, facility, or service funded, 
or operated by the DoD, a Military Department or Service, or any agency, 
unit, or subdivision thereof. Examples include, but are not limited to, 
chapel programs, child development centers, family child care (FCC) 
programs, medical treatment facilities, Department of Defense Education 
Activity (DoDEA) schools, recreation and youth programs. These do not 
include programs operated by other State or Federal government agencies 
or private organizations without the official sanction of a DoD entity.
    Duties. Those activities performed as an employee, contractor, 
provider, or volunteer that involve interaction with children, including 
any work performed in a child development program or DoDEA school.
    Employee. An individual, paid from funds appropriated by the 
Congress of the United States, or an individual employed by a NAF 
instrumentality in accordance with 5 U.S.C. 2105(c). Includes foreign 
nationals in accordance with Volume 1231 of DoD Instruction 1400.25, 
``DoD Civilian Personnel Management System'' (available at http://
www.dtic.mil/whs/ directives/corres/pdf/ 1400.25-V1231.pdf), Military 
Service members working during their off-duty hours, and non-status, 
non-continuing temporary positions with specified employment periods not 
to exceed 1 year such as summer hires, student interns, and seasonal 
hires.
    FAP. Defined in DoD Directive 6400.1, ``Family Advocacy Program 
(FAP)'' (available at http://www.dtic.mil/ whs/directives/corres/pdf/ 
640001p.pdf).
    FAP records check. A review of FAP records maintained on an 
individual, including records maintained by the installation office and 
records in the Service Child and Spouse Abuse Central Registry in 
accordance with DoD Directive 6400.1. If the individual is the spouse or 
dependent of a Service member, this may entail review of records 
maintained on the sponsoring Service member. Installation and Service 
Central Registry checks are limited to identifying pending and met 
criteria incidents of maltreatment and do not include information 
related to incidents that did not meet criteria or any information 
contained in the clinical case record that is protected by section 
1320d-6 or 5 U.S.C. 552a.
    Federal Bureau of Investigation (FBI) criminal history background 
check. An FBI identification record--often referred to as a criminal 
history record or a ``rapsheet''--is a listing of certain information 
taken from fingerprint submissions retained by the FBI in connection 
with arrests and, in some instances, federal employment, naturalization, 
or military service. The process of responding to an identification 
record request is generally known as a criminal history background 
check.
    FCC. Defined in DoD Instruction 6060.2, ``Child Development Programs 
(CDPs)'' (available at http://www.dtic.mil/whs/ directives/corres/pdf/ 
606002p.pdf).
    FCC provider. Defined in DoD Instruction 6060.2.
    FCC adult family members. Any adult, 18 years of age or older, who 
resides in the home of an FCC provider for 30 or more consecutive days.
    Fitness. The reference to a person's level of character and conduct 
determined necessary for an individual to perform work for, or on behalf 
of, a Federal Agency as an employee in the excepted service (other than 
in a position subject to suitability) or as a contractor employee.
    Fitness determination. A decision, based on review of criminal 
history background check findings, that an individual is fit to perform 
duties in a position subject to criminal history background check. 
Fitness determinations will be ``favorable,'' meaning that the 
individual is fit to perform the duties, or ``unfavorable,'' meaning 
that the individual is not.
    Foreign nationals. Individuals who are not citizens of the United 
States.
    Foster care providers. A voluntary or court-mandated program that 
provides 24-hour care and supportive services in a family home or group 
facility, within government-owned or -leased quarters, for children and 
youth who cannot be properly cared for by their own family.

[[Page 405]]

    Healthcare personnel. Military, civilian, or contract staff involved 
in the delivery of healthcare services.
    Host-government check. A criminal history background check conducted 
on foreign nationals in accordance with U.S. and host country treaties 
or agreements.
    Interim suitability or fitness determination. Part of the pre-
screening process in the identification and resolution of suitability or 
fitness issues, which occurs prior to the initiation of the required 
investigation. It involves the review of applications and other 
employment related documents. A favorable interim suitability or fitness 
determination is a status granted on a temporary basis, which permits 
individuals to work under line-of-sight supervision (LOSS) after the 
return of the advance FBI fingerprint check, pending completion of full 
investigative requirements and a final suitability determination.
    Investigative elements. The records, reports, or other individual 
elements that comprise the whole of information collected during a 
criminal history background check and used to make a fitness or 
suitability determination.
    Installations records check (IRC). A query of records maintained on 
an individual by programs and entities at the military installation 
where the individual lives, is assigned, or works, including military 
law enforcement and installation security records, drug and alcohol 
records, and FAP records for a minimum of 2 years before the date of the 
application.
    Investigative service provider (ISP). The company or agency 
authorized to perform background investigations on personnel on behalf 
of the agency.
    Line of Sight Supervision (LOSS). Continuous visual observation and 
supervision of an individual whose background check has not yet cleared, 
and has a favorable interim suitability or fitness determination, while 
engaged in child interactive duties, or in the presence of children in a 
DoD-sanctioned program or activity. The person providing supervision 
must have undergone a background check and received a final favorable 
suitability or fitness determination and be current on all periodic 
reinvestigations as required by this part.
    Met criteria. Reported incident of alleged maltreatment found to 
meet DoD incident determination criteria for child abuse or domestic 
abuse and entry into the Service FAP central registry of child abuse and 
domestic abuse reports.
    Position. An employee, contractor, provider, or volunteer role or 
function.
    Preliminary investigations. Those investigative elements of a 
criminal history background check, including those specified in Sec.  
86.6(f), which must be favorably completed and reviewed before an 
individual may be permitted to perform duties under LOSS.
    Providers. Individuals involved in child care services who have 
regular contact with children or may be alone with children in the 
performance of their duties. Includes FCC providers and individuals with 
overall management responsibility for child and youth programs.
    Regular contact with children. Recurring and more than incidental 
contact with or access to children in the performance of their duties on 
a DoD installation, program, or as part of a DoD-sanctioned activity.
    Reinvestigation. A criminal history background check conducted after 
the period of time prescribed by this part to ensure the individual 
remains eligible to provide child care services. Reinvestigation 
includes the same checks conducted for the initial investigation as 
outlined in Sec.  86.6(b).
    Respite care providers. Individuals who provide short-term care and 
supportive services in a family home or group facility within 
government-owned or -leased quarters.
    State criminal history repository (SCHR). A repository of criminal 
information that lists past state convictions, current offender 
information, and criminal identification information (fingerprints, 
photographs, and other information or descriptions) that identify a 
person as having been the subject of a criminal arrest or prosecution. 
Checks of the SCHR may include the State child abuse and neglect 
repository and the State sex offender registry.
    Suitability determination. A decision that a person is or is not 
suitable for a covered position within the DoD.

[[Page 406]]

    Supervisor. The person supervising individuals who are permitted to 
perform duties only under LOSS, who is not necessarily the same as an 
employee's supervisor for employment purposes (e.g., ratings, assignment 
of duties).
    Volunteer. There are two types of volunteers:
    (1) Specified volunteers. Individuals who could have extensive or 
frequent contact with children over a period of time. They include, but 
are not limited to, positions involving extensive interaction alone, 
extended travel, or overnight activities with children or youth. Coaches 
and long-term instructors are among those who fall in this category. 
Specified volunteers are designated by the DoD Component head. 
Background checks are required in accordance with Sec.  86.6(b)(4).
    (2) Non-specified volunteers. Individuals who provide services that 
are shorter in duration than is required to perform a criminal history 
background check (e.g., one-day class trip, class party). Because non-
specified volunteers do not receive the same level of background checks 
as specified volunteers, non-specified volunteers must always be in line 
of sight of a staff member with a complete background check.
    Youth program. Defined in DoD Instruction 6060.4, ``Department of 
Defense (DoD) Youth Programs (YPs)'' (available at http://www.dtic.mil/
whs/ directives/corres/pdf/ 606004p.pdf).



Sec.  86.4  Policy.

    It is DoD policy that:
    (a) Individuals who have regular contact with children under 18 
years of age in DoD-sanctioned child care services programs will undergo 
a criminal history background check in order to protect the health, 
safety and well-being of children in such programs.
    (b) All individuals who have regular contact with children under 18 
years of age in DoD-sanctioned child care services programs and who also 
have a current or prior DoD affiliation must also undergo an IRC.
    (c) DoD Component heads are delegated the authority to make 
suitability determinations and take subsequent actions in cases 
involving applicants and appointees to covered positions as defined by 5 
CFR 731.101, subject to the conditions in 5 CFR 731.103. This authority 
may be further delegated to authorized management officials, in writing, 
in accordance with volume 731 of DoD Instruction 1400.25.
    (1) The DoD Consolidated Adjudications Facility is responsible for 
making favorable suitability determinations for civilian personnel in 
accordance with Deputy Assistant Secretary of Defense for Civilian 
Personnel and Policy Memorandum, ``Responsibilities Under the Department 
of Defense Suitability and Fitness Adjudications for Civilians Employees 
Programs,'' August 26, 2013.
    (2) Military members are not subject to suitability adjudication 
under Volume 731 of DoD Instruction 1400.25, ``DoD Civilian Personnel 
Management System'' (available at http://www.dtic.mil/whs/ directives/
corres/pdf/ 140025v731.pdf). Military members are subject to the 
background check requirements of DoD Instruction 5200.02, ``Personnel 
Security Program'' (available at http://www.dtic.mil/whs/ directives/
corres/pdf/ 520002_2014.pdf) and Sec.  86.6.
    (d) Suitability and fitness determinations for individuals subject 
to this part will follow the guidance of Volume 731 of DoD Instruction 
1400.25 for APF employees and Subchapter 1403 of DoD Instruction 1400.25 
for NAF employees. Suitability and fitness are to be applied for the 
child care worker population in accordance with Volume 731 of DoD 
Instruction 1400.25 for appropriated fund employees in covered positions 
as defined by 5 CFR part 731.
    (e) Individuals who have received a favorable interim suitability or 
fitness determination based on the FBI criminal history background check 
are permitted to work under LOSS pursuant to 42 U.S.C. 13041(b)(3).



Sec.  86.5  Responsibilities.

    (a) Under the authority, direction, and control of the Under 
Secretary of Defense for Personnel and Readiness (USD(P&R)), the 
Assistant Secretary of Defense for Readiness and Force Management 
(ASD(R&FM)):
    (1) Ensures the conduct of criminal history background checks 
complies with DoD policy and the Criminal Justice Information Services 
Division of

[[Page 407]]

the FBI's operational and security policies and procedures.
    (2) Monitors DoD Component compliance with this part, applicable 
laws, and subsequent guidance issued by the applicable ISP.
    (b) Under the authority, direction, and control of the ASD(R&FM), 
the Deputy Assistant Secretary of Defense for Civilian Personnel Policy 
(DASD(CPP)) oversees development of DoD Component policies and 
procedures for the background check initiation, completion, 
adjudication, and suitability or fitness determination process for 
civilian employees in accordance with this part.
    (c) Under the authority, direction, and control of the ASD(R&FM), 
the Deputy Assistant Secretary of Defense for Military Community and 
Family Policy (DASD(MC&FP)) oversees development of DoD Component 
policies and procedures related to the background check initiation, 
completion, adjudication, and fitness determination process for 
specified volunteers, FCC providers and adults residing in their home, 
and others as identified in accordance with this part.
    (d) Under the authority, direction, and control of the ASD(R&FM), 
the Deputy Assistant Secretary of Defense for Military Personnel Policy 
(DASD(MPP)):
    (1) Implements this part for military personnel in accordance with 
DoD Instruction 5200.02.
    (2) Institutes effective quality assurance and quality control 
systems for chaplains, support staff, specified volunteers, and 
contractors who provide support to religious programs and activities 
identified in Sec.  86.6(a)(5)(v) and in accordance with this part.
    (e) Under the authority, direction, and control of the Deputy Chief 
Management Officer (DCMO) of the Department of Defense, the Director of 
Administration ensures that the adjudication of background 
investigations of individuals who have regular contact with children 
under 18 years of age in DoD-sanctioned programs considers the criteria 
for presumptive and automatic disqualification as specified in this 
part.
    (f) The Under Secretary of Defense for Acquisition, Technology, and 
Logistics (USD(AT&L)) establishes policies and procedures for the 
background check initiation, completion, adjudication, and fitness 
determination process for contractors in accordance with the 
requirements of this part.
    (g) The DoD Component heads:
    (1) Ensure Component compliance with the requirements of this part, 
applicable laws, and guidance for civilian employees.
    (2) Ensure compliance with suitability and fitness determination 
policies, requirements, and procedures for individuals in child care 
services in DoD programs as defined in 42 U.S.C. 13041 and DoD 
Instruction 1400.25.
    (3) Ensure compliance with policies, requirements, and procedures 
for LOSS of individuals with a favorable interim suitability 
determination.
    (4) Provide support and resources as required to implement this part 
and any Component-specific policies, requirements, and procedures, and 
ensure implementation.



Sec.  86.6  Procedures.

    (a) Requirements for criminal history background checks. (1) All 
criminal history background checks required by this part must be 
initiated, tracked, and overseen by properly trained and vetted 
individuals who have been determined to be responsible for personnel 
security pursuant to DoD Instruction 5200.02 or human resource functions 
pursuant to Volume 731 of DoD Instruction 1400.25. Program managers, 
supervisors, and others not routinely performing personnel security and 
human resource functions are prohibited from managing the criminal 
history checks.
    (2) All employment applications completed by individuals subject to 
this part must comply with the requirements of 42 U.S.C. 13041(d).
    (3) The DoD Component will ensure that only authorized ISPs are 
used.
    (4) When permitted by the host government, foreign government checks 
of individuals serving on DoD installations overseas must be requested 
directly by the employing Military Service or agency in accordance with 
Volume 1231 of DoD Instruction 1400.25. As an alternative, DoD 
Components may request that overseas Military Service

[[Page 408]]

investigative elements obtain appropriate host-government checks and 
accept such checks if they are comparable to those required by 42 U.S.C. 
13041. Where it is not possible to obtain criminal history checks 
comparable to those required by 42 U.S.C. 13041, foreign nationals will 
not be eligible for employment in child care services.
    (5) Individuals subject to criminal history background checks are:
    (i) All personnel employed or performing duties in DoD Child and 
Youth or other sanctioned child care services programs.
    (ii) Individuals providing in-home FCC.
    (iii) Personnel employed or performing duties in child and youth 
recreational and athletic programs (e.g., Morale, Welfare, and 
Recreation), including instructors and, when working in a facility when 
children and youth are present, custodial personnel.
    (iv) Individuals employed or performing duties in a DoDEA school 
(whether or not directly involved with teaching), including but not 
limited to teachers, administrators, other professional staff, aides, 
bus drivers, janitors, cafeteria workers, nurses, and attendants.
    (v) Chaplains, chaplains' assistants, religious program specialists, 
and other individuals employed or performing child care services duties 
for children under 18 years of age on a DoD installation or as part of a 
military-sanctioned program.
    (vi) Foster and respite child care providers on a DoD installation, 
program, or as part of a military-sanctioned activity.
    (vii) Health and mental health care personnel, employed or 
performing child care services duties on a DoD installation, in a DoD 
sanctioned program, or as part of a military-sanctioned activity, 
including but not limited to physicians, dentists, nurse practitioners, 
clinical social workers, physical therapists, speech-language 
pathologists, clinical support staff (including residents), registered 
nurses, licensed practical nurses, nursing assistants, play therapists, 
and technicians.
    (viii) Individuals employed or performing child care duties in 
social services, residential care, rehabilitation programs, detention, 
and correctional services on a DoD installation, program, or as part of 
a military-sanctioned activity.
    (ix) Any other individuals reasonably expected to have regular 
contact with children on a DoD installation, in a DoD sanctioned 
program, or as part of a military-sanctioned activity, including 
specified volunteers and any person 18 years of age or older residing in 
an FCC, foster, or respite care home. Healthcare providers participating 
in TRICARE shall be governed by TRICARE policy.
    (6) The DoD Components will also determine any other classes of 
positions subject to criminal history background checks, taking care to 
ensure that all individuals who have regular contact with children when 
providing child care services are investigated and the requirement must 
pertain to the class as a whole.
    (7) Individuals designated in non-specified volunteer positions must 
always be under direct LOSS in accordance with paragraph (g) of this 
section.
    (b) Types of background checks. Procedures for conducting a 
background check on individuals in paragraphs (a)(5)(i) through (ix) of 
this section differ based on the employment status of the individual. 
Military members are subject to the background check requirements of DoD 
Instruction 5200.02 and this section. The FBI criminal history 
background checks for all categories of individuals must be fingerprint-
based and fingerprints must be captured using an FBI-approved system. 
SCHR checks may require hardcopy fingerprint submissions. State checks 
must include the state child abuse and neglect repository and the state 
sex offender registry. The Component must request a check of the state 
child abuse and neglect repository and the State sex offender registry 
if they are not automatically checked as part of the standard SCHR 
check.
    (1) Criminal history background checks for DoD civilian and military 
personnel who are investigated at the NACI or a higher level pursuant to 
DoD's personnel security program. (i) DoD civilian and

[[Page 409]]

military personnel required by DoD Instruction 5200.02 to be 
investigated according to the requirements of the National Agency Check 
and Inquiries (NACI) or a higher level investigation and who have 
regular contact with children under 18 years of age in DoD-sanctioned 
programs will be investigated and adjudicated in accordance with the 
provisions of DoD Instruction 5200.02.
    (ii) These personnel will also be subject to the additional 
requirements of the Child Care National Agency Check and Inquiries 
(CNACI) and the criteria for presumptive and automatic disqualification 
as specified in paragraph (c) of this section.
    (2) Criminal history background checks for civilian employees (APF 
and NAF). (i) In accordance with 42 U.S.C. 13041 and Volume 731 and 
Subchapter 1403 of DoD Instruction 1400.25, complete a CNACI, which 
includes an FBI criminal history background check conducted through the 
Criminal Justice Information Services Division of the FBI and SCHR 
checks through State repositories of all States that an employee or 
prospective employee lists as current and former residences on an 
employment application. Results of an advanced FBI fingerprint check 
must be provided before completion of the full CNACI to determine 
employment under LOSS.
    (ii) Individuals with a prior DoD affiliation must also complete an 
IRC, which includes an installation law enforcement check, drug and 
alcohol records check, and a check of the Family Advocacy Program (FAP) 
records for a minimum of 2 years before the date of the application.
    (3) Criminal history background checks for FCC providers and 
contractors. (i) In accordance with 42 U.S.C. 13041, complete a CNACI, 
which includes an FBI criminal history background check conducted 
through the Criminal Justice Identification Services Division of the FBI 
and SCHR checks through State repositories of all States that a provider 
or contractor or prospective provider or contractor lists as current and 
former residences in an employment application. Results of an advanced 
FBI fingerprint check must be provided before completion of the full 
CNACI. Results for contractors may be used to determine employment under 
LOSS.
    (ii) Individuals with a prior DoD affiliation must also complete an 
IRC, including an installation law enforcement check, drug and alcohol 
records check, and a check of the FAP records for a minimum of 2 years 
before the date of the application.
    (4) Criminal history background checks for others. (i) In accordance 
with 42 U.S.C. 13041, only an FBI advanced fingerprint check is required 
for criminal history background checks for volunteers and persons 18 
years of age or older residing in an FCC, foster, or respite care home.
    (ii) Individuals with a prior DoD affiliation must also complete an 
IRC to include: an installation law enforcement check, drug and alcohol 
records check, and a check of the FAP records for a minimum of 2 years 
before the date of the application.
    (5) Timely completion. To ensure timely completion, the DoD 
Components will establish procedures to initiate or request criminal 
history background check results, follow up to ensure checks have been 
completed, and address situations where there is a delay in receiving 
results. In no event will an individual subject to this part be presumed 
to have a favorable background check merely because there has been a 
delay in receiving the results of the requisite background check. If no 
response from the state(s) is received within 60 days, determinations 
based upon the CNACI report may be made.
    (c) Criteria for disqualification based on results on criminal 
history background checks. The ultimate decision to determine how to use 
information obtained from the criminal history background checks in 
selection for positions involving the care, treatment, supervision, or 
education of children must incorporate a common sense decision based 
upon all known facts. Adverse information is evaluated by the DoD 
Component who is qualified at the appropriate level of command in 
interpreting criminal history background checks. All information of 
record both

[[Page 410]]

favorable and unfavorable will be assessed in terms of its relevance, 
recentness, and seriousness. Likewise, positive mitigating factors 
should be considered. Final suitability decisions shall be made by that 
commander or designee. Criteria that will result in disqualification of 
an applicant require careful screening of the data. A disqualifying 
event may be the basis for a non-selection, withdrawal of a tentative 
offer of employment, ineligibility for facility access, removal from a 
contract, a suitability action under 5 CFR part 731, a probationary 
termination, an adverse action, or other appropriate action.
    (1) Criteria for automatic disqualification. No person, regardless 
of circumstances, will be approved to provide child care services 
pursuant to this part if the background check discloses:
    (i) That the individual has been convicted in either a civilian or 
military court (to include any general, special or summary court-martial 
conviction) or received non-judicial punishment (under Article 15 or 
chapter 47 of Title 10, U.S.C., also known and referred to in this part 
as ``the Uniform Code of Military Justice (UCMJ)'') for any of the 
following:
    (A) A sexual offense.
    (B) Any criminal offense involving a child victim.
    (C) A felony drug offense.
    (ii) That the individual has been held to be negligent in a civil 
adjudication or administrative proceeding concerning the death or 
serious injury to a child or dependent person entrusted to the 
individual's care.
    (2) [Reserved]
    (d) Suitability and fitness determinations for individuals involved 
with the provision of child care services. Suitability and fitness 
determinations for individuals subject to this part will be made in 
accordance with Volume 731, Volume 1231, and Subchapter 1403 of DoD 
Instruction 1400.25, and part 1201 of 5 U.S.C., as appropriate. The 
following may be the basis for non-selection, withdrawal of a tentative 
offer of employment, ineligibility for facility access, removal from a 
contract, a suitability action under DoD Instruction 1400.25, a 
probationary termination, an adverse action, or other appropriate 
action.
    (1) Criteria for presumptive disqualification. Officials charged 
with making determinations pursuant to this part must include in the 
record a written justification for any favorable determination made 
where background check findings include any of the following 
presumptively disqualifying information:
    (i) A FAP record indicating that the individual met criteria for 
child abuse or neglect or civil adjudication that the individual 
committed child abuse or neglect.
    (ii) Evidence of an act or acts by the individual that tend to 
indicate poor judgment, unreliability, or untrustworthiness in providing 
child care services.
    (iii) Evidence or documentation of the individual's past or present 
dependency on or addiction to any controlled or psychoactive substances, 
narcotics, cannabis, or other dangerous drug without evidence of 
rehabilitation.
    (iv) A conviction, including any general, special, or summary court-
martial conviction, or non-judicial punishment under Article 15 of the 
UCMJ for:
    (A) A crime of violence committed against an adult.
    (B) Illegal or improper use, possession, or addiction to any 
controlled or psychoactive substances, narcotics, cannabis, or other 
dangerous drug.
    (v) A civil adjudication that terminated the individual's parental 
rights to his or her child, except in cases where the birth parent 
places his or her child for adoption.
    (2) Evaluation of presumptively disqualifying information. The DoD 
Components will establish and oversee procedures for the evaluation of 
presumptively disqualifying information for all categories of 
individuals in paragraph (b) of this section. Evaluation of 
presumptively disqualifying information for APF and NAF personnel must 
be in accordance with Volume 731 and Subchapter 1403 of DoD Instruction 
1400.25, respectively.
    (3) Criteria for disqualification under LOSS. If an investigation of 
an individual who is currently working under

[[Page 411]]

LOSS subsequently results in an unfavorable determination, the DoD 
Components will take action to protect children by reassigning or 
removing the individual from employment, contract, or volunteer status.
    (4) Disputes and appeals. The DoD Components will establish and 
oversee procedures for the communication of determinations and the 
appeal of unfavorable determinations for all categories of individuals 
in paragraph (b) of this section. The procedures for civilian personnel 
are subject to Volume 731 of DoD Instruction 1400.25 for APF employees 
and Subchapter 1403 of DoD Instruction 1400.25 for NAF employees.
    (e) Reinvestigation. (1) All DoD civilian employees (both APF and 
NAF), contractors, military personnel, and any other individuals 
reasonably expected to have regular contact with children on a DoD 
installation, program, or as part of a military-sanctioned activity, 
including specified volunteers and any person 18 years of age or older 
residing in an FCC, foster, or respite care home, who continue to 
perform duties in the position for which their initial background check 
was conducted, must undergo a reinvestigation every 5 years. The 
reinvestigation must consist of the same check conducted for the initial 
investigation as outlined in paragraph (b) of this section.
    (2) All FCC providers and adults residing in an FCC home must 
undergo an annual reinvestigation utilizing the Special Agreement Check 
(SAC) for childcare providers. The SAC reinvestigation consists of an 
update to the initial investigation as outlined in paragraph (b) of this 
section.
    (3) If the reinvestigation results in an unfavorable determination, 
the DoD Components will take action to protect children by reassigning 
or removing the individual from employment, contract, or volunteer 
status.
    (4) If derogatory information surfaces within the 5 years before the 
reinvestigation, the DoD Component will take action to protect children 
by reassigning or suspending from having contact with children, any 
individual, contractor or volunteer until the case is resolved.
    (f) Self-reporting. (1) Individuals who have regular contact with 
children under 18 years of age in DoD-sanctioned programs who have a 
completed background check are required to immediately report subsequent 
automatic disqualification criteria under paragraph (c)(1) of this 
section and presumptive disqualification criteria under paragraphs 
(c)(2)(i), (iv), and (v) of this section.
    (2) The DoD Components will establish procedures for:
    (i) Informing individuals of the requirement to immediately report 
any incident or conviction that may invalidate their prior background 
check and make them ineligible to work or have contact with children.
    (ii) Responding to and evaluating reports made by such individuals, 
and taking appropriate action until the case has been resolved or 
closed.
    (g) Eligibility to perform duties under LOSS. The DoD Components 
will establish Component-specific procedures, policies, and 
requirements, subject to the requirements of this paragraph, to permit 
applicants for whom a criminal history background check has been 
initiated but not yet completed, to perform duties under LOSS upon 
favorable findings of preliminary investigations.
    (1) No presumption of right. No individual will be permitted to 
perform duties under LOSS in a position subject to criminal history 
background check without authorizing policy or other written permission 
from a DoD Component head.
    (2) Preliminary investigations required. No individual will be 
permitted to perform duties under LOSS in a position subject to criminal 
history background check unless the following investigative elements 
have been reviewed and determined favorably:
    (i) An IRC, including installation law enforcement records check, 
drug and alcohol records, and FAP records check for a minimum of 2 years 
before the date of the application if the individual has a preexisting 
DoD affiliation.
    (ii) Initial results from the advanced FBI fingerprint criminal 
history background check (not the full check).

[[Page 412]]

    (3) Exception for non-specified volunteers. Due to the controlled, 
limited duration of an activity for these individuals, an advanced FBI 
fingerprint criminal history background check is not required. Non-
specified volunteers will be permitted to perform duties and services 
under LOSS for the duration of the activity.
    (4) Supervisor requirements. The supervisor must be a person who:
    (i) Has undergone and successfully completed the required background 
check.
    (ii) Has complied, as required, with the periodic reinvestigation 
requirement for a recurring criminal history background check.
    (iii) Has not previously exhibited reckless disregard for an 
obligation to supervise an employee, contractor, or volunteer.
    (5) Video surveillance. The use of video surveillance equipment to 
provide temporary oversight for individuals whose required background 
checks have been initiated but not completed is acceptable provided it 
is continuously monitored by an individual who has undergone and 
successfully completed all required background checks. This provision 
shall meet the intent of a flexible and reasonable alternative for 
``direct sight supervision.''
    (6) Conspicuous identification of individuals subject to LOSS. 
Individuals permitted to perform duties solely under LOSS must be 
conspicuously marked by means of distinctive clothing, badges, 
wristbands, or other visible and apparent markings. The purpose of such 
markings must be communicated to staff, customers, parents, and 
guardians by conspicuous posting or printed information.
    (7) Permissible performance of duties without supervision. 
Individuals otherwise required to perform duties only under LOSS may 
perform duties without supervision if:
    (i) Interaction with a child occurs in the presence of the child's 
parent or guardian;
    (ii) Interaction with children is in a medical facility, subject to 
supervisory policies of the facility, and in the presence of a mandated 
reporter of child abuse; or
    (iii) Interaction is necessary to prevent death or serious harm to 
the child, and supervision is impractical or unfeasible (e.g., response 
to a medical emergency, emergency evacuation of a child from a hazardous 
location).



PART 89_INTERSTATE COMPACT ON EDUCATIONAL OPPORTUNITY FOR MILITARY 
CHILDREN--Table of Contents



Sec.
89.1 Purpose.
89.2 Applicability.
89.3 Definitions.
89.4 Policy.
89.5 Responsibilities.
89.6 Procedures.
89.7 Representatives to State Councils, the DoDEA Committee and MIC3.
89.8 Compact provisions.

    Authority: 10 U.S.C. 2164, 20 U.S.C. 921-932.

    Source: 81 FR 92659, Dec. 20, 2016, unless otherwise noted.



Sec.  89.1  Purpose.

    In accordance with the sense of Congress as set forth in section 539 
of Public Law 111-84, this part establishes policy, assigns 
responsibilities, and provides procedures to implement the Interstate 
Compact on Educational Opportunity for Military Children (referred to in 
this part as the ``Compact'') within the DoD.



Sec.  89.2  Applicability.

    This part applies to the Office of the Secretary of Defense, the 
Military Departments, the Office of the Chairman of the Joint Chiefs of 
Staff and the Joint Staff, the Combatant Commands, the Office of the 
Inspector General of the DoD, the Defense Agencies, the DoD Field 
Activities, and all other organizational entities within the DoD.



Sec.  89.3  Definitions.

    These terms and their definitions are for the purposes of this part.
    504 plan. A plan required pursuant to 29 U.S.C. 794 specifying the 
modifications and accommodations for a child with a disability to meet 
the individual educational needs of that child as adequately as the 
needs of children without disabilities are met. The plans can include 
accommodations such as

[[Page 413]]

wheelchair ramps, blood sugar monitoring, an extra set of textbooks, a 
peanut-free lunch environment, home instruction, or a tape recorder or 
keyboard for taking notes.
    Children of military families. School-aged children who are enrolled 
in kindergarten through twelfth grade and are in the households of 
Service members who:
    (1) Are on active duty, including members of the National Guard and 
Reserve on active duty orders pursuant to 10 U.S.C. 1211;
    (2) Are active duty or veterans who are severely wounded, ill, or 
injured; or
    (3) Die on active duty or as a result of injuries sustained on 
active duty;
    Children of military members who are severely wounded, ill, or 
injured retain this designation for 1 year after discharge or 
retirement. Children of military members who die on active duty or as a 
result of injuries sustained on active duty, retain this designation for 
1 year after death.
    Deployment. The period 1 month prior to the military members' 
departure from their home station on military orders through 6 months 
after return to their home station.
    DoDEA Committee. A DoD committee established pursuant to this part 
by Director, DoDEA to advise DoDEA on compliance with provisions in 
Sec.  89.8 by DoDEA schools. The DoDEA Committee also provides input to 
the ex-officio member of the Commission on issues arising from DoDEA 
school interactions with member States of the Compact, and acts as a 
counterpart to State Councils of member States.
    Education records. Those official records, files, and data directly 
related to a child and maintained by the school or local educational 
agency (LEA) or state educational agency (SEA), including but not 
limited to, records encompassing all the material kept in the child's 
cumulative folder such as general identifying data, records of 
attendance and of academic work completed, records of achievement and 
results of evaluative tests, health data, disciplinary status, test 
protocols, and individualized education programs (IEPs).
    Ex-officio member of the Commission. Non-voting member of the 
Commission who may include, but not be limited to, members of the 
representative organizations of military family advocates, LEA 
officials, parent and teacher groups, the DoD, the Education Commission 
of the State, the Interstate Agreement on the Qualification of 
Educational Personnel, and other interstate compacts affecting the 
education of children of military members.
    Extracurricular activity. A voluntary activity sponsored by the 
school or LEA or SEA or an organization sanctioned by the LEA or SEA. 
Extracurricular activities include, but are not limited to, preparation 
for and involvement in public performances, contests, athletic 
competitions, demonstrations, displays, and club activities.
    IEP. When a child is identified as a child with disabilities in 
accordance with Individuals With Disabilities Education Act (IDEA), he 
or she must have a written document that describes the special education 
supports and services the child will receive. The IEP is developed by a 
team that includes the child's parents and school staff.
    Interstate Compact on Education Opportunity for Military Children 
(the Compact). An agreement approved through State legislation that 
requires member States to follow provisions supporting the transition of 
children of military families between school systems in member States. 
As part of joining the Compact, States agree to participate in the 
Commission and pay dues to the Commission to support its oversight of 
the Compact.
    LEA. A public authority legally constituted by the State as an 
administrative agency to provide control of and direction for 
kindergarten through twelfth grade public educational institutions. For 
the purpose of administering the provisions of the Compact in Sec.  89.8 
of this part, DoDEA school districts as defined in 20 U.S.C. 932 are 
equivalent to an LEA.
    Member State. A State that has enacted the Compact.
    MIC3. The MIC3, also known as the Interstate Commission on 
Educational Opportunity for Military Children (sometimes referred to as 
the ``Interstate Commission'' or ``the Commission''), is the governing 
body of the

[[Page 414]]

Compact composed of representatives from each member State, as well as 
various ex-officio members. The Commission provides general oversight of 
the agreement, creates and enforces rules governing the Compact, and 
promotes training and compliance with the Compact. Each member State 
will be allowed one vote on Compact matters, and the Commission will 
provide the venue for solving interstate issues and disputes.
    Military Family Education Liaison. Individual appointed or 
designated by State Council of each member state to assist military 
families and the State in facilitating the implementation of the 
Compact. Military members and DoD civilian employees cannot perform this 
function.
    Military installation. A base, camp, post, station, yard, center, 
homeport facility for any ship, or other activity under DoD 
jurisdiction, including any leased facility. (This term does not include 
any facility used primarily for civil works, rivers and harbors 
projects, or flood control projects.)
    Military representative as a liaison to a State Council. Incumbent 
of a position designated by the DASD(MC&FP), who performs the duties and 
responsibilities defined in Sec.  89.5 of this part. The military 
representative is responsible for representing the interest of the DoD 
in fostering easier transition of children of military families 
according to their designation (installation representative, Military 
Department representative or statewide representative). The military 
representative will be a military member or DoD civilian who can remain 
in the position for at least 2 years and whose position has a direct 
interface with the State education system as part of official duties or 
has supervisory responsibility for those who do.
    Military representative to the DoDEA Committee. Individual nominated 
to represent all four Services by the Office of the Assistant Secretary 
of the Army for Manpower and Reserve Affairs (OASA(M&RA)), the Office of 
the Assistant Secretary of the Navy for Manpower and Reserve Affairs 
(OASN(M&RA)), or the Office of the Assistant Secretary of the Air Force 
for Manpower and Reserve Affairs (OASAF(M&RA)) on a rotational basis and 
appointed by the DASD(MC&FP) for a 2-year term. Because DoDEA is a DoD 
Component the military representative may act as a full participant in 
the DoDEA Committee.
    Receiving State. The State to which a child of a military family is 
sent, brought, or caused to be sent or brought.
    SEA. A public authority similar to an LEA, legally constituted by 
the State as an administrative agency to provide control of and 
direction for kindergarten through twelfth grade public educational 
institutions for the entire State.
    Sending State. The State from which a child of a military family is 
sent, brought, or caused to be sent or brought.
    State. State of the United States, the District of Columbia, the 
Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American 
Samoa, the Northern Marianas Islands and any other U.S. territory or 
possession. For purposes of administering the provisions of the Compact 
in Sec.  89.8 of this part, DoD is considered a State and DoDEA is 
considered the equivalent of a State department of education for DoD.
    State Council. A body that coordinates among government agencies, 
LEAs, and military installations concerning the member State's 
participation in and compliance with the Compact and the Commission 
activities. A member State may determine the membership of its own 
Council, but membership must include at least: The State superintendent 
of education; superintendent of a school district with a high 
concentration of military children; representative (as a liaison) from a 
military installation; one representative each from the legislative and 
executive branches of State government; and other offices and 
stakeholder groups the State Council deems appropriate.
    Transition. The formal and physical process of transferring from 
school to school; or the period of time in which a child moves from a 
school in the sending State to a school in the receiving State.

[[Page 415]]

    Veteran. A person who served in the military and who was discharged 
or released from the military under conditions other than dishonorable.



Sec.  89.4  Policy.

    In accordance with the sense of Congress as set forth in section 539 
of Public Law 111-84, ``National Defense Authorization Act for Fiscal 
Year 2010'' and DoD 5500.07-R, ``Joint Ethics Regulations (JER)'' 
(available at http://www.dtic.mil/ whs/directives/corres/pdf/ 
550007r.pdf), it is DoD policy to support the intent of the Compact by 
reducing the difficulty children of military families (referred to in 
this part as ``children'' or ``the child'') have in transferring between 
school systems because of frequent moves and deployment of their 
parents. DoD will support the Compact by:
    (a) Designating military liaisons, by position, to State Councils of 
member States, the DoDEA Committee, and the MIC3.
    (b) Implementing the intent of the Compact in the DoDEA to ensure:
    (1) Timely enrollment of children in school so they are not 
penalized due to:
    (i) Late or delayed transfers of education records from the previous 
school district(s); or
    (ii) Differences in entrance or age requirements.
    (2) Placement of children in educational courses and programs, 
including special educational services, so they are not penalized due to 
differences in attendance requirements, scheduling, sequencing, grading, 
or course content.
    (3) Flexible qualification and eligibility of children so they can 
have an equitable chance at participation in extracurricular, academic, 
athletic, and social activities.
    (4) Graduation within the same timeframe as the children's peers.
    (c) Promoting through DoDEA and the Military Departments:
    (1) Flexibility and cooperation among SEAs or LEAs, DoDEA, Military 
Departments, parents, and children to achieve educational success.
    (2) Coordination among the various State agencies, LEAs, and 
military installations regarding the State's participation in the 
Compact.



Sec.  89.5  Responsibilities.

    (a) Under the authority, direction, and control of the Under 
Secretary of Defense for Personnel and Readiness, the Assistant 
Secretary of Defense for Manpower and Reserve Affairs (ASD(M&RA)) 
oversees the implementation of this part.
    (b) Under the authority, direction, and control of the ASD(M&RA), 
the DASD(MC&FP):
    (1) Designates military representatives by position as liaisons to 
State councils, nominated by the Secretaries of the Military Departments 
by the procedures outlined in Sec.  89.7 of this part.
    (2) Designates the DoD ex-officio member serving as a liaison to 
MIC3, insofar as DoD is invited to do so by MIC3.
    (3) Maintains a roster of designated liaisons to State councils in 
accordance with 32 CFR part 310.
    (4) Monitors issues arising under the Compact:
    (i) Affecting children of military families attending and 
transferring between member State schools; and
    (ii) The implementation of Sec.  89.8 of this part, affecting 
children of military families transferring between member state schools 
and DoDEA's schools (consisting of the Department of Defense Schools 
(DoDDS)--Europe, DoDDS--Pacific, and DDESS.
    (c) Under the authority, direction, and control of ASD(M&RA), the 
Director, DoDEA:
    (1) To the extent allowable by 10 U.S.C. 2164 and 20 U.S.C. 921-932, 
adjusts operating policies and procedures issued pursuant to DoD 
Directive 1342.20, ``Department of Defense Education Activity (DoDEA)'' 
(available at http://www.dtic.mil/whs/ directives/corres/ pdf/
134220p.pdf) to implement the provisions of the Compact described in 
Sec.  89.8 of this part.
    (2) Informs boards and councils, described in DoD Instruction 
1342.15, ``Educational Advisory Committees and Councils'' (available at 
http://www.dtic.mil/ whs/directives/corres/ pdf/134215p.pdf) and DoD 
Instruction 1342.25, ``School Boards for Department of Defense Domestic 
Dependent Elementary and Secondary Schools (DDESS)'' (available at 
http://

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www.dtic.mil/ whs/directives/corres/ pdf/134225p.pdf), of the Compact 
provisions in Sec.  89.8 of this part and the DoDEA administration of 
these provisions.
    (3) Addresses disputes over provisions in Sec.  89.8 of this part 
between member States and DoDEA. When differences cannot be resolved 
with a member State, works with MIC3 to resolve these disputes.
    (4) Establishes the DoDEA Committee to review compliance with the 
provisions in Sec.  89.8 of this part and to address issues raised by 
the Secretaries of the Military Departments concerning the 
implementation of these provisions.
    (5) Ensures all personally identifiable information is collected, 
maintained, disseminated, and used in accordance with 32 CFR part 310.
    (6) Ensures that DoDEA schools comply with Sec.  89.8 and that DoDEA 
school-level officials inform DoDEA students transferring to schools in 
member States of the benefits extended by receiving States under the 
Compact.
    (d) The Secretaries of the Military Departments:
    (1) Nominate military representatives by position, in accordance 
with the procedures outlined in Sec.  89.7 of this part, for designation 
as liaisons to State Councils by the DASD(MC&FP) when such DoD liaison 
is requested.
    (2) Establish departmental policies and procedures to inform 
military communities of:
    (i) The provisions of this part as it affects children of military 
families attending and transferring between member State schools; and
    (ii) The provisions in Sec.  89.8 of this part concerning students 
transferring between DoDEA and member State schools.
    (3) Procedures to resolve issues or challenges raised by parents 
concerning the provisions of Sec.  89.8 of this part.



Sec.  89.6  Procedures.

    DoD implements policy in this part by:
    (a) Establishing a committee within DoDEA (referred to in this part 
as the ``DoDEA Committee'').
    (b) Designating military representatives by position to serve as 
liaisons to the State Councils of the member States and the DoDEA 
Committee in accordance with procedures in Sec.  89.7.
    (c) Designating the ex-officio member to serve as a liaison to MIC3 
in accordance with Sec.  89.5 and Sec.  89.7.
    (d) Ensuring DoDEA compliance with the selected provisions of the 
Compact described in Sec.  89.8.



Sec.  89.7  Representatives to State Councils, the DoDEA Committee and MIC3.

    (a) Military Representatives designated by position as Liaisons to 
State Councils. In accordance with section 3-201 of DoD 5500.07-R, 
incumbents of positions designated as liaisons to State Councils will:
    (1) Be a military member or a civilian employee of DoD who has a 
direct interface with the State education system as part of official 
duties or has supervisory responsibility for those who do.
    (2) Only represent DoD interests (not the interests of the State 
Council), and consequently may not:
    (i) Engage in management or control of the State Council (therefore, 
may not vote or make decisions on daily administration of council);
    (ii) Endorse or allow the appearance of DoD endorsement of the State 
Council or its events, products, services, or enterprises;
    (iii) Represent the State Council to third parties; or
    (iv) Represent the State Council to the U.S. Government, as 
prohibited by federal criminal statues.
    (3) Make clear to the State Council that:
    (i) The opinions expressed by the representative do not bind DoD or 
any DoD Component to any action.
    (ii) If included on State Council Web sites, all references to the 
representative by name or title must indicate that they are the 
``Military Representative'' as opposed to a council member.
    (4) Notify the chain of command of issues requiring policy decisions 
or actions requested of the military community within the State.
    (5) When called upon to act as the spokesperson for one or more than 
one installation:

[[Page 417]]

    (i) Get feedback from the designated points of contact at each 
military installation within his or her responsibility.
    (ii) Coordinate proposed input to the State Council with the 
appropriate points of contact for each military installation within his 
or her responsibility.
    (iii) Act as a conduit for information between the State Council and 
each military installation within his or her responsibility.
    (iv) Provide feedback through the chain of command to the points of 
contact for each military installation within his or her responsibility 
and, as appropriate, to the OASA(M&RA), the OASN(M&RA), or the 
OASAF(M&RA).
    (b) Nomination Process for Positions Designated as Liaisons to State 
Councils. (1) In accordance with DoD 5500.07-R, liaison positions are 
nominated by the Military Departments and designated by the DASD(MC&FP), 
not by State officials. Depending on the number of liaison positions 
required by State policy, designating liaison positions to a State 
Council will be accomplished according to the processes outlined in 
Table 1:

                      Table 1--Process for Designating Liaison Positions to State Councils
----------------------------------------------------------------------------------------------------------------
                                                                                          Whereupon the official
 If State statute concerning military   The State Commissioner       Who requests a       written designation is
    representatives provides for:             contacts:          selection be made by:           made by:
----------------------------------------------------------------------------------------------------------------
One representative for all military    DASD(MC&FP)............  OASA(M&RA), OASN(M&RA),  DASD(MC&FP).
 children in the State.                                          or OASAF(M&RA)
                                                                 responsible for
                                                                 providing a
                                                                 representative for the
                                                                 State listed in Table
                                                                 2.
One representative for each Military   DASD(MC&FP)............  OASA(M&RA), OASN(M&RA),  DASD(MC&FP).
 Service.                                                        and OASAF(M&RA).
One representative for each military   DASD(MC&FP)............  OASA(M&RA), OASN(M&RA)   DASD(MC&FP).
 installation in the State.                                      and OASAF(M&RA).
----------------------------------------------------------------------------------------------------------------

    (2) When there is more than one military representative to a State 
Council (e.g., one per installation or one per Military Department 
represented in the State), the incumbent of the position nominated by 
the responsible Military Department (Table 2) will serve as the lead 
military representative when DoD must speak with a single voice.
    (3) In circumstances where the State requests an individual by name, 
the DASD(MC&FP) will forward the request to the individual's Military 
Department for consideration of designating the position which the 
individual encumbers. If that Military Department is different from the 
one designated in Table 2, the DASD(MC&FP) will first obtain the 
concurrence of the responsible Military Department.
    (4) In accordance with the Compact, State officials appoint or 
designate the Military Family Education Liaison for the State. Service 
members and DoD civilians cannot be appointed or designated to fill this 
position for the State.

 Table 2--Military Department Areas of Authority for Selecting a Single
   Military Representative Position To Serve as a Liaison to the State
                                 Council
------------------------------------------------------------------------
     Military department                  Areas of Authority
------------------------------------------------------------------------
Army........................  Alabama, Alaska, Colorado, Georgia,
                               Hawaii, Indiana, Iowa, Kansas, Kentucky,
                               Louisiana, Maryland, Michigan, Minnesota,
                               Missouri, New York, Oklahoma,
                               Pennsylvania, South Carolina, Texas,
                               Vermont, Washington, West Virginia,
                               Wisconsin.
Navy........................  American Samoa, California, Connecticut,
                               District of Columbia, Florida, Guam,
                               Maine, Mississippi, New Hampshire, North
                               Carolina, Northern Marianas, Oregon,
                               Puerto Rico, Rhode Island, Tennessee,
                               Virginia, Virgin Islands.
Air Force...................  Arizona, Arkansas, Delaware, Idaho,
                               Illinois, Massachusetts, Montana,
                               Nebraska, Nevada, New Jersey, New Mexico,
                               North Dakota, Ohio, South Dakota, Utah,
                               Wyoming.
------------------------------------------------------------------------


[[Page 418]]

    (c) Military Representative to the DoDEA Committee. Membership of 
the DoDEA Committee will include a representative from one of the 
Military Services to represent all four Services. OASA(M&RA), 
OASN(M&RA), or OASAF(M&RA) will nominate a representative on a 
rotational basis who will be designated for a 2-year term by the 
DASD(MC&FP).
    (d) Ex-Officio Member Serving as a Liaison to MIC3. In accordance 
with section 3-201 of DoD 5500.07-R, the DoD ex-officio member to the 
Commission, must:
    (1) Be a military member or a civilian employee of DoD who can 
remain in the position for at least 2 years and who has a direct 
interface with DoDEA and the U.S. public education system as part of 
official duties or has supervisory responsibility for those who do.
    (2) Attend as a liaison meetings of MIC3, its Executive Committee, 
and other standing committees where requested by the Commission.
    (3) Only represent DoD interests (not the interests of MIC3), and 
consequently may not:
    (i) Engage in management or control of MIC3 (therefore, may not vote 
or make decisions on daily administration of MIC3);
    (ii) Endorse or allow the appearance of DoD endorsement of MIC3, or 
its events, products, services, or enterprises;
    (iii) Represent the Commission to third parties; or
    (iv) Represent MIC3 to the U.S. Government, as prohibited by 
criminal statutes.
    (4) Make clear to MIC3 that:
    (i) The opinions expressed by the incumbent do not bind DoD or any 
DoD Component to any action.
    (ii) If included on MIC3 Web sites, all references to the incumbent 
by name or title must indicate that they are the ``DoD Ex-Officio 
Member'' as opposed to a MIC3 member.
    (5) Notify the chain of command of issues requiring policy decisions 
or actions requested of DoD.



Sec.  89.8  Compact provisions.

    (a) DoDEA Area School Districts Relationship With SEAs or LEAs in 
Member States.
    (1) For the purposes of DoD's implementation of the Compact in the 
schools it operates, DoDEA's area offices (DoDDS--Europe, DoDDS--
Pacific, and DDESS) and their schools are considered as the equivalent 
of LEAs and SEAs, respectively.
    (2) Each DoDEA area acts as the ``receiving LEA'' and ``sending 
LEA'' in working with LEAs or SEAs in member States.
    (b) Articles IV Through VII of the Compact. This section describes 
the specific duties that DoDEA's LEAs have as ``sending'' or 
``receiving'' LEAs. DoDEA's duties under this section will reciprocate 
the duties assumed by member State LEAs or SEAs to children of military 
families, as expressed by their respective State's implementation of the 
Compact Articles IV through VII. DoDEA will implement the provisions 
described below, which, while retaining the intent of the Compact, have 
been modified as needed in the DoDEA context.
    (1) Article IV: Education Records and Enrollment--(i) Unofficial or 
``Hand-Carried'' Education Records. (A) If official education records 
cannot be released to the parents for transfer, the DoDEA custodian of 
the records, as the sending LEA shall provide to the parent a complete 
set of unofficial education records.
    (B) Upon receipt of the unofficial education records, the DoDEA 
school, as the school in the receiving LEA shall enroll and 
appropriately place the child as quickly as possible based on the 
information in the unofficial records, pending validation by the 
official records.
    (ii) Official education records or transcripts. (A) The DoDEA 
school, acting as the receiving LEA shall request the child's official 
education record from the school in the sending State at the same time 
as DoDEA school enrolls and conditionally places the child.
    (B) Upon receipt of the request for a child's records, the school in 
DoDEA, acting as the sending LEA will provide the child's official 
education records to the school in the receiving State, within 10 work 
days. If there is a designated school staff break, records will be 
provided as soon as possible; however, the time will not exceed 10 work 
days after

[[Page 419]]

the return of staff. DoDEA will initiate actions to meet these deadlines 
without violating the disclosure rules of the Privacy Act, 5 U.S.C. 
552a.
    (iii) Immunizations. (A) Parents have 30 days from the date of 
enrolling their child in a DoDEA school to have their child(ren) 
immunized in accordance with DoDEA's immunization requirements, as the 
receiving LEA.
    (B) For a series of immunizations, parents must begin initial 
vaccinations of their child(ren) within 30 days.
    (iv) Entrance age. (A) At the time of transition and regardless of 
the age of the child, the DoDEA school, acting as the receiving LEA, 
shall enroll the transitioning child at the grade level as the child's 
grade level (i.e., in kindergarten through grade 12) in the sending 
state's LEA.
    (B) A child who has satisfactorily completed the prerequisite grade 
level in the sending state's LEA will be eligible for enrollment in the 
next higher grade level in DoDEA school, acting as the receiving LEA, 
regardless of the child's age.
    (C) To be admitted to a school in the receiving State, the parent or 
guardian of a child transferring from a DoDEA (sending) LEA must 
provide:
    (1) Official military orders showing the military member or the 
member's spouse was assigned to the sending State or commuting area of 
the State in which the child was previously enrolled. If the child was 
residing with a guardian other than the military member during the 
previous enrollment, proof of guardianship (as specified in the Compact) 
should be provided by the parent or guardian to the receiving LEA or SEA 
to establish eligibility under the Compact.
    (2) An official letter or transcript from the sending school 
authority that shows the student's record of attendance, academic 
information, and grade placement.
    (3) Evidence of immunization against communicable diseases.
    (4) Evidence of date of birth.
    (2) Article V: Placement and Attendance--(i) Course placement. (A) 
As long as the course is offered by DoDEA, as the receiving LEA, it 
shall honor placement of a transfer student in courses based on the 
child's placement or educational assessment in the sending State school.
    (B) Course placement includes, but is not limited to, Honors, 
International Baccalaureate, Advanced Placement, vocational, technical, 
and career pathways courses.
    (C) Continuing the child's academic program from the previous school 
and promoting placement in academically and career challenging courses 
shall be a primary consideration when DoDEA considers the placement of a 
transferring child.
    (D) DoDEA, acting as the receiving LEA, may perform subsequent 
evaluations to ensure the child's appropriate course placement.
    (ii) Educational Program Placement. (A) As long as the program is 
offered by DoDEA, acting as a receiving LEA, it will honor placement of 
the child in educational programs based on current educational 
assessments and placement in like programs in the sending State. Such 
programs include, but are not limited to, gifted and talented programs 
and English language learners.
    (B) The receiving State school may perform subsequent evaluations to 
ensure the child's appropriate educational program placement.
    (iii) Special Education Services. (A) DoDEA, acting as the receiving 
LEA, will initially provide comparable services to a child with 
disabilities based on his or her current IEP in compliance with 20 
U.S.C. chapter 33, also known and referred to in this part as the 
``Individuals with Disabilities Education Act (IDEA),'' as amended, and 
the requirements of Executive Order 13160. DoDEA may perform subsequent 
evaluations to ensure the child's appropriate placement consistent with 
IDEA.
    (B) DoDEA, acting as the receiving LEA, will make reasonable 
accommodations and modifications to address the needs of incoming 
children with disabilities, in compliance with the requirements of 29 
U.S.C. 794 and Executive Order 13160, and subject to an existing 504 
plan to provide the child with equal access to education.
    (iv) Placement Flexibility. DoDEA's administrative officials must 
have flexibility in waiving course or program prerequisites or other 
preconditions for

[[Page 420]]

placement in courses or programs offered under the jurisdiction of 
DoDEA.
    (v) Absences Related to Deployment Activities. A child whose parent 
or legal guardian is an active duty Service member and has been called 
to duty for, is on leave from, or has immediately returned from 
deployment to a combat zone or combat support posting, will be granted 
additional excused absences under governing DoDEA rules.
    (3) Article VI: Eligibility for enrollment. (i) Eligibility in DoDEA 
Schools. Eligibility of dependents of military members is governed by 
the laws in 10 U.S.C. 2164 and 20 U.S.C. 921 through 932 and their 
implementing regulations. Only children who are eligible to attend DoDEA 
schools may do so, regardless of their transition status.
    (ii) Eligibility for extracurricular participation. DoDEA, acting as 
the receiving LEA, will facilitate the opportunity for transitioning 
children's inclusion in extracurricular activities, regardless of 
application deadlines, to the extent the children are otherwise 
qualified.
    (4) Article VII: Graduation. To facilitate the child's on-time 
graduation, DoDEA will incorporate the following procedures:
    (i) Waiver requirements. (A) DoDEA administrative officials will 
waive specific courses required for graduation if similar course work 
has been satisfactorily completed in another LEA or provide reasonable 
justification for denial.
    (B) If DoDEA, as a receiving LEA, does not grant a waiver to a child 
who would qualify to graduate from the sending school, DoDEA will 
provide an alternative means of acquiring required coursework so that 
graduation may occur on time.
    (C) If DoDEA, as the receiving LEA, requires a graduation project, 
volunteer community service hours, or other DoDEA specific requirement, 
DoDEA may waive those requirements.
    (ii) Exit exams. (A) DoDEA, as a receiving LEA, must:
    (1) Accept exit or end-of-course exams required for graduation from 
the sending State.
    (2) Accept national norm-referenced achievement tests.
    (3) Provide alternative testing in lieu of testing requirements for 
graduation in the receiving from a DoDEA school.
    (B) If the alternatives in paragraph (b)(2)(i) of this section 
cannot be accommodated by DoDEA as the receiving LEA for a child 
transferring in his or her senior year, then the provisions of paragraph 
(b)(1)(iv)(C) of this section will apply.
    (iii) Transfers during senior year. (A) If a child transferring at 
the beginning or during his or her senior year is ineligible to graduate 
from DoDEA, as the receiving LEA, after all alternatives have been 
considered, DoDEA will request a diploma from the sending LEA or SEA. 
DoDEA will ensure the receipt of a diploma from the sending LEA or SEA, 
if the child meets the graduation requirements of the sending LEA or 
SEA.
    (B) If one of the States in question is not a member of this 
Compact, DoDEA, as a receiving state, will use best efforts to 
facilitate a transferring child's on-time graduation in accordance with 
paragraphs (b)(1)(iv)(A) and (b)(1)(iv)(B) of this section.



PART 93_ACCEPTANCE OF SERVICE OF PROCESS; RELEASE OF OFFICIAL INFORMATION
IN LITIGATION; AND TESTIMONY BY NSA PERSONNEL AS WITNESSES-
-Table of Contents



Sec.
93.1 References.
93.2 Purpose and applicability.
93.3 Definitions.
93.4 Policy.
93.5 Procedures.
93.6 Fees.
93.7 Responsibilities.

    Authority: E.O. 12333, 3 CFR, 1981 Comp., p. 200; 50 U.S.C. apps. 
401, 402.

    Source: 56 FR 51328, Oct. 11, 1991, unless otherwise noted.



Sec.  93.1  References.

    (a) DoD Directive 5405.2, \1\ ``Release of Official Information in 
Litigation and

[[Page 421]]

Testimony by DoD Personnel as Witnesses,'' July 23, 1985, reprinted in 
32 CFR part 97.
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    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------

    (b) E.O. 12333, United States Intelligence Activities, 3 CFR, 1981 
Comp., p. 200, reprinted in 50 U.S.C. app. 401.
    (c) The National Security Agency Act of 1959, Public Law No. 86-36, 
as amended, 50 U.S.C. app. 402.
    (d) Rule 4, Federal Rules of Civil Procedure.
    (e) DoD Instruction 7230.7, \2\ ``User Charges'', January 29, 1985.
---------------------------------------------------------------------------

    \2\ See footnote 1 to Sec.  93.1(a).
---------------------------------------------------------------------------

    (f) 28 CFR 50.15.



Sec.  93.2  Purpose and applicability.

    (a) This part implements Sec.  93.1(a) in the National Security 
Agency/Central Security Service including all field sites (hereinafter 
referred to collectively as NSA). The procedures herein are also 
promulgated pursuant to the NSA's independent authority, under Sec.  
1.12(b)(10) of E.O. 12333 referenced under Sec.  93.1(b), to protect the 
security of its activities, information and employees. This part 
establishes policy, assigns responsibilities, and prescribes mandatory 
procedures for service of process at NSA and for the release of official 
information in litigation by NSA personnel, through testimony or 
otherwise.
    (b) This part is intended only to provide guidance for the internal 
operation of the NSA and does not create any right or benefit, 
substantive or procedural, enforceable at law against the United States, 
the Department of Defense, or NSA. This part does not override the 
statutory privilege against the disclosure of the organization or any 
function of the NSA, of any information with respect to the activities 
thereof, or of the names, titles, salaries, or numbers of the persons 
employed by the NSA. See section 6(a) of the DoD Directive referenced 
under Sec.  93.1(a).



Sec.  93.3  Definitions.

    (a) Service of process. Refers to the delivery of a summons and 
complaint, or other document the purpose of which is to give notice of a 
proceeding or to establish the jurisdiction of a court or administrative 
proceeding, in the manner prescribed by Sec.  93.1(d), to an officer or 
agency of the United States named in court or administrative 
proceedings.
    (b) Demand. Refers to the delivery of a subpoena, order, or other 
directive of a court of competent jurisdiction, or other specific 
authority, for the production, disclosure, or release of official 
information, or for the appearance and testimony of NSA personnel as 
witnesses.
    (c) NSA personnel. (or NSA person) Includes present and former 
civilian employees of NSA (including non-appropriated fund activity 
employees), and present and former military personnel assigned to NSA. 
NSA personnel also includes non-U.S. nationals who perform services 
overseas for NSA under the provisions of status of forces or other 
agreements, and specific individuals hired through contractual 
agreements by or on behalf of NSA.
    (d) Litigation. Refers to all pretrial, trial, and post-trial stages 
of all existing or reasonably anticipated judicial or administrative 
actions, hearings, investigations, or similar proceedings before 
civilian courts, commissions, boards, or other tribunals, foreign and 
domestic. It includes responses to discovery requests, depositions, and 
other pretrial proceedings, as well as responses to formal or informal 
requests by attorneys or others in situations involving litigation.
    (e) Official information. Is information of any kind, in any storage 
medium, whether or not classified or protected from disclosure by Sec.  
93.l(c) that:
    (1) Is in the custody and control of NSA; or
    (2) Relates to information in the custody and control of NSA; or
    (3) Was acquired by NSA personnel as part of their official duties 
or because of their official status within NSA.
    (f) General Counsel. Refers to the NSA General Counsel (GC), or in 
the GC's absence, the NSA Deputy GC, or in both of their absences, the 
NSA Assistant GC (Administration/Litigation).
    (g) NSA attorney. Refers to an attorney in the NSA Office of General 
Counsel (OGC).

[[Page 422]]



Sec.  93.4  Policy.

    Official information that is not classified, privileged, or 
otherwise protected from public disclosure, should generally be made 
reasonably available for use in Federal and State courts and by other 
governmental bodies.



Sec.  93.5  Procedures.

    (a) Release of official information in litigation. NSA personnel 
shall not produce, disclose, release, comment upon, or testify 
concerning any official information during litigation without the prior 
written approval of the GC. In exigent circumstances, the GC may issue 
oral approval, but a record of such approval will be made and retained 
in the OGC. NSA personnel shall not provide, with or without 
compensation, opinion or expert testimony concerning official NSA 
information, subjects, or activities, except on behalf of the United 
States or a party represented by the Department of Justice (DoJ). Upon a 
showing by the requester of exceptional need or unique circumstances and 
that the anticipated testimony will not be adverse to the interests of 
the NSA or the United States, the GC may, in writing, grant special 
authorization for NSA personnel to appear and testify at no expense to 
the United States. Official information may be released in litigation 
only in compliance with the following procedures.
    (1) If official information is sought, through testimony or 
otherwise, by a litigation demand, the individual seeking such release 
or testimony must set forth, in writing and with as much specificity as 
possible, the nature and relevance of the official information sought. 
Subject to paragraph (a)(5) of this section, NSA personnel may only 
produce, disclose, release, comment upon or testify concerning those 
matters that were specified in writing and approved by the GC.
    (2) Whenever a litigation demand is made upon NSA personnel for 
official information or for testimony concerning such information, the 
person upon whom the demand was made shall immediately notify the OGC. 
After consultation and coordination with the DoJ, if required, the GC 
shall determine whether the individual is required to comply with the 
demand and shall notify the requester or the court or other authority of 
that determination.
    (3) If a litigation demand requires a response before instructions 
from the GC are received, the GC shall furnish the requester or the 
court or other authority with a copy of Sec.  93.1(a) and this part 93. 
The GC shall also inform the requester or the court or other authority 
that the demand is being reviewed, and seek a stay of the demand pending 
a final determination.
    (4) If a court or other authority declines to stay the demand in 
response to action taken pursuant to paragraph 3 of this section, or if 
such court or other authority orders that the demand must be complied 
with notwithstanding the final decision of the GC, the NSA personnel 
upon whom the demand was made shall notify the GC of such ruling or 
order. If the GC determines that no further legal review of or challenge 
to the ruling or order will be sought, the affected NSA personnel shall 
comply with the demand or order. If directed by the GC, however, the 
affected NSA personnel must decline to provide the information. \3\ The 
NSA personnel shall state the following to the Court:
---------------------------------------------------------------------------

    \3\ See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951) 
wherein the Supreme Court held that a government employee could not be 
held in contempt for following an agency regulation requiring agency 
approval before producing government information in response to a court 
order.

    ``I must respectfully advise the Court that under instructions given 
to me by the General Counsel of the National Security Agency, in 
accordance with Department of Defense Directive 5405.2 and NSA 
Regulation 10-62, I must respectfully decline to [produce/disclose] that 
---------------------------------------------------------------------------
information.''

    (5) In the event NSA personnel receive a litigation demand for 
official information originated by another U.S. Government component, 
the GC shall forward the appropriate portions of the request to the 
other component. The GC shall notify the requester, court, or other 
authority of the transfer, unless such notice would itself disclose 
classified information.
    (b) Acceptance of service of process. The following are mandatory 
procedures for accepting service of process

[[Page 423]]

for NSA personnel sued or summoned in their official capacities, and for 
attempting service of process on NSA premises.
    (1) Service on NSA or on NSA personnel in their official capacities. 
Sec.  93.1(d) requires service of process on the NSA or NSA personnel 
sued or summoned in their official capacity to be made by serving the 
United States Attorney for the district in which the action is brought, 
and by sending copies of the summons and complaint by registered or 
certified mail to the Attorney General of the United States and to the 
NSA or such NSA personnel. Only the GC or an NSA attorney is authorized 
to accept the copies of the summons and complaint sent to the NSA or NSA 
personnel pursuant to Sec.  93.1(d). Acceptance of the copies of the 
summons and complaint by the GC or an NSA attorney does not constitute 
an admission or waiver with respect to the validity of the service of 
process or of the jurisdiction of the court or other body. Such copies 
shall be sent by registered or certified mail to: General Counsel, 
National Security Agency, 9800 Savage Road, Fort George G. Meade, MD 
20755-6000. The envelope shall be conspicuously marked ``Copy of Summons 
and Complaint Enclosed.'' Except as provided in paragraph (b)(3) of this 
section, no other person may accept the copies of the summons and 
complaint for NSA or NSA personnel sued or summoned in their official 
capacities, including the sued or summoned NSA personnel, without the 
prior express authorization of the GC.
    (i) Parties who wish to deliver, instead of sending by registered or 
certified mail, the copies of the service of process to NSA or to NSA 
personnel sued or summoned in their official capacities, will comply 
with the procedures for service of process on NSA premises in paragraph 
(b) of this section.
    (ii) Litigants may attempt to serve process upon NSA personnel in 
their official capacities at their residences or other places. Because 
NSA personnel are not authorized to accept such service of process, such 
service is not effective under Sec.  93.1(d). NSA personnel should 
refuse to accept service. However, NSA personnel may find it difficult 
to determine whether they are being sued or summoned in their private or 
official capacity. Therefore, NSA personnel shall notify the OGC as soon 
as possible if they receive any summons or complaint that appears to 
relate to actions in connection with their official duties so that the 
GC can determine the scope of service.
    (2) Service upon NSA personnel in their individual capacities on NSA 
premises. Service of process is not a function of NSA. An NSA attorney 
will not accept service of process for NSA personnel sued or summoned in 
their individual capacities, nor will NSA personnel be required to 
accept service of process on NSA premises. Acceptance of such service of 
process in a person's individual capacity is the individual's 
responsibility. NSA does, however, encourage cooperation with the courts 
and with judicial officials.
    (i) When the NSA person works at NSA Headquarters at Fort George G. 
Meade, Maryland, the process server should first telephone the OGC on 
(301) 688-6054, and attempt to schedule a time for the NSA person to 
accept process. If the NSA person's affiliation with NSA is not 
classified, the NSA attorney will communicate with the NSA person and 
serve as the contact point for the person and the process server. If the 
person consents to accept service of process, the NSA attorney will 
arrange a convenient time for the process server to come to NSA, and 
will notify the Security Duty Officer of the arrangement.
    (ii) A process server who arrives at NSA during duty hours without 
first having contacted the OGC, will be referred to the Visitor Control 
Center (VCC) at Operations Building 2A. The VCC will contact the OGC. If 
an NSA attorney is not available, the process server will be referred to 
the Security Duty Officer, who will act in accordance with Office of 
Security (M5) procedures approved by the GC. Service of process will not 
be accepted during non-duty hours unless prior arrangements have been 
made by the OGC. For purposes of this part, duty hours at NSA 
Headquarters are 0800 to 1700, Monday through Friday, excluding legal 
holidays. A process server who arrives at NSA during non-duty hours

[[Page 424]]

without having made arrangements through the OGC to do so will be told 
to call the OGC during duty hours to arrange to serve process.
    (iii) Upon being notified that a process server is at the VCC, an 
NSA attorney will review the service of process and determine whether 
the NSA person is being sued or summoned in his official or individual 
capacity. (If the person is being sued or summoned in his or her 
official capacity, the NSA attorney will accept service of process by 
noting on the return of service form that ``service is accepted in 
official capacity only.'') If the person is being sued or summoned in 
his or her individual capacity, the NSA attorney will contact that 
person to see if that person will consent to accept service.
    (3) Procedures at field activities. Chiefs of NSA field activities 
may accept copies of service of process for themselves or NSA personnel 
assigned to their field component who are sued or summoned in their 
official capacities. Field Chiefs or their designees will accept by 
noting on the return of service form that ``service is accepted in 
official capacity only.'' The matter will then immediately be referred 
to the GC. Additionally, Field Chiefs will establish procedures at the 
field site, including a provision for liaison with local judge 
advocates, to ensure that service of process on persons in their 
individual capacities is accomplished in accordance with local law, 
relevant treaties, and Status of Forces Agreements. Such procedures must 
be approved by the GC. Field Chiefs will designate a point of contact to 
conduct liaison with the OGC.
    (4) No individual will confirm or deny that the person sued or 
summoned is affiliated with NSA until a NSA attorney or the Field Chief 
has ascertained that the individual's relationship with NSA is not 
classified. If the NSA person's association with NSA is classified, 
service of process will not be accepted. In such a case, the GC must be 
immediately informed. The GC will then contact the DoJ for guidance.
    (5) Suits in Foreign Courts. If any NSA person is sued or summoned 
in a foreign court, that person, or the cognizant Field Chief, will 
immediately telefax a copy of the service of process to the OGC. Such 
person will not complete any return of service forms unless advised 
otherwise by an NSA attorney. OGC will coordinate with the DoJ to 
determine whether service is effective and whether the NSA person is 
entitled to be represented at Government expense pursuant to Sec.  
93.1(f).



Sec.  93.6  Fees.

    Consistent with the guidelines in Sec.  93.1(e), NSA may charge 
reasonable fees to parties seeking, by request or demand, official 
information not otherwise available under the Freedom of Information 
Act, 5 U.S.C. 552. Such fees are calculated to reimburse the Government 
for the expense of providing such information, and may include:
    (a) The costs of time expended by NSA employees to process and 
respond to the request or demand;
    (b) Attorney time for reviewing the request or demand and any 
information located in response thereto, and for related legal work in 
connection with the request or demand; and
    (c) Expenses generated by materials and equipment used to search 
for, produce, and copy the responsive information.



Sec.  93.7  Responsibilities.

    (a) The General Counsel. The GC is responsible for overseeing NSA 
compliance with Sec.  93.1(a) and this part 93, and for consulting with 
DoJ when appropriate. In response to a litigation demand requesting 
official information or the testimony of NSA personnel as witnesses, the 
GC will coordinate NSA action to determine whether official information 
may be released and whether NSA personnel may be interviewed, contacted, 
or used as witnesses. The GC will determine what, if any, conditions 
will be imposed upon such release, interview, contact, or testimony. In 
most cases, an NSA attorney will be present when NSA personnel are 
interviewed or testify concerning official information. The GC may 
delegate these authorities.
    (b) The Deputy Director for Plans and Policy (DDPP). The DDPP will 
assit the GC, upon request, in identifying and coordinating with NSA 
components

[[Page 425]]

that have cognizance over official information requested in a litigation 
demand. Additionally, the DDPP will advise the GC on the classified 
status of official information, and, when necessary, assist in 
declassifying, redacting, substituting, or summarizing official 
information for use in litigation. The DDPP may require the assistance 
of other Key Component Chiefs.
    (c) Chiefs of Key Components and Field Activities. Chiefs of Key 
Components and Field Activities shall ensure that their personnel are 
informed of the contents of this part 93, particularly of the 
requirements to consult with the OGC prior to responding to any 
litigation demand, and to inform the OGC whenever they receive service 
of process that is not clearly in their individual capacities. Field 
Chiefs will notify the OGC of the persons they designate under Sec.  
93.5(b)(3).
    (d) The Deputy Director for Administration (DDA). Within 60 days of 
the date of this part, the DDA shall submit to the GC for approval 
procedures for the attempted delivery of service of process during duty 
hours when an attorney of the OGC is not available.



 PART 94_NATURALIZATION OF ALIENS SERVING IN THE ARMED FORCES OF 
 THE UNITED STATES AND OF ALIEN SPOUSES AND/OR ALIEN ADOPTED CHILDREN
 OF MILITARY AND CIVILIAN PERSONNEL ORDERED OVERSEAS--Table of Contents



Sec.
94.1 Purpose.
94.2 Applicability.
94.3 Definitions.
94.4 Policy and procedures.
94.5 Forms required.

    Authority: Sec. 301, 80 Stat. 379; 5 U.S.C. 301.

    Source: 35 FR 17540, Nov. 14, 1970, unless otherwise noted.



Sec.  94.1  Purpose.

    This part prescribes uniform procedures acceptable to the 
Immigration and Naturalization Service of the Department of Justice, to 
(a) facilitate the naturalization of aliens who have served honorably in 
the Armed Forces of the United States and to (b) militarily certify 
alien dependents seeking naturalization under the provisions of 
Immigration and Nationality Act of 1952, as amended, sections 319(b) and 
323(c) (8 U.S.C. 1430(b) and 1434(c)); and furnishes policy guidance to 
the Secretaries of the Military Departments governing discharge or 
release from active duty in the Armed Forces of the United States of 
permanent-residence aliens who desire to be naturalized as U.S. citizens 
under the provisions of Act of June 27, 1952, section 328 (66 Stat. 
249); 8 U.S.C. 1439.



Sec.  94.2  Applicability.

    The provisions of this part apply to the Military Departments.



Sec.  94.3  Definitions.

    (a) Permanent-residence alien is an alien admitted into the United 
States under an immigration visa for permanent residence; or an alien, 
who, after admission without an immigrant visa, has had his status 
adjusted to that of an alien lawfully admitted for permanent residence.
    (b) Armed Forces of the United States denotes collectively all 
components of the Army, Navy, Air Force, Marine Corps, and Coast Guard.



Sec.  94.4  Policy and procedures.

    (a) Naturalization of an alien who has served honorably in the Armed 
Forces of the United States at any time. (1) Under the provisions of Act 
of June 27, 1952, section 328 (66 Stat. 249); 8 U.S.C. 1439, an alien 
who has served in the Armed Forces of the United States for a period(s) 
totaling three (3) years may be naturalized if he:
    (i) Has been lawfully admitted to the United States for permanent 
residence;
    (ii) Was separated from the military service under honorable 
conditions;
    (iii) Files a petition while still in the military service, or 
within six (6) months after the termination of such service; and
    (iv) Can comply in all other respects with the Immigration and 
Nationality Act of 1952, except that (a) no period of residence or 
specified period of physical presence in the United States or the State 
in which the petition for naturalization is filed is required, and (b)

[[Page 426]]

residence within the jurisdiction of the court is not required.
    (2) The prescribed 3-year period may be satisfied by a combination 
of active duty and inactive duty in a reserve status.
    (3) An alien member desiring to fulfill naturalization requirements 
through military service shall not be separated prior to completion of 
three (3) full years of active duty unless:
    (i) His performance or conduct does not justify retention, in which 
case he shall be separated in accordance with the provisions of part 41 
of this subchapter and chapter 47, title 10, United States Code (Uniform 
Code of Military Justice), as appropriate; or
    (ii) He is to be transferred to inactive duty in a reserve component 
in order to:
    (a) Complete a reserve obligation under the provisions of part 50 of 
this subchapter, or
    (b) Attend a recognized institution of learning under the early 
release program, as provided in DoD Instruction 1332.15, ``Early Release 
of Military Enlisted Personnel for College or Vocational/Technical 
School Enrollment,'' January 26, 1970. \1\
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    \1\ Filed as part of original. Copies available from the U.S. Naval 
Publications and Forms Center, 5801 Tabor Avenue, Philadelphia, PA. 
19120, Attention: Code 300.
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    (4) Caution shall be exercised to ensure that an alien's affiliation 
with the Armed Forces of the United States, whether on active duty or on 
inactive duty in a reserve status, is not terminated even for a few days 
short of the 3-year statutory period, since failure to comply with the 
exact 3-year requirement of Act of June 27, 1952, section 328 (66 Stat. 
249); 8 U.S.C. 1439 will automatically preclude a favorable 
determination by the Immigration and Naturalization Service on any 
petition for naturalization based on an alien's military service.
    (5) During a period of hostilities, as designated by the President 
of the United States, the expeditious naturalization provisions outlined 
in paragraph (b) of this section, will take precedence over the 
foregoing.
    (b) Naturalization of an alien who has served in the Armed Forces of 
the United States during a period of hostilities as designated by the 
President of the United States. (1) Under the provisions of Immigration 
and Nationality Act of 1952, as amended, section 329 (8 U.S.C. 1440), an 
alien who serves honorably on active duty in the Armed Forces of the 
United States during the period beginning February 28, 1961, and ending 
on a date designated by the President, by Executive order, as the date 
of termination of the Vietnam hostilities, or during any future period 
which President, by Executive order, shall designate as a period in 
which the Armed Forces of the United States are or were engaged in 
military operations involving armed conflict with a hostile foreign 
force, and who is otherwise eligible, may be naturalized whether or not 
he has been lawfully admitted to the United States for permanent 
residence, if the member was inducted, enlisted, or reenlisted in the 
United States (inclusive of Puerto Rico, Guam, Virgin Islands, Canal 
Zone, American Samoa, or Swains Island).
    (i) The induction, enlistment, or reenlistment in the United States 
or its stated possessions must actually be in these land areas, in 
ports, harbors, bays, enclosed sea areas along their routes, or within a 
marginal belt of the sea extending from the coastline outward three (3) 
geographical miles.
    (ii) Enlistment or reenlistment aboard a ship on the high seas or in 
foreign waters does not meet the requirements of Immigration and 
Nationality Act of 1952, as amended, section 329 (8 U.S.C. 1440). In 
such instances, the provisions of paragraph (a) of this section may 
apply.
    (2) Each Military Department will establish procedures containing 
the provisions outlined in paragraphs (b)(2) (i) and (ii) of this 
section. In addition, each qualifying alien shall be advised of the 
liberalized naturalization provisions of the Immigration and Nationality 
Act of 1952, as amended, section 329 (8 U.S.C. 1440), i.e., that the 
usual naturalization requirements concerning age, residence, physical 
presence, court jurisdiction and waiting periods are not applicable, and 
will be given appropriate assistance in processing his naturalization 
application in consonance with procedures contained in ``Naturalization 
Requirements and

[[Page 427]]

General Information,'' published by the U.S. Department of Justice (Form 
N-17).
    (i) Military basic training and orientation programs will include 
advice and assistance to interested aliens in completing and submitting 
the application and other forms required to initiate naturalization 
proceedings.
    (ii) In addition, applicants should be advised that:
    (a) Under the laws of certain foreign countries, military service in 
the Armed Forces of the United States may result in the loss of their 
native country citizenship but this same service may make them eligible 
for U.S. citizenship.
    (b) Their eligibility for naturalization, based upon the honorable 
service in an active duty status prescribed in the Immigration and 
Nationality Act of 1952, as amended, section 329 (8 U.S.C. 1440) will be 
retained, even though they apply for naturalization after their return 
to the United States following the termination or completion of their 
overseas assignment, or after their honorable discharge from the Armed 
Forces of the United States.
    (c) If they are stationed at a base in the continental United 
States, Alaska, Hawaii, Puerto Rico, Guam, or the Virgin Islands, they 
should apply for citizenship only if they expect to be stationed at the 
base for at least 60 days following application. Unless the Immigration 
and Naturalization Service has at least 60 days in which to complete the 
case, there is no assurance that it can be completed before the 
applicant is transferred, since the processing procedures outlined below 
take time and are not entirely within the control of the Immigration and 
Naturalization Service.
    (1) Every naturalization application must be processed when received 
by the Immigration and Naturalization Service. Special arrangements have 
been made to expedite the processing of petitions of alien members of 
the Armed Forces.
    (2) After processing, the alien applicant and two citizen witnesses 
must personally appear for examination by an officer of the Immigration 
and Naturalization Service in connection with the filing of a petition 
for naturalization in court.
    (3) Finally, the applicant must appear in person before the 
naturalization court on a date set by the court so that he may be 
admitted to citizenship.
    (d) If the alien member is scheduled for overseas assignment where 
naturalization courts are not available, he should apply for 
naturalization on the earliest possible date but no later than 60 days 
before departure for overseas assignment. No assurance that processing 
will be completed before the applicant's departure for overseas will be 
given by the Immigration and Naturalization Service unless it has 60 
days to complete the matter.
    (1) An alien serviceman who is serving overseas and has submitted or 
submits the required naturalization application and forms to the 
Immigration and Naturalization Service may not be granted ordinary 
leave, or Rest and Recuperation (R&R) leave (where authorized in 
overseas areas) for naturalization purposes, unless a written 
notification from the Immigration and Naturalization Service has been 
received by the serviceman informing him that the processing of his 
application has been completed, and requesting him to appear with two 
U.S. citizen witnesses before a representative of the Immigration and 
Naturalization Service at a designated location for the purpose of 
completing the naturalization.
    (2) If possible, an applicant granted leave for such purposes should 
advise the Immigration and Naturalization Service when he expects to 
arrive in the leave area and, in any event, should contact the 
Immigration and Naturalization Service office immediately upon arrival 
in the area. Every effort will be made to complete the naturalization 
within the leave period.
    (c) Naturalization of alien spouses and/or alien adopted children of 
military and civilian personnel ordered overseas. Alien spouses and/or 
alien adopted children of military and civilian personnel of the 
Department of Defense who are authorized to accompany or join their 
sponsors overseas and who wish to obtain U.S. citizenship prior to 
departure will be given maximum assistance by commanders of military 
installations.

[[Page 428]]

    (1) DD Form 1278, ``Certificate of Overseas Assignment to Support 
Application to File Petition for Naturalization,'' \2\ will be issued to 
alien dependents by military commanders at the times indicated below in 
order that the alien may file such certificate with the nearest 
Immigration and Naturalization Service Office to initiate naturalization 
proceedings. Only DD Form 1278 will be accepted by the Immigration and 
Naturalization Service. Military commanders will not issue memoranda or 
letters of any kind in lieu thereof.
---------------------------------------------------------------------------

    \2\ Filed as part of original. Copies may be obtained from 
Departments of the Army, Navy, and Air Force.
---------------------------------------------------------------------------

    (i) When dependents are authorized automatic concurrent travel, DD 
Form 1278 will be issued not earlier than 90 days prior to the 
dependents' schedule date of travel.
    (ii) When advance application for concurrent travel is required, DD 
Form 1278 will be issued after approval is received and not earlier than 
90 days prior to the dependents' scheduled date of departure.
    (iii) When concurrent travel is not authorized, DD Form 1278 will be 
issued after authorization for dependents' movement is received and not 
earlier than 90 days prior to the dependents' scheduled date of travel.
    (2) Upon receipt of DD Form 1278, the alien will file this form, 
together with the application for petition for naturalization, 
Immigration and Naturalization Form N-400 (adult) or N-402 (child) as 
appropriate, if not previously filed, with the nearest office of the 
Immigration and Naturalization Service. The application must be 
accompanied by:
    (i) Three identical photographs.
    (ii) Form FD-358, Applicant Fingerprint Card, and
    (iii) Form G-325, Biographic Information.
    (3) Further processing of the application for citizenship is as 
prescribed by the Immigration and Naturalization Service.
    (4) Upon completion of the naturalization process, immediate 
application for passport should be made, in order that it can be issued 
prior to scheduled departure of the dependent for overseas.



Sec.  94.5  Forms required.

    The following forms required for naturalization purposes may be 
obtained from any office of the Immigration and Naturalization Service:
    (a) N-400 Application to File a Petition for Naturalization (Adult) 
(Submit original form only).
    (b) N-402 Application to File a Petition for Naturalization (Child) 
(Submit original form only).
    (c) G-325 Biographic Information (Submit original and duplicate of 
multileaf form).
    (d) G-325B Biographic Information (Submit original form only).
    (e) FD-258 Applicant Fingerprint Card (Submit one completed card).
    (f) N-426 Certificate of Military or Naval Service (Submit in 
triplicate). (Should be handled on a priority basis so as to avoid 
prejudicing the early completion of the naturalization process, 
particularly for an alien who may receive an overseas assignment.)
    (g) ``Naturalization Requirements and General Information,'' 
published by the U.S. Department of Justice (Form N-17) describes the 
naturalization requirements and lists Immigration and Naturalization 
offices which process applications.



PART 97_RELEASE OF OFFICIAL INFORMATION IN LITIGATION AND TESTIMONY BY
DoD PERSONNEL AS WITNESSES--Table of Contents



Sec.
97.1 Purpose.
97.2 Applicability and scope.
97.3 Definitions.
97.4 Policy.
97.5 Responsibilities.
97.6 Procedures.

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

    Source: 50 FR 32056, Aug. 8, 1985, unless otherwise noted.



Sec.  97.1  Purpose.

    This directive establishes policy, assigns responsibilities, and 
prescribes procedures for the release of official DoD information in 
litigation and for testimony by DoD personnel as witnesses during 
litigation.

[[Page 429]]



Sec.  97.2  Applicability and scope.

    (a) This directive applies to the Office of the Secretary of Defense 
(OSD), the Military Departments, the Organization of the Joint Chiefs of 
Staff (OJCS), the Unified and Specified Commands, and the Defense 
Agencies (hereafter referred to as ``DoD Components''), and to all 
personnel of such DoD Components.
    (b) This directive does not apply to the release of official 
information or testimony by DoD personnel in the following situations:
    (1) Before courts-martial convened by the authority of the Military 
Departments or in administrative proceedings conducted by or on behalf 
of a DoD Component;
    (2) Pursuant to administrative proceedings conducted by or on behalf 
of the Equal Employment Opportunity Commission (EEOC) or the Merit 
Systems Protection Board (MSPB), or pursuant to a negotiated grievance 
procedure under a collective bargaining agreement to which the 
Government is a party;
    (3) In response to requests by Federal Government counsel in 
litigation conducted on behalf of the United States;
    (4) As part of the assistance required pursuant to DoD Directive 
5220.6, ``Industrial Personnel Security Clearance Program,'' December 20 
1976; or,
    (5) Pursuant to disclosure of information to Federal, State, and 
local prosecuting and law enforcement authorities, in conjunction with 
an investigation conducted by a DoD criminal investigative organization.
    (c) This Directive does not supersede or modify existing laws or DoD 
program governing the testimony of DoD personnel or the release of 
official DoD information during grand jury proceedings, the release of 
official information not involved in litigation, or the release of 
official information pursuant to the Freedom of Information Act, 5 
U.S.C. 552, or the Privacy Act, 5 U.S.C. 552a, nor does this Directive 
preclude treating any written request for agency records that is not in 
the nature of legal process as a request under the Freedom of 
Information or Privacy Acts.
    (d) This Directive is not intended to infringe upon or displace the 
responsibilities committed to the Department of Justice in conducting 
litigation on behalf of the United States in appropriate cases.
    (e) This Directive does not preclude official comment on matters in 
litigation in appropriate cases.
    (f) This Directive is intended only to provide guidance for the 
internal operation of the Department of Defense and is not intended to, 
does not, and may not be relied upon to create any right or benefit, 
substantive or procedural, enforceable at law against the United States 
or the Department of Defense.



Sec.  97.3  Definitions.

    (a) Demand. Subpoena, order, or other demand of a court of competent 
jurisdiction, or other specific authority, for the production, 
disclosure, or release of official DoD information or for the appearance 
and testimony of DoD personnel as witnesses.
    (b) DoD personnel. Present and former U.S. military personnel; 
Service Academy cadets and midshipmen; and present and former civilian 
employees of any Component of the Department of Defense, including 
nonappropriated fund activity employees; non-U.S. nationals who perform 
services overseas, under the provisions of status of forces agreements, 
for the U.S. Armed Forces; and other specific individuals hired through 
contractual agreements by or on behalf of the Department of Defense.
    (c) Litigation. All pretrial, trial, and post-trial stages of all 
existing or reasonably anticipated judicial or administrative actions, 
hearings, investigations, or similar proceedings before civilian courts, 
commissions, boards (including the Armed Services Board of Contract 
Appeals), or other tribunals, foreign and domestic. This term includes 
responses to discovery requests, depositions, and other pretrial 
proceedings, as well as responses to formal or informal requests by 
attorneys or others in situations involving litigation.
    (d) Official information. All information of any kind, however 
stored, that is in the custody and control of the Department of Defense, 
relates to information in the custody and control of the Department, or 
was acquired by

[[Page 430]]

DoD personnel as part of their official duties or because of their 
official status within the Department while such personnel were employed 
by or on behalf of the Department or on active duty with the U.S. Armed 
Forces.



Sec.  97.4  Policy.

    It is DoD policy that official information should generally be made 
reasonably available for use in Federal and State courts and by other 
governmental bodies unless the information is classified, privileged, or 
otherwise protected from public disclosure.



Sec.  97.5  Responsibilities.

    (a) The General Counsel, Department of Defense, shall provide 
general policy and procedural guidance by the issuance of supplemental 
instructions or specific orders concerning the release of official DoD 
information in litigation and the testimony of DoD personnel as 
witnesses during litigation.
    (b) The Heads of DoD Components shall issue appropriate regulations 
to implement this Directive and to identify official information that is 
involved in litigation.



Sec.  97.6  Procedures.

    (a) Authority to act. (1) In response to a litigation request or 
demand for official DoD information or the testimony of DoD personnel as 
witnesses, the General Counsels of DoD, Navy, and the Defense Agencies; 
the Judge Advocates General of the Military Departments; and the Chief 
Legal Advisors to the JCS and the Unified and Specified Commands, with 
regard to their respective Components, are authorized--after consulting 
and coordinating with the appropriate Department of Justice litigation 
attorneys, as required--to determine whether official information may be 
released in litigation; whether DoD personnel assigned to or affiliated 
with the Component may be interviewed, contacted, or used as witnesses 
concerning official DoD information or as expert witnesses; and what, if 
any, conditions will be imposed upon such release, interview, contact, 
or testimony. Delegation of this authority, to include the authority to 
invoke appropriate claims of privilege before any tribunal, is 
permitted.
    (2) In the event that a DoD Component receives a litigation request 
or demand for official information originated by another Component, the 
receiving Component shall forward the appropriate portions of the 
request or demand to the originating Component for action in accordance 
with this Directive. The receiving Component shall also notify the 
requestor, court, or other authority of its transfer of the request or 
demand.
    (3) Notwithstanding the provisions of paragraph (a) (1) and (2) of 
this section, the General Counsel, DoD, in litigation involving 
terrorism, espionage, nuclear weapons, intelligence means or sources, or 
otherwise as deemed necessary, may notify Components that General 
Counsel, DoD, will assume primary responsibility for coordinating all 
litigation requests and demands for official DoD information or 
testimony of DoD personnel, or both; consulting with the Department of 
Justice, as required; and taking final action on such requests and 
demands.
    (b) Factors to consider. In deciding whether to authorize the 
release of official DoD information or the testimony of DoD personnel 
concerning official information (hereafter referred to as ``the 
disclosure'') pursuant to paragraph (a), DoD officials should consider 
the following types of factors:
    (1) Whether the request or demand is unduly burdensome or otherwise 
inappropriate under the applicable court rules;
    (2) Whether the disclosure, including release in camera, is 
appropriate under the rules of procedure governing the case or matter in 
which the request or demand arose;
    (3) Whether the disclosure would violate a statute, executive order, 
regulation, or directive;
    (4) Whether the disclosure, including release in camera, is 
appropriate or necessary under the relevant substantive law concerning 
privilege;
    (5) Whether the disclosure, except when in camera and necessary to 
assert a claim of privilege, would reveal information properly 
classified pursuant to DoD 5200.1-R, ``Information Security

[[Page 431]]

Program Regulation,'' August 1982; unclassified technical data withheld 
from public release pursuant to DoD Directive 5230.25, ``Withholding of 
Unclassified Technical Data from Public Disclosure,'' November 6, 1984; 
or other matters exempt from unrestricted disclosure; and,
    (6) Whether disclosure would interfere with ongoing enforcement 
proceedings, compromise constitutional rights, reveal the identity of an 
intelligence source or confidential informant, disclose trade secrets or 
similarly confidential commercial or financial information, or otherwise 
be inappropriate under the circumstances.
    (c) Decisions on litigation requests and demands. (1) Subject to 
paragraph (c)(5) of this section, DoD personnel shall not, in response 
to a litigation request or demand, produce, disclose, release, comment 
upon, or testify concerning any official DoD information without the 
prior written approval of the appropriate DoD official designated in 
Sec.  97.6(a). Oral approval may be granted, but a record of such 
approval will be made and retained in accordance with the applicable 
implementing regulations.
    (2) If official DoD information is sought, through testimony or 
otherwise, by a litigation request or demand, the individual seeking 
such release or testimony must set forth, in writing and with as much 
specificity as possible, the nature and relevance of the official 
information sought. Subject to paragraph (c)(5), DoD personnel may only 
produce, disclose, release, comment upon, or testify concerning those 
matters that were specified in writing and properly approved by the 
appropriate DoD official designated in paragraph (a) of this section. 
See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
    (3) Whenever a litigation request or demand is made upon DoD 
personnel for official DoD information or for testimony concerning such 
information, the personnel upon whom the request or demand was made 
shall immediately notify the appropriate DoD official designated in 
Sec.  97.6(a) for the Component to which the individual contacted is or, 
for former personnel, was last assigned. In appropriate cases, the 
responsible DoD official shall thereupon notify the Department of 
Justice of the request or demand. After due consultation and 
coordination with the Department of Justice, as required, the DoD 
official shall determine whether the individual is required to comply 
with the request or demand and shall notify the requestor or the court 
or other authority of the determination reached.
    (4) If, after DoD personnel have received a litigation request or 
demand and have in turn notified the appropriate DoD official in 
accordance with paragraph (c)(3) of this section , a response to the 
request or demand is required before instructions from the responsible 
official are received, the responsible official designated in paragraph 
(a) shall furnish the requestor or the court or other authority with a 
copy of this directive and applicable implementing regulations, inform 
the requestor or the court or other authority that the request or demand 
is being reviewed, and seek a stay of the request or demand pending a 
final determination by the Component concerned.
    (5) If a court of competent jurisdiction or other appropriate 
authority declines to stay the effect of the request or demand in 
response to action taken pursuant to Sec.  97.6(c)(4), or if such court 
or other authority orders that the request or demand must be complied 
with notwithstanding the final decision of the appropriate DoD official, 
the DoD personnel upon whom the request or demand was made shall notify 
the responsible DoD official of such ruling or order. If the DoD 
official determines that no further legal review of or challenge to the 
court's order or ruling will be sought, the affected DoD personnel shall 
comply with the request, demand, or order. If directed by the 
appropriate DoD official, however, the affected DoD personnel shall 
respectfully decline to comply with the demand. See United States ex 
rel. Touhy v. Ragen, 340 U.S. 462 (1951).
    (d) Fees. Consistent with the guidelines in DoD Instruction 7230.7, 
``User Charges,'' January 29, 1985, the appropriate officials designated 
in Sec.  97.6(a) are authorized to charge reasonable fees, as 
established by regulation and to the extent not prohibited by law, to 
parties seeking, by request or demand,

[[Page 432]]

official DoD information not otherwise available under DoD 5400.7-R, 
``DoD Freedom of Information Act Program,'' March 24, 1980. Such fees, 
in amounts calculated to reimburse the government for the expense of 
providing such information, may include the costs of time expended by 
DoD employees to process and respond to the request or demand; attorney 
time for reviewing the requst or demand and any information located in 
response thereto and for related legal work in connection with the 
request or demand; and expenses generated by materials and equipment 
used to search for, produce, and copy the responsive information. See 
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978).
    (e) Expert or opinion testimony. DoD personnel shall not provide, 
with or without compensation, opinion or expert testimony concerning 
official DoD information, subjects, or activities, except on behalf of 
the United States or a party represented by the Department of Justice. 
Upon a showing by the requestor of exceptional need or unique 
circumstances and that the anticipated testimony will not be adverse to 
the interests of the Department of Defense or the United States, the 
appropriate DoD official designated in paragraph (a) of this section 
may, in writing, grant special authorization for DoD personnel to appear 
and testify at no expense to the United States. If, despite the final 
determination of the responsible DoD official, a court of competent 
jurisdiction or other appropriate authority, orders the appearance and 
expert or opinion testimony of DoD personnel, the personnel shall notify 
the responsible DoD official of such order. If the DoD official 
determines that no further legal review of or challenge to the court's 
order will be sought, the affected DoD personnel shall comply with the 
order. If directed by the appropriate DoD official, however, the 
affected DoD personnel shall respectfully decline to comply with the 
demand. See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).



PART 99_PROCEDURES FOR STATES AND LOCALITIES TO REQUEST INDEMNIFICATION-
-Table of Contents



Sec.
99.1 Scope and purpose.
99.3 General definitions.
99.5 Eligibility for indemnification.
99.7 Procedures for requesting an indemnification agreement.
99.9 Terms of indemnification.

Appendix to Part 99--Addresses of Relevant U.S. Government Agencies

    Authority: Access to Criminal History Records for National Security 
Purposes, of The Intelligence Authorization Act for Fiscal Year 1986, 
Pub. L. No. 99-169, secs. 801-803, 99 Stat. 1002, 1008-1011 (1985) 
(codified in part at 5 U.S.C. 9101).

    Source: 51 FR 42555, Nov. 25, 1986, unless otherwise noted.



Sec.  99.1  Scope and purpose.

    (a) The Department of Defense (DoD), Office of Personnel Management 
(OPM), or Central Intelligence Agency (CIA) has the right to criminal 
history information of States and local criminal justice agencies in 
order to determine whether a person may:
    (1) Be eligible for access to classified information;
    (2) Be assigned to sensitive national security duties; or
    (3) Continue to be assigned to national security duties.
    (b) This part sets out the conditions under which the DoD, OPM, or 
CIA may sign an agreement to indemnify and hold harmless a State or 
locality against claims for damages, costs, and other monetary loss 
caused by disclosure or use of criminal history record information by 
one of these agencies.
    (c) The procedures set forth in this part do not apply to situations 
where a Federal agency seeks access to the criminal history records of 
another Federal agency.
    (d) By law these provisions implementing 5 U.S.C. 9101 (b)(3) shall 
expire December 4, 1988, unless the duration of said section is extended 
or limited by Congress.



Sec.  99.3  General definitions.

    For the purposes of Sec. Sec.  99.1 through 99.9 of this part:

[[Page 433]]

    Criminal history record information: information collected by 
criminal justice agencies on individuals consisting of identifiable 
descriptions and notations of arrests, indictments, information, or 
other formal criminal charges and any disposition arising therefrom, 
sentencing, correction supervision, and release. The term does not 
include identification information such as fingerprint records to the 
extent that such information does not indicate involvement of the 
individual in the criminal justice system. The term does not include 
those records of a State or locality sealed pursuant to law from access 
by State and local criminal justice agencies of that State or locality.
    Criminal justice agency: Federal, State, and local agencies 
including (a) courts, or (b) a government agency or any subunit thereof 
which performs the administration of criminal justice pursuant to a 
statute or executive order, and which allocates a substantial part of 
its annual budget to the administration of criminal justice.
    Department of Defense: the Defense Investigative Service, National 
Security Agency, Naval Investigative Service, Air Force Office of 
Special Investigations, and Army Intelligence and Security Command.
    Federal agency: the Department of Defense, the Office of Personnel 
Management, or the Central Intelligence Agency, or any other Federal 
agency subsequently authorized by Congress to obtain access to criminal 
history records information.
    Locality: any local government authority or agency or component 
thereof within a State having jurisdiction over matters at a county, 
municipal or other local government level.
    State: any of the several States, the District of Columbia, the 
Commonwealth of Puerto Rico, the Northern Mariana Islands, Guam, the 
Virgin Islands, American Samoa, the Trust Territory of Pacific Islands, 
and any other territory or possession of the United States.



Sec.  99.5  Eligibility for indemnification.

    As provided for under 5 U.S.C. 9101(b)(3), a State or locality may 
request an indemnification agreement.
    (a) To be eligible for an indemnification agreement a State or 
locality must have had a law in effect on December 4, 1985 that 
prohibited or had the effect of prohibiting the disclosure of criminal 
history record information to the DoD, OPM, or CIA.
    (b) A State or locality is also eligible for an indemnification 
agreement if it meets the conditions of paragraph (a) of this section, 
but nevertheless provided criminal history record information to the 
DoD, OPM, or CIA on or before December 4, 1985.



Sec.  99.7  Procedures for requesting an indemnification agreement.

    When requesting an indemnification agreement, the State or locality 
must notify each Federal agency as appropriate, at the address listed in 
the appendix to this part, of its eligibility of an indemnification 
agreement. It must also:
    (a) Certify that on December 4, 1985, the State or locality had in 
effect a law which prohibited or had the effect of prohibiting the 
disclosure of criminal history record information to the DoD, OPM, or 
CIA; and
    (b) Append to the request for an indemnification agreement a copy of 
such law.



Sec.  99.9  Terms of indemnification.

    The terms of the Uniform Federal Agency Indemnification Agreement 
(UFAIA), must conform to the following provisions:
    (a) Eligibility: The State or locality must certify that its law 
prohibits or has the effect of prohibiting the disclosure of criminal 
history record information to the DoD, OPM, or CIA for the purposes 
described in section 910.101(a) and that such law was in effect on 
December 4, 1985.
    (b) Liability: (1) The Federal agency agrees to indemnify and hold 
harmless the State or locality from any claim for damages, costs and 
other monetary loss arising from the disclosure or negligent use by the 
DoD, OPM, or CIA of criminal history record information obtained from 
that State or locality pursuant to 5 U.S.C. 9101(b). The indemnification 
will include the officers, employees, and agents of the State or 
locality.

[[Page 434]]

    (2) The indemnification agreement will not extend to any act or 
omission prior to the transmittal of the criminal history record 
information to the Federal agency.
    (3) The indemnification agreement will not extend to any negligent 
acts on the part of the State or locality in compiling, transcribing or 
failing to delete or purge any of the information transmitted.
    (c) Consent and access requirements: (1) The Federal agency when 
requesting criminal history record information from the State or 
locality for the release of such information will attest that it has 
obtained the written consent of the individual under investigation after 
advising him or her of the purposes for which that information is 
intended to be used.
    (2) The Federal agency will attest that it has advised that 
individual of the right to access that information.
    (d) Purpose requirements: The Federal agency will use the criminal 
history record information only for the purposes stated in Sec.  
910.101(a).
    (e) Notice, litigation and settlement procedures: (1) The State or 
locality must give notice of any claim against it on or before the 10th 
day after the day on which claim against it is received, or it has 
notice of such a claim.
    (2) The notice must be given to the Attorney General and to the U.S. 
Attorney of the district embracing the place wherein the claim is made.
    (3) The Attorney General shall make all determinations regarding the 
settlement or defense of such claims.



Sec. Appendix to Part 99--Addresses of Relevant U.S. Government Agencies

Department of Defense, Office of the General Counsel, Room 3E988, 
Washington, DC 20301-1600
Office of Personnel Management, Office of Federal Investigations, P.O. 
Box 886, Washington, DC 20044
Central Intelligence Agency, Attention: Office of General Counsel, 
Washington, DC 20505



PART 103_SEXUAL ASSAULT PREVENTION AND RESPONSE (SAPR) PROGRAM-
-Table of Contents



Sec.
103.1 Purpose.
103.2 Applicability.
103.3 Definitions.
103.4 Policy.
103.5 Responsibilities.
103.6 Reporting options and sexual assault reporting procedures.
103.7 Case management for unrestricted reports of sexual assault.

Appendix A to Part 103--Related Policies

    Authority: 10 U.S.C. 113, and Public Laws 106-65, 108-375, 109-163, 
109-364, 110-417, 111-84, 111-383, 112-81, 112-239, 113-291, 113-66,113-
291, and 114-92.

    Source: 85 FR 42710, July 15, 2020, unless otherwise noted.



Sec.  103.1  Purpose.

    This part is the Department of Defense's comprehensive SAPR program 
that provides policy guidance and assigns responsibilities for the 
prevention, response, and oversight of sexual assaults involving members 
of the U.S. Armed Forces and Reserve Component, to include the National 
Guard. The SAPR Program is supported by the policies identified in 
Appendix A to this part.



Sec.  103.2  Applicability.

    (a) This part applies to:
    (1) The Office of the Secretary of Defense, the Military 
Departments, the Office of the Chairman of the Joint Chiefs of Staff and 
the Joint Staff, the Combatant Commands, the Inspector General of the 
DoD (IG DoD), the Defense Agencies, the DoD Field Activities, and all 
other organizational entities within the DoD (hereafter referred to 
collectively as the ``DoD Components'').
    (2) National Guard and Reserve Component members who are sexually 
assaulted when performing active service, as defined in 10 U.S.C. 
101(d)(3), and inactive duty training. Refer to paragraph (c) of 
Appendix A to this part for information on how to access DoD internal 
policy containing additional SAPR and healthcare services provided to 
such personnel and eligibility criteria for Restricted Reporting.
    (3) Military dependents 18 years of age and older who are eligible 
for treatment in the military healthcare system, at installations in the 
continental United States and outside of the continental United States 
(OCONUS), and

[[Page 435]]

who were victims of sexual assault perpetrated by someone other than a 
spouse or intimate partner. An adult military dependent may file 
unrestricted or restricted reports of sexual assault.
    (4) The following non-military personnel who are only eligible for 
limited healthcare (medical and mental health) services in the form of 
emergency care (see Sec.  103.3), unless otherwise eligible to receive 
treatment in a military medical treatment facility. They will also be 
offered the limited SAPR services of a Sexual Assault Response 
Coordinator (SARC) and a SAPR Victim Advocate (VA) while undergoing 
emergency care OCONUS. For further information see paragraph (c) of 
Appendix A to this part. These limited healthcare and SAPR services 
shall be provided to:
    (i) DoD civilian employees and their family dependents 18 years of 
age and older when they are stationed or performing duties OCONUS and 
eligible for treatment in the military healthcare system at military 
installations or facilities OCONUS. For further information see 
paragraph (c) of Appendix A to this part.
    (ii) U.S. citizen DoD contractor personnel when they are authorized 
to accompany the Armed Forces in a contingency operation OCONUS and 
their U.S. citizen employees (See 32 CFR part 158 and paragraph (c) of 
Appendix A to this part).
    (5) Service members who are on active duty but were victims of 
sexual assault prior to enlistment or commissioning. They are eligible 
to receive full SAPR services and either reporting option.
    (b) This part does not apply to victims of sexual assault 
perpetrated by a spouse or intimate partner, or military dependents 
under the age of 18 who are sexually assaulted. For further information 
see paragraph (e) of Appendix A to this part.
    (c) This part supersedes all policy and regulatory guidance within 
the DoD not expressly mandated by law that is inconsistent with its 
provisions, or that would preclude execution.



Sec.  103.3  Definitions.

    Unless otherwise noted, these terms and their definitions are for 
the purpose of this part.
    Accessions training. Training that a Service member receives upon 
initial entry into Military Service through basic military training.
    Case management group (CMG). A multi-disciplinary group that meets 
monthly to review individual cases of Unrestricted Reports of sexual 
assault. The group facilitates monthly victim updates and system 
coordination, program accountability, and victim access to quality 
services. At a minimum, each group shall consist of the following 
additional military or civilian professionals who are involved and 
working on a specific case: SARC, SAPR VA, military criminal 
investigator, DoD law enforcement, healthcare provider and mental health 
and counseling services, chaplain, command legal representative or SJA, 
and victim's commander.
    Certification. Refers to the process by which the Department 
credentials SARCs and SAPR VAs, assesses the effectiveness of sexual 
assault advocacy capabilities using a competencies framework, and 
evaluates and performs oversight over SARC and SAPR VA training. The 
certification criteria are established by the Department in consultation 
with subject-matter experts.
    Collateral misconduct. Victim misconduct that might be in time, 
place, or circumstance associated with the victim's sexual assault 
incident. Collateral misconduct by the victim of a sexual assault is one 
of the most significant barriers to reporting assault because of the 
victim's fear of punishment. Some reported sexual assaults involve 
circumstances where the victim may have engaged in some form of 
misconduct (e.g., underage drinking or other related alcohol offenses, 
adultery, fraternization, or other violations of certain regulations or 
orders).
    Confidential communication. Oral, written, or electronic 
communications of personally identifiable information (PII) concerning a 
sexual assault victim and the sexual assault incident provided by the 
victim to the SARC, SAPR VA, or healthcare personnel in a Restricted 
Report. This confidential

[[Page 436]]

communication includes the victim's SAFE Kit and its information. See 
https://www.archives.gov/cui.
    Consent. A freely given agreement to the conduct at issue by a 
competent person. An expression of lack of consent through words or 
conduct means there is no consent. Lack of verbal or physical resistance 
or submission resulting from the use of force, threat of force, or 
placing another person in fear does not constitute consent. A current or 
previous dating or social or sexual relationship by itself or the manner 
of dress of the person involved with the accused in the conduct at issue 
shall not constitute consent. A sleeping, unconscious, or incompetent 
person cannot consent.
    Credible information. Information that, considering the source and 
nature of the information and the totality of the circumstances, is 
sufficiently believable to presume that the fact or facts in question 
are true.
    Credible report. Either a written or verbal report made in support 
of an Expedited Transfer that is determined to have credible 
information.
    Crisis intervention. Emergency non-clinical care aimed at assisting 
victims in alleviating potential negative consequences by providing 
safety assessments and connecting victims to needed resources. Either 
the SARC or SAPR VA will intervene as quickly as possible to assess the 
victim's safety and determine the needs of victims and connect them to 
appropriate referrals, as needed.
    Culturally competent care. Care that provides culturally and 
linguistically appropriate services.
    Defense Sexual Assault Incident Database (DSAID). A DoD database 
that captures uniform data provided by the Military Services and 
maintains all sexual assault data collected by the Military Services. 
This database shall be a centralized, case-level database for the 
uniform collection of data regarding incidence of sexual assaults 
involving persons covered by this part. DSAID will include information 
when available, or when not limited by Restricted Reporting, or 
otherwise prohibited by law, about the nature of the assault, the 
victim, the offender, and the disposition of reports associated with the 
assault. DSAID shall be available to the SAPRO and the DoD to develop 
and implement congressional reporting requirements. Unless authorized by 
law, or needed for internal DoD review or analysis, disclosure of data 
stored in DSAID will only be granted when disclosure is ordered by a 
military, Federal, or State judge or other officials or entities as 
required by law or applicable U.S. international agreement.
    Designated activity. The agency that processes PCS or PCA for 
Expedited Transfers.
    (1) Air Force: Air Force Personnel Center.
    (2) Army: Human Resources Command for inter-installation transfers 
and the installation personnel center for intra-installation transfers.
    (3) Navy: Bureau of Naval Personnel.
    (4) U.S. Marine Corps: The order writing section of Headquarters 
Marine Corps.
    (5) Air and Army National Guard: The NGB or the Joint Forces 
Headquarters-State for the State involved.
    Emergency. A situation that requires immediate intervention to 
prevent the loss of life, limb, sight, or body tissue to prevent undue 
suffering. Regardless of appearance, a sexual assault victim needs 
immediate medical intervention to prevent loss of life or undue 
suffering resulting from internal or external physical injuries, 
sexually transmitted infections, pregnancy, or psychological distress. 
Sexual assault victims shall be given priority as emergency cases 
regardless of evidence of physical injury.
    Emergency care. Emergency medical care includes physical and 
emergency psychological medical services and a SAFE consistent with the 
most current version of U.S. Department of Justice, Office on Violence 
Against Women, ``A National Protocol for Sexual Assault Medical Forensic 
Examinations, Adults/Adolescents.''
    Executive agent. The Head of a DoD Component to whom the Secretary 
of Defense or the Deputy Secretary of Defense has assigned specific 
responsibilities, functions, and authorities to provide defined levels 
of support for operational missions, or administrative or

[[Page 437]]

other designated activities that involve two or more of the DoD 
Components.
    FAP. A DoD program designated to address child abuse and domestic 
abuse in military families in cooperation with civilian social service 
agencies and military and civilian law enforcement agencies. Prevention, 
advocacy, and intervention services are provided to individuals who are 
eligible for treatment in military medical treatment facilities.
    Final disposition. Actions taken to resolve the reported incident, 
document case outcome, and address the misconduct by the alleged 
perpetrator, as appropriate. It includes, but is not limited to, 
military justice proceedings, nonjudicial punishment, or administrative 
actions, including separation actions taken in response to the offense, 
whichever is the most serious action taken.
    Gender-responsive care. Care that acknowledges and is sensitive to 
gender differences and gender-specific issues.
    Healthcare. Medical (physical) and mental healthcare.
    Healthcare personnel. Persons assisting or otherwise supporting 
healthcare providers in providing healthcare services (e.g., 
administrative personnel assigned to a military MTF). Includes all 
healthcare providers.
    Healthcare provider. Those individuals who are employed or assigned 
as healthcare professionals or are credentialed to provide healthcare 
services at an MTF, or who provide such care at a deployed location or 
otherwise in an official capacity. This also includes military 
personnel, DoD civilian employees, and DoD contractors who provide 
healthcare at an occupational health clinic for DoD civilian employees 
or DoD contractor personnel. Healthcare providers may include, but are 
not limited to:
    (1) Licensed physicians practicing in the MHS with clinical 
privileges in obstetrics and gynecology, emergency medicine, family 
practice, internal medicine, pediatrics, urology, general medical 
officer, undersea medical officer, flight surgeon, psychiatrists, or 
those having clinical privileges to perform pelvic examinations or treat 
mental health conditions.
    (2) Licensed advanced practice registered nurses practicing in the 
MHS with clinical privileges in adult health, family health, midwifery, 
women's health, mental health, or those having clinical privileges to 
perform pelvic examinations.
    (3) Licensed physician assistants practicing in the MHS with 
clinical privileges in adult, family, women's health, or those having 
clinical privileges to perform pelvic examinations.
    (4) Licensed registered nurses practicing in the MHS who meet the 
requirements for performing a SAFE as determined by the local 
privileging authority. This additional capability shall be noted as a 
competency, not as a credential or privilege.
    (5) A psychologist, social worker, or psychotherapist licensed and 
privileged to provide mental health care or other counseling services in 
a DoD or DoD-sponsored facility.
    Hospital facilities (Level 3). Minimum operational functions 
required for a Level 3 hospital include: Command, control, and 
communications; patient administration; nutritional care; supply and 
services; triage; emergency medical treatment; preoperative care; 
orthopedics; general surgery; operating rooms and central materiel and 
supply services; anesthesia; nursing services (to include intensive and 
intermediate care wards); pharmacy; clinical laboratory and blood 
banking; radiology services; and hospital ministry team services.
    Installation. A base, camp, post, station, yard, center, homeport 
facility for any ship, or other activity under the jurisdiction of the 
Department of Defense, including any leased facility. It does not 
include any facility used primarily for civil works, rivers and harbors 
projects, flood control, or other projects not under the primary 
jurisdiction or control of the Department of Defense. For additional 
information see paragraph (ii) of Appendix A to this part.
    Installation commander. Commander of a base, camp, post, station, 
yard, center, homeport facility for any ship, or other activity under 
the jurisdiction of the Department of Defense, including any leased 
facility. It does not include any facility used primarily for

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civil works, rivers and harbors projects, flood control, or other 
projects not under the primary jurisdiction or control of the Department 
of Defense.
    Intimate partner. A person with whom the victim shares a child in 
common or with whom the victim shares or has shared a common domicile. 
For additional information see paragraph (e) of Appendix A to this part.
    Law enforcement. Includes all DoD law enforcement units, security 
forces, and MCIOs.
    MCIOs. The U.S. Army Criminal Investigation Command, Naval Criminal 
Investigative Service, and Air Force Office of Special Investigations.
    Medical care. Includes physical and psychological medical services.
    Military OneSource. A DoD-funded program providing comprehensive 
information on every aspect of military life at no cost to active duty, 
National Guard, and Reserve members, and their families. Military 
OneSource has a mandatory reporting requirement.
    Military Services. The term, as used in the SAPR Program, includes 
Army, Air Force, Navy, Marines, Reserve Components, and their respective 
Military Academies.
    Non-identifiable personal information. Non-identifiable personal 
information includes those facts and circumstances surrounding the 
sexual assault incident or that information about the individual that 
enables the identity of the individual to remain anonymous. In contrast, 
personal identifying information is information belonging to the victim 
and alleged assailant of a sexual assault that would disclose or have a 
tendency to disclose the person's identity.
    Non-participating victim. Victim choosing not to participate in the 
military justice system.
    Official investigative process. The formal process a law enforcement 
organization uses to gather evidence and examine the circumstances 
surrounding a report of sexual assault.
    Open with limited information. Entry in DSAID to be used in the 
following situations: Victim refused or declined services, victim opt-
out of participating in investigative process, third-party reports, 
local jurisdiction refused to provide victim information, or civilian 
victim with military subject.
    Personal Identifiable Information. Includes the person's name, other 
particularly identifying descriptions (e.g., physical characteristics or 
identity by position, rank, or organization), or other information about 
the person or the facts and circumstances involved that could reasonably 
be understood to identify the person (e.g., a female in a particular 
squadron or barracks when there is only one female assigned).
    Qualifying conviction. A State or Federal conviction, or a finding 
of guilty in a juvenile adjudication, for a felony crime of sexual 
assault and any general or special court-martial conviction for a UCMJ 
offense, which otherwise meets the elements of a crime of sexual 
assault, even though not classified as a felony or misdemeanor within 
the UCMJ. In addition, any offense that requires registration as a sex 
offender is a qualifying conviction.
    Re-victimization. A pattern wherein the victim of abuse or crime has 
a statistically higher tendency to be victimized again, either shortly 
thereafter or much later in adulthood in the case of abuse as a child. 
This latter pattern is particularly notable in cases of sexual abuse.
    Recovery-oriented care. Focus on the victim and on doing what is 
necessary and appropriate to support victim recovery, and also, if a 
Service member, to support that Service member to be fully mission 
capable and engaged.
    Respond, response, or response capability. All locations, including 
deployed areas, have a 24 hour, 7 days per week, sexual assault response 
capability. The SARC shall be notified, respond, or direct a SAPR VA to 
respond, assign a SAPR VA, and offer the victim healthcare treatment and 
a SAFE. In geographic locations where there is no SARC onsite, the on-
call SAPR VA shall respond, offer the victim healthcare treatment and a 
SAFE, and immediately notify the SARC of the sexual assault. The initial 
response is generally composed of personnel in the following disciplines 
or positions: SARCs, SAPR VAs, healthcare personnel, law enforcement, 
and MCIOs. Other responders are judge advocates,

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chaplains, and commanders. When victims geographically detached from a 
military installation, the SARC or SAPR VA will refer to local civilian 
providers or the DoD Safe Helpline for resources.
    Responders. Includes first responders, who are generally composed of 
personnel in the following disciplines or positions: SARCs, SAPR VAs, 
healthcare personnel, law enforcement, and MCIOs. Other responders are 
judge advocates, chaplains, and commanders, but they are usually not 
first responders.
    Restricted Reporting. Reporting option that allows sexual assault 
victims to confidentially disclose the assault to specified individuals 
(i.e., SARC, SAPR VA, or healthcare personnel), and receive medical 
treatment, including emergency care, counseling, and assignment of a 
SARC and SAPR VA, without triggering an investigation. The victim's 
report provided to healthcare personnel (including the information 
acquired from a SAFE Kit), SARCs, or SAPR VAs will NOT be reported to 
law enforcement or to the command to initiate the official investigative 
process unless the victim consents or an established exception applies. 
The Restricted Reporting Program applies to Service members and their 
military dependents 18 years of age and older. Additional persons who 
may be entitled to Restricted Reporting are NG and Reserve members. DoD 
civilians and contractors are only eligible to file an Unrestricted 
Report. Only a SARC, SAPR VA, or healthcare personnel may receive a 
Restricted Report, previously referred to as Confidential Reporting.
    Safe Helpline. A crisis support service for members of the DoD 
community affected by sexual assault. The DoD Safe Helpline is available 
24/7 worldwide with ``click, call, or text'' user options for anonymous 
and confidential support; can be accessed by logging on to 
www.safehelpline.org or by calling 1-877-995-5247, and through the Safe 
Helpline mobile application; is to be utilized as the sole DoD hotline. 
However, the local base and installation SARC or SAPR VA contact 
information is not replaced.
    SAFE Kit. The medical and forensic examination of a sexual assault 
victim under circumstances and controlled procedures to ensure the 
physical examination process and the collection, handling, analysis, 
testing, and safekeeping of any bodily specimens and evidence meet the 
requirements necessary for use as evidence in criminal proceedings. The 
victim's SAFE Kit is treated as a confidential communication when 
conducted as part of a Restricted Report.
    Safety assessment. A set of guidelines and considerations post-
sexual assault that the responsible personnel designated by the 
Installation Commander can follow to determine if a sexual assault 
survivor is likely to be in imminent danger of physical or psychological 
harm as a result of being victimized by or reporting sexual assault(s). 
The guidelines and considerations consist of a sequence of questions, 
decisions, referrals, and actions that responders can enact to 
contribute to the safety of survivors during the first 72 hours after a 
report, and during other events that can increase the lethality risk for 
survivors (e.g., arrests or command actions against the alleged 
perpetrators). Types of imminent danger may include non-lethal, lethal, 
or potentially lethal behaviors; the potential harm caused by the 
alleged perpetrator, family/friend(s)/acquaintance(s) of the alleged 
perpetrator, or the survivors themselves (e.g., harboring self-harm or 
suicidal thoughts). The safety assessment includes questions about 
multiple environments, to include home and the workplace. Survivors are 
assessed for their perception or experience of potential danger from 
their leadership or peers via reprisal or ostracism. The safety 
assessment contains a safety plan component that survivors can complete 
and take with them to help improve coping, social support, and resource 
access during their recovery period.
    SAPR Integrated Product Team (IPT). A team of individuals that 
advises the USD(P&R) and the Secretary of Defense on policies for sexual 
assault issues. The SAPR IPT serves as the implementation and oversight 
arm of the SAPR Program. It coordinates policy

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and reviews the DoD's SAPR policies and programs and monitors the 
progress of program elements. For additional information see paragraph 
(c) of Appendix A to this part.
    SAPR Program. A DoD program for the Military Departments and the DoD 
Components that establishes SAPR policies to be implemented worldwide. 
The program objective is an environment and military community 
intolerant of sexual assault.
    SAPR VA. A person who, as a victim advocate, shall provide non-
clinical crisis intervention, referral, and ongoing non-clinical support 
to adult sexual assault victims. Support will include providing 
information on available options and resources to victims. The SAPR VA, 
on behalf of the sexual assault victim, provides liaison assistance with 
other organizations and agencies on victim care matters and reports 
directly to the SARC when performing victim advocacy duties. Personnel 
who are interested in serving as a SAPR VA are encouraged to volunteer 
for this duty assignment.
    SAPRO. Serves as the DoD's single point of authority, 
accountability, and oversight for the SAPR program, except for legal 
processes and criminal investigative matters that are the responsibility 
of the Judge Advocates General of the Military Departments and the IG, 
respectively.
    SARC. The single point of contact at an installation or within a 
geographic area who oversees sexual assault awareness, prevention, and 
response training; coordinates medical treatment, including emergency 
care, for victims of sexual assault; and tracks the services provided to 
a victim of sexual assault from the initial report through final 
disposition and resolution.
    Secondary victimization. The re-traumatization of the sexual 
assault, abuse, or rape victim. It is an indirect result of assault that 
occurs through the responses of individuals and institutions to the 
victim. The types of secondary victimization include victim blaming, 
inappropriate behavior or language by medical personnel and by other 
organizations with access to the victim post assault.
    Senior commander. An officer, usually in the grade of O-6 or higher, 
who is the commander of a military installation or comparable unit and 
has been designated by the Military Service concerned to oversee the 
SAPR Program.
    Service member. An active duty member of a Military Service. In 
addition, National Guard and Reserve Component members who are sexually 
assaulted when performing active service, as defined in 10 U.S.C. 
101(d)(3), and inactive duty training.
    Sexual assault. Intentional sexual contact characterized by use of 
force, threats, intimidation, or abuse of authority or when the victim 
does not or cannot consent. The term includes a broad category of sexual 
offenses consisting of the following specific UCMJ offenses: Rape, 
sexual assault, aggravated sexual contact, abusive sexual contact, 
forcible sodomy (forced oral or anal sex), or attempts to commit these 
acts.
    SVC. Attorneys who are assigned to provide legal services in 
accordance with section 1716 of Public Law 113-66 and Service 
regulations. The Air Force, Army, National Guard, and Coast Guard refer 
to these attorneys as SVC. The Navy and Marine Corps refer to these 
attorneys as VLC.
    SVIP capability. A distinct, recognizable group of appropriately 
skilled professionals, including MCIO investigators, judge advocates, 
victim witness assistance personnel, and administrative paralegal 
support personnel, who work collaboratively to:
    (1) Investigate and prosecute allegations of child abuse (involving 
sexual assault or aggravated assault with grievous bodily harm), 
domestic violence (involving sexual assault or aggravated assault with 
grievous bodily harm), and adult sexual assault (not involving domestic 
offenses)
    (2) Provide support for the victims of such offenses. For additional 
information see paragraph (bb) of Appendix A to this part.
    Trauma informed care. An approach to engage people with histories of 
trauma that recognizes the presence of trauma symptoms and acknowledges 
the role that trauma has played in their lives. Trauma-informed services 
are based on an understanding of the vulnerabilities

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or triggers of trauma survivors that traditional service delivery 
approaches may exacerbate, so that these services and programs can be 
more supportive and avoid re-traumatization.
    Victim. A person who asserts direct physical, emotional, or 
pecuniary harm as a result of the commission of a sexual assault. The 
term encompasses all persons 18 and over eligible to receive treatment 
in military medical treatment facilities.
    VLC. Attorneys who are assigned to provide legal services in 
accordance with section 1716 of Public Law 113-66, ``The National 
Defense Authorization Act for Fiscal Year 2014,'' and Service 
regulations. The Air Force, Army, National Guard, and Coast Guard refer 
to these attorneys as SVC. The Navy and Marine Corps refer to these 
attorneys as VLC.
    VWAP. Provides guidance for assisting victims and witnesses of crime 
from initial contact through investigation, prosecution, and 
confinement. Particular attention is paid to victims of serious and 
violent crime, including child abuse, domestic violence, and sexual 
misconduct. For additional information see paragraph (aa) of Appendix A 
to this part.



Sec.  103.4  Policy.

    (a) This part implements the DoD SAPR policy and the DoD SAPR 
Program Unrestricted and Restricted Reporting options are available to 
Service members and their adult military dependents. For further 
information see paragraph (c) of Appendix A to this part.
    (b) The DoD SAPR Program focuses on prevention, education and 
training, response capability (defined in Sec.  103.3), victim support, 
reporting procedures, and appropriate accountability.
    (c) While a sexual assault victim may disclose information to 
whomever he or she chooses, an official report is made only when a DD 
Form 2910 is signed and filed with a SARC or SAPR VA, or when a Military 
Criminal Investigative Organization (MCIO) investigator initiates an 
investigation.
    (d) For Restricted and Unrestricted Reporting purposes, a report can 
be made to healthcare personnel, but healthcare personnel then 
immediately contact the SARC or SAPR VA to fill out the DD Form 2910.
    (e) State laws or regulations that require disclosure of PII of the 
adult sexual assault victim or alleged perpetrator to local or State law 
enforcement shall not apply, except when reporting is necessary to 
prevent or mitigate a serious and imminent threat to the health or 
safety of an individual.
    (f) Unless a DD Form 2910 is filed with a SARC, a report to a 
Chaplain or military attorney may not result in the rendering of SAPR 
services or investigative action because of the privileges associated 
with speaking to these individuals. A Chaplain or military attorney 
should advise the victim to consult with a SARC to understand the full 
scope of services available or facilitate, with the victim's consent, 
contact with a SARC.
    (g) The SAPR Program shall:
    (1) Focus on the victim and on doing what is necessary and 
appropriate to support victim recovery, and also, if a Service member, 
to support that Service member to be fully mission capable and engaged. 
The SAPR Program shall provide care that is gender-responsive, 
culturally competent, and recovery-oriented. For further information see 
paragraph (c) of Appendix A to this part.
    (2) Not provide policy for legal processes within the responsibility 
of the Judge Advocates General of the Military Departments provided in 
10 U.S.C. chapter 47 and the Manual for Courts-Martial or for criminal 
investigative matters assigned to the IG DoD.
    (h) Standardized SAPR requirements, terminology, guidelines, 
protocols, and guidelines for instructional materials shall focus on 
awareness, prevention, and response at all levels as appropriate.
    (i) The terms ``Sexual Assault Response Coordinator (SARC)'' and 
``SAPR Victim Advocate (VA),'' as defined in Sec.  103.3, shall be used 
as standard terms throughout the DoD to facilitate communications and 
transparency regarding SAPR capacity. For further information regarding 
SARC and SAPR VA roles and responsibilities, see paragraph (c) of 
Appendix A to this part.

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    (1) SARC. The SARC shall serve as the single point of contact for 
coordinating appropriate and responsive care for sexual assault victims. 
SARCs shall coordinate sexual assault victim care and sexual assault 
response when a sexual assault is reported. The SARC shall supervise 
SAPR VAs but may be called on to perform victim advocacy duties.
    (2) SAPR VA. The SAPR VA shall provide non-clinical crisis 
intervention and on-going support, in addition to referrals for adult 
sexual assault victims. Support will include providing information on 
available options and resources to victims.
    (j) An immediate, trained sexual assault response capability shall 
be available for each report of sexual assault in all locations, 
including in deployed locations. The response time may be affected by 
operational necessities but will reflect that sexual assault victims 
shall be treated as emergency cases. For further information see 
paragraph (c) of Appendix A to this part.
    (k) Victims of sexual assault shall be protected from coercion, 
retaliation, and reprisal. For additional information see paragraph (g) 
of Appendix A to this part.
    (l) Victims of sexual assault shall be protected, treated with 
dignity and respect, and shall receive timely access to comprehensive 
healthcare (medical and mental health) treatment, including emergency 
care treatment and services. For additional information see paragraph 
(c) of Appendix A to this part.
    (m) Emergency care for victims of sexual assault shall consist of 
emergency healthcare and the offer of a sexual assault forensic 
examination (SAFE). For additional information see paragraph (h) of 
Appendix A to this part.
    (1) Sexual assault patients shall be given priority and shall be 
treated as emergency cases. A sexual assault victim needs immediate 
medical intervention to prevent loss of life or suffering resulting from 
physical injuries (internal or external), sexually transmitted 
infections, pregnancy, and psychological distress. Individuals 
disclosing a recent sexual assault shall, with their consent, be quickly 
transported to the exam site, promptly evaluated, treated for serious 
injuries, and then, with the patient's consent, undergo a SAFE. For 
additional information see paragraph (ff) of Appendix A to this part.
    (2) Sexual assault patients shall be treated as emergency cases, 
regardless of whether physical injuries are evident. Patients' needs 
shall be assessed for immediate medical or mental health intervention. 
Sexual assault victims shall be treated uniformly regardless of their 
behavior because when severely traumatized, sexual assault patients may 
appear to be calm, indifferent, submissive, jocular, angry, emotionally 
distraught, or even uncooperative or hostile towards those who are 
trying to help. For additional information see paragraph (h) of Appendix 
A to this part.
    (n) There will be a safety assessment capability for the purposes of 
ensuring the victim, and possibly other persons, are not in physical 
jeopardy. A safety assessment will be available to all Service members, 
adult military dependents, and civilians who are eligible for SAPR 
services, even if the victim is not physically located on the 
installation. The installation commander or the deputy installation 
commander will identify installation personnel who have been trained and 
are able to perform a safety assessment of each sexual assault victim, 
regardless of whether he or she filed a Restricted or Unrestricted 
Report. Individuals tasked to conduct safety assessments must occupy 
positions that do not compromise the victim's reporting options. The 
safety assessment will be conducted as soon as possible, understanding 
that any delay may impact the safety of the victim.
    (o) Service members and their dependents who are 18 years of age or 
older covered by this part who are sexually assaulted have two reporting 
options: Unrestricted or Restricted Reporting. Unrestricted Reporting of 
sexual assault is favored by the DoD. For additional information see 
paragraph

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(c) of Appendix A to this part. Protections are taken with PII 
solicited, collected, maintained, accessed, used, disclosed, and 
disposed during the treatment and reporting processes. For additional 
information see paragraph (j) of Appendix A to this part. The two 
reporting options are as follows:
    (1) Unrestricted Reporting allows an eligible person who is sexually 
assaulted to access healthcare and counseling and request an official 
investigation of the allegation using existing reporting channels (e.g., 
chain of command, law enforcement, healthcare personnel, the SARC). When 
a sexual assault is reported through Unrestricted Reporting, a SARC 
shall be notified as soon as possible, respond, assign a SAPR VA, and 
offer the victim healthcare and a SAFE.
    (2) Restricted Reporting allows sexual assault victims to 
confidentially disclose the assault to specified individuals (i.e., 
SARC, SAPR VA, or healthcare personnel), in accordance with this part, 
and receive healthcare treatment, including emergency care, counseling, 
and assignment of a SARC and SAPR VA, without triggering an official 
investigation. The victim's report to healthcare personnel (including 
the information acquired from a SAFE Kit), SARCs, or SAPR VAs will not 
be reported to law enforcement or to the victim's command, to initiate 
the official investigative process, unless the victim consents or an 
established exception exists in State laws or federal regulations. When 
a sexual assault is reported through Restricted Reporting, a SARC shall 
be notified as soon as possible, respond, assign a SAPR VA, and offer 
the victim healthcare and a SAFE. For additional information see 
paragraph (c) of Appendix A to this part).
    (i) Eligibility for Restricted Reporting. The Restricted Reporting 
option applies to Service members and their military dependents 18 years 
of age and older. For additional information, see paragraph (c) of 
Appendix A to this part.
    (ii) DoD dual objectives. The DoD is committed to ensuring victims 
of sexual assault are protected; treated with dignity and respect; and 
provided support, advocacy, and care. The DoD also strongly supports 
applicable law enforcement and criminal justice procedures that enable 
persons to be held accountable for sexual assault offenses and criminal 
dispositions, as appropriate. To achieve these dual objectives, DoD 
preference is for Unrestricted Reporting of sexual assaults to allow for 
the provision of victims' services and to pursue accountability. 
However, Unrestricted Reporting may represent a barrier for victims to 
access services, when the victim desires no command or law enforcement 
involvement. Consequently, the DoD recognizes a fundamental need to 
provide a confidential disclosure vehicle via the Restricted Reporting 
option.
    (iii) Designated personnel authorized to accept a Restricted Report. 
Only the SARC, SAPR VA, or healthcare personnel are designated as 
authorized to accept a Restricted Report.
    (iv) SAFE confidentiality under Restricted Reporting. A SAFE and its 
information shall be afforded the same confidentiality as is afforded 
victim statements under the Restricted Reporting option. See paragraph 
(c) of Appendix A to this part for additional information.
    (v) Disclosure of confidential communications. In cases where a 
victim elects Restricted Reporting, the SARC, assigned SAPR VA, and 
healthcare personnel may not disclose confidential communications or 
SAFE Kit information to law enforcement or command authorities, either 
within or outside the DoD. In certain situations when information about 
a sexual assault comes to the commander's or law enforcement official's 
attention from a source independent of the Restricted Reporting avenues 
and an independent investigation is initiated, a SARC, SAPR VA, or 
healthcare personnel may not disclose confidential communications if 
obtained under Restricted Reporting. Improper disclosure of confidential 
communications protected under Restricted Reporting, improper release of 
healthcare information, and other violations of this policy or other 
laws and regulations are prohibited and may result in discipline 
pursuant to the UCMJ, or other adverse personnel or administrative 
actions. See paragraph

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(c) of Appendix A to this part for additional information.
    (p) Eligible victims must be informed of the availability of legal 
assistance and the right to consult with an SVC/VLC in accordance with 
section 1716 of the NDAA for Fiscal Year (FY) 2014 (Pub. L. 113-66).
    (q) Enlistment or commissioning of personnel in the Military 
Services shall be prohibited and no waivers are allowed when the person 
has a qualifying conviction (see Sec.  103.3) for a crime of sexual 
assault.
    (r) The DoD shall provide support to an active duty Service member 
regardless of when or where the sexual assault took place.
    (s) Information regarding Unrestricted Reports should only be 
released to personnel with an official need to know or as authorized by 
law. Improper disclosure of confidential communications under 
Unrestricted Reporting or improper release of medical information are 
prohibited and may result in disciplinary action pursuant to the UCMJ or 
other adverse personnel or administrative actions.
    (t) The DoD will retain the DD Forms 2910, ``Victim Reporting 
Preference Statement,'' and 2911, ``DoD Sexual Assault Forensic 
Examination (SAFE) Report,'' for 50 years, regardless of whether the 
Service member filed a Restricted or Unrestricted Report as defined in 
this part. PII will be protected in accordance with 5 U.S.C. 552a, also 
known as the Privacy Act of 1974 (5 U.S.C. 552a) and 32 CFR part 310 and 
Public Law 104-191.
    (u) For document retention and SAFE Kit retention for Unrestricted 
Reports:
    (1) The SARC will enter the Unrestricted Report DD Form 2910 in the 
DSAID (see Sec.  103.3) as an electronic record within 48 hours of the 
report, where it will be retained for 50 years from the date the victim 
signed the DD Form 2910. The DD Form 2910 is located at the DoD Forms 
Management Program website at https://www.esd.whs.mil/Directives/forms/.
    (2) The DD Form 2911 shall be retained in accordance with the 
Department's internal policies. For further information, see paragraph 
(n) of Appendix A to this part. The DD Form 2911 is located at the DoD 
Forms Management Program website at https://www.esd.whs.mil/Directives/
forms/.
    (3) If the victim had a SAFE, the SAFE Kit will be retained for 5 
years in accordance with section 586 of Public Law 112-81, as amended by 
section 538 of Public Law 113-291. For further information see paragraph 
(n) of Appendix A to this part. When the forensic examination is 
conducted at a civilian facility through a memorandum of understanding 
(MOU) or a memorandum of agreement (MOA) with the DoD, the requirement 
for the handling of the forensic kit will be explicitly addressed in the 
MOU or MOA. The MOU or MOA with the civilian facility will address the 
processes for contacting the SARC and for contacting the appropriate DoD 
agency responsible for accepting custody of the SAFE.
    (4) Personal property retained as evidence collected in association 
with a sexual assault investigation will be retained for a period of 5 
years. Personal property may be returned to the rightful owner of such 
property after the conclusion of all legal, adverse action and 
administrative proceedings related to such incidents in accordance with 
section 586 of the NDAA for FY 2012, as amended by section 538 of Public 
Law 113-291 and DoD regulations.
    (v) For document retention and SAFE Kit retention for Restricted 
Reports:
    (1) The SARC will retain a copy of the Restricted Report DD Form 
2910 for 50 years, consistent with DoD guidance for the storage of PII. 
The 50-year time frame for the DD Form 2910 will start from the date the 
victim signs the DD Form 2910. For Restricted Reports, forms will be 
retained in a manner that protects confidentiality.
    (2) If the victim had a SAFE, the Restricted Report DD Form 2911 
will be retained for 50 years, consistent with DoD guidance for the 
storage of PII. The 50-year time frame for the DD Form 2911 will start 
from the date the victim signs the DD Form 2910, but if there is no DD 
Form 2910, the timeframe will start from the date the SAFE Kit is 
completed. Restricted Report forms will be retained in a manner that 
protects confidentiality.

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    (3) If the victim had a SAFE, the SAFE Kit will be retained for 5 
years in a location designated by the Military Service concerned. When 
the forensic examination is conducted at a civilian facility through an 
MOU or a MOA with the DoD, the requirement for the handling of the 
forensic kit will be explicitly addressed in the MOU or MOA. The MOU or 
MOA with the civilian facility will address the processes for contacting 
the SARC and for contacting the appropriate DoD agency responsible for 
accepting custody of the forensic kit. The 5-year time frame will start 
from the date the victim signs the DD Form 2910, but if there is no DD 
Form 2910, the timeframe will start from the date the SAFE Kit is 
completed.
    (4) Personal property retained as evidence collected in association 
with a sexual assault investigation will be retained for a period of 5 
years. In the event the report is converted to Unrestricted or an 
independent investigation is conducted, personal property may be 
returned to the rightful owner of such property after the conclusion of 
all legal, adverse action and administrative proceedings related to such 
incidents in accordance with section 586 of Public Law 112-81, as 
amended by section 538 of Public Law 113-291, and DoD regulations. 
However, victims who filed a Restricted Report may request the return of 
personal property obtained as part of the sexual assault forensic 
examination at any time in accordance with section 536 of Public Law 
116-92, and DoD regulations.



Sec.  103.5  Responsibilities.

    (a) In accordance with the authority in DoD policy (see paragraph 
(t) of Appendix A to this part), the Under Secretary of Defense for 
Personnel and Readiness (USD(P&R)) shall:
    (1) Develop overall policy and provide oversight for the DoD SAPR 
Program, except legal processes in the UCMJ and criminal investigative 
matters assigned to the Judge Advocates General of the Military 
Departments, the Staff Judge Advocate to the Commandant of the Marine 
Corps, and IG DoD, respectively.
    (2) Develop strategic program guidance, joint planning objectives, 
standard terminology, and identify legislative changes needed to ensure 
the future availability of resources in support of DoD SAPR policies.
    (3) Develop metrics to measure compliance and effectiveness of SAPR 
training, awareness, prevention, and response policies and programs. 
Analyze data and make recommendations regarding the SAPR policies and 
programs to the Secretaries of the Military Departments.
    (4) Monitor compliance with this part and internal policy (see 
paragraph (c) of Appendix A to this part), and coordinate with the 
Secretaries of the Military Departments regarding Service SAPR policies.
    (5) Collaborate with Federal and State agencies that address SAPR 
issues and serve as liaison to them as appropriate. Strengthen 
collaboration on sexual assault policy matters with U.S. Department of 
Veterans Affairs on the issues of providing high quality and accessible 
health care and benefits to victims of sexual assault.
    (6) Oversee the DoD Sexual Assault Prevention and Response Office 
(SAPRO). Serving as the DoD single point of authority, accountability, 
and oversight for the SAPR program, SAPRO provides recommendations to 
the USD(P&R) on the issue of DoD sexual assault policy matters on 
prevention, response, and oversight. The SAPRO Director will be 
appointed from among general or flag officers of the Military Services 
or DoD employees in a comparable Senior Executive Service position in 
accordance with Public Law 112-81, ``National Defense Authorization Act 
for Fiscal Year 2012.'' The SAPRO Director is responsible for:
    (i) Implementing and monitoring compliance with DoD sexual assault 
policy on prevention and response, except for legal processes in 
accordance with paragraph (kk) of Appendix A to this part and Public Law 
114-92, ``National Defense Authorization Act for Fiscal Year 2016,'' and 
criminal investigative matters assigned to the Judge Advocates General 
of the Military Departments, the Staff Judge Advocate to the Commandant 
of the Marine Corps, and IG DoD, respectively.

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    (ii) Providing technical assistance to the Heads of the DoD 
Components in addressing matters concerning SAPR.
    (iii) Acquiring quarterly and annual SAPR data from the Military 
Services, assembling annual congressional reports involving persons 
covered by this part and DoD Instruction 6495.02, and consulting with 
and relying on the Judge Advocates General of the Military Departments 
and the Staff Judge Advocate to the Commandant of the Marine Corps in 
questions concerning disposition results of sexual assault cases in 
their respective Departments.
    (iv) Establishing reporting categories and monitoring specific goals 
included in the annual SAPR assessments of each Military Service, in 
their respective Departments.
    (v) Overseeing the creation, implementation, maintenance, and 
function of the DSAID, an integrated database that will meet 
congressional reporting requirements, support Service SAPR Program 
management, and inform DoD SAPRO oversight activities.
    (vi) Overseeing development of strategic program guidance and joint 
planning objectives for resources in support of the SAPR Program, and 
making recommendations on modifications to policy, law, and regulations 
needed to ensure the continuing availability of such resources (Pub. L. 
113-66).
    (b) The Assistant Secretary of Defense for Health Affairs (ASD(HA)), 
under the authority, direction, and control of the USD(P&R), shall 
advise the USD(P&R) on DoD sexual assault healthcare policies, clinical 
practice guidelines, related procedures, and standards governing DoD 
healthcare programs for victims of sexual assault. The ASD(HA) shall:
    (1) Direct that all sexual assault patients be given priority, so 
that they shall be treated as emergency cases.
    (2) Require standardized, timely, accessible, and comprehensive 
medical care at MTFs for eligible persons who are sexually assaulted.
    (3) Require that medical care be consistent with established 
community standards for the healthcare of sexual assault victims and the 
collection of forensic evidence from victims. For further information 
see paragraphs (h) and (ff) of Appendix A to this part.
    (4) Establish guidance for medical personnel that requires a SARC or 
SAPR VA to be called in for every incident of sexual assault for which 
treatment is sought at the MTFs, regardless of the reporting option.
    (c) The Director of Department of Defense Human Resources Activity 
(DoDHRA), under the authority, direction, and control of USD(P&R), shall 
provide operational support to the USD(P&R) as outlined in paragraph 
(a)(6) of this section.
    (d) The General Counsel of the DoD (GC DoD) shall provide legal 
advice and assistance on all legal matters, including the review and 
coordination of all proposed issuances and exceptions to policy and the 
review of all legislative proposals, affecting mission and 
responsibilities of the DoD SAPRO.
    (e) The Inspector General of the Department of Defense (IG DoD) 
shall:
    (1) Develop and oversee the promulgation of criminal investigative 
and law enforcement policy regarding sexual assault and establish 
guidelines for the collection and preservation of evidence with non-
identifiable personal information on the victim, for the Restricted 
Reporting process, in coordination with the ASD(HA).
    (2) Oversee criminal investigations of sexual assault conducted by 
the DoD Components.
    (3) Collaborate with the DoD SAPRO in the development of 
investigative policy in support of sexual assault prevention and 
response.
    (f) The Secretaries of the Military Departments shall:
    (1) Establish departmental policies and procedures to implement the 
SAPR Program consistent with the provisions of this part to include the 
military academies within their cognizance; monitor departmental 
compliance with this part and DoD internal policy. For further 
information see paragraph (c) of Appendix A to this part.
    (2) Coordinate all Military Service SAPR policy changes with the 
USD(P&R).
    (3) In coordination with the USD(P&R), implement recommendations 
regarding Military Service compliance and effectiveness of SAPR 
training, awareness, prevention, and response policies and programs.

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    (4) Align Service SAPR strategic plans with the DoD SAPR Strategic 
Plan.
    (5) Align Service prevention strategies with the DoD Sexual Assault 
Prevention Strategy.
    (6) Utilize the terms ``Sexual Assault Response Coordinator (SARC)'' 
and ``SAPR Victim Advocate (VA),'' as defined in this part as standard 
terms to facilitate communications and transparency regarding sexual 
assault response capacity.
    (7) Establish the position of the SARC to serve as the SINGLE POINT 
OF CONTACT for ensuring that sexual assault victims receive appropriate 
and responsive care. The SARC should be a Service member, DoD civilian 
employee, or National Guard technician.
    (8) Direct that the SARC or a SAPR VA be immediately called in every 
incident of sexual assault on a military installation. There will be 
situations where a sexual assault victim receives medical care and a 
SAFE outside of a military installation through an MOU or MOA with a 
local private or public sector entity. In these cases, the MOU or MOA 
will require that a SARC be notified as part of the MOU or MOA.
    (9) Sexual assault victims shall be offered the assistance of a SARC 
and/or SAPR VA who has been credentialed by the D-SAACP. For further 
information see paragraph (w) of Appendix A to this part.
    (10) Establish and codify Service SAPR Program support to Combatant 
Commands and Defense Agencies, either as a host activity or in a 
deployed environment.
    (11) Provide SAPR Program and obligation data to the USD(P&R), as 
required.
    (12) Submit required data to DSAID. Require confirmation that a 
multi-disciplinary CMG tracks each open Unrestricted Report, is chaired 
by the installation commander (or the deputy installation commander), 
and that CMG meetings are held monthly for reviewing all Unrestricted 
Reports of sexual assaults. For further information see paragraph (c) of 
Appendix A to this part.
    (13) Provide annual reports of sexual assaults involving persons 
covered by this part and DoD Instruction 6495.02 to the DoD SAPRO for 
consolidation into the annual report to Congress in accordance with 
section 577 of Public Law 108-375.
    (14) Provide data connectivity, or other means, to authorized users 
to ensure all sexual assaults reported in theater and other joint 
environments are incorporated into the DSAID, or authorized interfacing 
systems for the documentation of reports of sexual assault, as required 
by section 563 of Public Law 110-417.
    (15) Ensure that Service data systems used to report case-level 
sexual assault information into the DSAID are compliant with DoD data 
reporting requirements, pursuant to section 563 of Public Law 110-417.
    (16) Require extensive, continuing in-depth SAPR training for DoD 
personnel and specialized SAPR training for commanders, senior enlisted 
leaders, SARCs, SAPR VAs, investigators, law enforcement officials, 
chaplains, healthcare personnel, and legal personnel. For further 
information see paragraph (c) of Appendix A to this part.
    (17) Require the installation SARC and the installation FAP staff to 
coordinate together when a sexual assault occurs as a result of domestic 
abuse or domestic violence or involves child abuse to ensure the victim 
is directed to FAP.
    (18) Oversee sexual assault training within the DoD law enforcement 
community.
    (19) Direct that Service military criminal investigative 
organizations require their investigative units to communicate with 
their servicing SARC and participate with the multi-disciplinary CMG. 
For further information see paragraph (c) of Appendix A to this part.
    (20) Establish procedures to ensure that, in the case of a general 
or special court-martial the trial counsel causes each qualifying victim 
to be notified of the opportunity to receive a copy of the record of 
trial (not to include sealed materials, unless approved by the presiding 
military judge or appellate court, classified information, or other 
portions of the record the release of which would unlawfully violate the 
privacy interests of any party, and

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without a requirement to include matters attached to the record under 
Rule for Courts-Martial (R.C.M.) 1103(b)(3) in U.S. Department of 
Defense, ``Manual for Courts-Martial, United States''). A qualifying 
alleged victim is an individual named in a specification alleging an 
offense under Articles 120, 120b, 120c, or 125 of the UCMJ (10 U.S.C. 
920, 920b, 920c, or 925), or any attempt to commit such offense in 
violation of Article 80 of the UCMJ (10 U.S.C. 880), if the court-
martial resulted in any finding to that specification. If the alleged 
victim elects to receive a copy of the record of proceedings, it shall 
be provided without charge and within a timeframe designated by 
regulations of the Military Department concerned. The victim shall be 
notified of the opportunity to receive the record of the proceedings in 
accordance with R.C.M. 1103(g)(3)(C) in U.S. Department of Defense, 
``Manual for Courts-Martial, United States''.
    (21) Require that a completed DD Form 2701, ``Initial Information 
for Victims and Witnesses of Crime,'' be distributed to the victim. (DD 
Form 2701 is located at the DoD Forms Management Program website at 
https://www.esd.whs.mil/Directives/forms/ and in DoD Instruction 
1030.2). For further information see paragraph (n) of Appendix A to this 
part.
    (22) When drafting MOUs or MOAs with local civilian medical 
facilities to provide DoD-reimbursable healthcare (to include 
psychological care) and forensic examinations for Service members and 
TRICARE eligible sexual assault victims, require commanders to include 
the following provisions:
    (i) Local private or public sector providers notify the SARC or SAPR 
VA.
    (ii) Local private or public sector providers shall have processes 
and procedures in place to assess that local community standards meet or 
exceed those set forth in U.S. Department of Justice, Office on Violence 
Against Women, ``A National Protocol for Sexual Assault Medical Forensic 
Examinations, Adults/Adolescents,'' current version as a condition of 
the MOUs or MOAs.
    (23) Comply with collective bargaining obligations, if applicable.
    (24) Provide SAPR training and education for civilian employees of 
the military departments in accordance with section 585 of Public Law 
112-81.
    (25) Require the SARCs and SAPR VAs to collaborate with designated 
Special Victim Investigation and Prosecution (SVIP) Capability personnel 
during all stages of the investigative and military justice process to 
ensure an integrated capability to the greatest extent possible. For 
further information see paragraphs (bb) and (cc) of Appendix A to this 
part.



Sec.  103.6  Reporting options and sexual assault reporting procedures.

    (a) Reporting options. Service members and military dependents 18 
years and older who have been sexually assaulted have two reporting 
options: Unrestricted or Restricted Reporting. Unrestricted Reporting of 
sexual assault is favored by the DoD. However, Unrestricted Reporting 
may represent a barrier for victims to access services, when the victim 
desires no command or DoD law enforcement involvement. Consequently, the 
DoD recognizes a fundamental need to provide a confidential disclosure 
vehicle via the Restricted Reporting option. Regardless of whether the 
victim elects Restricted or Unrestricted Reporting, DoD shall maintain 
confidentiality of medical information. For further information see 
paragraph (j) of Appendix A to this part. DoD civilian employees and 
their family dependents and DoD contractors are only eligible for 
Unrestricted Reporting and for limited emergency care medical services 
at an MTF, unless that individual is otherwise eligible as a Service 
member or TRICARE beneficiary of the military health system to receive 
treatment in an MTF at no cost to them in accordance with this part.
    (1) Unrestricted reporting. This reporting option triggers an 
investigation, command notification, and allows a person who has been 
sexually assaulted to access healthcare treatment and the assignment of 
a SARC and a SAPR VA. When a sexual assault is reported through 
Unrestricted Reporting, a SARC shall be notified, respond or direct a 
SAPR VA to respond, offer the victim healthcare treatment and a

[[Page 449]]

SAFE, and inform the victim of available resources. The SARC or SAPR VA 
will explain the contents of the DD Form 2910 and request that the 
victim elect a reporting option on the form. If the victim elects the 
Unrestricted Reporting option, a victim may not change from an 
Unrestricted to a Restricted Report. If the Unrestricted option is 
elected, the completed DD Form 2701, which sets out victims' rights and 
points of contact, shall be distributed to the victim in Unrestricted 
Reporting cases by DoD law enforcement agents. If a victim elects this 
reporting option, a victim may not change from an Unrestricted to a 
Restricted Report.
    (2) Restricted Reporting. This reporting option does not trigger an 
investigation. The command is notified that ``an alleged sexual 
assault'' occurred but is not given the victim's name or other 
personally identifying information. Restricted Reporting allows Service 
members and military dependents who are adult sexual assault victims to 
confidentially disclose the assault to specified individuals (SARC, SAPR 
VA, or healthcare personnel) and receive healthcare treatment and the 
assignment of a SARC and SAPR VA. A sexual assault victim can report 
directly to a SARC, who will respond or direct a SAPR VA to respond, 
offer the victim healthcare treatment and a SAFE, and explain to the 
victim the resources available through the DD Form 2910, where the 
reporting option is elected. The Restricted Reporting option is only 
available to Service members and adult military dependents. Restricted 
Reporting may not be available in a jurisdiction that requires mandatory 
reporting if a victim first reports to a civilian facility or civilian 
authority, which will vary by state, territory, and overseas agreements. 
See paragraph (c) of Appendix A to this part for additional information. 
However, section 536 of the NDAA for FY 2016 preempts mandatory 
reporting laws, provided the victim first reports to an MTF, except when 
reporting is necessary to prevent or mitigate a serious and imminent 
threat to the health or safety of an individual, thereby preserving the 
Restricted Reporting option. If a victim elects this reporting option, a 
victim may convert a Restricted Report to an Unrestricted Report at any 
time. The conversion to an Unrestricted Report will be documented with a 
signature by the victim and the signature of the SARC or SAPR VA in the 
appropriate block on the DD Form 2910.
    (i) Only the SARC, SAPR VA, and healthcare personnel are designated 
as authorized to accept a Restricted Report. Healthcare personnel, to 
include psychotherapists and other personnel listed in Military Rule of 
Evidence (MRE) 513 of Office of the Chairman of the Joint Chiefs of 
Staff, ``DoD Dictionary of Military and Associated Terms,'' who received 
a Restricted Report (meaning that a victim wishes to file a DD Form 2910 
or have a SAFE) shall contact a SARC or SAPR VA. For further information 
see paragraph (c) of Appendix A to this part.
    (ii) A SAFE and the information contained in its accompanying Kit 
are provided the same confidentiality as is afforded victim statements 
under the Restricted Reporting option. For further information see 
paragraph (c) of Appendix A to this part.
    (iii) The victim's decision not to participate in an investigation 
or prosecution will not affect access to SARC and SAPR VA services, 
medical and psychological care, or services from an SVC or VLC. These 
services shall be made available to all eligible sexual assault victims.
    (iv) If a victim approaches a SARC, SAPR VA, or healthcare provider 
and begins to make a report, but then changes his or her mind and leaves 
without signing the DD Form 2910 (the form where the reporting option is 
selected), the SARC, SAPR VA, or healthcare provider is not under any 
obligation or duty to inform investigators or commanders about this 
report and will not produce the report or disclose the communications 
surrounding the report.
    (b) Disclosure of confidential communications. In cases where a 
victim elects Restricted Reporting, the SARC, SAPR VA, and healthcare 
personnel may not disclose confidential communications or the SAFE and 
the accompanying Kit to DoD law enforcement or command authorities, 
either within or outside the DoD. In certain situations, information 
about a sexual assault may

[[Page 450]]

come to the commander's or DoD law enforcement official's (to include 
MCIO's) attention from a source independent of the Restricted Reporting 
avenues and an independent investigation is initiated. In these cases, 
SARCs, SAPR VAs, and healthcare personnel are prevented from disclosing 
confidential communications under Restricted Reporting, unless an 
exception applies. An independent investigation does not, in itself, 
convert the Restricted Report to an Unrestricted Report. For further 
information see paragraph (c) of Appendix A to this part.
    (c) Independent investigations. Independent investigations are not 
initiated by the victim. If information about a sexual assault comes to 
a commander's attention from a source other than a victim (victim may 
have elected Restricted Reporting or where no report has been made by 
the victim), that commander shall immediately report the matter to an 
MCIO and an official (independent) investigation may be initiated based 
on that independently acquired information.
    (1) If there is an ongoing independent investigation, the sexual 
assault victim will no longer have the option of Restricted Reporting 
when:
    (i) DoD law enforcement informs the SARC of the investigation, and
    (ii) The victim has not already elected Restricted Reporting.
    (2) The timing of filing a Restricted Report is crucial. In order to 
take advantage of the Restricted Reporting option, the victim must file 
a Restricted Report by signing a DD Form 2910 before the SARC is 
informed of an ongoing independent investigation of the sexual assault.
    (i) If a SARC is notified of an ongoing independent investigation 
and the victim has not signed a DD Form 2910 electing Restricted Report, 
the SARC must inform the victim that the option to file a Restricted 
Report is no longer available. However, all communications between the 
victim and the victim advocate will remain privileged, subject to 
regulatory exceptions, except for the minimum necessary to make the 
Unrestricted Report.
    (ii) If an independent investigation begins after the victim has 
formally elected Restricted Reporting (by signing the DD Form 2910), the 
independent investigation has no impact on the victim's Restricted 
Report, and the victim's communications and SAFE Kit remain 
confidential, to the extent authorized by law and DoD regulations.
    (d) Mandatory reporting laws and cases investigated by civilian law 
enforcement. Health care may be provided, and SAFE Kits may be performed 
in a civilian healthcare facility in civilian jurisdictions which may 
require certain personnel (usually health care personnel) to report the 
sexual assault to civilian agencies or law enforcement. In some cases, 
civilian law enforcement may take investigative responsibility for the 
sexual assault case, or the civilian jurisdiction may inform the 
military law enforcement or investigative community of a sexual assault 
that was reported to it. In such instances, it may not be possible for a 
victim to make a Restricted Report or it may not be possible to maintain 
the report as a Restricted Report. Consistent with the NDAA for FY 2016, 
to the extent possible, DoD will honor the Restricted Report; however, 
sexual assault victims need to be aware that the confidentiality 
afforded their Restricted Report is not guaranteed due to circumstances 
surrounding the independent investigation and requirements of individual 
State laws for civilian healthcare facilities.
    (e) Initiating medical care and treatment upon receipt of report. 
Healthcare personnel will initiate the emergency care and treatment of 
sexual assault victims, notify the SARC or the SAPR VA and make 
appropriate medical referrals for specialty care, if indicated. Upon 
receipt of a Restricted Report, only the SARC or the SAPR VA will be 
notified. There will be NO report to DoD law enforcement, a supervisory 
official, or the victim's chain of command by the healthcare personnel, 
unless an exception to Restricted Reporting applies or applicable law 
requires other officials to be notified. For further information see 
paragraph (c) of Appendix A to this part.
    (f) Victim's perception of the military justice system. The DoD 
seeks increased reporting by victims of sexual assault. The Restricted 
Reporting option is intended to give victims additional time

[[Page 451]]

and increased control over the release and management of their personal 
information and empowers them to seek relevant information and support 
to make more informed decisions about participating in the criminal 
investigation. A victim who receives support, appropriate care and 
treatment, and is provided an opportunity to make an informed decision 
about a criminal investigation is more likely to develop increased trust 
of the system which may increase a victim's desire to cooperate with an 
investigation and convert the Restricted Report to an Unrestricted 
Report.
    (g) Resources for victims to report retaliation, reprisal, 
ostracism, maltreatment, sexual harassment, or to request an expedited/
safety transfer or Military Protective Order (MPO)/Civilian Protective 
Order (CPO). SARCs and SAPR VAs must inform victims of the resources 
available to report allegations of retaliation, reprisal, ostracism, 
maltreatment, sexual harassment, or to request a transfer or MPO. If the 
allegation is criminal in nature and the victim filed an Unrestricted 
Report, the crime should be immediately reported to an MCIO, even if the 
crime is not something normally reported to an MCIO (e.g., victim's 
personal vehicle was defaced). Victims can seek assistance on how to 
report allegations by requesting assistance from:
    (1) A SARC or SAPR VA or SVC/VLC.
    (2) An SVC or VLC, trial counsel and VWAP, or a legal assistance 
attorney to facilitate reporting with a SARC or SAPR VA.
    (3) IG DoD, invoking whistle-blower protections. For further 
information see paragraph (g) of Appendix A to this part.
    (h) SARC procedures. The SARC shall:
    (1) Serve as the single point of contact to coordinate sexual 
assault response when a sexual assault is reported. All SARCs shall be 
authorized to perform victim advocate duties in accordance with Military 
Service regulations and will be acting in the performance of those 
duties.
    (2) Comply with DoD Sexual Assault Advocate Certification 
requirements.
    (3) Be trained in and understand the confidentiality requirements of 
Restricted Reporting and MRE 514. Training must include exceptions to 
Restricted Reporting and MRE 514.
    (4) Be authorized to accept reports of sexual assault along with the 
SAPR VA and healthcare personnel. For further information see paragraph 
(c) of Appendix A to this part.
    (5) Provide a 24 hour, 7 days per week, response capability to 
victims of sexual assault, to include deployed areas.
    (6) In accordance with policy, ensure a safety assessment is 
performed in every sexual assault case. For further information see 
paragraph (c) of Appendix A to this part.
    (i) SARCs shall respond to every Restricted and Unrestricted Report 
of sexual assault on a military installation, and the response shall be 
in person, unless otherwise requested by the victim. For further 
information see paragraph (c) of Appendix A to this part.
    (ii) Based on the locality, the SARC may ask the SAPR VA to respond 
and speak to the victim.
    (A) There will be situations where a sexual assault victim receives 
medical care and a SAFE outside of a military installation under an MOU 
or MOA with local private or public sector entities. In these cases, 
pursuant to the MOU or MOA the SARC or SAPR VA shall be notified, and a 
SARC or SAPR VA shall respond.
    (B) When contacted by the SARC or SAPR VA, a sexual assault victim 
can elect not to speak to the SARC or SAPR VA, or the sexual assault 
victim may ask to schedule an appointment at a later time to speak to 
the SARC or SAPR VA.
    (iii) SARCs shall provide a response that recognizes the high 
prevalence of pre-existing trauma (prior to the present sexual assault 
incident) and empowers an individual to make informed decisions about 
all aspects in the reporting process and to access available resources.
    (iv) SARCs shall provide a response that is gender-responsive, 
culturally competent, and recovery-oriented.
    (v) SARCs shall offer appropriate referrals to sexual assault 
victims and facilitate access to referrals. Provide referrals at the 
request of the victim.

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    (A) Encourage sexual assault victims to follow-up with the referrals 
and facilitate these referrals, as appropriate.
    (B) In order to competently facilitate referrals, inquire whether 
the victim is a Reservist or an NG member to ensure that victims are 
referred to the appropriate geographic location.
    (7) Explain to the victim that the services of the SARC and SAPR VA 
are optional and these services may be declined, in whole or in part, at 
any time. The victim may decline advocacy services, even if the SARC or 
SAPR VA holds a position of higher rank or authority than the victim. 
Explain to victims the option of requesting a different SAPR VA (subject 
to availability, depending on locality staffing) or continuing without 
SAPR VA services.
    (i) Explain the available reporting options to the victim.
    (A) Assist the victim in filling out the DD Form 2910, where the 
victim elects to make a Restricted or Unrestricted Report. However, the 
victims, not the SARCs or SAPR VAs, must fill out the DD Form 2910. 
Explain that sexual assault victims have the right and ability to 
consult with an SVC/VLC before deciding whether to make a Restricted 
Report, Unrestricted Report, or no report at all. Additionally, the SARC 
or SAPR VA shall explain the eligibility requirements for an SVC/VLC, as 
well as the option to request SVC or VLC services even if the victim 
does not fall within the eligibility requirements.
    (B) Inform the victim that the DD Form 2910 signed by the victim 
will be uploaded to DSAID and retained for 50 years in Unrestricted 
Reports. The DD Forms 2910 and 2911 filed in connection with the 
Restricted Report shall be retained for 50 years, in a manner that 
protects confidentiality.
    (C) The SARC or SAPR VA shall inform the victim of any local or 
State sexual assault reporting requirements that may limit the 
possibility of Restricted Reporting. At the same time, the victims shall 
be briefed about the protections and exceptions to MRE 514.
    (ii) Give the victim a hard copy of the DD Form 2910 with the 
victim's signature. Advise the victim to keep the copy of the DD Form 
2910 and the DD Form 2911 in their personal permanent records as these 
forms may be used by the victim in other matters before other agencies 
(e.g., Department of Veterans Affairs) or for any other lawful purpose.
    (iii) Explain SAFE confidentiality to victims and the 
confidentiality of the contents of the SAFE Kit. Inform the victim that 
information concerning the prosecution shall be provided to them. For 
further information see paragraph (aa) of Appendix A to this part.
    (iv) Activate victim advocacy 24 hours a day, 7 days a week, for all 
incidents of reported sexual assault occurring either on or off the 
installation involving Service members and other covered persons. For 
further information see paragraph (c) of Appendix A to this part.
    (v) Consult with command legal representatives, healthcare 
personnel, and MCIOs, (or when feasible, civilian law enforcement), to 
assess the potential impact of State laws or exceptions governing 
compliance with the Restricted Reporting option and develop or revise 
applicable MOUs and MOAs, as appropriate.
    (vi) Collaborate with MTFs within their respective areas of 
responsibility to establish protocols and procedures to direct 
notification of the SARC and SAPR VA for all incidents of reported 
sexual assault and facilitate ongoing training of healthcare personnel 
on the roles and responsibilities of the SARC and SAPR VAs.
    (vii) Collaborate with local private or public sector entities that 
provide medical care to Service members or TRICARE eligible 
beneficiaries who are sexual assault victims and a SAFE outside of a 
military installation through an MOU or MOA.
    (viii) Establish protocols and procedures with these local private 
or public sector entities to facilitate direct notification of the SARC 
for all incidents of reported sexual assault and facilitate training of 
healthcare personnel of local private or public sector entities on the 
roles and responsibilities of SARCs and SAPR VAs, for Service members 
and persons covered by this policy.

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    (ix) Provide off installation referrals to civilian resources 
available to sexual assault victims, as needed.
    (x) Document and track the services referred to and requested by the 
victim from the time of the initial report of a sexual assault through 
the final case disposition or until the victim no longer desires 
services.
    (xi) Maintain in DSAID an account of the services referred to and 
requested by the victim for all reported sexual assault incidents, from 
medical treatment through counseling, and from the time of the initial 
report of a sexual assault through the final case disposition or until 
the victim no longer desires services. Should the victim return to the 
SARC or SAPR VA and request SAPR services after indicating that he or 
she no longer desired services, the case will be reopened and addressed 
at the CMG meeting.
    (xii) A SARC will open a case in DSAID as an ``Open with Limited 
Information'' case when there is no signed DD 2910 (e.g., an independent 
investigation or third-party report, or when a civilian victim alleged 
sexual assault with a Service member subject) to comply with section 
563(d) of Public Law 110-417 and to ensure system accountability.
    (xiii) Participate in the CMG to review individual cases of 
Unrestricted Reports of sexual assault.
    (xiv) Offer victims the opportunity to participate in surveys asking 
for victim feedback on the reporting experience. Inform victims 
regarding what the survey will ask them and uses of the data collected.
    (i) SAPR VA procedures. (1) The SAPR VA shall:
    (i) Comply with DoD Sexual Assault Advocate Certification 
requirements in D-SAACP.
    (ii) Be trained in and understand the confidentiality requirements 
of Restricted Reporting and MRE 514. Training must include exceptions to 
Restricted Reporting and MRE 514.
    (iii) Facilitate care and provide referrals and non-clinical support 
to the adult victim of a sexual assault. Provide a response consistent 
with requirements for the SARC response. For further information see 
paragraph (c) of Appendix A to this part.
    (iv) Support will include providing information on available options 
and resources so the victim can make informed decisions about his or her 
case.
    (v) Be notified and immediately respond upon receipt of a report of 
sexual assault.
    (vi) Provide coordination and encourage victim service referrals and 
ongoing non-clinical support to the victim of a reported sexual assault 
and facilitate care in accordance with the Sexual Assault Response 
Protocols prescribed SAPR Policy Toolkit located on www.sapr.mil. Assist 
the victim in navigating those processes required to obtain care and 
services needed. It is neither the SAPR VA's role nor responsibility to 
be the victim's mental health provider or to act as an investigator.
    (vii) Report directly to the SARC while carrying out sexual assault 
advocacy responsibilities.
    (2) [Reserved]
    (j) Healthcare professional procedures. This paragraph (j) provides 
guidance on medical management of victims of sexual assault to ensure 
standardized, timely, accessible, and comprehensive healthcare for 
victims of sexual assault, to include the ability to elect a SAFE Kit. 
This policy is applicable to all MHS personnel who provide or coordinate 
medical care for victims of sexual assault covered by this part.
    (1) Require that a SARC be immediately notified when a victim 
discloses a sexual assault so that the SARC can inform the victim of 
both reporting options (Restricted and Unrestricted) and all available 
services (e.g., SVC/VLC, Expedited Transfers, Military Protective 
Orders, document retention mandates). The victim can then make an 
informed decision as to which reporting option to elect and which 
services to request (or none at all). The victim is able to decline 
services in whole or in part at any time.
    (2) There must be selection, training, and certification standards 
for healthcare providers performing SAFEs in MTFs.
    (i) Selection. (A) Have specified screening and selection criteria 
consistent with Public Law 112-81. For further information see 
paragraphs (h) and (ff) of Appendix A to this part.

[[Page 454]]

    (B) In addition to the requirements in Public Law 104-191, licensed 
DoD providers eligible to take SAFE training must pass a National Agency 
Check that will determine if they have been convicted of sexual assault, 
child abuse, domestic violence, violent crime (as defined by the Federal 
Bureau of Investigation's Uniform Crime Reporting Program) or other 
felonies.
    (C) If the candidate is a non-licensed professional, he or she must 
meet the same screening standards as those for SARCs in the D-SAACP 
certification program.
    (ii) Training for healthcare providers performing SAFEs in MTFs. 
Healthcare providers who may be called on to provide comprehensive 
medical treatment to a sexual assault victim, including performing 
SAFEs, are: Obstetricians, gynecologists, and other licensed 
practitioners (preferably family physicians, emergency medicine 
physicians, and pediatricians); advanced practice nurses with 
specialties in midwifery, women's health, family health, and pediatrics; 
physician assistants trained in family practice or women's health; and 
registered nurses. These individuals must receive specialized training 
aimed at preparing them to proficiently perform the duties of conducting 
a SAFE.
    (A) In addition to the responder training requirements and the 
healthcare personnel training requirements, healthcare providers 
performing SAFEs shall be trained and remain proficient in conducting 
SAFEs.
    (B) All providers conducting SAFEs must have documented education, 
training, and clinical practice in sexual assault examinations. For 
further information see paragraphs (h) and (ff) of Appendix A to this 
part.
    (iii) Certification. (A) Provider must pass all selection and 
screening criteria.
    (B) Provider must submit documentation by trainer that healthcare 
provider has successfully completed SAFE training and is competent to 
conduct SAFEs independently. Documentation can be in the form of a 
certificate or be recorded in an electronic medical training tracking 
system.
    (C) Provider must obtain a letter of recommendation from her or his 
commander.
    (D) Upon successful completion of the selection, training, and 
certification requirements, the designated medical certifying authority 
will issue the certification for competency. Certification is good for 3 
years from date of issue and must be reassessed and renewed at the end 
of the 3-year period.
    (3) In cases of MTFs that do not have an emergency department that 
operates 24 hours per day, require that a sexual assault forensic 
medical examiner be made available to a patient of the facility when a 
determination is made regarding the patient's need for the services of a 
sexual assault medical forensic examiner. For further information see 
paragraphs (h) and (ff) of Appendix A to this part.
    (i) The MOU or MOA will require that a SARC be notified and that 
SAFE Kits be collected. For further information see paragraph (c) of 
Appendix A to this part.
    (ii) When the forensic examination is conducted at a civilian 
facility through an MOU or a MOA with the DoD, the requirements for the 
handling of the forensic kit will be explicitly addressed in the MOU or 
MOA. The MOU or MOA with the civilian facility will address the 
processes for contacting the SARC and for contacting the appropriate DoD 
agency responsible for accepting custody of the forensic kit.
    (4) Require that MTFs that provide SAFEs for Service members or 
TRICARE eligible beneficiaries through an MOU or MOA with private or 
public sector entities verify initially and periodically that those 
entities meet or exceed standards of the recommendations for conducting 
forensic exams of adult sexual victims. For further information see 
paragraphs (h) and (ff) of Appendix A to this part. In addition, verify 
that as part of the MOU or MOA, a SARC or SAPR VA is notified and 
responds and meets with the victim in a timely manner.
    (5) Require that medical providers providing healthcare to victims 
of sexual assault in remote areas or while deployed have access to the 
proper equipment for conducting forensic exams.

[[Page 455]]

For further information see paragraphs (h) and (ff) of Appendix A to 
this part.
    (6) Implement procedures to provide the victim information regarding 
the availability of a SAFE Kit, which the victim has the option of 
refusing. If performed in the MTF, the healthcare provider shall use a 
SAFE Kit and the most current edition of the DD Form 2911.
    (7) Require that care provided to sexual assault victims shall be 
gender-responsive, culturally competent, and recovery-oriented.
    (8) In the absence of a properly trained DoD healthcare provider, 
the victim shall be offered the option to be transported to a non-DoD 
healthcare provider for the SAFE Kit, if the victim wants a forensic 
exam. Victims who are not beneficiaries of the Military Healthcare 
System shall be advised that they can obtain a SAFE Kit through a local 
civilian healthcare provider at no cost. For further information see 
paragraphs (h) and (ff) of Appendix A to this part.
    (9) Upon completion of the SAFE, the sexual assault victim shall be 
provided with a hard copy of the completed DD Form 2911. Advise the 
victim to keep the copy of the DD Form 2911 in his or her personal 
permanent records as this form may be used by the victim in other 
matters before other agencies (e.g., Department of Veterans Affairs) or 
for any other lawful purpose.
    (10) Require that healthcare personnel maintain the confidentiality 
of a Restricted Report to include communications with the victim, the 
SAFE, and the contents of the SAFE Kit, unless an exception to 
Restricted Reporting applies. For further information see paragraph (c) 
of Appendix A to this part.
    (11) Require that psychotherapy and counseling records and clinical 
notes pertaining to sexual assault victims contain only information that 
is required for diagnosis and treatment. Any record of an account of a 
sexual assault incident created as part of a psychotherapy exercise will 
remain the property of the patient making the disclosure and should not 
be retained within the psychotherapist's record.
    (i) Timely medical care. To comply with the requirement to provide 
timely medical care, the Surgeons General of the Military Departments 
shall provide sexual assault victims with priority treatment as 
emergency cases, regardless of evidence of physical injury, recognizing 
that every minute a patient spends waiting to be examined may cause loss 
of evidence and undue trauma. Priority treatment as emergency cases 
includes activities relating to access to healthcare, coding, and 
medical transfer or evacuation, and complete physical assessment, 
examination, and treatment of injuries, including immediate emergency 
interventions.
    (ii) Clinically stable. Require the healthcare provider to consult 
with the victim, once clinically stable, regarding further healthcare 
options to the extent eligible, which shall include, but are not limited 
to:
    (A) Testing, prophylactic treatment options, and follow-up care for 
possible exposure to human immunodeficiency virus and other sexually 
transmitted diseases or infections (STD/I).
    (B) Assessment of the risk of pregnancy, options for emergency 
contraception, and any follow-up care and referral services to the 
extent authorized by law.
    (C) Assessment of the need for behavioral health services and 
provisions for a referral, if necessary or requested by the victim.
    (k) Safe kit collection and preservation. For the purposes of the 
SAPR Program, forensic evidence collection and document and evidence 
retention shall be completed in accordance with established policy, 
taking into account the medical condition, needs, requests, and desires 
of each sexual assault victim covered by this part. For further 
information see paragraph (c) of Appendix A to this part.
    (1) Medical services offered to eligible victims of sexual assault 
include the ability to elect a SAFE in addition to the general medical 
management related to sexual assault response, to include medical 
services and mental healthcare.
    (2) The forensic component includes gathering information in DD Form 
2911 from the victim for the medical forensic history, an examination, 
documentation of biological and physical findings, collection of 
evidence from

[[Page 456]]

the victim, and follow-up as needed to document additional evidence.
    (3) The process for collecting and preserving sexual assault 
evidence for the Restricted Reporting option is the same as the 
Unrestricted Reporting option, except that the Restricted Reporting 
option does not trigger the official investigative process, and any 
evidence collected has to be placed inside the SAFE Kit, which is marked 
with the RRCN in the location where the victim's name would have 
otherwise been written. The victim's SAFE and accompanying Kit is 
treated as a confidential communication under this reporting option. The 
healthcare provider shall encourage the victim to obtain referrals for 
additional medical, psychological, chaplain, victim advocacy, or other 
SAPR services, as needed. The victim shall be informed that the SARC 
will assist them in accessing SAPR services.
    (4) The SARC or SAPR VA shall inform the victim of any local or 
State sexual assault reporting requirements that may limit the 
possibility of Restricted Reporting before proceeding with the SAFE.
    (5) Upon completion of the SAFE in an Unrestricted Reporting case, 
the healthcare provider shall package, seal, and label the evidence 
container(s) with the victim's name and notify the MCIO. The SAFE Kit 
will be retained for 5 years in accordance with section 586 of Public 
Law 112-81. When the forensic examination is conducted at a civilian 
facility through an MOU or a MOA with the DoD, the requirement for the 
handling of the forensic kit will be explicitly addressed in the MOU or 
MOA. The MOU or MOA with the civilian facility will address the 
processes for contacting the SARC and for contacting the appropriate DoD 
agency responsible for accepting custody of the forensic kit. Personal 
property retained as evidence collected in association with a sexual 
assault investigation may be returned to the rightful owner of such 
property after the conclusion of all legal, adverse action and 
administrative proceedings related to such incidents in accordance with 
section 538 of Public Law 113-291.
    (6) MOUs and MOAs, with off-base, non-military facilities for the 
purposes of providing medical care to eligible victims of sexual assault 
shall include instructions for the notification of a SARC (regardless of 
whether a Restricted or Unrestricted Report of sexual assault is 
involved), and procedures for the receipt of evidence and disposition of 
evidence back to the DoD law enforcement agency or MCIO. For further 
information see paragraph (c) of Appendix A to this part.
    (7) Upon completion of the SAFE in a Restricted Reporting case, the 
healthcare provider shall package, seal, and label the evidence 
container(s) with the RRCN and store it in accordance with Service 
regulations. The SAFE Kit will be retained for 5 years in a location 
designated by the Military Service concerned. When the forensic 
examination is conducted at a civilian facility through an MOU or an MOA 
with the DoD, the requirement for the handling of the forensic kit will 
be explicitly addressed in the MOU or MOA. The MOU or MOA with the 
civilian facility will address the processes for contacting the SARC and 
for contacting the appropriate DoD agency responsible for accepting 
custody of the forensic kit. The 5-year time frame will start from the 
date the victim signs the DD Form 2910, but if there is no DD Form 2910, 
the timeframe will start from the date the SAFE Kit is completed.
    (8) Any evidence and the SAFE Kit in Restricted Reporting cases 
shall be stored for 5 years from the date of the victim's Restricted 
Report of the sexual assault.
    (9) The SARC will contact the victim at the 1-year mark of the 
report to inquire whether the victim wishes to change his or her 
reporting option to Unrestricted.
    (i) If the victim does not change to Unrestricted Reporting, the 
SARC will explain to the victim that the SAFE Kit will be retained for a 
total of 5 years from the time the victim signed the DD Form 2910 
(electing the Restricted Report) and will then be destroyed. The DD 
Forms 2910 and 2911 will be retained for 50 years in a manner that 
protects confidentiality. The SARC will emphasize to the victim

[[Page 457]]

that his or her privacy will be respected and he or she will not be 
contacted again by the SARC. The SARC will stress it is the victim's 
responsibility from that point forward, if the victim wishes to change 
from a Restricted to an Unrestricted Report, to affirmatively contact a 
SARC before the 5-year SAFE Kit retention period elapses.
    (ii) If the victim needs another copy of either of these forms, he 
or she can request it at this point, and the SARC shall assist the 
victim in accessing the requested copies within 7 business days. The 
SARC will document this request in the DD Form 2910.
    (iii) At least 30 days before the expiration of the 5-year SAFE Kit 
storage period, the DoD law enforcement or MCIO shall notify the 
installation SARC that the storage period is about to expire and confirm 
with the SARC that the victim has not made a request to change to 
Unrestricted Reporting or made a request for any personal effects.
    (iv) If there has been no change, then at the expiration of the 
storage period in compliance with established procedures for the 
destruction of evidence, the designated activity, generally the DoD law 
enforcement agency or MCIO, may destroy the evidence maintained under 
that victim's RRCN.
    (v) If, before the expiration of the 5-year SAFE Kit storage period, 
a victim changes his or her reporting preference to the Unrestricted 
Reporting option, the SARC shall notify the respective MCIO, which shall 
then assume custody of the evidence maintained by the RRCN from the DoD 
law enforcement agency or MCIO, pursuant to established chain of custody 
procedures. MCIO established procedures for documenting, maintaining, 
and storing the evidence shall thereafter be followed.
    (A) The DoD law enforcement agency, which will receive forensic 
evidence from the healthcare provider if not already in custody, and 
label and store such evidence shall be designated.
    (B) The designated DoD law enforcement agency must be trained and 
capable of collecting and preserving evidence in Restricted Reports 
prior to assuming custody of the evidence using established chain of 
custody procedures.
    (10) Evidence will be stored by the DoD law enforcement agency until 
the 5-year storage period for Restricted Reporting is reached or a 
victim changes to Unrestricted Reporting.



Sec.  103.7  Case management for unrestricted reports of sexual assault.

    (a) General. CMG oversight for Unrestricted Reports of adult sexual 
assaults is triggered by open cases in DSAID initiated by a DD Form 2910 
or an investigation initiated by an MCIO. In a case where there is an 
investigation initiated by an MCIO, but no corresponding Unrestricted DD 
Form 2910:
    (1) The SARC would have no information for the CMG members. During 
the CMG, the MCIO would provide case management information to the CMG, 
including the SARC.
    (2) The SARC would open a case in DSAID indicating the case status 
as ``Open with Limited Information.'' The SARC will only use information 
from the MCIO to initiate an ``Open with Limited Information'' case in 
DSAID. In the event that there was a Restricted Report filed prior to 
the independent investigation, the SARC will not use any information 
provided by the victim, since that information is confidential.
    (b) Procedures. (1) The CMG members shall carefully consider and 
implement immediate, short-term, and long-term measures to help 
facilitate and assure the victim's well-being and recovery from the 
sexual assault. They will closely monitor the victim's progress and 
recovery and strive to protect the victim's privacy, ensuring only those 
with an official need to know have the victim's name and related 
details. Consequently, where possible, each case shall be reviewed 
independently, bringing in only those personnel associated with the 
case, as well as the CMG chair and co-chair.
    (2) The CMG chair shall:
    (i) Confirm that the SARCs and SAPR VAs have what they need to 
provide an effective SAPR response to victims.
    (ii) Require an update of the status of each MPO.

[[Page 458]]

    (iii) If the victim has informed the SARC of an existing CPO, the 
chair shall require the SARC to inform the CMG of the existence of the 
CPO and its requirements.
    (iv) After protective order documentation is presented at the CMG 
from the SARC or the SAPR VA, the DoD law enforcement agents at the CMG 
will document the information provided in their investigative case file, 
to include documentation for Reserve Component personnel in title 10 
status.
    (v) At every CMG meeting, the CMG Chair will ask the CMG members if 
the victim, victim's family members, witnesses, bystanders (who 
intervened), SARCs and SAPR VAs, responders, or other parties to the 
incident have experienced any incidents of retaliation, reprisal, 
ostracism, or maltreatment. If any allegations are reported, the CMG 
Chair will forward the information to the proper authority or 
authorities (e.g., MCIO, Inspector General, MEO). Discretion may be 
exercised in disclosing allegations of retaliation, reprisal, ostracism, 
or maltreatment when such allegations involve parties to the CMG. 
Retaliation, reprisal, ostracism, or maltreatment allegations involving 
the victim, SARCs, and SAPR VAs will remain on the CMG agenda for status 
updates, until the victim's case is closed or until the allegation has 
been appropriately addressed.
    (vi) The CMG chair will confirm that each victim receives a safety 
assessment as soon as possible. There will be a safety assessment 
capability. The CMG chair will identify installation personnel who have 
been trained and are able to perform a safety assessment of each sexual 
assault victim.
    (vii) The CMG chair will, if it has not already been done, 
immediately stand up a multi-disciplinary High-Risk Response Team if a 
victim is assessed to be in a high-risk situation. The purpose and the 
responsibility of the High-Risk Response Team is to continually monitor 
the victim's safety, by assessing danger and developing a plan to manage 
the situation.
    (viii) The High-Risk Response Team (HRRT) shall be chaired by the 
victim's immediate commander and, at a minimum, include the alleged 
offender's immediate commander; the victim's SARC and SAPR VA; the MCIO, 
the judge advocate, and the VWAP assigned to the case; victim's 
healthcare provider or mental health and counseling services provider; 
and the personnel who conducted the safety assessment. The 
responsibility of the HRRT members to attend the HRRT meetings and 
actively participate in them will not be delegated.



              Sec. Appendix A to Part 103--Related Policies

    The SAPR Program is supported by the following policies:
    (a) DoD Directive 6495.01, ``Sexual Assault Prevention and Response 
(SAPR) Program,'' Change 3, April 11, 2017 (available at https://
www.esd.whs.mil/ Portals/54/Documents/DD/ issuances/dodd/649501p.pdf).
    (b) Sections 101(d)(3) and 113, chapter 47,\1\ and chapter 80 of 
title 10, United States Code.
---------------------------------------------------------------------------

    \1\ Chapter 47 is also known and referred to in this part as ``The 
Uniform Code of Military Justice (UCMJ).''
---------------------------------------------------------------------------

    (c) DoD Instruction 6495.02, ``Sexual Assault Prevention and 
Response (SAPR) Program Procedures,'' May 24, 2017, as amended 
(available at https://www.esd.whs.mil/ Portals/54/Documents/ DD/
issuances/dodi/649502p.pdf).
    (d) 32 CFR part 158, ``Operational Contract Support.''
    (e) DoD Manual 6400.01, Volume 2, ``Family Advocacy Program (FAP): 
Child Abuse and Domestic Abuse Incident Reporting System,'' August 11, 
2016 (available at https://www.esd.whs.mil/ Portals/54/Documents/ DD/
issuances/dodm/ 640001m_vol2.pdf).
    (f) Public Law 114-92, ``National Defense Authorization Act for 
Fiscal Year 2016,'' November 25, 2015.
    (g) DoD Directive 7050.06, ``Military Whistleblower Protection,'' 
April 17, 2015 (available at https://www.esd.whs.mil/Portals/ 54/
Documents/DD/issuances/dodd/ 705006p.pdf).
    (h) U.S. Department of Justice, Office on Violence Against Women, 
``A National Protocol for Sexual Assault Medical Forensic Examinations, 
Adults/Adolescents,'' current version (available at https://
www.ncjrs.gov/ pdffiles1/ovw/241903.pdf).
    (i) 32 CFR part 310, ``DoD Privacy Program.''
    (j) DoD Manual 6025.18, ``Implementation of the Health Insurance 
Portability and Accountability Act (HIPAA) Privacy Rule in DOD Health 
Care Programs,'' March 13, 2019 (available at https://www.esd.whs.mil/
Portals/ 54/Documents/DD/issuances/d odm/602518m.pdf?ver =2019-03-13-
123513-717).

[[Page 459]]

    (k) Public Law 113-66, ``The National Defense Authorization Act for 
Fiscal Year 2014,'' December 2013.
    (l) Title 5, United States Code.
    (m) Public Law 104-191, ``Health Insurance Portability and 
Accountability Act of 1996,'' August 21, 1996.
    (n) DoD Instruction 5505.18, ``Investigation of Adult Sexual Assault 
in the Department of Defense,'' March 22, 2017, as amended (available at 
https://www.esd.whs.mil/ Portals/54/Documents/DD/ issuances/dodi/
550518p.pdf?ver =2018-02-13-125046-630).
    (o) Sections 584, 585, and 586 of Public Law 112-81, ``National 
Defense Authorization Act for Fiscal Year 2012,'' December 31, 2011.
    (p) Public Law 113-291, ``Carl Levin and Howard P. 'Buck' McKeon 
National Defense Authorization Act for Fiscal Year 2015,'' December 29, 
2014.
    (q) DoD Manual 8910.01, Volume 1, ``DoD Information Collections 
Manual: Procedures for DoD Internal Information Collections,'' June 30, 
2014, as amended (available at https://www.esd.whs.mil/ Portals/54/
Documents/ DD/issuances/dodm/ 891001m_vol1.pdf).
    (r) Public Law 110-417, ``The Duncan Hunter National Defense 
Authorization Act for Fiscal Year 2009,'' October 14, 2008.
    (s) DoD Instruction 5545.02, ``DoD Policy for Congressional 
Authorization and Appropriations Reporting Requirements,'' December 19, 
2008 (available at https://www.esd.whs.mil/ Portals/54/Documents /DD/
issuances/dodi/ 554502p.pdf).
    (t) DoD Directive 5124.02, ``Under Secretary of Defense for 
Personnel and Readiness (USD(P&R)),'' June 23, 2008 (available at 
https://www.esd.whs.mil/ Portals/54/Documents/DD/ issuances/dodd/
512402p.pdf).
    (u) Public Law 112-81, ``National Defense Authorization Act for 
Fiscal Year 2012,'' December 31, 2011.
    (v) Department of Defense 2014-2016 Sexual Assault Prevention 
Strategy,'' April 30, 2014, https://www.sapr.mil/index.php/prevention.
    (w) DoD Instruction 6495.03, ``Defense Sexual Assault Advocate 
Certification Program (D-SAACP),'' September 10, 2015 (available at 
https://www.esd.whs.mil/ Portals/54/Documents/DD/ issuances/dodi/
649503p.pdf).
    (x) Section 577 of Public Law 108-375, ``Ronald Reagan National 
Defense Authorization Act for Fiscal Year 2005,'' October 28, 2004.
    (y) U.S. Department of Defense, ``Manual for Courts-Martial, United 
States,'' current edition (available at https://jsc.defense.gov/ 
Portals/99/Documents/MCM2016.pdf? ver=2016-12-08-181411-957).
    (z) Title 10, United States Code.
    (aa) DoD Instruction 1030.2, ``Victim and Witness Assistance 
Procedures,'' June 4, 2004 (available at https://www.esd.whs.mil/ 
Portals/54/Documents/DD/ issuances/dodi/103002p.pdf).
    (bb) DoD Instruction 5505.19, ``Establishment of Special Victim 
Investigation and Prosecution (SVIP) Capability within the Military 
Criminal Investigative Organizations (MCIOs),'' February 3, 2015, as 
amended (available at https://www.esd.whs.mil/ Portals/54/Documents/DD/ 
issuances/dodi/550519p.pdf).
    (cc) Directive-type Memorandum 14-003, ``DoD Implementation of 
Special Victim Capability (SVC) Prosecution and Legal Support,'' 
February 12, 2014, as amended (available at https://www.esd.whs.mil/ 
Portals/54/Documents/DD/issuances/ dtm/DTM14003_2014.pdf).
    (dd) Title 32, United States Code.
    (ee) Sections 561, 562, and 563 of Public Law 110-417, ``Duncan 
Hunter National Defense Authorization Act for Fiscal Year 2009,'' 
October 14, 2008.
    (ff) U.S. Department of Justice, Office on Violence Against Women, 
``National Training Standards for Sexual Assault Medical Forensic 
Examiners,'' current version (available at https://www.ncjrs.gov/
pdffiles/ovw/241903).
    (gg) DoD Instruction 6025.13, ``Medical Quality Assurance (MQA) and 
Clinical Quality Management in the Military Health System (MHS),'' 
February 17, 2011, as amended (available at https://www.esd.whs.mil/ 
Portals/54/Documents/DD/issuances/ dodi/602513p.pdf).
    (hh) Office of the Chairman of the Joint Chiefs of Staff, ``DoD 
Dictionary of Military and Associated Terms,'' current edition 
(available at https://www.jcs.mil/ Portals/36/Documents/Doctrine/ pubs/
dictionary.pdf).
    (ii) DoD 4165.66-M, ``Base Redevelopment and Realignment Manual,'' 
March 1, 2006 (available at https://www.esd.whs.mil/ Portals/54/
Documents/DD/issuances/ dodm/416566m.pdf).
    (jj) Public Law 111-84, National Defense Authorization Act for 
Fiscal Year 2010.
    (kk) 10 U.S.C. Chapter 47, Uniform Code of Military Justice.



PART 107_PERSONAL SERVICES AUTHORITY FOR DIRECT HEALTH CARE PROVIDERS-
-Table of Contents



Sec.
107.1 Purpose.
107.2 Applicability and scope.
107.3 Definitions.
107.4 Policy.
107.5 Procedures.
107.6 Responsibilities.

Enclosure 1 to Part 107--Table of Authorized Compensation Rates

    Authority: 10 U.S.C. 1091; Federal Acquisition Regulation (FAR), 
part 37.

    Source: 50 FR 11693, Mar. 25, 1985, unless otherwise noted.



Sec.  107.1  Purpose.

    This part establishes policy under 10 U.S.C. 1091, ``Contracts For 
Direct

[[Page 460]]

Health Care Providers,'' and assigns responsibility for implementing the 
authority for personal services contracts for direct health care 
providers.



Sec.  107.2  Applicability and scope.

    (a) This part applies to the Office of the Secretary of Defense 
(OSD) and the Military Departments.
    (b) It applies only to personal services contracts awarded under 10 
U.S.C. 1091 for direct health care providers.



Sec.  107.3  Definitions.

    (a) Personal Services Contract. A contract that, by its express 
terms or as administered, makes the contractor personnel appear, in 
effect, to be government employees.
    (b) Direct Health Care Providers. Health services personnel who 
participate in clinical patient care and services. This does not include 
personnel whose duties are primarily administrative or clerical, nor 
personnel who provide maintenance or security services.



Sec.  107.4  Policy.

    (a) It is the policy of the Department of Defense that when in-house 
sources are insufficient to support the medical mission of the Military 
Departments, personal services contracts under 10 U.S.C. 1091 may be 
executed.
    (b) It is the purpose of personal services contracts to facilitate 
mission accomplishment, maximize beneficiary access to military MTFs, 
maintain readiness capability, reduce use of the Civilian Health and 
Medical Program of the Uniformed Services (CHAMPUS), and enhance quality 
of care by promoting the continuity of the patient/provider 
relationship.
    (c) Personal services contractors shall be subject to the same 
quality assurance, credentialing processes, and other standards as those 
required of military health care providers. In addition, providers, 
other than para-professionals, must be licensed in accordance with State 
or host country requirements to perform the contract services.
    (d) In establishing lines of authority and accountability, DoD 
supervisors may direct the activities of personal services contractors 
on the same basis as DoD employees. However, the rights, benefits, and 
compensation of personal services contractors shall be determined solely 
in accordance with the personal service contract.
    (e) Requests for personal services contracts contemplating 
reimbursement at the maximum rate of basic pay and allowances under 10 
U.S.C. 1091 shall be approved at the major command level. The 0-6 grade 
shall be used sparingly and subsequently will be subject to review.



Sec.  107.5  Procedures.

    (a) Each contract under 10 U.S.C. 1091 with an individual or with an 
entity, such as a professional corporation or partnership, for the 
personal services of an individual must contain language specifically 
acknowledging the individual as a personal services contractor whose 
performance is subject to supervision and direction by designated 
officials of the Department of Defense.
    (b) The appearance of an employer-employee relationship created by 
the DoD supervision of a personal services contractor will normally 
support a limited recognition of the contractor as equal in status to a 
DoD employee in disposing of personal injury claims arising out of the 
contractor's performance. Personal injury claims alleging negligence by 
the contractor within the scope of his or her contract performance, 
therefore, will be processed as claims alleging negligence by DoD 
military or civil service personnel.
    (c) Compensation for personal services contractors under 10 U.S.C. 
1091 shall be within the limits established in the Table of Authorized 
Compensation Rates (see enclosure 1). Prorated compensation based upon 
hourly, daily, or weekly rates may be awarded when a contractor's 
services are not required on a full-time basis. In all cases, however, a 
contractor may be compensated only for periods of time actually devoted 
to the delivery of services required by the contract.
    (d) Contracts for personal services entered into shall be awarded 
and administered pursuant to the provisions of the Federal Acquisition 
Regulation (FAR), part 37 and DoD and departmental supplementary 
contracting provisions.

[[Page 461]]



Sec.  107.6  Responsibilities.

    (a) The Military Departments shall be responsible for the management 
of the direct health care provider contracting program, ensuring that 
effective means of obtaining adequate quality care is achieved in 
compliance with the FAR, part 37. The portion of the Military Department 
regulations ensuring that compensation provided for a particular type of 
service is based on objective criteria and is not susceptible to 
individual favoritism shall be stressed.
    (b) The Office of the Assistant Secretary of Defense (Health 
Affairs) (OASD(HA)) shall be responsible for monitoring the personal 
services contracting program.



  Sec. Enclosure 1 to Part 107--Table of Authorized Compensation Rates

------------------------------------------------------------------------
                                         Compensation rate not to exceed
                                        --------------------------------
       Occupation/specialty group          Pay
                                          grade      Years of service
------------------------------------------------------------------------
I. Physicians and dentists.............     0-6  Over 26.
II. Other individuals, including nurse      0-5  Over 20 but less than
 practitioners, nurse anesthetists, and           22.
 nurse midwives, but excluding
 paraprofessionals.
III. All registered nurses, except          0-4  Over 16 but less than
 those who are included in Group II.              18.
IV. Paraprofessionals..................     0-3  Over 6 but less than 8.
------------------------------------------------------------------------



PART 108_HEALTH CARE ELIGIBILITY UNDER THE SECRETARIAL DESIGNEE PROGRAM
AND RELATED SPECIAL AUTHORITIES--Table of Contents



Sec.
108.1 Purpose.
108.2 Applicability.
108.3 Definition.
108.4 Policy.
108.5 Eligible senior officials of the U.S. Government.
108.6 Responsibilities.

    Authority: 10 U.S.C. 1074(c); 10 U.S.C. 2559.

    Source: 75 FR 72682, Nov. 26, 2010, unless otherwise noted.



Sec.  108.1  Purpose.

    This part:
    (a) Establishes policy and assigns responsibilities under 10 U.S.C. 
1074(c) for health care eligibility under the Secretarial Designee 
Program.
    (b) Implements the requirement of 10 U.S.C. 2559 that the United 
States receive reimbursement for inpatient health care provided in the 
United States to foreign military or diplomatic personnel or their 
dependents, except in certain cases covered by Reciprocal Health Care 
Agreements (RHCAs) between the Department of Defense and a foreign 
country.



Sec.  108.2  Applicability.

    This part:
    (a) Applies to the Office of the Secretary of Defense, the Military 
Departments, the Office of the Chairman of the Joint Chiefs of Staff and 
the Joint Staff, the Combatant Commands, the Office of the Inspector 
General of the Department of Defense, the Defense Agencies, the DoD 
Field Activities, and all other organizational entities in the 
Department of Defense (hereafter referred to collectively as the ``DoD 
Components'').
    (b) Does not apply to health care services provided to coalition 
forces in operational settings, or to allied forces in overseas training 
exercises and similar activities. Also, does not apply to health care 
services provided to foreign nationals overseas under DoD Instruction 
3000.05,\1\ DoD Instruction 2205.2,\2\ or DoD Instruction 2310.08E.\3\
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    \1\ Copies available on the Internet at http://www.dtic.mil/whs/ 
directives/corres/pdf/ 300005p.pdf.
    \2\ Copies available on the Internet at http://www.dtic.mil/ whs/
directives/corres/ pdf/220502p.pdf.
    \3\ Copies available on the Internet at http://www.dtic.mil/ whs/
directives/corres/ pdf/231008p.pdf.
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Sec.  108.3  Definition.

    Secretarial Designee Program. The program established under section 
1074(c) to create by regulation an eligibility for health care services 
in military medical treatment facilities (MTFs) as well as dental 
treatment facilities for individuals who have no such eligibility under 
10 U.S.C. chapter 55.



Sec.  108.4  Policy.

    It is DoD policy that:

[[Page 462]]

    (a) General Policy. The use of regulatory authority to establish DoD 
health care eligibility for individuals without a specific statutory 
entitlement or eligibility shall be used very sparingly, and only when 
it serves a compelling DoD mission interest. When used, it shall be on a 
reimbursable basis, unless non-reimbursable care is authorized by this 
part or reimbursement is waived by the Under Secretary of Defense 
(Personnel & Readiness) (USD(P&R)) or the Secretaries of the Military 
Departments when they are the approving authority.
    (b) Foreign Military Personnel and Their Dependents. (1) MTF Care in 
the United States. Foreign military personnel in the United States under 
the sponsorship or invitation of the Department of Defense, and their 
dependents approved by the Department of Defense to accompany them, are 
eligible for space-available care as provided in DoD Instruction 
1000.13.\4\ Consistent with 10 U.S.C. 2559, in cases in which 
reimbursement is required by DoD Instruction 1000.13, a RHCA may provide 
a waiver of reimbursement for inpatient and/or outpatient care in the 
United States in a military medical treatment facility for military 
personnel from a foreign country and their dependents, if comparable 
care is made available to at least a comparable number of U.S. military 
personnel and their dependents in that foreign country. A disparity of 
25 percent or less in the number of foreign personnel and dependents 
above U.S. personnel and dependents shall be considered within the range 
of comparable numbers.
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    \4\ Copies available on the Internet at http://www.dtic.mil/ whs/
directives/corres/ pdf/100013p.pdf.
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    (2) Non-MTF Care in the United States. Foreign military personnel in 
the United States under the sponsorship or invitation of the Department 
of Defense, and their dependents approved by the Department of Defense 
to accompany them, are not eligible for DoD payment for outpatient or 
inpatient care received from non-DoD providers, except for such 
personnel covered by the North Atlantic Treaty Organization Status of 
Forces Agreement (SOFA) or the Partnership for Peace SOFA and authorized 
care under the TRICARE Standard program according to Sec.  199.3 of 
title 32, Code of Federal Regulations, outpatient care may be provided 
as specified therein.
    (c) Foreign Diplomatic or Other Senior Foreign Officials. Foreign 
diplomatic or other senior foreign officials and the dependents of such 
officials may be provided inpatient or outpatient services in MTFs only 
in compelling circumstances, including both medical circumstances and 
mission interests, and through case-by-case approval.
    (1) In the United States, the approval authority is the USD(P&R). 
The authority to waive reimbursement for care provided in the United 
States, to the extent allowed by law, is the USD(P&R) or the Secretaries 
of the Military Departments when they are the approving authority.
    (2) Requests from the State Department or other agency of the U.S. 
Government will be considered on a reimbursable basis.
    (3) Under 10 U.S.C. 2559, reimbursement to the United States for 
care provided in the United States on an inpatient basis to foreign 
diplomatic personnel or their dependents is required.
    (d) Other Foreign Nationals. Other foreign nationals (other than 
those described in paragraphs (b) and (c) of this section) may be 
designated as eligible for space-available care in MTFs only in 
extraordinary circumstances.
    (1) The authority to waive reimbursement for care provided in the 
United States, to the extent allowed by law, is the USD(P&R) or the 
Secretaries of the Military Departments when they are the approving 
authority. Waiver requests will only be considered based on a direct and 
compelling relationship to a priority DoD mission objective.
    (2) Requests from the State Department or other agency of the U.S. 
Government will be considered on a reimbursable basis. Such requests 
must be supported by the U.S. Ambassador to the country involved and the 
Geographical Combatant Commander for that area of responsibility and 
must be premised on critically important interests of the United States.
    (e) Invited Persons Accompanying the Overseas Force. The Secretaries 
of the Military Departments and the

[[Page 463]]

USD(P&R) may designate as eligible for space-available care from the 
Military Health System outside the United States those persons invited 
by the Department of Defense to accompany or visit the military force in 
overseas locations or invited to participate in DoD-sponsored morale, 
welfare, and recreation activities. This authority is limited to health 
care needs arising in the course of the invited activities. Separate 
approval is needed to continue health care initiated under this 
paragraph in MTFs in the United States.
    (1) In the case of employees or affiliates of news organizations, 
all care provided under the authority of introductory paragraph (e) of 
this section is reimbursable. For other individuals designated as 
eligible under this paragraph (e), the designation may provide, to the 
extent allowed by law, for outpatient care on a non-reimbursable basis, 
and establish a case-by-case authority for waiver of reimbursement for 
inpatient care.
    (2) This paragraph (e) does not apply to employees of the Executive 
Branch of the United States or personnel affiliated with contractors of 
the United States.
    (f) U.S. Nationals Overseas. Health care for U.S. nationals overseas 
is not authorized, except as otherwise provided in this part.
    (g) U.S. Government Civilian Employees and Contractor Personnel. (1) 
Civilian employees of the Department of Defense and other government 
agencies, and employees of DoD contractors, and the dependents of such 
personnel are eligible for MTF care to the extent provided in DoD 
Instruction 1000.13.
    (2) Occupational health care services provided to DoD employees 
under 5 U.S.C. 7901, authorities cited in DoD Instruction 6055.1,\5\ or 
under other authorities except 10 U.S.C. 1074(c) are not affected by 
this Instruction. The Secretaries of the Military Departments and the 
USD(P&R) may designate DoD civilian employees, applicants for 
employment, and personnel performing services for the Department of 
Defense under Federal contracts as eligible for occupational health care 
services required by the Department of Defense as a condition of 
employment or involvement in any particular assignment, duty, or 
undertaking.
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    \5\ Copies available on the Internet at http://www.dtic.mil/ whs/
directives/corres/ pdf/605501p.pdf.
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    (3) Any health care services provided by the Military Health System 
to employees of DoD non-appropriated fund instrumentalities shall be on 
a reimbursable basis.
    (4) In the case of DoD civilian employees forward deployed in 
support of U.S. military personnel engaged in hostilities, eligibility 
for MTF care (in addition to all eligibility for programs administered 
by the Department of Labor Office of Workers' Compensation Programs 
(OWCP)) is as follows:
    (i) Consistent with Policy Guidance for Provision of Medical Care to 
DoD Civilian Employees Injured or Wounded While Forward Deployed in 
Support of Hostilities,\6\ DoD civilian employees who become ill, 
contract diseases, or are injured or wounded while so deployed are 
eligible for medical evacuation or health care treatment and services in 
MTFs at the same level and scope provided to military personnel, all on 
a non-reimbursable basis, until returned to the United States.
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    \6\ Copies available at OASD (Health Affairs/TMA FHP&RP), 1200 
Defense Pentagon, Room 3E1073, Washington, DC 20301-1200.
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    (ii) DoD civilian employees who, subsequent to such deployment, and 
have been determined to have OWCP-compensable conditions are eligible 
for MTF care for such conditions, all on a non-reimbursable basis.
    (iii) USD(P&R) may, under compelling circumstances, approve 
additional eligibility for care in MTFs for other U.S. Government 
civilian employees who become ill or injured while so deployed, or other 
DoD civilian employees overseas.
    (5) Contractor Personnel Authorized to Accompany U.S. Armed Forces. 
In the case of contractor personnel authorized to accompany U.S. Armed 
Forces in deployed settings under DoD Instruction 3020.41,\7\ MTF care 
may be provided as stated in DoD Instruction 3020.41.
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    \7\ Copies available on the Internet at http://www.dtic.mil/ whs/
directives/corres/ pdf/302041p.pdf.

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[[Page 464]]

    (h) Emergency Health Care. The Secretaries of the Military 
Departments and the USD(P&R) may designate emergency patients as 
eligible for emergency health care from MTFs in the United States 
pursuant to arrangements with local health authorities or in other 
appropriate circumstances. Such care shall be on a reimbursable basis, 
unless waived by the USD(P&R) or the Secretaries of the Military 
Departments when they are the approving authority.
    (i) Research Subject Volunteers. Research subjects are eligible for 
health care services from MTFs to the extent DoD Components are required 
by DoD Directive 3216.02 \8\ to establish procedures to protect subjects 
from medical expenses that are a direct result of participation in the 
research. Such care is on a non-reimbursable basis and limited to 
research injuries (unless the volunteer is otherwise an eligible health 
care beneficiary). Care is authorized during the pendency of the 
volunteer's involvement in the research, and may be extended further 
upon the approval of the USD(P&R).
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    \8\ Copies available on the Internet at http://www.dtic.mil/ whs/
directives/corres/ pdf/321602p.pdf.
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    (j) Continuity of Care Extensions of Eligibility. The Secretaries of 
the Military Departments and the USD(P&R) may establish temporary 
eligibility on a space-available basis for former members and former 
dependents of members of the seven Uniformed Services for a limited 
period of time, not to exceed 6 months, or in the case of pregnancy the 
completion of the pregnancy, after statutory eligibility expires when 
appropriate to allow completion or appropriate transition of a course of 
treatment begun prior to such expiration. In the case of a pregnancy 
covered by this paragraph, the designation of eligibility may include 
initial health care for the newborn infant. Care under this paragraph is 
authorized on a non-reimbursable basis for the former member or former 
dependent of member. Care under this paragraph for the newborn of those 
former members or former dependents is authorized but on a full 
reimbursable basis unless the Secretary of the Military Department elect 
to use Secretarial Designee status for the newborn.
    (k) Members of the Armed Forces. The Secretaries of the Military 
Departments and the USD(P&R) may establish eligibility not specifically 
provided by statute for critical mission-related health care services 
for designated members of the Armed Forces, such as Reserve Component 
members not in a present duty status. This authority includes payment 
for health care services in private facilities to the extent authorized 
by 10 U.S.C. 1074(c). Care under this paragraph is non-reimbursable.
    (l) Certain Senior Officials of the U.S. Government. The officials 
and others listed in Sec.  108.5 of this part are designated as eligible 
for space-available inpatient and outpatient health care services from 
the Military Health System on a reimbursable basis.
    (m) Nonmedical Attendants. The Secretaries of the Military 
Departments and the USD(P&R) may designate as eligible for space 
available MTF care persons designated as nonmedical attendants as 
defined by 37 U.S.C. 411k(b). Costs of medical care rendered are 
reimbursable unless reimbursement is waived by the Secretary of the 
Military Department concerned or USD(P&R). This authority is limited to 
health care needs arising while designated as a nonmedical attendant.
    (n) Patient Movement. Provisions of this Instruction concerning 
inpatient care shall also apply to requests for patient movement through 
the medical evacuation system under DoD Instruction 6000.11.\9\ 
Aeromedical evacuation transportation assets are reserved for those 
individuals designated as Secretarial Designees who need transportation 
to attain necessary health care.
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    \9\ Copies available on the Internet at http://www.dtic.mil/ whs/
directives/corres/ pdf/600011p.pdf.
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    (o) Other Individuals Entitled to DoD Identification (ID) Card. 
Other individuals entitled to a DoD ID card under DoD Instruction 
1000.13 are eligible for space-available MTF health care to the extent 
provided in DoD Instruction 1000.13.
    (p) Reciprocity Among Military Departments. Subject to the 
capabilities of the

[[Page 465]]

professional staff, the availability of space and facilities, and any 
other limitation imposed by the approving authority, all Services will 
provide medical treatment to individuals who have been granted 
Secretarial designee status by any of the Secretaries of the Military 
Departments. Each agreement must identify the specific MTF or 
geographical region in which medical care is requested, requiring close 
coordination among service program managers.



Sec.  108.5  Eligible senior officials of the U.S. government.

    (a) The following individuals are Secretarial Designees for space-
available care in MTFs on a reimbursable basis, unless specified 
otherwise by a Service Secretary:
    (1) The President and Vice President, and their spouses and minor 
children.
    (2) Members of Congress.
    (3) Members of the Cabinet.
    (4) Officials of the Department of Defense appointed by the 
President and confirmed by the Senate.
    (5) Article III Federal Judges. (Article III courts are: The Supreme 
Court of the United States, U.S. Courts of Appeal, U.S. District Courts, 
U.S. Court of International Trade, United States Foreign Intelligence 
Surveillance Court, United States Foreign Intelligence Surveillance 
Court of Review.)
    (6) Judges of the U.S. Court of Appeals for the Armed Forces.
    (7) Assistants to the President.
    (8) Director of the White House Military Office.
    (9) Former Presidents of the United States and their spouses, 
widows, and minor children.
    (b) [Reserved]



Sec.  108.6  Responsibilities.

    (a) The USD(P&R) shall:
    (1) Evaluate requests for and where appropriate, grant exceptions to 
policy established by this part and DoD Directive 5124.02,\10\ including 
waiver of reimbursement, to the extent allowed by law.
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    \10\ Copies available on the Internet at http://www.dtic.mil/ whs/
directives/corres/ pdf/512402p.pdf.
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    (2) Following approval of the USD(P) and in coordination with USD(P) 
and the GC, DoD, and in accordance with DoD Directive 5530.3,\11\ begin 
negotiations, negotiate, and have the authority to sign RHCAs.
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    \11\ Copies available on the Internet at http://www.dtic.mil/ whs/
directives/corres/ pdf/553003p.pdf.
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    (b) The USD(P) shall evaluate requests and determine DoD mission 
interest for Secretarial Designee Status and RHCAs to identify those 
agreements that would be in the best interest of the Department of 
Defense and approve negotiations of RHCAs by the USD(P&R).
    (c) The USD(C) shall in coordination with USD(P&R), establish 
appropriate reimbursement rates, including appropriate interagency rates 
and rates applicable to students in International Military Education and 
Training programs.
    (d) The Under Secretary of Defense for Acquisition, Technology, and 
Logistics shall evaluate requests for Exception to the Transportation 
Policy. The authority to grant such a exception is by USD(P&R) or the 
Secretary of the Military Department concerned.
    (e) The Secretaries of the Military Departments shall:
    (1) Issue, revise or modify as appropriate, regulations to comply 
with this part.
    (2) Appoint a Military Department representative who will administer 
the Secretarial Designee Program within the Military Department and 
coordinate with other DoD Components in its effective operation.
    (3) Where and when appropriate, the Military Department concerned 
shall coordinate with U.S. Transportation Command/Global Patient 
Movement Requirements Center.
    (4) Identify Secretarial Designees treated at MTFs.
    (5) Provide an annual consolidated list reflecting the number of 
Secretarial Designees within their departments, reasons for such 
designation, location where designee is receiving treatment, the costs 
and sources of funding, nature and duration of treatment and expiration 
date of designee status to USD(P&R) and USD(C). The annual report is due 
30 days after the

[[Page 466]]

start of the fiscal year reflecting the prior fiscal year's information.
    (i) In cases where the USD(P&R) designates an individual as a 
Secretarial Designee, the Military Department concerned shall include 
this individual on any lists provided to USD(P&R) and USD(C) for 
reporting purposes.
    (ii) Annually consolidate Secretarial Designee patient costs and 
forward those data to USD(P&R) and OSD(C), along with a report of 
collection for reimbursable costs.
    (f) The Commanders of the Geographic Combatant Commands (GCCs) 
shall:
    (1) Refer requests to waive reimbursement through the Chairman of 
the Joint Chiefs of Staff to the USD(P&R).
    (2) Refer requests for Secretarial Designee status for medical care 
in the United States through the Chairman of the Joint Chiefs of Staff 
to USD(P&R).
    (3) Through the Chairman of the Joint Chiefs of Staff, provide 
written annual reports to the USD(P&R) and USD(C) reflecting the number 
of individuals designated as Secretarial Designees within their 
geographic area of responsibility, the reasons for such designation, the 
expected duration of such designation, the costs and sources of funding 
authorizing the support of such designee status for each designee.
    (4) Identify Secretarial Designees treated at MTFs within their 
geographic area of responsibility.
    (5) Provide for an accounting and collection system for 
reimbursement of medical costs within their geographic area of 
responsibility.
    (g) The Commander, United States Transportation Command shall:
    (1) Coordinate patient movement with all concerned Military 
Departments.
    (2) Upon request of the Military Department concerned or Commanders 
of the GCCs, determine availability of DoD transportation assets, or 
when cost effective, coordinate with civilian ambulance authorities, to 
effect transportation of Secretarial Designee as appropriate.
    (3) Ensure the Global Patient Movement Requirements Center, as the 
regulating agency, will consistently serve as the single point of 
contact for patient movement for Secretarial Designee patients using DoD 
assets upon request.
    (4) Annually consolidate Secretarial Designee patient listing who 
utilized the DoD patient movement system and forward to USD(P&R) and 
USD(C).



PART 111_TRANSITIONAL COMPENSATION FOR ABUSED DEPENDENTS-
-Table of Contents



Sec.
111.1 Purpose.
111.2 Applicability.
111.3 Definitions.
111.4 Policy.
111.5 Responsibilities.
111.6 Procedures.

    Authority: 10 U.S.C. 1059.

    Source: 84 FR 49459, Sept. 20, 2019, unless otherwise noted.



Sec.  111.1  Purpose.

    This part establishes policy, assigns responsibilities, and 
prescribes procedures for the payment of monthly Transitional 
Compensation (TC) to dependents of Service members separated for 
dependent abuse.



Sec.  111.2  Applicability.

    This part applies to the Office of the Secretary of Defense, the 
Military Departments, the Office of the Chairman of the Joint Chiefs of 
Staff and the Joint Staff, the Combatant Commands, the Office of the 
Inspector General of the Department of Defense (DoD), the Defense 
Agencies, the DoD Field Activities, and all other organizational 
entities in the DoD.



Sec.  111.3  Definitions.

    Unless otherwise noted, these terms and their definitions are for 
the purposes of this part.
    Dependent abuse offense. Conduct by an individual while a Military 
Service member on active duty for a period of more than 30 days that 
involves abuse of a then-current spouse or a dependent child of the 
Service member and that is a criminal offense under the Uniform Code of 
Military Justice or another criminal code applicable to the jurisdiction 
where the act of abuse is committed. The term ``involves abuse of the 
then-current spouse or a dependent

[[Page 467]]

child'' means that the criminal offense is against the person of that 
spouse or a dependent child. Crimes that may qualify as dependent-abuse 
offenses include sexual assault, rape, sodomy, assault, battery, murder, 
and manslaughter. (This is not an exhaustive or exclusive listing of 
dependent-abuse offenses, but is provided for illustrative purposes 
only. The facts and circumstances of a particular case should always be 
interpreted in a manner most favorable to the spouse or a dependent 
child of the member when determining whether the conduct constitutes a 
``dependent abuse offense.'')
    Dependent child. As defined in 10 U.S.C. 1059.
    Exchange stores. The Army and Air Force Exchange Service, the Navy 
Exchange, the Marine Corps Exchange, and the Coast Guard Exchange.
    Parent. The natural father or mother, or father or mother through 
adoption. For purposes of TC, parent does not include persons who have 
stood ``in loco parentis'' to a dependent child.
    Secretary concerned. Includes the Secretary of the cognizant 
Military Department and the Secretary of the Department of Homeland 
Security, when applicable.
    Service member. Includes former Service members, where appropriate.
    Spouse. An individual married to a Service member, but does not 
include a domestic partner.



Sec.  111.4  Policy.

    The DoD will make monthly TC payments and provide other benefits 
described in this part for spouses or dependents of Service members who 
meet the eligibility requirements of 10 U.S.C. 1059 and this part.



Sec.  111.5  Responsibilities.

    (a) The Under Secretary of Defense for Personnel and Readiness 
(USD(P&R)):
    (1) Establishes and prescribes procedures for the payment of TC to 
dependents of Service members separated for dependent abuse.
    (2) Oversees compliance with this part.
    (b) The Secretaries of the Military Departments and the Secretary of 
the Department of Homeland Security, when applicable:
    (1) Appoint representatives to coordinate requests for TC, approve 
requests (except exceptional eligibility requests), and forward those 
requests for payment in accordance with Chapter 60, Volume 7B of DoD 
7000.14-R, ``Department of Defense Financial Management Regulations 
(FMRs): Military Pay Policy--Retired Pay'' (available at http://
comptroller.defense.gov/ Portals/45/documents/fmr/ Volume_07b.pdf).
    (2) Review and approve or disapprove requests for TC benefits in 
accordance with the exceptional eligibility authority in accordance with 
10 U.S.C. 1059. This responsibility may not be delegated.
    (3) Ensure dependents who are victims of a dependent-abuse offense 
are aware of their eligibility to apply for TC.
    (4) Establish departmental guidance to implement this part.



Sec.  111.6  Procedures.

    (a) Recipients of payment. The Secretary concerned makes TC payments 
to Service member dependents, former dependents, or court-appointed 
guardians as described by 10 U.S.C. 1059. If a recipient is incapable of 
handling his or her own affairs, payments may be made only to a court-
appointed guardian.
    (b) Payments. (1) Payments begin in accordance with 10 U.S.C. 1059.
    (2) Payments must continue for at least 12 months and no more than 
36 months, as prescribed by the Secretary concerned. When the unserved 
portion of the Service member's obligated active duty service, as of the 
starting date of payment, is greater than 12 months and less than or 
equal to 36 months, payments continue for no less than the unserved 
portion.
    (i) For enlisted Service members, obligated active duty service is 
the time remaining on their terms of enlistment.
    (ii) For officers, obligated active duty service is indefinite 
unless an officer has a date of separation established. In that case, it 
is the time remaining until the date of separation.
    (3) The amount of payment will be in accordance with 10 U.S.C. 1059. 
Partial

[[Page 468]]

month entitlements are pro-rated. If a recipient dies, arrears of 
payments are not paid.
    (4) Payments will be stopped in accordance with 10 U.S.C. 1059.
    (i) Payments will end on the first day of the first month following 
the month in which the Secretary concerned notifies the recipient of 
such transitional compensation in writing that the payment of TC will 
stop.
    (ii) Recipients are not required to repay amounts of TC received 
before the effective date payment is stopped, in accordance with 
paragraph (b)(4)(i) of this section; however, TC may be recouped for 
erroneous payments or payments made based on false information provided.
    (c) Forfeiture provisions. In addition to 10 U.S.C. 1059, the 
following requirements apply:
    (1) The former spouse receiving TC must notify the Defense Finance 
and Accounting Services (DFAS) within 30 days of remarriage or if the 
spouse or former spouse begins residing in the same household as the 
spouse or former spouse.
    (2) If a Service member's dependent child is not living in the same 
household as the spouse or former spouse who forfeits TC, payments are 
made to each dependent child or his or her court-appointed guardian.
    (3) In order to continue benefits, the spouse or former spouse must 
annually certify to DFAS that he or she is not remarried and is not 
cohabitating with the Service member separated for the abuse. DFAS will 
provide a form for recertification of benefits.
    (d) Coordination of benefits. A spouse or former spouse may not 
concurrently receive TC payments and retired pay payments pursuant to 10 
U.S.C. 1059 and 1408(h), respectively. If a spouse or former spouse is 
eligible for both TC payments and retired pay payments, the spouse or 
former spouse chooses which of the two payments to receive. If the 
spouse or former spouse receives TC payments and later receives payments 
from a Service member's retired pay, any TC received concurrently with 
retired pay must be recouped.
    (e) Source of funds. TC must be paid from operations and maintenance 
funds of the Department of the Service member.
    (f) Application of procedures. An individual must initiate a request 
for TC through a Service-appointed representative. The Service-appointed 
representative:
    (1) Collects data and validates the claim using DD Form 2698 
(available at http://www.esd.whs.mil/ Portals/54/Documents/DD/ forms/dd/
dd2698.pdf).
    (2) Approves payment and forwards the application to DFAS unless 
otherwise submitted by the Secretary concerned in accordance with 10 
U.S.C. 1059.
    (g) Commissary and exchange benefits. (1) A recipient of TC is 
entitled to use commissary and exchange stores while receiving payments.
    (2) If a recipient entitled to use commissary and exchange stores is 
also entitled to use commissary and exchange stores under another 
provision of law, the entitlement is determined under the other 
provision of law and not paragraph (g)(1).
    (h) Medical benefits. (1) The Secretary concerned will determine 
appropriate medical and dental care eligibility for TC recipients and 
affected dependents. At a minimum, an abused dependent who is receiving 
TC in accordance with paragraph (a) of this section may receive medical 
and dental care, including mental health services, in facilities of the 
Uniformed Services or through the TRICARE program as outlined in 10 
U.S.C. 1076, 1077, and 1079.
    (2) Dental care may be provided on a space-available basis in 
facilities of the Military Services.
    (3) Eligible dependents of a Service member who is retirement 
eligible, but who loses eligibility for retirement pay because of 
dependent-abuse misconduct, may receive medical and dental care in 
accordance with 10 U.S.C. 1408(h).



PART 113_INDEBTEDNESS PROCEDURES OF MILITARY PERSONNEL--Table of Contents



Sec.
113.1 Purpose.
113.2 Applicability.
113.3 Definitions.
113.4 Policy.
113.5 Responsibilities.
113.6 Procedures.

[[Page 469]]


Appendix A to Part 113--Certificate of Compliance
Appendix B to Part 113--Standards of Fairness
Appendix C to Part 113--Sample DD Form 2653, ``Involuntary Allotment 
          Application''
Appendix D to Part 113--Sample DD Form 2654, ``Involuntary Allotment 
          Notice and Processing''

    Authority: 5 U.S.C. 5520a(k) and 10 U.S.C. 113(d).

    Source: 60 FR 1722, Jan. 5, 1995, unless otherwise noted.



Sec.  113.1  Purpose.

    This part implements policy, assigns responsibilities, and 
prescribes procedures under 32 CFR part 112 governing delinquent 
indebtedness of members of the Military Services.



Sec.  113.2  Applicability.

    This part applies to the Office of the Secretary of Defense, the 
Military Departments (including the Coast Guard when it is not operating 
as a Military Service in the Navy by agreement with the Department of 
Transportation), the Chairman of the Joint Chiefs of Staff, the Unified 
Combatant Commands, the Inspector General of the Department of Defense, 
the Defense Agencies, and the DoD Field Activities (hereafter referred 
to collectively as ``the DoD Components''). The term ``Military 
Services,'' as used herein, refers to the Army, the Navy, the Air Force, 
the Marine Corps, and the Coast Guard.



Sec.  113.3  Definitions.

    (a) Appearance. The presence and participation of a member of the 
Military Services, or an attorney of the member's choosing, throughout 
the judicial proceeding from which the judgment was issued that is the 
basis for a request for enforcement through involuntary allotment.
    (b) Applicant. The original judgment holder, a successor in 
interest, or attorney or agent thereof who requests an involuntary 
allotment from a member of the Military Services pursuant to DoD 
Directive 1344.9. \1\
---------------------------------------------------------------------------

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

    (c) Pay subject to involuntary allotment. For purposes of complying 
with 32 CFR part 112 and 5 U.S.C. 5520a(k), pay subject to involuntary 
allotment shall be determined by:
    (1) Including:
    (i) Basic pay but excluding reduction for education for education 
benefits under section 38 U.S.C. 1411 (``New G.I. Bill'').
    (ii) Special pay (including enlistment and reenlistment bonuses).
    (iii) Incentive pay.
    (iv) Accrued leave payments (basic pay portion only).
    (v) Readjustment pay.
    (vi) Severance pay (including disability severance pay).
    (vii) Lump-sum Reserve bonus.
    (viii) Inactive duty training pay.
    (2) Excluding:
    (i) Retired pay (including) disability retired pay).
    (ii) Retainer pay.
    (iii) Separation pay, Voluntary Separation Incentive (VSI), and 
Special Separation Benefit (SSB).
    (iv) Allowances paid under titles 10 and 37 of the United States 
Code (e.g., Chapter 53 of title 10 and Chapter 7 of title 37, 
respectively) and other reimbursements for expenses incurred in 
connection with duty in the Military Service or allowances in lieu 
thereof.
    (v) Payments not specifically enumerated in Sec.  113.3(c)(1).
    (3) After including the items in Sec.  113.3(c)(1), subtracting the 
following pay items to compute the final earnings value of the pay 
subject to involuntary allotment:
    (i) Federal and State employment and income tax withholding (amount 
limited only to that which is necessary to fulfill member's tax 
liability).
    (ii) FICA tax.
    (iii) Amounts mandatorily withheld for the United States Soldiers' 
and Airmen's Home.
    (iv) Deductions for the Servicemen's Group Life Insurance coverage.
    (v) Retired Serviceman's Family Protection Plan.
    (vi) Indebtedness to the United States.
    (vii) Fines and forfeitures ordered by a court-martial or a 
commanding officer.

[[Page 470]]

    (viii) Amounts otherwise required by law to be deducted from a 
member's pay (except payments under 42 U.S.C. 659, 661, 662, and 665).
    (d) Preponderence of the evidence. A greater weight of evidence that 
is more credible and convincing to the mind. That which best accords 
with reason and probability. (See Black's Law Dictionary \2\)
---------------------------------------------------------------------------

    \2\ Black's Law Dictionary, Fourth Edition, West Publishing Company, 
Saint Paul, Minnesota (1952).
---------------------------------------------------------------------------

    (e) Proper and Timely Manner. A manner that under the circumstances 
does not reflect discredit on the Military Service.



Sec.  113.4  Policy.

    (a) It is DoD policy under 32 CFR part 112 that procedures be 
established for the processing of debt complaints against members of the 
Military Services and involuntary allotments from the pay of members of 
the Military Services.
    (b) An involuntary allotment shall not exceed the lesser of 25 
percent of a member's pay subject to involuntary allotment or the 
maximum percentage of pay subject to garnishment proceedings under the 
applicable State law.
    (c) The amount of an involuntary allotment under 32 CFR part 112 and 
this part when combined with deductions as a result of garnishments or 
statutory allotments for spousal support and child support under 42 
U.S.C. 659, 661, 662, or 665, may not exceed the lesser of 25 percent of 
a member's pay subject to involuntary allotment or the maximum 
percentage of pay subject to garnishment proceedings under applicable 
State law. In any case in which the maximum percentage would be 
exceeded, garnishments and involuntary allotments for spousal and child 
support shall take precedence over involuntary allotments authorized 
under 32 CFR part 112 and this part. Involuntary allotments established 
under 32 CFR part 112 and this part shall be reduced or stopped as 
necessary to avoid exceeding the maximum percentage allowed.
    (d) The Truth in Lending Act (15 U.S.C. 1601 note, 1601-1614, 1631-
1646, 1661-1666j, and 1667-1667e) prescribes the general disclosure 
requirements that must be met by those offering or extending consumer 
credit and Federal Reserve Board Regulation Z (12 CFR 226) prescribes 
the specific disclosure requirements for both open-end and installment 
credit transactions. In place of Federal Government requirements, State 
regulations apply to credit transactions when the Federal Reserve Board 
has determined that the State regulations impose substantially similar 
requirements and provide adequate enforcement measures. Commanding 
officers, with the assistance of judge advocates, should check 
regulations of the Federal Reserve Board to determine whether Federal or 
State laws and regulations govern.



Sec.  113.5  Responsibilities.

    (a) The Under Secretary of Defense for Personnel and Readiness shall 
monitor compliance with this part.
    (b) The Under Secretary of Defense (Comptroller) shall ensure 
Defense Finance and Accounting Service (DFAS) implementation of this 
part.
    (c) The Heads of the DoD Components shall ensure compliance with 
this part.



Sec.  113.6  Procedures.

    (a) The following procedures apply to the processing of debt 
complaints against members of the Military Services.
    (1) It is incumbent on those submitting indebtedness complaints to 
show that they have met the disclosure requirements of the Truth in 
Lending Act (15 U.S.C. 1601 note, 1601-1614, 1631-1646, 1661-1666j, and 
1667-1667e) and Federal Reserve Board Regulation Z (12 CFR 226), and 
that they complied with the Standards of Fairness (appendix B to this 
part).
    (2) Creditors subject to Federal Reserve Board Regulation Z (12 CFR 
226), and assignees claiming thereunder, shall submit with their debt 
complaint an executed copy of the Certificate of Compliance (appendix A 
to this part), and a true copy of the general and specific disclosures 
provided the member of the Military Service as required by the Truth in 
Lending Act (15 U.S.C. 1601 note, 1601-1614, 1631-1646, 1661-1666j, and 
1667-1667e). Debt complaints that request assistance but do not meet

[[Page 471]]

these requirements will be returned without action to the claimant.
    (3) A creditor not subject to Federal Reserve Board Regulation Z (12 
CFR 226), such as a public utility company, shall submit with the 
request a certificate that no interest, finance charge, or other fee is 
in excess of that permitted by the law of the State in which the 
obligation was incurred.
    (4) A foreign-owned company having debt complaints shall submit with 
its request a true copy of the terms of the debt (English translation) 
and shall certify that it has subscribed to the Standards of Fairness 
(appendix B to this part).
    (5) Debt complaints that meet the requirements of this part shall be 
processed by Department of Defense Components. ``Processed'' means that 
Heads of the Department of Defense Components, or designees, shall:
    (i) Review all available facts surrounding the transaction forming 
the basis of the complaint, including the member's legal rights and 
obligations, and any defenses or counterclaims the member may have.
    (ii) Advise the member concerned that:
    (A) Just financial obligations are expected to be paid in a proper 
and timely manner, and what the member should do to comply with that 
policy;
    (B) Financial and legal counseling services are available under DoD 
Directive 1344.7 \3\ in resolving indebtedness; and
---------------------------------------------------------------------------

    \3\ See footnote 1 to Sec.  113.3(b).
---------------------------------------------------------------------------

    (C) That a failure to pay a just debt may result in the creditor 
obtaining a judgment from a court that could form the basis for 
collection of pay from the member pursuant to an involuntary allotment.
    (iii) If a member acknowledges a debt as a result of creditor 
contact with a DoD Component, advise the member that assistance and 
counseling may be available from the on-base military banking office, 
the credit union serving the military field of membership, or other 
available military community service organizations.
    (iv) Direct the appropriate commander to advise the claimant that:
    (A) Those aspects of DoD policy prescribed in 32 CFR part 112.4, are 
pertinent to the particular claim in question; and
    (B) The member concerned has been advised of his or her obligations 
on the claim.
    (v) The commander's response to the claimant shall not undertake to 
arbitrate any disputed debt, or admit or deny the validity of the claim. 
Under no circumstances shall the response indicate whether any action 
has been taken, or will be taken, against the member as a result of the 
complaint.
    (b) The following procedures apply to the processing of involuntary 
allotments from the pay of members of the Military Services.
    (1) Involuntary allotment application. (i) Regardless of the Service 
Affiliation of the member involved, with the exception of members of the 
Coast Guard an application to establish an involuntary allotment from 
the pay of a member of the Military Services shall be made by sending a 
completed DD Form 2653, ``Involuntary Allotment Application'' (appendix 
C to this part) to the appropriate address listed below. Applications 
sent to any other address shall be returned without action to the 
applicant.

(For Army, Navy, Air Force, or Marine Corps)

Defense Finance and Accounting Service, Cleveland Center, Code L, P.O. 
Box 998002, Cleveland, OH 44199-8002

(For Coast Guard only)

Coast Guard Pay and Personnel Center (LGL), 444 S.E. Quincy Street, 
Topeka, KS 66683-3591

    (ii) Each application must include a copy of the final judgment 
certified by the clerk of court and such other documents as may be 
required by Sec.  113.6(b)(1)(iv).
    (iii) A garnishment summons or order is insufficient to satisfy the 
final judgment requirement of Sec.  113.6(b)(1)(ii) and is not required 
to apply for an involuntary allotment under this part.
    (iv) Involuntary allotment applications must contain the following 
information, certifications, and acknowledgment:
    (A) The full name, social security number, and branch of Service of 
the

[[Page 472]]

military member against whose pay an involuntary allotment is sought. 
Although not required, inclusion of the member's current duty station 
and duty address on the application form will facilitate processing of 
the application.
    (B) The applicant's full name and address. If the applicant is not a 
natural person, the application must be signed by an individual with the 
authority to act on behalf of such entity. If the allotment is to be in 
favor of a person other than the original judgment holder, proof of the 
right to succeed to the interest of the original judgment holder is 
required and must be attached to the application.
    (C) The dollar amount of the judgment. Additionally, if the judgment 
awarded interest, the total dollar amount of the interest on the 
judgment accrued to the date of application.
    (D) A certification that the judgment has not been amended, 
superseded, set aside, or satisfied; or, if the judgment has been 
satisfied in part, the extent to which the judgment remains unsatisfied.
    (E) A certification that the judgment was issued while the member 
was not on active duty (in appropriate cases). If the judgment was 
issued while the member was on active duty, a certification that the 
member was present or represented by an attorney of the member's 
choosing in the proceedings, or if the member was not present or 
represented by an attorney of the member's choosing, that the judgment 
complies with the Soldiers' and Sailors' Civil Relief Act of 1940, as 
amended (50 U.S.C. appendix sections 501-591).
    (F) A certification that the member's pay could be garnished under 
applicable State law and section 5520a(k) of the United States Code, if 
the member were a civilian employee.
    (G) A certification that, to the knowledge of the applicant, the 
debt has not been discharged in bankruptcy, nor has the member filed for 
protection from creditors under the bankruptcy laws of the United 
States.
    (H) A certification that if the judgment is satisfied prior to the 
collection of the total amount through the involuntary allotment 
process, the applicant will provide prompt notice that the involuntary 
allotment must be discontinued.
    (I) A certification that if the member overpays the amount owed on 
the judgment, the applicant shall refund the amount of overpayment to 
the member within 30 days of discovery or notice of the overpayment, 
whichever, is earlier, and that if the applicant fails to repay the 
member, the applicant understands he or she may be denied the right to 
collect by involuntary allotment on other debt reduced to judgments.
    (J) Acknowledgment that as a condition of application, the applicant 
agrees that neither the United States, nor any disbursing official or 
Federal employee whose duties include processing involuntary allotment 
applications and payments, shall be liable for any payment or failure to 
make payment from moneys due or payable by the United States to any 
person pursuant to any application made in accordance herewith.
    (v) The original and three copies of the application and supporting 
documents must be submitted by the applicant to DFAS.
    (vi) A complete ``application package'' (the DD Form 2653, 
supporting documentation, and three copies of the application and 
supporting documents), is required for processing of any request to 
establish an involuntary allotment pursuant to this part and 32 CFR part 
112.
    (vii) Applications that do not conform to the requirements of this 
part shall not be processed. If an application is ineligible for 
processing, the application package shall be returned to the applicant 
with an explanation of the deficiency. In cases involving repeated false 
certifications by an applicant, the designated DFAS official may refuse 
to accept or process additional applications by that applicant for such 
period of time as the official deems appropriate to deter against such 
violations in the future.
    (2) Processing of involuntary allotment applications. (i) Promptly 
upon receipt of DD Form 2653 (Appendix C to this part), the designated 
DFAS official shall review the ``application package'' to ensure 
compliance with the requirements of this part. If the application

[[Page 473]]

package is complete, the DFAS official shall:
    (A) Complete Section I of DD Form 2654, ``Involuntary Allotment 
Notice and Processing'' (Appendix D to this part), by inserting the 
name, social security number, rank, and branch of service of the 
military member against whom an application for involuntary allotment is 
being processed. Additionally, the DFAS official shall provide the due 
date for receipt of a response at DFAS. The due date shall be 90 days 
from the date DFAS mails the DD Form 2654 to the commander and member 
concerned as provided for in Sec.  113.6(b)(2)(i)(B).
    (B) Mail one copy of the application package to the member and two 
copies of the application package, along with DD Form 2654, to the 
commander of the military member or other official as designated by the 
Military Service concerned during times of war, national emergency, 
deployment, or other similar circumstances, who may act for the 
commander, provided the Military Service concerned has provided DFAS 
with the name or position of the official and the appropriate address 
(hereinafter, the meaning of the term ``commander'' includes such other 
official).
    (C) Within 60 days of mailing the copies of the application package 
and DD Form 2654, DFAS shall provide notice to the member and the 
member's commander that automatic processing of the involuntary 
allotment application shall occur if a response (including notice of an 
approved extension as authorized in Sec.  113.6(b)(2)(iii)(B) and (F), 
is not received by the due date specified in Section I of DD Form 2654. 
In the absence of a response, DFAS may automatically process the 
involuntary allotment application on the fifteenth calendar day after 
the date a response was due. When DFAS has received notice of an 
extension, automatice processing shall not begin until the fifteenth 
calendar day after the approved extension date.
    (D) Retain the original of the application package and DD Form 2654.
    (ii) Upon receipt of an application, the commander shall determine 
if the member identified in Section I of DD Form 2654 is assigned or 
attached to the commander's unit and available to respond to the 
involuntary allotment application. If the member is not assigned or 
attached, or not available to respond (e.g., retired, in a prisoner of 
war status, or in a missing in action status), the commander will 
promptly complete Section II of DD Form 2654 and attach appropriate 
documentation supporting the determination. The commander will then mail 
the application package and DD Form 2654 to DFAS. Section II shall also 
be used by the commander to notify DFAS of extensions beyond the due 
date for a response contained in Section I of DD Form 2654. When such 
extensions are authorized, the commander will complete Section II, make 
a copy of Sections I and II, and promptly mail the copy to DFAS.
    (iii) Within 5 days of receipt of an application package and DD Form 
2654 from the designated DFAS official, the commander shall notify the 
member of the receipt of the application, provide the member a copy of 
the entire application package, and counsel the member using and 
completing Section III of DD Form 2654 about the following:
    (A) That an application for the establishment of an involuntary 
allotment for the lesser of 25 percent of the member's pay subject to 
involuntary allotment or the maximum percentage of pay subject to 
garnishment proceedings under the applicable State law has been 
received.
    (B) That the member has 15 calendar days from the date of receipt of 
the commander's notice to complete Section IV of DD Form 2654. That for 
good cause shown, the commander may grant an extension of reasonable 
time (normally not exceeding 30 calendar days) to submit a response. 
That during times of deployment, war, national emergency, assignment 
outside the United States, hospitalization, or other similar situations 
that prevent the member from obtaining necessary evidence or from 
responding in a timely manner, extensions exceeding 30 calendar days may 
be granted. That if the member fails to respond within the time allowed, 
the commander will note the member's failure to respond in Section V of 
DD Form 2654 and send the form to DFAS for appropriate action.

[[Page 474]]

    (C) That the member's response will either consent to the 
involuntary allotment or contest it.
    (D) That the member may contest the application for any one of the 
following reasons:
    (1) There has not been compliance with the procedural requirements 
of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended (50 
U.S.C. appendix sections 501-591) during the judicial proceeding upon 
which the involuntary allotment application is sought.
    (2) ``Exigencies of military duty'' (as defined in 32 CFR part 
112.3(d)) caused the ``absence'' of the member from appearance in a 
judicial proceeding forming the basis for the judgment upon which the 
application is sought.
    (3) Information in the application is patently false or erroneous in 
material part.
    (4) The judgment has been fully satisfied, superseded, or set aside.
    (5) The judgment has been materially amended, or partially 
satisfied. When asserting this defense, the member shall include 
evidence of the amount of the judgment that has been satisfied.
    (6) There is a legal impediment to the establishment of the 
involuntary allotment (for example, the judgment debt has been 
discharged in bankruptcy, the judgment debtor has filed for protection 
from the creditors under the bankruptcy laws of the United States, the 
applicant is not the judgment holder nor a proper successor in interest 
to that holder, or the applicant has been enjoined by a Federal or state 
court from enforcing the judgment debt).
    (7) Or other appropriate reasons that must be clearly specified and 
explained by the member.
    (E) That, if the member contests the involuntary allotment, the 
member shall provide evidence (documentary or otherwise) in support 
thereof. Furthermore, that any evidence submitted by the member may be 
disclosed to the applicant for the involuntary allotment.
    (F) That the member may consult with a legal assistance attorney, if 
reasonably available, or a civilian attorney at no expense to the 
government. That if a legal assistance attorney is available, the member 
should immediately arrange for an appointment. That the member may 
request a reasonable delay from the commander to obtain legal assistance 
(in cases where an approved delay will cause DFAS to receive the 
member's response after the due date identified in Section I of DD Form 
2654, the commander must immediately notify the designated DFAS official 
of the delay, the date for an expected response, and the reason for the 
delay by completing Section II of DD Form 2654 and forwarding a copy of 
Sections I and II to DFAS). Additionally, that requests for extensions 
of time based on the need for legal assistance shall be denied to 
members who fail to exercise due diligence in seeking such assistance.
    (G) That if the member contests the involuntary allotment on the 
grounds that exigencies of military duty caused the absence of the 
member from the judicial proceeding at which the judgment was rendered, 
then the member's commander shall review and make the final 
determination on this contention, and notify the designated DFAS 
official of the commander's decision by completing Section V of DD Form 
2654 and forwarding the form to DFAS.
    (1) In determining whether exigencies of military duty caused the 
absence of the member, the commander at the level designated by the 
Service concerned shall consider the definition of ``exigencies of 
military duty'' (as defined in 32 CFR part 112.3(d)).
    (2) Additionally, consideration shall be given to whether the 
commander at the time determined the military duties in question to be 
of such paramount importance that they prevented making the member 
available to attend the judicial proceedings, or rendered the member 
unable to timely respond to process, motions, pleadings, or orders of 
the court.
    (H) That if the member contests the involuntary allotment on any 
basis other than exigencies of military duty, the application package 
and DD Form 2654 shall be returned to the commander who shall forward it 
to the designated DFAS official for appropriate action.
    (I) That if the member fails to respond to the commander within the 
time allowed under Sec.  113.6(b)(2)(iii)(B), the commander shall notify 
the designated DFAS official of the member's

[[Page 475]]

failure to respond by completing Section V of DD Form 2654, and 
forwarding the form to DFAS.
    (iv) After counseling the member in accordance with Sec.  
113.6(b)(2)(iii)(A)-(I), the commander shall:
    (A) Date and sign Section III of DD Form 2654.
    (B) Obtain the member's acknowledgment of counseling by having the 
member sign the appropriate space on Section III of DD Form 2654.
    (C) Determine if the member consents to the involuntary allotment or 
needs the time authorized under this part to review the application 
package and take appropriate action. If the member consents to the 
involuntary allotment, the commander shall direct the member to 
appropriately complete Section IV of DD Form 2654. The commander must 
then complete the appropriate item in Section V and promptly forward the 
completed DD Form 2654 to the designated DFAS official.
    (D) Complete the appropriate items in Section V of DD Form 2654 when 
the member fails to respond within the time authorized for a response, 
or asserts that exigencies of military duty caused the absence of the 
member from an appearance in the judicial proceeding upon which the 
Involuntary Allotment Application is sought.
    (1) In determining whether exigencies of military duty caused the 
absence of the member, the commander, at the level designated by the 
Service concerned, shall consider the definition of ``exigencies of 
military duty'' (as defined in 32 CFR part 112.3(d)), the evidence 
provided by the member, any other reasonably available evidence (e.g., a 
copy of the member's personnel record), and whether the commander at the 
time determined the military duties in question to be of such paramount 
importance that they prevented making the member available to attend the 
judicial proceedings, or rendered the member unable to timely respond to 
process, motions, pleadings, or orders of the court.
    (2) The evidentiary standard for a commander to determine whether 
existences of military duty caused the absence of the member from an 
appearance in the judicial proceeding upon which the Involuntary 
Allotment Application is sought is a ``preponderance of the evidence'' 
(as defined in Sec.  113.3(d) of this part).
    (3) If the commander has made a determination on exigencies of 
military duty, the commander must insert in Section V of DD Form 2654, 
the title and address of the appeal authority.
    (E) Promptly following the date the member's response is due to the 
commander as determined by Sec.  113.6(b)(2)(iii)(B), ensure that the DD 
Form 2654 is appropriately completed and mail the form, along with any 
response received from the member, to DFAS.
    (F) Provide the member a copy of the completed DD Form 2654 within 5 
days of mailing to the designated DFAS official.
    (v) Upon receipt of DD Form 2654 and any additional evidence 
submitted by the member, the designated DFAS official shall conduct a 
review of the entire application package, DD Form 2654, and any evidence 
submitted by the member, to determine whether the application for an 
involuntary allotment should be approved and established.
    (A) In those cases where the member's commander has completed 
Section V of DD Form 2654, and determined that exigencies of military 
duty caused the absence of the member from an appearance in a judicial 
proceeding upon which the involuntary allotment application is sought, 
the designated DFAS official shall deny the involuntary allotment 
application and provide the applicant written notice of the denial and 
the reason therefor. The designated DFAS official shall also advise the 
applicant that:
    (1) The responsibility for determining whether exigencies of 
military duty existed belonged to the member's commander and the 
Military Department concerned.
    (2) The commander's decision may be appealed within 60 days of the 
date DFAS mailed the notice of the decision to the applicant.
    (3) An Appeal must be submitted to the appeal authority at the 
address provided by DFAS (as found in Section V of the DD Form 2654) in 
their written notice of denial, and that an appeal submitted to an 
appeal authority and

[[Page 476]]

address different from the one provided by DFAS may be returned without 
action.
    (4) An appeal must be submitted in writing and contain sufficient 
evidence to overcome the presumption that the commander's exigency 
determination was correct.
    (5) The appellate authority shall decide an appeal within 30 days of 
its receipt and promptly notify the applicant in writing of the 
decision. The 30 day decision period may be extended during times of 
deployment, war, national emergency, or other similar situations.
    (6) If an appeal is successful, the applicant must submit a written 
request, along with a copy of the appellate authority's decision, to 
DFAS within 15 days of receipt of the appellate authority's decision.
    (B) Upon receiving written notice that an applicant has successfully 
appealed a commander's determination on exigencies of military duty that 
resulted in denial of an involuntary allotment application, DFAS shall 
review the application in accordance with Sec.  113.6(b)(2)(v)(C), and 
determine whether the involuntary allotment should be approved and 
initiated.
    (C) In all cases, other than as described in Sec.  
113.6(b)(2)(v)(A), the designated DFAS official shall deny an 
involuntary allotment application, and give written notice to the 
applicant of the reason(s) for denial, if the designated DFAS official 
determines that:
    (1) There has not been compliance with the procedural requirements 
of the Soldier's and Sailor's Civil Relief Act of 1940, as amended (50 
U.S.C. appendix sections 501-591) during the judicial proceeding upon 
which the involuntary allotment application is sought.
    (2) Information in the application is patently false or erroneous in 
material part.
    (3) The judgment has been fully satisfied, superseded, or set aside.
    (4) The judgment has been materially amended, or partially 
satisfied. In such a case, the request for involuntary allotment may be 
approved only to satisfy that portion of the judgment that remains in 
effect and unsatisfied; the remainder of the request shall be denied.
    (5) There is a legal impediment to the establishment of the 
involuntary allotment (for example, the judgment debt has been 
discharged in bankruptcy, the judgment debtor has filed for protection 
from the creditors under the bankruptcy laws of the United States, the 
applicant is not the judgment creditor nor a proper successor in 
interest to that creditor, or the applicant has been enjoined by a 
Federal or State court from enforcing the judgment debt).
    (6) The member's pay is already subject to one or more involuntary 
allotments or garnishments that equal the lesser of 25 percent of the 
member's pay subject to involuntary allotment or the maximum percentage 
of pay subject to garnishment proceedings under the applicable State 
law.
    (7) The applicant has abused the processing privilege (e.g., an 
applicant, having been notified of the requirements of this part, 
repeatedly refuses or fails to comply therewith).
    (8) Or other appropriate reasons that must be clearly explained to 
the applicant.
    (D) In all cases other than as described in Sec.  113.6(b)(2)(v) (A) 
and (C), the designated DFAS official shall approve the involuntary 
allotment application and establish an involuntary allotment against the 
pay subject to involuntary allotment of the member.
    (vi) The designated DFAS official shall, at any time after 
establishing an involuntary allotment, cancel or suspend such allotment 
and notify the applicant of that cancellation if the member concerned, 
or someone acting on his or her behalf, submits legally sufficient 
proof, by affidavit or otherwise, that the allotment should not continue 
because of the existence of the factors enumerated in Sec.  
113.6(b)(2)(v)(A) and (C)(1)-(8).
    (3) Payments. (i) Payment of an approved involuntary allotment under 
32 CFR part 112 and this part shall commence within 30 days after the 
designated DFAS official has approved the involuntary allotment.
    (ii) Payments under this part shall not be required more frequently 
than once each month, and the designated official shall not be required 
to vary normal pay and disbursement cycles.

[[Page 477]]

    (iii) If the designated DFAS official receives several applications 
on the same member of a Military Service, payments shall be satisfied on 
a first-come, first-served basis.
    (iv) Payments shall continue until the judgment is satisfied or 
until canceled or suspended.
    (A) DFAS shall collect the total judgment, including interest when 
awarded by the judgment. Within 30 days following collection of the 
amount of the judgment, including interest as annotated by the applicant 
in Section I of DD Form 2654, the applicant may submit a final statement 
of interest that accrued during the pay-off period. This final statement 
of interest request must be accompanied by a statement of account 
showing how the applicant computed the interest amount. DFAS will 
collect this post-application interest provided it is an amount owed 
pursuant to the judgment. DFAS shall not accept any further interest 
requests.
    (B) Interest or other costs associated with the debt forming the 
basis for the judgment, but not included as an amount awarded by the 
judgment, shall not be paid to applicants for involuntary allotments.
    (v) If the member is found not to be entitled to money due from or 
payable by the Military Services, the designated official shall return 
the application and advise the applicant that no money is due from or 
payable by the Military Service to the member. When it appears that pay 
subject to an involuntary allotment is exhausted temporarily or 
otherwise unavailable, the applicant shall be told why and for how long 
that money is unavailable, if known. Involuntary allotments shall be 
canceled on or before the date a member retires, is discharged, or is 
released from active duty. The designated DFAS official shall notify the 
applicant of the reason for cancellation.
    (vi) Upon receiving notice from an applicant that a judgment upon 
which an involuntary allotment is based has been satisfied, vacated, 
modified, or set aside, the designated DFAS official shall promptly 
adjust or discontinue the involuntary allotment.
    (vii) The Under Secretary of Defense (Comptroller) may, in DoD 
7000.14-R \4\ Volume 7, Part A, designate the priority to be given to 
involuntary allotments pursuant to 32 CFR part 112 and this part, among 
the deductions and collections taken from a member's pay, except that 
they may not give precedence over deductions required to arrive at a 
member's disposable pay for garnishments or involuntary allotments 
authorized by statute for alimony and child support payments. In the 
absence of a contrary designation by the Comptroller, all other lawful 
deductions (except voluntary allotments by the member) and collections 
shall take precedence over these involuntary allotments.
---------------------------------------------------------------------------

    \4\ See footnote 1 to Sec.  113.3(b).
---------------------------------------------------------------------------



         Sec. Appendix A to Part 113--Certificate of Compliance

    I certify that the (Name of Creditor) upon extending credit

to______________________________________________________________________

on______________________________________________________________________
(Date)

complied with the full disclosure requirements of the Truth-in-Lending 
Act and Regulation Z, and the Fair Debt Collection Practices Act (or the 
laws and regulations of State of __________), and that the attached 
statement is a true copy of the general and specific disclosures 
provided the obligor as required by law.
    I further certify that the Standards of Fairness set forth in DoD 
Directive 1344.9 \1\ have been applied to the consumer credit 
transaction to which this form refers. (If the unpaid balance has been 
adjusted as a consequence, the specific adjustments in the finance 
charge and the annual percentage rate should be set forth below.)
---------------------------------------------------------------------------

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

________________________________________________________________________
(Adjustments)

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

(Date of Certification)


________________________________________________________________________
(Signature of Creditor or Authorized Representative)

________________________________________________________________________
(Street)


[[Page 478]]


________________________________________________________________________
(City, State and Zip Code)



           Sec. Appendix B to Part 113--Standards of Fairness

    1. No finance charge contracted for, made, or received under any 
contract shall be in excess of the charge that could be made for such 
contract under the law of the place in which the contract is signed in 
the United States by the military member.
    a. In the event a contract is signed with a U.S. company in a 
foreign country, the lowest interest rate of the State or States in 
which the company is chartered or does business shall apply.
    b. However, interest rates and service charges applicable to 
overseas military banking facilities shall be as established by the 
Department of Defense.
    2. No contract or loan agreement shall provide for an attorney's fee 
in the event of default unless suit is filed, in which event the fee 
provided in the contract shall not exceed 20 percent of the obligation 
found due. No attorney fees shall be authorized if the attorney is a 
salaried employee of the holder.
    3. In loan transactions, defenses that the debtor may have against 
the original lender or its agent shall be good against any subsequent 
holder of the obligation. In credit transactions, defenses against the 
seller or its agent shall be good against any subsequent holder of the 
obligation, provided that the holder had actual knowledge of the defense 
or under conditions where reasonable inquiry would have apprised the 
holder of this fact.
    4. The military member shall have the right to remove any security 
for the obligation beyond State or national boundaries if the military 
member or family moves beyond such boundaries under military orders and 
notifies the creditor, in advance of the removal, of the new address 
where the security will be located. Removal of the security shall not 
accelerate payment of the obligation.
    5. No late charge shall be made in excess of 5 percent of the late 
payment, or $5.00, whichever is the lesser amount, or as provided by law 
or applicable regulatory agency determination. Only one late charge may 
be made for any tardy installment. Late charges shall not be levied 
where an allotment has been timely filed, but payment of the allotment 
has been delayed. Late charges by overseas banking facilities are a 
matter of contract with the Department of Defense.
    6. The obligation may be paid in full at any time or through 
accelerated payments of any amount. There shall be no penalty for 
prepayment. In the event of prepayment, that portion of the finance 
charges that has inured to the benefit of the seller or creditor shall 
be prorated on the basis of the charges that would have been ratably 
payable had finance charges been calculated and payable as equal 
periodic payments over the terms of the contract, and only the prorated 
amount to the date of prepayment shall be due. As an alternative, the 
``Rule of 78'' may be applied.
    7. If a charge is made for loan insurance protection, it must be 
evidenced by delivery of a policy or certificate of insurance to the 
military member within 30 days.
    8. If the loan or contract agreement provides for payments in 
installation, each payment, other than the down payment, shall be in 
equal or substantially equal amounts, and installments shall be 
successive and of equal or substantially equal duration.
    9. If the security for the debt is repossessed and sold in order to 
satisfy or reduce the debt, the repossession and resale shall be 
governed by the laws of the State in which the security is requested.
    10. A contract for personal goods and services may be terminated at 
any time before delivery of the goods or services without charge to the 
purchaser. However, if goods made to the special order of the purchaser 
result in preproduction costs, or require preparation for delivery, such 
additional costs shall be listed in the order form or contract.
    a. No termination charge shall be made in excess of this amount. 
Contracts for delivery at future intervals may be terminated as to the 
undelivered portion.
    b. The purchaser shall be chargeable only for that proportion of the 
total cost that the goods or services delivered bear to the total goods 
called for by the contract. (This is in addition to the right to rescind 
certain credit transactions involving a security interest in real estate 
provided by the Truth in Lending Act (15 U.S.C. 1601 note, 1601-1614, 
1631-1646, 1661-1665a, 1666-1666j, and 1667-1667e) and Federal Reserve 
Board Regulation Z (12 CFR 226)).

[[Page 479]]



    Sec. Appendix C to Part 113--Sample DD Form 2653, ``Involuntary 
                         Allotment Application''
[GRAPHIC] [TIFF OMITTED] TR05JA95.002


[[Page 480]]


[GRAPHIC] [TIFF OMITTED] TR05JA95.003


[[Page 481]]





    Sec. Appendix D to Part 113--Sample DD Form 2654, ``Involuntary 
                    Allotment Notice and Processing''
[GRAPHIC] [TIFF OMITTED] TR05JA95.004


[[Page 482]]


[GRAPHIC] [TIFF OMITTED] TR05JA95.005


[[Page 483]]


[GRAPHIC] [TIFF OMITTED] TR05JA95.006


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[GRAPHIC] [TIFF OMITTED] TR05JA95.007



PART 114_VICTIM AND WITNESS ASSISTANCE--Table of Contents



Sec.
114.1 Purpose.
114.2 Applicability.
114.3 Definitions.
114.4 Policy.
114.5 Responsibilities.
114.6 Procedures.


[[Page 485]]


    Authority: 10 U.S.C. chapter 47; 10 U.S.C. 113, 1034, 1044, 1044e, 
1058, 1059, and 1408; 18 U.S.C. 1512 through 1514; section 573 of Pub. 
L. 112-239, 126 Stat. 1632; sections 1701 and 1706 of Pub. L. 113-66, 
127 Stat. 672; and section 533 of Pub. L. 113-291, 128 Stat. 3292.

    Source: 85 FR 23476, Apr. 28, 2020, unless otherwise noted.



Sec.  114.1  Purpose.

    This part:
    (a) Establishes policy, assigns responsibilities, and prescribes 
procedures to assist victims and witnesses of alleged crimes committed 
in violation of 10 U.S.C. chapter 47, also known and referred to in this 
part as the Uniform Code of Military Justice (UCMJ).
    (b) Establishes policy, assigns responsibilities, and prescribes 
procedures for:
    (1) The rights of crime victims under the UCMJ and required 
mechanisms for enforcement, in accordance with section 1701 of Public 
Law 113-66, ``National Defense Authorization Act for Fiscal Year 2014,'' 
and in accordance with DoD standards for victim witness assistance 
services in the military community established in DoD Instruction 
6400.07, ``Standards for Victim Assistance Services in the Military 
Community,'' (available at https://www.esd.whs.mil/ Portals/54/
Documents/DD/ issuances/dodi/640007p.pdf?ver= 2018-07-06-073608-400).
    (2) Providing timely notification of information and assistance 
available to victims and witnesses of crime from initial contact through 
investigation, prosecution, and confinement in accordance with 18 U.S.C. 
1512 through 1514, 32 CFR part 286, ``DoD Freedom of Information Act 
(FOIA) Program,'' 32 CFR part 111, ``Transitional Compensation for 
Abused Dependents,'' DoD Instruction 1325.07, ``Administration of 
Military Correctional Facilities and Clemency and Parole Authority,'' 
(available at https://www.esd.whs.mil/ Portals/54/Documents/DD/ 
issuances/dodi/132507p.pdf?ver= 2019-02-19-075650-100), DoD Directive 
7050.06, ``Military Whistleblower Protection,'' (available at http://
www.esd.whs.mil/ Portals/54/Documents/DD/ issuances/dodd/705006p.pdf), 
and 10 U.S.C. 113, 1034, 1059, and 1408; and section 1706 of Public Law 
113-66.
    (3) Annual reporting requirements on assistance provided across the 
DoD to victims and witnesses of alleged crimes.
    (c) Provides for legal assistance for crime victims entitled to such 
services pursuant to 10 U.S.C. 1044 and 1044e, and in accordance with 
Under Secretary of Defense for Personnel and Readiness (USD(P&R)) 
Memorandum, ``Legal Assistance for Victims of Crimes'' (available at 
http://www.sapr.mil/ public/docs/directives/Legal_ 
Assistance_for_Victims_ of_Crime-Memo.pdf), and 10 U.S.C. 1565b, and as 
further prescribed by the Military Departments and National Guard Bureau 
policies.
    (d) Adopts section 573 of Public Law 112-239, ``The National Defense 
Authorization Act for Fiscal Year 2013,'' January 2, 2013, requiring 
each Military Service to establish a special victim capability comprised 
of specially trained criminal investigators, judge advocates, 
paralegals, and victim and witness assistance personnel to support 
victims of covered special victim offenses. To de-conflict with victims' 
counsel programs, this distinct group of recognizable professionals will 
be referred to, at the DoD level, as the Special Victim Investigation 
and Prosecution (SVIP) capability.
    (e) Adopts the victim and witness portion of the special victim 
capability in accordance with) DoDI 5505.19, ``Establishment of Special 
Victim Investigation and Prosecution (SVIP) Capability within the 
Military Criminal Investigative Organizations (MCIOs),'' March 23, 2017 
(available at https://www.esd.whs.mil/ Portals/54/Documents/DD/ 
issuances/dodi/550519p.pdf?ver= 2019-08-12-152401-387), and Directive-
type Memorandum (DTM) 14-003, ``DoD Implementation of Special Victim 
Capability (SVC) Prosecution and Legal Support,'' February 12, 2014, 
Incorporating Change 6, August 15, 2019 (available at https://
www.esd.whs.mil/ Portals/54/Documents/DD/ issuances/dtm/DTM-14-
003.pdf?ver= 2019-08-15-102432-590).
    (f) Adopts section 1716 of Public Law 113-66, and section 533 of the 
National Defense Authorization Act for 2015 (NDAA 2015), requiring the 
Military Services to provide legal counsel, known as Special Victims' 
Counsel or Victims' Legal Counsel, (SVC/VLC) to

[[Page 486]]

assist victims of alleged sex-related offenses in violation of Articles 
120, 120a, 120b, 120c, 125 (before January 1, 2019) of the UCMJ, and 
attempts to commit any of these offenses under Article 80 of the UCMJ, 
who are eligible for legal assistance in accordance with 10 U.S.C. 1044 
and 1044e, and as further prescribed by the Military Departments and 
National Guard Bureau policies.



Sec.  114.2  Applicability.

    This part applies to any military or civilian victims or witnesses 
of alleged offenses under the UCMJ. This part also applies to OSD, the 
Military Departments, the Office of the Chairman of the Joint Chiefs of 
Staff and the Joint Staff, the Combatant Commands, the Office of the 
Inspector General of the Department of Defense, the Defense Agencies, 
the DoD Field Activities, and all other organizational entities within 
the DoD (referred to collectively in this part as the ``DoD 
Components'').



Sec.  114.3  Definitions.

    Unless otherwise noted, these terms and their definitions are for 
the purpose of this part:
    Central repository. A headquarters office, designated by Service 
regulation, to serve as a clearinghouse of information on a confinee's 
status and to collect and report data on the delivery of victim and 
witness assistance, including notification of confinee status changes.
    Confinement facility victim witness assistance coordinator. A staff 
member at a military confinement facility who is responsible for 
notifying victims and witnesses of changes in a confinee's status and 
reporting those notifications to the central repository.
    Court proceeding. A preliminary hearing held pursuant to Article 32 
of the UCMJ; a hearing under Article 39(a) of the UCMJ; a court-martial; 
a military presentencing hearing; or a military appellate hearing. 
Conferences, such as those between attorneys and the military judge 
pursuant to Rule for Courts-Martial (R.C.M.) 802 or between attorneys 
and preliminary hearing officers pursuant to Article 32, are not court 
proceedings for purposes of this part. If all or part of a court 
proceeding has been closed to the public by the military judge, 
preliminary hearing officer, or other official, the victims and 
witnesses will still be notified of the closed hearing as provided in 
this part, and of the reasons for the closure. In such a case, the 
military judge, preliminary hearing officer, or other official may place 
reasonable limits on the reasons disclosed, if such limits are necessary 
to protect the safety of any person, the fairness of the proceeding, or 
are otherwise in the interests of national security.
    DoD Component responsible official. Person designated by each DoD 
Component head to be primarily responsible in the DoD Component for 
coordinating, implementing, and managing the victim and witness 
assistance program established by this part.
    Equal opportunity. The right of all persons to participate in, and 
benefit from, programs and activities for which they are qualified. 
These programs and activities will be free from social, personal, or 
institutional barriers that prevent people from rising to the highest 
level of responsibility possible. Persons will be evaluated on 
individual merit, fitness, and capability, regardless of race, color, 
sex, national origin, or religion.
    Local responsible official. Person designated by the DoD Component 
responsible official who has primary responsibility for identifying 
victims and witnesses of crime and for coordinating the delivery of 
services described in this part through a multidisciplinary approach. 
The position or billet of the local responsible official will be 
designated in writing by Service regulation. The local responsible 
official may delegate responsibilities in accordance with this part.
    Local Victim and Witness Assistance Council. A regular forum held at 
the DoD installation, or regional command level, that promotes 
efficiencies, coordinates victim assistance-related programs, and 
assesses the implementation of victim assistance standards and victim 
assistance-related programs, in accordance with this part, DoD 
Instruction 6400.07, and any other applicable Service guidance.
    Military Department Clemency and Parole Board. In accordance with 
DoD Instruction 1325.07, a board which assists

[[Page 487]]

the Military Department Secretary as the primary authority for 
administration and execution of clemency, parole, and mandatory 
supervised release policy and programs.
    Military services. Refers to the Army, the Navy, the Air Force, and 
the Marine Corps, the Coast Guard, and the Reserve Components, which 
include the Army and Air National Guards of the United States.
    Protected communication. (1) Any lawful communication to a Member of 
Congress or an IG.
    (2) A communication in which a member of the Armed Forces 
communicates information that the member reasonably believes evidences a 
violation of law or regulation, including a law or regulation 
prohibiting sexual harassment or unlawful discrimination, gross 
mismanagement, a gross waste of funds or other resources, an abuse of 
authority, or a substantial and specific danger to public health or 
safety, when such communication is made to any of the following:
    (i) A Member of Congress, an IG, or a member of a DoD audit, 
inspection, investigation, or law enforcement organization.
    (ii) Any person or organization in the chain of command; or any 
other person designated pursuant to regulations or other established 
administrative procedures to receive such communications.
    Reprisal. Taking or threatening to take an unfavorable personnel 
action, or withholding or threatening to withhold a favorable personnel 
action, for making or preparing to make a protected communication.
    Restricted reporting. Defined in 32 CFR part 103.
    Special victim investigation and prosecution (SVIP) capability. A 
distinct, recognizable group of appropriately skilled professionals, 
consisting of specially trained and selected military criminal 
investigative organization (MCIO) investigators, judge advocates, victim 
witness assistance personnel, and administrative paralegal support 
personnel who work collaboratively to:
    (1) Investigate allegations of adult sexual assault, domestic 
violence involving sexual assault and/or aggravated assault with 
grievous bodily harm, and child abuse involving sexual assault and/or 
aggravated assault with grievous bodily harm.
    (2) Provide support for the victims of such covered offenses.
    Special victim offenses. The designated criminal offenses of sexual 
assault, domestic violence involving sexual assault, and/or aggravated 
assault with grievous bodily harm, and child abuse involving sexual 
assault and/or aggravated assault with grievous bodily harm, in 
violation of the UCMJ. Sexual assault includes offenses under Articles 
120 (rape and sexual assault in general), 120b (rape and sexual assault 
of a child), and 120c (other sexual misconduct), or forcible sodomy 
under Article 125 (before January 1, 2019) of the UCMJ or attempts to 
commit such offenses under Article 80 of the UCMJ. Aggravated assault 
with grievous bodily harm, in relation to domestic violence and child 
abuse cases, includes an offense as specified under Article 128 of the 
UCMJ (assault). The Military Services and National Guard Bureau may deem 
other UCMJ offenses appropriate for SVIP support, based on the facts and 
circumstances of specific cases, and the needs of victims.
    Special Victims' Counsel/Victims' Legal Counsel (SVC/VLC). Legal 
counsel provided to assist eligible victims of alleged sex-related 
offenses in violation of Articles 120, 120a, 120b, 120c, and 125 (before 
January 1, 2019) of the UCMJ and attempts to commit any of these 
offenses under Article 80 of the UCMJ (or other offenses as defined by 
the Military Services), in accordance with 10 U.S.C. 1044, 1044e, and 
1565b; section 1716 of Public Law 113-66; and section 533 of Public Law 
113-291.
    Specially trained prosecutors. Experienced judge advocates detailed 
by Military Department Judge Advocates Generals (TJAGs), the Staff Judge 
Advocate to the Commandant of the Marine Corps, or other appropriate 
authority to litigate or assist with the prosecution of special victim 
cases and provide advisory support to MCIO investigators and responsible 
legal offices. Before specially trained prosecutors are detailed, their 
Service TJAG, Staff Judge Advocate to the Commandant of the Marine 
Corps, or other appropriate authority has determined they have the

[[Page 488]]

necessary training, maturity, and advocacy and leadership skills to 
carry out those duties.
    Unrestricted reporting. Defined in 32 CFR part 103.
    Victim. A person who has suffered direct physical, emotional, or 
pecuniary harm as a result of the commission of a crime committed in 
violation of the UCMJ. Victim assistance is limited to individuals 
eligible for military legal assistance under 10 U.S.C. 1044 and 1044e, 
and as further prescribed by the Military Departments' and National 
Guard Bureau's policies. Federal Departments and State and local 
agencies, as entities, are not eligible for services available to 
individual victims.
    Victim assistance personnel. Personnel who are available to provide 
support and assistance to victims of alleged crimes consistent with 
their assigned responsibilities and in accordance with this part. They 
include part-time, full-time, collateral duty, and other authorized 
individuals, and may be domestic violence or sexual assault prevention 
and response coordinators (to include unit and uniformed victim 
advocates), Sexual Assault Response Coordinators, victim-witness 
assistance personnel, or military equal opportunity advisors.
    Victim assistance-related programs. The SAPR Program; FAP; and the 
VWAP. A complainant under the DoD MEO Program may be referred by the MEO 
office to one of the victim assistance-related programs for additional 
assistance.
    Witness. A person who has information or evidence about a criminal 
offense within the investigative jurisdiction of a DoD Component and who 
provides that knowledge to a DoD Component. When the witness is a minor, 
that term includes a parent or legal guardian, or other person 
responsible for the child. The term does not include an individual 
involved in the crime as an alleged perpetrator or accomplice.



Sec.  114.4  Policy.

    It is DoD policy that:
    (a) The DoD is committed to protecting the rights of victims and 
witnesses of alleged crimes and supporting their needs in the criminal 
justice process. The DoD Components will comply with all statutory and 
policy mandates and will take all additional actions within the limits 
of available resources to assist victims and witnesses of alleged crimes 
without infringing on the constitutional or other legal rights of a 
suspect or an accused.
    (b) DoD victim assistance services will focus on the victim and will 
respond, protect, and care for the victim from initiation of a report 
through offense disposition, if applicable, and will continue such 
support until the victim is no longer eligible for such services or the 
victim specifies to the local responsible official that he or she no 
longer requires or desires services.
    (c) Each DoD Component will provide particular attention and support 
to victims of serious, violent alleged crimes, including child abuse, 
domestic violence, and sexual assault. In order to ensure the safety of 
victims, and their families, victim assistance personnel shall respect 
the dignity and the privacy of persons receiving services, and carefully 
observe any safety plans and military or civilian protective orders in 
place.
    (d) Victim assistance services must meet DoD competency, ethical, 
and foundational standards established in DoD Instruction 6400.07, 
``Standards for Victim Assistance Services in the Military Community,'' 
(available at http://www.esd.whs.mil/ Portals/54/Documents/DD/ 
issuances/dodi/640007p.pdf).
    (e) Making or preparing to make or being perceived as making or 
preparing to make a protected communication, to include reporting a 
violation of law or regulation, including a law or regulation 
prohibiting rape, sexual assault, or other sexual misconduct, in 
violation of 10 U.S.C. 920 through 920c, sexual harassment, or unlawful 
discrimination, in accordance with 10 U.S.C. 1034, section 1709 of 
Public Law 113-66, and DoD Directive 7050.06, ``Military Whistleblower 
Protection,'' (available at http://www.esd.whs.mil/ Portals/54/
Documents/DD/ issuances/dodd/705006p.pdf), shall not result in reprisal 
activity from management officials.
    (f) This part is not intended to, and does not, create any 
entitlement, cause of action, or defense at law or in equity, in favor 
of any person or entity

[[Page 489]]

arising out of the failure to accord to a victim or a witness the 
assistance outlined in this part. No limitations are hereby placed on 
the lawful prerogatives of the DoD or its officials.



Sec.  114.5  Responsibilities.

    (a) The Under Secretary of Defense for Personnel and Readiness 
(USD(P&R)):
    (1) Establishes overall policy for victim and witness assistance and 
monitors compliance with this part.
    (2) Approves procedures developed by the Secretaries of the Military 
Departments that implement and are consistent with this part.
    (3) Maintains the DoD Victim Assistance Leadership Council, in 
accordance with DoD Instruction 6400.07, which advises the Secretary of 
Defense on policies and practices related to the provision of victim 
assistance and provides a forum that promotes efficiencies, coordinates 
victim assistance-related policies, and assesses the implementation of 
victim assistance standards across the DoD's victim assistance-related 
programs.
    (4) Submits an annual report to the Office for Victims of Crime, 
Department of Justice, identifying the number of specified notifications 
made to victims and witnesses of alleged crimes.
    (b) The Director, DoD Human Resources Activity, through the Defense 
Manpower Data Center, and under the authority, direction, and control of 
the USD(P&R), assists in formulating a data collection mechanism to 
track and report victim notifications from initial contact through 
investigation to disposition, to include prosecution, confinement, and 
release.
    (c) The Inspector General of the Department of Defense (DoD IG):
    (1) Establishes investigative policy and performs appropriate 
oversight reviews of the management of the Victim Witness Assistance 
Program (VWAP) by the DoD military criminal investigative organizations 
(MCIOs). This is not intended to substitute for the routine managerial 
oversight of the program provided by the MCIOs, the USD(P&R), the DoD 
Component heads, the DoD Component responsible officials, or the local 
responsible officials.
    (2) Investigates and oversees DoD Component Inspector General 
investigations of allegations or reprisal for making or preparing to 
make or being perceived as making or preparing to make a protected 
communication, in accordance with 10 U.S.C. 1034.
    (d) The DoD Component heads:
    (1) Ensure compliance with this part, and establish policies and 
procedures to implement the VWAP within their DoD Components.
    (2) Designate the DoD Component responsible official for the VWAP, 
who will report annually to the USD(P&R) using DD Form 2706, ``Victim 
and Witness Assistance Annual Report'' (available at http://
www.esd.whs.mil/ Portals/54/Documents/DD/ forms/dd/dd2706.pdf)
    (3) Provide for the assignment of personnel in sufficient numbers to 
enable those programs identified in the 10 U.S.C. 113 note to be carried 
out effectively.
    (4) Designate a central repository for confinee information for each 
Military Service, and establish procedures to ensure victims who so 
elect are notified of changes in inmate status.
    (5) Maintain a Victim and Witness Assistance Council, when 
practicable, at each military installation, to ensure victim and witness 
service providers follow an interdisciplinary approach. These providers 
may include chaplains, sexual assault prevention and response personnel, 
family advocacy personnel, military treatment facility health care 
providers and emergency room personnel, family service center personnel, 
military equal opportunity personnel, judge advocates, SVC/VLCs, unit 
commanding officers, corrections personnel, and other persons designated 
by the Secretaries of the Military Departments.
    (6) Maintain training programs to ensure Victim Witness Assistance 
Program (VWAP) providers receive instruction to assist them in complying 
with this part. Training programs will include specialized training for 
VWAP personnel assigned to the SVIP capability, in accordance with Sec.  
114.6(c).
    (7) Designate local responsible officials in writing in accordance 
with Military Service regulations and Sec.  114.6(a)(1).

[[Page 490]]

    (8) Maintain oversight procedures to ensure establishment of an 
integrated support system capable of providing the services outlined in 
Sec.  114.6, and meet the competency, ethical, and foundational 
standards established in DoD Instruction 6400.07. Such oversight may 
include coverage by DoD Component Inspectors General, staff assistance 
visits, surveys, and status reports.
    (9) Establish mechanisms for ensuring that victims are notified of 
and afforded the rights specified in the UCMJ, including the rights 
specified in Article 6b of the UCMJ (10 U.S.C. 806b) and R.C.M. 306.
    (10) Establish mechanisms for the enforcement of the rights 
specified in the UCMJ, including mechanisms for the application for such 
rights and for consideration and disposition of applications for such 
rights. At a minimum, such enforcement mechanisms will include the 
designation of an authority within each Military Service to receive and 
investigate complaints relating to the provision or violation of such 
rights and the establishment of disciplinary sanctions for responsible 
military and civilian personnel who wantonly fail to comply with the 
requirements relating to such rights.



Sec.  114.6  Procedures.

    (a) Local responsible officials. Local responsible officials:
    (1) Will coordinate to ensure that systems are in place at the 
installation level to provide information on available benefits and 
services, assist in obtaining those benefits and services, and provide 
other services required by this section.
    (2) May delegate their duties as appropriate, but retain 
responsibility to coordinate the delivery of required services.
    (3) May use an interdisciplinary approach involving the various 
service providers listed in paragraph (b)(7) of this section, to 
coordinate the delivery of information and services to be provided to 
victims and witnesses.
    (b) Comprehensive information and services to be provided to victims 
and witnesses--(1) Rights of crime victims. Personnel directly engaged 
in the prevention, detection, investigation, and disposition of 
offenses, to include courts-martial, including law enforcement and legal 
personnel, commanders, trial counsel, and staff judge advocates, will 
ensure that victims are accorded their rights in accordance with Article 
6b of UCMJ. A crime victim has the right to:
    (i) Be reasonably protected from the accused offender.
    (ii) Be provided with reasonable, accurate, and timely notice of:
    (A) A public hearing concerning the continuation of confinement 
before the trial of the accused.
    (B) A preliminary hearing pursuant to Article 32 of the UCMJ 
relating to the offense.
    (C) A court-martial relating to the offense.
    (D) A public proceeding of the Military Department Clemency and 
Parole Board hearing relating to the offense.
    (E) The release or escape of the accused, unless such notice may 
endanger the safety of any person.
    (iii) Be present at, and not be excluded from any public hearing or 
proceeding described in paragraph (b)(1)(ii) of this section, unless the 
military judge or preliminary hearing officer of a hearing conducted 
pursuant to Article 32 of the UCMJ determines, after receiving clear and 
convincing evidence, that testimony by the victim would be materially 
altered if the victim observed that hearing or proceeding.
    (iv) Be reasonably heard, personally or through counsel at:
    (A) A public hearing concerning the continuation of confinement 
before the court-martial of the accused.
    (B) Preliminary hearings conducted pursuant to Article 32 of the 
UCMJ and court-martial proceedings relating to Rules 412, 513, and 514 
of the Military Rules of Evidence (M.R.E.) or regarding other rights 
provided by statute, regulation, or case law.
    (C) A public sentencing hearing relating to the offense.
    (D) A public Military Department Clemency and Parole Board hearing 
relating to the offense. A victim may make a personal appearance before 
the Military Department Clemency and Parole Board or submit an audio, 
video, or written statement.
    (v) Confer with the attorney for the U.S. Government in the case. 
This will

[[Page 491]]

include the reasonable right to confer with the attorney for the U.S. 
Government at any proceeding described in paragraph (b)(1)(ii) of this 
section.
    (A) Crime victims who are eligible for legal assistance may consult 
with a military legal assistance attorney in accordance with paragraph 
(c)(1) of this section.
    (B) Victims of an alleged offense under Articles 120, 120a, 120b, or 
120c or forcible sodomy under the UCMJ or attempts to commit such 
offenses under Article 80 of the UCMJ, who are eligible for legal 
assistance per Military Department or National Guard Bureau policies or 
in accordance with 10 U.S.C. 1044 or 1044e, may consult with a SVC/VLC 
in accordance with paragraph (d)(1) of this section. Victims of these 
covered alleged offenses shall be informed by a sexual assault response 
coordinator (SARC), victim advocate, victim witness liaison, military 
criminal investigator, trial counsel, or other local responsible 
official that they have the right to consult with a SVC/VLC as soon as 
they seek assistance from the individual in accordance with 10 U.S.C. 
1565b, and as otherwise authorized by Military Department and National 
Guard Bureau policy.
    (C) All victims may also elect to seek the advice of a private 
attorney, at their own expense.
    (vi) Receive restitution as provided in accordance with State and 
Federal law.
    (vii) Proceedings free from unreasonable delay.
    (viii) Be treated with fairness and respect for his or her dignity 
and privacy.
    (ix) Express his or her views to the commander or convening 
authority as to disposition of the case.
    (x) Be prevented from, or charged for, receiving a medical forensic 
examination.
    (xi) Have a sexual assault evidence collection kit or its probative 
contents preserved, without charge.
    (xii) Be informed of any result of a sexual assault evidence 
collection kit, including a DNA profile match, toxicology report, or 
other information collected as part of a medical forensic examination, 
if such disclosure would not impede or compromise an ongoing 
investigation.
    (xiii) Be informed in writing of policies governing the collection 
and preservation of a sexual assault evidence collection kit.
    (xiv) Upon written request, receive written notification from the 
appropriate official with custody not later than 60 days before the date 
of the intended destruction or disposal.
    (xv) Upon written request, be granted further preservation of the 
kit or its probative contents.
    (xvi) Express a preference regarding whether the offense should be 
prosecuted by court-martial or in a civilian court with jurisdiction 
over the offense (for a victim of an alleged sex-related offense that 
occurs in the United States).
    (A) Victims expressing a preference for prosecution of the offense 
in a civilian court shall have the civilian authority with jurisdiction 
over the offense notified of the victim's preference for civilian 
prosecution by the convening authority.
    (B) The convening authority shall notify the victim of any decision 
by the civilian authority to prosecute or not prosecute the offense in a 
civilian court, if the convening authority learns of any decision.
    (2) Initial information and services. (i) Immediately after 
identification of a crime victim or witness, the local responsible 
official, law enforcement officer, or criminal investigation officer 
will explain and provide information to each victim and witness, as 
appropriate, including:
    (A) The DD Form 2701, ``Initial Information for Victims and 
Witnesses of Crime'' (available at http://www.esd.whs.mil/ Portals/54/
Documents/DD/ forms/dd/dd2701.pdf) or computer-generated equivalent will 
be used as a handout to convey basic information. Specific points of 
contact will be recorded on the appropriate form authorized for use by 
the particular Military Service.
    (B) Proper completion of this form serves as evidence that the local 
responsible official or designee, law enforcement officer, or criminal 
investigative officer notified the victim or

[[Page 492]]

witness of his or her rights, as described in paragraph (b)(1) of this 
section. The date the form is given to the victim or witness shall be 
recorded by the delivering official. This serves as evidence the victim 
or witness was timely notified of his or her statutory rights.
    (ii) The local responsible official will explain the form to victims 
and witnesses at the earliest opportunity. This will include:
    (A) Information about available military and civilian emergency 
medical and social services, victim advocacy services for victims of 
domestic violence or sexual assault, and, when necessary, assistance in 
securing such services.
    (B) Information about restitution or other relief a victim may be 
entitled to, and the manner in which such relief may be obtained.
    (C) Information to victims of intra-familial abuse offenses on the 
availability of limited transitional compensation benefits and possible 
entitlement to some of the active duty Service member's retirement 
benefits pursuant to 10 U.S.C. 1059 and 1408 and 32 CFR part 111.
    (D) Information about public and private programs available to 
provide counseling, treatment, and other support, including available 
compensation through Federal, State, and local agencies.
    (E) Information about the prohibition against intimidation and 
harassment of victims and witnesses, and arrangements for the victim or 
witness to receive reasonable protection from threat, harm, or 
intimidation from an accused offender and from people acting in concert 
with or under the control of the accused offender.
    (F) Information concerning military and civilian protective orders, 
as appropriate.
    (G) Information about the military criminal justice process, the 
role of the victim or witness in the process, and how the victim or 
witness can obtain additional information concerning the process and the 
case in accordance with section 1704 of Public Law 113-66. This includes 
an explanation of:
    (1) Victims' roles and rights during pretrial interviews with law 
enforcement, investigators, government counsel, and defense counsel and 
during preliminary hearings pursuant to Article 32 of the UCMJ, and 
section 1702 of Public Law 113-66.
    (2) Victims' rights when action is taken by the convening authority 
pursuant to Article 60 of the UCMJ, and during the post-trial/clemency 
phase of the process.
    (H) If necessary, assistance in contacting the people responsible 
for providing victim and witness services and relief.
    (I) If necessary, how to file a military whistleblower complaint 
with an Inspector General regarding suspected reprisal for making, 
preparing to make, or being perceived as making or preparing to make a 
protected communication in accordance with 10 U.S.C. 1034 and DoD 
Directive 7050.06.
    (J) Information about the victim's right to seek the advice of an 
attorney with respect to his or her rights as a crime victim pursuant to 
Federal law and DoD policy. This includes the right of Service members 
and their dependents to consult a military legal assistance attorney in 
accordance with paragraph (d)(1) of this section, or a SVC/VLC in 
accordance with paragraph (e)(1) of this section.
    (3) Information to be provided during investigation of a crime. (i) 
If a victim or witness has not already received the DD Form 2701 from 
the local responsible official or designee, it will be provided by a law 
enforcement officer or investigator.
    (ii) Local responsible officials or law enforcement investigators 
and criminal investigators will inform victims and witnesses, as 
appropriate, of the status of the investigation of the crime, to the 
extent providing such information does not interfere with the 
investigation.
    (4) Information and services to be provided concerning the 
prosecution of a crime. (i) The DD Form 2702, ``Court-Martial 
Information for Victims and Witnesses of Crime'' (available at http://
www.esd.whs.mil/ Portals/54/Documents/DD/ forms/dd/dd2702.pdf) will be 
used as a handout to convey basic information about the court-martial 
process. The date it is given to the victim or witness shall be recorded 
by the

[[Page 493]]

delivering official. If applicable, the following will be explained and 
provided by the U.S. Government attorney, or designee, to victims and 
witnesses:
    (A) Notification of crime victims' rights, to include the victim's 
right to express views as to disposition of the case to the responsible 
commander and convening authority.
    (B) Notification of the victim's right to seek the advice of an 
attorney with respect to his or her rights as a crime victim pursuant to 
Federal law and DoD policy. This includes the right of service members 
and their dependents to consult a military legal assistance attorney in 
accordance with paragraph (d)(1) of this section or a SVC/VLC in 
accordance with paragraph (e)(1) of this section.
    (C) Consultation concerning the decisions to prefer or not prefer 
charges against the accused offender and the disposition of the offense 
if other than a trial by court-martial.
    (D) Consultation concerning the decision to refer or not to refer 
the charges against the accused offender to trial by court-martial and 
notification of the decision to pursue or not pursue court-martial 
charges against the accused offender.
    (E) Notification of the initial appearance of the accused offender 
before a reviewing officer or military judge at a public pretrial 
confinement hearing or at a preliminary hearing in accordance with 
Article 32 of the UCMJ.
    (F) Notification of the release of the suspected offender from 
pretrial confinement.
    (G) Explanation of the court-martial process.
    (H) Before any court proceedings (as defined to include preliminary 
hearings conducted pursuant to Article 32 of the UCMJ, pretrial hearings 
conducted pursuant to Article 39(a) of the UCMJ, trial, and 
presentencing hearings), help with locating available services such as 
transportation, parking, child care, lodging, and courtroom translators 
or interpreters that may be necessary to allow the victim or witness to 
participate in court proceedings.
    (I) During the court proceedings, a private waiting area out of the 
sight and hearing of the accused and defense witnesses. In the case of 
proceedings conducted aboard ship or in a deployed environment, provide 
a private waiting area to the greatest extent practicable.
    (J) Notification of the scheduling, including changes and delays, of 
a preliminary hearing conducted pursuant to Article 32 of the UCMJ, and 
each court proceeding the victim is entitled to or required to attend 
will be made without delay. On request of a victim or witness whose 
absence from work or inability to pay an account is caused by the 
alleged crime or cooperation in the investigation or prosecution, the 
employer or creditor of the victim or witness will be informed of the 
reasons for the absence from work or inability to make timely payments 
on an account. This requirement does not create an independent 
entitlement to legal assistance or a legal defense against claims of 
indebtedness.
    (K) Notification of the recommendation of a preliminary hearing 
officer when an Article 32 preliminary hearing is held.
    (L) Consultation concerning any decision to dismiss charges or to 
enter into a pretrial agreement.
    (M) Notification of the disposition of the case, to include the 
acceptance of a plea of ``guilty,'' the rendering of a verdict, the 
withdrawal or dismissal of charges, or disposition other than court-
martial, to specifically include non-judicial punishment under Article 
15 of the UCMJ, administrative processing or separation, or other 
administrative actions.
    (N) Notification to victims of the opportunity to present to the 
court at sentencing, in compliance with applicable law and regulations, 
a statement of the impact of the crime on the victim, including 
financial, social, psychological, and physical harm suffered by the 
victim. The right to submit a victim impact statement is limited to the 
sentencing phase and does not extend to the providence (guilty plea) 
inquiry before findings.
    (O) Notification of the offender's sentence and general information 
regarding minimum release date, parole, clemency, and mandatory 
supervised release.

[[Page 494]]

    (P) Notification of the opportunity to receive a copy of 
proceedings. The convening authority or subsequent responsible official 
must authorize release of a copy of the record of trial without cost to 
a victim of sexual assault as defined in R.C.M. 1104 of the MCM and 
Article 54(e) of the UCMJ. Victims of offenses other than sexual 
assault, and witnesses of any offenses, may also receive a copy of the 
record of trial, without cost, as determined by the Military 
Departments, which may be on a case-by-case basis, in categories of 
cases, or on the basis of particular criteria, for example, when it 
might lessen the physical, psychological, or financial hardships 
suffered as a result of a criminal act.
    (ii) After court proceedings, the local responsible official will 
take appropriate action to ensure that property of a victim or witness 
held as evidence is safeguarded and returned as expeditiously as 
possible.
    (iii) Except for information that is provided by law enforcement 
officials and U.S. Government counsel in accordance with paragraphs 
(b)(3) and (4) of this section, requests for information relating to the 
investigation and prosecution of a crime (e.g., investigative reports 
and related documents) from a victim or witness will be processed in 
accordance with 32 CFR part 286.
    (iv) Any consultation or notification required by paragraph 
(b)(5)(i) of this section may be limited to avoid endangering the safety 
of a victim or witness, jeopardizing an ongoing investigation, 
disclosing classified or privileged information, or unduly delaying the 
disposition of an offense. Although the victim's views should be 
considered, this part is not intended to limit the responsibility or 
authority of the Military Service or the Defense Agency officials to act 
in the interest of good order and discipline.
    (5) Information and services to be provided on conviction. (i) Trial 
counsel will explain and provide services to victims and witnesses on 
the conviction of an offender in a court-martial. The DD Form 2703, 
``Post-Trial Information for Victims and Witnesses of Crime'' (http://
www.esd.whs.mil/ Portals/54/Documents/DD/ forms/dd/dd2703.pdf), will be 
used as a handout to convey basic information about the post-trial 
process.
    (ii) When appropriate, the following will be provided to victims and 
witnesses:
    (A) General information regarding the convening authority's action, 
the appellate process, the corrections process, work release, furlough, 
probation, parole, mandatory supervised release, or other forms of 
release from custody, and eligibility for each.
    (B) Specific information regarding the election to be notified of 
further actions in the case, to include the convening authority's 
action, hearings and decisions on appeal, changes in inmate status, and 
consideration for parole. The DD Form 2704, ``Victim/Witness 
Certification and Election Concerning Prisoner Status'' (available at 
http://www.esd.whs.mil/ Portals/54/Documents/DD/ forms/dd/dd2704.pdf) 
will be explained and used for victims and appropriate witnesses to 
elect to be notified of these actions, hearings, decisions, and changes 
in the offender's status in confinement. The DD Form 2704-1, ``Victim 
Election of Post-Trial Rights'' (under development, will be available at 
http://www.esd.whs.mil/ Directives/forms/ dd2500_2999/ once finalized) 
will be explained and used for victims to make elections about records 
of trial, submission of matters in clemency, and notifications of 
certain appellate proceedings.
    (1) For all cases resulting in a sentence to confinement, the DD 
Form 2704 will be completed and forwarded to the Service central 
repository, the gaining confinement facility, the local responsible 
official, and the victim or witness, if any, with appropriate redactions 
made by the delivering official.
    (i) Incomplete DD Forms 2704 received by the Service central 
repository must be accompanied by a signed memorandum detailing the 
reasons for the incomplete information, or they will be sent back to the 
responsible legal office for correction.
    (ii) Do not allow an inmate access to DD Forms 2704 or attach a copy 
of the forms to any record to which the inmate has access. Doing so 
could endanger the victim or witness.

[[Page 495]]

    (2) For all cases resulting in conviction but no sentence to 
confinement, the DD Form 2704 will be completed and forwarded to the 
Service central repository, the local responsible official, and the 
victim or witness, if any.
    (3) For all convictions with a qualifying victim, a DD Form 2704-1 
will be completed for each victim and forwarded to the appropriate 
points of contact, as determined by the Military Department. This form 
may be included in the record of trial with appropriate redactions. If a 
qualifying victim personally signs and initials a declination to receive 
the record of trial or to submit matters in clemency, this form may 
satisfy the requirement for a written waiver. See. Rules for Courts-
Martial 1103(g)(3)(C) and 1105A(f)(3).
    (4) The DD Forms 2704, 2704-1, and 2705, ``Notification to Victim/
Witness of Prisoner Status'' (available at http://www.esd.whs.mil/ 
Portals/54/Documents/DD/ forms/dd/dd2705.pdf), are exempt from release 
in accordance with 32 CFR part 286.
    (C) Specific information regarding the deadline and method for 
submitting a written statement to the convening authority for 
consideration when taking action on the case in accordance with Article 
60 of the UCMJ and R.C.M. 1105A.
    (6) Information and services to be provided on entry into 
confinement facilities. (i) The victim and witness assistance 
coordinator at the military confinement facility will:
    (A) On entry of an offender into post-trial confinement, obtain the 
DD Form 2704 to determine victim or witness notification requirements. 
If the form is unavailable, ask the Service central repository whether 
any victim or witness has requested notification of changes in inmate 
status in the case.
    (B) When a victim or witness has requested notification of changes 
in inmate status on the DD Form 2704, and one of the events listed in 
paragraph (b)(6) of this section occurs, use the DD Form 2705, 
``Notification to Victim/Witness of Prisoner Status,'' to notify the 
victim or witness.
    (1) The date the DD Form 2705 is given to the victim or witness 
shall be recorded by the delivering official. This serves as evidence 
that the officer notified the victim or witness of his or her statutory 
rights.
    (2) Do not allow the inmate access to DD Form 2705 or attach a copy 
of the forms to any record to which the inmate has access. Doing so 
could endanger the victim or witness.
    (C) Provide the earliest possible notice of:
    (1) The scheduling of a clemency or parole hearing for the inmate.
    (2) The results of the Service Clemency and Parole Board.
    (3) The transfer of the inmate from one facility to another.
    (4) The escape, immediately on escape, and subsequent return to 
custody, work release, furlough, or any other form of release from 
custody of the inmate.
    (5) The release of the inmate to supervision.
    (6) The death of the inmate, if the inmate dies while in custody or 
under supervision.
    (7) A change in the scheduled release date of more than 30 days from 
the last notification due to a disposition or disciplinary and 
adjustment board.
    (D) Make reasonable efforts to notify all victims and witnesses who 
have requested notification of changes in inmate status of any emergency 
or special temporary home release granted an inmate.
    (E) On transfer of an inmate to another military confinement 
facility, forward the DD Form 2704 to the gaining facility, with an 
information copy to the Service central repository.
    (ii) The status of victim and witness notification requests will be 
reported annually to the Service central repository.
    (7) Information and services to be provided on appeal. (i) When an 
offender's case is docketed for review by a Court of Criminal Appeals, 
or is granted review by the Court of Appeals for the Armed Forces 
(C.A.A.F.) or by the U.S. Supreme Court, the U.S. Government appellate 
counsel or appropriate Military Service designee will ensure that all 
victims who have indicated a desire to be notified receive this 
information, if applicable:
    (A) Notification of the scheduling, including changes and delays, of 
each

[[Page 496]]

public court proceeding that the victim is entitled to attend.
    (B) Notification of the decision of the court.
    (ii) When an offender's case is reviewed by the Office of the Judge 
Advocate General (TJAG) of the Military Department concerned, pursuant 
to Article 69 and Article 73 of the UCMJ, TJAG will ensure that all 
victims who have indicated a desire to be notified on DD Form 2704-1 
receive notification of the outcome of the review.
    (iii) The Military Services may use the sample appellate 
notification letter found at Figure 1 of this section, or develop their 
own templates to keep victims informed of appellate court proceedings 
and decisions.
    (8) Information and services to be provided on consideration for 
parole or supervised release. (i) Before the parole or supervised 
release of a prisoner, the military confinement facility staff will 
review the DD Form 2704 to ensure it has been properly completed. If 
there is a question concerning named persons or contact information, it 
will be immediately referred to the appropriate staff judge advocate for 
correction.
    (ii) When considering a prisoner for release on supervision, the 
military confinement facility commander will ensure that all victims and 
witnesses on the DD Form 2704 indicating a desire to be notified were 
given an opportunity to provide information to the Military Department 
Clemency and Parole Board in advance of its determination, as documented 
in the confinement file.
    (9) Reporting procedures. (i) The DoD Component responsible official 
will submit an annual report using the DD Form 2706 to: Office of the 
Under Secretary of Defense for Personnel and Readiness, Attention: Legal 
Policy Office, 4000 Defense Pentagon, Washington, DC 20301-4000.
    (ii) The report will be submitted by March 15 for the preceding 
calendar year and will address the assistance provided to victims and 
witnesses of crime.
    (iii) The report will include:
    (A) The number of victims and witnesses who received a DD Form 2701 
from law enforcement or criminal investigations personnel.
    (B) The number of victims and witnesses who received a DD Form 2702 
from U.S. Government counsel, or designee.
    (C) The number of victims and witnesses who received a DD Form 2703 
from U.S. Government counsel or designee.
    (D) The number of victims and witnesses who elected via the DD Form 
2704 to be notified of changes in inmate status.
    (E) The number of victims who received a DD Form 2704-1 from U.S. 
Government counsel or designee.
    (F) The number of victims and witnesses who were notified of changes 
in inmate status by the confinement facility victim witness assistance 
coordinators via the DD Form 2705 or a computer-generated equivalent.
    (G) The cumulative number of inmates in each Military Service for 
whom victim witness notifications must be made by each Service's 
confinement facilities. These numbers are derived by totaling the number 
of inmates with victim or witness notification requirements at the 
beginning of the year, adding new inmates with the requirement, and then 
subtracting those confinees who were released, deceased, or transferred 
to another facility (e.g., Federal, State, or sister Military Service) 
during the year.
    (iv) The Office of the USD(P&R) will consolidate all reports 
submitted by each Military Service, and submit an annual report to the 
Bureau of Justice Statistics, and Office for Victims of Crime, 
Department of Justice.
    (c) Special victim investigation and prosecution (SVIP) capability. 
(1) In accordance with DTM 14-003, section 573 of Public Law 112-239, 
and DoD Instruction 5505.19, the Military Services will maintain a 
distinct, recognizable group of professionals to provide effective, 
timely, and responsive worldwide victim support, and a capability to 
support the investigation and prosecution of special victim offenses 
within the respective Military Departments.
    (2) Covered special victim offenses include:
    (i) Unrestricted reports of adult sexual assault.
    (ii) Unrestricted reports of domestic violence involving sexual 
assault and/

[[Page 497]]

or aggravated assault with grievous bodily harm.
    (iii) Child abuse involving child sexual abuse and/or aggravated 
assault with grievous bodily harm.
    (3) Military Service SVIP programs will include, at a minimum, 
specially trained and selected:
    (i) Investigators from within MCIOs of the Military Departments.
    (ii) Judge advocates to serve as prosecutors.
    (iii) VWAP personnel.
    (iv) Paralegal or administrative legal support personnel.
    (4) Each Military Service will maintain standards for the selection, 
training, and certification of personnel assigned to provide this 
capability. At a minimum, SVIP training must:
    (i) Focus on the unique dynamics of sexual assault, aggravated 
domestic violence, and child abuse cases.
    (ii) Promote methods of interacting with and supporting special 
victims to ensure their rights are understood and respected.
    (iii) Focus on building advanced litigation, case management, and 
technical skills.
    (iv) Ensure that all SVIP legal personnel understand the impact of 
trauma and how this affects an individual's behavior and the memory of a 
traumatic incident when interacting with a victim.
    (v) Train SVIP personnel to identify any safety concerns and 
specific needs of victims.
    (vi) Ensure SVIP personnel understand when specially trained 
pediatric forensic interviewers are required to support the 
investigation and prosecution of complex child abuse and child sexual 
abuse cases.
    (5) Each Military Service will maintain and periodically review 
measures of performance and effectiveness to objectively assess Service 
programs, policies, training, and services. At a minimum, these Service-
level review measures will include:
    (i) Percentage of all preferred court-martial cases that involve 
special victim offenses in each fiscal year.
    (ii) Percentage of special victim offense courts-martial tried by, 
or with the direct advice and assistance of, a specially trained 
prosecutor.
    (iii) Compliance with DoD VWAP informational, notification, and 
reporting requirements specified in paragraphs (b)(1) through (9) of 
this section, to ensure victims are consulted with and regularly updated 
by special victim capability legal personnel.
    (iv) Percentage of specially trained prosecutors and other legal 
support personnel having received additional and advanced training in 
topical areas.
    (6) The Military Services will also consider victim feedback on 
effectiveness of special victim prosecution and legal support services 
and recommendations for possible improvements, as provided in DoD 
survivor experience surveys or other available feedback mechanisms. This 
information will be used by the Military Services to gain a greater 
understanding of the reasons why a victim elected to participate or 
declined to participate at trial, and whether SVIP, VWAP, and other 
legal support services had any positive impact on this decision.
    (7) Designated SVIP capability personnel will collaborate with local 
DoD SARCs, sexual assault prevention and response victim advocates, 
Family Advocacy Program (FAP) managers, and domestic abuse victim 
advocates during all stages of the military justice process to ensure an 
integrated capability.
    (8) To support this capability, active liaisons shall be established 
at the installation level with these organizations and key individuals:
    (i) Local military and civilian law enforcement agencies.
    (ii) SARCs.
    (iii) Victim advocates.
    (iv) FAP managers.
    (v) Chaplains.
    (vi) Sexual assault forensic examiners and other medical and mental 
health care providers.
    (vii) Unit commanding officers.
    (viii) Other persons designated by the Secretaries of the Military 
Departments necessary to support special victims.
    (9) In cases of adult sexual assault the staff judge advocate or 
designated representative of the responsible legal office will 
participate in case management group meetings, in accordance with 32 CFR 
part 105, on a monthly

[[Page 498]]

basis to review individual cases. Cases involving victims who are 
assaulted by a spouse or intimate partner will be reviewed by FAP.
    (10) The staff judge advocate or designated representative of the 
responsible legal office will participate in FAP case review or incident 
determination meetings of domestic violence, spouse or intimate partner 
sexual assault, and child abuse cases in accordance with DoD Instruction 
6400.06, ``Domestic Abuse Involving DoD Military and Certain Affiliated 
Personnel'' (available at http://www.esd.whs.mil/ Portals/54/Documents/
DD/ issuances/dodi/640006p.pdf).
    (11) In the case of a victim who is under 18 years of age and not a 
member of the Military Services, or who is incompetent, incapacitated, 
or deceased, the legal guardians of the victim or the representatives of 
the victim's estate, family members, or any other person designated as 
suitable by proper authority, may assume the victim's legal rights. 
Under no circumstances will an individual designated as representative 
have been accused of any crime against the victim.
    (i) The Secretaries of the Military Departments may publish 
additional guidance or regulation regarding who, before referral, may 
designate an appropriate representative, such as the convening authority 
or other qualified local responsible official.
    (ii) In making a decision to appoint a representative, the 
designating authority should consider:
    (A) The age and maturity, relationship to the victim.
    (B) The physical proximity to the victim.
    (C) The costs incurred in effecting the appointment.
    (D) The willingness of the proposed designee to serve in such a 
role.
    (E) The previous appointment of a guardian by a court of competent 
jurisdiction or appropriate designating authority.
    (F) The preference of the victim, if known.
    (G) Any potential delay in any proceeding that may be caused by a 
specific appointment.
    (H) Any other relevant information.
    (iii) The representative, legal guardian, or equivalent of a victim 
who is eligible, or in the case of a deceased victim, was eligible at 
the time of death for legal assistance provided by SVC/VLC, may elect 
legal representation for a SVC/VLC on behalf of the victim.
    (iv) A military judge's responsibilities for designating a 
representative are listed in R.C.M. 801(a)(6).
    (v) In the absence of an appointment of a legal representative, the 
victim may exercise his/her own legal and regulatory rights, as 
described herein. Where an appointment is required or discretionary, 
nothing in this policy precludes a victim from being appointed as his/
her own legal representative, as appropriate.
    (d) Legal assistance for crime victims--(1) Eligibility. Active and 
retired Service members and their dependents are eligible to receive 
legal assistance pursuant to 10 U.S.C. 1044 and 1565b and Under 
Secretary for Defense for Personnel and Readiness Memorandum, ``Legal 
Assistance for Sexual Assault Victims,'' October 17, 2011.
    (2) Information and services. Legal assistance services for crime 
victims will include confidential advice and assistance for crime 
victims to address:
    (i) Rights and benefits afforded to the victim under law and DoD 
policy.
    (ii) Role of the VWAP coordinator or liaison.
    (iii) Role of the victim advocate.
    (iv) Privileges existing between the victim and victim advocate.
    (v) Differences between restricted and unrestricted reporting, if 
applicable.
    (vi) Overview of the military justice system.
    (vii) Services available from appropriate agencies for emotional and 
mental health counseling and other medical services.
    (viii) The right to an expedited transfer, if applicable.
    (ix) Availability of and protections offered by civilian and 
military protective orders.
    (e) Special Victims' Counsel/Victims' Legal Counsel programs--(1) 
Eligibility. In accordance with 10 U.S.C. 1044, 1044e, and 1565b, 
section 1716 of Public Law 113-66, and section 533 of the Public

[[Page 499]]

Law 113-291, the Military Services provide legal counsel, known as SVC/
VLC, to assist victims of alleged sex-related offenses including 
Articles 120, 120a, 120b, and 120c, forcible sodomy under Article 125 
(before January 1, 2019) of the UCMJ, attempts to commit such offenses 
under Article 80 of the UCMJ, or other crimes under the UCMJ as 
authorized by the Service, who are eligible for legal assistance 
pursuant to 10 U.S.C. 1044e and as further prescribed by the Military 
Departments and National Guard Bureau policies. Individuals eligible for 
SVC/VLC representation include any of the following:
    (i) Individuals entitled to military legal assistance under 10 
U.S.C. 1044 and 1044e, and as further prescribed by the Military 
Departments and National Guard Bureau policies.
    (ii) Members of a reserve component of the armed forces, in 
accordance with section 533 of Public Law 113-291, and as further 
prescribed by the Military Departments and National Guard Bureau 
policies.
    (iii) Civilian employees of the Department of Defense not otherwise 
entitled to legal assistance, as provided for in section 532 of Public 
Law 114-92.
    (2) Attorney-client information and services. The types of legal 
services provided by SVC/VLC programs in each Military Service will 
include:
    (i) Legal consultation regarding the VWAP, including:
    (A) The rights and benefits afforded the victim.
    (B) The role of the VWAP liaison.
    (C) The nature of communication made to the VWAP liaison in 
comparison to communication made to a SVC/VLC or a legal assistance 
attorney pursuant to 10 U.S.C. 1044.
    (ii) Legal consultation regarding the responsibilities and support 
provided to the victim by the SARC, a unit or installation sexual 
assault victim advocate, or domestic abuse advocate, to include any 
privileges that may exist regarding communications between those persons 
and the victim.
    (iii) Legal consultation regarding the potential for civil 
litigation against other parties (other than the DoD).
    (iv) Legal consultation regarding the military justice system, 
including, but not limited to:
    (A) The roles and responsibilities of the military judge, trial 
counsel, the defense counsel, and military criminal investigators.
    (B) Any proceedings of the military justice process in which the 
victim may observe or participate in person or through his or her SVC/
VLC.
    (v) Accompanying or representing the victim at any proceedings when 
necessary and appropriate, including interviews, in connection with the 
reporting, investigation, and prosecution of the alleged sex-related 
offense.
    (vi) Legal consultation regarding eligibility and requirements for 
services available from appropriate agencies or offices for emotional 
and mental health counseling and other medical services.
    (vii) Legal representation or consultation and assistance:
    (A) In personal civil legal matters in accordance with 10 U.S.C. 
1044.
    (B) In any proceedings of the military justice process in which a 
victim can participate as a witness or other party.
    (C) In understanding the availability of, and obtaining any 
protections offered by, civilian and military protecting or restraining 
orders.
    (D) In understanding the eligibility and requirements for, and 
obtaining, any available military and veteran benefits, such as 
transitional compensation benefits found in 10 U.S.C. 1059, 32 CFR part 
111, ``Transitional Compensation for Abused Dependents,'' and other 
State and Federal victims' compensation programs.
    (E) The victim's rights and options at trial, to include the option 
to state a preference to decline participation or withdraw cooperation 
as a witness and the potential consequences of doing so.
    (viii) Legal representation or consultation regarding the potential 
criminal liability of the victim stemming from or in relation to the 
circumstances surrounding the alleged sex-related offense (collateral 
misconduct), regardless of whether the report of that offense is 
restricted or unrestricted in accordance with 32 CFR part 105. Victims 
may also be referred

[[Page 500]]

to the appropriate defense services organization for consultation on the 
potential criminal implications of collateral misconduct.
    (ix) Other legal assistance as the Secretary of Defense or the 
Secretaries of the Military Departments may authorize.
[GRAPHIC] [TIFF OMITTED] TR28AP20.021


[[Page 501]]





PART 117_NATIONAL INDUSTRIAL SECURITY PROGRAM OPERATING MANUAL 
(NISPOM)--Table of Contents



Sec.
117.1 Purpose.
117.2 Applicability.
117.3 Acronyms and Definitions.
117.4 Policy.
117.5 Information collections.
117.6 Responsibilities.
117.7 Procedures.
117.8 Reporting requirements.
117.9 Entity eligibility determination for access to classified 
          information.
117.10 Determination of eligibility for access to classified information 
          for contractor employees.
117.11 Foreign Ownership, Control, or Influence (FOCI).
117.12 Security training and briefings.
117.13 Classification.
117.14 Marking requirements.
117.15 Safeguarding classified information.
117.16 Visits and meetings.
117.17 Subcontracting.
117.18 Information system security.
117.19 International security requirements.
117.20 Critical Nuclear Weapon Design Information (CNWDI).
117.21 COMSEC.
117.22 DHS CCIPP.
117.23 Supplement to this rule: Security Requirements for Alternative 
          Compensatory Control Measures (ACCM), Special Access Programs 
          (SAPs), Sensitive Compartmented Information (SCI), Restricted 
          Data (RD), Formerly Restricted Data (FRD), Transclassified 
          Foreign Nuclear Information (TFNI), and Naval Nuclear 
          Propulsion Information (NNPI).
117.24 Cognizant Security Office information.

    Authority: 32 CFR part 2004; E.O. 10865; E.O. 12333; E.O. 12829; 
E.O. 12866; E.O. 12968; E.O. 13526; E.O. 13563; E.O. 13587; E.O. 13691; 
Public Law 108-458; Title 42 U.S.C. 2011 et seq.; Title 50 U.S.C. 
Chapter 44; Title 50 U.S.C. 3501 et seq.

    Source: 85 FR 83312, Dec. 21, 2020, unless otherwise noted.



Sec.  117.1  Purpose.

    (a) This rule implements policy, assigns responsibilities, 
establishes requirements, and provides procedures, consistent with E.O. 
12829, ``National Industrial Security Program''; E.O. 10865, 
``Safeguarding Classified Information within Industry''; 32 CFR part 
2004; and DoD Instruction (DoDI) 5220.22, ``National Industrial Security 
Program (NISP)'' (available at https://www.esd.whs.mil/ Portals/54/
Documents/DD/issuances/ dodi/522022p.pdf?ver= 2018-05-01-073158-710) for 
the protection of classified information that is disclosed to, or 
developed by contractors of the U.S. Government (USG) (hereinafter 
referred to in this rule as contractors).
    (b) This rule, also in accordance with E.O. 12829, E.O. 
13587,''Structural Reforms To Improve the Security of Classified 
Networks and the Responsible Sharing and Safeguarding of Classified 
Information''; E.O. 13691, ``Promoting Private Sector Cybersecurity 
Information Sharing''; E.O. 12333, ``United States Intelligence 
Activities''; 42 U.S.C. 2011 et seq. (also known as and referred to in 
this rule as the ``AEA of 1954,'' as amended); '' 50 U.S.C. Ch. 44 (also 
known as the ``National Security Act of 1947,'' as amended); 50 U.S.C. 
3501 et seq. (also known as the ``Central Intelligence Agency Act of 
1949,'' as amended); Public Law 108-458 (also known as the 
``Intelligence Reform and Terrorism Prevention Act of 2004''); and 32 
CFR part 2004:
    (1) Prescribes industrial security procedures and practices, under 
E.O. 12829 or successor orders, to safeguard USG classified information 
that is developed by or disclosed to contractors of the USG.
    (2) Prescribes requirements, restrictions, and other safeguards to 
prevent unauthorized disclosure of classified information and protect 
special classes of classified information.
    (3) Prescribes that contractors will implement the provisions of 
this rule no later than 6 months from the effective date of this rule.



Sec.  117.2  Applicability.

    (a) This rule applies to:
    (1) The Office of the Secretary of Defense, the Military 
Departments, the Office of the Chairman of the Joint Chiefs of Staff and 
the Joint Staff, the Combatant Commands, the Office of the Inspector 
General of the Department of Defense, the Defense Agencies, the DoD 
Field Activities, and all other organizational entities within the DoD 
(referred to collectively in this rule as the ``DoD Components'').
    (2) All executive branch departments and agencies.

[[Page 502]]

    (3) All industrial, educational, commercial, or other non-USG 
entities granted access to classified information by the USG executive 
branch departments and agencies or by foreign governments.
    (4) The release of classified information by the USG to contractors, 
who are required to safeguard classified information released during all 
phases of the contracting, agreement (including cooperative research and 
development agreements), licensing, and grant processes, i.e., the 
preparation and submission of bids and proposals, negotiation, award, 
performance, and termination. Also, it applies in situations involving a 
contract, agreement, license, or grant when actual knowledge of 
classified information is not required, but reasonable physical security 
measures cannot be employed to prevent aural or visual access to 
classified information, because there is the ability and opportunity to 
gain knowledge of classified information. It also applies to any other 
situation in which classified information or FGI that is furnished to a 
contractor requires protection in the interest of national security, but 
which is not released under a contract, license, certificate or grant.
    (b) This rule does not:
    (1) Limit in any manner the authority of USG executive branch 
departments and agencies to grant access to classified information under 
the cognizance of their department or agency to any individual 
designated by them. The granting of such access is outside the scope of 
the NISP and is accomplished pursuant to E.O. 12968, E.O. 13526, E.O. 
13691, the AEA, and applicable disclosure policies.
    (2) Apply to criminal proceedings in the courts or authorize 
contractors or their employees to disclose classified information in 
connection with any criminal proceedings. Defendants and their 
representative in criminal proceedings in U.S. District Courts, Courts 
of Appeal, and the U.S. Supreme Court may gain access to classified 
information in accordance with 18 U.S.C. Appendix 3, Section 1, also 
known as and referred to in this rule as the ``Classified Information 
Procedures Act,'' as amended.



Sec.  117.3  Acronyms and Definitions.

    (a) Acronyms. Unless otherwise noted, these acronyms and their terms 
are for the purposes of this rule.

ACCM alternative compensatory control measures
AEA Atomic Energy Act of 1954, as amended
AUS Australia
CAGE commercial and government entity
CCIPP classified critical infrastructure protection program
CDC cleared defense contractor
CFIUS Committee on Foreign Investment in the United States
CFR Code of Federal Regulations
CI Counterintelligence
CIA Central Intelligence Agency
CNSS Committee on National Security Systems
CNWDI critical nuclear weapons design information
COMSEC communications security
COR central office of record
CSA cognizant security agency
CSO cognizant security office
CUSR Central United States Registry
DCSA Defense Counterintelligence and Security Agency
DD Department of Defense (forms only)
DDTC Directorate of Defense Trade Controls
DGR designated government representative
DHS Department of Homeland Security
DNI Director of National Intelligence
DoD Department of Defense
DoDD Department of Defense Directive
DoDI Department of Defense Instruction
DoDM Department of Defense Manual
DOE Department of Energy
ECP electronic communications plan
E.O. Executive order
FBI Federal Bureau of Investigation
FCL facility (security) clearance
FGI foreign government information
FOCI foreign ownership, control, or influence
FRD Formerly Restricted Data
FSCC Facility Security Clearance Certificate (NATO)
FSO facility security officer
GCA government contracting activity
GCMS government contractor monitoring station
GSA General Services Administration
GSC government security committee
IDE intrusion detection equipment
IDS intrusion detection system
IFB invitation for bid
ISOO Information Security Oversight Office
ISSM information system security manager
ISSO information systems security officer
ITAR International Traffic in Arms Regulations
ITPSO insider threat program senior official

[[Page 503]]

KMP key management personnel
LAA limited access authorization
MFO multiple facility organization
NATO North Atlantic Treaty Organization
NDA nondisclosure agreement
NIAG NATO Industrial Advisory Group
NID national interest determination
NISP National Industrial Security Program
NISPOM National Industrial Security Program Operating Manual
NIST National Institute for Standards and Technology
NNPI Naval Nuclear Propulsion Information
NNSA National Nuclear Security Administration
NPLO NATO Production Logistics Organization
NRC Nuclear Regulatory Commission
NRTL nationally recognized testing laboratory
NSA National Security Agency
NSI national security information
NTIB National Technology and Industrial Base
OCA original classification authority
OMB Office of Management and Budget
PA proxy agreement
PCL personnel (security) clearance
RD Restricted Data
RFP request for proposal
RFQ request for quotation
SAP special access program
SCA security control agreement
SCI sensitive compartmented information
SD Secretary of Defense (forms only)
SEAD Security Executive Agent directive
SF standard form
SMO senior management official
SSA special security agreement
SSP systems security plan
TCP technology control plan
TFNI Transclassified Foreign Nuclear Information
TP transportation plan
UK United Kingdom
UL Underwriters' Laboratories
U.S.C. United States Code
USD (I&S) Under Secretary of Defense for Intelligence and Security
USG United States Government
USML United States Munitions List
VAL visit authorization letter
VT voting trust

    (b) Definitions. Unless otherwise noted, these terms and their 
definitions are for the purposes of this rule.
    Access means the ability and opportunity to gain knowledge of 
classified information.
    Access Permittee means the holder of an Access Permit issued 
pursuant to the regulations set forth in 10 CFR part 725, ``Permits For 
Access to Restricted Data.''
    ACCM are security measures used by USG agencies to safeguard 
classified intelligence or operations when normal measures are 
insufficient to achieve strict need-to-know controls and where SAP 
controls are not required.
    Adverse information means any information that adversely reflects on 
the integrity or character of a cleared employee, that suggests that his 
or her ability to safeguard classified information may be impaired, that 
his or her access to classified information clearly may not be in the 
interest of national security, or that the individual constitutes an 
insider threat.
    Affiliate means each entity that directly or indirectly controls, is 
directly or indirectly controlled by, or is under common control with, 
the ultimate parent entity.
    Agency(ies) means any ``Executive agency'' as defined in 5 U.S.C. 
105; any ``Military department'' as defined in 5 U.S.C. 102; and any 
other entity within the executive branch that releases classified 
information to private sector entities. This includes component agencies 
under another agency or under a cross-agency oversight office (such as 
ODNI with CIA), which are also agencies for purposes of this rule.
    Alarm service company means an entity or branch office from which 
all of the installation, service, and maintenance of alarm systems are 
provided, and the monitoring and investigation of such systems are 
either provided by its own personnel or with personnel assigned by this 
location.
    Alarm system description form means a form describing an alarm 
system and monitoring information.
    Approved security container means a GSA approved security container 
originally procured through the Federal Supply system. The security 
containers bear the GSA Approval label on the front face of the 
container, which identifies them as meeting the testing requirements of 
the assigned federal specification and having been maintained according 
to Federal Standard 809.
    Approved vault means a vault built to Federal Standard 832 and 
approved by the CSA.

[[Page 504]]

    AUS community consists of the Government of Australia entities and 
Australian non-governmental facilities identified on the DDTC website 
(https://pmddtc.state.gov/) at the time of export or transfer.
    Authorized person means a person who has a favorable determination 
of eligibility for access to classified information, has signed an 
approved nondisclosure agreement, and has a need-to-know.
    Branch office means an office of an entity which is located 
somewhere other than the entity's main office location. A branch office 
is simply another location of the same legal business entity, and is 
still involved in the business activities of the entity.
    CCIPP means security sharing of classified information under a 
designated critical infrastructure protection program with such 
authorized individuals and organizations as determined by the Secretary 
of Homeland Security.
    CDC means a subset of contractors cleared under the NISP who have 
classified contracts with the DoD.
    Certification means comprehensive evaluation of an information 
system component that establishes the extent to which a particular 
design and implementation meets a set of specified security 
requirements.
    Classification guide means a document issued by an authorized 
original classifier that identifies the elements of information 
regarding a specific subject that must be classified and prescribes the 
level and duration of classification and appropriate declassification 
instructions.
    Classified contract means any contract, license, agreement, or grant 
requiring access to classified information by a contractor and its 
employees for performance. A contract is referred to in this rule as a 
``classified contract'' even when the contract document and the contract 
provisions are not classified. The requirements prescribed for a 
``classified contract'' also are applicable to all phases of 
precontract, license or grant activity, including solicitations (bids, 
quotations, and proposals), precontract negotiations, post-contract 
activity, or other government contracting activity (GCA) programs or 
projects which require access to classified information by a contractor.
    Classified covered information system means an information system 
that is owned or operated by or for a cleared defense contractor and 
that processes, stores, or transmits information created by or for the 
DoD with respect to which such contractor is required to apply enhanced 
protection (e.g., classified information). A classified covered 
information system is a type of covered network consistent with the 
requirements of Section 941 of Public Law 112-239 and 10 U.S.C. 391.
    Classified information means information that has been determined, 
pursuant to E.O. 13526, or any predecessor or successor order, and the 
AEA of 1954, as amended, to require protection against unauthorized 
disclosure in the interest of national security and which has been so 
designated. The term includes NSI, RD, and FRD.
    Classified meetings means a conference, seminar, symposium, exhibit, 
convention, training course, or other such gathering during which 
classified information is disclosed.
    Classified visit means a visit during which a visitor will require, 
or is expected to require, access to classified information.
    Classifier means any person who makes a classification determination 
and applies a classification category to information or material. The 
determination may be an original classification action or it may be a 
derivative classification action. Contractors make derivative 
classification determinations based on classified source material, a 
security classification guide, or a contract security classification 
specification, or equivalent.
    Cleared commercial carrier means a carrier that is authorized by 
law, regulatory body, or regulation to transport SECRET and CONFIDENTIAL 
material and has been granted a SECRET facility clearance in accordance 
with the NISP.
    Cleared employees means all employees of industrial or commercial 
contractors, licensees, certificate holders, or grantees of an agency, 
as well as all employees of subcontractors and personal services 
contractor personnel,

[[Page 505]]

and who are granted favorable eligibility determinations for access to 
classified information by a CSA or are being processed for eligibility 
determinations for access to classified information by a CSA. A 
contractor may give an employee access to classified information in 
accordance with the provisions of Sec.  117.10(a)(1)(iii).
    Closed area means an area that meets the requirements of this rule 
for safeguarding classified material that, because of its size, nature, 
or operational necessity, cannot be adequately protected by the normal 
safeguards or stored during nonworking hours in approved containers.
    CNWDI means a DoD category of TOP SECRET RD or SECRET RD information 
that reveals the theory of operation or design of the components of a 
thermonuclear or fission bomb, warhead, demolition munition, or test 
device. Specifically excluded is information concerning arming, fusing, 
and firing systems; limited life components; and total contained 
quantities of fissionable, fusionable, and high explosive materials by 
type. Among these excluded items are the components that DoD personnel 
set, maintain, operate, test or replace.
    Compromise means an unauthorized disclosure of classified 
information.
    COMSEC means the protective measures taken to deny unauthorized 
persons information derived from USG telecommunications relating to 
national security and to ensure the authenticity of such communications.
    CONFIDENTIAL means the classification level applied to information, 
the unauthorized disclosure of which reasonably could be expected to 
cause damage to the national security that the original classification 
authority (OCA) is able to identify or describe.
    Consignee means a person, firm, or Government (i.e., USG or foreign 
government) activity named as the receiver of a shipment; one to whom a 
shipment is consigned.
    Consignor means a person, firm, or Government (i.e., USG or foreign 
government) activity by which articles are shipped. The consignor is 
usually the shipper.
    Constant surveillance service means a transportation protective 
service provided by a commercial carrier qualified by the Surface 
Deployment and Distribution Command to transport CONFIDENTIAL shipments. 
The service requires constant surveillance of the shipment at all times 
by a qualified carrier representative; however, an FCL is not required 
for the carrier. The carrier providing the service must maintain a 
signature and tally record for the shipment.
    Consultant means an individual under contract, and compensated 
directly, to provide professional or technical assistance to a 
contractor in a capacity requiring access to classified information.
    Continuous evaluation as defined in SEAD 6 is a personnel security 
investigative process to review the background of a covered individual 
who has been determined to be eligible for access to classified 
information or to hold a sensitive position at any time during the 
period of eligibility. Continuous evaluation leverages a set of 
automated records checks and business rules, to assist in the ongoing 
assessment of an individual's continued eligibility. It supplements, but 
does not replace, the established personnel security program for 
scheduled periodic reinvestigations of individuals for continuing 
eligibility.
    Continuous monitoring program means a system that facilitates 
ongoing awareness of threats, vulnerabilities, and information security 
to support organizational risk management decisions.
    Contracting officer means a USG official who, in accordance with 
departmental or agency procedures, has the authority to enter into and 
administer contracts, licenses or grants and make determinations and 
findings with respect thereto, or any part of such authority. The term 
also includes the designated representative of the contracting officer 
acting within the limits of his or her authority.
    Contractor means any industrial, educational, commercial, or other 
entity that has been granted an entity eligibility determination by a 
CSA. This term also includes licensees, grantees, or certificate holders 
of the USG with an entity eligibility determination granted by a CSA. As 
used in this rule,

[[Page 506]]

``contractor'' does not refer to contractor employees or other 
personnel.
    Cooperative agreement means a legal instrument which, consistent 
with 31 U.S.C. 6305, is used to enter into the same kind of relationship 
as a grant (see definition of ``grant'' in this subpart), except that 
substantial involvement is expected between USG and the recipient when 
carrying out the activity contemplated by the cooperative agreement. The 
term does not include ``cooperative research and development 
agreements'' as defined in 15 U.S.C. 3710a.
    Cooperative research and development agreement means any agreement 
between one or more Federal laboratories and one or more non-Federal 
parties under which the Government, through its laboratories, provides 
personnel, services, facilities, equipment, intellectual property, or 
other resources with or without reimbursement (but not funds to non-
Federal parties) and the non-Federal parties provide funds, personnel, 
services, facilities, equipment, intellectual property, or other 
resources toward the conduct of specified research or development 
efforts which are consistent with the missions of the laboratory; except 
that such term does not include a procurement contract or cooperative 
agreement as those terms are used in sections 6303, 6304, and 6305 of 
title 31.
    Corporate family means an entity, its parents, subsidiaries, 
divisions, and branch offices.
    Counterintelligence means information gathered and activities 
conducted to protect against espionage, other intelligence activities, 
sabotage, or assassinations conducted for or on behalf of foreign 
powers, organizations or persons, or international terrorist activities, 
but not including personnel, physical, document or communications 
security programs.
    Courier means a cleared employee, designated by the contractor, 
whose principal duty is to transmit classified material to its 
destination, ensuring that the classified material remains under their 
constant and continuous protection and that they make direct point-to-
point delivery.
    CRYPTO means the marking or designator that identifies unencrypted 
COMSEC keying material used to secure or authenticate telecommunications 
carrying classified or sensitive USG or USG-derived information. This 
includes non-split keying material used to encrypt or decrypt COMSEC 
critical software and software based algorithms.
    CSA means an agency designated as having NISP implementation and 
security responsibilities for its own agencies (including component 
agencies) and any entities and non-CSA agencies under its cognizance. 
The CSAs are: DoD; DOE; NRC; ODNI; and DHS.
    CSO means an organizational unit to which the head of a CSA 
delegates authority to administer industrial security services on behalf 
of the CSA.
    CUI means information the USG creates or possesses, or that an 
entity creates or possesses for or on behalf of the USG, that a law, 
regulation, or USG-wide policy requires or permits an agency to handle 
using safeguarding or dissemination controls. However, CUI does not 
include classified information or information a non-executive branch 
entity possesses and maintains in its own systems that did not come 
from, or was not created or possessed by or for, an executive branch 
agency or an entity acting for an agency.
    Custodian means an individual who has possession of, or is otherwise 
charged with, the responsibility for safeguarding classified 
information.
    Cybersecurity means prevention of damage to, protection of, and 
restoration of computers, electronic communications systems, electronic 
communications services, wire communication, and electronic 
communication, including information contained therein, to ensure its 
availability, integrity, authentication, confidentiality, and 
nonrepudiation.
    Cyber incident means actions taken through the use of computer 
networks that result in an actual or potentially adverse effect on an 
information system or the information residing therein.
    Declassification means a date or event which coincides with the 
lapse of the information's national security sensitivity, as determined 
by the OCA. Declassification occurs when the OCA has

[[Page 507]]

determined that the classified information no longer requires, in the 
interest of national security, any degree of protection against 
unauthorized disclosure, and the information has had its classification 
designation removed or cancelled.
    Defense articles means those articles, services, and related 
technical data, including software, in tangible or intangible form, 
which are listed on the United States Munitions List (USML) of the 
International Traffic in Arms Regulations (ITAR), as modified or 
amended. Defense articles exempt from the scope of ITAR section 126.17 
are identified in Supplement No. 1 to Part 126 of the ITAR.
    Defense services means:
    (1) Furnishing assistance (including training) to foreign persons, 
whether in the United States or abroad, in the design, development, 
engineering, manufacture, production, assembly, testing, repair, 
maintenance, modification, operation, demilitarization, destruction, 
processing or use of defense articles;
    (2) Furnishing to foreign persons any controlled technical data, 
whether in the United States or abroad; or
    (3) Providing military training of foreign units and forces, regular 
and irregular, including formal or informal instruction of foreign 
persons in the United States or abroad or by correspondence courses, 
technical, educational, or information publications and media of all 
kinds, training aid, orientation, training exercise, and military 
advice.
    Derivative classification means the incorporating, paraphrasing, 
restating, or generating in new form information that is already 
classified, and marking the newly developed material consistent with the 
classification markings that apply to the source information. Derivative 
classification includes classifying information based on classification 
guidance. Duplicating or reproducing existing classified information is 
not derivative classification.
    Document means any recorded information, regardless of the nature of 
the medium, or the method or circumstances of recording.
    Downgrade means a determination by a declassification authority that 
information classified and safeguarded at a specified level will be 
classified and safeguarded at a lower level.
    Embedded system means an information system that performs or 
controls a function, either in whole or in part, as an integral element 
of a larger system or subsystem, such as, ground support equipment, 
flight simulators, engine test stands, or fire control systems.
    Empowered official is defined in 22 CFR part 120.
    Entity is a generic and comprehensive term which may include sole 
proprietorships, partnerships, corporations, limited liability 
companies, societies, associations, institutions, contractors, 
licensees, grantees, certificate holders, and other organizations 
usually established and operating to carry out a commercial, industrial, 
educational, or other legitimate business, enterprise, or undertaking, 
or parts of these organizations. It may reference an entire 
organization, a prime contractor, parent organization, a branch or 
division, another type of sub-element, a sub-contractor, subsidiary, or 
other subordinate or connected entity (referred to as ``sub-entities'' 
when necessary to distinguish such entities from prime or parent 
entities). It may also reference a specific location or facility, or the 
headquarters or official business location of the organization, 
depending upon the organization's business structure, the access needs 
involved, and the responsible CSA's procedures. The term ``entity'' as 
used in this rule refers to the particular entity to which an agency 
might release, or is releasing, classified information, whether that 
entity is a parent or subordinate organization. The term ``entity'' in 
this rule includes contractors.
    Entity eligibility determination means an assessment by the CSA as 
to whether an entity is eligible for access to classified information of 
a certain level (and all lower levels). Entity eligibility 
determinations may be broad or limited to specific contracts, sponsoring 
agencies, or circumstances. A favorable entity eligibility determination 
results in eligibility to access classified information under the 
cognizance of the responsible CSA to the level approved. When the entity 
would be accessing categories of information such as RD

[[Page 508]]

or SCI for which the CSA for that information has set additional 
requirements, CSAs must also assess whether the entity is eligible for 
access to that category of information. Some CSAs refer to their 
favorable entity eligibility determinations as FCLs. However, a 
favorable entity eligibility determination for the DHS CCIPP is not 
equivalent to an FCL and does not meet the requirements for FCL 
reciprocity. A favorable entity eligibility determination does not 
convey authority to store classified information.
    Escort means a cleared person, designated by the contractor, who 
accompanies a shipment of classified material to its destination. The 
classified material does not remain in the personal possession of the 
escort but the conveyance in which the material is transported remains 
under the constant observation and control of the escort.
    Extent of protection means the designation (such as ``Complete'') 
used to describe the degree of alarm protection installed in an alarmed 
area.
    Facility means a plant, laboratory, office, college, university, or 
commercial structure with associated warehouses, storage areas, 
utilities, and components, that, when related by function and location, 
form an operating entity.
    FCL means an administrative determination that, from a security 
viewpoint, an entity is eligible for access to classified information of 
a certain level (and all lower levels) (e.g., a type of favorable entity 
eligibility determination used by some CSAs). An entity eligibility 
determination for the DHS CCIPP is not the equivalent of an FCL and does 
not meet the requirements for FCL reciprocity.
    FGI means information that is:
    (1) Provided to the United States by a foreign government or 
governments, an international organization of governments, or any 
element thereof with the expectation, expressed or implied, that the 
information, the source of the information, or both, are to be held in 
confidence; or
    (2) Produced by the United States pursuant to, or as a result of, a 
joint arrangement with a foreign government or governments, an 
international organization of governments, or any element thereof, 
requiring that the information, the arrangement, or both are to be held 
in confidence.
    Foreign interest means any foreign government, agency of a foreign 
government, or representative of a foreign government; any form of 
business enterprise or legal entity organized, chartered or incorporated 
under the laws of any country other than the United States or its 
territories, and any person who is not a citizen or national of the 
United States.
    Foreign national means any person who is not a citizen or national 
of the United States.
    Foreign person is defined in 31 CFR 800.224 for CFIUS purposes.
    FRD means classified information removed from the Restricted Data 
category upon a joint determination by the DOE and DoD that such 
information relates primarily to the military utilization of atomic 
weapons and that such information can be adequately safeguarded as 
classified defense information.
    Freight forwarder (transportation agent) means any agent or facility 
designated to receive, process, and transship U.S. material to foreign 
recipients. In the context of this rule, it means an agent or facility 
cleared specifically to perform these functions for the transfer of U.S. 
classified material to foreign recipients.
    GCA means an element of an agency that the agency head has 
designated and delegated broad authority regarding acquisition 
functions. A foreign government may also be a GCA.
    Governing board means an entity's board of directors, board of 
managers, board of trustees, or equivalent governing body.
    Grant means a legal instrument which, consistent with 31 U.S.C. 
6304, is used to enter into a relationship: (a) Of which the principal 
purpose is to transfer a thing of value to the recipient to carry out a 
public purpose of support or stimulation authorized by a law of the 
United States, rather than to acquire property or services for the USG's 
direct benefit or use; or, (b) In which substantial involvement is not 
expected between DoD and the recipient when carrying out the activity 
contemplated by the award. Throughout

[[Page 509]]

this rule, the term grant will include both the grant and cooperative 
agreement.
    Grantee means the entity that receives a grant or cooperative 
agreement.
    Hand carrier means a cleared employee, designated by the contractor, 
who occasionally hand carries classified material to its destination in 
connection with a classified visit or meeting. The classified material 
remains in the personal possession of the hand carrier except for 
authorized overnight storage.
    Home office means the headquarters of a multiple facility entity.
    Industrial security means that portion of information security 
concerned with the protection of classified information in the custody 
of U.S. industry.
    Information means any knowledge that can be communicated or 
documentary material, regardless of its physical form or 
characteristics.
    Information security means the system of policies, procedures, and 
requirements established pursuant to executive order, statute, or 
regulation to protect information that, if subjected to unauthorized 
disclosure, could reasonably be expected to cause damage to national 
security. The term also applies to policies, procedures, and 
requirements established to protect unclassified information that may be 
withheld from release to the public.
    Information system means an assembly of computer hardware, software, 
and firmware configured for the purpose of automating the functions of 
calculating, computing, sequencing, storing, retrieving, displaying, 
communicating, or otherwise manipulating data, information and textual 
material.
    Insider means cleared contractor personnel with authorized access to 
any USG or contractor resource, including personnel, facilities, 
information, equipment, networks, and systems.
    Insider threat means the likelihood, risk, or potential that an 
insider will use his or her authorized access, wittingly or unwittingly, 
to do harm to the national security of the United States. Insider 
threats may include harm to contractor or program information, to the 
extent that the information impacts the contractor or agency's 
obligations to protect classified NSI.
    Joint venture means an association of two or more persons or 
entities engaged in a single defined project with all parties 
contributing assets and efforts, and sharing in the management, profits 
and losses, in accordance with the terms of an agreement among the 
parties.
    KMP means an entity's senior management official (SMO), facility 
security officer (FSO), insider threat program senior official (ITPSO), 
and all other entity officials who either hold majority interest or 
stock in, or have direct or indirect authority to influence or decide 
issues affecting the management or operations of, the entity or 
classified contract performance.
    L access authorization means an access determination that is granted 
by DOE or NRC based on a Tier 3 or successor background investigation as 
set forth in applicable national-level requirements and DOE directives. 
Within DOE and NRC, an ``L'' access authorization permits an individual 
who has an official ``need to know'' to access Confidential Restricted 
Data, Secret and Confidential Formerly Restricted Data, Secret and 
Confidential Transclassified Foreign Nuclear Information, or Secret and 
Confidential National Security Information, required in the performance 
of official duties. An ``L'' access authorization determination is 
required for individuals with a need to know outside of DOE, NRC, DoD, 
and in limited cases NASA, to access Confidential Restricted Data.
    LAA means security access authorization to CONFIDENTIAL or SECRET 
information granted to non-U.S. citizens requiring only limited access 
in the course of their regular duties.
    Material means any product or substance on or in which information 
is embodied.
    Matter means anything in physical form that contains or reveals 
classified information.
    Media means physical devices or writing surfaces including but not 
limited to, magnetic tapes, optical disks, magnetic disks, large-scale 
integration memory chips, and printouts (but not including display 
media) onto which

[[Page 510]]

information is recorded, stored, or printed within an information 
system.
    MFO means a legal entity (single proprietorship, partnership, 
association, trust, or corporation) composed of two or more entities 
(facilities).
    National of the United States means a person who owes permanent 
allegiance to the United States. All U.S. citizens are U.S. nationals; 
however, not all U.S. nationals are U.S. citizens (for example, persons 
born in American Samoa or Swains Island).
    NATO information means information bearing NATO markings, indicating 
the information is the property of NATO, access to which is limited to 
representatives of NATO and its member nations unless NATO authority has 
been obtained to release outside of NATO.
    NATO visits means visits by personnel representing a NATO entity and 
relating to NATO contracts and programs.
    Need-to-know means a determination made by an authorized holder of 
classified information that a prospective recipient has a requirement 
for access to, knowledge of, or possession of the classified information 
to perform tasks or services essential to the fulfillment of a 
classified contract or program.
    Network means a system of two or more information systems that can 
exchange data or information.
    NNPI is classified or unclassified information concerning the 
design, arrangement, development, manufacture, testing, operation, 
administration, training, maintenance, and repair of the propulsion 
plants of naval nuclear-powered ships and prototypes, including the 
associated shipboard and shore-based nuclear support facilities.
    Non-DoD executive branch agencies means the non-DoD agencies that 
have entered into agreements with DoD to receive NISP industrial 
security services from DoD. A list of these agencies is on the Defense 
Counterintelligence and Security Agency website at https://www.dcsa.mil.
    Non-Federal information system is defined in 32 CFR part 2002.
    NRTL means a private sector organizations recognized by the 
Occupational Safety and Health Administration to perform certification 
for certain products to ensure that they meet the requirements of both 
the construction and general industry Occupational Safety and Health 
Administration electrical standards. Each NRTL is recognized for a 
specific scope of test standards.
    NSI means information that has been determined pursuant to E.O. 
13526 or predecessor order to require protection against unauthorized 
disclosure and marked to indicate its classified status.
    NTIB means the industrial bases of the United States and Australia, 
Canada, and the United Kingdom.
    NTIB entity means a person that is a subsidiary located in the 
United States for which the ultimate parent entity and any intermediate 
parent entities of such subsidiary are located in a country that is part 
of the national technology and industrial base (as defined in section 
2500 of title 10, United States Code); and that is subject to the 
foreign ownership, control, or influence requirements of the National 
Industrial Security Program.
    Nuclear weapon data means Restricted Data or Formerly Restricted 
Data concerning the design, manufacture, or utilization (including 
theory, development, storage, characteristics, performance and effects) 
of nuclear explosives, nuclear weapons or nuclear weapon components, 
including information incorporated in or related to nuclear explosive 
devices. Nuclear weapon data is matter in any combination of documents 
or material, regardless of physical form or characteristics.
    OCA means an individual authorized in writing, either by the 
President, the Vice President, or by agency heads or other officials 
designated by the President, to classify information in the first 
instance.
    Original classification means an initial determination that 
information requires, in the interest of national security, protection 
against unauthorized disclosure. Only USG officials who have been 
designated in writing may apply an original classification to 
information.
    Parent means an entity that owns at least a majority of another 
entity's voting securities.
    PCL means an administrative determination that an individual is 
eligible,

[[Page 511]]

from a security point of view, for access to classified information of 
the same or lower category as the level of the personnel clearance being 
granted.
    Prime contract means a contract awarded by a GCA to a contractor for 
a legitimate USG purpose.
    Prime contractor means the contractor who receives a prime contract 
from a GCA.
    Privileged user means a user that is authorized (and, therefore, 
trusted) to perform security-relevant functions that ordinary users are 
not authorized to perform.
    Proscribed information means:
    (1) TOP SECRET information;
    (2) COMSEC information or material, excluding controlled 
cryptographic items when unkeyed or utilized with unclassified keys.
    (3) RD;
    (4) SAP information; or.
    (5) SCI.
    Protective security service means a transportation protective 
service provided by a cleared commercial carrier qualified by DoD's 
Surface Deployment and Distribution Command to transport SECRET 
shipments.
    Q access authorization means an access determination that is granted 
by DOE or NRC based on a Tier 5 or successor background investigation as 
set forth in applicable national-level requirements and DOE directives. 
Within DOE and the NRC, a ``Q'' access authorization permits an 
individual with an official ``need to know'' to access Top Secret, 
Secret and Confidential Restricted Data, Formerly Restricted Data, 
Transclassified Foreign Nuclear Information, National Security 
Information, or special nuclear material in Category I or II quantities, 
as required in the performance of official duties. A ``Q'' access 
authorization is required for individuals with a need to know outside of 
DOE, NRC, DoD, and in a limited case NASA, to access Top Secret and 
Secret Restricted Data.
    Remote terminal means a device communicating with an automated 
information system from a location that is not within the central 
computer facility.
    Restricted area means a controlled access area established to 
safeguard classified material that, because of its size or nature, 
cannot be adequately protected during working hours by the usual 
safeguards, but is capable of being stored during non-working hours in 
an approved repository or secured by other methods approved by the CSA.
    RD means all data concerning (1) design, manufacture, or utilization 
of atomic weapons; (2) the production of special nuclear material; or 
(3) the use of special nuclear material in the production of energy, but 
does not include data declassified or removed from the RD category 
pursuant to section 142 of the AEA.
    SAP means any program that is established to control access and 
distribution and to provide protection for particularly sensitive 
classified information beyond that normally required for TOP SECRET, 
SECRET, or CONFIDENTIAL information. A SAP can be created or continued 
only as authorized by a senior agency official delegated such authority 
pursuant to E.O. 13526.
    Schedule 13D means a form required by the Securities and Exchange 
Commission when a person or group of persons acquires beneficial 
ownership of more than 5% of a voting class of a company's equity 
securities registered under Section 12 of the ``Securities Exchange Act 
of 1934'' (available at: https://www.sec.gov/fast-answers/ 
answerssched13htm.html).
    SCI means a subset of classified national intelligence concerning or 
derived from intelligence sources, methods or analytical processes that 
is required to be protected within formal access control systems 
established by the DNI.
    SECRET means the classification level applied to information, the 
unauthorized disclosure of which reasonably could be expected to cause 
serious damage to the national security that the OCA is able to identify 
or describe.
    Security in depth means a determination made by the CSA that a 
contractor's security program consists of layered and complementary 
security controls sufficient to deter and detect unauthorized entry and 
movement within the facility. Examples include, but are not limited to, 
use of perimeter fences, employee and visitor access controls, use of an 
Intrusion Detection System

[[Page 512]]

(IDS), random guard patrols throughout the facility during nonworking 
hours, closed circuit video monitoring, or other safeguards that 
mitigate the vulnerability of open storage areas without alarms and 
security storage cabinets during nonworking hours.
    Security violation means failure to comply with the policy and 
procedures established by this part that reasonably could result in the 
loss or compromise of classified information.
    Shipper means one who releases custody of material to a carrier for 
transportation to a consignee. (See also ``Consignor.'')
    SMO is the contractor's official responsible for the entity policy 
and strategy. The SMO is an entity employee occupying a position in the 
entity with ultimate authority over the facility's operations and the 
authority to direct actions necessary for the safeguarding of classified 
information in the facility. This includes the authority to direct 
actions necessary to safeguard classified information when the access to 
classified information by the facility's employees is solely at other 
contractor facilities or USG locations.
    Source document means an existing document that contains classified 
information that is incorporated, paraphrased, restated, or generated in 
new form into a new document.
    Standard practice procedures means a document prepared by a 
contractor that implements the applicable requirements of this rule for 
the contractor's operations and involvement with classified information 
at the contractor's facility.
    Subcontract means any contract entered into by a contractor to 
furnish supplies or services for performance of a prime contract or a 
subcontract. It includes a contract, subcontract, purchase order, lease 
agreement, service agreement, request for quotation (RFQ), request for 
proposal (RFP), invitation for bid (IFB), or other agreement or 
procurement action between contractors that requires or will require 
access to classified information to fulfill the performance requirements 
of a prime contract.
    Subcontractor means a supplier, distributor, vendor, or firm that 
enters into a contract with a prime contractor to furnish supplies or 
services to or for the prime contractor or another subcontractor. For 
the purposes of this rule, each subcontractor will be considered as a 
prime contractor in relation to its subcontractors.
    Subsidiary means an entity in which another entity owns at least a 
majority of its voting securities.
    System software means computer programs that control, monitor, or 
facilitate use of the information system; for example, operating 
systems, programming languages, communication, input-output controls, 
sorts, security packages, and other utility-type programs. Also includes 
off-the-shelf application packages obtained from manufacturers and 
commercial vendors, such as for word processing, spreadsheets, data base 
management, graphics, and computer-aided design.
    Technical data means:
    (1) Information, other than software, which is required for the 
design, development, production, manufacture, assembly, operation, 
repair, testing, maintenance or modification of defense articles. This 
includes information in the form of blueprints, drawings, photographs, 
plans, instructions or documentation.
    (2) Classified information relating to defense articles and defense 
services on the U.S. Munitions List and 600-series items controlled by 
the Commerce Control List.
    (3) Information covered by an invention secrecy order.
    (4) Software directly related to defense articles.
    TFNI means classified information concerning the nuclear energy 
programs of other nations (including subnational entities) removed from 
the RD category under section 142(e) of the AEA after the DOE and the 
Director of National Intelligence jointly determine that it is necessary 
to carry out intelligence-related activities under the provisions of the 
National Security Act of 1947, as amended, and that it can be adequately 
safeguarded as NSI instead. This includes information removed from the 
RD category by past joint determinations between DOE and the CIA. TFNI 
does not include information transferred to the United States under an 
Agreement for Cooperation

[[Page 513]]

under the Atomic Energy Act or any other agreement or treaty in which 
the United States agrees to protect classified information.
    TOP SECRET means the classification level applied to information, 
the unauthorized disclosure of which reasonably could be expected to 
cause exceptionally grave damage to the national security that the OCA 
is able to identify or describe.
    Transmission means sending information from one place to another by 
radio, microwave, laser, or other non-connective methods, as well as by 
cable, wire, or other connective medium. Transmission also includes 
movement involving the actual transfer of custody and responsibility for 
a document or other classified material from one authorized addressee to 
another.
    Transshipping activity means a government activity to which a 
carrier transfers custody of freight for reshipment by another carrier 
to the consignee.
    UK community consists of the UK Government entities with facilities 
and UK non-governmental facilities identified on the DDTC website 
(https://www.pmddtc.state.gov/) at the time of export.
    Unauthorized person means a person not authorized to have access to 
specific classified information in accordance with the requirements of 
this rule.
    United States means the 50 states and the District of Columbia.
    United States and its territorial areas means the 50 states, the 
District of Columbia, Puerto Rico, Guam, American Samoa, the Virgin 
Islands, Wake Island, Johnston Atoll, Kingman Reef, Palmyra Atoll, Baker 
Island, Howland Island, Jarvis Island, Midway Islands, Navassa Island, 
and Northern Mariana Islands.
    Upgrade means a determination that certain classified information, 
in the interest of national security, requires a higher degree of 
protection against unauthorized disclosure than currently provided, 
coupled with a change to the classification designation to reflect the 
higher degree.
    U.S. classified cryptographic information means a cryptographic key 
and authenticators that are classified and are designated as TOP SECRET 
CRYPTO or SECRET CRYPTO. This means all cryptographic media that embody, 
describe, or implement classified cryptographic logic, to include, but 
not limited to, full maintenance manuals, cryptographic descriptions, 
drawings of cryptographic logic, specifications describing a 
cryptographic logic, and cryptographic software, firmware, or 
repositories of such software such as magnetic media or optical disks.
    U.S. person means a United States citizen, an alien known by the 
intelligence agency concerned to be a permanent resident alien, an 
unincorporated association substantially composed of United States 
citizens or permanent resident aliens, or a corporation incorporated in 
the United States, except for a corporation directed and controlled by a 
foreign government or governments.
    Voting securities means any securities that presently entitle the 
owner or holder thereof to vote for the election of directors of the 
issuer or, with respect to unincorporated entities, individuals 
exercising similar functions.
    Working hours means the period of time when:
    (1) There is present in the specific area where classified material 
is located, a work force on a regularly scheduled shift, as contrasted 
with employees working within an area on an overtime basis outside of 
the scheduled work shift; and
    (2) The number of employees in the scheduled work force is 
sufficient in number and so positioned to be able to detect and 
challenge the presence of unauthorized personnel. This would, therefore, 
exclude janitors, maintenance personnel, and other individuals whose 
duties require movement throughout the facility.
    Working papers means documents or materials, regardless of the 
media, which are expected to be revised prior to the preparation of a 
finished product for dissemination or retention.



Sec.  117.4  Policy.

    E.O. 12829 established the NISP to serve as a single, integrated, 
cohesive industrial security program to protect classified information 
and preserve our

[[Page 514]]

Nation's economic and technological interests.
    (a) When contracts, licenses, agreements, and grants to contractors 
require access to classified information, national security requires 
that this information be safeguarded in a manner equivalent to its 
protection within the executive branch of the USG.
    (b) National security requires that the industrial security program 
promote the economic and technological interests of the United States. 
Redundant, overlapping, or unnecessary requirements impede those 
interests.



Sec.  117.5  Information collections.

    The information collection requirements are:
    (a) Standard Form (SF) 328 ``Certificate Pertaining to Foreign 
Interest'' (available at: https://www.gsa.gov/forms-library/ 
certificate-pertaining-foreign-interests) in Sec.  117.8 and Sec.  
117.11, is assigned Office of Management and Budget (OMB) Control Number 
0704-0579. The expiration date of this information collection is listed 
in the DoD Information Collections System at https://
apps.sp.pentagon.mil/ sites/dodiic/Pages/default.aspx.
    (b) NRC collection. ``Facility Security Clearance and Safeguarding 
of National Security Information and Restricted Data,'' is assigned OMB 
Control Number: 3150-0047. Under this collection, NRC-regulated 
facilities and other organizations are required to provide information 
and maintain records to ensure that an adequate level of protection is 
provided to NRC-classified information and material.
    (c) DOE collection. ``Security,'' a NISP CSA information collection, 
is assigned OMB Control Number: 1910-1800. This information collection, 
which includes facility security clearance information, is used by the 
DOE to exercise management, oversight, and control over its contractors' 
management and operation of DOE's Government-owned contractor-operated 
facilities, and over its offsite contractors. The contractor management, 
oversight, and control functions relate to the ways in which DOE 
contractors provide goods and services for DOE organizations and 
activities in accordance with the terms of their contracts and the 
applicable statutory, regulatory, and mission support requirements of 
the Department. Information collected from private industry and private 
individuals is used to protect national security and critical assets 
entrusted to the Department.
    (d) DoD collection. ``DoD Security Agreement,'' is assigned OMB 
Control Number: 0704-0194. ``National Industrial Security System,'' a 
CSA information collection, is assigned OMB Control Number: 0704-0571, 
and is a DoD information collection used to conduct its monitoring and 
oversight of contractors. Department of Defense ``Contract Security 
Classification Specification,'' (available at: https://www.esd.whs.mil/ 
Portals/54/Documents/DD/forms/ dd/dd0254.pdf and available at: https://
www.dcsa.mil/is/nccs/), is assigned OMB Control Number 0704-0567 and 
used by both DoD and agencies which have an industrial security 
agreement with DoD. ``Defense Information System for Security,'' is 
assigned OMB Control Number: 0704-0573. Defense Information System for 
Security is a DoD automated system for personnel security, providing a 
common, comprehensive medium to record, document, and identify personal 
security actions within DoD including submitting adverse information, 
verification of security clearance status, requesting investigations, 
and supporting continuous evaluation activities. It requires personal 
data collection to facilitate the initiation, investigation and 
adjudication of information relevant to DoD security clearances and 
employment suitability determinations for active duty military, civilian 
employees and contractors seeking such credentials. Joint Personnel 
Adjudicative System is assigned OMB Control Number: 0704-0496. Joint 
Personnel Adjudicative System is an information system which requires 
personal data collection to facilitate the initiation, investigation and 
adjudication of information relevant to DoD security clearances and 
employment suitability determinations for active duty military, civilian 
employees and contractors seeking such credentials.

[[Page 515]]



Sec.  117.6  Responsibilities.

    (a) Under Secretary of Defense for Intelligence & Security 
(USD(I&S)). The USD(I&S), on behalf of the Secretary of Defense, and in 
accordance with E.O. 12829, 32 CFR part 2004, and DoDI 5220.22:
    (1) Carries out the direction in section 201 of E.O. 12829 that the 
Secretary of Defense issue and maintain this rule and changes to it. The 
USD(I&S) does so in consultation with all affected agencies (E.O. 12829 
section 201), with the concurrence of the Secretary of Energy, the 
Chairman of the NRC, the DNI, and the Secretary of Homeland Security 
(E.O.12829 section 201), and in consultation with the ISOO Director 
(E.O. 12829 section 102).
    (2) Acts as the CSA for DoD.
    (3) Provides policy and management of the NISP for non-DoD executive 
branch agencies who enter into inter-agency security agreements with DoD 
to provide industrial security services required when classified 
information is disclosed to contractors in accordance with E.O. 12829, 
as amended.
    (b) Director, DCSA. Under the authority, direction, and control of 
the USD(I&S), and in accordance with DoDI 5220.22 and DoD Directive 
(DoDD) 5105.42, ``Defense Security Service (DSS)'' \1\ (available at: 
https://www.esd.whs.mil/ Portals/54/Documents/DD/ issuances/dodd/
510542p.pdf?ver= 2019-01-14-090012-283) the Director, DCSA:
---------------------------------------------------------------------------

    \1\ On June 20, 2020, the Secretary of Defense re-named the Defense 
Security Service (DSS) as the Defense Counterintelligence and Security 
Agency (DCSA), as required by Executive Oder 13467, section 2.6(b)(i) 
(as amended by Executive Order 13968, Apr. 24, 2019, 84 FR 18125). 
Pursuant to Section 4 of E.O. 13968, references to DSS in DoD issuances 
should be deemed or construed to refer to DCSA.
---------------------------------------------------------------------------

    (1) Oversees and manages DCSA, which serves as the DoD CSO.
    (2) Administers the NISP as a separate program element on behalf of 
DoD GCAs and those agencies with agreements with DoD for security 
services.
    (3) Provides security oversight of the NISP as the DoD CSO on behalf 
of DoD components and those non-DoD executive branch agencies who enter 
into agreements with DoD as noted in paragraph (a)(3) of this section. 
The Director, DCSA, will be relieved of this oversight function for DoD 
special access programs (SAPs) when the Secretary of Defense or the 
Deputy Secretary of Defense approves a carve-out provision in accordance 
with DoDD 5205.07, ``DoD SAP Policy'' (available at: https://
www.esd.whs.mil/ Portals/54/Documents/DD/ issuances/dodd/
520507p.pdf?ver= 2020-02-04-142942-827).
    (c) Secretary of Energy. In addition to the responsibilities in 
paragraph (h) of this section, the Secretary of Energy:
    (1) Prescribes procedures for the portions of this rule pertaining 
to information classified under the AEA (i.e., RD, FRD, and TFNI), as 
nothing in the rule shall be construed to supersede the authority of the 
Secretary of Energy under the AEA.
    (2) Retains authority over access to information classified under 
the AEA.
    (3) Inspects and monitors contractor, licensee, certificate holder, 
and grantee programs and facilities that involve access to information 
classified under the AEA, as necessary.
    (d) Chairman of the NRC. In addition to the responsibilities in 
paragraph (h) of this section, the Chairman of the NRC:
    (1) Prescribes procedures for the portions of this rule that pertain 
to information under NRC programs classified under the AEA, other 
federal statutes, and executive orders.
    (2) Retains authority over access to information under NRC programs 
classified under the AEA, other federal statutes, and executive orders.
    (3) Inspects and monitors contractor, licensee, certificate holder, 
and grantee programs and facilities that involve access to information 
under NRC programs classified pursuant to the AEA, other federal 
statutes, and executive orders where appropriate.
    (e) DNI. In addition to the responsibilities in paragraph (h) of 
this section, the DNI:
    (1) Prescribes procedures for the portions of this rule pertaining 
to intelligence sources, methods, and activities, including, but not 
limited to, SCI.
    (2) Retains authority over access to intelligence sources, methods, 
and activities, including SCI.
    (3) Provides guidance on the security requirements for intelligence 
sources

[[Page 516]]

and methods of information, including, but not limited to, SCI.
    (f) Secretary of Homeland Security. In accordance with E.O. 12829, 
E.O. 13691, and in addition to the responsibilities in paragraph (h) of 
this section, the Secretary of Homeland Security:
    (1) Prescribes procedures for the portions of this rule that pertain 
to the CCIPP.
    (2) Retains authority over access to information under the CCIPP.
    (3) Inspects and monitors contractor, licensee, certificate holder, 
and grantee programs and facilities that involve access to CCIPP.
    (g) All the CSA heads. The CSA heads:
    (1) Oversee the security of classified contracts and activities 
under their purview.
    (2) Provide oversight of contractors under their security 
cognizance.
    (3) Minimize redundant and duplicative security review and audit 
activities of contractors, including such activities conducted at 
contractor locations where multiple CSAs have equities.
    (4) Execute appropriate intra-agency and inter-agency agreements to 
avoid redundant and duplicate reviews.
    (5) Designate one or more CSOs for security administration.
    (6) Designate subordinate officials, in accordance with governing 
policies, to act as the authorizing official. Authorizing officials 
will:
    (i) Assess and authorize contractors to process classified 
information on information systems.
    (ii) Conduct oversight of such information system processing and 
provide information system security guidelines in accordance with 
Federal information system security control policies, standards, and 
procedures. Minimize redundant and duplicative security review and audit 
activity of contractors, including such activity conducted at contractor 
locations where multiple CSAs have equities.
    (h) Heads of component agencies. In accordance with applicable CSA 
direction, the component agency heads:
    (1) Oversee compliance with procedures identified by the applicable 
CSA or designated CSO.
    (2) Provide oversight of contractor personnel visiting or working on 
USG installations.
    (3) Promptly apprise the CSO of information received or developed 
that could adversely affect a cleared contractor, licensee, or grantee, 
and their employees, to hold an FCL or PCL, or that otherwise raises 
substantive doubt about their ability to safeguard classified 
information entrusted to them.
    (4) Propose changes to this rule as deemed appropriate and provide 
them to the applicable CSA for submission to the OUSD(I&S) 
Counterintelligence, Law Enforcement and Security Directorate.
    (i) Director, ISOO. The Director, ISOO:
    (1) Oversees the NSIP and agency compliance with it, in accordance 
with E.O. 12829.
    (2) Issues and maintains the NISP implementing directive (32 CFR 
part 2004), in accordance with E.O. 12829, to provide guidance to the 
CSAs and USG agencies under the NISP.
    (3) Chairs the NISP Policy Advisory Committee. Addresses complaints 
and suggestions from contractors, as detailed in the NISP Policy 
Advisory Committee bylaws.



Sec.  117.7  Procedures.

    (a) General. Contractors will protect all classified information 
that they are provided access to or that they possess. This 
responsibility applies at both contractor and USG locations.
    (b) Contractor Security Officials. Contractors will appoint security 
officials who are U.S. citizens, except in exceptional circumstances 
(see Sec.  117.9(m) and Sec.  117.11(e)).
    (1) Appointed security officials listed in paragraphs (b)(2), 
(b)(3), and (b)(4) of this section must:
    (i) Oversee the implementation of the requirements of this rule. 
Depending upon the size and complexity of the contractor's security 
operations, a single contractor employee may serve in more than one 
position.
    (ii) Undergo the same security training that is required for all 
other contractor employees pursuant to Sec.  117.12, in addition to 
their position specific training.

[[Page 517]]

    (iii) Be designated in writing with their designation documented in 
accordance with CSA guidance.
    (iv) Undergo a personnel security investigation and national 
security eligibility determination for access to classified information 
at the level of the entity's eligibility determination for access to 
classified information (e.g., FCL level) and be on the KMP list for the 
cleared entity.
    (2) SMO. The SMO will:
    (i) Ensure the contractor maintains a system of security controls in 
accordance with the requirements of this rule.
    (ii) Appoint a contractor employee or employees, in writing, as the 
FSO and appoint the same employee or a different employee as the ITPSO. 
The SMO may appoint a single employee for both roles or may appoint one 
employee as the FSO and a different employee as the ITPSO.
    (iii) Remain fully informed of the facility's classified operations.
    (iv) Make decisions based on classified threat reporting and their 
thorough knowledge, understanding, and appreciation of the threat 
information and the potential impacts caused by a loss of classified 
information.
    (v) Retain accountability for the management and operations of the 
facility without delegating that accountability to a subordinate 
manager.
    (3) FSO. The FSO will:
    (i) Supervise and direct security measures necessary for 
implementing the applicable requirements of this rule and the related 
USG security requirements to ensure the protection of classified 
information.
    (ii) Complete security training pursuant to Sec.  117.12 and as 
deemed appropriate by the CSA.
    (4) ITPSO. The ITPSO will establish and execute an insider threat 
program.
    (i) If the appointed ITPSO is not also the FSO, the ITPSO will 
ensure that the FSO is an integral member of the contractor's insider 
threat program.
    (ii) The ITPSO will complete training pursuant to Sec.  117.12.
    (iii) An entity family may choose to establish an entity family-wide 
insider threat program with one senior official appointed, in writing, 
to establish, and execute the program as the ITPSO. Each cleared entity 
using the entity-wide ITPSO must separately appoint that person as its 
ITPSO for that facility. The ITPSO will provide an implementation plan 
to the CSA for executing the insider threat program across the entity 
family.
    (5) ISSM. Contractors who are, or will be, processing classified 
information on an information system located at the contractor facility 
will appoint an employee to serve as the ISSM. The ISSM must be eligible 
for access to classified information to the highest level of the 
information processed on the system(s) under their responsibility. The 
contractor will ensure that the ISSM is adequately trained and possesses 
technical competence commensurate with the complexity of the 
contractor's classified information system. The contractor will notify 
the applicable CSA if there is a change in the ISSM. The ISSM will 
oversee development, implementation, and evaluation of the contractor's 
classified information system program. ISSM responsibilities are in 
Sec.  117.18.
    (6) Employees performing security duties. Those employees whose 
official duties include performance of NISP-related security functions 
will complete security training tailored to the security functions 
performed. This training requirement also applies to consultants whose 
official duties include security functions.
    (c) Other KMP. In addition to the SMO, the FSO, and the ITPSO, the 
contractor will include on the KMP list, subject to CSA concurrence, any 
other officials who either hold majority interest or stock in the 
entity, or who have direct or indirect authority to influence or decide 
issues affecting the management or operations of the contractor or 
issues affecting classified contract performance. The CSA may either:
    (1) Require these KMP to be determined to be eligible for access to 
classified information as a requirement for the entity's eligibility 
determination or;
    (2) Allow the entity to formally exclude these KMP from access to 
classified information. The entity's governing board will affirm the 
exclusion by issuing a formal action (see table),

[[Page 518]]

and provide a copy of the exclusion action to the CSA. The entity's 
governing board will document this exclusion action.

           Table 1 to Paragraph (c)(2)--Exclusion Resolutions
------------------------------------------------------------------------
     Type of affirmation        Language to be used in exclusion action
------------------------------------------------------------------------
Affirmation for Exclusion      [Insert name and address of entity or
 from Access to Classified      name and position of officer, director,
 Information.                   partner, or similar entity official or
                                officials] will not require, will not
                                have, and can be effectively and
                                formally excluded from, access to all
                                classified information disclosed to the
                                entity and does not occupy a position
                                that would enable them to adversely
                                affect the organization's policies or
                                practices in the performance of
                                classified contracts.
Affirmation for Exclusion      [Insert name and address of entity or
 from Higher-level Classified   name and position of officer, director,
 Information.                   partner, or similar entity official or
                                officials] will not require, will not
                                have, and can be effectively and
                                formally excluded from access to [insert
                                SECRET or TOP SECRET] classified
                                information and does not occupy a
                                position that would enable them to
                                adversely affect the organization's
                                policies or practices in the performance
                                of [insert SECRET or TOP SECRET]
                                classified contracts.
------------------------------------------------------------------------

    (d) Insider Threat Program. Pursuant to this rule and CSA provided 
guidance to supplement unique CSA mission requirements, the contractor 
will establish and maintain an insider threat program to gather, 
integrate, and report relevant and available information indicative of a 
potential or actual insider threat, consistent with E.O. 13587 and 
Presidential Memorandum ``National Insider Threat Policy and Minimum 
Standards for Executive Branch Insider Threat Programs.''
    (e) Standard practice procedures. The contractor will implement all 
applicable provisions of this rule at each of its cleared facility 
locations. The contractor will prepare written procedures when the CSA 
determines them to be necessary to reasonably exclude the possibility of 
loss or compromise of classified information, and in accordance with 
additional CSA-provided guidance, as applicable.
    (f) Cooperation with Federal agencies. Contractors will cooperate 
with Federal agencies and their officially credentialed USG or 
contractor representatives during official reviews, investigations 
concerning the protection of classified information, or personnel 
security investigations of present or former employees and others (e.g., 
consultants or visitors). At a minimum, cooperation includes:
    (1) Providing suitable arrangements within the facility for 
conducting private interviews with employees during normal working 
hours;
    (2) Providing, when requested, relevant employment or personnel 
files, security records, supervisory files, records pertinent to insider 
threat (e.g., security, cybersecurity, and human resources) and any 
other records pertaining to an individual under investigation that are, 
in the possession or control of the contractor or the contractor's 
representatives or located in the contractor's offices;
    (3) Providing access to employment and security records that are 
located at an offsite location; and
    (4) Rendering other necessary assistance.
    (g) Security training and briefings. Contractors will advise all 
cleared employees, including those assigned to USG locations or 
operations outside the United States, of their individual responsibility 
for classification management and for safeguarding classified 
information. Contractors will provide security training to cleared 
employees consisting of initial briefings, refresher briefings, and 
debriefings in accordance with Sec.  117.12.
    (h) Security reviews--(1) USG reviews. The applicable CSA will 
conduct recurring oversight reviews of contractors' NISP security 
programs to verify that the contractor is protecting classified 
information and implementing the provisions of this rule. The 
contractor's participation in the security review is required for 
maintaining the entity's eligibility for access to classified 
information.
    (i) Review cycle. The CSA will determine the scope and frequency of 
security reviews, which may be increased

[[Page 519]]

or decreased consistent with risk management principles.
    (ii) Procedures. (A) The CSA will generally provide notice to the 
contractor of a forthcoming review, but may also conduct unannounced 
reviews at its discretion. The CSA security review may subject 
contractor employees and all areas and receptacles under the control of 
the contractor to examination.
    (B) The CSA will make every effort to avoid unnecessary intrusion 
into the personal effects of contractor personnel.
    (C) The CSA may conduct physical examinations of the interior space 
of containers not authorized to secure classified material. Such 
examinations will always be accomplished in the presence of a 
representative of the contractor.
    (iii) Controlled unclassified information (CUI). 32 CFR part 2002 
requires agencies to implement CUI requirements, but compliance with CUI 
requirements is outside the scope of the NISP and this rule. However, 
CSAs may conduct CUI assessments in conjunction with NISP USG reviews 
when:
    (A) The contractor is a participant in the NISP based on a 
requirement to access classified information;
    (B) A classified contract under the CSA's cognizance includes 
provisions for access to, or protection or handling of, CUI; and
    (C) The CSA has provided the contractor with specific guidance 
regarding the assessment criteria and methodology it will use for 
overseeing protection of the CUI being accessed, stored or transmitted 
by the contractor as part of the classified contract.
    (2) Contractor reviews. Contractors will review their security 
programs on a continuing basis and conduct a formal self-inspection at 
least annually and at intervals consistent with risk management 
principles.
    (i) Self-inspections will include the review of the classified 
activity, classified information, classified information systems, 
conditions of the overall security program, and the insider threat 
program. They will have sufficient scope, depth, and frequency, and will 
have management support during the self-inspection and during remedial 
actions taken as a result of the self-inspection. Self-inspections will 
include the review of samples representing the contractor's derivative 
classification actions, as applicable.
    (ii) The contractor will prepare a formal report describing the 
self-inspection, its findings, and its resolution of issues discovered 
during the self-inspection. The contractor will retain the formal report 
for CSA review until after the next CSA security review is completed.
    (iii) The SMO at the cleared facility will annually certify to the 
CSA, in writing, that a self-inspection has been conducted, that other 
KMP have been briefed on the results of the self-inspection, that 
appropriate corrective actions have been taken, and that management 
fully supports the security program at the cleared facility in the 
manner as described in the certification.
    (i) Contractors working at USG locations. Contractor employees 
performing work within the confines of a USG facility will safeguard 
classified information according to the procedures of the host 
installation or agency.
    (j) Hotlines. Federal agencies maintain hotlines to provide an 
unconstrained avenue for USG and contractor employees to report, without 
fear of reprisal, known or suspected instances of security 
irregularities and infractions concerning contracts, programs, or 
projects. These hotlines do not supplant the contractor's responsibility 
to facilitate reporting and timely investigations of security issues 
concerning its operations or personnel. Contractor personnel are 
encouraged to report information through established contractor 
channels. The hotline may be used as an alternate means to report this 
type of information. Contractors will inform all personnel that hotlines 
may be used for reporting issues of national security significance. Each 
CSA will post hotline information and telephone numbers on their 
websites for contractor access.
    (k) Agency agreements. 32 CFR part 2004 and E.O. 12829 require non-
CSA agency heads to enter into agreements with the Secretary of Defense 
as the Executive Agent for the NISP to provide industrial security 
services. The

[[Page 520]]

Secretary of Defense may also enter into agreements to provide services 
for other CSA's in accordance with 32 CFR part 2004 and E.O. 12829. 
Agency agreements establish the terms of the Secretary of Defense's (or 
the Secretary of Defense's designee's) responsibilities when acting as 
the CSA on behalf of these agency heads. The list of agencies for which 
the Secretary of Defense has agreed to render industrial security 
services is on the DCSA website at https://www.dcsa.mil.
    (l) Security cognizance. The CSA will inform contractors if 
oversight has been delegated to a CSO.
    (m) Rule interpretations. Contractors will forward requests for 
interpretations of this rule to their CSA in accordance with their CSA-
provided guidance to supplement unique CSA mission requirements.
    (n) Waivers to this rule. Contractors will submit any requests to 
waive provisions of this rule in accordance with CSA procedures, which 
may include periodic review of approved waivers. When submitting a 
request for a waiver, the contractor will, in writing, explain why it is 
impractical or unreasonable for the contractor to comply with the 
requirement it is asking to waive, identify alternative measures as 
prescribed by this rule, and include a proposed duration for the waiver. 
The contractor cannot implement a waiver unless the waiver is approved 
by the applicable CSA.
    (o) Complaints and suggestions. Contractors may forward NISP 
administration complaints and suggestions to the Director of ISOO. 
However, contractors are encouraged to forward NISP administration 
complaints and suggestions to their respective CSA prior to forwarding 
to the ISOO.

                     Table 2 to Paragraph (o) NISP Administration Complaints and Suggestions
----------------------------------------------------------------------------------------------------------------
            Addressee               Mailing address    Telephone No.      Facsimile           Email address
----------------------------------------------------------------------------------------------------------------
Director, ISOO, National          700 Pennsylvania       202-357-5250     202-357-5907  [email protected].
 Archives and Records              Avenue NW, Room
 Administration.                   100, Washington,
                                   DC 20408-0001.
----------------------------------------------------------------------------------------------------------------



Sec.  117.8  Reporting requirements.

    (a) General. Pursuant to this rule, Security Executive Agent 
Directive (SEAD) 3, (available at: https://www.dni.gov/files/ NCSC/
documents/Regulations/ SEAD-3-Reporting-U.pdf) and CSA-provided guidance 
to supplement unique CSA mission requirements, contractors and their 
cleared employees are required to:
    (1) Report certain events that may have an effect on the status of 
the entity's or an employee's eligibility for access to classified 
information; report events that indicate an insider threat to classified 
information or to employees with access to classified information; 
report events that affect proper safeguarding of classified information; 
and report events that indicate classified information has been, or is 
suspected to be, lost or compromised.
    (2) Establish internal procedures to ensure employees with 
eligibility for access to classified information are aware of their 
responsibilities for reporting pertinent information to the FSO. The 
contractor will:
    (i) Provide reports to the FBI, or other Federal authorities as 
required by this rule, the terms of a classified contract or other 
agreement, and by U.S. law.
    (ii) Provide complete information to enable the CSA to ascertain 
whether classified information is adequately protected.
    (iii) Submit reports to the FBI, the CSA, or the ISOO as specified 
in paragraphs (b), (c), and (g) of this section.
    (3) Appropriately mark reports containing classified information in 
accordance with Sec.  117.14.
    (4) Clearly mark a report containing information submitted in 
confidence as containing that information. When reports contain 
information pertaining to an individual, 5 U.S.C. 552a (also known as 
and referred to in this rule as ``The Privacy Act of 1974, as 
amended,'') permits the withholding of certain information from the 
individual in accordance with specific exemptions,

[[Page 521]]

which include authority to withhold release of information to the extent 
that the disclosure of the information would reveal the identity of a 
source who furnished the information to the USG under an express promise 
that the identity of the source would be held in confidence.
    (b) Reports to be submitted to the FBI. The contractor will promptly 
submit a written report to the nearest field office of the FBI regarding 
information coming to the contractor's attention concerning actual, 
probable, or possible espionage, sabotage, terrorism, or subversive 
activities at any of its locations.
    (1) An initial report may be made by phone, but it must be followed 
up in writing (e.g., email or formal correspondence), regardless of the 
FBI's disposition of the report.
    (2) The contractor will promptly notify the CSA when they make a 
report to the FBI and provide the CSA a copy of the written report.
    (c) Reports to be submitted to the CSA--(1) Adverse information. 
Contractors are required to report adverse information coming to their 
attention concerning any of their employees determined to be eligible 
for access to classified information, in accordance with this rule, SEAD 
3, and CSA-provided guidance. Contractors will not make reports based on 
rumor or innuendo.
    (i) The termination of employment of an employee does not negate the 
requirement to submit this report. If a contractor employee is assigned 
to a USG location, the contractor will furnish a copy of the report and 
its final disposition to the USG security point of contact for that 
location.
    (ii) Pursuant to Becker v. Philco, 372 F.2d 771 (4th Cir. 1967), 
cert. denied 389 U.S. 979 (1967), and subsequent cases, a contractor may 
not be liable for defamation of an employee because of communications 
that are required of and made by a contractor to an agency of the United 
States under the requirements of this rule or under the terms of 
applicable contracts.
    (2) Suspicious contacts. Contractors will report information 
pertaining to suspicious contacts with employees determined to be 
eligible for access to classified information, and pertaining to efforts 
to obtain illegal or unauthorized access to the contractor's cleared 
facility by any means, including:
    (i) Efforts by any individual, regardless of nationality, to obtain 
illegal or unauthorized access to classified information.
    (ii) Efforts by any individual, regardless of nationality, to elicit 
information from an employee determined eligible for access to 
classified information, and any contact which suggests the employee may 
be the target of an attempted exploitation by an intelligence service of 
another country. See SEAD 3 for specific information to be reported.
    (3) Change in status of employees determined eligible for access to 
classified information. Contractors will report by means of the CSA-
designated reporting mechanism information pertaining to changes in 
status of employees determined eligible for access to classified 
information such as:
    (i) Death.
    (ii) Change in name.
    (iii) Termination of employment.
    (iv) Change in citizenship.
    (4) Citizenship by naturalization. Contractors will report if a non-
U.S. citizen employee granted an LAA becomes a citizen through 
naturalization. The report will include:
    (i) City, county, and state where naturalized.
    (ii) Date naturalized.
    (iii) Court.
    (iv) Certificate number.
    (5) Employees desiring not to be processed for a national security 
eligibility determination or not to perform classified work. Contractors 
will report instances when an employee no longer wishes to be processed 
for a determination of eligibility for access to classified information 
or to continue having access to classified information, and the reason 
for that request.
    (6) Classified information nondisclosure agreement (NDA). 
Contractors will report the refusal by an employee to sign the SF 312, 
``Classified Information Nondisclosure Agreement,'' (available at: 
https://www.gsa.gov/ cdnstatic/SF312-13.pdf? forceDownload=1) or other 
approved NDA.

[[Page 522]]

    (7) Changed conditions affecting the contractor's eligibility for 
access to classified information. Contractors are required to report 
certain events that affect the status of the entity eligibility 
determination (e.g., FCL), affect the status of an employee's PCL, may 
indicate an employee poses an insider threat, affect the proper 
safeguarding of classified information, or indicate classified 
information has been lost or compromised, including:
    (i) Change of ownership or control of the contractor, including 
stock transfers that affect control of the entity.
    (ii) Change of operating name or address of the entity or any of its 
locations determined eligible for access to classified information.
    (iii) Any change to the information previously submitted for KMP 
including, as appropriate, the names of the individuals the contractor 
is replacing. A new complete KMP listing need be submitted only at the 
discretion of the contractor or when requested by the CSA. The 
contractor will provide a statement indicating:
    (A) Whether the new KMP are cleared for access to classified 
information, and if cleared, to what level they are cleared and when 
they were cleared, their dates and places of birth, social security 
numbers, and citizenship.
    (B) Whether they have been excluded from access to classified 
information in accordance with Sec.  117.7(b)(5)(ii).
    (C) Whether they have been temporarily excluded from access to 
classified information pending the determination of eligibility for 
access to classified information in accordance with Sec.  117.9(g).
    (iv) Any action to terminate business or operations for any reason, 
imminent adjudication or reorganization in bankruptcy, or any change 
that might affect the validity of the contractor's eligibility for 
access to classified information.
    (v) Any material change concerning the information previously 
reported concerning foreign ownership, control, or influence (FOCI). 
This report will be made by the submission of an updated SF 328, 
``Certificate Pertaining to Foreign Interests,'' in accordance with CSA-
provided guidance. When submitting this information, it is not necessary 
to repeat answers that have not changed. When entering into discussion, 
consultations, or agreements that may reasonably lead to effective 
ownership or control by a foreign interest, the contractor will report 
the details to the CSA in writing. If the contractor has received a 
Schedule 13D from the investor, the contractor will forward a copy with 
the report.
    (8) Changes in storage capability. The contractor will report any 
changes in their storage requirement or capability to safeguard 
classified material.
    (9) Inability to safeguard classified material. The contractor will 
report any emergency situation that renders their location incapable of 
safeguarding classified material as soon as possible.
    (10) Unsatisfactory conditions of a prime or subcontractors. (i) 
Prime contractors, including subcontractors who have in turn 
subcontracted work, will report any information coming to their 
attention that may indicate that classified information cannot be 
adequately protected by a subcontractor, or other circumstances that may 
impact the validity of the eligibility for access to classified 
information of any subcontractors.
    (ii) Subcontractors will report any information coming to their 
attention that may indicate that classified information cannot be 
adequately protected or other circumstances that may impact the validity 
of the eligibility for access to classified information of their prime 
contractor.
    (11) Dispositioned material previously terminated. The contractor 
will make a report when the location or disposition of material 
previously terminated from accountability is subsequently discovered and 
brought back into accountability.
    (12) Foreign classified contracts. Contractors will report any pre-
contract negotiation or award not placed through a CSA or U.S. GCA that 
involves, or may involve:
    (i) The release or disclosure of U.S. classified information to a 
foreign interest.
    (ii) Access to classified information furnished by a foreign 
interest.

[[Page 523]]

    (13) Reporting of improper receipt of foreign government material. 
The contractor will report to the CSA the receipt of classified material 
from foreign interests that is not received through USG channels.
    (14) Reporting by subcontractor. Subcontractors will also notify 
their prime contractors if they make any reports to their CSA in 
accordance with the provisions of paragraphs (c)(7) through (c)(10) of 
this section.
    (d) Reports of loss, compromise, or suspected compromise. The 
contractor will report any loss, compromise, or suspected compromise of 
classified information, U.S. or foreign, to the CSA in accordance with 
paragraph (d)(1) through (d)(3) of this section. Each CSA may provide 
additional guidance concerning the reporting time period. If the 
contractor is located on a USG facility, the contractor will submit the 
report to the CSA and to the head of the USG facility.
    (1) Preliminary inquiry. Immediately upon receipt of a security 
violation report involving classified information, the contractor will 
initiate a preliminary inquiry to ascertain all of the circumstances 
surrounding the presumed loss, compromise, or suspected compromise, 
including validation of the classification of the information.
    (2) Initial report. If the contractor's preliminary inquiry confirms 
that a loss, compromise, or suspected compromise of any classified 
information occurred, the contractor will promptly submit an initial 
report of the incident unless otherwise notified by the CSA.
    (3) Final report. When the investigation has been completed, the 
contractor will submit a final report to the CSA which, in turn, will 
follow CSA procedures to notify the applicable GCA. The report will 
include:
    (i) Material and relevant information that was not included in the 
initial report.
    (ii) The full name and social security number of the individual or 
individuals primarily responsible for the incident, including a record 
of prior loss, compromise, or suspected compromise for which the 
individual had been determined responsible.
    (iii) A statement of the corrective action taken to preclude a 
recurrence.
    (iv) Disciplinary action taken against the responsible individual or 
individuals, if any.
    (v) Specific reasons for reaching the conclusion that loss, 
compromise, or suspected compromise occurred or did not occur.
    (4) Employee information in compromise cases. When requested by the 
CSA, the contractor will report information concerning an employee or 
other individual, determined to be responsible for the incident, when 
the information is needed by the CSA for the loss, compromise, or 
suspected compromise of classified information.
    (e) Individual culpability reports. Contractors will establish and 
enforce policies that provide for appropriate administrative or 
disciplinary actions taken against employees who violate the 
requirements of this rule.
    (1) Contractors will establish a system to manage and track 
information regarding employees with eligibility for access to 
classified information who violate the requirements of this rule in 
order to be able to identify patterns of negligence or carelessness, or 
to identify a potential insider threat.
    (2) Contractors will establish and apply a graduated scale of 
administrative and disciplinary actions in the event of employee 
security violations or negligence in the handling of classified 
information. CSAs may provide guidance to contractors with examples of 
administrative or disciplinary actions that the contractor may consider 
implementing in the event of employee violations or negligence. 
Contractors are required to submit a final report to the CSA with the 
findings of an employee's culpability and what corrective actions were 
taken.
    (3) Contractors will include a statement of the administrative or 
disciplinary actions taken against an employee in a final report to the 
CSA. A statement must be included when the individual responsible for a 
security violation can be determined. Contractors' final reports will 
indicate whether one or more of the following factors are evident:
    (i) Involved a deliberate disregard of security requirements.
    (ii) Involved negligence in the handling of classified material.

[[Page 524]]

    (iii) Was not deliberate in nature but reflects a recent or 
recurring pattern of questionable judgment, irresponsibility, 
negligence, or carelessness.
    (f) CDC cyber incident reports. This paragraph applies only to CDCs 
and sets forth reporting requirements pursuant to 10 U.S.C. 391 and 393 
and Defense Federal Acquisition Regulation Supplement Clause 252.204-
7012. The reporting requirements of paragraph (f) of this section are in 
addition to the requirements in paragraphs (b) and (d) of this section, 
which can include certain activities occurring on unclassified 
information systems. DoD will provide detailed reporting instructions 
for contractors affected by these references via industrial security 
letter in accordance with DoDI 5220.22.
    (1) Reports to be submitted to the designated DoD CSO. CDCs will 
immediately report to the DoD CSO, any cyber incident on a classified 
covered information system that has been approved by that CSO to process 
classified information.
    (i) At a minimum, the report will include:
    (A) A description of the technique or method used in the cyber 
incident.
    (B) A sample of the malicious software involved in the cyber 
incident, if discovered and isolated by the CDC,
    (C) A summary of information in connection with any DoD program that 
has been potentially compromised due to the cyber incident.
    (ii) Information that is reported by the CDC (or derived from 
information reported by the CDC) will be safeguarded, used, and 
disseminated in a manner consistent with DoD procedures governing the 
handling of such information pursuant to Public Law 112-239 and 10 
U.S.C. 391.
    (iii) Reports involving classified foreign government information 
will be reported to the Director, Defense Technology Security 
Administration (DoD).
    (2) Reports on non-Federal information systems not authorized to 
process classified information. CDCs will report cyber incidents on non-
Federal, unclassified information systems in accordance with contract 
requirements.
    (3) Access to equipment and information by DoD personnel. (i) The 
CDC will allow, upon request by DoD personnel, access by DoD personnel 
to additional equipment or information of the CDC that is necessary to 
conduct forensic analysis of reportable cyber incidents in addition to 
any analysis conducted by the CDC.
    (ii) The CDC is only required to provide DoD access to equipment or 
information to determine whether information created by or for DoD in 
connection with any DoD program was successfully exfiltrated from a 
CDC's network or information system, and what information was 
exfiltrated from the CDC's network or information system.
    (g) Reports to ISOO. (1) Contractors will report instances of 
redundant or duplicative security review and audit activity by the CSAs 
to the Director, ISOO, for resolution.
    (2) Contractors will report instances of CSAs duplicating processing 
to determine an entity's eligibility for access to classified 
information when there is an existing determination of an entity's 
eligibility for access to classified information by another CSA.



Sec.  117.9  Entity eligibility determination for access to classified
information.

    (a) General. This section applies to all contractors with entity 
eligibility determinations, except as provided in Sec.  117.22 for 
entity eligibility determinations for participation in the CCIPP under 
the cognizance of DHS.
    (1) Prior to the entity being granted an entity eligibility 
determination for access to classified information, the responsible CSA 
must have determined that:
    (i) The entity is eligible for access to classified information to 
meet a legitimate USG or foreign government need.
    (ii) Access is consistent with national security interests.
    (2) The CSA will provide guidance on processing entity eligibility 
determinations for entity access to classified information.
    (3) The determination of entity eligibility for access is separate 
from the determination of a classified information safeguarding 
capability (see Sec.  117.15).
    (4) Neither the contractor nor its employees will be permitted 
access to classified information until the CSA

[[Page 525]]

has made an entity eligibility determination (e.g., issued an FCL).
    (5) The requirement for a favorable entity eligibility determination 
(also referred to in some instances as an FCL) for a prime contractor 
includes instances where all access to classified information will be 
limited to subcontractors. A prime contractor must have a favorable 
entity eligibility determination at the same or higher classification 
level as its subcontractors.
    (6) Contractors are eligible for storage of classified material in 
connection with a legitimate USG or foreign government requirement if 
they have a favorable entity eligibility determination and a classified 
information safeguarding capability approved by the CSA.
    (7) An entity eligibility determination is valid for access to 
classified information at the same or lower classification level.
    (8) Each CSA will maintain a record of entity eligibility 
determinations made by that CSA.
    (9) A contractor will not use its favorable entity eligibility 
determination for advertising or promotional purposes. This does not 
prohibit the contractor from advertising employee positions that require 
a PCL in connection with the position.
    (10) A contractor or prospective contractor cannot apply for its own 
entity eligibility determination. A GCA or a currently cleared 
contractor may sponsor an entity for an entity eligibility determination 
at any point during the contracting or agreement life cycle at which the 
entity must have access to classified information to participate 
(including the solicitation or competition phase).
    (b) Reciprocity. If an entity has an appropriate, final entity 
eligibility determination, a CSA will not duplicate the entity 
eligibility determination processes performed by another CSA. If a CSA 
cannot acknowledge an entity eligibility determination to another CSA, 
the involved entity may be subject to duplicate processing in accordance 
with 32 CFR part 2004.
    (c) Eligibility requirements. To be eligible for an initial entity 
eligibility determination or to maintain an existing entity eligibility 
determination, the entity must:
    (1) Need access to classified information in connection with a 
legitimate USG or foreign government requirement, and access must be 
consistent with U.S. national security interests as determined by the 
CSA.
    (2) Be organized and existing:
    (i) Under the laws of the United States, one of the fifty States, 
the District of Columbia, or an organized U.S. territory (Guam, 
Commonwealth of the Northern Marianas Islands, Commonwealth of Puerto 
Rico, and the U.S. Virgin Islands); or
    (ii) Under the laws of an American Indian/Alaska Native tribal 
entity if:
    (A) The American Indian or Alaska Native tribe under whose laws the 
entity is chartered has been formally acknowledged by the Assistant 
Secretary--Indian Affairs, of the U.S. Department of the Interior.
    (B) The contractor is organized and continues to exist, during the 
period of the eligibility under a tribal statue or code, or pursuant to 
a resolution of an authorized tribal legislative body.
    (C) The contractor has submitted or will submit records such as a 
charter, certificate of organization, or other applicable tribal 
documents and statute or code provisions governing the formation and 
continuation of the entity, for CSA determination that the entity is 
tribally chartered.
    (3) Be located in the United States or its territorial areas.
    (4) Have a record of integrity and lawful conduct in its business 
dealings.
    (5) Have a SMO, FSO, and ITPSO who have and who maintain eligibility 
for access to classified information and are not excluded from 
participating in USG contracts or agreements in accordance with Sec.  
117.7(b)(1) through Sec.  117.7(b)(3).
    (6) Not be under FOCI to such a degree that a favorable entity 
eligibility determination for access to classified information would be 
inconsistent with the national interest, in the judgment of the CSA.
    (7) Maintain sufficient authorized and cleared employees to manage 
and implement the requirements of this rule in accordance with CSA 
guidance.

[[Page 526]]

    (8) Not pose an unacceptable risk to national security interests, in 
the judgment of the CSA.
    (9) Meet all requirements governing access to classified information 
established by the CSA or the relevant authorizing law, regulation, or 
government-wide policy.
    (d) Processing the entity eligibility determination. The CSA will 
assess the entity's eligibility for access to classified information 
based on its business structure.
    (1) At a minimum, the entity will:
    (i) Provide CSA-requested documentation within timelines established 
by the CSA.
    (ii) Have and identify the SMO.
    (iii) Appoint a U.S. citizen employee as the FSO.
    (iv) Appoint a U.S. citizen employee as the ITPSO.
    (v) Submit requests for personnel security investigations for the 
SMO, FSO, ITPSO, and those other KMP identified by the CSA as requiring 
eligibility for access to classified information in connection with the 
entity eligibility.
    (2) If the entity is under FOCI with a special security agreement 
(SSA) as the proposed method of FOCI mitigation, and the GCA requires 
the entity to have access to proscribed information, the CSA must 
consider the measures listed in Sec.  117.11(d) as part of the entity 
eligibility determination.
    (e) Other personnel eligibility determinations concurrent with the 
entity eligibility determination. (1) Contractors may designate 
employees who require access to classified information during the 
negotiation of a contract or the preparation of a bid or quotation 
pertaining to a prime contract or a subcontract. These designated 
employees will be processed for a determination of eligibility for 
access to classified information (i.e., PCL eligibility) concurrent with 
entity's entity eligibility determination.
    (2) The entity eligibility determination is not dependent on the PCL 
eligibility for access to classified information by such employees, 
provided none of these employees are among those listed in paragraph 
(c)(5) of this section. Even so, the employees will not be granted 
access to classified information until both a favorable entity 
eligibility determination and PCL eligibility has been granted.
    (f) Exclusion procedures. If a CSA determines that certain KMP can 
be excluded from access to classified information, the contractor will 
follow the procedures in accordance with Sec.  117.7(b)(5)(ii).
    (g) Temporary exclusions. As a result of a changed condition, the 
SMO or other KMP who require eligibility for access to classified 
information in connection with the facility entity eligibility 
determination may be temporarily excluded from access to classified 
information while in the process of a PCL eligibility determination 
provided:
    (1) The SMO or other KMP are not appointed as the FSO or ITPSO. FSOs 
and ITPSOs may not be temporarily excluded. A cleared employee must 
always be appointed to fulfill the requirements of these positions in 
accordance with this rule.
    (2) An employee, cleared to the level of the entity eligibility 
determination, must be able to fulfill the NISP responsibilities of the 
temporarily excluded KMP in accordance with this rule while the 
temporary exclusion is in effect.
    (3) The applicable CSA may provide additional guidance on the 
duration of a temporary exclusion from access to classified information 
based on circumstances, business structure, and other relevant security 
information.
    (4) The contractor's governing board affirms the exclusion action, 
and provides a copy of the exclusion action to the CSA. The 
organization's governing body will document this action.

       Table 1 to Paragraph (g)(4) Temporary Exclusion Resolutions
------------------------------------------------------------------------
     Type of affirmation        Language to be used in exclusion action
------------------------------------------------------------------------
Affirmation for Temporary      Pending a final determination of
 Exclusion from Access to       eligibility for access to classified
 Classified Information.        information by the U.S. Government,
                                [insert name and position] will not
                                require, will not have, and can be
                                effectively and formally excluded from
                                access to all classified information
                                disclosed to the entity.

[[Page 527]]

 
Affirmation for Temporary      Pending a final determination of
 Exclusion from Higher Level    eligibility for access to classified
 Classified Information.        information at the [insert SECRET or TOP
                                SECRET] level, [insert name and
                                position] will not have, and can be
                                effectively and formally excluded from
                                access to higher-level classified
                                information [specify which higher level
                                of information].
------------------------------------------------------------------------

    (h) Interim entity eligibility determinations. The CSA may make an 
interim entity eligibility determination for access to classified 
information, in the sole discretion of the CSA. See Sec.  117.10(l) for 
access limitations that also apply to interim entity eligibility 
determinations.
    (i) An interim entity eligibility determination is made on a 
temporary basis pending completion of the full investigative 
requirements.
    (ii) If the contractor with an interim entity eligibility 
determination is unable or unwilling to comply with the requirements of 
this rule and CSA-provided guidance regarding the process to obtain a 
final entity eligibility determination, the CSA will withdraw the 
interim entity eligibility.
    (i) Multiple facility organizations. The home office must have an 
entity eligibility determination at the same level as the highest entity 
eligibility determination of an entity within the MFO. The CSA will 
determine whether branch offices are eligible for access to classified 
information if the branch offices need access and meet all other 
requirements.
    (j) Parent-subsidiary relationships. When a parent-subsidiary 
relationship exists, the CSA will process the parent and the subsidiary 
separately for entity eligibility determinations.
    (1) If the CSA determines the parent must be processed for an entity 
eligibility determination, then the parent must have an entity 
eligibility determination at the same or higher level as the subsidiary.
    (2) When a parent and subsidiary or multiple cleared subsidiaries 
are collocated, a formal written agreement to use common security 
services may be executed by the entities, subject to the approval of the 
CSA.
    (k) Joint ventures. A joint venture may be granted eligibility for 
access to classified information if it meets the eligibility 
requirements in paragraph (c) of this section, including:
    (1) The joint venture must be established as a legal business entity 
(e.g. limited liability company, corporation, or partnership). A joint 
venture established by contract that is not also established as a legal 
business entity is not eligible for an entity eligibility determination.
    (2) The business entity operating as a joint venture must have been 
awarded a classified contract or sponsored by a GCA or prime contractor 
for an entity eligibility determination in advance of a potential award 
for which the business entity has bid pursuant to paragraph (c) of this 
section.
    (3) The business entity operating as a joint venture must have an 
employee or employees appointed as security officials or KMP pursuant to 
Sec.  117.7(b).
    (l) Consultants. The responsible CSA will determine when there is a 
need for self-employed consultants requiring access to classified 
information to be considered for an entity eligibility determination.
    (m) Limited entity eligibility determination (Non-FOCI). (1) The 
applicable CSA may choose to allow a GCA to request limited entity 
eligibility determinations for a single, narrowly defined contract, 
agreement, or circumstance and specific to the requesting GCA's 
classified information. This is not the same as a limited entity 
eligibility determination in situations involving FOCI, when the FOCI is 
not mitigated or negated.
    (i) Limited entity eligibility determinations (or FCLs) involving 
FOCI will be processed in accordance with Sec.  117.11(e).
    (ii) This paragraph (paragraph (m) of this section) applies to 
limited entity eligibility determinations for purposes other than FOCI 
mitigation in accordance with 32 CFR part 2004. Additional

[[Page 528]]

guidance may be provided by the responsible CSA.
    (2) An entity must be sponsored for a limited entity eligibility 
determination by a GCA in accordance with the sponsorship requirements 
contained in paragraph (c) of this section. The contractor should be 
aware that the sponsorship request from the GCA to the CSA must also 
include:
    (i) Description of the compelling need for the limited entity 
eligibility determination that is in accordance with U.S. national 
security interests.
    (ii) Specific reason(s) or rationale for limiting the entity 
eligibility determination.
    (iii) The GCA's formal acknowledgement and acceptance of the risk 
associated with this rationale.
    (3) The entity must otherwise meet the entity eligibility 
determination requirements set out in this rule.
    (4) Access limitations are inherent with the limited entity 
eligibility determination and are imposed upon all of the entity's 
employees regardless of citizenship.
    (5) Contractors should be aware that the CSA will document the 
requirements of each limited entity eligibility determination it makes, 
including the scope of, and any limitations on, access to classified 
information.
    (6) Contractors should be aware that the CSA will verify limited 
entity eligibility determinations only to the requesting GCA. In the 
case of multiple limited entity eligibility determinations for a single 
entity, the CSA verifies each one separately only to its requestor.
    (7) The applicable CSA administratively terminates the limited 
entity eligibility determination when there is no longer a need for 
access to the classified information for which the CSA approved the 
limited entity eligibility determination.
    (n) Termination of the entity eligibility determination. Once 
granted, a favorable entity eligibility determination remains in effect 
until terminated or revoked. If the entity eligibility determination is 
terminated or revoked, the contractor will return all classified 
material in its possession to the appropriate GCA or dispose of the 
material as instructed by the CSA. The contractor should be aware that 
it may request an administrative termination or the CSA may:
    (1) After coordination with applicable GCAs, administratively 
terminate the entity eligibility determination because the contractor no 
longer has a need for access to classified information.
    (2) Revoke an entity eligibility determination if the contractor is 
unable or unwilling to protect classified information or is unable to 
comply with the security requirements of this rule.
    (o) Invalidation of the entity eligibility determination. The CSA 
may invalidate an existing entity eligibility determination. While the 
entity eligibility determination is in an invalidated status, the 
contractor may not bid on or be awarded new classified contracts or 
solicitations. The contractor may continue to work on existing 
classified contracts if the GCA agrees.
    (p) Records maintenance. Contractors will maintain the original CSA 
designated forms for the duration of the entity eligibility 
determination in accordance with CSA-provided guidance.



Sec.  117.10  Determination of eligibility for access to classified
information for contractor employees.

    (a) General. (1) The CSA is responsible for determining an 
employee's eligibility for access to classified information.
    (i) The contractor must determine that access to classified 
information is essential in the performance of tasks or services related 
to the fulfillment of a classified contract.
    (ii) Access must be clearly consistent with U.S. national security 
interests as determined by the CSA.
    (iii) A contractor may give an employee access to classified 
information at the same or lower level of classification as the level of 
the contractor's entity eligibility determination if the employee has:
    (A) A valid need-to-know for the classified information.
    (B) A USG favorable eligibility determination for access to 
classified information at the appropriate level; and
    (C) Signed a non-disclosure agreement.

[[Page 529]]

    (2) The CSA will determine eligibility for access to classified 
information in accordance with SEAD 4 (available at: https://
www.dni.gov/files/ NCSC/documents/Regulations/ SEAD-4-Adjudicative-
Guidelines-U.pdf) and notify the contractor when eligibility has been 
granted.
    (i) The CSA will notify the contractor when an employee's 
eligibility has been denied, suspended, or revoked.
    (ii) The contractor will immediately deny access to classified 
information to any employee when notified of a denial, revocation, or 
suspension of eligibility regardless of the contractor employee's 
location.
    (iii) If the employee's performance is at a USG facility, the 
contractor will provide notification to the appropriate GCA of any 
denial, revocation, or suspension of eligibility for access to 
classified information.
    (3) Contractors will annotate and maintain the accuracy of their 
employees' records in the system of record for contractor eligibility 
and access to classified information, when one has been designated by 
the CSA.
    (4) Within an MFO or within the same business organization, 
contractors may centrally manage eligibility for access to classified 
information and access to classified information records.
    (5) The contractor will limit requests for determinations of 
eligibility for access to classified information to the minimum number 
of employees and consultants necessary for operational efficiency in 
accordance with contractual obligations and other requirements of this 
rule. Requests for determinations of eligibility for access to 
classified information will not be used to establish a cache of cleared 
employees.
    (6) The contractor will not submit a request for an eligibility 
determination to one CSA if the employee applicant is known to be 
cleared or in process for eligibility for access to classified 
information by another CSA. In such cases, reciprocity of eligibility 
determination in accordance with SEAD 7 (available at: https://
www.dni.gov/files/ NCSC/documents/Regulations/SEAD-7_BI_ 
ReciprocityU.pdf) shall be used. The contractor will provide the new CSA 
with the full name, date, and place of birth, social security number, 
clearing agency, and type of investigation for verification.
    (7) Contractors will not submit requests for determination of 
eligibility for access to classified information for individuals who are 
not their employees or consultants; nor will they submit requests for 
employees of subcontractors.
    (8) Access to SCI, SAP, FRD, and RD information is a determination 
made by the granting authority by the applicable USG granting authority 
for each category of information.
    (b) Investigative requirements. E.O. 13467, as amended, ``Reforming 
Processes Related to Suitability for Government Employment, Fitness for 
Contractor Employees, and Eligibility for Access to Classified National 
Security Information,'' designates the Security and Suitability 
Executive Agents responsible for establishing the standards for 
investigative requirements that apply to contractors.
    (1) Investigative tiers. The standards established in accordance 
with E.O. 13467, as amended, designate specific investigative tiers that 
are acceptable for access to classified information. An investigative 
tier is for positions designated as moderate risk, non-critical 
sensitive, and allow access to information classified at the L, 
CONFIDENTIAL, and SECRET levels. Another investigative tier is for 
positions designated as high risk, critical sensitive, special 
sensitive, and allow access to information classified at the Q, TOP 
SECRET, and SCI levels.
    (2) Investigative coverage. (i) Automated sources. Investigative 
providers will use automation whenever possible to collect, verify, 
corroborate, or discover information about an individual, as documented 
on the request for investigation or developed from other sources, i.e., 
automated record checks and inquiries.
    (ii) Interviews. Interviews, if required, will cover areas of 
adjudicative concern.
    (iii) Information Covered in Previous Investigations. Information 
validated in a prior investigation, the results of which are not 
expected to change (e.g., verification of education degree), will

[[Page 530]]

not be repeated as part of subsequent investigations.
    (3) Polygraph. Agencies with policies authorizing the use of the 
polygraph for purposes of determining eligibility for access to 
classified information may require polygraph examinations when 
necessary. If adjudicatively relevant information arises during the 
investigation or the polygraph examination, the investigation may be 
expanded to resolve the adjudicative concerns.
    (4) Financial disclosure. When a GCA requires that a contractor 
employee complete a financial disclosure form, the contractor will 
ensure that the employee has the opportunity to complete and submit the 
form in accordance with the Privacy Act of 1974, as amended, and other 
applicable provisions of law.
    (5) Reinvestigation and Continuous Evaluation. Contractor employees 
determined eligible for access to classified information will follow CSA 
guidance to complete reinvestigation and continuous evaluation or 
continuous vetting requirements. The contractor will validate that the 
employee requires continued eligibility for access to classified 
information before initiating the reinvestigation.
    (c) Verification of U.S. citizenship. A contractor will require each 
applicant for determination of eligibility for access to classified 
information who claims U.S. citizenship to provide evidence of 
citizenship to the FSO or other authorized representative of the 
contractor. All documentation must be the original or certified copies 
of the original documents.
    (1) Any document, or its successor, listed in this paragraph is an 
acceptable document to corroborate U.S. citizenship by birth, including 
by birth abroad to a U.S. citizen.
    (i) A birth certificate certified with the registrar's signature, 
which bears the raised, embossed, impressed, or multicolored seal of the 
registrar's office.
    (ii) A current or expired U.S. passport or passport card that is 
unaltered and undamaged and was originally issued to the individual.
    (iii) A Department of State Form FS-240, ``Consular Report of Birth 
Abroad of a Citizen of the United States of America.''
    (iv) A Department of State Form FS-545 or DS-1350, ``Certification 
of Report of Birth.''
    (2) Any document, or its successor, listed in this paragraph is an 
acceptable document to corroborate U.S. citizenship by certification, 
naturalization, or birth abroad to a U.S. citizen.
    (i) A U.S. Citizenship and Immigration Services Form N-560 or N-561, 
``Certification of U.S. Citizenship.''
    (ii) A U.S. Citizenship and Immigration Services Form 550, 551, or 
570, ``Naturalization Certificate.''
    (iii) A valid or expired U.S. passport or passport card that is 
unaltered and undamaged and was originally issued to the individual.
    (d) Procedures for completing the electronic version of the SF 86, 
``Questionnaire for National Security Positions.'' The electronic 
version of the SF 86 (available at: https://www.opm.gov/forms/ pdf_fill/
sf86.pdf) must be completed in e-QIP or its successor system by the 
contractor employee and reviewed by the FSO or other contractor 
employee(s) who has (have) been specifically designated by the 
contractor to review an employee's SF 86. The FSO or designee will:
    (1) Provide the employee with written notification that review of 
the SF 86 by the FSO or other contractor employee is for adequacy and 
completeness and information will be used for no other purpose within 
the entity. The use and disclosure by the U.S. Government, and by U.S. 
Government contractors operating systems of records on behalf of a U.S. 
Government agency to accomplish an agency function, of the information 
provided by the employee on the SF-86 is governed by the Privacy Act of 
1974, as amended, and by the routine uses published by the USG in the 
applicable System of Records Notice.
    (2) Not share information from the employee's SF 86 within the 
entity and will not use the information for any purpose other than 
determining the adequacy and completeness of the SF 86.

[[Page 531]]

    (e) Fingerprint collection. The contractor will submit fingerprints 
in accordance with CSA guidance. Contractors will use digital 
fingerprints whenever possible.
    (f) Pre-employment eligibility determination action. (1) If a 
potential employee requires access to classified information immediately 
upon commencement of employment, the contractor may submit a request for 
investigation prior to the date of employment, provided:
    (i) A written commitment for employment has been made by the 
contractor.
    (ii) The candidate has accepted the offer in writing.
    (2) The commitment for employment must indicate employment will 
commence within 45 days of the employee being granted eligibility for 
access to classified information at a level that allows them to perform 
the tasks or services associated with the contract or USG requirement 
for which they were hired.
    (3) Contractors will comply with the requirements pursuant to 
paragraph (a) (5) of this section.
    (g) Classified information NDA. The NDA designated by the CSA (e.g., 
SF 312), is an agreement between the USG and an individual who is 
determined eligible for access to classified information.
    (1) An employee determined eligible for access to classified 
information must execute an NDA prior to being granted access to 
classified information.
    (2) The employee must sign and date the NDA in the presence of a 
witness. The employee's and witness' signatures must bear the same date.
    (3) The contractor will forward the executed NDA to the CSA for 
retention. The CSA may authorize the contractor to retain a copy of the 
form for administrative purposes, if appropriate.
    (4) If the employee refuses to execute the NDA, the contractor will 
deny the employee access to classified information and submit a report 
to the CSA in accordance with Sec.  117.8(c)(6).
    (h) Reciprocity. The applicable CSA is responsible for determining 
whether contractor employees have been previously determined eligible 
for access to classified information or investigated by an authorized 
investigative activity in accordance with SEAD 7 (available at: https://
www.dni.gov/ files/NCSC/documents/ Regulations/SEAD-7_ 
BI_ReciprocityU.pdf).
    (1) Any current eligibility determination for access to classified 
information that is based on an investigation of a scope that meets or 
exceeds that necessary for the required level of access will provide the 
basis for a new eligibility determination.
    (2) The prior investigation will be used without further 
investigation or adjudication unless the CSA becomes aware of 
significant derogatory information that was not previously adjudicated.
    (i) Break in access. There are circumstances when a contractor 
administratively terminates an employee's access to classified 
information solely because of no current requirement for such access. If 
the employee again requires access to classified information and has 
been in the contractor's continuous employment, and the employee again 
requires access to classified information, the contractor may provide 
access to classified information without further investigation, based on 
CSA guidance, so long as the employee remains eligible for access to 
classified information and has a current investigation of a scope that 
meets or exceeds that necessary for the access required and no new 
derogatory information is known. Any adverse information from or about 
the employee must continue to be reported while the employee maintains 
eligibility for access to classified information, even when access to 
classified information has been administratively terminated.
    (j) Break in employment. (1) When an employee had a break in 
employment and now requires access to classified information, the 
contractor may provide access to classified information based on CSA 
guidance provided the employee remains eligible for access to classified 
information and has a current investigation of a scope that meets or 
exceeds that necessary for the access required.
    (2) The contractor may not provide access to classified information 
to an

[[Page 532]]

employee who previously was eligible for access to classified 
information, but has had a break in employment that resulted in a loss 
of eligibility without a new eligibility determination by the CSA.
    (k) Non-U.S. citizens. (1) Contractors must make every effort to 
ensure that non-U.S. citizens are not employed in duties that may 
require access to classified information. However, compelling reasons 
may exist to grant access to classified information to a non-U.S. 
citizen. The CSA may grant such individuals a LAA in those rare 
circumstances where a non-U.S. citizen possesses unique or unusual 
skills or expertise that is urgently needed to support a specific USG 
contract involving access to specified classified information, and a 
cleared or clearable U.S. citizen is not readily available. The CSA will 
provide specific procedures for requesting an LAA, to include the need 
for approval by a GCA senior official.
    (2) An LAA granted under the provisions of this rule is not valid 
for access to:
    (i) TOP SECRET information.
    (ii) RD or FRD.
    (iii) Information that has not been determined releasable by a USG 
designated disclosure authority to the country of which the individual 
is a citizen.
    (iv) Communications security (COMSEC) information.
    (v) Intelligence information.
    (vi) NATO information. Foreign nationals of a NATO member nation may 
be authorized access to NATO information provided:
    (A) The CSA obtains a NATO security clearance certificate from the 
individual's country of citizenship.
    (B) NATO access is limited to performance on a specific NATO 
contract.
    (vii) Information for which foreign disclosure has been prohibited 
in whole or in part.
    (viii) Information provided to the USG in confidence by a third-
party government.
    (ix) Classified information furnished by a third-party government.
    (l) Temporary eligibility for access to classified information. In 
accordance with SEAD 8 (available at: https://www.dni.gov/ files/NCSC/
documents/Regulations/ SEAD-8_Temporary_ Eligibility_U.pdf), the CSA may 
grant temporary (previously called interim) eligibility for access to 
classified information, as appropriate, to applicants for access to TOP 
SECRET, SECRET, and CONFIDENTIAL information. This eligibility may only 
be granted if there is no evidence of adverse information that calls 
into question an individual's eligibility for access to classified 
information. If results are favorable following completion of full 
investigative requirements, the CSA will update the temporary 
eligibility determination for access to classified information to be 
final. In any case, a temporary eligibility determination shall not 
exceed one year unless approved by the applicable CSA in the system of 
record. Non-U.S. citizens are not eligible for access to classified 
information on a temporary basis.
    (1) A temporary SECRET or CONFIDENTIAL eligibility determination is 
valid for access to classified information at the level of the 
eligibility granted. Access to RD, COMSEC information, and NATO 
information requires a final SECRET eligibility determination.
    (2) A temporary TOP SECRET eligibility determination is valid for 
access to TOP SECRET information. If an individual has a temporary TOP 
SECRET eligibility determination and has a final SECRET eligibility 
determination based on a previously completed investigation, the 
temporary TOP SECRET eligibility determination is valid for access to 
RD, NATO, and COMSEC information at the SECRET or CONFIDENTIAL level.
    (3) Access to SCI and SAP information based on a temporary 
eligibility determination is a determination made by the granting 
authority.
    (4) When a temporary eligibility determination has been made and 
derogatory information is subsequently developed, the CSA may withdraw 
the temporary eligibility pending completion of the processing that is a 
prerequisite to the final eligibility determination.
    (5) When a temporary eligibility determination is withdrawn for an 
individual who is required to be eligible for

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access to classified information in connection with the entity 
eligibility determination for access to classified information, the 
contractor must remove the individual from access to classified 
information and any KMP position requiring PCL eligibility or the 
temporary entity eligibility determination will also be withdrawn.
    (6) Withdrawal of a temporary eligibility determination is not a 
denial, termination, or revocation of eligibility under this rule and 
may not be appealed.
    (m) Consultants. (1) A consultant will not access classified 
information off the premises of the using (hiring) contractor except in 
connection with authorized classified visits.
    (2) A contractor may only assign a consultant outside the United 
States with responsibilities requiring access to classified information 
when:
    (i) The consultant agreement between the contractor and consultant 
includes:
    (A) Identification of the contract, license, or agreement that 
requires access to classified information, the level of classified 
information that is required, and access to FGI by the consultant while 
assigned outside the United States.
    (B) A formal agreement that prohibits the consultant from disclosing 
any classified information related to the contract, license, or 
agreement as required in paragraph (m)(i)(A) of this section to any 
party other than the USG or foreign government with which the consultant 
is meeting, and who possesses the requisite clearance and need to know.
    (ii) The consultant and the using contractor will jointly execute 
the consultant agreement setting forth respective security 
responsibilities. The contractor will retain an original signed copy of 
the agreement and will ensure its availability if requested by the CSA.
    (iii) The contractor, in consultation with the applicable CSA as 
appropriate, will determine what threat briefing(s) the consultant 
should receive before the assignment, and conduct those briefings as 
part of the consultant's pre-assignment and recurring security training.
    (iv) The contractor provides notice of any changes to the consultant 
agreement to the applicable CSA during assessments or upon CSA request.
    (3) The using contractor will be the consumer of the consultant 
services as set forth in the consultant agreement.
    (4) For security administration purposes, a consultant will be 
considered an employee of the using contractor for compliance with this 
rule.
    (5) Consultants to GCAs are not under the purview of the NISP and 
will be processed for determination of eligibility by the GCA in 
accordance with GCA procedures.



Sec.  117.11  Foreign Ownership, Control, or Influence (FOCI).

    (a) General. Foreign investment can play an important role in 
maintaining the vitality of the U.S. industrial base. Therefore, it is 
the intent of the USG to allow foreign investment consistent with the 
national security interests of the United States. The following FOCI 
procedures for cleared U.S. entities are intended to mitigate the risks 
associated with FOCI by ensuring that foreign firms cannot undermine 
U.S. security to gain unauthorized access to classified information.
    (1) The CSA will consider a U.S. entity to be under FOCI when:
    (i) A foreign interest has the power to direct or decide issues 
affecting the entity's management or operations in a manner that could 
either:
    (A) Result in unauthorized access to classified information; or
    (B) Adversely affect performance of a classified contract or 
agreement.
    (ii) The foreign government is currently exercising, or could 
prospectively exercise, that power, whether directly or indirectly, such 
as:
    (A) Through ownership of the U.S. entity's securities, by 
contractual arrangements, or other means, or;
    (B) By the ability to control or influence the election or 
appointment of one or more members to the entity's governing board.
    (2) When the CSA has determined that an entity is under FOCI, the 
primary consideration will be the protection of classified information. 
The CSA will take whatever action is necessary

[[Page 534]]

to protect classified information, in coordination with other affected 
agencies as appropriate.
    (3) A U.S. entity that is in process for an entity eligibility 
determination for access to classified information and subsequently 
determined to be under FOCI is ineligible for access to classified 
information unless and until effective security measures have been put 
in place to negate or mitigate FOCI to the satisfaction of the CSA.
    (4) When a contractor determined to be under FOCI is negotiating an 
acceptable FOCI mitigation or negation measure in good faith, an 
existing entity eligibility determination may continue in effect so long 
as there is no indication that classified information is at risk of 
compromise in consultation with the applicable GCA. The applicable CSA 
may decide that circumstances involving the FOCI are such that the 
entity eligibility determination will be invalidated until 
implementation of an acceptable FOCI mitigation plan.
    (5) An existing entity eligibility determination will be invalidated 
if the contractor is unable or unwilling to negotiate and implement an 
acceptable FOCI mitigation or negation measure. An existing entity 
eligibility determination will be revoked if security measures cannot be 
taken to remove the possibility of unauthorized access to classified 
information or adverse effect on performance of classified contracts.
    (6) Changed conditions, such as a change in ownership, indebtedness, 
or a foreign intelligence threat, may justify certain adjustments to the 
security terms under which an entity is operating or, alternatively, 
that a different FOCI mitigation or negation method be employed. If a 
changed condition is of sufficient significance, it might also result in 
a determination that a contractor is no longer considered to be under 
FOCI, or, conversely, that a contractor is no longer eligible for access 
to classified information.
    (7) The USG reserves the right, and has the obligation, to impose 
any security method, safeguard, or restriction (including denial, 
termination or revocation of an entity eligibility determination) it 
believes necessary to ensure that unauthorized access to classified 
information is effectively precluded and performance of classified 
contracts is not adversely affected.
    (8) Nothing contained in this section affects the authority of a 
Federal agency head to limit, deny, or revoke access to classified 
information under its statutory, regulatory, or contract jurisdiction.
    (b) Factors. Factors relating to the entity, relevant foreign 
interests, and the government of such foreign interests, as appropriate, 
will be considered in the aggregate to determine whether an applicant 
entity is under FOCI, its eligibility for access to classified 
information, and the protective measures required. These factors 
include:
    (1) Record of espionage against U.S. targets, either economic or 
government.
    (2) Record of enforcement actions against the entity for 
transferring technology without authorization.
    (3) Record of compliance with pertinent U.S. laws, regulations, and 
contracts or agreements.
    (4) Type and sensitivity of the information the entity would access.
    (5) Source, nature, and extent of FOCI, including whether foreign 
interests hold a majority or minority position in the entity, taking 
into consideration the immediate, intermediate, and ultimate parent 
entities.
    (6) Nature of any relevant bilateral and multilateral security and 
information exchange agreements.
    (7) Ownership or control, directly or indirectly, in whole or in 
part, by a foreign government.
    (8) Any other factor that indicates or demonstrates capability of 
foreign interests to control or influence the entity's operations or 
management.
    (c) Procedures. An entity is required to complete an SF 328 during 
the process for an entity eligibility determination or when significant 
changes occur to information previously submitted. In the case of a 
corporate family, the form may be a consolidated response rather than 
separate submissions from individual members of the corporate family 
based on CSA guidance.
    (1) If an entity provides any affirmative answers on the SF 328, or 
the CSA

[[Page 535]]

receives other information which indicates that the applicant entity may 
be under FOCI, the CSA will make a risk-based determination regarding 
the relative significance of the information in regard to:
    (i) Whether the applicant is under FOCI.
    (ii) The extent and manner to which the FOCI represents a risk to 
the national security or may adversely impact classified contract 
performance.
    (iii) The type of actions, if any, that would be necessary to 
mitigate or negate the effects of FOCI to a level deemed acceptable to 
the USG. The CSA will advise entities on the CSA's appeal channels for 
disputing CSA FOCI determinations.
    (2) When an entity with a favorable eligibility determination enters 
into negotiations for the proposed merger, acquisition, or takeover by a 
foreign interest, the entity will submit notification to the CSA of the 
commencement of such negotiations.
    (i) The submission will include the type of transaction under 
negotiation (e.g., stock purchase, asset purchase), the identity of the 
potential foreign interest investor, and a plan to negate or mitigate 
the FOCI by a method outlined in paragraph (d) of this section.
    (ii) The entity will submit copies of loan, purchase, and 
shareholder agreements, annual reports, bylaws, articles of 
incorporation, partnership agreements, other organizational documents, 
and reports filed with other Federal agencies to the CSA.
    (d) FOCI action plans. (1) When FOCI factors not related to 
ownership are present, the CSA will determine if positive measures will 
assure the CSA that the foreign interest can be effectively mitigated 
and cannot otherwise adversely affect performance on classified 
contracts. Examples of such measures include:
    (i) Modification or termination of loan agreements, contracts, and 
other understandings with foreign interests.
    (ii) Diversification or reduction of foreign-source income.
    (iii) Demonstration of financial viability independent of foreign 
interests.
    (iv) Elimination or resolution of problem debt.
    (v) Assignment of specific oversight duties and responsibilities to 
board members.
    (vi) Formulation of special executive-level security committees to 
consider and oversee issues that affect the performance of classified 
contracts.
    (vii) Physical or organizational separation of the contractor 
component performing on classified contracts.
    (viii) Adoption of special board resolutions.
    (ix) Other actions that negate or mitigate foreign control or 
influence.
    (x) A combination of these methods, as determined by the CSA.
    (2) When FOCI factors related to ownership are present, methods the 
CSA may apply to negate or mitigate the risk of foreign ownership 
include, but are not limited to:
    (i) Board resolution. (A) When a foreign interest does not possess 
voting interests sufficient to elect, or otherwise is not entitled to 
representation on the entity's governing board, a resolution(s) by the 
governing board may be adequate. In the resolution, the governing board 
will:
    (1) Identify the foreign shareholder.
    (2) Describe the type and number of foreign-owned shares.
    (3) Acknowledge the entity's obligation to comply with all 
industrial security program requirements.
    (4) Certify that the foreign owner does not require, will not have, 
and can be effectively precluded from unauthorized access to all 
classified information entrusted to or held by the entity.
    (B) The governing board will provide for annual certifications to 
the CSA acknowledging the continued effectiveness of the resolution.
    (C) The entity will distribute to members of its governing board and 
to its KMP copies of such resolutions, and report in the entity's 
corporate records the completion of such distribution.
    (ii) Security control agreement (SCA). When a foreign interest does 
not effectively own or control an entity (i.e., the entity is under U.S. 
control), but the foreign interest is entitled to representation on the 
entity's governing board, an SCA may be adequate. At least one cleared 
U.S. citizen must

[[Page 536]]

serve as an outside director on the entity's governing board. There are 
no access limitations under an SCA.
    (iii) SSA. When a foreign interest effectively owns or controls an 
entity, an SSA may be adequate. An SSA is an arrangement that, based 
upon an assessment of the source and nature of FOCI and FOCI factors, 
imposes various industrial security measures within an institutionalized 
set of entity practices and procedures. The SSA preserves the foreign 
owner's right to be represented on the entity's board or governing body 
with a direct voice in the entity's business management, while denying 
the foreign owner majority representation and unauthorized access to 
classified information.
    (A) Requirement for a National Interest Determination (NID). Unless 
otherwise prohibited by law or regulation (e.g., Section 842 of Pub. L. 
115-232), the applicable CSA must determine whether allowing an entity 
access to proscribed information under an SSA is consistent with 
national security interests of the U.S. with concurrence from 
controlling agencies, as applicable. Such NIDs will be made as part of 
an entity eligibility determination or because of a changed condition 
when a GCA requires an entity to have access to proscribed information 
and the CSA proposes an SSA as the mitigation measure. The NID can be 
program, project, or contract specific.
    (B) NID process: (1) The CSA makes a NID for TOP SECRET or SAP 
information to which the entity requires access. Contractors should be 
aware that DOE Order 470.4B provides additional information and 
requirements for processing NID requests for access to RD.
    (2) In cases in which any category of the proscribed information is 
controlled by another agency (ODNI for SCI, DOE for RD, the National 
Security Agency (NSA) for COMSEC), the CSA asks that controlling agency 
to concur or non-concur on the NID for that category of information.
    (3) The CSA informs the GCA and the entity when the NID is complete. 
In cases involving SCI, RD, or COMSEC, the CSA also informs the GCA and 
the entity when a controlling agency concurs or non-concurs on that 
agency's category of proscribed information. The entity may begin 
accessing a category of proscribed information once the CSA informs the 
GCA and the entity that the controlling agency concurs, even if other 
categories of proscribed information are pending concurrence.
    (4) An entity's access to SCI, RD, or COMSEC remains in effect so 
long as the entity remains eligible for access to classified information 
and the contract or agreement (or program or project) which imposes the 
requirement for access to those categories of proscribed information 
remains in effect, except under any of the following circumstances:
    (i) The CSA, GCA, or controlling agency becomes aware of adverse 
information that impacts the entity eligibility determination.
    (ii) The CSA's threat assessment pertaining to the entity indicates 
a risk to one of the categories of proscribed information.
    (iii) The CSA becomes aware of any material change regarding the 
source, nature, and extent of FOCI.
    (iv) The entity's record of NISP compliance, based on CSA reviews, 
becomes less than satisfactory. Consult DOE Order 470.4B for additional 
information and requirements for processing NID requests for access to 
RD.
    (5) Under any of the circumstances in paragraphs 
(d)(2)(iii)(B)(4)(i) through (d)(2)(iii)(B)(4)(iv) in this section, the 
CSA determines whether the entity remains eligible for access to 
classified information, it must change the FOCI mitigation measure in 
order to remain eligible for access to classified information, or the 
CSA must terminate or revoke the access to classified information.
    (6) When an entity is eligible for access to classified information 
that includes a favorable NID for SCI, RD, or COMSEC, the CSA does not 
have to request a new NID concurrence for the same entity if the access 
to classified information requirements for the relevant category of 
proscribed information and terms remain unchanged for:
    (i) Renewing the contract or agreement.
    (ii) New task orders issued under the contract or agreement.
    (iii) A new contract or agreement that contains the same provisions 
as

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the previous one (this usually applies when the contract or agreement is 
for a program or project.)
    (iv) Renewing the SSA.
    (7) Under certain conditions, entities under an SSA may not require 
a NID for one or more categories of proscribed information in accordance 
with CSA-provided guidance. Categories of proscribed information for 
entities under SSAs not requiring a NID will be recorded in the CSA's 
system of record for entity eligibility determinations.
    (iv) Voting Trust (VT) or Proxy Agreement (PA). The VT and the PA 
are arrangements that vest the voting rights of the foreign-owned stock 
in cleared U.S. citizens approved by the USG. Under a VT, the foreign 
owner transfers legal title its ownership interests in the entity to the 
trustees. Under a PA, the foreign owner's voting rights are conveyed to 
the proxy holders. Neither arrangement imposes any restrictions on the 
entity's eligibility to have access to classified information or to 
compete for classified contracts.
    (A) Establishment of a VT or PA involves the selection of trustees 
or proxy holders, all of whom must become members of the entity's 
governing board. Both arrangements must provide for the exercise of all 
prerogatives of ownership by the trustees or proxy holders with complete 
freedom to act independently from the foreign owners, except as provided 
in the VT or PA. The arrangements may limit the authority of the 
trustees or proxy holders by requiring approval be obtained from the 
foreign owner with respect to issues such as:
    (1) The sale or disposal of the entity's assets or a substantial 
part thereof.
    (2) Pledges, mortgages, or other encumbrances on the entity's 
assets, capital stock, or ownership interests.
    (3) Mergers, consolidations, or reorganizations.
    (4) Dissolution.
    (5) Filing of a bankruptcy petition.
    (B) The trustees or proxy holders may consult with the foreign 
owner, or vice versa, where otherwise consistent with U.S. laws, 
regulations, and the terms of the VT or PA.
    (C) The trustees or proxy holders assume full responsibility for the 
foreign owner's voting interests and for exercising all governance and 
management prerogatives relating thereto to ensure the foreign owner 
will be insulated from the entity, thereby solely retaining the status 
of a beneficiary. The entity must be organized, structured, and financed 
to be capable of operating as a viable business entity and independent 
from the foreign owners' interests that required FOCI mitigation or 
negation.
    (v) Combination measures. The CSA may apply combinations of the 
measures in paragraphs (d)(2)(i) through (d)(2)(iv) in this section or 
other similar measures that effectively mitigate or negate the risks 
involved with foreign ownership.
    (e) Limited entity eligibility determination due to FOCI. In 
accordance with the provisions of this section and CSA-provided 
guidance, a limited entity eligibility determination may be an option 
for a single, narrowly defined contract, agreement, or circumstance for 
entities under FOCI without mitigation or negation. Limitations on 
access to classified information are inherent with the granting of 
limited entity eligibility determinations and are imposed upon all of 
the entity's employees regardless of citizenship.
    (1) In exceptional circumstances, when an entity is under FOCI, the 
CSA may decide that a limited entity eligibility determination is 
appropriate when the entity is unable or unwilling to implement FOCI 
mitigation or negation measures, and the conditions in paragraphs 
(e)(1)(i) through (iii) of this section are met. This is not the same as 
a limited entity eligibility determination for purposes not related to 
FOCI. Information on limited entity eligibility determinations for 
purposes other than FOCI can be found in Sec.  117.9(m). A CSA may 
decide that a limited entity eligibility is appropriate for an entity 
under FOCI if:
    (i) The limited entity eligibility determination is in accordance 
with national security interests and a GCA has informed the CSA that 
access to classified information by the contractor is essential to 
contract or agreement performance.
    (ii) There is an industrial security agreement with the foreign 
government of the country from which the FOCI is derived.

[[Page 538]]

    (iii) The contractor meets all other entity eligibility requirements 
outlined in Sec.  117.9(c) except that KMP, other than the FSO, may be 
citizens of the country from which the FOCI derives and the United 
States has obtained security assurances at the appropriate level from 
that country.
    (2) A U.S. subsidiary of a foreign entity may be sponsored for a 
limited entity eligibility determination by a foreign government when 
the foreign government desires to award a contract or agreement to the 
U.S. subsidiary that involves access to only that classified information 
for which the foreign government is the OCA.
    (3) Limited entity eligibility determinations are specific to the 
classified information for the requesting GCA or foreign government and 
the single narrowly defined contract, agreement, or circumstance the 
request was based on. The limited entity eligibility determination will 
only be verified to that GCA or foreign government for the authorized 
level of access to classified information and any limitations to that 
access to classified information.
    (4) A limited entity eligibility determination is not an option for 
contractors that require access to proscribed information when a foreign 
government has ownership or control over the entity.
    (5) Release of classified information must be in conformity with the 
U.S. National Disclosure Policy-1 (provided to designated disclosure 
authorities on a need-to-know basis from the Office of the Under 
Secretary of Defense for Policy, Defense Technology Security 
Administration).
    (6) A limited entity eligibility determination will be 
administratively terminated when there is no longer a need for the 
contractor to access the classified information for which it was 
sponsored. Administrative termination of one limited entity eligibility 
determination does not impact a contractor's other limited entity 
eligibility determinations.
    (7) If there is no industrial security agreement with the foreign 
government of the country from which the FOCI is derived, in 
extraordinary circumstances, a limited entity eligibility determination 
may also be granted if there is a compelling need to do so consistent 
with U.S. national security interests and the GCA has informed the 
applicable CSA that access to classified information by the contractor 
is essential to contract or agreement performance. Under this 
circumstance, the entity must follow all provisions of this rule.
    (f) Qualifications of trustees, proxy holders, and outside 
directors. Individuals who serve as trustees, proxy holders, or outside 
directors must meet the following criteria:
    (1) Trustees and proxy holders must be resident U.S. citizens who 
can exercise governance and management prerogatives relating to their 
position in a way that ensures that the foreign owner can be effectively 
insulated from the entity.
    (2) Outside directors must be resident U.S. citizens who can 
exercise governance and management prerogatives relating to their 
position in a way that ensures that the foreign owner can be effectively 
separated from the entity's classified work.
    (3) New trustees, proxy holders, and outside directors must be 
completely disinterested individuals with no prior involvement with the 
entity, the entities with which it is affiliated, or the foreign owner.
    (4) The CSA may consider other circumstances that may affect an 
individual's eligibility to serve effectively including the number of 
boards on which the individual serves, the length of time serving on any 
other governance boards, and other factors in accordance with CSA-
provided guidance.
    (5) Trustees, proxy holders, and outside directors must be 
determined eligible for access to classified information at the level of 
the entity eligibility determination for access to classified 
information. Individuals who are serving as trustees, proxy holders, or 
outside directors as part of a mitigation measure for the entity are not 
considered to have prior involvement solely by performing that role for 
purposes of paragraph (f)(3) of this section.
    (g) Government security committee (GSC). Under a VT, PA, SSA, or 
SCA, the contractor is required to establish a permanent committee of 
its board of directors, known as the GSC.

[[Page 539]]

    (1) Unless otherwise approved by the CSA, the GSC consists of 
trustees, proxy holders, or outside directors and those officer 
directors who have been determined to be eligible for access to 
classified information.
    (2) The members of the GSC are required to ensure that the 
contractor adheres to laws and regulations and maintains internal entity 
policies and procedures to safeguard classified information entrusted to 
it. The GSC ensures that violations of those policies and procedures are 
promptly investigated and reported to the appropriate authority when it 
has been determined that a violation has occurred.
    (3) The contractor's FSO will be the principal advisor to the GSC 
and attend GSC meetings. The chairman of the GSC must concur with the 
appointment and replacement of FSOs selected by management. The FSO 
functions will be carried out under the authority of the GSC.
    (h) Additional procedures for FOCI mitigation or negation measures. 
In addition to the basic requirements of the FOCI mitigation or negation 
agreement, the entity may be required to document and implement 
additional procedures based upon the circumstances of an entity's 
operations. Those additional procedures will be established in 
supplements to the FOCI mitigation agreement to allow for flexibility as 
circumstances change without having to renegotiate the entire agreement. 
When making use of supplements, the CSA does not consider the FOCI 
mitigation measure final until the CSA has approved the required 
supplements. These supplements may include:
    (1) Technology control plan (TCP). A TCP approved by the CSA will be 
developed and implemented by those entities cleared under a VT, PA, SSA 
and SCA and when otherwise deemed appropriate by the CSA. The TCP will 
prescribe all security measures determined necessary to reasonably 
prevent the possibility of access by non-U.S. citizen employees and 
visitors to information for which they are not authorized. The TCP will 
also prescribe measures designed to assure that access by non-U.S. 
citizens is strictly limited to only that specific information for which 
appropriate USG disclosure authorization has been obtained, e.g., an 
approved export license or technical assistance agreement. Unique 
badging, escort, segregated work area, security indoctrination schemes, 
and other measures will be included, as appropriate.
    (2) Electronic communications plan (ECP). The contractor will 
develop and implement an ECP, subject to CSA approval, tailored to the 
contractor's operations to verify that electronic controls are in place 
for clear technical and logical separation of electronic communications 
and networks between the contractor, the foreign interest, and its 
affiliates. The purpose is to prevent the unauthorized disclosure of 
classified information to the foreign parent or its affiliates. The 
contractor will include in the ECP a detailed network description and 
configuration diagram that clearly delineates which networks will be 
shared and which will be protected from access by the foreign parent or 
its affiliates. The network description will address firewalls, remote 
administration, monitoring, maintenance, and separate email servers, as 
appropriate.
    (3) Affiliated operations plan. There may be circumstances when the 
parties to a transaction propose in the FOCI action plan that the U.S. 
contractor provides certain services for the foreign interest or enters 
into arrangements with the foreign interest, or the foreign interest 
provides services for or enters into arrangements with the U.S. 
contractor. In such circumstances, the contractor will document a plan, 
subject to CSA approval, outlining the entity's consolidated policies 
and procedures regarding the control of affiliated operations, 
regardless of whether such endeavors are administrative, operational, or 
commercial, performed directly or through third-party service providers, 
within the entity, or among any of the entity's controlled entities, or 
the foreign interest and its affiliates.
    (4) Facilities location plan. When a contractor is potentially 
collocated

[[Page 540]]

with or in close proximity to its foreign parent or an affiliate, the 
contractor will prepare a facilities location plan to assist the CSA in 
determining if the contractor is collocated or if the close proximity 
can be allowed under the FOCI mitigation plan. A U.S. entity generally 
cannot be collocated with the foreign parent or affiliate, i.e., at the 
same address or in the same location.
    (i) Annual review and certification--(1) Annual review. The CSA will 
meet at least annually, and otherwise as required by circumstances, with 
the GSCs of contractors operating under a VT, PA, SSA, or SCA to review 
the purpose and effectiveness of the clearance arrangement and to 
establish a common understanding of the operating requirements and their 
implementation. These reviews will include an examination of:
    (i) Acts of compliance or noncompliance with the approved security 
arrangement, standard rules, and applicable laws and regulations.
    (ii) Problems or impediments associated with the practical 
application or utility of the security arrangement.
    (iii) Whether security controls, practices, or procedures warrant 
adjustment.
    (2) Annual certification. For contractors operating under a VT, PA, 
SSA, or SCA, the chairman of the GSC will submit to the CSA one year 
from the effective date of the agreement and annually thereafter, an 
implementation and compliance report. Such reports will include:
    (i) A detailed description of the manner in which the contractor is 
carrying out its obligations under the agreement.
    (ii) Changes to security procedures, implemented or proposed, and 
the reasons for those changes.
    (iii) A detailed description of any acts of noncompliance, whether 
inadvertent or intentional, with a discussion of remedial measures, 
including steps taken to prevent such acts from recurring.
    (iv) Any changes, or impending changes, of KMP or key board members, 
including the reasons therefore.
    (v) Any changes or impending changes in the organizational structure 
or ownership, including any reorganizations, acquisitions, mergers, or 
divestitures.
    (vi) Any other issues that could have a bearing on the effectiveness 
of the applicable agreement.
    (j) Transactions involving foreign persons, and the Committee on 
Foreign Investment in the United States (CFIUS).
    (1) The CFIUS is a USG interagency committee chaired by the Treasury 
Department that conducts assessments, reviews and investigations of 
transactions that could result in foreign control of a U.S. business, 
and certain non-controlling investments and certain real estate 
transactions involving foreign persons under 50 U.S.C. 4565.
    (2) In CFIUS cases where the acquired U.S. business requires access 
to classified information, the CFIUS assessment, review or 
investigation, as applicable, and the CSA industrial security FOCI 
review are carried out in parallel, but are separate processes with 
different time constraints and considerations.
    (3) The CSA will promptly advise the parties in a transaction under 
CFIUS review that would require FOCI negation or mitigation measures if 
consummated, to submit to the CSA a plan to negate or mitigate FOCI. If 
it appears that an agreement cannot be reached on material terms of a 
FOCI action plan, or if the U.S. person that is a party, or in 
applicable cases, a subject of the proposed transaction fails to comply 
with the FOCI reporting requirements of this rule, the CSA may recommend 
a full investigation of the transaction by the CFIUS to determine the 
effects on national security.



Sec.  117.12  Security training and briefings.

    (a) General. Contractors will provide all cleared employees with 
security training and briefings commensurate with their involvement with 
classified information.
    (b) Training materials. Contractors may obtain security, threat 
awareness, and other education and training information and material 
from their CSA or other sources.
    (c) Government provided briefings. The CSA is responsible for 
providing initial security briefings to the FSO and for

[[Page 541]]

ensuring other briefings required for special categories of information 
are provided to the FSO.
    (d) FSO training. Contractors will ensure the FSO and others 
performing security duties complete training considered appropriate by 
the CSA. Training requirements will be based on the contractor's 
involvement with classified information. Training may include an FSO 
orientation course, and for FSOs at contractor locations with a 
classified information safeguarding capability, an FSO program 
management course. Contractor FSOs will complete training within six 
months of appointment to the position of FSO. When determined by the 
applicable CSA, contractor FSOs must complete an FSO program management 
course within six months of the CSA approval to store classified 
information at the contractor.
    (e) Initial security briefings. Prior to being granted access to 
classified information, contractors will provide employees with an 
initial security briefing that includes:
    (1) Threat awareness, including insider threat awareness in 
accordance with paragraph (g) in this section.
    (2) Counterintelligence (CI) awareness.
    (3) Overview of the information security classification system.
    (4) Reporting obligations and requirements, including insider 
threat.
    (5) Cybersecurity training for all authorized information system 
users in accordance with CSA-provided guidance pursuant to Sec.  
117.18(a)(1) and (a)(2).
    (6) Security procedures and duties applicable to the employee's 
position requirements (e.g. marking and safeguarding of classified 
information) and criminal, civil, or administrative consequences that 
may result from the unauthorized disclosure of classified information, 
even though the individual has not yet signed an NDA.
    (f) CUI training. While outside the requirements of the NISPOM, when 
a classified contract includes provisions for CUI training, contractors 
will comply with those contract requirements.
    (g) Insider threat training. The designated ITPSO will ensure that 
contractor program personnel assigned insider threat program 
responsibilities and all other cleared employees complete training 
consistent with applicable CSA provided guidance.
    (1) The contractor will provide training to insider threat program 
personnel, including the contractor's designated ITPSO, on:
    (i) CI and security fundamentals.
    (ii) Procedures for conducting insider threat response actions.
    (iii) Applicable laws and regulations regarding the gathering, 
integration, retention, safeguarding, and use of records and data, 
including the consequences of misuse of such information.
    (iv) Applicable legal, civil liberties, and privacy policies and 
requirements applicable to insider threat programs.
    (2) The contractor will provide insider threat awareness training to 
all cleared employees on an annual basis. Depending upon CSA specific 
guidance, a CSA may instead conduct such training. The contractor must 
provide all newly cleared employees with insider threat awareness 
training before granting access to classified information. Training will 
address current and potential threats in the work and personal 
environment and will include at a minimum:
    (i) The importance of detecting potential insider threats by cleared 
employees and reporting suspected activity to the insider threat program 
designee.
    (ii) Methodologies of adversaries to recruit trusted insiders and 
collect classified information, in particular within information 
systems.
    (iii) Indicators of insider threat behavior and procedures to report 
such behavior.
    (iv) CI and security reporting requirements, as applicable.
    (3) The contractor will establish procedures to validate all cleared 
employees who have completed the initial and annual insider threat 
training.
    (h) Derivative classification--(1) Initial training. The contractor 
will ensure all employees authorized to make derivative classification 
decisions are trained in the proper application of the derivative 
classification principles, in accordance with CSA direction. Employees

[[Page 542]]

are not authorized to conduct derivative classification until they 
receive such training.
    (2) Refresher training. In addition to the initial training, 
contractors will ensure all employees who conduct derivative 
classification receive training at least once every two years. 
Contractors will suspend an employee's derivative classification 
authority for any employee who does not receive such training at least 
once every two years. Training will emphasize the avoidance of over-
classification and address:
    (i) Classification levels.
    (ii) Duration of classification.
    (iii) Identification and markings.
    (iv) Classification prohibitions and limitations.
    (v) Sanctions and classification challenges.
    (vi) Security classification guides.
    (vii) Information sharing.
    (3) Record of training. Contractors will retain records of the date 
of the most recent training (initial or refresher) and type of training 
provided to employees.
    (i) Information systems security. All information system authorized 
users will receive training on the security risks associated with their 
user activities and responsibilities under the NISP. The contractor will 
determine the appropriate content of the training, taking into 
consideration assigned roles and responsibilities, specific security 
requirements, and the information system to which personnel are 
authorized access.
    (j) Temporary help suppliers. A cleared temporary help supplier, or 
other contractor who employs cleared individuals solely for dispatch 
elsewhere, will be responsible for ensuring that required briefings 
(both initial and refresher training) are provided to their cleared 
personnel. The temporary help supplier or the using contractor may 
conduct these briefings.
    (k) Refresher training. The contractor will provide all cleared 
employees with security education and training every 12 months. 
Refresher training will reinforce the information provided during the 
initial security briefing and will keep cleared employees informed of 
changes in security regulations and should also address issues or 
concerns identified during contractor self-reviews. Training methods may 
include group briefings, interactive videos, dissemination of 
instructional materials, or other media and methods. Contractors will 
maintain records about the programs offered and employee participation 
in them.
    (l) Debriefings. Contractors will debrief cleared employees and 
annotate the debriefing in the appropriate contractor records when 
access to classified information is no longer needed; at the time of 
termination of employment (discharge, resignation, or retirement); when 
an employee's eligibility for access to classified information is 
terminated, suspended, or revoked; and upon termination of the entity 
eligibility determination.



Sec.  117.13  Classification.

    (a) Original classification. Only a USG official designated or 
delegated the authority in writing can make an original classification 
decision.
    (1) An OCA classifies information pursuant to E.O. 13526 and 32 CFR 
part 2001, designates and marks it as TOP SECRET, SECRET, or 
CONFIDENTIAL, and, except as provided by statute, may use no other terms 
to identify classified information.
    (2) The designation UNCLASSIFIED is used to identify information 
that does not meet the criteria for classification in accordance with 
E.O. 13526. In accordance with 32 CFR 2002, CUI implementing guidance 
(including the Marking Handbook) and any GCA-provided guidance, CUI 
commingled with classified information must be marked as CUI to alert 
users to its presence and sensitivity. The CUI regulation, guidance, and 
handbook are available at: https://www.archives.gov/cui.
    (b) Derivative classification. (1) Contractor personnel make 
derivative classification decisions when they incorporate, paraphrase, 
restate, or generate in new form, information that is already 
classified. They must mark the newly developed material consistently 
with the classification markings that apply to the source information.
    (2) Derivative classification is the classification of information 
based on guidance from an OCA, which may be

[[Page 543]]

either a properly marked source document or a current security 
classification guide provided by a GCA in accordance with E.O. 13526. 
The duplication or reproduction of existing classified information is 
not derivative classification.
    (3) A source document that does not contain portion markings, due to 
an ISOO-approved waiver, must contain a warning statement that it may 
not be used as a source for derivative classification in accordance with 
32 CFR 2001.24(k)(4).
    (4) Classified information in email messages is marked pursuant to 
E.O. 13526 and 32 CFR part 2001. If an email is transmitted on a 
classified system, includes a classified attachment, and contains no 
classified information within the body of the email itself, the email 
serves as a transmittal document and is not a derivatively classified 
document. The email's overall classification must reflect the highest 
classification level present in the attachment.
    (c) Derivative classification responsibilities. Contractors will 
provide employees with pertinent classification guidance to fulfill 
their derivative classification responsibilities. All contractor 
employees authorized to make derivative classification decisions will:
    (1) Mark the face of each derivatively classified document with a 
classification authority block that includes the employee's name and 
position or personal identifier, the entity name, and when applicable, 
the division or the branch.

     Figure 1 to Paragraph (c)(1) Example of Industry Classification
                             Authority Block
  UNCLASSIFIED: CLASSIFICATION MARKINGS FOR ILLUSTRATION PURPOSES ONLY
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
Classified by: John Doe, Security Specialist, Entity ABC Security
 Division
Derived From: SecDef Memo, dtd 20101024, Subj: ___
Declassify On: 20201024
------------------------------------------------------------------------

    (2) Observe and respect original classification decisions.
    (3) Carry forward the pertinent classification markings to any newly 
created documents. For information derivatively classified based on 
multiple sources, the derivative classifier will carry forward:
    (i) The date or event for declassification that corresponds to the 
longest period of classification among the sources.
    (ii) A listing of the source materials.
    (4) Be trained, in accordance with Sec.  117.12(h), in the proper 
application of the derivative classification principles at least once 
every two years.
    (5) Whenever possible, use a classified addendum if classified 
information constitutes a small portion of an otherwise unclassified 
document.
    (d) Security classification guidance. (1) Contractors should be 
aware the GCA will:
    (i) Incorporate appropriate security requirement clauses in a 
classified contract, IFB, RFP, RFQ, or all solicitations leading to a 
classified contract.
    (ii) Provide the contractor with the security classification 
guidance needed during performance of the contract.
    (iii) Provide this guidance to the contractor in the contract 
security classification specification, or equivalent.
    (2) The contract security classification specification, or 
equivalent, must identify the specific elements of classified 
information involved in the contract that require security protection.
    (3) At the discretion of the CSA, contractors may, to the extent 
possible, advise and assist in the development and any updates to or any 
revisions to the contract security classification specification, or 
equivalent.
    (4) The contractor will comply with all aspects of the 
classification guidance.
    (i) Users of classification guides are encouraged to notify the 
originator of the guide when they acquire information that suggests the 
need for change in the instructions contained in the guide.
    (ii) Classification guidance is the exclusive responsibility of the 
GCA, and the final determination of the appropriate classification for 
the information rests with that activity. The contract security 
classification specification, or equivalent, is a contractual 
specification necessary for the performance of a classified contract. 
Challenges to classification status are in paragraph (e) in this 
section.

[[Page 544]]

    (iii) If the contractor receives a classified contract without a 
contract security classification specification, or equivalent, the 
contractor will notify the GCA. If the GCA does not respond with the 
appropriate contract security classification specification, or 
equivalent, the contractor will notify the CSA.
    (5) Upon completion of a classified contract, the contractor must 
return all USG provided or deliverable information to the custody of the 
USG.
    (i) If the GCA does not advise to the contrary, the contractor may 
retain copies of the USG material for a period of two years following 
the completion of the contract. The contract security classification 
specification, or equivalent, will continue in effect for this two-year 
period.
    (ii) If the GCA determines the contractor has a continuing need for 
the copies of the USG material beyond the two-year period, the GCA will 
issue a final contract security classification specification, or 
equivalent, for the classified contract and will include disposition 
instructions for the copies.
    (e) Challenges to classification status. (1) The contractor will 
address challenges to classification status with the GCA and request 
remedy when:
    (i) Information is classified improperly or unnecessarily.
    (ii) Current security considerations justify downgrading to a lower 
classification level or upgrading to a higher classification level.
    (iii) Security classification guidance is not provided, improper or 
inadequate.
    (2) If the GCA does not provide a remedy, and the contractor still 
believes that corrective action is required, the contractor will make a 
formal written challenge to the GCA. The challenge will include:
    (i) A description sufficient to identify the issue.
    (ii) The reasons why the contractor thinks that corrective action is 
required.
    (iii) Recommendations for appropriate corrective action.
    (3) The contractor will safeguard the information as required for 
its assigned or proposed level of classification, whichever is higher, 
until action is completed.
    (4) If the contractor does not receive a written answer from the GCA 
within 60 days, the contractor will request assistance from the CSA. If 
the contractor does not receive a response from the GCA within 120 days, 
the contractor may appeal the challenge to the Interagency Security 
Classification Appeals Panel through ISOO.
    (5) The fact that a contractor has initiated such a challenge will 
not, in any way, serve as a basis for adverse action against the 
contractor by the USG. If a contractor believes that adverse action did 
result from a classification challenge, the contractor will promptly 
furnish full details to ISOO for resolution.
    (f) Contractor developed information. Whenever a contractor develops 
an unsolicited proposal or originates information not in the performance 
of a classified contract, the provisions of this paragraph apply.
    (1) If the information was previously identified as classified, it 
will be classified according to an appropriate classification guide, or 
source document, and appropriately marked.
    (2) If the information was not previously classified, but the 
contractor believes the information may or should be classified, the 
contractor will:
    (i) Protect the information as though classified at the appropriate 
level.
    (ii) Submit the information to the agency that has an interest for a 
classification determination. In such cases, clearly mark the material 
``CLASSIFICATION DETERMINATION PENDING; Protect as either TOP SECRET, 
SECRET, or CONFIDENTIAL.'' This marking will appear conspicuously at 
least once on the material but no further markings are necessary until a 
classification determination is received.
    (iii) Not be precluded from marking such material as entity-private 
or entity-proprietary information, unless the material was based upon 
information obtained from prior deliverables to the USG or was developed 
from USG material.
    (iv) Protect the information pending a final classification 
determination. The information may be CUI, if it is

[[Page 545]]

not classified. Only information that is owned by, produced by, produced 
for, or is under the control of the USG can be classified in accordance 
with E.O. 13526.
    (3) To be eligible for classification:
    (i) The information must incorporate classified information to which 
the contractor was given prior access.
    (ii) The information must be partially or wholly owned by, produced 
by or for, or under the control of the USG.
    (4) 10 CFR 1045.21 includes provisions for the DOE with regard to 
privately generated RD, whereby the DOE may classify such information in 
accordance with the AEA.
    (g) Improperly released classified information appearing in public 
media. Improperly released classified information is not automatically 
declassified. When classified information has been improperly released, 
and even when that classified information has become publicly available, 
contractors will:
    (1) Continue to protect the information at the appropriate 
classification level until formally advised to the contrary by the GCA.
    (2) Bring any questions about the propriety of continued 
classification in these cases to the immediate attention of the GCA.
    (3) Notify the applicable CSA if an employee downloads the 
improperly released classified information to determine how to resolve a 
data spill.
    (h) Downgrading or declassifying classified information. Information 
is downgraded or declassified based on the loss of sensitivity of the 
information due to the passage of time or on occurrence of a specific 
event. Downgrading or declassifying actions constitute implementation of 
a directed action based on a review by either the OCA or the USG-
designated classification authority. Declassification is not an approval 
for public disclosure.
    (1) Downgrading. Contractors will refer information for 
classification or downgrade to the GCA based on the guidance provided in 
a contract security classification specification, or equivalent, or upon 
formal notification.
    (2) Declassification. Contractors are not authorized to implement 
downgrading or declassification instructions even when the material is 
marked for automatic downgrading or declassification. If the material is 
marked for automatic declassification and the contractor notes that the 
date or event for the automatic declassification has occurred, the 
contractor will seek guidance from the GCA.
    (i) RD, FRD, and TFNI. Protection requirements for RD, FRD, and TFNI 
are pursuant to Sec.  117.23(e). Information about classification and 
declassification of RD, FRD, or TFNI documents is in Sec.  117.23(e)(5).



Sec.  117.14  Marking requirements.

    (a) Purpose for marking. (1) Physically marking classified 
information with appropriate classification markings serves to warn and 
inform holders of the information of the degree of protection required. 
Other notations facilitate downgrading and declassification, and aid in 
derivative classification actions.
    (2) Contractors will clearly mark all classified information and 
material to convey to the holder the level of classification assigned, 
the portions that contain or reveal classified information, the period 
of time protection is required, the identity (by name and position or 
personal identifier) of the classifier, the source(s) for derivative 
classification, and any other notations required for protection of the 
information.
    (b) Marking guidance for classified information and material. 
Contractors will use the marking guidance conveyed in 32 CFR 2001.22 
through 2001.26, and its companion document, ISOO booklet ``Marking 
Classified National Security Information,'' (available at: https://
www.archives.gov/ isoo/training/training-aids) or CSA specific provided 
guidance for marking derivatively classified information and material 
and as required by applicable security classification guide. The special 
requirements for marking documents containing RD, FRD, and TFNI are 
addressed in Sec.  117.23.
    (c) Marking guidance for CUI. Contractors will use marking guidance 
conveyed in 32 CFR 2002.20, the CUI Marking Handbook (available at: 
https://www.archives.gov/ files/cui/

[[Page 546]]

documents/ 20161206-cui-marking-handbook -v1-1-20190524.pdf), and agency 
policy to mark CUI in accordance with contract requirements.
    (d) Working papers. Working papers will be marked, destroyed, and 
retained in accordance with Sec.  117.15(e)(3).
    (e) Translations. The contractor will mark translations of U.S. 
classified information into a language other than English with the 
appropriate U.S. markings and the foreign language equivalent to show 
the United States as the country of origin.
    (f) Marking wholly unclassified material. The contractor will not 
mark or stamp wholly UNCLASSIFIED material as UNCLASSIFIED unless it is 
essential to convey to a recipient of such material that:
    (1) The material has been examined specifically with a view to 
impose a security classification and has been determined not to require 
classification by the GCA.
    (2) The material has been reviewed and has been determined to no 
longer require classification and it has been declassified by the 
applicable GCA.
    (g) Marking miscellaneous material. The contractor will:
    (1) Handle miscellaneous material developed in connection with the 
handling, processing, production, storage, and utilization of classified 
information in a manner that ensures adequate protection of the 
classified information involved.
    (2) Destroy the miscellaneous material at the earliest practical 
time, unless a requirement exists to retain such material. 
Notwithstanding the provisions of paragraph (a) of this section, there 
is no requirement for the contractor to mark such material, but 
disposition and retention requirements in Sec.  117.15(i) and (j) apply.
    (h) Marking training material. The contractor will clearly mark 
unclassified documents or materials that are created to simulate or 
demonstrate classified documents or material to indicate the actual 
UNCLASSIFIED status of the information. For example, the contractor may 
use: MARKINGS ARE FOR TRAINING PURPOSES ONLY, OTHERWISE UNCLASSIFIED or 
UNCLASSIFIED SAMPLE, or other similar marking.
    (i) Downgrading or declassification actions. When a contractor 
removes documents or material that have been downgraded or declassified 
from storage for use or for transmittal outside the contractor location:
    (1) The documents or material must be re-marked pursuant to 
paragraph (i)(1)(i) or (i)(1)(ii) in this section.
    (i) Prior to taking any action to downgrade or declassify 
information, the contractor will seek guidance from the GCA. If the GCA 
approves such action, the contractor will cancel all old classification 
markings with the new markings substituted, whenever practical. For 
documents, at a minimum the outside of the front cover, the title page, 
the first page, and the outside of the back will reflect the new 
classification markings, or include the designation UNCLASSIFIED. The 
contractor will re-mark other material by the most practical method for 
the type of material involved to ensure that it is clear to the holder 
what level of classification is assigned to the material.
    (ii) When the GCA notifies contractors of downgrading or 
declassification actions that are contrary to the markings shown on the 
material, the contractor will re-mark material to indicate the change 
and notify other holders if further dissemination was made. The 
contractor will mark the material to indicate the:
    (A) Authority for the action.
    (B) Date of the action.
    (C) Identity and position of the individual taking the action.
    (2) If the volume of material is such that prompt re-marking of each 
classified item cannot be accomplished without unduly interfering with 
operations, the contractor may attach a downgrading and declassification 
notice to the inside of the file drawers or other storage container 
instead of the re-marking otherwise required.
    (3) When such documents or materials are withdrawn from the 
container solely for transfer to another container, or when the 
container is transferred from one place to another, the transfer may be 
made without re-marking if the notice is attached to the new container 
or remains with each shipment.

[[Page 547]]

    (4) For the purpose of paragraphs (i)(2) and (i)(3) in this section, 
the contractor must include in the downgrading and declassification 
notice:
    (i) The authority for the downgrading or declassification action.
    (ii) The date of the action.
    (iii) The storage container to which it applies.
    (j) Upgrading action. (1) When the contractor receives notice from 
the GCA to upgrade material to a higher level; for example, from 
CONFIDENTIAL to SECRET, the contractor will:
    (i) Immediately enter the new markings on the material according to 
the notice to upgrade, and strike through all the superseded markings.
    (ii) Enter the authority for and the date of the upgrading action on 
the material.
    (iii) Ensure all records affected are stored at the appropriate 
level of security, including digital networks and systems. Upgrades 
requiring network or system adjustment will be coordinated with the GCA 
to mitigate or account for impact on the execution of the contract.
    (2) The contractor will notify all holders to whom they disseminated 
the material. The contractor will not mark the notice as classified 
unless it contains additional information warranting classification.
    (3) In the case of material which was inadvertently released as 
UNCLASSIFIED, the contractor will mark and protect the notice as 
classified at the CONFIDENTIAL level, unless it contains additional 
information warranting a higher classification. The contractor will cite 
the applicable Contract Security Classification Specification, or 
equivalent, or other classification guide on the ``Derived From'' line 
and mark the notice with an appropriate declassification instruction.
    (k) Dissemination of improperly marked information. If the 
contractor inadvertently distributes classified material without the 
proper classification assigned to it, or without any markings to 
identify the material as classified, as appropriate, the contractor 
will:
    (1) Determine whether all holders of the material are cleared and 
authorized access to it.
    (2) If recipients are authorized persons, and the contractor 
disseminated the information through authorized channels, promptly 
provide written notice to all holders of the proper classification to be 
assigned. The contractor will also include the classification source as 
well as declassification instructions in the notification.
    (3) Report compromises to the CSA in accordance with the provisions 
of Sec.  117.8(d), if:
    (i) Any of the recipients of the material are not authorized 
persons.
    (ii) Any material cannot be accounted for.
    (iii) The material was transmitted through unauthorized channels.
    (l) Marking foreign government classified material. Foreign 
government classified information will retain its original 
classification markings or will be assigned a U.S. classification that 
provides a degree of protection at least equivalent to that required by 
the foreign government entity that furnished the information in 
accordance with 32 CFR 2001.54. The equivalent U.S. classification and 
the country of origin will be marked on the front and back in English.
    (m) Foreign government restricted information and ``in confidence'' 
information.
    (1) Some foreign governments have a fourth level of classification 
that does not correspond to an equivalent U.S. classification that is 
identified as RESTRICTED information. In many cases, security agreements 
require RESTRICTED information to be protected as U.S. CONFIDENTIAL 
information.
    (2) Some foreign governments may have a category of unclassified 
information that is protected by law. This latter category is normally 
provided to other governments with the expectation that the information 
will be treated ``In Confidence.'' The foreign government or 
international organization must state that the information is provided 
in confidence and that it must be protected from release.
    (i) 10 U.S.C. 130c protects information provided ``In Confidence'' 
by foreign governments which is not classified but meets special 
requirements.
    (ii) This provision also applies to RESTRICTED information which is 
not

[[Page 548]]

required by an agreement to be protected as classified information.
    (iii) The contractor will not disclose information protected by this 
statutory provision to anyone except personnel who require access to the 
information in connection with the contract.
    (3) It is the responsibility of the foreign entity that awards the 
contract to incorporate requirements for the protection and marking of 
RESTRICTED or ``In Confidence'' information in the contract. The 
contractor will advise the CSA if requirements were not provided by the 
foreign entity.
    (n) Marking U.S. documents containing FGI. (1) U.S. documents 
containing FGI must be marked on the front, ``THIS DOCUMENT CONTAINS 
(indicate country of origin) INFORMATION.'' In addition, the portions 
must be marked to identify both the country and classification level, 
(e.g., (UK-C), (GE-C)). The ``Derived From'' line will identify U.S. as 
well as foreign classification sources.
    (2) If the identity of the foreign government must be concealed, the 
front of the document will be marked ``THIS DOCUMENT CONTAINS FOREIGN 
GOVERNMENT INFORMATION;'' paragraphs will be marked FGI, together with 
the classification level (e.g., (FGI-C)); and the ``Derived From'' line 
will indicate FGI in addition to any U.S. source. The identity of the 
foreign government will be maintained with the record copy of the 
document.
    (3) A U.S. document that contains FGI will not be downgraded below 
the highest level of FGI contained in the document or be declassified 
without the written approval of the foreign government that originated 
the information. Recommendations concerning downgrading or 
declassification will be submitted to the GCA or foreign government 
contracting authority, as applicable.
    (o) Marking documents prepared for foreign governments. Documents 
prepared for foreign governments that contain U.S. classified 
information and FGI will be marked as prescribed by the foreign 
government. In addition, they will be marked on the front, ``THIS 
DOCUMENT CONTAINS UNITED STATES CLASSIFIED INFORMATION.'' Portions will 
be marked to identify the U.S. classified information.
    (p) Marking requirements for transfers of defense articles to 
Australia (AUS) or the United Kingdom (UK). Marking requirements for 
transfers of defense articles to AUS or the UK without a license or 
other written authorization are pursuant to Sec.  117.19(i).
    (q) Commingling of RD and FRD. Commingling of RD, FRD, and TFNI with 
national security information (NSI) in the same document should be 
avoided to the greatest degree possible. When mixing this information 
cannot be avoided, the marking requirements in 10 CFR part 1045, section 
140(f) and declassification requirements of 10 CFR part 1045, section 
155 apply.



Sec.  117.15  Safeguarding classified information.

    (a) General safeguarding. Contractors will be responsible for 
safeguarding classified information in their custody or under their 
control, with approval for such storage of classified information by the 
applicable CSA. Individuals are responsible for safeguarding classified 
information entrusted to them. Contractors will provide the extent of 
protection to classified information sufficient to reasonably protect it 
from loss or compromise.
    (1) Oral discussions. Contractors will ensure that all cleared 
personnel are aware of the prohibition against discussing classified 
information over unsecured telephones, in public conveyances or places, 
or in any other manner that permits interception by unauthorized 
persons.
    (2) End of day security checks. (i) Contractors that store 
classified material will establish a system of security checks at the 
close of each working day to verify that all classified material and 
security repositories have been appropriately secured.
    (ii) Contractors that operate multiple work shifts will perform the 
security checks at the end of the last working shift in which classified 
material was removed from storage for use. The checks are not required 
during continuous 24-hour operations.
    (3) Perimeter controls. (i) Contractors authorized to store 
classified material

[[Page 549]]

will establish and maintain a system to deter and detect unauthorized 
introduction or removal of classified material from their facility 
without proper authority.
    (ii) If the unauthorized introduction or removal of classified 
material can be reasonably prevented through technical means (e.g., an 
intrusion detection system), which are encouraged, no further controls 
are necessary. The contractor will provide appropriate authorization to 
personnel who have a legitimate need to remove or transport classified 
material for passing through designated entry or exit points.
    (iii) The contractor will:
    (A) Provide appropriate authorization to personnel who have a 
legitimate need to remove or transport classified material for passing 
through designated entry or exit points.
    (B) Conspicuously post notices at all pertinent entries and exits 
that persons who enter or depart the facility are subject to an 
inspection of their personal, except under circumstances where the 
possibility of access to classified material is remote.
    (C) Limit inspections to buildings or areas where classified work is 
being performed.
    (D) Establish the extent, frequency, and location of inspections in 
a manner consistent with contractual obligations and operational 
efficiency. The contractor may use any appropriate random sampling 
technique.
    (E) Seek legal advice during the formulation of implementing 
procedures.
    (F) Submit significant problems pertaining to perimeter controls and 
inspections to the CSA.
    (iv) Contractors will develop procedures for safeguarding classified 
material in emergency situations.
    (A) The procedures should be as simple and practical as possible and 
adaptable to any type of emergency that may reasonably arise.
    (B) Contractors will promptly report to the CSA any emergency 
situation that renders them incapable of safeguarding classified 
material.
    (b) Standards for Security Equipment. Contractors will follow 
guidelines established in 32 CFR part 2001, when procuring storage and 
destruction equipment. Authorized repairs for GSA-approved security 
containers and vaults must be in accordance with Federal Standard 809.
    (c) Storage. Contractors will store classified information and 
material in General Services Administration (GSA)-approved security 
containers, vaults built to Federal Standard 832, or an open storage 
area constructed in accordance with 32 CFR 2001.53. In the instance that 
an open storage area has a false ceiling or raised floor, contractors 
shall develop and implement procedures to ensure their structural 
integrity. Nothing in 32 CFR part 2001, should be construed to 
contradict or inhibit compliance with local laws or building codes, but 
the contractor will notify the applicable CSA if there are any 
conflicting issues that would inhibit compliance. Contractors will store 
classified material in accordance with the specific sections of 32 CFR 
2001.43:
    (1) CONFIDENTIAL. See 32 CFR 2001.43(b)(3).
    (2) SECRET. See 32 CFR 2001.43(b)(2).
    (3) TOP SECRET Documents. See 32 CFR 2001.43(b)(1).
    (d) Intrusion Detection Systems (IDS). This paragraph specifies the 
minimum standards for an approved IDS when used for supplemental 
protection of TOP SECRET and SECRET material. The CSA will provide 
additional guidance for contingency protection procedures in the event 
of IDS malfunction, including contractors located in USG owned 
contractor operated facilities.
    (1) CSA approval. (i) CSA approval is required before installing an 
IDS. The CSA will base approval of a new IDS on the criteria of 
Intelligence Community Directive 705 (available at: https://www.dni.gov/ 
files/documents/ICD/ICD_ 705_SCIFs.pdf) and any applicable intelligence 
community standard, Underwriters Laboratories (UL) Standard 2050 
(Government agencies with a role as a CSA or CSO may obtain this 
reference without charge; available at: www.ul.com/contact), or the CSA 
may base approval on written CSA-specific standards for the information 
to be protected.
    (ii) Installation will be performed by an alarm services company 
certified by a NRTL that meets the requirements in 29 CFR 1910.7 to 
perform testing and

[[Page 550]]

certification. The NRTL-approved alarm service company is responsible 
for completing the appropriate alarm system description form approved by 
the NRTL.
    (iii) All the intrusion detection equipment (IDE) used in the IDS 
installation will be tested and approved (or listed) by a NRTL, ensuring 
its proper operation and resistance from tampering. Any IDE that has not 
been tested and approved by a NRTL will require CSA approval.
    (2) Central monitoring station. (i) For the purpose of monitoring 
alarms, an equivalent level of monitoring service is available from 
multiple types of providers. The central monitoring station may be 
located at a one of the following:
    (A) Government contractor monitoring station (GCMS), formerly called 
a proprietary central station.
    (B) Cleared commercial central station.
    (C) Cleared protective signal service station (e.g., fire alarm 
monitor).
    (D) Cleared residential monitoring station.
    (E) National industrial monitoring station.
    (ii) SECRET-cleared central station employees at the alarm 
monitoring station will be in attendance in sufficient number to monitor 
each alarmed area within the cleared contractor facility.
    (iii) The central monitoring station will be supervised continuously 
by a U.S. citizen who has eligibility for access to SECRET information.
    (iv) The IDS must be activated at the close of business whenever the 
area is not occupied by cleared personnel. Any IDS exit delay function 
must expire prior to the cleared personnel leaving the immediate area. A 
record will be maintained to identify the person or persons who are 
responsible for setting and deactivating the IDS.
    (v) Records will be maintained for 12 months indicating time of 
receipt of alarm, name(s) of security force personnel responding, time 
dispatched to facility or area, time security force personnel arrived, 
nature of alarm, and what follow-up actions were accomplished.
    (3) Investigative response to alarms. (i) Alarm response teams will 
ascertain if intrusion has occurred and, if possible, assist in the 
apprehension of the individuals involved.
    (A) If an alarm activation resets in a reasonable amount of time and 
no damage to the area is visible, then entrance into the area is not 
required and an initial response team may consist of uncleared 
personnel.
    (B) If the alarm activation does not reset and damage is observed, 
then a cleared response team must be dispatched. The initial uncleared 
response team must stay on station until relieved by the cleared 
response team. If a cleared response team does not arrive within 1 hour, 
then a report to the CSA must be made by the close of the next business 
day.
    (ii) The following resources may be used to investigate alarms: 
Proprietary security force personnel, central station guards, local law 
enforcement personnel, or a subcontracted guard service. The CSA may 
approve procedures for the use of entity cleared employees who can meet 
the minimum response requirements outlined in this section.
    (A) For a GCMS, trained proprietary or subcontractor security force 
personnel, cleared to the SECRET level and sufficient in number to be 
dispatched immediately to investigate each alarm, will be available at 
all times when the IDS is in operation.
    (B) For a commercial central station, protective signaling service 
station, or residential monitoring station, there will be a sufficient 
number of trained guards available to respond to alarms. Guards will be 
cleared only if they have the ability and responsibility to access the 
area or container(s) housing classified material (i.e., keys to the 
facility have been provided or the personnel are authorized to enter the 
building or check the container or area that contains classified 
material).
    (C) Uncleared guards dispatched by a commercial central station, 
protective signaling service station, or residential monitoring station 
in response to an alarm will remain on the premises until a designated, 
cleared representative of the facility arrives, or for a period of not 
less than 1 hour, whichever comes first. If a cleared representative

[[Page 551]]

of the facility does not arrive within 1 hour following the arrival of 
the guard, the central control station must provide the CSA with a 
report of the incident that includes the name of the subscriber 
facility, the date and time of the alarm, and the name of the 
subscriber's representative who was contacted to respond. A report will 
be submitted to the CSA by the end of business on the next business day.
    (D) Subcontracted guards must be under a classified contract with 
either the installing alarm service company or the cleared facility.
    (iii) The response time will be in accordance with the provisions in 
paragraphs (c)(1) through (c)(3) in this section as applicable. When 
environmental factors (e.g., traffic, distance) legitimately prevent 
meeting the requirements for TOP SECRET information, as indicated in 
paragraph (c)(3) in this section, the CSA may authorize up to a 30-
minute response time. The CSA approval will be documented on the alarm 
system description form and the specified response time will be noted on 
the alarm certificate. The requirement for response is 80 percent within 
the time limits.
    (4) Installation. The IDS will be installed by an NRTL-approved 
entity or by an entity approved in writing by the CSA. When connected to 
a commercial central station, GCMS, national industrial monitoring 
station, or residential monitoring station, the service provided will 
include line security (i.e., the connecting lines are electronically 
supervised to detect evidence of tampering or malfunction). The level of 
protection for the alarmed area will include all points of probable 
entry (perimeter doors and accessible windows) with magnetic contacts 
and motion detectors positioned in the probable intruder paths from the 
probable points of entry to the classified information. In accordance 
with Federal Standard 809, no IDS sensors (magnetic contacts or 
vibration detectors) will be installed on GSA-approved security 
containers. CSA authorization on the alarm system description form is 
required in the following circumstances:
    (i) When line security is not available, installation will require 
two independent means of transmission of the alarm signal from the 
alarmed area to the monitoring station.
    (ii) Alarm installation provides a level of protection, e.g. UL's 
Extent 5, based on patrolling employees and CSA approval of security-in-
depth.
    (iii) Where law enforcement personnel are the primary alarm 
response. Under those circumstances, the contractor must obtain written 
assurance from the police department regarding the ability to respond to 
alarms in the required response time.
    (iv) Alarm signal transmission is over computer-controlled data-
networks (e.g., internet, intranet). The CSA will provide specific 
acceptance criteria (e.g., encryption requirements) for alarms monitored 
over data networks.
    (v) Alarm investigator response time exceeds the parameters outlined 
in paragraphs (c)(1) through (c)(3) in this section as applicable.
    (5) Certification of compliance. Evidence of compliance with the 
requirements of this section will consist of a valid (current) 
certification by an approved NRTL for the appropriate category of 
service. This certificate:
    (i) Will have been issued to the protected facility by the NRTL, 
through the alarm service company.
    (ii) Serves as evidence that the alarm service company that did the 
installation is:
    (A) Listed as furnishing security systems of the category indicated.
    (B) Authorized to issue the certificate of installation as 
representation that the equipment is in compliance with requirements 
established by NRTL for the class of alarm system.
    (C) Subject to the NRTL inspection program whereby periodic 
inspections are made of representative alarm installations by NRTL 
personnel to verify the correctness of certification practices.
    (6) Exceptional cases. (i) If the requirements in paragraphs (d)(1) 
through (d)(5) in this section cannot be met, the contractor may request 
CSA approval for an alarm system meeting one of these conditions, which 
will be documented on the alarm system description form:
    (A) Monitored by a central control station but responded to by a 
local

[[Page 552]]

(municipal, county, state) law enforcement organization.
    (B) Connected by direct wire to alarm receiving equipment located in 
a local (municipal, county, State) police station or public emergency 
service dispatch center. This alarm system is activated and deactivated 
by employees of the contractor, but the alarm is monitored and responded 
to by personnel of the monitoring police or emergency service dispatch 
organization. Personnel monitoring alarm signals at police stations or 
dispatch centers do not require PCLs. Police department response systems 
may be requested only when:
    (1) The contractor facility is located in an area where central 
control station services are not available with line security or 
proprietary security force personnel, or a contractually-dispatched 
response to an alarm signal cannot be achieved within the time limits 
required by the CSA.
    (2) It is impractical for the contractor to establish a GCMS or 
proprietary guard force at that location. In this case, installation of 
these systems must use NRTL-approved equipment and be accomplished by an 
NRTL-approved entity meeting the applicable testing standard for the 
category of service.
    (ii) An installation proposal, explaining how the system would 
operate, will be submitted to the CSA. The proposal must include:
    (A) Sufficient justification for the granting of an exception and 
the full name and address of the police department that will monitor the 
system and provide the required response.
    (B) The name and address of the NRTL-approved entity that will 
install the system, and inspect, maintain, and repair the equipment.
    (iii) The response times will be in accordance with the provisions 
in paragraphs (c)(1) through (c)(3) in this section as applicable. 
Arrangements will be made with the central monitoring station to 
immediately notify a contractor representative on receipt of the alarm. 
The contractor representative is required to go immediately to the 
facility to investigate the alarm and to take appropriate measures to 
secure the classified material.
    (iv) In exceptional cases where central station monitoring service 
is available, but no proprietary security force, central station, or 
subcontracted guard response is available, and where the police 
department does not agree to respond to alarms, and no other manner of 
investigative response is available, the CSA may approve cleared 
employees as the sole means of response.
    (e) Information controls--(1) Information management system. 
Contractors will establish:
    (i) A system to verify that classified information in their custody 
is used or retained only for a lawful and authorized USG purpose.
    (ii) An information management system to protect and control the 
classified information in their possession regardless of media, to 
include information processed and stored on authorized information 
systems.
    (2) Top secret information. Contractors will establish controls for 
TOP SECRET information and material to validate procedures are in place 
to address accountability, need to know, and retention, e.g., 
demonstrating that TOP SECRET material stored in an electronic format on 
an authorized classified information system does not need to be 
individually numbered in series. These controls are in addition to the 
information management system and must be applied, unless otherwise 
directed by the applicable CSA, regardless of the media of the TOP 
SECRET information, to include information processed and stored on 
authorized information systems. Unless otherwise directed by the 
applicable CSA, the contractor will establish the following additional 
controls:
    (i) Designate TOP SECRET control officials to receive, transmit, and 
maintain access and accountability records to TOP SECRET information.
    (ii) Conduct an annual inventory of TOP SECRET information and 
material.
    (iii) Establish a continuous receipt system for the transmittal of 
TOP SECRET information within and outside the contractor location.
    (iv) Number each item of TOP SECRET material in a series. Place the

[[Page 553]]

copy number on TOP SECRET documents, regardless of media, and on all 
associated transactions documents.
    (v) Establish a record of TOP SECRET material when the material is:
    (A) Completed as a finished document.
    (B) Retained for more than 180 days after creation, regardless of 
the stage of development.
    (C) Transmitted outside the contractor location.
    (vi) Establish procedures for destruction of TOP SECRET material by 
two authorized persons.
    (vii) Establish destruction records for TOP SECRET material and 
maintain the records for two years in accordance with Sec.  117.13(d)(5) 
or in accordance with GCA requirements.
    (3) Working papers. Contractors will establish procedures for the 
control of classified working papers generated in the preparation of a 
finished document. The contractor will:
    (i) Date working papers when they are created.
    (ii) Mark each page of the working papers with the highest 
classification level of any information contained in them and with the 
annotation ``WORKING PAPERS.''
    (iii) Destroy working papers when no longer needed.
    (iv) Mark in the same manner prescribed for a finished document at 
the same classification level if released outside the contractor 
location or retained for more than 180 days from the date of origin.
    (4) Combinations to locks. Contractors will follow the guidance in 
32 CFR 2001.45(a)(1) and 2001.43 (c) to address thresholds when 
combinations will be changed. Combinations to locks used to secure 
vaults, open storage areas, and security containers that are approved 
for the safeguarding of classified information will be protected in the 
same manner as the highest level of classified information that the 
vault, open storage area, or security container is used to protect.
    (5) Information system passwords. Contractors will follow the 
guidance established in 32 CFR 2001.45(a)(2) for the protection of 
passwords to information systems authorized to process and store 
classified information at the highest level of classification to which 
the information system is authorized.
    (6) Reproduction of classified information. Contractors will follow 
the guidance established in 32 CFR 2001.45(b) for the reproduction of 
classified information.
    (f) Transmission of classified information. Contractors will 
establish procedures for transmitting and receiving classified 
information and material in accordance with 32 CFR 2001.46.
    (1) Top secret. The contractor must have written authorization from 
the GCA to transmit TOP SECRET material outside the contractor location.
    (2) Transmission outside the United States and its Territorial 
Areas. The contractor may transmit classified material to a USG activity 
outside the United States or a U.S. territorial area only under the 
provisions of a classified contract or with written authorization from 
the GCA.
    (3) Commercial delivery entities. The CSA may approve contractors to 
transmit SECRET or CONFIDENTIAL information within the United States and 
its territorial areas by means of a commercial delivery entity that is a 
current holder of the GSA contract for overnight delivery, and which 
provides nation-wide, overnight service with computer tracking and 
reporting features (a list of current contract holders may be found at: 
https://www.archives.gov/ isoo/faqswhat-is-overnightcarriers). Such 
entities do not need to be determined eligible for access to classified 
information.
    (i) Prior to CSA approval, the contractor must establish and 
document procedures to ensure the proper protection of incoming and 
outgoing classified packages, including the street delivery address, for 
each cleared facility intending to use GSA-listed commercial delivery 
entities for overnight services.
    (ii) Contractors will establish procedures for the use of commercial 
delivery entities in accordance with 32 CFR part 2001. The procedures 
will:
    (A) Confirm that the commercial delivery entity provides nationwide, 
overnight delivery service with automated in-transit tracking of the 
classified packages.

[[Page 554]]

    (B) Ensure the package integrity during transit and that incoming 
shipments are received by appropriately cleared personnel.
    (C) Not be used for COMSEC, NATO, or FGI.
    (4) Couriers and hand carriers. Contractors may designate cleared 
employees as couriers or hand carriers. Contractors will:
    (i) Brief employees providing such services on their responsibility 
to safeguard classified information and keep classified material in 
their possession at all times.
    (ii) Provide employees with an identification card or badge which 
contains the contractor's name and the name and a photograph of the 
employee.
    (iii) Make arrangements in advance of departure for overnight 
storage at a USG installation or at a cleared contractor's facility that 
has appropriate storage capability, if needed.
    (iv) Conduct an inventory of the material prior to departure and 
upon return. The employee will carry a copy of the inventory with them.
    (5) Use of commercial passenger aircraft. The contractor may 
authorize cleared employees to hand carry classified material aboard 
commercial passenger aircraft.
    (i) Routine processing. Employees hand carrying classified material 
are subject to routine processing by airline security agents. Hand-held 
packages will normally be screened by x-ray examination. If security 
personnel are not satisfied with the results of the inspection and 
requests the prospective passenger to open a classified package for 
visual examination, the traveler must inform the screener that the 
carry-on items contain USG classified information and cannot be opened. 
Under no circumstances may traveler or security personnel open the 
classified material unless required by customs or other government 
officials.
    (ii) Special processing. The contractor will contact the appropriate 
air carrier in advance to explain the particular circumstances and 
obtain instructions on the special screening procedures to follow when:
    (A) Routine processing would subject the classified material to 
compromise or damage.
    (B) Visual examination is or may be required to successfully screen 
a classified package.
    (C) Classified material is in specialized containers, which due to 
its size, weight, or other physical characteristics cannot be routinely 
processed.
    (iii) Authorization letter. Contractors will provide employees with 
written authorization to hand carry classified material on commercial 
aircraft that includes:
    (A) Full name, date of birth, height, weight, and signature of the 
traveler and statement that he or she is authorized to transmit 
classified material.
    (B) Description of the type of identification the traveler will 
present on request.
    (C) Description of the material being hand carried, with a request 
that it be exempt from opening.
    (D) Identification of the points of departure, destination, and 
known transfer points.
    (E) Name, telephone number, and signature of the FSO, and the 
location and telephone number of the CSA.
    (6) Escorts. If an escort is necessary to ensure the protection of 
the classified information being transported, the contractor will assign 
a sufficient number to each classified shipment to ensure continuous 
surveillance and control over the shipment while in transit. The 
contractor will furnish escorts with specific written instructions and 
operating procedures prior to shipping that include:
    (i) Name and address of persons, including alternates, to whom the 
classified material is to be delivered.
    (ii) Receipting procedures.
    (iii) Means of transportation and the route to be used.
    (iv) Duties of each escort during movement, during stops end route, 
and during loading and unloading operations.
    (v) Emergency and communication procedures.
    (g) Destruction. Contractors will:
    (1) Destroy classified material in their possession based on the 
disposition instructions in the contract security classification 
specification or equivalent.

[[Page 555]]

    (2) Follow the guidance for destruction of classified material in 
accordance with 32 CFR 2001.47 and the destruction equipment standards 
in accordance with 32 CFR 2001.42(b). See https://www.nsa.gov/ 
resources/everyone/ media-destruction/ and any CSA provided guidance for 
additional information.
    (h) Disclosure. Contractors will establish processes by which 
classified information is disclosed only to authorized persons.
    (1) Disclosure to employees. Contractors are authorized to disclose 
classified information to their cleared employees with the appropriate 
eligibility for access to classified information and need to know as 
necessary, including cleared employees across the MFO, when applicable, 
for the performance of tasks or services essential to the fulfillment of 
a classified contract or subcontract.
    (2) Disclosure to subcontractors. (i) Contractors:
    (A) Are authorized to disclose classified information to a cleared 
subcontractor with the appropriate entity eligibility determination 
(also known as a facility security clearance) and need to know when 
access to classified information is necessary for the performance of 
tasks or services essential to the fulfillment of a prime contract or a 
subcontract.
    (B) Will convey appropriate classification guidance for the 
classified information to be disclosed with the subcontract in 
accordance with Sec.  117.13.
    (ii) The CSA must have:
    (A) Made a determination of eligibility for access to classified 
information for the subcontractor, at the same level, or higher, than 
the classified information to be disclosed, to allow for such 
disclosures.
    (B) Approved storage capability for classified material at the 
subcontractor location if a physical transfer of classified material 
occurs.
    (3) Disclosure between parent and subsidiaries. (i) Contractors:
    (A) Are authorized to disclose classified information between parent 
and subsidiary entities with the appropriate entity eligibility 
determination (also known as a facility security clearance) and need to 
know when access to classified information is necessary for the 
performance of tasks or services essential to the fulfillment of a prime 
or subcontract.
    (B) Will convey appropriate classification guidance with the 
agreement or procurement action that necessitates the disclosure.
    (ii) The CSA must have:
    (A) Made a determination of eligibility for access to classified 
information for both the parent and subsidiary, at the same level, or 
higher, than the classified information to be disclosed, to allow for 
such disclosures.
    (B) Approved storage capability for classified material at the 
parent and the subsidiary if a physical transfer of classified material 
occurs.
    (4) Disclosure to federal agencies. Contractors will not disclose 
classified information received or generated under a contract from one 
agency to any other federal agency unless specifically authorized by the 
agency that has classification jurisdiction over the information.
    (5) Disclosure of classified information to foreign persons. 
Contractors will not disclose classified information to foreign persons 
unless specified by the contract and release of the information is 
authorized in writing by the government agency having classification 
jurisdiction over the information involved, i.e. the DOE for RD and FRD 
(also see Sec.  117.23), the NSA for COMSEC, the DNI for SCI, and all 
other executive branch departments and agencies for classified 
information under their respective jurisdictions.
    (6) Disclosure to other contractors. Contractors will not disclose 
classified information to another contractor except in furtherance of a 
contract, subcontract, or other GCA purpose without the authorization of 
the GCA, if such authorization is required by contract.
    (7) Disclosure of classified information in connection with 
litigation. Contractors will not disclose classified information to:
    (i) Attorneys hired solely to represent the contractor in any civil 
or criminal case in federal or State courts unless the disclosure is 
specifically authorized by the agency that has jurisdiction over the 
information.

[[Page 556]]

    (ii) Any federal or state court except on specific instructions of 
the agency, which has jurisdiction over the information or the attorney 
representing the United States in the case.
    (8) Disclosure to the public. Contractors will not disclose 
classified information to the public. Contractors will not disclose 
unclassified information pertaining to a classified contract to the 
public without prior review and clearance as specified in the Contract 
Security Classification Specification, or equivalent, for the contract 
or as otherwise specified by the GCA. The procedures of this paragraph 
also apply to information pertaining to classified contracts intended 
for use in unclassified brochures, promotional sales literature, reports 
to stockholders, or similar material.
    (i) The contractor will:
    (A) Submit requests for approval through the activity specified in 
the GCA-provided classification guidance for the contract involved.
    (B) Include in each request the approximate date the contractor 
intends to release the information for public disclosure and identify 
the media to be used for the initial release.
    (C) Retain a copy of each approved request for release for a period 
of one inspection cycle for review by the CSA.
    (D) Clear all information developed subsequent to the initial 
approval through the appropriate office prior to public disclosure.
    (ii) Unless specifically prohibited by the GCA, the contractor does 
not need to request approval for disclosure of:
    (A) The fact that a contract has been received, including the 
subject of the contract or type of item in general terms provided the 
name or description of the subject is not classified.
    (B) The method or type of contract.
    (C) Total dollar amount of the contract unless that information 
equates to:
    (1) A level of effort in a sensitive research area.
    (2) Quantities of stocks of certain weapons and equipment that are 
classified.
    (D) Whether the contract will require the hiring or termination of 
employees.
    (E) Other information that from time-to-time may be authorized on a 
case-by-case basis in a specific agreement with the contractor.
    (F) Information previously officially approved for public 
disclosure.
    (iii) Information that has been declassified is not authorized for 
public disclosure. If the information is comingled with CUI, or 
qualifies as CUI once declassified, it will be marked and protected as 
CUI until it is decontrolled pursuant to 32 CFR part 2002 and reviewed 
for public release. If the information does not qualify as CUI, it will 
be protected in accordance with the basic safeguarding requirements in 
48 CFR 52.204-21 and subject to the agency's public release procedures. 
Contractors will request approval for public disclosure of declassified 
information in accordance with the procedures of this paragraph.
    (i) Disposition. Contractors will:
    (1) Establish procedures for review of their classified holdings on 
a recurring basis to ensure the classified holdings are in support of a 
current contract or authorization to retain beyond the end of the 
contract period.
    (2) Destroy duplicate copies as soon as practical.
    (3) For disposition of classified material not received under a 
specific contract:
    (i) Return or destroy classified material received with a bid, 
proposal, or quote if the bid, proposal, or quote is not:
    (A) Submitted or is withdrawn within 180 days after the opening date 
of bids, proposals, or quotes.
    (B) Accepted within 180 days after notification that a bid, 
proposal, or quote has not been accepted.
    (ii) If the classified material was not received under a specific 
contract, such as material obtained at classified meetings or from a 
secondary distribution center, return or destroy the classified material 
within one year after receipt.
    (j) Retention. The provisions of Sec.  117.13(d)(5) apply for 
retention of classified material upon completion of a classified 
contract.
    (1) If contractors propose to retain copies of classified material 
beyond 2 years, the contractor will identify:
    (i) TOP SECRET material identified in a list of specific documents 
unless

[[Page 557]]

the GCA authorizes identification by subject and approximate number of 
documents.
    (ii) SECRET and CONFIDENTIAL material may be identified by general 
subject and the approximate number of documents.
    (iii) Contractors will include a statement of justification for 
retention beyond two years based on if the material:
    (A) Is necessary for the maintenance of the contractor's essential 
records.
    (B) Is patentable or proprietary data to which the contractor has 
the title.
    (C) Will assist the contractor in independent research and 
development efforts.
    (D) Will benefit the USG in the performance of other prospective or 
existing agency contracts.
    (E) Will benefit the USG in the performance of another active 
contract and will be transferred to that contract (specify contract).
    (2) If the GCA does not authorize retention beyond two years, the 
contractor will destroy all classified material received or generated in 
the performance of a classified contract unless it has been declassified 
or the GCA has requested that the material be returned.
    (k) Termination of security agreement. Notwithstanding the 
provisions for retention outlined in paragraph (i) in this section, in 
the event that the CSA terminates the contractor's eligibility for 
access to classified information, the contractor will return all 
classified material in its possession to the GCA concerned, or dispose 
of such material in accordance with instructions from the CSA.
    (l) Safeguarding CUI. While outside the requirements of the NISPOM, 
when a classified contract also includes provisions for protection of 
CUI, contractors will comply with those contract requirements.



Sec.  117.16  Visits and meetings.

    (a) Visits. This paragraph applies when, for a lawful and authorized 
USG purpose, it is anticipated that classified information will be 
disclosed during a visit to a cleared contractor facility or to a USG 
facility.
    (1) Classified visits. The number of classified visits will be held 
to a minimum. The contractor:
    (i) Must determine that the visit is necessary and the purpose of 
the visit cannot be achieved without access to, or disclosure of, 
classified information.
    (ii) Will establish procedures to ensure positive identification of 
visitors, appropriate PCL, and need-to-know prior to the disclosure of 
any classified information.
    (iii) Will establish procedures to ensure that visitors are only 
afforded access to classified information consistent with the purpose of 
the visit.
    (2) Need-to-know determination. The responsibility for determining 
need-to-know in connection with a classified visit rests with the 
individual who will disclose classified information during the visit. 
Need-to-know is generally based on a contractual relationship between 
the contractors. In other circumstances, disclosure of the information 
will be based on an assessment that the receiving contractor has a bona 
fide need to access the information in furtherance of a GCA purpose.
    (3) Visits by USG representatives. Representatives of the USG, when 
acting in their official capacities as inspectors, investigators, or 
auditors, may visit a contractor's facility, provided these 
representatives present appropriate USG credentials upon arrival.
    (4) Visit authorization. (i) If a visit requires access to 
classified information, the host contractor will verify the visitor's 
PCL level. Verification of a visitor's PCL may be accomplished by a 
review of a CSA-designated database that contains the information or by 
a visit authorization letter (VAL) provided by the visitor's employer.
    (ii) If a CSA-designated database is not available and a VAL is 
required, contractors will include in all VALs:
    (A) Contractor's name, employee's name, address, and telephone 
number, assigned commercial and government entity (CAGE) code, if 
applicable, and certification of the level of the entity eligibility 
determination.
    (B) Name, date and place of birth, and citizenship of the employee 
intending to visit.

[[Page 558]]

    (C) Certification of the proposed visitor's PCL and any special 
access authorizations required for the visit.
    (D) Name of person(s) to be visited.
    (E) Purpose and sufficient justification for the visit to allow for 
a determination of the necessity of the visit.
    (F) Date or period during which the VAL is to be valid.
    (5) Long term visitors. (i) When USG employees or employees of one 
contractor are temporarily stationed at another contractor's facility, 
the security procedures of the host contractor will govern.
    (ii) USG personnel assigned to or visiting a contractor facility and 
engaged in oversight of an acquisition program will retain control of 
their work product. Classified work products of USG employees will be 
handled in accordance with this rule. Contractor procedures will not 
require USG employees to relinquish control of their work products, 
whether classified or not, to a contractor.
    (iii) Contractor employees at USG installations will follow the 
security requirements of the host. This does not relieve the contractor 
from security oversight of their employees who are long-term visitors at 
USG installations.
    (b) Classified meetings. This paragraph applies to a conference, 
seminar, symposium, exhibit, convention, training course, or other such 
gathering during which classified information is disclosed, hereafter 
called a ``meeting.'' Disclosure of classified information to large 
diverse audiences such as conferences increases security risks. 
Classified disclosure at such meetings may occur when it serves a 
government purpose and adequate security measures have been provided in 
advance.
    (1) Meeting conducted by a cleared contractor. If conducted by a 
cleared contractor, the meeting is authorized by a USG agency that has 
agreed to assume security jurisdiction. The USG agency:
    (i) Must approve security arrangements, announcements, attendees, 
and the location of the meeting.
    (ii) May delegate certain responsibilities to a cleared contractor 
for the security arrangements and other actions necessary for the 
meeting under the general supervision of the USG agency.
    (2) Request for authorization. Contractors desiring to conduct 
meetings that require sponsorship will submit their requests to the USG 
agency that has principal interest in the subject of each meeting. 
Requests for authorization will include:
    (i) An explanation of the USG purpose to be served by disclosing 
classified information at the meeting and why the use of conventional 
channels for release of the classified information will not advance 
those interests.
    (ii) The subject of the meeting and scope of classified topics, to 
include the classification level, to be disclosed at the meeting.
    (iii) The expected dates and location of the meeting.
    (iv) The general content of the proposed announcement or invitation 
to be sent to prospective attendees or participants.
    (v) The identity of any other non-government organization involved 
and a full description of the type of support it will provide.
    (vi) A list of any foreign representatives (including their 
nationality, name, organizational affiliation) whose attendance at the 
meeting is proposed.
    (vii) A description of the security arrangements necessary for the 
meeting to comply with the requirements of this rule.
    (3) Locations of meetings. Classified sessions will be held only at 
a USG installation or a cleared contractor facility where adequate 
physical security and procedural controls have been approved. The 
authorizing USG agency is responsible for evaluating and approving the 
location proposed for the meeting.
    (4) Security arrangements for meetings. The contractor will develop 
the security measures and procedures to be used and obtain the 
authorizing agency's approval. The security arrangements must provide:
    (i) Announcements. Approval of the authorizing agency will be 
obtained for all announcements of the meeting.
    (A) Announcements will be unclassified and will be limited to a 
general description of topics expected to be presented, names of 
speakers, and administrative instructions for requesting invitations or 
participation. Classified

[[Page 559]]

presentations will not be solicited in the announcement.
    (B) When the meeting has been approved, announcements may only state 
that the USG agency has authorized the conduct of classified sessions 
and will provide necessary security assistance.
    (C) The announcement will further specify that security clearances 
and justification to attend classified sessions are to be forwarded to 
the authorizing agency or its designee.
    (D) Invitations to foreign persons will be sent by the authorizing 
USG agency.
    (ii) Clearance and need-to-know. All persons in attendance at 
classified sessions will possess the requisite clearance and need-to-
know for the information to be disclosed.
    (A) Need-to-know will be determined by the authorizing agency or its 
designee based on the justification provided.
    (B) Attendance will be authorized only to those persons whose 
security clearance and justification for attendance have been verified 
by the security officer of the organization represented.
    (C) The names of all authorized attendees or participants must 
appear on an access list with entry permitted to the classified session 
only after verification of the attendee's identity based on presentation 
of official photographic identification such as a passport, contractor 
or USG identification card.
    (iii) Presentations. Classified information must be authorized for 
disclosure in advance by the USG agency having jurisdiction over the 
information to be presented.
    (A) Individuals making presentations at meetings will provide 
sufficient classification guidance to enable attendees to identify what 
information is classified and the level of classification.
    (B) Classified presentations will be delivered orally or visually.
    (C) Copies of classified presentation materials will not be 
distributed at the classified meeting, and any classified notes or 
electronic recordings of classified presentations will be classified, 
safeguarded, and transmitted as required by this rule.
    (iv) Physical security. The physical security measures for the 
classified sessions will provide for control of, access to, and 
dissemination of, the classified information to be presented and will 
provide for secure storage capability, if necessary.
    (5) Disclosure authority at meetings. Authority to disclose 
classified information at meetings, whether disclosure is by officials 
of industry or USG, must be granted by the USG agency or activity that 
has classification jurisdiction over the information to be disclosed. 
Each contractor that desires to disclose classified information at a 
meeting is responsible for requesting and obtaining disclosure 
approvals. Associations are not responsible for ensuring that classified 
presentations and papers of other organizations have been approved for 
disclosure. A contractor desiring to disclose classified information at 
a meeting will:
    (i) Obtain prior written authorization for each proposed disclosure 
of classified information from the USG agency having jurisdiction over 
the information involved.
    (ii) Furnish a copy of the disclosure authorization to the USG 
agency sponsoring the meeting.
    (6) Requests to attend classified meetings. Before a contractor 
employee can attend a classified meeting, the contractor will provide 
justification for why the employee requires access to the classified 
information, cite the classified contract or GCA program or project 
involved, and forward the information to the authorizing USG agency.



Sec.  117.17  Subcontracting.

    (a) Prime contractor responsibilities--(1) Responsibilities. Before 
a prime contractor may release or disclose classified information to a 
subcontractor, or cause classified information to be generated by a 
subcontractor, a determination that access to classified information 
will be required and such access serves a legitimate USG requirement for 
the performance of a ``classified contract'' in accordance with Sec.  
117.9(a) must be made. Prime contractors are responsible for 
communicating the appropriate security requirements to all 
subcontractors.

[[Page 560]]

    (i) A ``security requirements clause'' and a ``Contract Security 
Classification Specification,'' or equivalent, will be incorporated in 
the solicitation and in the subcontract. (See the ``security 
requirements clause'' in the prime contract.)
    (ii) The subcontractor must possess an appropriate entity 
eligibility determination and a classified information safeguarding 
capability if possession of classified information will be required.
    (A) If access to classified information will not be required in the 
pre-award phase, prospective subcontractors are not required to possess 
an entity eligibility determination to receive or bid on the 
solicitation.
    (B) If a prospective subcontractor requires access to classified 
information during the pre-award phase and does not have the appropriate 
entity eligibility determination or a classified information 
safeguarding capability, the prime contractor will request the CSA of 
the subcontractor to initiate the necessary action.
    (iii) If access to classified information will not be required, the 
contract is not a classified contract within the meaning of this rule. 
If the prime contract contains requirements for release or disclosure of 
protected information that is not classified, such as CUI, the 
requirements will be incorporated in the solicitation and the 
subcontract and are not covered by this rule.
    (2) Prospective subcontractors entity eligibility determinations. 
(i) The prime contractor will verify whether the prospective 
subcontractors have the appropriate entity eligibility determination and 
also a classified information safeguarding capability, if a subcontract 
requirement. This determination can be made if there is an existing 
contractual relationship between the parties involving classified 
information of the same or higher category, and must be verified by 
accessing the CSA-designated database, or by contacting the CSA.
    (ii) If a prospective subcontractor does not have the appropriate 
entity eligibility determination or a classified information 
safeguarding capability, the prime contractor will request that the CSA 
of the subcontractor initiate the necessary action.
    (A) Requests will include, at a minimum, the full name, address, and 
contact information for the requester; the full name, address, and 
contact information for a contact at the facility to be processed for an 
entity eligibility determination; the level of clearance and the 
required classified information safeguarding capability; and full 
justification for the request.
    (B) Requests for safeguarding capability will include a description, 
quantity, end-item, and classification of the information related to the 
proposed subcontract.
    (C) Other factors necessary to help the CSA determine if the 
prospective subcontractor meets the requirements of this rule will be 
identified, such as any special access requirements.
    (3) Lead time for entity eligibility determination when awarding to 
an uncleared subcontractor. Requesting contractors will allow sufficient 
lead time in connection with the award of a classified subcontract to 
enable an uncleared bidder to be processed for the necessary entity 
eligibility determination. When the entity eligibility determination 
cannot be granted in sufficient time to qualify the prospective 
subcontractor for participation in the current procurement action, the 
CSA will continue the entity eligibility determination processing action 
to qualify the prospective subcontractor for future contract 
consideration provided:
    (i) The delay in processing the entity eligibility determination was 
not caused by a lack of cooperation on the part of the prospective 
subcontractor.
    (ii) Future classified negotiations may occur within 12 months.
    (iii) There is reasonable likelihood the subcontractor may be 
awarded a classified subcontract.
    (iv) Subcontracting that involves access to FGI. (A) A U.S. 
contractor may award a subcontract that involves access to FGI to 
another U.S. contractor after verifying with the CSA that the 
prospective subcontractor has the appropriate entity eligibility 
determination and a classified information storage capability, and 
review of the prime contract to determine if there are any contractual 
limitations for approval before awarding a subcontract. The contractor 
awarding a subcontract will

[[Page 561]]

provide appropriate security classification guidance and incorporate the 
pertinent security provisions in the subcontract.
    (B) The contractor cannot award subcontracts involving FGI to a 
contractor in a third country or to a U.S. entity with a limited entity 
eligibility determination based on third-country FOCI without the 
express written consent of the originating foreign government. The CSA 
will coordinate with the appropriate foreign government authorities.
    (b) Security classification guidance. (1) Prime contractors will 
ensure that a Contract Security Classification Specification, or 
equivalent, is incorporated in each classified subcontract.
    (i) When preparing classification guidance for a subcontract, the 
prime contractor may extract pertinent information from:
    (A) The Contract Security Classification Specification, or 
equivalent, issued with the prime contract.
    (B) Security classification guides issued with the prime contract.
    (C) Any security guides that provide guidance for the classified 
information furnished to, or that will be generated by, the 
subcontractor.
    (ii) The Contract Security Classification Specification, or 
equivalent, prepared by the prime contractor will be certified by a 
designated official of the contractor.
    (iii) In the absence of exceptional circumstances, the 
classification specification will not contain any classified 
information. If classified supplements are required as part of the 
Contract Security Classification Specification, or equivalent, they will 
be identified and forwarded to the subcontractor by separate 
correspondence.
    (2) An original Contract Security Classification Specification, or 
equivalent, will be included with each RFQ, RFP, IFB, or other 
solicitation to ensure that the prospective subcontractor is aware of 
the security requirements of the subcontract and can plan accordingly. 
An original Contract Security Classification Specification, or 
equivalent, will also be included in the subcontract awarded to the 
successful bidder.
    (3) A revised Contract Security Classification Specification, or 
equivalent, will be issued as necessary during the lifetime of the 
subcontract when the security requirements change.
    (4) Requests for public release by a subcontractor will be forwarded 
through the prime contractor to the GCA.
    (c) Responsibilities upon completion of the subcontracts. (1) Upon 
completion of the subcontract, the subcontractor may retain classified 
material received or generated under the subcontract for a two-year 
period, in accordance with the provisions in Sec.  117.13(d)(5).
    (2) If retention is required beyond the two-year period, the 
subcontractor must request written retention authority through the prime 
contractor to the GCA, including the information required by Sec.  
117.15(j).
    (3) If retention authority is approved by the GCA, the prime 
contractor will issue a final Contract Security Classification 
Specification, or equivalent, annotated to provide the retention period 
and final disposition instructions.
    (d) Notification of invalidation, marginal, or unsatisfactory 
conditions. The prime contractor will be notified if the CSA discovers 
marginal or unsatisfactory conditions at the subcontractor's facility or 
if the CSA invalidates the subcontractor's facility clearance. Once 
notified, the prime contractor will follow the instructions received on 
what action, if any, should be taken in order to safeguard classified 
material relating to the subcontract.



Sec.  117.18  Information system security.

    (a) General. (1) Contractor information systems that are used to 
capture, create, store, process, or distribute classified information 
must be properly managed to protect against unauthorized disclosure of 
classified information. The contractor will implement protective 
measures using a risk-based approach that incorporates minimum standards 
for their insider threat program in accordance with CSA-provided 
guidance.
    (2) The CSA will issue guidance based on requirements for federal 
systems, pursuant to 44 U.S.C. Ch. 35 of subchapter II, also known as 
the ``Federal Information Security Modernization

[[Page 562]]

Act,'' and as set forth in National Institute of Standards and 
Technology (NIST) Special Publication 800-37 (available at: https://
csrc.nist.gov/ publications/detail/sp/ 800-37/rev-2/final), Committee on 
National Security Systems (CNSS) Instruction 1253 (available at: https:/
/www.cnss.gov/ CNSS/openDoc.cfm?QwPYrAJ5Ldq +s+jvttTznQ==), and other 
applicable CNSS and NIST publications (e.g., NIST Special Publication 
800-53).
    (b) Information system security program. The contractor will 
maintain an information system security program that supports overall 
information security by incorporating a risk-based set of management, 
operational, and technical security controls in accordance with CSA-
provided guidance. The contractor will incorporate into the program:
    (1) Policies and procedures that reduce information security risks 
to an acceptable level and address information security throughout the 
information system life cycle.
    (2) Plans and procedures to assess, report, isolate, and contain 
data spills and compromises, to include sanitization and recovery 
methods.
    (3) Information system security training for authorized users, as 
required in CSA provided guidance.
    (4) Policies and procedures that address key components of the 
contractor's insider threat program, such as:
    (i) User activity monitoring network activity, either automated or 
manual.
    (ii) Information sharing procedures.
    (iii) A continuous monitoring program.
    (iv) Protecting, interpreting, storing, and limiting access to user 
activity monitoring automated logs to privileged users.
    (5) Processes to continually evaluate threats and vulnerabilities to 
contractor activities, facilities, and information systems to ascertain 
the need for additional safeguards.
    (6) Change control processes to accommodate configuration management 
and to identify security relevant changes that may require re-
authorization of the information system.
    (7) Methods to ensure users are aware of rights and responsibilities 
through the use of banners and user agreements.
    (c) Contractor responsibilities--(1) Certification. The contractor 
will:
    (i) Certify to the CSA that the security program for information 
systems to process classified information addresses management, 
operation, and technical controls in accordance with CSA-provided 
guidelines.
    (ii) Provide adequate resources to the information system security 
program and organizationally align to ensure prompt support and 
successful execution of a compliant information system security program.
    (2) ISSM. Contractors that are or will be processing classified 
information on an information system will appoint an employee ISSM. The 
contractor will confirm that the ISSM is adequately trained, has 
sufficient experience, and possesses technical competence commensurate 
with the complexity of the information system. The ISSM will:
    (i) Oversee the development, implementation, and evaluation of the 
contractor's information system program for contractor management, 
information system personnel, users, and others as appropriate.
    (ii) Coordinate with the contractor's insider threat senior program 
official so that insider threat awareness is addressed in the 
contractor's information system security program.
    (iii) Develop, document, and monitor compliance of the contractor's 
information system security program in accordance with CSA-provided 
guidelines for management, operational, and technical controls.
    (iv) Verify self-inspections are conducted at least every 12 months 
on the contractor's information systems that process classified 
information, and that corrective actions are taken for all identified 
findings.
    (v) Certify to the CSA in writing that the systems security plan 
(SSP) is implemented for each authorized information systems, specified 
in the SSP; the specified security controls are in place and properly 
tested; and the information system continues to function as described in 
the SSP.

[[Page 563]]

    (vi) Brief users on their responsibilities with regard to 
information system security and verify that contractor personnel are 
trained on the security restrictions and safeguards of the information 
system prior to access to an authorized information system.
    (vii) Develop and maintain security documentation of the security 
authorization request to the CSA. Documentation may include:
    (A) SSPs.
    (B) Security assessment reports.
    (C) Plans of actions and milestones.
    (D) Risk assessments.
    (E) Authorization decision letters.
    (F) Contingency plans.
    (G) Configuration management plans.
    (H) Security configuration checklists.
    (I) System interconnection agreements.
    (3) Information systems security officer (ISSO). The ISSM may assign 
an ISSO. If assigned, the ISSO will:
    (i) Verify the implementation of the contractor's information system 
security program as delegated by the ISSM.
    (ii) Ensure continuous monitoring strategies and verify corrective 
actions to the ISSM.
    (iii) Conduct self-inspections and verify corrective actions to the 
ISSM.
    (4) Information system users. All information system users will:
    (i) Comply with the information system security program requirements 
as part of their responsibilities for protecting classified information.
    (ii) Be accountable for their actions on an authorized information 
system.
    (iii) Not share any authentication mechanisms (including passwords) 
issued for the control of their access to an information system.
    (iv) Protect authentication mechanisms at the highest classification 
level and most restrictive classification category of information to 
which the mechanisms permit access.
    (v) Be subject to monitoring of their activity on any classified 
network, understanding that the results of such monitoring can be used 
against them in a criminal, security, or administrative proceeding or 
action.
    (vi) Notify the ISSM or ISSO when access to a classified system is 
no longer required.
    (d) Information system security life-cycle. The CSA-provided 
guidance on the information system security life-cycle is based on the 
risk management framework outlined in NIST special publication 800-37 
that emphasizes:
    (1) Building security into information systems during initial 
development.
    (2) Maintaining continuous awareness of the current state of 
information system security.
    (3) Keeping contractor management informed to facilitate risk 
management decisions.
    (4) Supporting reciprocity of information system authorizations.
    (e) Risk management framework. The risk management framework is a 
seven-step process used for managing information system security-related 
risks. These steps will be used to help ensure security capabilities 
provided by the selected security controls are implemented, tested, 
validated, and approved by the USG authorizing official with a degree of 
assurance appropriate for the information system. This process 
accommodates an on-going risk mitigation strategy.
    (1) Prepare. The contractor will execute essential activities at the 
organization, mission and business process, and system levels of the 
organization to help prepare the organization to manage its security and 
privacy risks using the Risk Management Framework.
    (2) Categorize. The contractor will categorize the information 
system and the information processed, stored, and transmitted by the 
information system based on an impact analysis. Unless imposed by 
contract, the information system baseline is moderate-confidentiality, 
low-integrity, and low-availability.
    (3) Select. The contractor will select an initial set of baseline 
security controls for the information system based on the security 
categorization; tailoring and supplementing the security control 
baseline as needed based on an organizational assessment of risk and 
local conditions.
    (4) Implement. The contractor will implement the security controls 
and document how the controls are deployed

[[Page 564]]

within the information system and the operational environment.
    (5) Assess. The contractor will assess the security controls to 
determine the extent to which the controls are implemented correctly, 
operating as intended, and producing the desired outcome with respect to 
meeting the security requirements for the information system. The 
contractor will review and certify to the CSA that all systems have the 
appropriate protection measures in place.
    (6) Authorize. The CSA will use the information provided by the 
contractor to make a timely, credible, and risk-based decision to 
authorize the system to process classified information. The CSA must 
authorize the system before the contractor can use the system to process 
classified information.
    (7) Monitor. The contractor will monitor and assess selected 
security controls in the information system on an ongoing basis:
    (i) Effectiveness of security controls.
    (ii) Documentation of changes to the information system and the 
operational environment.
    (iii) Analysis of the security impact of changes to the information 
system.
    (iv) Making appropriate reports to the CSA.
    (f) Unclassified information systems that process, store, or 
transmit CUI. While outside the requirements of the NISPOM, contractors 
will comply with contract requirements regarding contractor information 
systems that process, store, or transmit CUI.



Sec.  117.19  International security requirements.

    (a) General. This section provides information and procedures 
governing the protection of classified information in international 
programs.
    (b) Disclosure of classified U.S. information to foreign interests--
(1) Applicable federal law. The transfer of articles, services, and 
related data to a foreign person, within or outside the United States, 
or the movement of such material or information to any destination 
outside of the legal jurisdiction of the United States constitutes an 
export. Depending on the nature of the articles or data, most exports 
are pursuant to (1) 22 U.S.C. chapter 39, also known and referred to in 
this rule as the ``Arms Export Control Act,'' (2) 50 U.S.C. 4801 et 
seq., also known as the ``Export Control Reform Act of 2018,'' or (3) 
the AEA. This section applies to those exports that involve classified 
information.
    (2) Security agreements--(i) Bilateral security agreements (e.g., 
General Security of Information Agreements and General Security of 
Military Information Agreements) are negotiated with various foreign 
governments. Confidentiality requested by some foreign governments 
prevents a listing of the countries that have executed these agreements. 
The bilateral security agreement, negotiated through diplomatic 
channels:
    (A) Requires that each government provide substantially the same 
degree of protection to classified information released by the other 
government.
    (B) Contains provisions concerning limits on the use of each 
government's information, including restrictions on third-party 
transfers and proprietary rights.
    (C) Does not commit governments to share classified information, nor 
does it constitute authority to release classified material to that 
government.
    (D) Satisfies, in part, the eligibility requirements of the Arms 
Export Control Act concerning the agreement of the recipient foreign 
government to protect U.S. classified defense articles and classified 
information.
    (ii) The applicable CSA will provide a mechanism for contractors to 
access, for official purposes, classified general security agreements.
    (iii) Industrial security agreements have been negotiated with 
certain foreign governments that identify the procedures to be used when 
foreign government classified information is provided to U.S. industry 
and UUSG classified information is provided to foreign defense industry.
    (3) Authorization for disclosure. The GCA will provide disclosure 
guidance.
    (i) Contractors will only disclose non-public USG information to 
foreign persons in accordance with specified requirements of the 
contract. In the absence of any specified requirements the contractor 
will not disclose non-public USG information to foreign persons.

[[Page 565]]

    (ii) Disclosure authorization may be in the form of an export 
license or other export authorization by a cognizant export authority.
    (iii) The contractor may not use disclosure guidance provided by the 
GCA for a previous contract or program unless so instructed in writing 
by the GCA or the licensing authority.
    (iv) Disclosure and export of classified information, authorized by 
an appropriate USG disclosure official, by a contractor will ensure the 
following:
    (A) International agreements. Contractors may not disclose 
classified information until agreements are signed by the participating 
government and disclosure guidance and security arrangements are 
established. The export of technical data pursuant to such agreements 
may be exempt by approval of the Department of State or the Department 
of Commerce.
    (B) Symposia, seminars, exhibitions, and conferences. Contractors 
must assure that any foreign nationals who will be attending a 
classified gathering have the appropriate export license, disclosure 
authority, and security assurance on file.
    (C) Visits by foreign nationals to the contractor. The contractor 
will limit disclosure of classified information to that specific 
information authorized in connection with an approved visit request and 
an export authorization, as required.
    (D) Temporary exports. Classified articles, including articles that 
require the use of classified information for operation, exported for 
demonstration purposes must remain under U.S. control. The contractor 
must obtain an export authorization from the relevant authority (i.e., 
from the Department of State in accordance with 22 CFR parts 120-130, 
also known as and referred to in this rule as the ``International 
Traffic in Arms Regulations,'' or from the Department of Commerce in 
accordance with 15 CFR parts 730-774, also known as the ``Export 
Administration Regulations'').
    (4) Direct commercial arrangements. (i) The disclosure of classified 
information may be authorized pursuant to a direct commercial sale with 
the appropriate export authorization. A direct commercial arrangement 
includes sales, loans, leases, or grants of classified items, including 
sales under a government agency sales financing program.
    (ii) If a proposed disclosure is in support of a foreign government 
requirement, the contractor should consult with U.S. in-country 
officials, normally the U.S. Security Assistance/Armaments Cooperation 
Office or Commercial Counselor.
    (A) Before a contractor makes a proposal to a foreign interest that 
involves the eventual disclosure of U.S. classified information, the 
contractor must obtain appropriate government disclosure authorization.
    (B) Such disclosure authorization does not equate with authorization 
for export. Export authorization must be obtained from the appropriate 
regulatory body.
    (iii) The contractor will request a FCL assurance for a foreign 
entity through the CSA from the security authority of the foreign 
entity's sponsoring government prior to entering into a contractual 
arrangement with the foreign entity.
    (5) Subcontract security provisions. (i) A U.S. contractor may be 
authorized to enter into an agreement involving classified information 
with a foreign contractor. The U.S. contractor's empowered official will 
verify the contractor can release the information to a foreign person. 
Such agreements may include:
    (A) Award of a subcontract.
    (B) Department of State authorized manufacturing license agreement, 
technical assistance agreement, or other direct commercial arrangement.
    (ii) The contractor will incorporate security provisions into the 
subcontract document or agreement, and provide security classification 
guidance by means of a Contract Security Classification Specification, 
or equivalent.
    (iii) The contractor will provide a copy of the signed contract with 
the provisions and the classification guidance to the CSA.
    (iv) If the export authorization specifies that additional security 
arrangements are necessary for performance on the contract, the 
contractor will incorporate those additional arrangements by appropriate 
provision in the

[[Page 566]]

contract or in a separate security document.
    (v) The contractor will prepare and maintain a written record that 
identifies the originator or source of classified information that will 
be used in providing classified defense articles, material or services 
to foreign customers. The contractor will maintain this listing with the 
contractor's record copy of the pertinent export authorization.
    (vi) The contractor will include the security provisions in 
accordance with paragraph (b)(5) in this section in all contracts and 
subcontracts involving classified information that are awarded to 
foreign contractors. Contractors must insert the bracketed contract 
specific information (e.g., applicable country and disposition of 
classified material) where noted, when using the following security 
clauses in the contract.
    (A) All classified information and material furnished or generated 
under the contract will be protected to ensure that:
    (1) The recipient will not release the information or material to 
any third party without disclosure authorization and export 
authorization, as appropriate.
    (2) The recipient will afford the information and material a degree 
of protection equivalent to that afforded it by the releasing 
government.
    (3) The recipient will not use the information and material for 
other than the purpose for which it was furnished without the prior 
written consent of the releasing government.
    (B) Classified information and material furnished or generated under 
this contract will be transferred through government channels or other 
channels specified in writing by the governments of the United States 
and [insert applicable country]. It will only be transferred to persons 
who have an appropriate security clearance and an official need for 
access to the information in order to perform on the contract.
    (C) Classified information and material furnished under the contract 
will be re-marked by the recipient with its government's equivalent 
security classification markings.
    (D) Classified information and material generated under the contract 
must be assigned a security classification as specified by the Contract 
Security Classification Specifications, or equivalent, provided with 
this contract.
    (E) All cases in which it is known or there is reason to believe 
that classified information or material furnished or generated under the 
contract has been lost or disclosed to unauthorized persons will be 
reported promptly and fully by the contractor to its government's 
security authorities.
    (F) Classified information and material furnished or generated 
pursuant to the contract will not be further provided to another 
potential contractor or subcontractor unless:
    (1) A potential contractor which is located in the United States or 
[insert applicable country] has been approved for access to classified 
information and material by the USG or [insert applicable country] 
security authorities; or
    (2) If located in a third country, prior written USG consent is 
obtained.
    (G) Upon completion of the contract, all classified material 
furnished or generated pursuant to the contract will be [insert whether 
the material is to be returned or destroyed, or provide other 
instructions].
    (H) The recipient contractor will insert terms that substantially 
conform to the language of these provisions, including this one, in all 
subcontracts under this contract that involve access to classified 
information furnished or generated under this contract.
    (c) FGI--(1) General. The contractor will notify the csa when 
awarded contracts by a foreign interest that will involve access to 
classified information. The csa will oversee and ensure implementation 
of the security requirements of the contract on behalf of the foreign 
government, including the establishment of channels for the transfer of 
classified material.
    (2) Contract security requirements. The foreign entity that awards a 
classified contract is responsible for providing appropriate security 
classification guidance and any security requirements clauses. The 
contractor will report to the CSA when a foreign entity fails to provide 
classification guidance.

[[Page 567]]

    (3) Marking foreign government classified material. Foreign 
government classified material will be marked in accordance with Sec.  
117.14(l).
    (4) Foreign Government RESTRICTED Information and ``In Confidence'' 
Information. Foreign government RESTRICTED information and ``in 
confidence'' information will be marked in accordance with Sec.  
117.14(m).
    (5) Marking U.S. documents containing FGI. U.S. documents containing 
FGI will be marked in accordance with Sec.  117.14(n).
    (6) Marking documents prepared for foreign governments. Marking 
documents prepared for foreign governments will be marked in accordance 
with Sec.  117.14(o).
    (7) Storage and control. Contractors will store foreign government 
material and control access generally in the same manner as U.S. 
classified material of an equivalent classification. Contractors will 
store foreign government material in a manner that will separate it from 
other material. Separation can be accomplished by establishing distinct 
files in a storage container or on an information system.
    (8) Disclosure and use limitations. (i) FGI is provided by the 
foreign government to the United States. The contractor will:
    (A) Not disclose FGI to nationals of a third country, or to any 
other third party, or use it for any purpose other than that for which 
it was provided without the prior written consent of the originating 
foreign government.
    (B) Submit requests for other uses or further disclosure to the GCA 
for U.S. contracts, and through the CSA for direct commercial contracts.
    (ii) Approval of the request by the foreign government does not 
eliminate the requirement for the contractor to obtain an export 
authorization.
    (9) Transfer. The contractor will transfer FGI within the United 
States and its territories using the same channels as specified for U.S. 
classified information of an equivalent classification, except that 
contractors cannot use non-cleared express overnight carriers for FGI.
    (10) Reproduction. The reproduction of foreign government TOP SECRET 
or equivalent information requires the written approval of the 
originating government.
    (11) Disposition. The contractor:
    (i) Will destroy FGI on completion of the contract unless the 
contract specifically authorizes retention or return of the information 
to the U.S. GCA or foreign government that provided the information.
    (ii) Must witness the destruction of TOP SECRET, execute a 
destruction certificate, and retain the destruction certificate for two 
years.
    (12) Reporting of improper receipt of foreign government material. 
The contractor will report improper receipt of foreign government 
material in accordance with Sec.  117.8(c)(13).
    (13) Subcontracting. Subcontracting procedures will be in accordance 
with Sec.  117.17(a)(4).
    (d) International transfers of classified material--(1) General. 
This paragraph (d) contains the procedures for international transfers 
of classified material through government-to-government channels or 
other arrangements agreed to by the governments involved, otherwise 
referred to as government-to-government transfers. The requirements in 
this paragraph (d) do not apply to the transmission of classified 
material to usg activities outside the united states.
    (i) All international transfers of classified material must take 
place through channels approved by both governments. U.S. control of 
classified material must be maintained until the material is officially 
transferred to the intended recipient government through its designated 
government representative (DGR).
    (ii) To ensure government control, written transmission instructions 
must be prepared for all international transfers of classified material. 
The contractor is responsible for the preparation of instructions for 
direct commercial arrangements, and the GCA will prepare instructions 
for government arrangements.
    (iii) The contractor will contact the CSA at the earliest possible 
stage in deliberations that will lead to the international transfer of 
classified material. The CSA will advise the contractor on the transfer 
arrangements, identify the recipient government's

[[Page 568]]

DGR, appoint a U.S. DGR, and ensure that the transportation plan 
prepared by the contractor or foreign government is adequate.
    (iv) The contractor's empowered official is responsible for requests 
for all export authorizations, including ones that will involve the 
transfer of classified information.
    (2) Transfers of freight--(i) Transportation plan (TP). (A) A 
requirement to prepare a TP will be included in each arrangement that 
involves the international transfer of classified material as freight. 
The TP will:
    (1) Describe requirements for the secure shipment of the material 
from the point of origin to the ultimate destination.
    (2) Provide for security requirements in the event the transfer 
cannot be made promptly.
    (B) The U.S. and recipient government DGRs will be identified in the 
TP as well as any requirement for an escort. When there are to be 
repetitive shipments, a notice of classified consignment will be used.
    (ii) Government agency arrangements. Classified material to be 
furnished to a foreign government under such transactions normally will 
be shipped via government agency-arranged transportation and be 
transferred to the foreign government's DGR within the recipient 
government's territory.
    (A) The government agency that executes the arrangement is 
responsible, in coordination with the recipient foreign government, for 
preparing a TP.
    (B) When the point of origin is a U.S. contractor facility, the GCA 
will provide the contractor with a copy of the TP and the applicable 
letter of offer and acceptance. If a freight forwarder will be involved 
in processing the shipment, the GCA will provide a copy of the TP to the 
freight forwarder.
    (C) Commercial arrangements. (1) The contractor will prepare a TP in 
coordination with the receiving government. This requirement applies 
whether the material is moved by land, sea, or air, and applies to U.S. 
and foreign classified contracts.
    (2) After the CSA approves the TP, the CSA will forward it to the 
recipient foreign government security authorities for final coordination 
and approval. The CSA will notify the contractor upon the concurrence by 
the respective parties.
    (D) International carriers. The international transfer of classified 
material will be made using only ships, aircraft, or other carriers 
that:
    (1) Are owned or chartered by the USG or under U.S. registry;
    (2) Are owned or chartered by or under the registry of the recipient 
government; or
    (3) Are other than those described that are expressly authorized to 
perform this function in writing by the Designated Security Authority of 
the GCA and the security authorities of the foreign government involved. 
This authority cannot be delegated and this exception may be authorized 
only when a carrier described in paragraph (d)(2)(iv)(A) or 
(d)(2)(iv)(B) in this section is not available and an urgent operational 
requirement dictates use of the exception.
    (E) Escorts. (1) The contractor must provide escorts for 
international shipments of SECRET or CONFIDENTIAL material by air.
    (2) Escorts must have an eligibility determination and access to 
classified information at the classification level of the material being 
shipped.
    (3) Escorts are responsible for ensuring that the classified 
material being shipped is safeguarded in the event of an emergency stop 
en route, re-routing of the aircraft, or in the event that the recipient 
government's representative fails to meet the shipment at its 
destination.
    (4) The contractor does not have to provide escorts if:
    (i) The classified material is shipped by the Defense Transportation 
System or a U.S. military carrier.
    (ii) The recipient government DGR has signed for the receipt of the 
classified material within the United States.
    (iii) The classified material is shipped via a military carrier of 
the recipient government or a carrier owned by or registered to the 
recipient government.
    (iv) The classified material is shipped via a cleared U.S. 
commercial freight carrier, so long as the contractor has a written 
agreement from the U.S. commercial freight carrier to provide an

[[Page 569]]

escort who is eligible for access to classified information and has 
access to classified information at the classification level of the 
material being shipped.
    (v) There are exceptional circumstances, and procedures have been 
approved by both the USG and the recipient government.
    (3) Secure communications plan. (i) The contractor is required to 
meet all requirements outlined in this section, as applicable, for the 
secure communications plan.
    (ii) The secure communications plan may be approved within a program 
security instruction, SSP, or a government to government agreement by 
the designated security authorities. A separate memorandum of 
understanding or memorandum of agreement is not required.
    (iii) Additionally, an SSP must be authorized in accordance with 
Sec.  117.18 and the CSA provided guidance.
    (4) Return of material for repair, modification, or maintenance. (i) 
A foreign government or foreign contractor may return classified 
material to a U.S. contractor for repair, modification, or maintenance.
    (ii) The approved methods of return will be specified in either the 
GCA sales arrangement, the security requirements section of a direct 
commercial sales arrangement or, in the case of material transferred as 
freight, in the original TP.
    (iii) The contractor, on receipt of notification that classified 
material is to be received, will notify the applicable CSA.
    (5) Use of freight forwarders. (i) A commercial freight forwarder 
may be used to arrange for the international transfer of classified 
material as freight.
    (A) The freight forwarder must be under contract to a USG agency, 
U.S. contractor, or the recipient foreign government.
    (B) The contract will describe the specific functions to be 
performed by the freight forwarder.
    (C) The responsibility for security and control of the classified 
material that is processed by freight forwarders remains with the USG 
until the freight is transferred to a DGR of the recipient government.
    (ii) Only freight forwarders that have a valid determination of 
eligibility for access to classified information and storage capability 
for classified material at the appropriate level are eligible to take 
custody or possession of classified material for delivery as freight to 
foreign recipients. Freight forwarders that only process unclassified 
paperwork and make arrangements for the delivery of classified material 
to foreign recipients do not require an eligibility determination for 
access to classified information.
    (iii) A freight forwarder cannot serve as a DGR.
    (6) Hand carrying classified material. To meet contractual 
requirements, the CSA may authorize contractor employees to hand carry 
classified material outside the United States. SECRET is the highest 
level of classified material to be carried and it must be of such size 
and weight that the courier can retain it in his or her possession at 
all times.
    (i) The CSA will ensure that the contractor has made necessary 
arrangements with U.S. airport security and customs officials and that 
security authorities of the receiving government approve the plan. If 
the transfer is under a contract or a bilateral or multinational 
government program, the GCA will approve the request in writing. The 
contractor will notify the CSA of a requirement to hand carry at least 5 
working days in advance of the transfer.
    (ii) The courier must be a full-time employee of the dispatching or 
receiving contractor who has been determined eligible and has been 
granted access to classified information.
    (iii) The employing contractor will provide the courier with a 
courier certificate that is consecutively numbered and valid for one 
journey only. The journey may include more than one stop if approved by 
the CSA and secure government storage has been arranged at each stop. 
The courier will return the courier certificate to the dispatching 
contractor immediately on completion of the journey.
    (iv) Before commencement of each journey, the courier will read and 
initial the notes to the courier attached to the courier certificate and 
sign the

[[Page 570]]

courier declaration. The contractor will maintain the declaration until 
completion of the next CSA security review.
    (v) The dispatching contractor will inventory, wrap, and seal the 
material in the presence of the U.S. DGR. The contractor will place the 
address of the receiving security office and the return address of the 
dispatching contractor security office on the inner envelope or wrapping 
and mark it with the appropriate classification. The contractor will 
place the address of the receiving government's DGR on the outer 
envelope or wrapping along with the return address of the dispatching 
contractor.
    (vi) The dispatching contractor will prepare three copies of a 
receipt based on the inventory and list the classified material that is 
being sent. The dispatching contractor will retain one copy of the 
receipt. The contractor will pack the other two copies with the 
classified material. The contractor will obtain a receipt for the sealed 
package from the courier.
    (vii) The dispatching contractor will provide the receiving 
contractor with 24 work hours advance notification of the anticipated 
date and time of the courier's arrival and the identity of the courier. 
The receiving contractor must notify the dispatching contractor if the 
courier does not arrive within 8 hours of the expected time of arrival. 
The dispatching contractor will notify its DGR of any delay, unless 
officially notified otherwise of a change in the courier's itinerary.
    (viii) The receiving DGR will verify the contents and sign the 
receipts enclosed in the consignment. The receiving DGR will return one 
copy to the courier. On return, the courier will provide the executed 
receipt to the dispatching contractor.
    (ix) Throughout the journey, the courier will maintain the 
classified material under direct personal control. The courier will not 
leave the material unattended at any time during the journey, in the 
transport being used, in hotel rooms, in cloakrooms, or other such 
location, and will not deposit it in hotel safes, luggage lockers, or in 
luggage offices. In addition, the courier will not open envelopes or 
packages containing the classified material en route, unless required by 
customs or other government officials.
    (x) When inspection by government officials is unavoidable, the 
courier will request that the officials provide written verification 
that they have opened the package. The courier will notify their 
employing contractor as soon as possible. The contractor will notify the 
U.S. DGR. If the inspecting officials are not of the same country as the 
dispatching contractor, the CSA will notify the designated security 
authority in the country whose officials inspected the consignment. 
Under no circumstances will the courier hand over the classified 
material to customs or other officials for their custody.
    (xi) When carrying classified material, the courier will not travel 
by surface routes through third countries, except as authorized by the 
CSA. The courier will travel only on carriers described in paragraph 
(d)(2)(iv) in this section, and will travel direct routes between the 
United States and the destination.
    (7) Classified material receipts. (i) The U.S. DGR and the DGR of 
the ultimate foreign recipient will maintain a continuous chain of 
receipts to record international transfers of all classified material 
from the contractor through the dispatching DGR and recipient DGR to the 
ultimate foreign recipient. The dispatching contractor will retain:
    (A) An active suspense record until return of applicable receipts 
for the material.
    (B) A copy of the external receipt that records the passing of 
custody of the package containing the classified material and each 
intermediate consignee in a suspense file until the receipt that is 
enclosed in the package is signed and returned.
    (ii) The contractor will initiate follow-up action through the CSA 
if the signed receipt is not returned within 45 days.
    (8) Contractor preparations for international transfers of 
classified material pursuant to direct commercial and foreign military 
sales. To prepare for international transfers the contractor will:
    (i) Identify each party to be involved in the transfer in the 
applicable contract or agreement and in the license application or 
letter request.

[[Page 571]]

    (ii) Notify the appropriate U.S. DGR when the material is ready.
    (iii) When the classified material is also ITAR-controlled, provide 
documentation or written certification by an empowered official (as 
defined in the ITAR) to the U.S. DGR. This documentation must verify 
that the classified shipment is within the limitation scope of the 
pertinent export authorization or an authorized exemption to the export 
authorization requirements, or is within the limitations of the 
pertinent GCA contract.
    (iv) Have the classified shipment ready for visual review and 
verification by the DGR. As a minimum this will include:
    (A) Preparing the packaging materials, address labels, and receipts 
for review.
    (B) Marking the contents with the appropriate U.S. classification or 
the equivalent foreign government classification, downgrading, and 
declassification markings, as applicable.
    (C) Ensuring that shipping documents (including, as appropriate, the 
shipper's export declaration) include the name and contact information 
for the CSA that validates the license or letter authorization, and the 
FSO or designee for the particular transfer.
    (D) Sending advance notification of the shipment to the CSA, the 
recipient, and to the freight forwarder, if applicable. The notification 
will require that the recipient confirm receipt of the shipment or 
provide notice to the contractor if the shipment is not received in 
accordance with the prescribed shipping schedule.
    (9) Transfers pursuant to an ITAR exemption. (i) The contractor will 
provide to the DGR valid documentation (i.e., license, export 
authorization, letter of offer and acceptance, or agreement) to verify 
the export authorization for classified technical data information or 
certain defense articles to be transferred under an exemption to the 
ITAR exemption. The documentation must include a copy of the Department 
of State Form DSP-83 associated with the original export authorization.
    (ii) Classified technical data information or certain defense 
articles to be exported pursuant to ITAR exemptions will be supported by 
a written authorization signed by an authorized exemption official or 
exemption certifying official who has been appointed by the GCA's 
responsible disclosure authority.
    (A) The contractor will provide a copy of the authorization to the 
CSA.
    (B) The CSA will provide a copy of the authorization to the 
Department of State Directorate of Defense Trade Controls (DDTC).
    (e) International visits--(1) General. (i) The contractor will 
establish procedures to monitor international visits by their employees 
and visits or assignments of foreign nationals to the contractor 
location. Doing so will ensure that the disclosure of, and access to, 
classified export-controlled articles related to classified information 
are limited to those that are approved by an export authorization.
    (ii) Contractors cannot use visit authorizations to employ or 
otherwise acquire the services of foreign nationals that require access 
to export-controlled information. An export authorization is required 
for such situations.
    (2) International visits by U.S. contractor employees--(i) Types and 
purpose of international visits--(A) One-time visits. A visit for a 
single, short-term occasion (normally 30 days or fewer) for a specified 
purpose.
    (B) Recurring visits. Intermittent, recurring visits over a 
specified period of time, normally up to one year in duration, in 
support of a government-approved arrangement, such as an agreement, 
contract, or license. By agreement of the governments, the term of the 
authorization may be for the duration of the arrangement, subject to 
annual review, and validation.
    (C) Long-term visits. A single visit for an extended period of time, 
normally up to one year, in support of an agreement, contract, or 
license.
    (D) Emergency visits. A visit related to a specific government-
approved contract, international agreement or announced request for 
proposal, and failure to make the visit could be reasonably expected to 
seriously jeopardize performance on the contract or program, or result 
in the loss of a contract opportunity.
    (ii) Requests for visits. Visit requests are necessary to make 
administrative

[[Page 572]]

arrangements and disclosure decisions and obtain security assurances.
    (A) Many foreign governments require the submission of a visit 
request for all visits to a government facility or a cleared contractor 
facility, even though classified information may not be involved. They 
may also require that the requests be received a specified number of 
days in advance of the visit.
    (B) The contractor can obtain information pertaining to the visit 
requirements of other governments and the NATO from the CSA. The 
contractor must obtain an export authorization if classified export 
controlled articles or technical data is to be disclosed or if 
information to be divulged is related to a classified USG program, 
unless the disclosure of the information is covered by other agreements, 
authorizations, or exemptions.
    (iii) Request format. Contractors will request a visit request 
template from the CSA. The contractor will forward the visit request to 
the security official designated by the CSA. The host for the visit 
should coordinate the visit in advance with appropriate government 
authorities who are required to approve the visit. It is the visitor's 
responsibility to ensure that such coordination has occurred.
    (iv) Government agency programs. The contractor will submit a visit 
request when contractor employees are to visit foreign government 
facilities or foreign contractors on USG orders in support of a 
government contract or agreement.
    (v) Requests for emergency visits. The requester will include in the 
emergency visit request, and any other requirements in accordance with 
applicable CSA guidance:
    (A) The complete name, position, address, and telephone number of 
the person to be visited.
    (B) A knowledgeable foreign government point of contact.
    (C) The identification of the contract, agreement, or program and 
the justification for submission of the emergency visit request.
    (vi) Requests for recurring visits. Contractors will request 
recurring visit authorizations at the beginning of each program. After 
approval of the request, the contractor may arrange individual visits 
directly with the security office of the location to be visited subject 
to 5 working days advance notice.
    (vii) Amendments. (A) Once visit requests have been approved or are 
being processed, the contractor may amend them only to change, add, or 
delete names and change dates.
    (B) The contractor cannot amend visit requests to specify dates that 
are earlier than originally specified.
    (C) The contractor cannot amend emergency visit authorizations.
    (3) Classified visits by foreign nationals to U.S. contractors--(i) 
Requests for classified visits. Requests for visits by foreign nationals 
to U.S. contractors that will involve the disclosure of classified 
information may require authorization by the Department of State. 
Classified visits by foreign nationals must be processed by government 
national security authorities on behalf of the contractor through the 
sponsoring foreign government (normally the visitor's embassy) to the 
USG for approval.
    (ii) USG approval. The USG may approve or deny the request or 
decline to render a decision.
    (A) USG-Approved Visits. (1) USG approved classified visits cannot 
be used to avoid the export licensing requirements for commercial 
initiatives.
    (2) When the cognizant USG agency approves a classified visit, the 
notification of approval will contain instructions on the level and 
scope of classified and unclassified information authorized for 
disclosure, as well as any limitations.
    (3) Final acceptance for the visit will be subject to the 
concurrence of the contractor. The contractor will notify the USG agency 
when a classified visit is not desired.
    (B) Visit request denials. (1) If the USG agency does not approve 
the disclosure of the information related to the proposed classified 
visit, it will deny the classified visit request. The USG agency will 
advise the requesting government and the contractor to be visited of the 
reason for the denial.
    (2) The contractor may accept the visitor(s), but only information 
that is in the public domain may be disclosed during the classified 
visit.

[[Page 573]]

    (C) Non-sponsorship. The USG agency will decline to render a 
decision on a classified visit request that is not in support of a USG 
program. The USG agency will furnish a declination notice indicating 
that the classified visit is not USG-approved (i.e., the classified 
visit is non-sponsored) to the requesting foreign government with an 
information copy to the U.S. contractor to be visited.
    (1) A declination notice does not preclude the classified visit, 
provided the contractor has, or obtains, an export authorization for the 
information involved and, has been notified that the requesting foreign 
government has provided the required security assurance of the proposed 
visitor to the USG agency in the original classified visit request.
    (2) It is the contractor's responsibility to consult applicable 
export regulations to determine licensing requirements regarding the 
disclosure of export-controlled information during such classified 
visits by foreign nationals.
    (D) Visits to subsidiaries. A classified visit request authorization 
for a classified visit to any element of a corporate family may be used 
for visits to other divisions or subsidiaries within the same corporate 
family in accordance with Sec.  117.15(h)(3), provided disclosures are 
for the same purpose and the information to be disclosed does not exceed 
the parameters of the approved classified visit request.
    (E) Long-term classified visits and assignments of foreign 
nationals. Extended classified visits and assignments of foreign 
nationals to contractor locations can be authorized only when it is 
essential pursuant to a contract or government agreement (e.g., joint 
venture, liaison representative to a joint or multinational program, and 
direct commercial sale). The contractor will:
    (1) Consult with its empowered official for guidance.
    (2) Notify the CSA in advance of all long-term classified visits and 
assignments of foreign nationals.
    (3) Provide the CSA with a copy of the approved classified visit 
authorization or the USG export authorization.
    (4) Control of foreign visitors to U.S. contractors--(i) Contractor. 
The contractor will:
    (A) Establish procedures to ensure that foreign visitors are not 
afforded access to classified information except as authorized by an 
export license, approved visit request, or other exemption to the 
licensing requirements.
    (B) Not inform the foreign visitor of the scope of access authorized 
or of the limitations imposed by the government.
    (ii) Foreign visitors. Foreign visitors will not be given custody of 
classified material except when they are acting as official couriers of 
the government and the CSA authorizes the transfer.
    (iii) Visitor records. The contractor will maintain a record of 
foreign visitors for one year when the visit involves access to 
classified information.
    (iv) Temporary approval of safeguarding. (A) Classified U.S. and 
foreign government material at a U.S. contractor location is to remain 
under U.S. contractor custody and control and is subject to self-
inspection and CSA security reviews.
    (B) This does not preclude the contractor from furnishing a foreign 
visitor with a security container for the temporary storage of 
classified material, consistent with the purpose of the visit or 
assignment, provided the CSA approves and responsibility for the 
container and its contents remains with the U.S. contractor.
    (1) The CSA may approve exceptions to this policy on a case-by-case 
basis for the storage of foreign government classified information 
furnished to the visitor by the visitor's government through government 
channels.
    (2) The CSA must approve such exceptions in advance in writing with 
agreement from the visitor's government. The agreed procedures will be 
included in the contractor's TCP, will require the foreign nationals to 
provide receipts for the material, and will include an arrangement for 
the CSA to ensure compliance, including provisions for the CSA to 
inspect and inventory the material.
    (v) TCP. A TCP is required to control access by foreign nationals 
assigned to, or employed by, cleared contractor facilities, and when 
foreign nationals

[[Page 574]]

visit cleared contractor facilities on a long-term or extended basis, 
unless the CSA determines that procedures already in place at the 
contractor's facility are adequate. The TCP will contain procedures to 
control access for all export-controlled information. A sample TCP may 
be obtained from the CSA.
    (f) Contractor operations abroad--(1) Access by contractor employees 
assigned outside the United States. (i) Contractor employees assigned 
outside the United States, its possessions, or territories may have 
access to classified information in connection with performance on a 
specified U.S., NATO, or foreign government classified contract.
    (ii) The assignment of an employee who is a non-U.S. citizen outside 
the United States on programs that will involve access to classified 
information is prohibited.
    (2) Storage, custody, and control of classified information abroad 
by contractor employees. (i) The USG is responsible for the storage, 
custody, and control of classified information required by a U.S. 
contractor employee abroad. Therefore, the storage of classified 
information by contractor employees at any location abroad that is not 
under USG control is prohibited. The storage may be at a U.S. military 
facility, an American Embassy or consulate, or other location occupied 
by a USG organization.
    (ii) A contractor employee may be furnished a security container to 
temporarily store classified material at a USG agency overseas location. 
The decision to permit a contractor to temporarily store classified 
information must be approved in writing by the senior security official 
for the USG host organization.
    (iii) A contractor employee may be permitted to temporarily remove 
classified information from an overseas USG-controlled facility when 
necessary for the performance of a GCA contract or pursuant to an 
approved export authorization.
    (A) The responsible USG security official at the facility will 
verify that the contractor has an export authorization or other written 
USG approval to have the material, verify the need for the material to 
be removed from the facility, and brief the employee on handling 
procedures.
    (1) In such cases, the contractor employee will sign a receipt for 
the classified material.
    (2) Arrangements will also be made with the USG custodian for the 
return and storage of the classified material during non-duty hours.
    (B) The security office at the USG facility will report violations 
of this policy to the applicable CSA.
    (iv) A contractor employee will not store classified information at 
overseas divisions or subsidiaries of U.S. entities incorporated or 
located in a foreign country.
    (A) The divisions or subsidiaries may possess classified information 
that has been transferred to the applicable foreign government through 
government-to-government channels pursuant to an approved export 
authorization or other written USG authorization.
    (B) Access to this classified information at such locations by a 
U.S. contractor employee assigned abroad by the parent facility on a 
visit authorization in support of a foreign government contract or 
subcontract, is governed by the laws and regulations of the country in 
which the division or subsidiary is registered or incorporated. The 
division or subsidiary that has obtained the information from the 
foreign government will provide the access.
    (v) U.S. contractor employees assigned to foreign government or 
foreign contractor locations under a direct commercial sales arrangement 
will be subject to the host-nation's industrial security policies.
    (3) Transmission of classified material to employees abroad. The 
transmission of classified material to a cleared contractor employee 
located outside the United States will be through USG channels.
    (i) If the material is to be used for other than USG purposes, an 
export authorization is required and a copy of the authorization, 
validated by the DGR, will accompany the material. The material will be 
addressed to a U.S. military organization or other USG organization 
(e.g., an embassy).
    (ii) USG organization abroad will be responsible for custody and 
control of the material.

[[Page 575]]

    (4) Security briefings. An employee being assigned outside the 
United States will be briefed on the security requirements of his or her 
assignment, including the handling, disclosure, and storage of 
classified information overseas.
    (g) NATO information security requirements--(1) General. This 
section provides the security requirements needed to comply with the 
procedures established by the U.S. Security Authority for NATO Affairs 
Instruction 1-07 (available at: http://archives.nato.int/ 
informationobject/browse?topLod= 0&query=United+States+Security 
+Authority+for+NATO+Affairs+ Instruction+1-07) for safeguarding NATO 
information provided to U.S. industry.
    (2) NATO security classification levels.

     Table 1 to Paragraph (g)(2) NATO Security Classification Levels
------------------------------------------------------------------------
      NATO security classification             Classification level
------------------------------------------------------------------------
COSMIC TOP SECRET......................  Top Secret.
NATO SECRET............................  Secret.
NATO CONFIDENTIAL......................  Confidential.
NATO RESTRICTED \1\....................  Does not correspond to an
                                          equivalent U.S.
                                          classification.
------------------------------------------------------------------------
\1\ Pursuant to applicable NATO security regulations and United States
  Security Authority, NATO Instruction 1-07, security accreditation may
  be delegated to contractors for information systems processing only
  NATO RESTRICTED information. The contractor will be responsible for
  executing specific provisions under contract for the accreditation of
  such systems, and shall provide the Contracting Authority with a
  written statement confirming the information system has been
  accredited in compliance with the minimum requirements established in
  the contract security clause or contract Security Aspects Letter.

    (3) ATOMAL Classification Markings. ATOMAL is a marking applied to 
U.S. RESTRICTED DATA or FORMERLY RESTRICTED DATA and UK Atomic 
information that has been released to the NATO.

       Table 2 to Paragraph (g)(3) ATOMAL Classification Markings
------------------------------------------------------------------------
             ATOMAL marking                    Classification level
------------------------------------------------------------------------
COSMIC TOP SECRET ATOMAL...............  Top Secret.
NATO SECRET ATOMAL.....................  Secret.
NATO CONFIDENTIAL ATOMAL...............  Confidential.
------------------------------------------------------------------------

    (4) NATO contracts. NATO contracts involving NATO-unique systems, 
programs, or operations are awarded by a NATO Production and Logistics 
Organization (NPLO), a designated NATO Management Agency, the NATO 
Research Staff, or a NATO Command. In the case of NATO infrastructure 
projects (e.g., airfields, communications), the NATO contract is awarded 
by a contracting agency or prime contractor of the NATO nation 
responsible for the infrastructure project.
    (5) NATO facility security clearance certificate (FSCC). A NATO FSCC 
is required for a contractor to negotiate or perform on a NATO 
classified contract.
    (i) A U.S. entity qualifies for a NATO FSCC if it has an equivalent 
U.S. entity eligibility determination and its personnel have been 
briefed on NATO procedures.
    (ii) The CSA will provide the NATO FSCC to the requesting activity.
    (iii) A NATO FSCC is not required for GCA contracts involving access 
to NATO classified information.
    (6) Eligibility for personnel access to classified information. 
Access to NATO classified information requires a final determination 
that an individual is eligible for access to classified information at 
the equivalent level.
    (7) NATO briefings. Before having access to NATO classified 
information, the contractor will give employees a NATO security briefing 
that covers the requirements of this section and the consequences of 
negligent handling of NATO classified information. A representative of 
the CSA will give the initial briefing to the contractor. The contractor 
must conduct annual refresher briefings.
    (i) When access to NATO classified information is no longer 
required, the contractor will debrief the employees. The employees will 
sign a certificate

[[Page 576]]

stating that they have been briefed or debriefed, as applicable, and 
acknowledge their responsibility for safeguarding NATO information.
    (ii) The contractor will maintain certificates for two years for 
NATO SECRET and CONFIDENTIAL, and three years for COSMIC TOP SECRET and 
all ATOMAL information. The contractor will maintain a record of all 
NATO briefings and debriefings in the CSA-designated database.
    (8) Access to NATO classified information by foreign nationals. 
Foreign nationals of non-NATO nations may have access to NATO classified 
information only with the consent of the NATO Office of Security and the 
contracting activity.
    (i) Requests will be submitted to the Central U.S. Registry (CUSR).
    (ii) Access to NATO classified information may be permitted for 
citizens of NATO member nations, provided a NATO security clearance 
certificate is provided by their government and they have been briefed.
    (9) Subcontracting for NATO contracts. The contractor will obtain 
prior written approval from the NATO contracting activity and a NATO 
FSCC must be issued prior to awarding the subcontract. The contractor 
will forward the request for approval through the CSA.
    (10) Preparing and marking NATO documents. All classified documents 
created by a U.S. contractor will be portion-marked. Any portion 
extracted from a NATO document that is not portion marked, must be 
assigned the classification that is assigned to the NATO document.
    (i) All U.S.-originated NATO classified documents will bear an 
assigned reference number and date on the first page. The reference 
numbers will be assigned as follows:
    (A) The first element will be the abbreviation for the name of the 
contractor.
    (B) The second element will be the abbreviation for the highest 
classification followed by a hyphen and the 4-digit sequence number for 
the document within that classification that has been generated for the 
applicable calendar year.
    (C) The third element will be the year; e.g., MM/NS-0013/17.
    (ii) COSMIC TOP SECRET, NATO SECRET, and ATOMAL documents will bear 
the reference number on each page and a copy number on the cover or 
first page.
    (A) Copies of NATO documents will be serially numbered.
    (B) Pages will be numbered.
    (C) The first page, index, or table of contents will include a list, 
including page numbers, of all annexes and appendices.
    (D) The total number of pages will be stated on the first page.
    (E) All annexes or appendices will include the date of the original 
document and the purpose of the new text (addition or substitution) on 
the first page.
    (iii) One of the following markings will be applied to NATO 
documents that contain ATOMAL information:
    (A) ``This document contains U.S. ATOMIC Information (RESTRICTED 
DATA or FORMERLY RESTRICTED DATA) made available pursuant to the NATO 
Agreement for Cooperation Regarding ATOMIC Information, dated 18 June 
1964, and will be safeguarded accordingly.''
    (B) ``This document contains UK ATOMIC Information. This information 
is released to NATO including its military and civilian agencies and 
member states on condition that it will not be released by the recipient 
organization to any other organization or government or national of 
another country or member of any other organization without prior 
permission from H.M. Government in the United Kingdom.''
    (iv) Working papers will be retained only until a final product is 
produced and in accordance with Sec.  117.15(e)(3).
    (11) Classification guidance. Classification guidance will be in the 
form of a NATO security aspects letter and a security requirements 
checklist for NATO contracts, or a Contract Security Classification 
Specification, or equivalent.
    (i) If adequate classification guidance is not received, the 
contractor will contact the CSA for assistance.
    (ii) NATO classified documents and NATO information in other 
documents will not be declassified or downgraded

[[Page 577]]

without the prior written consent of the originating activity.
    (iii) Recommendations concerning the declassification or downgrading 
of NATO classified information will be forwarded to the CUSR.
    (12) Further distribution. The contractor will not release or 
disclose NATO classified information to a third party or outside the 
contractor's facility for any purpose without the prior written approval 
of the contracting agency.
    (13) Storage of NATO documents. NATO classified documents will be 
stored as prescribed for U.S. documents of an equivalent classification 
level, except as follows:
    (i) NATO classified documents will not be comingled with other 
documents.
    (ii) Combinations for containers used to store NATO classified 
information will be changed annually. The combination also will be 
changed when an individual with access to the container departs or no 
longer requires access to the container, and if the combination is 
suspected of being compromised.
    (iii) When the combination is recorded it will be marked with the 
highest classification level of documents stored in the container as 
well as to indicate the level and type of NATO documents in the 
container. The combination record must be logged and controlled in the 
same manner as NATO classified documents.
    (14) International transmission. The NATO has a registry system for 
the receipt and distribution of NATO documents within each NATO member 
nation. The central distribution point for the United States is the CUSR 
now located at 9301 Chapek Road, Building 1458, Fort Belvoir, Virginia 
22060.
    (i) The CUSR establishes sub registries at USG organizations for 
further distribution and control of NATO documents. Sub registries may 
establish control points at contractor facilities.
    (ii) COSMIC TOP SECRET, NATO SECRET, and all ATOMAL documents will 
be transferred through the registry system. NATO CONFIDENTIAL documents 
provided as part of NATO infrastructure contracts will be transmitted 
via government channels in compliance with paragraph (d) in this 
section.
    (15) Hand carrying. NATO SECRET and NATO CONFIDENTIAL documents may 
be hand carried across international borders if authorized by the GCA. 
The courier will be issued a NATO Courier Certificate by the CSA. When 
hand carrying is authorized, the documents will be delivered to a U.S. 
organization at NATO, which will transfer them to the intended NATO 
recipient.
    (16) Reproduction. Reproductions of COSMIC TOP SECRET and COSMIC TOP 
SECRET ATOMAL information will be performed by the responsible Registry. 
The reproduction of NATO SECRET and CONFIDENTIAL documents may be 
authorized to meet contractual requirements unless reproduction is 
prohibited by the contracting entity. Copies of COSMIC TOP SECRET, NATO 
SECRET, and ATOMAL documents will be serially numbered and controlled 
and accounted for in the same manner as the original.
    (17) Disposition. (i) Generally, all NATO classified documents will 
be returned to the contracting activity that provided them on completion 
of the contract. Documents provided in connection with an invitation to 
bid also will be returned immediately if the bid is not accepted or 
submitted.
    (ii) NATO classified documents may also be destroyed when permitted. 
COSMIC TOP SECRET and COSMIC TOP SECRET ATOMAL documents will be 
destroyed by the registry that provided the documents.
    (A) Destruction certificates are required for all NATO classified 
documents except NATO CONFIDENTIAL.
    (B) The destruction of COSMIC TOP SECRET, NATO SECRET, and all 
ATOMAL documents must be witnessed.
    (18) Accountability records. Logs, receipts, and destruction 
certificates are required for NATO classified information. Records for 
NATO documents will be maintained separately from records of non-NATO 
documents (methods such as separate drawers of a container).
    (i) COSMIC TOP SECRET and all ATOMAL documents will be recorded on 
logs maintained separately from

[[Page 578]]

other NATO logs and will be assigned unique serial control numbers.
    (ii) Additionally, disclosure records bearing the name and signature 
of each person who has access are required for all COSMIC TOP SECRET, 
COSMIC TOP SECRET ATOMAL, and all other ATOMAL or NATO classified 
documents to which special access limitations have been applied.
    (iii) Minimum identifying data on logs, receipts, and destruction 
certificates will include the NATO reference number, short title, date 
of the document, classification, and serial copy numbers. Logs will 
reflect the short title, unclassified subject, and distribution of the 
documents.
    (iv) Receipts are required for all NATO classified documents except 
NATO CONFIDENTIAL.
    (v) Inventories will be conducted annually of all COSMIC TOP SECRET, 
NATO SECRET, and ATOMAL documents.
    (vi) Accountability records for ATOMAL documents will be retained 
for 10 years after transfer or destruction of the ATOMAL document. 
Destruction certificates will be retained for 10 years after destruction 
of the related ATOMAL documents.
    (19) Security violations and loss, compromise, or possible 
compromise. The contractor will immediately report the loss, compromise, 
or suspected loss or compromise, as well as any other security 
violations involving NATO classified information to the CSA.
    (20) Extracting from NATO documents. Permission to extract from a 
COSMIC TOP SECRET or ATOMAL document will be obtained from the CUSR.
    (i) If extracts of NATO information are included in a U.S. document 
prepared for a non-NATO contract, the document will be marked with U.S. 
classification markings. The caveat, ``THIS DOCUMENT CONTAINS NATO 
(level of classification) INFORMATION'' also will be marked on the front 
cover or first page of the document. Additionally, each paragraph or 
portion containing the NATO information will be marked with the 
appropriate NATO classification, abbreviated in parentheses (e.g., 
``NS'' for NATO SECRET) preceding the portion or paragraph. 
Declassification and downgrading instructions shall indicate that the 
NATO information is exempt from declassification or downgrading without 
the prior consent of NATO, in the absence of other originator 
instructions, citing the reason ``Foreign Government Information.''
    (ii) The declassification or downgrading of NATO information in a 
U.S. document requires the approval of the originating NATO activity. 
Requests will be submitted to the CUSR for NATO contracts, through the 
GCA for U.S. contracts, and through the CSA for non-NATO contracts 
awarded by a NATO member nation.
    (21) Release of U.S. information to NATO. (i) Release of U.S. 
classified or export-controlled information to NATO requires an export 
authorization or other written disclosure authorization. When a document 
containing U.S. classified information is being prepared for NATO, the 
appropriate NATO classification markings will be applied to the 
document.
    (A) Documents containing U.S. classified information and U.S. 
classified documents that are authorized for release to NATO will be 
marked on the cover or first page ``THIS DOCUMENT CONTAINS U.S. 
CLASSIFIED INFORMATION. THE INFORMATION IN THIS DOCUMENT HAS BEEN 
AUTHORIZED FOR RELEASE TO (cite the NATO organization) BY (cite the 
applicable license or other written authority).''
    (B) The CSA will provide transmission instructions to the 
contractor. The material will be addressed to a U.S. organization at 
NATO, which will then place the material into NATO security channels. 
The material will be accompanied by a letter to the U.S. organization 
that provides transfer instructions and assurances that the material has 
been authorized for release to NATO. The inner wrapper will be addressed 
to the intended NATO recipient.
    (C) Material to be sent to NATO via mail will be routed through the 
U.S. Postal Service and U.S. military postal channels to the U.S. 
organization that will make the transfer.
    (ii) A record will be maintained that identifies the originator and 
source of classified information that are used in

[[Page 579]]

the preparation of documents for release to NATO. The record will be 
provided with any request for release authorization.
    (22) Visits. NATO visits will be handled in accordance with the 
requirements in paragraph (e) of this section. A NATO Certificate of 
Security Clearance will be included with the visit request.
    (i) NPLO and NATO industrial advisory group (NIAG) recurring visits. 
NATO has established special procedures for recurring visits involving 
contractors, government departments and agencies, and NATO commands and 
agencies that are participating in a NPLO or NIAG contract or program. 
The NATO management office or agency responsible for the NPLO program 
will prepare a list of the government and contractor facilities 
participating in the program. For NIAG programs, the list will be 
prepared by the responsible NATO staff element. The list will be 
forwarded to the appropriate clearance agency of the participating 
nations, which will forward it to the participating contractor.
    (ii) Visitor record. The contractor will maintain a record of NATO 
visits including those by U.S. personnel assigned to NATO. The records 
will be maintained for three years.
    (h) Security and export control violations involving foreign 
nationals. Contractors will report any violation of administrative 
security procedures or export control regulations that would subject 
classified information to possible compromise by foreign visitors or 
foreign national employees to the applicable CSA.
    (i) Transfers of defense articles to the UK or AUS without a license 
or other written authorization--(1) Treaties with AUS and UK. Exemptions 
in ITAR parts 126.16 and 126.17 implement the Defense Trade Cooperation 
Treaty between the Government of the United States of America and the 
Government of the UK of Great Britain and Northern Ireland and the 
Defense Trade Cooperation Treaty between the Government of the United 
States of America and the Government of AUS, also known as the ``U.S.-UK 
Treaty'' and ``U.S.-AUS Treaty,'' respectively, referred to collectively 
in this rule as ``the Treaties.''
    (i) The Treaties provide a comprehensive framework for exports and 
transfers to the UK or AUS of certain classified and unclassified 
defense articles without a license or other written authorization.
    (ii) The ITAR part 126, supplement no. 1 identifies those defense 
articles and services that are not eligible for export via treaty 
exemptions.
    (iii) This exemption applies to contractors registered with the DDTC 
and eligible to export defense articles.
    (2) Defense articles. Defense articles fall under the scope of the 
Treaties when they are in support of:
    (i) U.S. and UK or U.S. and AUS combined military or counter-
terrorism operations.
    (ii) U.S. and UK or U.S. and AUS cooperative security and defense 
research, development, production, and support programs.
    (iii) Mutually agreed specific security and defense projects where 
the government of the UK or AUS is the end-user.
    (iv) USG end-use.
    (3) Marking requirements. Contractors are required to mark defense 
articles that fall under the scope of the treaty prior to transferring 
from the U.S. to the UK in accordance with the provisions of this 
paragraph. All other standard classification marking in accordance with 
Sec.  117.14 also apply. When defense articles are returned from the UK 
or AUS to the United States, any defense articles marked as RESTRICTED 
in the manner shown in Table 4 purely for the purposes of the treaties 
will be considered to be unclassified and such marking will be removed.

[[Page 580]]



                      Table 3 to Paragraph (i)(3) Classified U.S. Defense Article Markings
                      UNCLASSIFIED: CLASSIFICATION MARKINGS FOR ILLUSTRATION PURPOSES ONLY
----------------------------------------------------------------------------------------------------------------
                                                                                 Example (for SECRET classified
                Treaty with:                              Marking                       defense articles)
----------------------------------------------------------------------------------------------------------------
Government of UK...........................  //CLASSIFICATION LEVEL USML/REL    //SECRET USML//REL GBR AND USA
                                              GBR AND USA TREATY COMMUNITY//.    TREATY COMMUNITY//''
Government of AUSec........................  //CLASSIFICATION LEVEL USML/REL    //SECRET USML//REL AUS AND USA
                                              AUS AND USA TREATY COMMUNITY//.    TREATY COMMUNITY//''
----------------------------------------------------------------------------------------------------------------


 Table 4 to Paragraph (i)(3) Unclassified U.S. Defense Article Markings
  UNCLASSIFIED: CLASSIFICATION MARKINGS FOR ILLUSTRATION PURPOSES ONLY
------------------------------------------------------------------------
              Treaty with:                            Marking
------------------------------------------------------------------------
Government of UK........................  //RESTRICTED-USML//REL GBR AND
                                           USA TREATY COMMUNITY//
Government of AUSec.....................  //RESTRICTED-USML//REL AUS AND
                                           USA TREATY COMMUNITY//
------------------------------------------------------------------------

    (4) Notice. A notice will be included (e.g., as part of the bill of 
lading) whenever defense articles are exported in accordance with the 
provisions of these treaties and the ITAR.

  Table 5 to Paragraph (i)(4) Notice Text for Exported Defense Articles
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Notice text........................  These U.S. Munitions List
                                      commodities are authorized by the
                                      U.S. Government under the U.S.
                                      [AUS or UK, as applicable] Defense
                                      Trade Cooperation Treaty for
                                      export only to [AUS or UK, as
                                      applicable] for use in approved
                                      projects, programs or operations
                                      by members of the [AUS or UK, as
                                      applicable] Community. They may
                                      not be retransferred or re-
                                      exported or used outside of an
                                      approve project, program, or
                                      operation, either in their
                                      original form or after being
                                      incorporated into other end-items,
                                      without the prior written approval
                                      of the U.S. Department of State.
------------------------------------------------------------------------

    (5) Labeling. (i) Defense articles (other than technical data) will 
be individually labeled with the appropriate identification; or, where 
such labeling is impracticable (e.g., propellants, chemicals), will be 
accompanied by documentation (such as contracts or invoices) clearly 
associating the defense articles with the appropriate markings.
    (ii) Technical data (including data packages, technical papers, 
manuals, presentations, specifications, guides and reports), regardless 
of media or means of transmission (i.e., physical, oral, or electronic), 
will be individually labeled with the appropriate identification 
detailed. Where such labeling is impracticable, the data will be 
accompanied by documentation (such as contracts or invoices) or oral 
notification clearly associating the technical data with the appropriate 
markings.
    (iii) Defense services will be accompanied by documentation (e.g. 
contracts, invoices, shipping bills, or bills of lading clearly labeled 
with the appropriate identification).
    (6) Transfers. (i) All defense articles that fall under the scope of 
the Treaties must be transferred from the U.S. point of embarkation 
through channels approved by both the United States and the UK or the 
United States and AUS, as applicable.
    (ii) For transfers of defense articles as freight, the contractor 
will prepare a transportation plan. For transfer of classified U.S. 
defense articles, a freight forwarder must have a valid entity 
eligibility determination and a classified information storage 
capability at the appropriate level. For unclassified U.S. defense 
articles transferred as freight, a freight forwarder is not required to 
be cleared.
    (7) Records. Contractors will maintain records of exports, 
transfers, re-exports, or re-transfers of defense articles subject to 
the Treaties for a minimum

[[Page 581]]

of five years. The contractor will make records available to the CSA 
upon request. In accordance with the ITAR parts 126.16 and 126.17 the 
records will contain:
    (i) Port of entry or exit.
    (ii) Date and time of export or import.
    (iii) Method of export or import.
    (iv) Commodity code and description of the commodity, including 
technical data.
    (v) Value of export.
    (vi) Justification for export under the Treaties.
    (vii) End-user or end-use.
    (viii) Identification of all U.S. and foreign parties to the 
transaction.
    (ix) How export was marked.
    (x) Security classification of the export.
    (xi) All written correspondence with the USG on the export.
    (xii) All information relating to political contributions, fees, or 
commissions furnished or obtained, offered, solicited, or agreed upon, 
as outlined in the ITAR parts 126.16(m) or 126.17(m).
    (xiii) Purchase order, contract, or letter of intent.
    (xiv) Technical data actually exported.
    (xv) The internal transaction number for the electronic export 
information filing in the automated export system.
    (xvi) All shipping documentation (including, but not limited to, the 
airway bill, bill of lading, packing list, delivery verification, and 
invoice).
    (xvii) Statement of registration (Department of State Form DS-2032 
(available at: https://www.pmddtc.state.gov/ sys_attachment. 
do?sysparm_referring_url= tear_off&view= true&sys_id= dabc05f6db6be34452 
9d368d7c961984)).



Sec.  117.20  Critical Nuclear Weapon Design Information (CNWDI).

    (a) General. This section contains the special requirements for 
protection of CNDWI. The sensitivity of DoD CNWDI is such that access 
shall be granted to the absolute minimum number of employees who require 
it for the accomplishment of assigned responsibilities on a classified 
contract. Because of the importance of such information, special 
requirements have been established for its control. DoDI 5210.02, 
``Access to and Dissemination of Restricted Data and Formerly Restricted 
Data'' (available at: https://www.esd.whs.mil/ Portals/54/Documents/DD/ 
issuances/dodi/521002p.pdf?ver= 2019-01-14-072742-700) establishes these 
controls in the DoD.
    (b) Briefings. Prior to having access to CNWDI, employees will be 
briefed on its sensitivity by the FSO or his or her alternate. The FSO 
will be initially briefed by a USG representative.
    (1) The briefing will include:
    (i) The definition of CNWDI.
    (ii) A reminder of the extreme sensitivity of the information.
    (iii) An explanation of the individual's continuing responsibility 
for properly safeguarding CNWDI and for ensuring that dissemination is 
strictly limited to other personnel who have been authorized for access 
and have a need-to-know for the particular information.
    (2) The briefing will also be tailored to cover any special local 
requirements. Upon termination of access to CNWDI, the employee will be 
given an oral debriefing.
    (c) Markings. In addition to any other required markings, CNWDI 
material will be clearly marked in accordance with DoDI 5210.02. At a 
minimum, CNWDI documents will show such markings on the cover or first 
page. Portions of documents that contain CNWDI will be marked with an 
(N) or (CNWDI) following the classification of the portion; for example, 
TS (RD)(N) or TS(RD)(CNWDI).
    (d) Subcontractors. Contractors will not disclose CNWDI to 
subcontractors without the prior written approval of the GCA. This 
approval may be included in a contract security classification 
specification, or equivalent, other contract-related document, or by 
separate correspondence.
    (e) Transmission outside the facility. Transmission of CNWDI outside 
the contractor's facility is authorized only to the GCA, or to a 
subcontractor as described in paragraph (d) of this section. Any other 
transmission must be approved by the GCA.
    (1) Prior to transmission to another cleared facility, the 
contractor will verify from the CSA that the facility

[[Page 582]]

has been authorized access to CNWDI. When CNWDI is transmitted to 
another facility, the inner wrapping will be addressed to the personal 
attention of the FSO or his or her alternate, and in addition to any 
other prescribed markings, the inner wrapping will be marked: ``Critical 
Nuclear Weapon Design Information-DoD Instruction 5210.02 Applies.''
    (2) The same marking will be used on the inner wrapping of 
transmissions addressed to the GCA or other USG.
    (f) Records. Contractors will annotate CNWDI access in the CSA-
designated database for all employees who have been authorized access to 
CNWDI.
    (g) Nuclear weapon data. Some nuclear weapon data is divided into 
Sigma categories, the protection of which is prescribed by DOE Order 
452.8 (available at: https://www.directives.doe.gov/ directives-
documents/400-series/ 0452.8-border/@@images/file). However, certain 
nuclear weapon data has been re-categorized as CNWDI and is protected as 
described in this section.



Sec.  117.21  COMSEC.

    (a) General. The procedures in this section pertaining to classified 
COMSEC information will apply to contractors when the contractor:
    (1) Requires the use of COMSEC systems in the performance of a 
contract.
    (2) Is required to install, maintain, or operate COMSEC equipment 
for the USG.
    (3) Is required to accomplish research, development, or production 
of COMSEC systems, COMSEC equipment, or related COMSEC material.
    (b) Instructions. Specific requirements for the management and 
safeguarding of COMSEC material in industry are established in the 
COMSEC material control and operating procedures provided to the account 
manager of each industrial COMSEC account by the agency central office 
of record (COR) responsible for establishing the account. Such 
procedures that are above the baseline requirements detailed in the 
other sections of this rule will be contractually mandated.
    (c) Clearance and access requirements. (1) Before a COMSEC account 
can be established and a contractor may receive or possess COMSEC 
material accountable to a COR, individuals occupying the positions of 
FSO, COMSEC account manager, and alternate COMSEC account manager must 
have a final PCL appropriate for the material to be held in the account.
    (i) COMSEC account managers and alternate COMSEC account managers 
having access to operational TOP SECRET keying material marked as CRYPTO 
must have a final TOP SECRET security clearance based upon a current 
investigation of a scope that meets or exceeds that necessary for the 
access required.
    (ii) This requirement does not apply to contractors using only data 
transfer devices and seed key.
    (2) Before disclosure of COMSEC information to a contractor, GCAs 
must first verify with the CSA that appropriate COMSEC procedures are in 
place at the contractor facility. If procedures are not in place, the 
GCA will provide a written request and justification to the CSA to 
establish COMSEC procedures and a COMSEC account, if appropriate, at the 
facility and to conduct the initial COMSEC or cryptographic access 
briefings for the FSO and COMSEC account personnel.
    (3) Access to COMSEC information by a contractor requires a final 
entity eligibility determination and a USG-issued final PCL at the 
appropriate level; however, an Interim TOP SECRET entity eligibility 
determination or PCL is valid for access to COMSEC at the SECRET and 
CONFIDENTIAL levels.
    (4) If a COMSEC account will be required, the Contract Security 
Classification Specification, or equivalent, will contain a statement 
regarding the establishment of a COMSEC account as appropriate.
    (d) Establishing a COMSEC account. (1) When COMSEC material that is 
accountable to a COR is to be provided, acquired, or produced under a 
contract, the contracting officer will inform the contractor that a 
COMSEC account must be established. The contractor will forward the 
names of U.S. citizen employees who will serve as the COMSEC account 
manager and alternate COMSEC account manager to the CSA. The CSA will 
forward the names

[[Page 583]]

of the FSO, COMSEC account manager, and alternate COMSEC account 
manager, along with a contractual requirement for the establishment of a 
COMSEC account (using DD Form 254 or equivalent) to the appropriate COR, 
with a copy to the GCA, indicating that the persons have been cleared 
and COMSEC has been briefed.
    (2) The COR will then establish the COMSEC account and notify the 
CSA that the account has been established.
    (3) An individual may be appointed as the COMSEC account manager or 
alternate COMSEC account manager for more than one account only when 
approved by each COR concerned.
    (e) COMSEC briefing and debriefing. (1) All contractor employees who 
require access to classified COMSEC information in the performance of 
their duties will be briefed before access is granted. Depending on the 
nature of COMSEC access required, either a COMSEC briefing or a 
cryptographic access briefing will be given. The FSO, the COMSEC account 
manager, and the alternate COMSEC account manager will be briefed by a 
USG representative or their designee. Other contractor employees will be 
briefed by the FSO, the COMSEC account personnel, or other individual 
designated by the FSO. The purpose of the briefing is to ensure that the 
contractor understands:
    (i) The unique nature of COMSEC information and its unusual 
sensitivity.
    (ii) The special security requirements for the handling and 
protection of COMSEC information.
    (iii) The penalties prescribed in 18 U.S.C. 793, 794, and 798 for 
disclosure of COMSEC information.
    (2) COMSEC debriefings are not required.
    (3) The contractor will maintain a record of all COMSEC briefings as 
specified by the appropriate COR.
    (f) U.S. classified cryptographic information access briefing and 
debriefing requirements. (1) U.S. classified cryptographic information 
does not include seed key or controlled cryptographic items.
    (2) A contractor's employee may be granted access to U.S. classified 
cryptographic information only if the employee:
    (i) Is a U.S. citizen.
    (ii) Has a final USG-issued eligibility determination appropriate to 
the classification of the U.S. cryptographic information to be accessed.
    (iii) Has a valid need-to-know to perform duties for, or on behalf 
of, the USG.
    (iv) Receives a security briefing appropriate to the U.S. Classified 
Cryptographic Information to be accessed.
    (v) Acknowledges the granting of access to classified information by 
executing Section I of Secretary of Defense (SD) Form 572, 
``Cryptographic Access Certification and Termination'' (available at: 
https://www.esd.whs.mil/ Portals/54/Documents/DD/ forms/sd/sd0572.pdf).
    (vi) Where so directed by a USG department or agency head, 
acknowledges the possibility of being subject to a CI scope polygraph 
examination that will be administered in accordance with department or 
agency directives and applicable law.
    (3) An employee granted access to cryptographic information will be 
debriefed and execute Section II of the SD 572 not later than 90 days 
from the date access is no longer required.
    (4) The contractor will maintain the SD 572 for a minimum of five 
years following the debriefing.
    (5) Cryptographic access briefings must fully meet the requirements 
of paragraph (e) of this section.
    (g) Destruction and disposition of COMSEC material. The appropriate 
GCA representative, e.g., the contracting officer representative, will 
provide directions to the contractor when accountable COMSEC material is 
to be destroyed. These directions may be provided in superseding 
editions of publications or by specific instructions.
    (h) Subcontracting COMSEC work. Subcontracts requiring the 
disclosure of classified COMSEC information will be awarded only upon 
the written approval of the GCA.
    (i) Unsolicited proposals. Any unsolicited proposal for a COMSEC 
system, equipment, development, or study that may be submitted by a 
contractor to a USG agency will be forwarded to the Deputy National 
Manager for National Security Systems for review and follow up action 
at: Deputy National Manager

[[Page 584]]

for National Security Systems, NSA, Fort George G. Meade, MD 20755-6000.



Sec.  117.22  DHS CCIPP.

    (a) General. DHS will coordinate with other USG agencies that have 
an equity with a private sector entity and the CCIPP in accordance with 
Sec.  117.6(f).
    (b) Authority. (1) The Secretary of Homeland Security has the 
authority to determine the eligibility for personnel security clearances 
and to administer the sharing of relevant classified NSI with certain 
private sectors or non-federal partners for the purpose of furthering 
cybersecurity information sharing among critical infrastructure partners 
pursuant to E.O. 13691.
    (2) DHS provides security oversight and assumes security 
responsibilities similar to those of an FSO, unless otherwise provided 
in this section. Participating entities will cooperate with DHS security 
officials to ensure the entity is in compliance with requirements in 
this rule.



Sec.  117.23  Supplement to this rule: Security Requirements for 
Alternative Compensatory Control Measures (ACCM), Special Access 
Programs (SAPs), Sensitive 
          Compartmented Information (SCI), Restricted Data (RD), 
          Formerly Restricted Data (FRD), Transclassified Foreign 
          Nuclear Information (TFNI), and Naval Nuclear Propulsion 
          Information (NNPI).

    (a) General. Given the sensitive nature of Alternative Compensatory 
Control Measures (ACCM), SAPs, SCI, RD, FRD, TFNI, and NNPI, the 
security requirements prescribed in this section exceed baseline 
standards for this rule and must be applied, as applicable, through 
specific contract requirements.
    (1) Compliance. The contractor will comply with the security 
measures reflected in this section and other documents specifically 
referenced, when applied by the GCA or designee as part of a contract. 
Acceptance of the contract security measures is a prerequisite to any 
negotiations leading to program participation and an area accreditation 
(e.g., an SCI facility or SAP facility accreditation).
    (2) CSA-imposed higher standards. In some cases, security or 
sensitive factors of a CSA-created program may require security measures 
that exceed the standards of this section. In such cases, the CSA-
imposed higher standards specifically detailed in the contract or 
conveyed through other applicable directives will be binding on USG and 
contractor participants. In cases of doubt over the specific provisions, 
the contractor should consult the program security officer and the 
contracting officer before taking any action or expending program-
related funds. In cases of extreme emergencies requiring immediate 
attention, the action taken should protect the USG's interest and the 
security of the program from loss or compromise.
    (3) Waivers. Every effort will be made to avoid waivers to 
established standards unless they are in the best interest of the USG. 
In those cases where waivers are deemed necessary, a request will be 
submitted in accordance with the procedures established by the CSA.
    (b) Intelligence information. National intelligence is under the 
jurisdiction and control of the DNI, who establishes security policy for 
the protection of national intelligence and intelligence sources, 
methods, and activities. In addition to the guidance in this rule, 
contractors will follow Intelligence Community directives, policy 
guidance, standards, and specifications for the protection of classified 
national intelligence and SCI.
    (c) ACCM. Contractors may participate in ACCMs, or be directed to 
participate, only when such access and the associated security plan are 
identified in DD Form 254 or equivalent. Care must be taken to ensure 
identification of the security plan does not disclose ACCM-protected 
data.
    (1) ACCM contracts. DoD contractors will implement the security 
requirements for ACCMs, when established by contract, in accordance with 
applicable statutes, E.O.s, CSA directives, instructions, manuals, 
regulations, standards, and memorandums.
    (2) Non-DoD with ACCMs. Contractors performing on ACCM contracts 
issued by other than DoD GCAs will implement ACCM protection 
requirements imposed in their contracts.

[[Page 585]]

    (d) SAPs--(1) DoD SAP contracts. Contractors will implement the 
security requirements for SAPs codified in SAP-related policy, when 
established by contract. These documents include, but are not limited 
to, statutes, E.O.s, CSA directives, instructions, manuals, regulations, 
standards, memorandums, and other SAP security related policy documents.
    (2) Non-DoD SAPs. Contractors performing on SAP contracts issued by 
non-DoD GCAs will implement SAP protection requirements imposed in their 
contracts. These requirements may be from, but are not limited to, 
statutes, E.O.s, CSA directives, instructions, manuals, regulations, 
standards, memorandums, and other SAP security related policy documents.
    (e) RD, FRD, and TFNI--(1) General. This section describes some of 
the requirements for nuclear-related information designated RD, FRD, or 
TFNI in accordance with the AEA and 10 CFR part 1045. 10 CFR part 1045 
contains the full requirements for classification and declassification 
of RD, FRD, and TFNI. Information on safeguarding of RD by access 
permittees is contained in 10 CFR part 1016. For RD that is NNPI, the 
additional provisions of paragraph (f) of this section apply.
    (i) The DOE is the sole authority for establishing requirements for 
classifying, accessing, handling, securing, and protecting RD. The DOE 
and the DoD share authority for the requirements for FRD. The DOE and 
ODNI share authority for establishing requirements for TFNI.
    (ii) RD, FRD, and TFNI categories are distinguished from the NSI 
category, which is governed in accordance with E.O. 13526.
    (A) RD, FRD, and TFNI have unique marking requirements and are not 
subject to automatic declassification. In addition, RD and FRD have 
special restrictions regarding foreign release.
    (B) It is necessary to differentiate between the handling of this 
information and NSI because of its direct relationship to our nation's 
nuclear deterrent.
    (iii) Some access requirements for RD and FRD exceed the 
requirements for NSI. Due to the unique national security implications 
of RD and FRD, and to facilitate maintaining consistency of codified 
requirement, they are not repeated in the baseline of this rule, but may 
be applied through specific contract requirements.
    (iv) When RD is transclassified as TFNI, it is safeguarded as NSI. 
Such information will be labeled as TFNI. The label TFNI will be 
included on documents to indicate it is exempt from automatic 
declassification as specified in 10 CFR part 1045, the AEA, E.O. 13526, 
and 32 CFR part 2001.
    (2) Unauthorized disclosures. Contractors will report all 
unauthorized disclosures involving RD, FRD and TFNI information to the 
CSA.
    (3) International requirements. The AEA provides for a program of 
international cooperation to promote common defense and security and to 
make available to cooperating nations the benefits of peaceful 
applications of atomic energy as widely as expanding technology and 
considerations of the common defense and security will permit.
    (i) Information controlled in accordance with the AEA, RD, and FRD 
may be shared with another nation only under the terms of an agreement 
for cooperation. The disclosure by a contractor of RD and FRD will not 
be permitted until an agreement is signed by the United States and 
participating governments, and disclosure guidance and security 
arrangements are established.
    (ii) RD and FRD will not be transmitted to a foreign national or 
regional defense organization unless such action is approved and 
undertaken under an agreement for cooperation between the United States 
and the cooperating entity and supporting statutory determinations, as 
prescribed in the AEA.
    (4) Personnel security clearance and access. Only the DOE, the NRC, 
the DoD, and the National Aeronautics and Space Agency can grant access 
to RD and FRD that is under their cognizance. Access to RD and FRD must 
be granted in accordance with the AEA. Baseline requirements for access 
to RD and FRD are codified in specific DoD, DOE, NRC, and the National 
Aeronautics and Space Agency directives and regulations. In addition, 
need-to-

[[Page 586]]

know and other restrictions on access apply.
    (5) Classification and declassification. (i) All persons with access 
to RD and FRD must receive initial and periodic refresher training as 
required under Sec.  1045.120 10 CFR. The training must include the 
following information:
    (A) What information is potentially RD and FRD.
    (B) Matter that potentially contains RD or FRD must be reviewed by 
an RD derivative classifier to determine whether it is RD or FRD.
    (C) The DOE must review matter that potentially contains RD or TFNI 
for public release and DOE or DoD must review matter that potentially 
contains FRD for public release.
    (D) RD derivative classification authority is required to classify 
or upgrade matter containing RD or FRD, or to downgrade the level of 
matter containing RD or FRD.
    (E) Only a person trained in accordance with Sec.  1045.120 10 CFR 
may classify matter containing TFNI.
    (F) Matter containing RD, FRD, and TFNI is not automatically 
declassified and only DOE-authorized persons may downgrade the category 
or declassify matter marked as containing RD. Only DOE or DoD authorized 
persons may downgrade the category or declassify matter marked as 
containing FRD.
    (G) How to submit a challenge if they believe RD, FRD, or TFNI 
information (e.g., a guide topic) or matter containing RD, FRD, or TFNI 
is not properly classified.
    (H) Access requirements for matter marked as containing RD or FRD.
    (ii) All persons with access to TFNI must receive initial and 
periodic refresher training as required under Sec.  1045.120 10 CFR. 
This training may be combined with the training for access to RD and 
FRD. The training must include the following information:
    (A) What information is potentially TFNI.
    (B) Only a person with appropriate training may determine if matter 
contains TFNI.
    (C) Marking requirements for matter containing TFNI.
    (D) Matter containing TFNI is not automatically declassified and 
only DOE authorized persons may downgrade the category or declassify 
matter marked as containing TFNI.
    (E) How to submit a challenge if they believe TFNI information 
(e.g., a guide topic) or matter containing TFNI is not properly 
classified.
    (iii) Persons with access to RD, FRD, or TFNI must submit matter 
that potentially contains RD or FRD to an RD derivative classifier for 
review. If matter potentially contains TFNI, it must be submitted to a 
person trained to make TFNI determinations. Matter potentially 
containing RD, FRD, or TFNI must be reviewed, even if the potential RD, 
FRD, or TFNI is derived from the open literature. Prior to review, the 
matter must be marked as a working paper under 10 CFR 1045.140(c). If 
the matter is intended for pubic release and potentially contains RD or 
TFNI, it must be submitted to the DOE for review. If the matter is 
intended for public release and contains FRD, it must be submitted to 
the DOE or the DoD.
    (iv) Only RD derivative classifiers may classify matter containing 
RD or FRD. RD derivative classifiers must receive initial training and 
refresher training every two years as required under 10 CFR 1045.120. 
The training must include the content for persons with access to RD and 
FRD, along with the following:
    (A) The use of classification guides, classification bulletins, and 
portion-marked source documents to classify matter containing RD and 
FRD.
    (B) What to do if applicable classification guidance is not 
available.
    (C) Limitations on an RD derivative classifier's authority to remove 
RD or FRD portions from matter.
    (D) Marking requirements for matter containing RD and FRD.
    (v) Only persons with appropriate training may review matter to 
determine if it contains TFNI. Training must be completed prior to 
making determinations and every two years after. The training must 
include the content for persons with access to TFNI and the following:
    (A) The markings applied to matter containing TFNI.
    (B) Limitations on their authority to remove TFNI portions from 
matter.

[[Page 587]]

    (C) Only DOE authorized persons may determine that classified matter 
no longer contains TFNI.
    (D) Only DOE-authorized persons may declassify matter marked as 
containing TFNI.
    (E) The DOE must review matter that potentially contains TFNI for 
public release.
    (vi) RD derivative classifiers must use approved classification 
guides, classification bulletins, or portion-marked source documents as 
the basis for classifying matter containing RD and FRD.
    (vii) Persons trained to make TFNI determinations must use approved 
TFNI guidelines, classification guides, classification bulletins, or 
portion-marked source documents as the basis for classifying or upgrade 
matter containing TFNI.
    (6) Marking matter containing RD, FRD, and TFNI. The front page of 
matter containing RD or FRD must have the highest classification level 
of the information on the top and bottom of the first page, the RD or 
FRD admonishment, the subject or title marking, and the classification 
authority block. Matter containing TFNI must include the TFNI identifier 
on each page unless the matter also contains RD or FRD, in which case 
the RD or FRD takes precedence.
    (i) Documents classified as RD or FRD must also include a 
Classification Authority Block with the RD derivative classifier's name 
and position, title, or unique identifier and the classification guide 
or source document (by title and date) used to classify the document. No 
declassification date or event may be placed on a document containing 
RD, FRD, or TFNI. If a document containing RD, FRD, or TFNI also 
contains NSI, ``N/A to RD/FRD/TFNI'' (as appropriate) must be placed on 
the ``Declassify On:'' line.
    (ii) Each interior page of matter containing RD or FRD must be 
clearly marked at the top and bottom with the overall classification 
level and category of the matter or the overall classification level and 
category of the page, whichever is preferred. The abbreviations ``RD'' 
or ``FRD'' may be used in conjunction with the matter classification 
(e.g., SECRET//RD, CONFIDENTIAL//FRD).

    Table 1 to Paragraph (e)(6)(ii) RD and FRD Admonishment Markings
------------------------------------------------------------------------
                                      Admonishment that must be included
        Document containing           on the front page of the document
------------------------------------------------------------------------
RD.................................  ``RESTRICTED DATA
                                     This document contains RESTRICTED
                                      DATA as defined in the Atomic
                                      Energy Act of 1954. Unauthorized
                                      disclosure is subject to
                                      administrative and criminal
                                      sanctions.''
FRD................................  ``FORMERLY RESTRICTED DATA
                                     Unauthorized disclosure subject to
                                      administrative and criminal
                                      sanctions. Handle as Restricted
                                      Data in foreign dissemination.
                                      Section 144b, AEA 1954.''
------------------------------------------------------------------------

    (iii) Documents classified as RD or FRD must also include a 
Classification Authority Block with the RD derivative classifier's name 
and position, title, or unique identifier and the classification guide 
or source document (by title and date) used to classify the document.
    (iv) Other than the required subject or title markings, portion 
marking is permitted, but not required, for matter containing RD or FRD. 
Each agency that generates matter containing RD or FRD determines the 
policy for portion-marking matter generated within the agency. If matter 
containing RD or FRD is portion-marked, each portion containing RD or 
FRD must be marked with the level and category of the information in the 
portion (e.g., SRD, CFRD, S//RD, C//FRD).
    (v) Additional information and requirements are in 10 CFR 1045.140. 
Requests for additional information about the classification and 
declassification of RD, FRD, and TFNI can be directed to Agency RD 
Management Officials or the DOE Office of Classification at 
[email protected] or at (301) 903-7567.
    (7) Declassification. (i) No date or event for automatic 
declassification ever applies to RD, FRD, or TFNI documents, even if 
they contain classified NSI. RD, FRD, or TFNI documents remain 
classified until a positive action by a designated DOE official (for RD, 
FRD, or TFNI) or an appropriate DoD official (for FRD) is taken to 
declassify them.

[[Page 588]]

    (ii) RD derivative classifiers may remove RD or FRD from portion-
marked source matter if the resulting matter is not for public release. 
RD derivative classifiers cannot declassify matter marked as containing 
RD, FRD, and TFNI. Matter that potentially contains RD or TFNI must be 
sent to designated individuals in the DOE and those containing FRD must 
be sent to designated individuals in the DoD for declassification or 
removal of the RD, FRD, or TFNI prior to public release.
    (iii) Matter containing TFNI is excluded from the automatic 
declassification provisions of E.O. 13526 until the TFNI designation is 
properly removed by the DOE. When the DOE determines that a TFNI 
designation may be removed, any remaining classified information must be 
referred to the appropriate agency.
    (iv) Any matter marked as or that potentially contains RD, FRD, or 
TFNI within a document intended for public release that contains RD or 
FRD subject area indicators must be reviewed by the appropriate DOE 
organization.
    (8) Challenges to RD, FRD, and TFNI. A contractor employee who 
believes RD, FRD, or TFNI is classified improperly or unnecessarily may 
challenge that classification following the procedures established by 
the GCA. They may also send challenges directly to the Director, Office 
of Classification, AU-60/Germantown Building; U.S. Department of Energy; 
1000 Independence Avenue SW, Washington, DC 20585, at any time. Under no 
circumstance is an employee subject to retribution for challenging the 
classification status of RD, FRD, or TFNI.
    (9) Commingling. Commingling of RD, FRD, and TFNI with NSI in the 
same document should be avoided to the greatest degree possible. When 
mixing this information cannot be avoided, the marking requirements in 
10 CFR part 1045, section 140(f) and declassification requirements of 10 
CFR part 1045, section 155 apply.
    (10) Protection of RD and FRD. Most of the protection requirements 
for RD and FRD are similar to NSI and are based on the classification 
level. However, there are some protection requirements for certain RD 
information that may be applied through specific contract requirements 
by the GCA. These range from distribution limitations through the 
limitation of access to specifically authorized individuals to specific 
storage requirements, including the requirement for IDSs, and additional 
accountability records.
    (i) Any DOE contractor that violates a classified information 
security requirement may be subject to a civil penalty under the 
provisions of 10 CFR part 824.
    (ii) Certification is required for individuals authorized access to 
specific Sigma categories, as appropriate. Address questions regarding 
these requirements to DOE's National Nuclear Security Administration, 
Office of Defense Programs.
    (iii) Storage and distribution requirements are determined by the 
classification level, category, and Sigma category. Sigma designation is 
not a requirement for all RD documents. Storage and distribution 
requirements will be dependent only on classification level and 
category.
    (11) Accountability. In addition to TOP SECRET information, some 
SECRET RD information is considered accountable (e.g., specific Sigma 14 
matter). Each nuclear weapon data control point will keep a record of 
transactions involving Secret nuclear weapon data documents under its 
jurisdiction including origination, receipt, transmission, current 
custodian, reproduction, change of classification, declassification, and 
destruction.
    (12) Cybersecurity. Classified databases, systems, and networks 
containing RD and FRD are protected under the requirements developed and 
distributed by the DOE Office of the Chief Information Officer.
    (f) NNPI. NNPI is information associated with the Naval Nuclear 
Propulsion Program and is governed by Office of the Chief of Naval 
Operations Instruction (OPNAVINST) N9210.3, ``Safeguarding of Naval 
Nuclear Propulsion Information'' (available at: https://
www.secnav.navy.mil/ doni/Directives/09000%20General% 
20Ship%20Design%20and%20Support/09-200%20 Propulsion%20Plants%20Support/ 
N9210.3%20(Unclas%20Portion).pdf). Naval Reactors, a joint DOE/
Department of Navy organization established

[[Page 589]]

under 50 U.S.C. 2406 and 2511, is responsible for the protection of this 
information. All contracts which grant access to NNPI must require 
compliance with the specific safeguarding requirements contained in 
OPNAVINST N9210.3. All waivers or deviations involving security 
requirements protecting NNPI require Naval Reactors' concurrence. 
Classified NNPI may not be processed on any contractor information 
system unless approved by the cognizant authorizing authority with 
concurrence from Naval Reactors.



Sec.  117.24  Cognizant Security Office information.

    (a) DoD. Refer to the DCSA website (https://www.dcsa.mil) for a 
listing of office locations and areas of responsibility and for 
information on verification of facility clearances and safeguarding. In 
those cases where the cleared facility is located on a DoD installation 
the applicable DCSA field office can advise if the installation 
commander is providing security oversight.

                             Table 1 to Paragraph (a) DoD Cognizant Security Office
----------------------------------------------------------------------------------------------------------------
              Designation                       Office name              Mailing address         Telephone No.
----------------------------------------------------------------------------------------------------------------
Headquarters, CSO......................  Defense                    27130 Telegraph Rd.,          (888) 282-7682
                                          Counterintelligence and    Quantico, VA 22134.
                                          Security Agency.
----------------------------------------------------------------------------------------------------------------

    (b) DOE.

                             Table 2 to Paragraph (b) DOE Cognizant Security Offices
----------------------------------------------------------------------------------------------------------------
              Designation                       Office name              Mailing address         Telephone No.
----------------------------------------------------------------------------------------------------------------
Headquarters...........................  Headquarters Office of     19901 Germantown Road,        (301) 903-2177
                                          Security Operations (AU-   Germantown, MD 20874.
                                          40).
CSO, Clearance Agency, Central           DOE/National Nuclear       Pennsylvania & H Street,      (505) 845-4154
 Verification Activity, Adjudicative      Security Administration    Kirtland Air Force Base,
 Authority, and PCL and FCL databases.    Office of Personnel and    Albuquerque, NM 87116.
                                          Facility Clearances and
                                          Classifications.
CSO....................................  U.S. Department of         850 Energy Drive, Idaho       (208) 526-2216
                                          Energy, Idaho Operations   Falls, ID 83401.
                                          Office.
----------------------------------------------------------------------------------------------------------------


                        Table 3 to Paragraph (b) DOE Cognizant Security Offices Continued
----------------------------------------------------------------------------------------------------------------
              Designation                       Office name              Mailing address         Telephone No.
----------------------------------------------------------------------------------------------------------------
CSO, Naval Nuclear Propulsion            Director, Naval Reactors.  NA-30, 1240 Isaac Hull        (202) 781-6297
 Information.                                                        Ave., SE., Washington
                                                                     Navy Yard, DC 20376.
CSO....................................  U.S. Department of         200 Administration Road,      (865) 576-2140
                                          Energy, Office of          P.O. Box 2001, Oak
                                          Science Consolidated       Ridge, TN 37830.
                                          Service Center.
CSO....................................  U.S. Department of         902 Battelle Boulevard,       (888) 375-7665
                                          Energy, Pacific            Richland, WA 99354.
                                          Northwest Site Office.
CSO....................................  U.S. Department of         825 Jadwin Avenue, P.O.       (509) 376-7411
                                          Energy, Richland           Box 550, Richland, WA
                                          Operations Office.         99352.
CSO....................................  U.S. Department of         Road 1A, Aiken, SC 29801.     (803) 725-6211
                                          Energy, Savannah River
                                          Operations Office.
----------------------------------------------------------------------------------------------------------------

    (c) NRC.

         Table 4 to Paragraph (c) NRC Cognizant Security Offices
------------------------------------------------------------------------
          Designation              Mailing address       Telephone No.
------------------------------------------------------------------------
CSO, Adjudicative Authority,    U.S. Nuclear              (301) 415-8080
 PCL and FCL databases, and      Regulatory
 Industrial Security Program.    Commission, ATTN:
                                 Director of
                                 Facilities and
                                 Security,
                                 Washington, DC 20555.
CSO, FCL Database and           U.S. Nuclear              (301) 415-7048
 Industrial Security Program     Regulatory
 for Licensees.                  Commission, ATTN:
                                 Information Security
                                 Branch, 11555
                                 Rockville Pike,
                                 Rockville, MD 20853.

[[Page 590]]

 
Clearance Agency..............  U.S. Nuclear              (301) 415-8080
                                 Regulatory
                                 Commission, ATTN:
                                 Director of
                                 Facilities and
                                 Security Personnel
                                 Security, 11545
                                 Rockville Pike,
                                 Rockville, MD 20853.
Central Verification Agency...  U.S. Nuclear              (301) 415-8080
                                 Regulatory
                                 Commission, ATTN:
                                 Director of Security
                                 Facilities Security,
                                 11545 Rockville
                                 Pike, Rockville, MD
                                 20853.
------------------------------------------------------------------------

    (d) DHS.

         Table 6 to Paragraph (d) DHS Cognizant Security Office
------------------------------------------------------------------------
          Designation              Mailing address       Telephone No.
------------------------------------------------------------------------
CSO...........................  DHS Cognizant            (202) 447-5424;
                                 Security Office,         (202) 447-5345
                                 ATTN: Chief Security
                                 Officer, 245 Murray
                                 Lane, M/S 0120-3,
                                 Washington, DC 20528.
------------------------------------------------------------------------



PART 142_COPYRIGHTED SOUND AND VIDEO RECORDINGS--Table of Contents



Sec.
142.1 Purpose.
142.2 Applicability.
142.3 Policy.
142.4 Procedures.
142.5 Responsibilities.

    Authority: 10 U.S.C. 133.

    Source: 49 FR 49452, Dec. 20, 1984, unless otherwise noted.



Sec.  142.1  Purpose.

    This part provides policy, prescribes procedures, and assigned 
responsibilities regarding the use of copyrighted sound and video 
recordings within the Department of Defense.



Sec.  142.2  Applicability.

    (a) The provisions of this part apply to the Office of the Secretary 
of Defense, the Military Departments, the Organization of the Joint 
Chiefs of Staff, the Unified and Specified commands, and the Defense 
Agencies (hereafter referred to collectively as ``DoD Components'').
    (b) This part does not regulate the procurement or use of 
copyrighted works for authorized official purposes.



Sec.  142.3  Policy.

    (a) It is DoD policy: (1) To recognize the rights to copyright 
owners by establishing specific guidelines for the use of copyrighted 
works by individuals within the DoD community, consistent with the 
Department's unique mission and worldwide commitments, and (2) Not to 
condone, facilitate, or permit unlicensed public performance or unlawful 
reproduction for private or personal use of copyrighted sound or video 
recordings, using government appropriated or nonappropriated-fund-owned 
or leased equipment or facilities.
    (b) Although the policy expressed in this Directive takes into 
account the copyright law of the United States, the application of that 
law to specific situations is a matter for interpretation by the U.S. 
Copyright Office and the Department of Justice.



Sec.  142.4  Procedures.

    (a) Permission or licenses from copyright owners shall be obtained 
for public performance of copyrighted sound and video recordings.
    (b) Component procedures established pursuant to Sec.  142.5, below 
provide guidance for determining whether a performance is ``public.'' 
These general principles will be observed:
    (1) A performance in a residential facility or a physical extension 
thereof is not considered a public performance.
    (2) A performance in an isolated area or deployed unit is not 
considered a public performance.
    (3) Any performance at which admission is charged normally would be 
considered a public performance.

[[Page 591]]

    (c) Government audio and video duplicating equipment and 
appropriated funded playback equipment may not be used for reproduction 
of copyrighted sound or video recordings.



Sec.  142.5  Responsibilities.

    Heads of DoD Components shall establish procedures to comply with 
this Directive and shall provide necessary local guidance and legal 
interpretation.



PART 145_COOPERATION WITH THE OFFICE OF SPECIAL COUNSEL OF THE MERIT
SYSTEMS PROTECTION BOARD--Table of Contents



Sec.
145.1 Purpose.
145.2 Applicability and scope.
145.3 Definitions.
145.4 Policy.
145.5 Responsibilities.
145.6 Procedures.

Appendix to Part 145--Legal Representation

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

    Source: 51 FR 17178, May 9, 1986, unless otherwise noted.



Sec.  145.1  Purpose.

    This part establishes policy, assigns responsibilities, and 
prescribes procedures for cooperation with the Office of Special Counsel 
(OSC) of the Merit Systems Protection Board (MSPB) in fulfilling the 
responsibilities of the Special Counsel under Pub. L. 95-454 and 5 CFR 
1201 and 1250 to conduct investigations of alleged prohibited personnel 
practices and to ensure the investigation of other allegations of 
improper or illegal conduct referred to the Department of Defense by the 
OSC. This part provides internal guidance to DoD officials, and does not 
establish an independent basis for any person or organization to assert 
a right, benefit, or privilege.



Sec.  145.2  Applicability and scope.

    (a) This part applies to the Office of the Secretary of Defense 
(OSD), the Military Departments, the Office of the Joint Chiefs of Staff 
(OJCS), the Inspector General, Department of Defense (IG, DoD) and the 
Defense Agencies (hereafter referred to collectively ``as DoD 
Components'').
    (b) The provisions of this part that relate to prohibited personnel 
practices do not apply to the Defense Intelligence Agency (DIA) or the 
National Security Agency (NSA), as prescribed by 5 U.S.C. 
2302(a)(2)(C)(ii.).
    (c) This part does not restrict the IG, DoD, in coordinating 
investigative efforts on individual cases with the OSC where concurrent 
jurisdiction exists.



Sec.  145.3  Definitions.

    Improper or illegal conduct. (a) A violation of any law, rule, or 
regulation in connection with Government misconduct; or
    (b) Mismanagement, a gross waste of funds, an abuse of authority, or 
a substantial and specific danger to public health or safety.
    Office of the Secretary of Defense (OSD). (a) The immediate offices 
of the Secretary, the Deputy Secretary, the Assistant Secretaries, 
Assistants to the Secretary, and other officials serving the Secretary 
of Defense directly.
    (b) The field activities of the Secretary of Defense.
    (c) The Organization of the Joint Chiefs of Staff.
    (d) The Unified and Specified Commands.
    Personnel action. (a) An appointment.
    (b) A promotion.
    (c) An adverse action under 5 U.S.C. 7501 et seq. or other 
disciplinary or corrective action.
    (d) A detail, transfer, or reassignment.
    (e) A reinstatement.
    (f) A restoration.
    (g) A reemployment.
    (h) A performance evaluation under 5 U.S.C. 4301 et seq.
    (i) A decision concerning pay, benefits, or awards, or concerning 
education or training if the education or training may reasonably be 
expected to lead to an appointment, promotion, performance evaluation, 
or other personnel action.
    (j) Any other significant change in duties or responsibilities that 
is inconsistent with the employee's salary or grade level.

[[Page 592]]

    Prohibited personnel practice. Action taken by an employee who has 
authority to take, direct others to take, recommend, or approve any 
personnel action:
    (a) That discriminates for or against any employee or applicant for 
employment on the basis of race, color, religion, sex, national origin, 
age, handicapping condition, marital status, or political affiliation, 
as prohibited by certain specified laws (see 5 U.S.C. 2302(b)(1).
    (b) To solicit or consider any recommendation or statement, oral or 
written, with respect to any individual who requests, or is under 
consideration for, any personnel action, unless the recommendation or 
statement is based on the personal knowledge or records of the person 
furnishing it, and consists of an evaluation of the work performance, 
ability, aptitude, or general qualifications of the individual, or an 
evaluation of the character, loyalty, or suitability of such individual.
    (c) To coerce the political activity of any person (including the 
providing of any political contribution or service), or take any action 
against any employee or applicant for employment as a reprisal for the 
refusal of any person to engage in such political activity.
    (d) To deceive or willfully obstruct any person with respect to such 
person's right to compete for employment.
    (e) To influence any person to withdraw from competition for any 
position for the purpose of improving or injuring the prospects of any 
other person for employment.
    (f) To grant any preference or advantage not authorized by law, 
rule, or regulation to any employee or applicant for employment 
(including defining the scope or manner of competition or the 
requirements for any position) for the purpose of improving or injuring 
the prospects of any particular person for employment.
    (g) To appoint, employ, promote, advance, or advocate for 
appointment, employment, promotion, or advancement, in or to a civilian 
position any individual who is a relative (as defined in 5 U.S.C. 3110) 
of the employee if the position is in the agency in which the employee 
is serving as a public official (as defined in 5 U.S.C. 3110) or over 
which the employee exercises jurisdiction or control as an official.
    (h) To take or fail to take a personnel action with respect to any 
employee or applicant for employment as a reprisal for being a 
whistleblower. (See whistleblower)
    (i) To take or fail to take a personnel action against an employee 
or applicant for employment as a reprisal for the exercise of any appeal 
right granted by law, rule, or regulation.
    (j) To discriminate for or against any employee or applicant for 
employment on the basis of conduct that does not adversely affect the 
performance of the employee or applicant or the performance of others.
    (k) To take or fail to take any other personnel action if the taking 
of, or failure to take, such action violates any law, rule, or 
regulation implementing, or directly concerning, the merit system 
principles contained in 5 U.S.C. 2301.
    Whistleblower. A present or former Federal employee or applicant for 
Federal employment who discloses information he or she reasonably 
believes evidences:
    (a) A violation of any law, rule, or regulation.
    (b) Mismanagement, a gross waste of funds, or an abuse of authority.
    (c) A substantial or specific danger to public health or safety.
    (d) Such disclosure qualifies if it is not specifically prohibited 
by statute and if such information is not specifically required by 
Executive Order to be kept secret in the interest of national defense or 
the conduct of foreign affairs.
    (e) Where the information disclosed affects only the personal 
situation of the complaintant, it is generally to be regarded as an 
allegation of a prohibited personnel practice or violation of other 
civil service law, rule, or regulation, and the complainant will not be 
considered a whistleblower.



Sec.  145.4  Policy.

    It is DoD policy that:
    (a) Civilian personnel actions taken by DoD management officials, 
civilian and military, shall conform to laws and regulations 
implementing established merit system principles and must be

[[Page 593]]

free of any prohibited personnel practices, as described in 5 U.S.C. 
2302 and Sec.  145.3 of this part.
    (b) It is the responsibility of each DoD management official to take 
vigorous corrective action and, when appropriate, to initiate 
disciplinary measures when prohibited personnel practices occur.
    (c) DoD Components shall cooperate with the Office of Special 
Counsel by:
    (1) Promoting merit system principles in civilian employment 
programs within the Department of Defense.
    (2) Investigating and reporting on allegations of improper or 
illegal conduct forwarded to the Component by the OSC pursuant to 5 
U.S.C. 1206(b) (2) or (3).
    (3) Facilitating orderly investigation by the OSC of alleged 
prohibited personnel practices and other matters assigned for 
investigation to the OSC by law, such as the Freedom of Information Act 
and the Hatch Act.
    (d) DoD Components shall cooperate with the OSC by providing 
appropriate assistance and information to its representatives during 
their investigations and by furnishing to the OSC investigators copies 
of releasable documents requested under the authority of the Civil 
Service Reform Act of 1978, 5 CFR 1250, the Privacy Act, and Civil 
Service Rule V.
    (e) Close coordination between DoD and OSC personnel during an OSC 
investigation is encouraged to eliminate duplication of effort, and to 
avoid unnecessary delay in initiating, when appropriate, corrective or 
disciplinary action. This coordination shall be conducted in full 
recognition of the independent statutory basis for the OSC, as provided 
in Pub. L. 95-454 and of the responsibilities of the Department of 
Defense.
    (f) OSC investigative requests involving classified information 
shall be accorded special attention and prompt consideration under 
existing administrative procedures.
    (g) When OSC and a DoD Component or an employee assigned DoD counsel 
are engaged in litigation, release of information shall be accomplished 
pursuant to MSPB rules of discovery (5 CFR 1201, subpart B.).



Sec.  145.5  Responsibilities.

    (a) The Secretaries of the Military Departments and the Director, 
Defense Logistics Agency (DLA), shall prescribe implementing documents 
to ensure that:
    (1) The policies, standards, and procedures set forth in this part 
are administered in a manner that encourages consistency in responding 
to investigations of alleged prohibited personnel practices.
    (2) Alleged illegal or improper conduct referred to a Military 
Department or the DLA by the OSC or by OSD is carefully investigated.
    (3) There is full cooperation with the IG, DoD, and the General 
Counsel, Department of Defense (GC, DoD), including assignment of 
military and civilian attorneys to represent employees suspected or 
accused by the OSC of committing a prohibited personnel practice or an 
otherwise illegal or improper act.
    (b) The General Counsel, Department of Defense (GC, DoD) shall 
provide overall legal guidance, whether by the issuance of regulations 
or otherwise, on all issues concerning cooperation with the OSC. This 
authority extends to:
    (1) Ensuring that DoD legal counsel is assigned upon request to 
represent a DoD employee suspected or accused by the OSC of committing a 
prohibited personnel practice or an illegal or improper act when the act 
complained of was within the scope of the employee's official 
responsibilities and such representation is in the interest of the 
Department of Defense; or, in unusual situations, that outside legal 
counsel is engaged where the use of DoD counsel would be inappropriate, 
and the same conditions are satisfied.
    (2) Providing DoD legal counsel to seek intervention for the purpose 
of representing the interests of OSD or a Defense agency (other than the 
DLA) in an MSPB hearing resulting from charges of misconduct against an 
employee of OSD or a Defense agency, under the authority of the Civil 
Service Reform Act of 1978.
    (3) Seeking the assistance of the Department of Justice in 
responding to requests by employees for legal representation in 
obtaining judicial review of an order by the MSPB, under 5 U.S.C. 1207.

[[Page 594]]

    (4) Modifying Sec.  145.3 and Appendix to this part and issuing 
supplementary instructions concerning all aspects of DoD cooperation 
with the OSC, including instructions on OSC investigations of allegedly 
arbitrary and capricious withholding of information under the Freedom of 
Information Act or violations of the Hatch Act.
    (5) Reviewing for adequacy and legal sufficiency with the IG, DoD, 
each report of an investigation that must be personally reviewed by the 
Secretary or Deputy Secretary of Defense on action taken or to be taken 
in response to an OSC finding of reasonable cause to believe there has 
been a violation of law, rule, or regulation, not including a prohibited 
personnel practice or allegation referred to the Attorney General of the 
United States for appropriate action.
    (c) The Inspector General, Department of Defense (IG, DoD) shall:
    (1) Investigate, or cause to be investigated, as appropriate, any 
complaint referred to the Department of Defense by OSC.
    (2) Coordinate, where feasible, investigative efforts by DoD 
Components and the OSC, with particular emphasis on those conducted or 
initiated by action of the OSC.
    (3) Submit the results of any investigation conducted under this 
part to the appropriate General Counsel.
    (d) The Deputy Assistant Secretary of Defense (Administration) 
(DASD(A)) shall serve as the Senior Management Official, as described in 
Sec.  145.6(b) concerning allegations by the OSC of prohibited personnel 
practices or other illegal or improper acts in the OSD.
    (e) The General Counsels of the Military Departments and the General 
Counsel of the Defense Logistics Agency shall have the same authority 
for their respective Components as given to the General Counsel, DoD, 
under paragraphs (b) (1) and (2) of this section.



Sec.  145.6  Procedures.

    (a) Allegations of improper or illegal conduct received from the OSC 
under 5 U.S.C. 1206(b)(2), (3), or (c)(3). (1) Allegations of improper 
or illegal conduct referred by the OSC to the Secretary of Defense or to 
a Defense agency (other than the DLA) shall be forwarded to the IG, DoD.
    (2) Allegations of improper or illegal conduct referred to a 
Military Department or to the DLA by the OSC shall be forwarded to the 
General Counsel of that Component.
    (3) Upon receipt of a referral under paragraph (a) (1) or (2) of 
this section IG, DoD, or the GC of the Component concerned, as 
appropriate, shall ensure compliance with the Civil Service Reform Act 
of 1978 by obtaining a suitable investigation of an allegation, 
including compliance with time limits for reporting results of the 
investigation and personal review of the report by the head of the 
Component when required.
    (4) Copies of each allegation referred under paragraph (a)(2) shall 
be forwarded by the General Counsel concerned to the IG, DoD.
    (b) OSC Investigations of Prohibited Personnel Practices. (1) The 
head of each DoD Component shall designate a Senior Management Official 
to:
    (i) Serve as a point of contact in providing assistance to the OSC 
in conducting investigations of alleged prohibited activities before any 
designation of an attorney of record for the Component or individual 
respondent for matters in litigation.
    (ii) Monitor those investigations.
    (iii) Ensure that appropriate Component personnel are fully apprised 
of the nature and basis for an OSC investigation, as well as the rights 
and duties of Component personnel in regard to such investigations.
    (iv) Ensure that any corrective or disciplinary action considered 
appropriate because of facts disclosed by such an investigation is 
accomplished under paragraph (b)(2), in a timely manner.
    (2) The designated Senior Management Official shall have authority 
to:
    (i) Refer to responsible officials recommendations by the OSC for 
corrective action.
    (ii) Seek OSC approval of proposed disciplinary action against an 
employee for an alleged prohibited personnel practice or illegal or 
improper act under investigation by the OSC when it is determined that 
such discipline is warranted.

[[Page 595]]

    (iii) Ensure that disciplinary action against an employee adjudged 
at fault following completion of an OSC investigation has been 
considered to avoid the need for a proceeding before the MSPB.
    (iv) Ensure that information concerning members of the Armed Forces 
who are found by the Component to have committed a prohibited personnel 
practice or other violation of this Directive in the exercise of 
authority over civilian personnel is referred to appropriate military 
authority.
    (3) The Senior Management Official shall:
    (i) Establish a system under which an employee is identified to 
serve as the Liaison Officer for any OSC investigator who may initiate 
an investigation at a facility, base, or installation for which the 
employee is assigned liaison duties. It shall be the responsibility of 
the Liaison Officer to:
    (A) Assist the OSC investigator.
    (B) Ensure that all OSC requests for documents are in writing.
    (C) Process such requests, as well as all requests for interviews.
    (ii) Determine, to the extent practicable, whether an investigation 
is being, or has been, conducted that replicates in whole or in part the 
proposed or incomplete investigation by the OSC, and convey that 
information to the OSC whenever this might avoid redundant investigative 
effort.
    (iii) Inform the General Counsel of the Component concerned of any 
OSC investigation and consult with the General Counsel on any legal 
issue related to an OSC investigation.
    (iv) Ensure that Component personnel involved are given timely legal 
and policy advice, through arrangements effected by the Liaison Officer, 
on the nature and basis for an OSC investigation, the authority of the 
OSC, and the rights and duties of Component personnel, including those 
set forth in Appendix.
    (v) Inform the IG, DoD, of any OSC investigation of an alleged 
prohibited personnel practice that is identified as having resulted from 
a whistleblower complaint or involves an allegation of otherwise illegal 
or improper conduct.



             Sec. Appendix to Part 145--Legal Representation

    1. An employee or member of the Armed Forces asked to provide 
information (testimonial or documentary) to the OSC in the course of an 
investigation by that office may obtain legal advice from DoD attorneys, 
both civilian and military, on that employee's or members's rights and 
obligations. This includes assistance at any interviews with OSC 
investigators. However, the attorney-client relationship shall not be 
established unless the employee is suspected or accused by the OSC of 
committing a prohibited personnel practice or other illegal or improper 
act and has been assigned DoD counsel.
    2. An employee who believes that he or she is suspected or has been 
accused by the OSC of committing a prohibited personnel practice or 
other illegal or improper act may obtain legal representation from the 
Department of Defense under the conditions prescribed in Sec.  145(b)(1) 
of this part, except as provided in section 7, below. The attorney 
assigned shall be a military member or employee from another Component 
whenever an attorney from the same Component is likely to face a 
conflict between his or her ethical obligation to the employee client 
and to the Component employer, and in any case where the suspected or 
accused employee has requested representation from another Component. 
Outside legal counsel may be retained by the Component on behalf of the 
employee only under unusual circumstances and only with the personal 
approval of the General Counsel of the Department of Defense.
    3. The General Counsel responsible for authorizing representation 
shall determine whether a conflict is liable to occur if an attorney 
from the same Component is assigned to represent the employee and, in 
that case or in a case in which the suspected or accused employee has 
requested representation from another Component, shall seek the 
assistance of another General Counsel in obtaining representation from 
outside the Component. The General Counsels of the Military Departments 
and the DLA shall ensure the availability of appropriately trained 
counsel for assignment to such cases.
    4. To obtain legal representation the employee:
    a. Must request legal representation, in writing, together with all 
process and pleadings served, and explain the circumstances that justify 
DoD legal assistance.
    b. Indicate whether he or she has retained legal counsel from 
outside the Department of Defense.
    c. Obtain a written certification from his or her supervisor that 
the employee was acting within the scope of his of her official duties, 
and that no adverse or disciplinary personnel action against the 
employee for the

[[Page 596]]

conduct being investigated by the OSC has been initiated by the 
Component.
    5. Employee requests for legal representation must be approved by 
the General Counsel, DoD, for employees of OSD or a Defense Agency 
(other than the DLA), or by the General Counsel of a Military Department 
or the General Counsel of the DLA for employees of those Components.
    6. The conditions of legal representation must be explained to the 
accused employee in writing and accepted in writing by that employee.
    7. DoD resources may not be used to provide legal representation for 
an employee with respect to a DoD disciplinary action against the 
employee for committing or participating in a prohibited personnel 
practice or for engaging in illegal or improper conduct, regardless of 
whether that participation or conduct is also the basis for disciplinary 
action proposed by the OSC.
    8. After approval of an employee's request, under section 4, above, 
a DoD attorney shall be assigned (or, in unusual circumstances, outside 
counsel retained) as the employee's representative in matters pending 
before the OSC or MSPB. This approval may be limited to representing the 
employee only with respect to some of the pending matters if other 
specific matters of concern to the OSC or MSPB do not satisfy the 
requirements of his Directive.
    9. An attorney-client relationship shall be established and 
continued between the suspected or accused employee and assigned DoD 
counsel.
    10. In representing a DoD employee under this part, a DoD attorney 
designated counsel for the employee shall act as a vigorous advocate of 
the employee's individual legal interests before the OSC or MSPB; the 
attorney's professional responsibility to the Department of Defense and 
his or her employing Component will be satisfied by fulfilling this 
responsibility to the employee. Legal representation may be terminated 
only with the approval of the General Counsel who authorized 
representation, and normally only on the basis of information not 
available at the time the attorney was assigned.
    11. The attorney-client relationship may be terminated if the 
assigned DoD counsel for the employee determines, with the approval of 
the General Counsel who authorizes representation, that:
    a. The employee was acting outside the scope of his or her official 
duties when engaging in the conduct that is the basis for the OSC 
investigation or charge.
    b. Termination of the professional representation is not in 
violation of the rules of professional conduct applicable to the 
assigned counsel.
    12. The DoD attorney designated counsel may request relief from the 
duties of representation or counseling without being required to furnish 
explanatory information that might compromise the assurance to the 
client of confidentiality.
    13. This part authorizes cognizant DoD officials to approve a 
represented employee's request for travel, per diem, witness 
appearances, or other departmental support necessary to ensure effective 
legal representation of the employee by the designated counsel.
    14. An employee's participation in OSC investigations, MSPB 
hearings, and other related proceedings shall be considered official 
departmental business for time and attendance requirements and similar 
purposes.
    15. The following advice to employees questioned during the course 
of an OSC investigation may be appropriate in response to the most 
frequent inquiries:
    a. An employee may decline to provide a ``yes'' or ``no'' answer in 
favor of a more qualified answer when this is necessary to ensure 
accuracy in responding to an OSC interviewer's questions.
    b. Requests for clarification of both questions and answers are 
appropriate to avoid misinterpretation.
    c. Means to ensure verification of an interview by OSC investigators 
are appropriate, whether the employee is or is not accompanied by a 
legal representative. Tape recorders may only be used for this purpose 
when:
    (1) The recorder is used in full view.
    (2) All attendees are informed.
    (3) The OSC interrogator agrees to the tape recording of the 
proceeding.
    d. Any errors that appear in a written summary of an interview 
prepared by the interviewer should be corrected before the employee 
signs the statement. The employee is not required to sign any written 
summary that is not completely accurate. An employee may make a copy of 
the summary for his or her own use as a condition of signing.



PART 147_ADJUDICATIVE GUIDELINES FOR DETERMINING ELIGIBILITY FOR ACCESS
TO CLASSIFIED INFORMATION--Table of Contents



                    Subpart A_Adjudicative Guidelines

Sec.
147.1 Introduction.
147.2 Adjudicative process.
147.3 Guideline A--Allegiance to the United States.
147.4 Guideline B--Foreign influence.
147.5 Guideline C--Foreign preference.
147.6 Guideline D--Sexual behavior.
147.7 Guideline E--Personal conduct.
147.8 Guideline F--Financial considerations.
147.9 Guideline G--Alcohol consumption.
147.10 Guideline H--Drug involvement.

[[Page 597]]

147.11 Guideline I--Emotional, mental, and personality disorders.
147.12 Guideline J--Criminal conduct.
147.13 Guideline K--Security violations.
147.14 Guideline L--Outside activities.
147.15 Guideline M--Misuse of information technology systems.

                    Subpart B_Investigative Standards

147.18 Introduction.
147.19 The three standards.
147.20 Exception to periods of coverage.
147.21 Expanding investigations.
147.22 Transferability.
147.23 Breaks in service.
147.24 The national agency check.

Attachment A to Subpart B of Part 147--Standard A--National Agency Check 
          With Local Agency Checks and Credit Check (NACLC)
Attachment B to Subpart B of Part 147--Standard B--Single Scope 
          Background Investigation (SSBI)
Attachment C to Subpart B of Part 147--Standard C--Single Scope 
          Background Investigation Periodic Reinvestigation (SSBI-PR)
Attachment D to Subpart B of Part 147--Decision Tables

                Subpart C_Guidelines for Temporary Access

147.28 Introduction.
147.29 Temporary eligibility for access.
147.30 Temporary eligibility for access at the CONFIDENTIAL AND SECRET 
          levels and temporary eligibility for ``L'' access 
          authorization.
147.31 Temporary eligibility for access at the TOP SECRET levels and 
          temporary eligibility for ``Q'' access authorization. For 
          someone who is the subject of a favorable investigation not 
          meeting the investigative standards for access at those 
          levels.
147.32 Temporary eligibility for access at the TOP SECRET and SCI levels 
          and temporary eligibility for ``Q'' access authorization: For 
          someone who is not the subject of a current, favorable 
          personnel or personnel-security investigation of any kind.
147.33 Additional requirements by agencies.

    Authority: E.O. 12968 (60 FR 40245, 3 CFR 1995 Comp., p 391).

    Source: 63 FR 4573, Jan. 30, 1998, unless otherwise noted.



                         Subpart A_Adjudication



Sec.  147.1  Introduction.

    The following adjudicative guidelines are established for all United 
States Government civilian and military personnel, consultants, 
contractors, employees of contractors, licensees, certificate holders or 
grantees and their employees and other individuals who require access to 
classified information. They apply to persons being considered for 
initial or continued eligibility for access to classified information, 
to include sensitive compartmented information and special access 
programs and are to be used by government departments and agencies in 
all final clearance determinations.



Sec.  147.2  Adjudicative process.

    (a) The adjudicative process is an examination of a sufficient 
period of a person's life to make an affirmative determination that the 
person is eligible for a security clearance. Eligibility for access to 
classified information is predicated upon the individual meeting these 
personnel security guidelines. The adjudicative process is the careful 
weighing of a number of variables known as the whole person concept. 
Available, reliable information about the person, past and present, 
favorable and unfavorable, should be considered in reaching a 
determination. In evaluating the relevance of an individual's conduct, 
the adjudicator should consider the following actors:
    (1) The nature, extent, and seriousness of the conduct;
    (2) The circumstances surrounding the conduct, to include 
knowledgeable participation;
    (3) The frequency and recency of the conduct;
    (4) The individual's age and maturity at the time of the conduct;
    (5) The voluntariness of participation;
    (6) The presence or absence of rehabilitation and other pertinent 
behavioral changes;
    (7) The motivation for the conduct;
    (8) The potential for pressure, coercion, exploitation, or duress;
    (9) The likelihood of continuation of recurrence.
    (b) Each case must be judged on its own merits, and final 
determination remains the responsibility of the specific department or 
agency. Any doubt as to whether access to classified information is 
clearly consistent with national

[[Page 598]]

security will be resolved in favor of the national security.
    (c) The ultimate determination of whether the granting or continuing 
of eligibility for a security clearance is clearly consistent with the 
interests of national security must be an overall common sense 
determination based upon careful consideration of the following, each of 
which is to be evaluated in the context of the whole person, as 
explained further below:
    (1) Guideline A: Allegiance to the United States.
    (2) Guideline B: Foreign influence.
    (3) Guideline C: Foreign preference.
    (4) Guideline D: Sexual behavior.
    (5) Guideline E: Personal conduct.
    (6) Guideline F: Financial considerations.
    (7) Guideline G: Alcohol consumption.
    (8) Guideline H: Drug involvement.
    (9) Guideline I: Emotional, mental, and personality disorders.
    (10) Guideline J: Criminal conduct.
    (11) Guideline K: Security violations.
    (12) Guideline L: Outside activities.
    (13) Guideline M: Misuse of Information Technology Systems.
    (d) Although adverse information concerning a single criterion may 
not be sufficient for an unfavorable determination, the individual may 
be disqualified if available information reflects a recent or recurring 
pattern of questionable judgment, irresponsibility, or emotionally 
unstable behavior. Notwithstanding, the whole person concept, pursuit of 
further investigations may be terminated by an appropriate adjudicative 
agency in the face of reliable, significant, disqualifying, adverse 
information.
    (e) When information of security concern becomes known about an 
individual who is currently eligible for access to classified 
information, the adjudicator should consider whether the person:
    (1) Voluntarily reported the information;
    (2) Was truthful and complete in responding to questions;
    (3) Sought assistance and followed professional guidance, where 
appropriate;
    (4) Resolved or appears likely to favorably resolve the security 
concern;
    (5) Has demonstrated positive changes in behavior and employment;
    (6) Should have his or her access temporarily suspended pending 
final adjudication of the information.
    (f) If after evaluating information of security concern, the 
adjudicator decides that the information is not serious enough to 
warrant a recommendation of disapproval or revocation of the security 
clearance, it may be appropriate to recommend approval with a warning 
that future incidents of a similar nature may result in revocation of 
access.



Sec.  147.3  Guideline A--Allegiance to the United States.

    (a) The concern. An individual must be of unquestioned allegiance to 
the United States. The willingness to safeguard classified information 
is in doubt if there is any reason to suspect an individual's allegiance 
to the Untied States.
    (b) Conditions that could raise a security concern and may be 
disqualifying include: (1) Involvement in any act of sabotage, 
espionage, treason, terrorism, sedition, or other act whose aim is to 
overthrow the Government of the United States or alter the form of 
government by unconstitutional means;
    (2) Association or sympathy with persons who are attempting to 
commit, or who are committing, any of the above acts;
    (3) Association or sympathy with persons or organizations that 
advocate the overthrow of the United States Government, or any state or 
subdivision, by force or violence or by other unconstitutional means;
    (4) Involvement in activities which unlawfully advocate or practice 
the commission of acts of force or violence to prevent others from 
exercising their rights under the Constitution or laws of the United 
States or of any state.
    (c) Conditions that could mitigate security concerns include: (1) 
The individual was unaware of the unlawful aims of the individual or 
organization and severed ties upon learning of these;
    (2) The individual's involvement was only with the lawful or 
humanitarian aspects of such an organization;

[[Page 599]]

    (3) Involvement in the above activities occurred for only a short 
period of time and was attributable to curiosity or academic interest;
    (4) The person has had no recent involvement or association with 
such activities.



Sec.  147.4  Guideline B--Foreign influence.

    (a) The concern. A security risk may exist when an individual's 
immediate family, including cohabitants and other persons to whom he or 
she may be bound by affection, influence, or obligation are not citizens 
of the Untied States or may be subject to duress. These situations could 
create the potential for foreign influence that could result in the 
compromise of classified information. Contacts with citizens of other 
countries or financial interests in other countries are also relevant to 
security determinations if they make an individual potentially 
vulnerable to coercion, exploitation, or pressure.
    (b) Conditions that could raise a security concern and may be 
disqualifying include: (1) An immediate family member, or a person to 
whom the individual has close ties of affection or obligation, is a 
citizen of, or resident or present in, a foreign country;
    (2) Sharing living quarters with a person or persons, regardless of 
their citizenship status, if the potential for adverse foreign influence 
or duress exists;
    (3) Relatives, cohabitants, or associates who are connected with any 
foreign government;
    (4) Failing to report, where required, associations with foreign 
nationals;
    (5) Unauthorized association with a suspected or known collaborator 
or employee of a foreign intelligence service;
    (6) Conduct which may make the individual vulnerable to coercion, 
exploitation, or pressure by a foreign government;
    (7) Indications that representatives or nationals from a foreign 
country are acting to increase the vulnerability of the individual to 
possible future exploitation, coercion or pressure;
    (8) A substantial financial interest in a country, or in any foreign 
owned or operated business that could make the individual vulnerable to 
foreign influence.
    (c) Conditions that could mitigate security concerns include: (1) A 
determination that the immediate family member(s) (spouse, father, 
mother, sons, daughters, brothers, sisters), cohabitant, or associate(s) 
in question are not agents of a foreign power or in a position to be 
exploited by a foreign power in a way that could force the individual to 
choose between loyalty to the person(s) involved and the United States;
    (2) Contacts with foreign citizens are the result of official United 
States Government business;
    (3) Contact and correspondence with foreign citizens are casual and 
infrequent;
    (4) The individual has promptly complied with existing agency 
requirements regarding the reporting of contacts, requests, or threats 
from persons or organizations from a foreign country;
    (5) Foreign financial interests are minimal and not sufficient to 
affect the individual's security responsibilities.



Sec.  147.5  Guideline C--Foreign preference.

    (a) The concern. When an individual acts in such a way as to 
indicate a preference for a foreign country over the United States, then 
he or she may be prone to provide information or make decisions that are 
harmful to the interests of the United States.
    (b) Conditions that could raise a security concern and may be 
disqualifying include:
    (1) The exercise of dual citizenship;
    (2) Possession and/or use of a foreign passport;
    (3) Military service or a willingness to bear arms for a foreign 
country;
    (4) Accepting educational, medical, or other benefits, such as 
retirement and social welfare, from a foreign country;
    (5) Residence in a foreign country to meet citizenship requirements;
    (6) Using foreign citizenship to protect financial or business 
interests in another country;
    (7) Seeking or holding political office in the foreign country;
    (8) Voting in foreign elections;

[[Page 600]]

    (9) Performing or attempting to perform duties, or otherwise acting, 
so as to serve the interests of another government in preference to the 
interests of the United States.
    (c) Conditions that could mitigate security concerns include: (1) 
Dual citizenship is based solely on parents' citizenship or birth in a 
foreign country;
    (2) Indicators of possible foreign preference (e.g., foreign 
military service) occurred before obtaining United States citizenship;
    (3) Activity is sanctioned by the United States;
    (4) Individual has expressed a willingness to renounce dual 
citizenship.



Sec.  147.6  Guidance D--Sexual behavior.

    (a) The concern. Sexual behavior is a security concern if it 
involves a criminal offense, indicates a personality or emotional 
disorder, may subject the individual to coercion, exploitation, or 
duress, or reflects lack of judgment or discretion. \1\ Sexual 
orientation or preference may not be used as a basis for or a 
disqualifying factor in determining a person's eligibility for a 
security clearance.
---------------------------------------------------------------------------

    \1\ The adjudicator should also consider guidelines pertaining to 
criminal conduct (Guideline J) and emotional, mental and personality 
disorders (Guideline I) in determining how to resolve the security 
concerns raised by sexual behavior.
---------------------------------------------------------------------------

    (b) Conditions that could raise a security concern and may be 
disqualifying include: (1) Sexual behavior of a criminal nature, whether 
or not the individual has been prosecuted;
    (2) Compulsive or addictive sexual behavior when the person is 
unable to stop a pattern or self-destructive or high-risk behavior or 
that which is symptomatic of a personally disorder;
    (3) Sexual behavior that causes an individual to be vulnerable to 
coercion, exploitation, or duress;
    (4) Sexual behavior of a public nature and/or that which reflects 
lack of discretion or judgment.
    (c) Conditions that could mitigate security concerns include: (1) 
The behavior occurred during or prior to adolescence and there is no 
evidence of subsequent conduct of a similar nature;
    (2) The behavior was not recent and there is no evidence of 
subsequent conduct of a similar nature;
    (3) There is no other evidence of questionable judgment, 
irresponsibility, or emotional instability;
    (4) The behavior no longer serves as a basis for coercion, 
exploitation, or duress.



Sec.  147.7  Guideline E--Personal conduct.

    (a) The concern. Conduct involving questionable judgment, 
untrustworthiness, unreliability, lack of candor, dishonesty, or 
unwillingness to comply with rules and regulations could indicate that 
the person may not properly safeguard classified information. The 
following will normally result in an unfavorable clearance action or 
administrative termination of further processing for clearance 
eligibility:
    (1) Refusal to undergo or cooperate with required security 
processing, including medical and psychological testing;
    (2) Refusal to complete required security forms, releases, or 
provide full, frank and truthful answers to lawful questions of 
investigators, security officials or other representatives in connection 
with a personnel security or trustworthiness determination.
    (b) Conditions that could raise a security concern and may be 
disqualifying also include: (1) Reliable, unfavorable information 
provided by associates, employers, coworkers, neighbors, and other 
acquaintances;
    (2) The deliberate omission, concealment, or falsification of 
relevant and material facts from any personnel security questionnaire, 
personal history statement, or similar form used to conduct 
investigations, determine employment qualifications, award benefits or 
status, determine security clearance eligibility or trustworthiness, or 
award fiduciary responsibilities;
    (3) Deliberately providing false or misleading information 
concerning relevant and material matters to an investigator, security 
official, competent medical authority, or other representative in 
connection with a personnel security or trustworthiness determination;

[[Page 601]]

    (4) Personal conduct or concealment of information that may increase 
an individual's vulnerability to coercion, exploitation, or duties, such 
as engaging in activities which, if known, may affect the person's 
personal, professional, or community standing or render the person 
susceptible to blackmail;
    (5) A pattern of dishonesty or rule violations, including violation 
of any written or recorded agreement made between the individual and the 
agency;
    (6) Association with persons involved in criminal activity.
    (c) Conditions that could mitigate security concerns include: (1) 
The information was unsubstantiated or not pertinent to a determination 
of judgment, trustworthiness, or reliability;
    (2) The falsification was an isolated incident, was not recent, and 
the individual has subsequently provided correct information 
voluntarily;
    (3) The individual made prompt, good faith efforts to correct the 
falsification before being confronted with the facts;
    (4) Omission of material facts was caused or significantly 
contributed to by improper or inadequate advice of authorized personnel, 
and the previously omitted information was promptly and fully provided;
    (5) The individual has taken positive steps to significantly reduce 
or eliminate vulnerability to coercion, exploitation, or duress;
    (6) A refusal to cooperate was based on advice from legal counsel or 
other officials that the individual was not required to comply with 
security processing requirements and, upon being made aware of the 
requirement, fully and truthfully provided the requested information;
    (7) Association with persons involved in criminal activities has 
ceased.



Sec.  147.8  Guideline F--Financial considerations.

    (a) The concern. An individual who is financially overextended is at 
risk of having to engage in illegal acts to generate funds. Unexplained 
affluence is often linked to proceeds from financially profitable 
criminal acts.
    (b) Conditions that could raise a security concern and may be 
disqualifying include: (1) A history of not meeting financial 
obligations;
    (2) Deceptive or illegal financial practices such as embezzlement, 
employee theft, check fraud, income tax evasion, expense account fraud, 
filing deceptive loan statements, and other intentional financial 
breaches of trust;
    (3) Inability or unwillingness to satisfy debts;
    (4) Unexplained affluence;
    (5) Financial problems that are linked to gambling, drug abuse, 
alcoholism, or other issues of security concern.
    (c) Conditions that could mitigate security concerns include: (1) 
The behavior was not recent;
    (2) It was an isolated incident;
    (3) The conditions that resulted in the behavior were largely beyond 
the person's control (e.g., loss of employment, a business downtrun, 
unexpected medical emergency, or a death, divorce or separation);
    (4) The person has received or is receiving counseling for the 
problem and there are clear indications that the problem is being 
resolved or is under control;
    (5) The affluence resulted from a legal source;
    (6) The individual initiated a good-faith effort to repay overdue 
creditors or otherwise resolve debts.



Sec.  147.9  Guideline G--Alcohol consumption.

    (a) The concern. Excessive alcohol consumption often leads to the 
exercise of questionable judgment, unreliability, failure to control 
impulses, and increases the risk of unauthorized disclosure of 
classified information due to carelessness.
    (b) Conditions that could raise a security concern and may be 
disqualifying include: (1) Alcohol-related incidents away from work, 
such as driving while under the influence, fighting, child or spouse 
abuse, or other criminal incidents related to alcohol use;
    (2) Alcohol-related incidents at work, such as reporting for work or 
duty in an intoxicated or impaired condition, or drinking on the job;

[[Page 602]]

    (3) Diagnosis by a credentialed medical professional (e.g., 
physician, clinical psychologist, or psychiatrist) of alcohol abuse or 
alcohol dependence;
    (4) Evaluation of alcohol abuse or alcohol dependence by a licensed 
clinical social worker who is a staff member of a recognized alcohol 
treatment program;
    (5) Habitual or binge consumption of alcohol to the point of 
impaired judgment;
    (6) Consumption of alcohol, subsequent to a diagnosis of alcoholism 
by a credentialed medical professional and following completion of an 
alcohol rehabilitation program.
    (c) Conditions that could mitigate security concerns include: (1) 
The alcohol related incidents do not indicate a pattern;
    (2) The problem occurred a number of years ago and there is no 
indication of a recent problem;
    (3) Positive changes in behavior supportive of sobriety;
    (4) Following diagnosis of alcohol abuse or alcohol dependence, the 
individual has successfully completed impatient or outpatient 
rehabilitation along with aftercare requirements, participates 
frequently in meetings of Alcoholics Anonymous or a similar 
organization, has abstained from alcohol for a period of at least 12 
months, and received a favorable prognosis by a credentialed medical 
professional or a licensed clinical social worker who is a staff member 
of a recognized alcohol treatment program.



Sec.  147.10  Guideline H--Drug involvement.

    (a) The concern. (1) Improper or illegal involvement with drugs 
raises questions regarding an individual's willingness or ability to 
protect classified information. Drug abuse or dependence may impair 
social or occupational functioning, increasing the risk of an 
unauthorized disclosure of classified information.
    (2) Drugs are defined as mood and behavior altering substances, and 
include:
    (i) Drugs, materials, and other chemical compounds identified and 
listed in the Controlled Substances Act of 1970, as amended (e.g., 
marijuana or cannabis, depressants, narcotics, stimulants, and 
hallucinogens),
    (ii) Inhalants and other similar substances.
    (3) Drug abuse is the illegal use of a drug or use of a legal drug 
in a manner that deviates from approved medical direction.
    (b) Conditions that could raise a security concern and may be 
disqualifying include: (1) Any drug abuse (see above definition);
    (2) Illegal drug possession, including cultivation, processing, 
manufacture, purchase, sale, or distribution;
    (3) Diagnosis by a credentialed medical professional (e.g., 
physician, clinical psychologist, or psychiatrist) of drug abuse or drug 
dependence;
    (4) Evaluation of drug abuse or drug dependence by a licensed 
clinical social worker who is a staff member of a recognized drug 
treatment program;
    (5) Failure to successfully complete a drug treatment program 
prescribed by a credentialed medical professional. Recent drug 
involvement, especially following the granting of a security clearance, 
or an expressed intent not to discontinue use, will almost invariably 
result in an unfavorable determination.
    (c) Conditions that could mitigate security concerns include: (1) 
The drug involvement was not recent;
    (2) The drug involvement was an isolated or aberration event;
    (3) A demonstrated intent not to abuse any drugs in the future;
    (4) Satisfactory completion of a prescribed drug treatment program, 
including rehabilitation and aftercare requirements, without recurrence 
of abuse, and a favorable prognosis by a credentialed medical 
professional.



Sec.  147.11  Guideline I--Emotional, mental, and personality disorders.

    (a) The concern: Emotional, mental, and personality disorders can 
cause a significant deficit in an individual's psychological, social and 
occupation functioning. These disorders are of security concern because 
they may indicate a defect in judgment, reliability, or stability. A 
credentialed mental health professional (e.g., clinical psychologist or 
psychiatrist), employed by, acceptable to or approved by the

[[Page 603]]

government, should be utilized in evaluating potentially disqualifying 
and mitigating information fully and properly, and particularly for 
consultation with the individual's mental health care provider.
    (b) Conditions that could raise a security concern and may be 
disqualifying include: (1) An opinion by a credentialed mental health 
professional that the individual has a condition or treatment that may 
indicate a defect in judgment, reliability, or stability;
    (2) Information that suggests that an individual has failed to 
follow appropriate medical advice relating to treatment of a condition, 
e.g., failure to take prescribed medication;
    (3) A pattern of high-risk, irresponsible, aggressive, anti-social 
or emotionally unstable behavior;
    (4) Information that suggests that the individual's current behavior 
indicates a defect in his or her judgment or reliability.
    (c) Conditions that could mitigate security concerns include: (1) 
There is no indication of a current problem;
    (2) Recent opinion by a credentialed mental health professional that 
an individual's previous emotional, mental, or personality disorder is 
cured, under control or in remission and has a low probability of 
recurrence or exacerbation;
    (3) The past emotional instability was a temporary condition (e.g., 
one caused by a death, illness, or marital breakup), the situation has 
been resolved, and the individual is no longer emotionally unstable.



Sec.  147.12  Guideline J--Criminal conduct.

    (a) The concern. A history or pattern of criminal activity creates 
doubt about a person's judgment, reliability and trustworthiness.
    (b) Conditions that could raise a security concern and may be 
disqualifying include: (1) Allegations or admissions of criminal 
conduct, regardless of whether the person was formally charged;
    (2) A single serious crime or multiple lesser offenses.
    (c) Conditions that could mitigate security concerns include: (1) 
The criminal behavior was not recent;
    (2) The crime was an isolated incident;
    (3) The person was pressured or coerced into committing the act and 
those pressures are no longer present in that person's life;
    (4) The person did not voluntarily commit the act and/or the factors 
leading to the violation are not likely to recur;
    (5) Acquittal;
    (6) There is clear evidence of successful rehabilitation.



Sec.  147.13  Guideline K--Security violations.

    (a) The concern. Noncompliance with security regulations raises 
doubt about an individual's trustworthiness, willingness, and ability to 
safeguard classified information.
    (b) Conditions that could raise a security concern and may be 
disqualifying include. (1) Unauthorized disclosure of classified 
information;
    (2) Violations that are deliberate or multiple or due to negligence.
    (c) Conditions that could mitigate security concerns include actions 
that: (1) Were inadvertent;
    (2) Were isolated or infrequent;
    (3) Were due to improper or inadequate training;
    (4) Demonstrate a positive attitude towards the discharge of 
security responsibilities.



Sec.  147.14  Guideline L--Outside activities.

    (a) The concern. Involvement in certain types of outside employment 
or activities is of security concern if it poses a conflict with an 
individual's security responsibilities and could create an increased 
risk of unauthorized disclosure of classified information.
    (b) Conditions that could raise a security concern and may be 
disqualifying include any service, whether compensated, volunteer, or 
employment with: (1) A foreign country;
    (2) Any foreign national;
    (3) A representative of any foreign interest;

[[Page 604]]

    (4) Any foreign, domestic, or international organization or person 
engaged in analysis, discussion, or publication of material on 
intelligence, defense, foreign affairs, or protected technology.
    (c) Conditions that could mitigate security concerns include: (1) 
Evaluation of the outside employment or activity indicates that it does 
not pose a conflict with an individual's security responsibilities;
    (2) The individual terminates the employment or discontinues the 
activity upon being notified that it is in conflict with his or her 
security responsibilities.



Sec.  147.15  Guideline M--Misuse of Information technology systems.

    (a) The concern. Noncompliance with rules, procedures, guidelines, 
or regulations pertaining to information technology systems may raise 
security concerns about an individual's trustworthiness, willingness, 
and ability to properly protect classified systems, networks, and 
information. Information Technology Systems include all related 
equipment used for the communication, transmission, processing, 
manipulation, and storage of classified or sensitive information.
    (b) Conditions that could raise a security concern and may be 
disqualifying include: (1) Illegal or unauthorized entry into any 
information technology system;
    (2) Illegal or unauthorized modification, destruction, manipulation 
or denial of access to information residing on an information technology 
system;
    (3) Removal (or use) of hardware, software, or media from any 
information technology system without authorization, when specifically 
prohibited by rules, procedures, guidelines or regulations;
    (4) Introduction of hardware, software, or media into any 
information technology system without authorization, when specifically 
prohibited by rules, procedures, guidelines or regulations.
    (c) Conditions that could mitigate security concerns include: (1) 
The misuse was not recent or significant;
    (2) The conduct was unintentional or inadvertent;
    (3) The introduction or removal of media was authorized;
    (4) The misuse was an isolated event;
    (5) The misuse was followed by a prompt, good faith effort to 
correct the situation.



                    Subpart B_Investigative Standards



Sec.  147.18  Introduction.

    The following investigative standards are established for all United 
States Government civilian and military personnel, consultants, 
contractors, employees of contractors, licensees, certificate holders or 
grantees and their employees and other individuals who require access to 
classified information, to include Sensitive Compartmented Information 
and Special Access Programs, and are to be used by government 
departments and agencies as the investigative basis for final clearance 
determinations. However, nothing in these standards prohibits an agency 
from using any lawful investigative procedures in addition to these 
requirements in order to resolve any issue identified in the course of a 
background investigation or reinvestigation.



Sec.  147.19  The three standards.

    There are three standards (Attachment D to this subpart part 
summarizes when to use each one):
    (a) The investigation and reinvestigation standards for ``L'' access 
authorizations and for access to confidential and secret (including all 
secret-level Special Access Programs not specifically approved for 
enhanced investigative requirements by an official authorized to 
establish Special Access Programs by section in 4.4 of Executive Order 
12958) (60 FR 19825, 3 CFR 1995 Comp., p. 33);
    (b) The investigation standard for ``Q'' access authorizations and 
for access to top secret (including top secret Special Access Programs) 
and Sensitive Compartmented Information;
    (c) The reinvestigation standard for continued access to the levels 
listed in paragraph (b) of this section.

[[Page 605]]



Sec.  147.20  Exception to periods of coverage.

    Some elements of standards specify a period of coverage (e.g. seven 
years). Where appropriate, such coverage may be shortened to the period 
from the subject's eighteenth birthday to the present or to two years, 
whichever is longer.



Sec.  147.21  Expanding investigations.

    Investigations and reinvestigations may be expanded under the 
provisions of Executive Order 12968 (60 FR 40245, 3 CFR 1995 Comp., p. 
391) and other applicable statutes and Executive Orders.



Sec.  147.22  Transferability.

    Investigations that satisfy the requirements of a given standard and 
are current meet the investigative requirements for all levels specified 
for the standard. They shall be mutually and reciprocally accepted by 
all agencies.



Sec.  147.23  Breaks in service.

    If a person who requires access has been retired or separated from 
U.S. government employment for less than two years and is the subject of 
an investigation that is otherwise current, the agency regranting the 
access will, as a minimum, review an updated Standard Form 86 and 
applicable records. A reinvestigation is not required unless the review 
indicates the person may no longer satisfy the standards of Executive 
Order 12968 (60 FR 40245, 3 CFR 1995 Comp., p. 391); (Attachment D to 
this subpart, Table 2).



Sec.  147.24  The national agency check.

    The National Agency Check is a part of all investigations and 
reinvestigations. It consists of a review of;
    (a) Investigative and criminal history files of the FBI, including a 
technical fingerprint search;
    (b) OPM's Security/Suitability Investigations Index;
    (c) DoD's Defense Clearance and Investigations Index;
    (d) Such other national agencies (e.g., CIA, INS) as appropriate to 
the individual's background.



Sec. Attachment A to Subpart B of Part 147--Standard A--National Agency 
         Check With Local Agency Checks and Credit Check (NACLC)

    (a) Applicability. Standard A applies to investigations and 
reinvestigations for;
    (1) Access to CONFIDENTIAL and SECRET (including all SECRET-level 
Special Access Programs not specifically approved for enhanced 
investigative requirements by an official authorized to establish 
Special Access Programs by sect. 4.4 of Executive Order 12958) (60 FR 
19825, 3 CFR 1995 Comp., p. 333);
    (2) ``L'' access authorizations.
    (b) For Reinvestigation: When to Reinvestigate. The reinvestigation 
may be initiated at any time following completion of, but not later than 
ten years (fifteen years for CONFIDENTIAL) from the date of, the 
previous investigation or reinvestigation. (Attachment D to this 
subpart, Table 2, reflects the specific requirements for when to request 
a reinvestigation, including when there has been a break in service.)
    (c) Investigative Requirements. Investigative requirements are as 
follows:
    (1) Completion of Forms: Completion of Standard Form 86, including 
applicable releases and supporting documentation.
    (2) National Agency Check: Completion of a National Agency Check.
    (3) Financial Review: Verification of the subject's financial 
status, including credit bureau checks covering all locations where the 
subject has resided, been employed, or attended school for six months or 
more for the past seven years.
    (4) Date and Place of Birth: Corroboration of date and place of 
birth through a check of appropriate documentation, if not completed in 
any previous investigation; a check of Bureau of Vital Statistics 
records when any discrepancy is found to exist.
    (5) Local Agency Checks: As a minimum, all investigations will 
include checks of law enforcement agencies having jurisdiction where the 
subject has lived, worked, and/or attended school within the last five 
years, and, if applicable, of the appropriate agency for any identified 
arrests.
    (d) Expanding the Investigation: The investigation may be expanded 
if necessary to determine if access is clearly consistent with the 
national security.



  Sec. Attachment B to Subpart B of Part 147--Standard B--Single Scope 
                     Background Investigation (SSBI)

    (a) Applicability. Standard B applies to initial investigations for;
    (1) Access to TOP SECRET (including TOP SECRET Special Access 
Programs) and Sensitive Compartment Information;

[[Page 606]]

    (2) ``Q'' access authorizations.
    (b) Investigative Requirements. Investigative requirements are as 
follows:
    (1) Completion of Forms: Completion of Standard Form 86, including 
applicable releases and supporting documentation.
    (2) National Agency Check: Completion of a National Agency Check.
    (3) National Agency Check for the Spouse or Cohabitant (if 
applicable): Completion of a National Agency Check, without fingerprint 
cards, for the spouse or cohabitant.
    (4) Date and Place of Birth: Corroboration of date and place of 
birth through a check of appropriate documentation; a check of Bureau of 
Vital Statistics records when any discrepancy is found to exist.
    (5) Citizenship: For individuals born outside the United States, 
verification of US citizenship directly from the appropriate 
registration authority; verification of US citizenship or legal status 
of foreign-born immediate family members (spouse, cohabitant, father, 
mother, sons, daughters, brothers, sisters).
    (6) Education: Corroboration of most recent or most significant 
claimed attendance, degree, or diploma. Interviews of appropriate 
educational sources if education is a primary activity of the subject 
during the most recent three years.
    (7) Employment: Verification of all employments for the past seven 
years; personal interviews of sources (supervisors, coworkers, or both) 
for each employment of six months or more; corroboration through records 
or sources of all periods of unemployment exceeding sixty days; 
verification of all prior federal and military service, including 
discharge type. For military members, all service within one branch of 
the armed forces will be considered as one employment, regardless of 
assignments.
    (8) References: Four references, of whom at least two are developed; 
to the extent practicable, all should have social knowledge of the 
subject and collectively span at least the last seven years.
    (9) Former Spouse: An interview of any former spouse divorced within 
the last ten years.
    (10) Neighborhoods: Confirmation of all residences for the last 
three years through appropriate interviews with neighbors and through 
records reviews.
    (11) Financial Review: Verification of the subject's financial 
status, including credit bureau checks covering all locations where 
subject has resided, been employed, and/or attended school for six 
months or more for the last seven years.
    (12) Local Agency Checks: A check of appropriate criminal history 
records covering all locations where, for the last ten years, the 
subject has resided, been employed, and/or attended school for six 
months or more, including current residence regardless of duration.

    Note: If no residence, employment, or education exceeds six months, 
local agency checks should be performed as deemed appropriate.

    (13) Public Records: Verification of divorces, bankruptcies, and 
other court actions, whether civil or criminal, involving the subject.
    (14) Subject Interview: A subject interview, conducted by trained 
security, investigative, or counterintelligence personnel. During the 
investigation, additional subject interviews may be conducted to collect 
relevant information, to resolve significant inconsistencies, or both. 
Sworn statements and unsworn declarations may be taken whenever 
appropriate.
    (15) Polygraph (only in agencies with approved personnel security 
polygraph programs): In departments or agencies with policies 
sanctioning the use of the polygraph for personnel security purposes, 
the investigation may include a polygraph examination, conducted by a 
qualified polygraph examiner.
    (c) Expanding the Investigation. The investigation may be expanded 
as necessary. As appropriate, interviews with anyone able to provide 
information or to resolve issues, including but not limited to 
cohabitants, relatives, psychiatrists, psychologists, other medical 
professionals, and law enforcement professionals may be conducted.



  Sec. Attachment C to Subpart B of Part 147--Standard C--Single Scope 
       Background Investigation Periodic Reinvestigation (SSBI-PR)

    (a) Applicability. Standard C applies to reinvestigation for;
    (1) Access to TOP SECRET (including TOP SECRET Special Access 
Programs) and Sensitive Compartmented Information;
    (2) ``Q'' access authorizations.
    (b) When to Reinvestigate. The reinvestigation may be initiated at 
any time following completion of, but not later than five years from the 
date of, the previous investigation (see Attachment D to this subpart, 
Table 2).
    (c) Reinvestigative Requirements. Reinvestigative requirements are 
as follows:
    (1) Completion of Forms: Completion of Standard Form 86, including 
applicable releases and supporting documentation.
    (2) National Agency Check: Completion of a National Agency Check 
(fingerprint cards are required only if there has not been a previous 
valid technical check of the FBI).
    (3) National Agency Check for the Spouse or Cohabitant (if 
applicable): Completion of a National Agency Check, without fingerprint 
cards, for the spouse or cohabitant. The National Agency Check for the 
spouse or cohabitant is not required if already completed in conjunction 
with a previous investigation or reinvestigation.

[[Page 607]]

    (4) Employment: Verification of all employments since the last 
investigation. Attempts to interview a sufficient number of sources 
(supervisors, coworkers, or both) at all employments of six months or 
more. For military members, all services within one branch of the armed 
forces will be considered as one employment, regardless of assignments.
    (5) References: Interviews with two character references who are 
knowledgeable of the subject; at least one will be a developed 
reference. To the extent practical, both should have social knowledge of 
the subject and collectively span the entire period of the 
reinvestigation. As appropriate, additional interviews may be conducted, 
including with cohabitants and relatives.
    (6) Neighborhoods: Interviews of two neighbors in the vicinity of 
the subject's most recent residence of six months or more. Confirmation 
of current residence regardless of length.
    (7) Financial Review--Financial Status: Verification of the 
subject's financial status, including credit bureau checks covering all 
locations where subject has resided, been employed, and/or attended 
school for six months or more for the period covered by the 
reinvestigation;
    (ii) Check of Treasury's Financial Data Base: Agencies may request 
the Department of the Treasury, under terms and conditions prescribed by 
the Secretary of the Treasury, to search automated data bases consisting 
of reports of currency transactions by financial institutions, 
international transportation of currency or monetary instruments, 
foreign bank and financial accounts, and transactions under $10,000 that 
are reported as possible money laundering violations.
    (8) Local Agency Checks: A check of appropriate criminal history 
records covering all locations where, during the period covered by the 
reinvestigation, the subject has resided, been employed, and/or attended 
school for six months or more, including current residence regardless of 
duration. (Note: If no residence, employment, or education exceeds six 
months, local agency checks should be performed as deemed appropriate.)
    (9) Former Spouse: An interview with any former spouse unless the 
divorce took place before the date of the last investigation or 
reinvestigation.
    (10) Public Records: Verification of divorces, bankruptcies, and 
other court actions, whether civil or criminal, involving the subject 
since the date of the last investigation.
    (11) Subject Interview: A subject interview, conducted by trained 
security, investigative, or counterintelligence personnel. During the 
reinvestigation, additional subject interviews may be conducted to 
collect relevant information, to resolve significant inconsistencies, or 
both. Sworn statements and unsworn declarations may be taken whenever 
appropriate.
    (d) Expanding the Reinvestigation: The reinvestigation may be 
expanded as necessary. As appropriate, interviews with anyone able to 
provide information or to resolve issues, including but not limited to 
cohabitants, relatives, psychiatrists, psychologists, other medical 
professionals, and law enforcement professionals may be conducted.



       Sec. Attachment D to Subpart B of Part 147--Decision Tables

                                     Table 1--Which Investigation to Request
----------------------------------------------------------------------------------------------------------------
                                 And the person has     Based on this    Then the investigation
   If the requirement is for         this access        investigation          required is        Using standard
----------------------------------------------------------------------------------------------------------------
Confidental Secret; ``L''......  None..............  None..............  NACLC.................  A
                                                     Out of date NACLC
                                                      or SSBI.
                                 Conf, Sec; ``L''
Top Secret, SCI; ``Q''.........  None..............  None..............  SSBI..................  B
                                 None; Conf, Sec;    Current or out of
                                  ``L''.              date NACLC
                                                     Out of date SSBI
                                 TS, SCI; ``Q''....                      SSBI-PR...............  C
----------------------------------------------------------------------------------------------------------------


                                      Table 2--Reinvestigation Requirements
----------------------------------------------------------------------------------------------------------------
                                                                     Type required if there has been a break in
                                           And the age of the                        service of
      If the requirement is for             investigation is       ---------------------------------------------
                                                                          0-23 months         24 month's or more
----------------------------------------------------------------------------------------------------------------
Confidential........................  0 to 14 years. 11 mos.......  None (note 1)..........  NACLC
                                      15 yrs. or more.............  NACLC..................
Secret; ``L''.......................  0 to 9 yrs 11 mos...........  None (note 1)..........
                                      10 yrs. or more.............  NACLC
Top Secret, SCI; ``Q''..............  0 to 4 yrs. 11 mos..........  None (note 1)..........  SSBI

[[Page 608]]

 
                                      5 yrs or more...............  SSBI-PR................
----------------------------------------------------------------------------------------------------------------
Note: As a minimum, review an updated Standard Form 84 and applicable records. A reinvestigation (NACLC or SSBI-
  PR) is not required unless the review indicates the person may no longer satisfy the standards of Executive
  Order 12968.

                Subpart C_Guidelines for Temporary Access

Sec.  147.28  Introduction.

    The following minimum investigative standards, implementing section 
3.3 of Executive Order 12968, Access to Classified Information, are 
established for all United States Government and military personnel, 
consultants, contractors, subcontractors, employees of contractors, 
licensees, certificate holders or grantees and their employees and other 
individuals who require access to classified information before the 
appropriate investigation can be completed and a final determination 
made.

Sec.  147.29  Temporary eligibility for access.

    Based on a justified need meeting the requirements of section 3.3 of 
Executive Order 12968, temporary eligibility for access may be granted 
before investigations are complete and favorably adjudicated, where 
official functions must be performed prior to completion of the 
investigation and adjudication process. The temporary eligibility will 
be valid until completion of the investigation and adjudication; 
however, the agency granting it may revoke it at any time based on 
unfavorable information identified in the course of the investigation.

Sec.  147.30  Temporary eligibility for access at the confidential and 
          secret levels and temporary eligibility for ``L'' access 
          authorization.

    As a minimum, such temporary eligibility requires completion of the 
Standard Form 86, including any applicable supporting documentation, 
favorable review of the form by the appropriate adjudicating authority, 
and submission of a request for an expedited National Agency Check with 
Local Agency Checks and Credit (NACLC).

Sec.  147.31  Temporary eligibility for access at the top secret levels 
          and temporary eligibility for ``Q'' access authorization: For 
          someone who is the subject of a favorable investigation not 
          meeting the investigative standards for access at those 
          levels.

    As a minimum, such temporary eligibility requires completion of the 
Standard Form 86, including any applicable supporting documentation, 
favorable review of the form by the appropriate adjudicating authority, 
and expedited submission of a request for a Single Scope Background 
Investigation (SSBI).

Sec.  147.32  Temporary eligibility for access at the top secret and SCI 
          levels and temporary eligibility for ``Q'' access 
          authorization: For someone who is not the subject of a 
          current, favorable personnel or personnel-security 
          investigation of any kind.

    As a minimum, such temporary eligibility requires completion of the 
Standard Form 86, including any applicable supporting documentation, 
favorable review of the form by the appropriate adjudicating authority, 
immediate submission of a request for an expedited Single Scope 
Background Investigation (SSBI), and completion and favorable review by 
the appropriate adjudicating authority of relevant criminal history and 
investigative records of the Federal Bureau of Investigation and of 
information in the Security/Suitability Investigations Index (SII) and 
the Defense Clearance and Investigations Index (DCII).

Sec.  147.33  Additional requirements by agencies.

    Temporary eligibility for access must satisfy these minimum 
investigative standards, but agency heads may

[[Page 609]]

establish additional requirements based on the sensitivity of the 
particular, identified categories of classified information necessary to 
perform the lawful and authorized functions that are the basis for 
granting temporary eligibility for access. However, no additional 
requirements shall exceed the common standards for background 
investigations developed under section 3.2(b) of Executive Order 12968. 
Temporary eligibility for access is valid only at the agency granting it 
and at other agencies who expressly agree to accept it and acknowledge 
understanding of its investigative basis. It is further subject to 
limitations specified in sections 2.4(d) and 3.3 of Executive Order 
12968, Access to Classified Information.



PART 148_NATIONAL POLICY AND IMPLEMENTATION OF RECIPROCITY OF FACILITIES

   Subpart A_National Policy on Reciprocity of Use and Inspections of 
                               Facilities

Sec.
148.1 Interagency reciprocal acceptance.
148.2 Classified programs.
148.3 Security review.
148.4 Policy documentation.
148.5 Identification of the security policy board.
148.6 Agency review.

Subpart B_Guidelines for the Implementation and Oversight of the Policy 
           on Reciprocity of Use and Inspections of Facilities

148.10 General.
148.11 Policy.
148.12 Definitions.
148.13 Responsibilities.
148.14 Procedures.

    Authority: E.O. 12968 (60 FR 40245, 3 CFR 1995 Comp., p. 391.)

    Source: 63 FR 4580, Jan. 30, 1998, unless otherwise noted.



   Subpart A_National Policy on Reciprocity of Use and Inspections of 
                               Facilities



Sec.  148.1  Interagency reciprocal acceptance .

    Interagency reciprocal acceptance of security policies and 
procedures for approving, accrediting, and maintaining the secure 
posture of shared facilities will reduce aggregate costs, promote 
interoperability of agency security systems, preserve vitality of the 
U.S. industrial base, and advance national security objectives.



Sec.  148.2  Classified programs.

    Once a facility is authorized, approved, certified, or accredited, 
all U.S. Government organizations desiring to conduct classified 
programs at the facility at the same security level shall accept the 
authorization, approval, certification, or accreditation without change, 
enhancements, or upgrades. Executive Order, Safeguarding Directives, 
National Industrial Security Program Operating Manual (NISPOM), the 
NISPOM Supplement, the Director of Central Intelligence Directives, 
interagency agreements, successor documents, or other mutually agreed 
upon methods shall be the basis for such acceptance.



Sec.  148.3  Security review.

    After initial security authorization, approval, certification, or 
accreditation, subsequent security reviews shall normally be conducted 
no more frequently than annually.
    Additionally, such reviews shall be aperiodic or random, and be 
based upon risk management principles. Security reviews may be conducted 
``for cause'', to follow up on previous findings, or to accomplish 
close-out actions. Visits may be made to a facility to conduct security 
support actions, administrative inquiries, program reviews, and 
approvals as deemed appropriate by the cognizant security authority or 
agency.



Sec.  148.4  Policy documentation.

    Agency heads shall ensure that any policy documents their agency 
issues setting out facilities security policies and procedures 
incorporate the policy set out herein, and that such policies are 
reasonable, effective, efficient, and enable and promote interagency 
reciprocity.

[[Page 610]]



Sec.  148.5  Identification of the security policy board.

    Agencies which authorize, approve, certify, or accredit facilities 
shall provide to the Security Policy Board Staff a points of contact 
list to include names and telephone numbers of personnel to be contacted 
for verification of authorized, approved, certified, or accredited 
facility status. The Security Policy Board Staff will publish a 
comprehensive directory of points of contact.



Sec.  148.6  Agency review.

    Agencies will continue to review and assess the potential value 
added to the process of co-use of facilities by development of 
electronic data retrieval across government. As this review continues, 
agencies creating or modifying facilities databases will do so in a 
manner which facilitates community data sharing, interest of national 
defense or foreign policy.



Subpart B_Guidelines for the Implementation and Oversight of the Policy 
           on Reciprocity of use and Inspections of Facilities



Sec.  148.10  General.

    (a) Redundant, overlapping, and duplicative policies and practices 
that govern the co-use of facilities for classified purposes have 
resulted in excessive protection and unnecessary expenditure of funds. 
Lack of reciprocity has also impeded achievement of national security 
objectives and adversely affected economic and technological interest.
    (b) Interagency reciprocal acceptance of security policies and 
procedures for approving, accrediting, and maintaining the secure 
posture of shared facilities will reduce the aggregate costs, promote 
interoperability of agency security systems, preserve the vitality of 
the U.S. industrial base, and advance national security objectives.
    (c) Agency heads, or their designee, are encouraged to periodically 
issue written affirmations in support of the policies and procedures 
prescribed herein and in the Security Policy Board (SPB) policy, 
entitled ``Reciprocity of Use and Inspections of Facilities.''
    (d) The policies and procedures prescribed herein shall be 
applicable to all agencies. This document does not supersede the 
authority of the Secretary of Defense under Executive Order 12829 (58 FR 
3479, 3 CFR 1993 Comp., p. 570); the Secretary of Energy or the Chairman 
of the Nuclear Regulatory Commission under the Atomic Energy Act of 
1954, as amended; the Secretary of State under the Omnibus Diplomatic 
Security and Anti-Terrorism Act of 1986; the Secretaries of the military 
departments and military department installation Commanders under the 
Internal Security Act of 1950; the Director of Central Intelligence 
under the National Security Act of 1947, as amended, or Executive Order 
12333; the Director of the Information Security Oversight Office under 
Executive Order 12829 or Executive Order 12958 (60 FR 19825, 3 CFR 1995 
Comp., p. 333); or substantially similar authority instruments assigned 
to any other agency head.



Sec.  148.11  Policy.

    (a) Agency heads, or their designee, shall ensure that security 
policies and procedures for which they are responsible are reasonable, 
effective, and efficient, and that those policies and procedures enable 
and promote interagency reciprocity.
    (b) To the extent reasonable and practical, and consistent with US 
law, Presidential decree, and bilateral and international obligations of 
the United States, the security requirements, restrictions, and 
safeguards applicable to industry shall be equivalent to those 
applicable within the Executive Branch of government.
    (c) Once a facility is authorized approved, certified, or 
accredited, all government organizations desiring to conduct classified 
programs at the facility at the same security level shall accept the 
authorization, approval, certification, or accreditation without change, 
enhancements, or upgrades.



Sec.  148.12  Definitions.

    Agency. Any ``executive agency,'' as defined in 5 U.S.C. 105; any 
``Military department'' as defined in 5 U.S.C. 102;

[[Page 611]]

and any other entity within the Executive Branch that comes into 
possession of classified information.
    Classified Information. All information that requires protection 
under Executive Order 12958, or any of its antecedent orders, and the 
Atomic Energy Act of 1954, as amended.
    Cognizant Security Agency (CSA). Those agencies that have been 
authorized by Executive Order 12829 to establish an industrial security 
program for the purpose of safeguarding classified information disclosed 
or released to industry.
    Cognizant Security Office (CSO). The office or offices delegated by 
the head of a CSA to administer industrial security in a contractor's 
facility on behalf of the CSA.
    Facility. An activity of a government agency or cleared contractor 
authorized by appropriate authority to conduct classified operations or 
to perform classified work.
    Industry. Contractors, licensees, grantees, and certificate holders 
obligated by contract or other written agreement to protect classified 
information under the National Industrial Security Program.
    National Security. The national defense and foreign relations of the 
United States.
    Senior Agency Official. Those officials, pursuant to Executive Order 
12958, designated by the agency head who are assigned the responsibility 
to direct and administer the agency's information security program.



Sec.  148.13  Responsibilities.

    (a) Each Senior Agency Official shall ensure that adequate 
reciprocity provisions are incorporated within his or her regulatory 
issuances that prescribe agency safeguards for protecting classified 
information.
    (b) Each Senior Agency Official shall develop, implement, and 
oversee a program that ensures agency personnel adhere to the policies 
and procedures prescribed herein and the reciprocity provisions of the 
National Industrial Security Program Operating Manual (NISPOM).
    (c) Each Senior Agency Official must ensure that implementation 
encourages reporting of instances of non-compliance, without fear of 
reprisal, and each reported instance is aggressively acted upon.
    (d) The Director, Information Security Oversight Office (ISOO), 
consistent with his assigned responsibilities under Executive Order 
12829, serves as the central point of contact within Government to 
consider and take action on complaints and suggestions from industry 
concerning alleged violations of the reciprocity provisions of the 
NISPOM.
    (e) The Director, Security Policy Board Staff (D/SPBS) or his/her 
designee, shall serve as the central point of contact within Government 
to receive from Federal Government employees alleged violations of the 
reciprocity provisions prescribed herein and the policy ``Reciprocity of 
Use and Inspections of Facilities'' of the SPB.



Sec.  148.14  Procedures.

    (a) Agencies that authorize, approve, certify, or accredit 
facilities shall provide to the SPB Staff a points of contact list to 
include names and telephone numbers of personnel to be contacted for 
verification of the status of facilities. The SPB Staff will publish a 
comprehensive directory of agency points of contact.
    (b) After initial security authorization, approval, certification, 
or accreditation, subsequent reviews shall normally be conducted no more 
frequently than annually. Additionally, such reviews shall be aperiodic 
or random, and be based upon risk-management principles. Security 
Reviews may be conducted ``for cause'', to follow up on previous 
findings, or to accomplish close-out actions.
    (c) The procedures employed to maximize interagency reciprocity 
shall be based primarily upon existing organizational reporting 
channels. These channels should be used to address alleged departures 
from established reciprocity requirements and should resolve all, 
including the most egregious instances of non-compliance.
    (d) Two complementary mechanisms are hereby established to augment 
existing organizational channels: (1) An accessible and responsive venue 
for reporting and resolving complaints/reported instances of non-
compliance.

[[Page 612]]

Government and industry reporting channels shall be as follows:
    (1) Governnment. (A) Agency employees are encouraged to bring 
suspected departures from applicable reciprocity requirements to the 
attention of the appropriate security authority in accordance with 
established agency procedures.
    (B) Should the matter remain unresolved, the complainant (employee, 
Security Officer, Special Security Officer, or similar official) is 
encouraged to report the matter formally to the Senior Agency Official 
for resolution.
    (C) Should the Senior Agency Official response be determined 
inadequate by the complainant, the matter should be reported formally to 
the Director, Security Policy Board Staff (D/SPBS). The D/SPBS, may 
revisit the matter with the Senior Agency Official or refer the matter 
to the Security Policy Forum as deemed appropriate.
    (D) Should the matter remain unresolved, the Security Policy Forum 
may consider referral to the SPB, the agency head, or the National 
Security Council as deemed appropriate.
    (ii) Industry. (A) Contractor employees are encouraged to bring 
suspected departures from the reciprocity provisions of the NISPOM to 
the attention to their Facility Security Officer (FSO) or Contractor 
Special Security Officer (CSSO), as appropriate, for resolution.
    (B) Should the matter remain unresolved, the complainant (employee, 
FSO, or CSSO) is encouraged to report the matter formally to the 
Cognizant Security Office (CSO) for resolution.
    (C) Should the CSO responses be determined inadequate by the 
complainant, the matter should be reported formally to the Senior Agency 
Official within the Cognizant Security Agency (CSA) for resolution.
    (D) Should the Senior Agency Official response be determined 
inadequately by the complainant, the matter should be reported formally 
to the Director, information Security Oversight Office (ISOO) for 
resolution.
    (E) The Director, ISOO, may revisit the matter with the Senior 
Agency Official or refer the matter to the agency head or the National 
Security Council as deemed appropriate.
    (2) An annual survey administered to a representative sampling of 
agency and private sector facilities to assess overall effectiveness of 
agency adherence to applicable reciprocity requirements.
    (i) In coordination with the D/SPBS, the Director, ISOO, as Chairman 
of the NISP Policy Advisory Committee (NISPPAC), shall develop and 
administer an annual survey to a representative number of cleared 
contractor activities/employees to assess the effectiveness of 
interagency reciprocity implementation. Administration of the survey 
shall be coordinated fully with each affected Senior Agency Official.
    (ii) In coordination with the NISPPAC, the D/SPBS shall develop and 
administer an annual survey to a representative number of agency 
activities/personnel to assess the effectiveness of interagency 
reciprocity implementation. Administration of the survey shall be 
coordinated fully with each affected Senior Agency Official.
    (iii) The goal of annual surveys should not be punitive but 
educational. All agencies and departments have participated in the 
crafting of these facilities policies, therefore, non-compliance is a 
matter of internal education and direction.
    (e) Agencies will continue to review and assess the potential value 
added to the process of co-use of facilities by development of 
electronic data retrieval across government.

[[Page 613]]



         SUBCHAPTER E_REGULATIONS PERTAINING TO MILITARY JUSTICE





PART 150_COURTS OF CRIMINAL APPEALS RULES OF PRACTICE AND PROCEDURE-
-Table of Contents



Sec.
150.1 Name and seal.
150.2 Jurisdiction.
150.3 Scope of review.
150.4 Quorum.
150.5 Place for filing papers.
150.6 Signing of papers.
150.7 Computation of time.
150.8 Qualification of counsel.
150.9 Conduct of counsel.
150.10 Request for appellate defense counsel.
150.11 Assignment of counsel.
150.12 Retention of civilian counsel.
150.13 Notice of appearance of counsel.
150.14 Waiver or withdrawal of appellate review.
150.15 Assignments of error and briefs.
150.16 Oral arguments.
150.17 En banc proceedings.
150.18 Orders and decisions of the Court.
150.19 Reconsideration.
150.20 Petitions for extraordinary relief, answer, and reply.
150.21 Appeals by the United States.
150.22 Petitions for new trial.
150.23 Motions.
150.24 Continuances and interlocutory matters.
150.25 Suspension of rules.
150.26 Internal rules.
150.27 Recording, photographing, broadcasting, or telecasting of 
          hearings.
150.28 Amendments.

Appendix A to Part 150--Format for Direction for Review in a Court of 
          Criminal Appeals
Appendix B to Part 150--Format for Assignment of Errors and Brief on 
          Behalf of Accused (Sec.  150.15)

    Authority: Article 66(f), Uniform Code of Military Justice (10 
U.S.C. Sec.  866(f) (1994)).

    Source: 62 FR 2017, Jan. 15, 1997, unless otherwise noted.



Sec.  150.1  Name and seal.

    (a) The titles of the Courts of Criminal Appeals of the respective 
services are:
    (1) ``United States Army Court of Criminal Appeals.''
    (2) ``United States Navy-Marine Corps Court of Criminal Appeals.''
    (3) ``United States Air Force Court of Criminal Appeals.''
    (4) ``United States Coast Guard Court of Criminal Appeals.''
    (b) Each Court is authorized a seal in the discretion of the Judge 
Advocate General concerned. The design of such seal shall include the 
title of the Court.



Sec.  150.2  Jurisdiction.

    (a) The jurisdiction of the Court is as follows:
    (1) Review under Article 66. All cases of trial by court-martial in 
which the sentence as approved extends to:
    (i) Death; or
    (ii) Dismissal of a commissioned officer, cadet or midshipman, 
dishonorable or bad-conduct discharge, or confinement for 1 year or 
longer; and in which the accused has not waived or withdrawn appellate 
review.
    (2) Review upon direction of the Judge Advocate General under 
Article 69. All cases of trial by court-martial in which there has been 
a finding of guilty and a sentence:
    (i) For which Article 66 does not otherwise provide appellate 
review, and
    (ii) Which the Judge Advocate General forwards to the Court for 
review pursuant to Article 69(d), and
    (iii) In which the accused has not waived or withdrawn appellate 
review.
    (3) Review under Article 62. All cases of trial by court-martial in 
which a punitive discharge may be adjudged and a military judge 
presides, and in which the government appeals an order or ruling of the 
military judge that terminates the proceedings with respect to a charge 
or specification or excludes evidence that is substantial proof of a 
fact material to the proceedings, or directs the disclosure of 
classified information, imposes sanctions for nondisclosure of 
classified information, or refuses to issue or enforce a protective 
order sought by the United States to prevent the disclosure of 
classified information.
    (4) Review under Article 73. All petitions for a new trial in cases 
of trial by court-martial which are referred to the Court by the Judge 
Advocate General.

[[Page 614]]

    (b) Extraordinary writs. The Court may, in its discretion, entertain 
petitions for extraordinary relief including, but not limited to, writs 
of mandamus, writs of prohibition, writs of habeas corpus, and writs of 
error coram nobis.
    (c) Effect of rules on jurisdiction. Nothing in this part shall be 
construed to extend or limit the jurisdiction of the Courts of Criminal 
Appeals as established by law.



Sec.  150.3  Scope of review.

    In cases referred to it for review pursuant to Article 66, the Court 
may act only with respect to the findings and sentence as approved by 
the convening authority. In reviewing a case or action under Article 
69(d) or in determining an appeal under Article 62, the Court may act 
only with respect to matters of law. The Court may, in addition, review 
such other matters and take such other action as it determines to be 
proper under substantive law.e



Sec.  150.4  Quorum.

    (a) In panel. When sitting in panel, a majority of the judges 
assigned to that panel constitutes a quorum for the purpose of hearing 
or determining any matter referred to the panel. The determination of 
any matter referred to the panel shall be according to the opinion of a 
majority of the judges participating in the decision. However, any judge 
present for duty may issue all necessary orders concerning any 
proceedings pending on panel and any judge present for duty, or a clerk 
of court or commissioner to whom the Court has delegated authority, may 
act on uncontested motions, provided such action does not finally 
dispose of a petition, appeal, or case before the Court.
    (b) En banc. When sitting as a whole, a majority of the judges of 
the Court constitutes a quorum for the purpose of hearing and 
determining any matter before the Court. The determination of any matter 
before the Court shall be according to the opinion of a majority of the 
judge participating in the decision. In the absence of a quorum, any 
judge present for duty may issue all necessary orders concerning any 
proceedings pending in the Court preparatory to hearing or decision 
thereof.



Sec.  150.5  Place for filing papers.

    When the filing of a notice of appearance, brief, or other paper in 
the office of a Judge Advocate General is required by this part, such 
papers shall be filed in the office of the Judge Advocate General of the 
appropriate armed force or in such other place as the Judge Advocate 
General or rule promulgated pursuant to Sec.  150.26 may designate. If 
transmitted by mail or other means, they are not filed until received in 
such office.



Sec.  150.6  Signing of papers.

    All formal papers shall be signed and shall show, typewritten or 
printed, the signer's name, address, military grade (if any), and the 
capacity in which the paper is signed. Such signature constitutes a 
certification that the statements made therein are true and correct to 
the best of the knowledge, information, and belief of the persons 
signing the paper and that the paper is filed in good faith and not for 
purposes of unnecessary delay.



Sec.  150.7  Computation of time.

    In computing any period of time prescribed or allowed by this part, 
by order of the Court, or by any applicable statute, the day of the act, 
event or default after which the designated period of time begins to run 
is not to be included. The last day of the period so computed is to be 
included, unless it is a Saturday, Sunday, or legal holiday, or, when 
the act to be done is the filing of a paper in court, a day on which the 
office of the Clerk of the Court is closed due to weather or other 
conditions or by order of the Chief Judge, in which event the period 
runs until the end of the next day which is neither a Saturday, Sunday, 
nor a holiday.



Sec.  150.8  Qualification of counsel.

    (a) All counsel. Counsel in any case before the Court shall be a 
member in good standing of the bar of a Federal Court, the highest court 
of a State or another recognized bar.
    (b) Military counsel. Assigned appellate defense and appellate 
government counsel shall, in addition, be qualified in accordance with 
Articles 27(b)(1) and

[[Page 615]]

70(a), Uniform Code of Military Justice.
    (c) Admission. Each Court may license counsel to appear before it. 
Otherwise, upon entering an appearance, counsel shall be deemed admitted 
pro hac vice, subject to filing a certificate setting forth required 
qualifications if directed by the Court.
    (d) Suspension. No counsel may appear in any proceeding before the 
Court while suspended from practice by the Judge Advocate General of the 
service concerned.



Sec.  150.9  Conduct of counsel.

    The conduct of counsel appearing before the Court shall be in 
accordance with rules of conduct prescribed pursuant to Rule for Courts-
Martial 109 by the Judge Advocate General of the service concerned. 
However, the Court may exercise its inherent power to regulate counsel 
appearing before it, including the power to remove counsel from a 
particular case for misconduct in relation to that case. Conduct deemed 
by the Court to warrant consideration of suspension from practice or 
other professional discipline shall be reported by the Court to the 
Judge Advocate General concerned.



Sec.  150.10  Request for appellate defense counsel.

    An accused may be represented before the Court by appellate counsel 
detailed pursuant to Article 70(a) or by civilian counsel provided by 
the accused, or both. An accused who does not waive appellate review 
pursuant to Rule for Courts-Martial 1110 shall, within 10 days after 
service of a copy of the convening authority's action under Rule for 
Courts-Martial 1107(h), forward to the convening authority or the Judge 
Advocate General:
    (a) A request for representation by military appellate defense 
counsel, or
    (b) Notice that civilian counsel has been retained or that action 
has been taken to retain civilian counsel (must include name and address 
of civilian counsel), or
    (c) Both a request for representation by military appellate defense 
counsel under paragraph (a) for this section and notice regarding 
civilian counsel under paragraph (b) of this section, or
    (d) A waiver of representation by counsel.



Sec.  150.11  Assignment of counsel.

    (a) When a record of trial is referred to the court--
    (1) If the accused has requested representation by appellate defense 
counsel, pursuant to Article 70(c)(1), counsel detailed pursuant to 
Article 70(a) will be assigned to represented the accused; or
    (2) If the accused gives notice that he or she has retained or has 
taken action to retain civilian counsel, appellate defense counsel shall 
be assigned to represent the interests of the accused pending appearance 
of civilian counsel. Assigned defense counsel will continue to assist 
after appearance by civilian counsel unless excused by the accused; or
    (3) If the accused has neither requested appellate counsel nor given 
notice of action to retain civilian counsel, but has not waived 
representation by counsel, appellate defense counsel will be assigned to 
represent the accused, subject to excusal by the accused or by direction 
of the Court.
    (b) In any case--
    (1) The Court may request counsel when counsel have not been 
assigned.
    (2) Pursuant to Article 70(c)(2), and subject to paragraph (a)(2) of 
this section, appellate defense counsel will represent the accused when 
the United States is represented by counsel before the Court.



Sec.  150.12  Retention of civilian counsel.

    When civilian counsel represents an accused before the Court, the 
Court will notify counsel when the record of trial is received. If both 
civilian and assigned appellate defense counsel represent the accused, 
the Court will regard civilian counsel as primary counsel unless 
notified otherwise. Ordinarily, civilian counsel will use the accused's 
copy of the record. Civilian counsel may reproduce, at no expense to the 
government, appellate defense counsel's copy of the record.

[[Page 616]]



Sec.  150.13  Notice of appearance of counsel.

    Military and civilian appellate counsel shall file a written notice 
of appearance with the Court. The filing of any pleading relative to a 
case which contains the signature of counsel constitutes notice of 
appearance of such counsel.



Sec.  150.14  Waiver or withdrawal of appellate review.

    Withdrawals from appellate review, and waivers of appellate review 
filed after expiration of the period prescribed by the Rule for Courts-
Martial 1110(f)(1), will be referred to the Court for consideration. At 
its discretion, the Court may require the filing of a motion for 
withdrawal, issue a show cause order, or grant the withdrawal without 
further action, as may be appropriate. The Court will return the record 
of trial, in a case withdrawn from appellate review, to the Judge 
Advocate General for action pursuant to Rule for Courts-Martial 1112.



Sec.  150.15  Assignments of error and briefs.

    (a) General provisions. Appellate counsel for the accused may file 
an assignment of error if any are to be alleged, setting forth 
separately each error asserted. The assignment of errors should be 
included in a brief for the accused in the format set forth in Appendix 
B to this part. An original of all assignments of error and briefs, and 
as many additional copies as shall be prescribed by the Court, shall be 
submitted. Briefs and assignments of errors shall be typed or printed, 
double-spaced on white paper, and securely fastened at the top. All 
references to matters contained in the record shall show record page 
numbers and any exhibit designations. A brief on behalf of the 
government shall be of like character as that prescribed for the 
accused.
    (b) Time for filing and number of briefs. Any brief for an accused 
shall be filed within 60 days after appellate counsel has been notified 
of the receipt of the record in the Office of the Judge Advocate 
General. If the Judge Advocate General has directed appellate government 
counsel to represent the United States, such counsel shall file an 
answer on behalf of the government within 30 days after any brief and 
assignment of errors has been filed on behalf of an accused. Appellate 
counsel for an accused may file a reply brief no later than 7 days after 
the filing of a response brief on behalf of the government. If no brief 
is filed on behalf of an accused, a brief on behalf of the government 
may be filed within 30 days after expiration of the time allowed for the 
filing of a brief on behalf of the accused.
    (c) Appendix. The brief of either party may include an appendix. If 
an unpublished opinion is cited in the brief, a copy shall be attached 
in an appendix. The appendix may also include extracts of statutes, 
rules, or regulations. A motion must be filed under Sec.  150.23, infra, 
to attach any other matter.



Sec.  150.16  Oral arguments.

    Oral arguments may be heard in the discretion of the Court upon 
motion by either party or when otherwise ordered by the Court. The 
motion of a party for oral argument shall be made no later than 7 days 
after the filing of an answer to an appellant's brief. Such motion shall 
identify the issue(s) upon which counsel seek argument. The Court may, 
on its own motion, identify the issue(s) upon which it wishes argument.



Sec.  150.17  En banc proceedings.

    (a)(1) A party may suggest the appropriateness of consideration or 
reconsideration by the Court as a whole. Such consideration or 
reconsideration ordinarily will not be ordered except:
    (i) When consideration by the full Court is necessary to secure or 
maintain uniformity of decision, or
    (ii) When the proceedings involve a question of exceptional 
importance, or
    (iii) When a sentence being reviewed pursuant to Article 66 extends 
to death.
    (2) In cases being reviewed pursuant to Article 66, a party's 
suggestion that a matter be considered initially by the Court as a whole 
must be filed with the Court within 7 days after the government files 
its answer to the assignment of errors, or the appellant files a reply 
under Sec.  150.15(b). In other proceedings, the suggestion must be 
filed with the party's initial petition or other initial

[[Page 617]]

pleading, or within 7 days after the response thereto is filed. A 
suggestion for reconsideration by the Court as a whole must be made 
within the time prescribed by Sec.  150.19 for filing a motion for 
reconsideration. No response to a suggestion for consideration or 
reconsideration by the Court as a whole may be filed unless the Court 
shall so order.
    (b) The suggestion of a party for consideration or reconsideration 
by the Court as a whole shall be transmitted to each judge of the Court 
who is present for duty, but a vote need not be taken to determine 
whether the cause shall be considered or reconsidered by the Court as a 
whole on such a suggestion made by a party unless a judge requests a 
vote.
    (c) A majority of the judges present for duty may order that any 
appeal or other proceeding be considered or reconsidered by the Court 
sitting as a whole. However, en banc reconsideration of an en banc 
decision will not be held unless at least one member of the original 
majority concurs in a vote for reconsideration.
    (d) This rule does not affect the power of the Court sua sponte to 
consider or reconsider any case sitting as a whole.



Sec.  150.18  Orders and decisions of the Court.

    The Court shall give notice of its orders and decisions by 
immediately serving them, when rendered, on appellate defense counsel, 
including civilian counsel, if any, government counsel and the Judge 
Advocate General, or designee, as appropriate.



Sec.  150.19  Reconsideration.

    (a) The Court may, in its discretion and on its own motion, enter an 
order announcing its intent to reconsider its decision or order in any 
case not later than 30 days after service of such decision or order on 
appellate defense counsel or on the appellant, if the appellant is not 
represented by counsel, provided a petition for grant of review or 
certificate for review has not been filed with the United States Court 
of Appeals for the Armed Forces, or a record of trial for review under 
Article 67(b) has not been received by that Court. No briefs or 
arguments shall be received unless the order so directs.
    (b) Provided a petition for grant of review or certificate for 
review has not been filed with the United States Court of Appeals for 
the Armed Forces, or a record of trial for review under Article 67(b) or 
writ appeal has not been received by the United States Court of Appeals 
for the Armed Forces, the Court may, in its discretion, reconsider its 
decision or order in any case upon motion filed either:
    (1) By appellate defense counsel within 30 days after receipt by 
counsel, or by the appellant if the appellant is not represented by 
counsel, of a decision or order, or
    (2) By appellate government counsel within 30 days after the 
decision or order is received by counsel.
    (c) A motion for reconsideration shall briefly and directly state 
the grounds for reconsideration, including a statement of facts showing 
jurisdiction in the Court. A reply to the motion for reconsideration 
will be received by the Court only if filed within 7 days of receipt of 
a copy of the motion. Oral arguments shall not be heard on a motion for 
reconsideration unless ordered by the Court. The original of the motion 
filed with the Court shall indicate the date of receipt of a copy of the 
same by opposing counsel.
    (d) The time limitations prescribed by this part shall not be 
extended under the authority of Sec. Sec.  150.24 or 150.25 beyond the 
expiration of the time for filing a petition for review or writ appeal 
with the United States Court of Appeals for the Armed Forces, except 
that the time for filing briefs by either party may be extended for good 
cause.



Sec.  150.20  Petitions for extraordinary relief, answer, and reply.

    (a) Petition for extraordinary relief. A petition for extraordinary 
relief in the number of copies required by the Court shall be 
accompanied by proof of service on each party respondent and will 
contain:
    (1) A previous history of the case including whether prior actions 
have been filed or are pending for the same relief in this or any other 
court and the disposition or status of such actions;

[[Page 618]]

    (2) A concise and objective statement of all facts relevant to the 
issue presented and of any pertinent opinion, order or ruling;
    (3) A copy of any pertinent parts of the record and all exhibits 
related to the petition if reasonably available and transmittable at or 
near the time the petition is filed;
    (4) A statement of the issue;
    (5) The specific relief sought;
    (6) Reasons for granting the writ;
    (7) The jurisdictional basis for relief sought and the reasons why 
the relief sought cannot be obtained during the ordinary course of 
appellate review;
    (8) If desired, a request for appointment of appellate counsel.
    (b) Format. The title of the petition shall include the name, 
military grade and service number of each named party and, where 
appropriate, the official military or civilian title of any named party 
acting in an official capacity as an officer or agent of the United 
States. When an accused has not been named as a party, the accused shall 
be identified by name, military grade and service number by the 
petitioner and shall be designated as the real party in interest.
    (c) Electronic petitions. The Court will docket petitions for 
extraordinary relief submitted by electronic means. A petition submitted 
by electronic means will conclude with the full name and address of 
petitioner's counsel, if any, and will state when the written petition 
and brief, when required, were forwarded to the Court and to all named 
respondents, and by what means they were forwarded.
    (d) Notice to the Judge Advocate General. Immediately upon receipt 
of any petition, the clerk shall forward a copy of the petition to the 
appropriate Judge Advocate General or designee.
    (e) Briefs. Each petition for extraordinary relief must be 
accompanied by a brief in support of the petition unless it is filed in 
propria persona. The Court may issue a show cause order in which event 
the respondent shall file an answer within 10 days of the receipt of the 
show cause order. The petitioner may file a reply to the answer within 7 
days of receipt of the answer.
    (f) Initial action by the Court. The Court may dismiss or deny the 
petition, order the respondent to show cause and file an answer within 
the time specified, or take whatever other action it deems appropriate.
    (g) Oral argument and final action. The Court may set the matter for 
oral argument. However, on the basis of the pleading alone, the Court 
may grant or deny the relief sought or make such other order in the case 
as the circumstances may require. This includes referring the matter to 
a special master, who need not be a military judge, to further 
investigate; to take evidence; and to make such recommendations as the 
Court deems appropriate.



Sec.  150.21  Appeals by the United States.

    (a) Restricted filing. Only a representative of the government 
designated by the Judge Advocate General of the respective service may 
file an appeal by the United States under Article 62.
    (b) Counsel. Counsel must be qualified and appointed, and give 
notice of appearance in accordance with this part and those of the Judge 
Advocate General concerned.
    (c) Form of appeal. The appeal must include those documents 
specified by Rule for Courts-Martial 908 and by applicable regulations 
of the Secretary concerned. A certificate of the Notice of Appeal 
described in Rule for Courts-Martial 908(b)(3) must be included. The 
certificate of service must reflect the date and time of the military 
judge's ruling or order from which the appeal is taken, and the time and 
date of service upon the military judge.
    (d) Time for filing. All procedural Rules of the Court shall apply 
except as noted in this paragraph:
    (1) The representative of the government designated by the Judge 
Advocate General shall decide whether to file the appeal with the Court. 
The trial counsel shall have 20 days from the date written notice to 
appeal is filed with the trial court to forward the appeal, including an 
original and two copies of the record of trial, to the representative of 
the government designated by the Judge Advocate General. The person 
designated by the Judge Advocate General shall promptly file the 
original record with the Clerk of the Court and forward one copy to

[[Page 619]]

opposing counsel. Appellate government counsel shall have 20 days (or 
more upon a showing of good cause made by motion for enlargement within 
the 20 days) from the date the record is filed with the Court to file 
the appeal with supporting brief with the Court. Should the government 
decide to withdraw the appeal after the record is received by the Court, 
appellate government counsel shall notify the Court in writing. 
Appellate brief(s) shall be prepared in the manner prescribed by Sec.  
150.15.
    (2) Appellee shall prepare an answer in the manner prescribed by 
Sec.  150.15 and shall file such answer within 20 days after any filing 
of the government brief.
    (e) The government shall diligently prosecute all appeals by the 
United States and the Court will give such appeals priority over all 
other proceedings where practicable.



Sec.  150.22  Petitions for new trial.

    (a) Whether submitted to the Judge Advocate General by the accused 
in propria persona or by counsel for the accused, a petition for new 
trial submitted while the accused's case is undergoing review by a Court 
of Criminal Appeals shall be filed with an original and two copies and 
shall comply with the requirements of Rule for Courts-Martial 1210(c).
    (b) Upon receipt of a petition for new trial submitted by other than 
appellate defense counsel, the Court will notify all counsel of record 
of such fact.
    (c) A brief in support of a petition for new trial, unless expressly 
incorporated in or filed with the petition, will be filed substantially 
in the format specified by Sec.  150.15 no later than 30 days after the 
filing of the petition or receipt of the notice required by paragraph 
(b) of this section, whichever is later. An appellate's answer shall be 
filed no later than 30 days after the filing of an appellant's brief. A 
reply may be filed no later than 10 days after the filing of the 
appellee's answer.



Sec.  150.23  Motions.

    (a) Content. All motions, unless made during the course of a 
hearing, shall state with particularity the relief sought and the 
grounds therefor. Motions, pleading, and other papers desired to be 
filed with the Court may be combined in the same document, with the 
heading indicating, for example ``MOTION TO FILE (SUPPLEMENTAL 
ASSIGNMENT OF ERRORS) (CERTIFICATE OF CORRECTION) (SUPPLEMENTAL 
PLEADING)''; or ``ASSIGNMENT OF ERRORS AND MOTION TO FILE ATTACHED 
REPORT OF MEDICAL BOARD''.
    (b) Motions to attach documents. If a party desires to attach a 
statement of a person to the record for consideration by the Court on 
any matter, such statement shall be made either as an affidavit or as an 
unsworn declaration under penalty of perjury pursuant to 28 U.S.C. 1746. 
All documents containing language other than English shall have, 
attached, a certified English translation.
    (c) Opposition. Any opposition to a motion shall be filed within 7 
days after receipt by the opposing party of service of the motion.
    (d) Leave to file. Any pleading not authorized or required by this 
part, shall be accompanied by a motion for leave to file such pleading.
    (e) Oral argument. Oral argument shall not normally be permitted on 
motions.



Sec.  150.24  Continuances and interlocutory matters.

    Except as otherwise provided in Sec.  150.19(d), the Court, in its 
discretion, may extend any time limits prescribed and may dispose of any 
interlocutory or other appropriate matter not specifically covered by 
this part, in such manner as may appear to be required for a full, fair, 
and expeditious consideration of the case. See Sec.  150.4.



Sec.  150.25  Suspension of rules.

    For good cause shown, the Court acting as a whole or in panel may 
suspend the requirements or provisions of any of this part in a 
particular case on petition of a party or on its own motion and may 
order proceedings in accordance with its direction.



Sec.  150.26  Internal rules.

    The Chief Judge of the Court has the authority to prescribe internal 
rules for the Court.

[[Page 620]]



Sec.  150.27  Recording, photographing, broadcasting, or telecasting 
of hearings.

    The recording, photographing, broadcasting, or televising of any 
session of the Court or other activity relating thereto is prohibited 
unless specifically authorized by the Court.



Sec.  150.28  Amendments.

    Proposed amendments to this part may be submitted to the Chief Judge 
of any Court named in Sec.  150.1 or to a Judge Advocate General. Before 
acting on any proposed amendments not received from the Chief Judges, 
the Judge Advocates General shall refer them to the Chief Judges of the 
Courts for comment. The Chief Judges shall confer on any proposed 
changes, and shall report to the Judge Advocates General as to the 
suitability of proposed changes and their impact on the operation of the 
Courts and on appellate justice.



Sec. Appendix A to Part 150--Format for Direction for Review in a Court 
                           of Criminal Appeals

        In the United States ______ \1\ Court of Criminal Appeals

United States v.________________________________________________________
(Full typed name, rank, service, & service number of accused)
---------------------------------------------------------------------------

    \1\ Use ``Army,'' ``Navy-Marine Corps,'' ``Air Force,'' or ``Coast 
Guard,'' as applicable.
---------------------------------------------------------------------------

Direction for Review Case No. ____

Tried at (location), on (date(s)) before a (type in court-martial) 
appointed by (convening authority)

   To the Honorable, the Judges of the United States ______ Court of 
                            Criminal Appeals

    1. Pursuant to Article 69 of the Uniform Code of Military Justice, 
10 U.S.C. Sec.  869 (1994) and the Rules of Practice and Procedure for 
Courts of Criminal Appeals, Rule 2(b), the record of trial in the above-
entitled case is forwarded for review.
    2. The accused was found guilty by a (type of court-martial) of a 
violation of Article(s) ____ of the Uniform Code of Military Justice, 
and was sentenced to (include entire adjudged sentence) on (insert trial 
date). The convening authority (approved the sentence as adjudged) 
(approved the following findings and sentence: ______). The officer 
exercising general court-martial jurisdiction (where applicable) took 
the following action: ______. The case was received for review pursuant 
to Article 69 on (date).
    3. In review, pursuant to Uniform Code of Military Justice, Article 
66, it is requested that action be taken with respect to the following 
issues:

[set out issues here]
________________________________________________________________________
The Judge Advocate General
    Received a copy of the foregoing Direction for Review this ______ 
(date).
________________________________________________________________________
Appellate Government Counsel

________________________________________________________________________
Address and telephone number

________________________________________________________________________
Appellate Defense Counsel

________________________________________________________________________
Address and telephone number



 Sec. Appendix B to Part 150--Format for Assignment of Errors and Brief 
                   on Behalf of Accused (Sec.  150.15)

        In the United States ______ \2\ Court of Criminal Appeals

United States v.________________________________________________________
(Full typed name, rank, service, & service number of accused), Appellant
---------------------------------------------------------------------------

    \2\ Use ``Army,'' ``Navy-Marine Corps,'' ``Air Force,'' or ``Coast 
Guard,'' as applicable.
---------------------------------------------------------------------------

Assignment of Errors and Brief on Behalf of Accused Case No. ____

Tried at (location), on (date(s)) before a (type of court-martial) 
appointed by (convening authority)

   To the Honorable, the Judges of the United States ______ Court of 
                            Criminal Appeals

                          Statement of the Case

    [Set forth a concise summary of the chronology of the case, 
including the general nature of the charges, the pleas of the accused, 
the findings and sentence at trial, the action by the convening 
authority, and any other pertinent information regarding the 
proceedings.]

                           Statement of Facts

    [Set forth those facts necessary to a disposition of the assigned 
errors, including specific page references and exhibit numbers. Answers 
may adopt appellant's or petitioner's statement of facts if there is no 
dispute, may state additional facts, or, if there is a dispute, may 
restate the facts as they appear from appellee's or respondent's 
viewpoint. The repetition of uncontroverted matters is not desired.]

[[Page 621]]

                           Errors and Argument

    [Set forth each error alleged in upper case letters, followed by 
separate arguments for each error. Arguments shall discuss briefly the 
question presented, citing and quoting such authorities as are deemed 
pertinent. Each argument shall include a statement of the applicable 
standard of review, and shall be followed by a specific prayer for the 
relief requested.]

                                Appendix

    [The brief of either party may include an appendix containing copies 
of unpublished opinions cited in the brief, and extracts of statutes, 
rules or regulations pertinent to the assigned errors.]

________________________________________________________________________
(Signature of counsel)

________________________________________________________________________
Name (and rank) of counsel, address and telephone number

                    Certificate of Filing and Service

    I certify that a copy of the foregoing was mailed or delivered to 
the Court and opposing counsel on (date).

________________________________________________________________________
Name (rank) (and signature)

________________________________________________________________________
Address and telephone number

__________ (Date)



PART 151_FOREIGN CRIMINAL AND CIVIL JURISDICTION--Table of Contents



Sec.
151.1 Purpose.
151.2 Applicability.
151.3 Definitions.
151.4 Policy.
151.5 Responsibilities.
151.6 Procedures.

    Authority: 10 U.S.C. chapter 47, 10 U.S.C. 1037.

    Source: 84 FR 18384, May 1, 2019, unless otherwise noted.



Sec.  151.1  Purpose.

    This part establishes policy, assigns responsibilities, and 
prescribes procedures, supplemental to those provided in DoD Instruction 
5525.01, ``Foreign Criminal and Civil Jurisdiction,'' which will be made 
available at http://www.esd.whs.mil/ Directives/issuances/dodi/, 
concerning trial by foreign criminal courts of, treatment in foreign 
prisons of, and the payment of counsel fees in certain civil cases for 
the following individuals, referred to collectively in this part as 
``dependents of DoD personnel,'' when those individuals are in a foreign 
country as a result of accompanying DoD personnel who are assigned duty 
in that country:
    (a) Command-sponsored and non-command sponsored dependents of Armed 
Forces members;
    (b) Dependents of nationals and non-nationals of the United States 
who are serving with or accompanying the Military Services (referred to 
in this rule as ``non-military DoD personnel'') in an area outside the 
United States and its territories and possessions, the Commonwealth of 
the Northern Mariana Islands, and the Commonwealth of Puerto Rico 
(referred to collectively in this rule as ``outside the United 
States'');
    (c) Dependents of DoD personnel serving under a U.S. Chief of 
Mission are not considered to be ``dependents of DoD personnel'' for the 
purposes of this part.



Sec.  151.2  Applicability.

    This part applies to the Office of the Secretary of Defense, the 
Military Departments (including the Coast Guard at all times, including 
when it is a Service in the Department of Homeland Security by agreement 
with that Department), the Office of the Chairman of the Joint Chiefs of 
Staff and the Joint Staff, the Combatant Commands, the Office of the 
Inspector General of the Department of Defense, the Defense Agencies, 
the DoD Field Activities, and all other organizational entities within 
the DoD.



Sec.  151.3  Definitions.

    These terms and their definitions are for the purposes of this part.
    Armed Forces. As set forth in 10 U.S.C. 101(a)(4), the Army, Navy, 
Air Force, Marine Corps, and Coast Guard.
    Designated commanding officer (DCO). The military officer who is 
designated by the appropriate geographic Combatant Commander to fulfill 
the duties outlined in this part.
    DoD personnel. Armed Forces members and non-military DoD personnel. 
Armed Forces members and non-military DoD personnel serving under a

[[Page 622]]

U.S. Chief of Mission are not considered to be ``DoD personnel'' as 
defined in this part.
    Non-military DoD personnel. Nationals and non-nationals of the 
United States who are serving with or accompanying the Armed Forces in 
an area outside the United States and its territories and possessions, 
the northern Mariana Islands, and the Commonwealth of Puerto Rico.



Sec.  151.4  Policy.

    (a) The Department of Defense will, for dependents of DoD personnel 
when those dependents are in a foreign country accompanying DoD 
personnel who are assigned duty to that foreign country:
    (1) Maximize the exercise of U.S. jurisdiction to the extent 
permissible under applicable status of forces agreements or other forms 
of jurisdiction arrangements.
    (2) Protect, to the maximum extent possible, the rights of 
dependents of DoD personnel who may be subject to criminal trial by 
foreign courts and imprisonment in foreign prisons.
    (3) Secure, where possible, the release of an accused to the custody 
of U.S. authorities pending completion of all foreign judicial 
proceedings.
    (b) [Reserved]



Sec.  151.5  Responsibilities.

    (a) The Secretaries of the Military Departments ensure the adequacy 
of regulations in establishing an information and education policy on 
the laws and customs of the host country for dependents of DoD personnel 
assigned to foreign areas.
    (b) For each country in their respective assigned area of 
responsibility (AOR), the geographic Combatant Commanders:
    (1) Oversee Command implementation of the procedures in this part.
    (2) Oversee DCO responsibilities, as described in paragraphs (c)(1) 
through (4) of this section.
    (c) DCO responsibilities. The DCOs:
    (1) Are responsible for formal invocation, where applicable, of the 
Senate resolution procedure in each foreign country where dependents of 
DoD personnel are present, consistent with the U.S. Senate Resolution of 
Ratification, with reservations, to the North Atlantic Treaty 
Organization Status of Forces Agreement, as agreed to by the Senate on 
July 15, 1953.
    (2) In cooperation with the appropriate U.S. Chief of Mission and to 
the maximum extent possible, ensure dependents of DoD personnel receive 
the same treatment, rights, and support as Armed Forces members when in 
the custody of foreign authorities, or when confined (pre-trial and 
post-trial) in foreign penal institutions. DCOs will work with the 
appropriate U.S. Chief of Mission to make appropriate diplomatic 
contacts for dependents of DoD personnel who are not U.S. nationals.
    (3) Report informally and immediately to the General Counsel of the 
Department of Defense, the applicable geographic Combatant Commander, 
and the General Counsel and the Judge Advocate General of the respective 
Military Department or, in the case of the U.S. Marine Corps (USMC), to 
the General Counsel of the Navy and the Staff Judge Advocate to the 
Commandant of the Marine Corps, or, in the case of the Coast Guard, the 
Judge Advocate General of the Coast Guard, about important new cases or 
important developments in pending cases. Important cases include, but 
are not limited to, instances of denial of the procedural safeguards 
under any applicable agreement; deficiency in the treatment or 
conditions of confinement in foreign penal institutions; or arbitrary 
denial of permission to visit dependents of DoD personnel.
    (4) Take additional steps that may be authorized under relevant 
international agreements with the receiving State to implement the 
policy of this part.



Sec.  151.6  Procedures.

    (a) Request to foreign authorities not to exercise their criminal 
and civil jurisdiction over dependents. The procedures in this section 
will be followed when it appears that foreign authorities may exercise 
criminal jurisdiction over dependents of DoD personnel:
    (1) When the DCO determines, after a careful consideration of all 
the circumstances, including consultation with the Department of Justice 
where

[[Page 623]]

the matter involves possible prosecution in U.S. civilian courts, that 
suitable action can be taken under existing U.S. laws or administrative 
regulations, the DCO may request the local foreign authorities to waive 
the exercise of criminal jurisdiction.
    (2) When it appears possible that the accused may not obtain a fair 
trial, the commander exercising general court-martial jurisdiction over 
the command to which such persons are attached or with which they are 
associated will communicate directly with the DCO, reporting the full 
facts of the case. The DCO will then determine, in the light of legal 
procedures in effect in that country, if there is a risk that the 
accused will not receive a fair trial. If the DCO determines that there 
is a risk that the accused will not receive a fair trial, the DCO will 
decide, after consultation with the U.S. Chief of Mission, whether a 
request should be submitted through diplomatic channels to foreign 
authorities seeking their assurances of a fair trial for the accused or, 
in appropriate circumstances, that they waive the exercise of 
jurisdiction over the accused. If the DCO so decides, a recommendation 
will be submitted through the geographic Combatant Commander and the 
Chairman of the Joint Chiefs of Staff to the Secretary of Defense. 
Copies must be provided to the Secretary concerned and the GC DoD.
    (b) Trial observers and trial observers' reports. (1) U.S. observers 
at trials before courts of the receiving country (referred to in this 
section as ``trial observers'') must attend and prepare formal reports 
in all cases of trials by foreign courts or tribunals of dependents of 
DoD personnel, except for minor offenses. In cases of minor offenses, 
the observer will attend the trial at the discretion of the DCO, but 
will not be required to make a formal report.
    (i) Unless directed by the DCO, trial observers are not required to 
attend all preliminary proceedings, such as scheduling hearings, but 
will attend the trial on the merits and other pre- and post-trial 
proceedings where significant procedural or substantive matters are 
decided.
    (ii) Trial observer reports regarding dependents of DoD personnel 
will be handled and processed pursuant to DoD Instruction 5525.01(4)(b-
c).
    (2) The DCO, upon receipt of a trial observer report, will be 
responsible for determining whether:
    (i) There was any failure to comply with the procedural safeguards 
secured by the pertinent status of forces agreement.
    (ii) The accused received a fair trial under all the circumstances. 
Due regard should be given to those fair trial rights listed in DoD 
Instruction 5525.01 ``Foreign Criminal and Civil Jurisdiction,'' 
Enclosure 5, ``Fair Trial Guarantees'' that are relevant to the 
particular facts and circumstances of the trial. A trial will not be 
determined to be unfair merely because it is not conducted in a manner 
identical to trials held in the United States.
    (A) If the DCO believes that the procedural safeguards specified in 
pertinent agreements were denied or that the trial was otherwise unjust, 
the DCO will submit a recommendation as to appropriate action to rectify 
the trial deficiencies and otherwise to protect the rights or interests 
of the accused. This recommendation must include a statement of efforts 
taken or to be taken at the local level to protect the rights of the 
accused.
    (B) The DCO will submit the recommendation to the Secretary of 
Defense, through the Under Secretary of Defense for Policy (with an 
advance copy to the General Counsel of the Department of Defense); 
copies must be provided to the geographic Combatant Commander concerned, 
the General Counsel and the Judge Advocate General of the Military 
Department concerned or, in the case of the USMC, to the General Counsel 
of the Navy and the Staff Judge Advocate to the Commandant of the Marine 
Corps, or, in the case of the Coast Guard, the Judge Advocate General of 
the Coast Guard, and the Chairman of the Joint Chiefs of Staff.
    (c) Counsel fees and related assistance for U.S. personnel not 
subject to the UCMJ. In cases of exceptional interest to the Military 
Department concerned or the Department of Homeland Security involving 
non-military DoD personnel, the Secretary of that Military

[[Page 624]]

Department or the Secretary of Homeland Security may approve, pursuant 
to 10 U.S.C. 1037, under the following circumstances:
    (1) Criminal cases. Requests for the provision of counsel fees and 
payment of expenses in criminal cases may be approved in pre-trial, 
trial, appellate, and post-trial proceedings in any criminal case where:
    (i) The sentence that is normally imposed includes confinement, 
whether or not such sentence is suspended;
    (ii) Capital punishment might be imposed;
    (iii) An appeal is made from any proceeding in which there appears 
to have been a denial of the substantial rights of the accused;
    (iv) The case, although not within the criteria established in 
paragraphs (c)(1)(i) through (iii) of this section, is considered to 
have significant impact on U.S. interests, including upon the relations 
of the Armed Forces with the host country.
    (2) Civil cases. Requests for provision of counsel fees and payment 
of expenses in civil cases may be granted in trial and appellate 
proceedings in civil cases where the case is considered to have a 
significant impact on the relations of the Armed Forces with the host 
country; or in cases brought against eligible non-military DoD personnel 
(and in exceptional cases, by such personnel) if the case is considered 
to involve any other U.S. interest.
    (3) Funding restrictions. (i) No funds will be provided under this 
part in cases where the U.S. Government is--in actuality or in legal 
effect--the plaintiff or the defendant; all such cases shall be referred 
to the Department of Justice, Office of Foreign Litigation. No funds 
will be provided under this part in cases where the non-military DoD 
personnel member is a plaintiff without prior authorization of the 
Secretary of the Military Department concerned or the Secretary of 
Homeland Security. The provisions of this paragraph also are applicable 
to proceedings with civil aspects that are brought by eligible personnel 
as criminal cases in accordance with local law. Funds for the posting of 
bail or bond to secure the release of non-military DoD personnel from 
confinement will be used as provided by applicable Armed Force 
regulations.
    (ii) No funds will be provided under paragraph (c)(2) of this 
section to a plaintiff who, if successful, will receive an award, in 
whole or in part, from the United States.
    (iii) As provided for in 10 U.S.C. 1037, a person on whose behalf a 
payment is made under this provision is not liable to reimburse the 
United States for that payment, unless he or she is responsible for the 
forfeiture of bail provided for him or her under this provision.
    (d) Treatment of dependents confined in foreign penal institutions. 
In cooperation with the appropriate U.S. Chief of Mission and to the 
maximum extent possible, military commanders will ensure that dependents 
of DoD personnel receive the same treatment, rights, and support as 
would be extended to Armed Forces members when in the custody of foreign 
authorities, or when confined (pretrial and post-trial) in foreign penal 
institutions. Commanders will work with the appropriate U.S. Chief of 
Mission to make appropriate diplomatic contacts for the categories of 
dependents described in this section who are not U.S. nationals.
    (e) Information policy. The general public and the Congress must be 
provided promptly with the maximum information concerning status of 
forces matters that are consistent with the national interest. 
Information will be coordinated and provided to the public and the 
Congress in accordance with established procedures, including those in 
DoD Directive 5122.05, ``Assistant to the Secretary of Defense for 
Public Affairs (ATSD(PA))'' (available at http://www.esd.whs.mil/ 
Portals/54/Documents/DD/issuances/ dodd/512205_dodd_ 2017.pdf?ver= 2017-
08-07-125832-023), 32 CFR part 286, 32 CFR part 310, and DoD Instruction 
5400.04, ``Provision of Information to Congress'' (available at http://
www.esd.whs.mil/ Portals/54/Documents/DD/issuances/ dodi/540004p.pdf).



PART 152_REVIEW OF THE MANUAL FOR COURTS-MARTIAL--Table of Contents



Sec.
152.1 Purpose.
152.2 Applicability.
152.3 Policy.

[[Page 625]]

152.4 Responsibilities.
152.5 Implementation.

Appendix A to Part 152--Guidance to the Joint Service Committee (JSC)

    Authority: E.O. 12473; 10 U.S.C. 47.

    Source: 68 FR 36916, June 20, 2003, unless otherwise noted.



Sec.  152.1  Purpose.

    This part:
    (a) Implements the requirement established by the President in 
Executive Order 12473 that the Manual for Courts-Martial (MCM), United 
States, 1984, and subsequent editions, be reviewed annually.
    (b) Formalizes the Joint Service Committee (JSC) and defines the 
roles, responsibilities, and procedures of the JSC in reviewing and 
proposing changes to the MCM and proposing legislation to amend the 
Uniform Code of Military Justice (UCMJ) (10 U.S.C., Chapter 47).
    (c) Provides for the designation of a Secretary of a Military 
Department to serve as the Executive Agent for the JSC.



Sec.  152.2  Applicability.

    This part applies to the Office of the Secretary of Defense, the 
Military Departments (including the Coast Guard by agreement with the 
Department of Homeland Security when it is not operating as a Service of 
the Department of the Navy), the Chairman of the Joint Chiefs of Staff, 
the Combatant Commands, the Inspector General of the Department of 
Defense, the Defense Agencies, the DoD Field Activities, and all other 
organizational entities in the Department of Defense (hereafter 
collectively referred to as ``the DoD Components'').



Sec.  152.3  Policy.

    To assist the President in fulfilling his responsibilities under the 
UCMJ, and to satisfy the requirements of Executive Order 12473, the 
Department of Defense shall review the Manual for Courts-Martial 
annually, and, as appropriate, propose legislation amending the UCMJ to 
ensure that the MCM and the UCMJ fulfill their fundamental purpose as a 
comprehensive body of military criminal law and procedure. The role of 
the JSC furthers these responsibilities. Under the direction of the 
General Counsel of the Department of Defense, the JSC is responsible for 
reviewing the MCM and proposing amendments to it and, as necessary, to 
the UCMJ.



Sec.  152.4  Responsibilities.

    (a) The General Counsel to the Department of Defense shall:
    (1) Administer this part, to include coordination on and approval of 
legislative proposals to amend the UCMJ, approval of the annual review 
of the MEM, and coordination of any proposed changes to the MCM under 
OMB Circular A-19. \1\
---------------------------------------------------------------------------

    \1\ Available at http://www.whitehouse.gov/ omb/circulars/
index.html.
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    (2) Designate the Secretary of a Military Department to serve as the 
joint Service provider for the JSC. The joint Service provider shall act 
on behalf of the JSC for maintaining the JSC's files and historical 
records, and for publication of the updated editions of the MCM to be 
distributed throughout the Department of Defense, as appropriate.
    (3) Invite the Secretary of Homeland Security to appoint 
representatives to the JSC.
    (4) Invite the Chief Judge of the United States Court of Appeals for 
the Armed Forces to provide a staff member to serve as an advisor to the 
JSC.
    (5) Invite the Chairman of the Joint Chiefs of Staff to provide a 
staff member from the Chairman's Office of Legal Counsel to serve as an 
advisor to the JSC.
    (6) Ensure that the Associate Deputy General Counsel (Military 
Justice and Personnel Policy), Office of the General Counsel, Department 
of Defense, shall serve as the General Counsel's representative to the 
JSC in a non-voting capacity. In addition, the United States Court of 
Appeals for the Armed Forces (USCAAF) and the Legal Counsel to the 
Chairman of the Joint Chiefs of Staff shall be invited to provide a 
staff member to serve as an advisor to the JSC in a non-voting capacity.
    (b) The Secretaries of the Military Departments shall ensure that 
the Judge Advocates General of the Military Departments and the Staff 
Judge Advocate to the Commandant of the

[[Page 626]]

Marine Corps appoint representatives to the JSC.
    (c) The JSC shall further the DoD policy established in section 3 of 
this part and perform additional studies or other duties related to the 
administration of military justice, as the General Counsel of the 
Department of Defense may direct. (See DoD Directive 5105.18, ``DoD 
Committee Management Program''. \2\) The membership of the JSC shall 
consist of one representative of each of the following, who shall 
comprise the JSC Voting Group:
---------------------------------------------------------------------------

    \2\ Available at http://www.dtic.mil/whs/directives.
---------------------------------------------------------------------------

    (1) The Judge Advocate General of the Army.
    (2) The Judge Advocate General of the Navy.
    (3) The Judge Advocate General of the Air Force.
    (4) The Staff Judge Advocate to the Commandant of the Marine Corps; 
and
    (5) By agreement with the Department of Homeland Security, the Chief 
Counsel, United States Coast Guard.
    (d) The JSC Working Group (WG) shall assist the JSC Voting Group in 
fulfilling its responsibilities under this part. The WG consists of non-
voting representatives from each of the Services and may include the 
representatives from the USCAAF, and the Office of the Legal Counsel to 
the Chairman of the Joint Chiefs of Staff.
    (e) The JSC chairmanship rotates biennially among the Services in 
the following order: The Army, the Air Force, the Marine Corps, the 
Navy, and the Coast Guard. Due to its size and manning constraints, a 
Coast Guard's request not to be considered for JSC chairmanship shall be 
honored. The Military Service of the JSC Chairman shall provide an 
Executive Secretary for the JSC.



Sec.  152.5  Implementation.

    The foregoing policies and procedures providing guidelines for 
implementation of this part, as well as those contained in the appendix, 
are intended exclusively for the guidance of military personnel and 
civilian employees of the Department of Defense, and the United States 
Coast Guard by agreement of the Department of Homeland Security. These 
guidelines are intended to improve the internal management of the 
Federal Government and are not intended to create any right, privilege, 
or benefit, substantive of procedural, to any person or enforceable at 
law by any party against the United States, its agencies, its officers, 
or any person.



  Sec. Appendix A to Part 152--Guidance to the Joint Service Committee 
                                 (JSCA)

    (a) Review the Manual for Courts-Martial. (1) The Joint Service 
Committee (JSC) shall conduct an annual review of the Manual for Courts-
Martial (MCM), in light of judicial and legislative developments in 
military and civilian practice, to ensure:
    (i) The MCM implements the Uniform Code of Military Justice (UCMJ) 
and reflects current military practice and judicial precedent.
    (ii) The rules and procedures of the MCM are uniform insofar as 
practicable.
    (iii) The MCM applies, to the extent practicable, the principles of 
law and the rules of evidence generally recognized in the trial of 
criminal cases in United States district courts, but which are not 
contrary to or inconsistent with the UCMJ.
    (iv) The MCM is workable throughout the worldwide jurisdiction of 
the UCMJ; and,
    (v) The MCM is workable across the spectrum of circumstances in 
which courts-martial are conducted, including combat conditions.
    (2) During this review, any JSC voting member may propose for the 
Voting Group's consideration an amendment to the MCM. Proposed 
amendments to the MCM shall ordinarily be referred to the JSC Working 
Group (WG) for study. The WG assists the JSC in staffing various 
proposals, conducting studies of proposals and other military justice 
related topics at the JSC's direction, and making reports to the JSC. 
Any proposed amendment to the MCM, if approved by a majority of the JSC 
voting members, becomes a part of the annual review.
    (3) The JSC shall prepare a draft of the annual review of the MCM 
and forward it to the General Counsel of the Department of Defense, on 
or about December 31st. The General Counsel of the Department of Defense 
may submit the draft of the annual review to the Code Committee 
established by Article 146 of the UCMJ, with an invitation to submit 
comments.
    (4) The draft of the annual review shall set forth any specific 
recommendations for changes to the MCM, including, if not adequately 
addressed in the accompanying discussion or analysis, a concise 
statement of the basis and purpose of any proposed change. If no changes 
are recommended, the

[[Page 627]]

draft review shall so state. If the JSC recommends changes to the MCM, 
the draft review shall so state. If the JSC recommends changes to the 
MCM, the public notice procedures of paragraph (d)(3) of this appendix 
are applicable.
    (b) Changes to the Manual for Courts-Martial. (1) By January 1st of 
each year, the JSC voting members shall ensure that a solicitation for 
proposed changes to the MCM is sent to appropriate agencies within their 
respective Services that includes, but is not limited to, the judiciary, 
the trial counsel and defense counsel organizations, and the judge 
advocate general schools.
    (2) The Federal Register announcement of each year's annual review 
of proposed changes to the MCM shall also invite members of the public 
to submit any new proposals for JSC consideration during subsequent JSC 
annual reviews.
    (3) When the JSC receives proposed changes to the MCM either by 
solicitation or Federal Register notice, the JSC shall determine whether 
the proposal should be considered under paragraph (a)(2) of this 
appendix by determining if one or more of the JSC voting member(s) 
intends to sponsor the proposed change. The JSC shall determine when 
such sponsored proposals should be considered under the annual review 
process, taking into account any other proposals under consideration and 
any other reviews or studies directed by the General Counsel of the 
Department of Defense.
    (4) Changes to the MCM shall be proposed as part of the annual 
review conducted under paragraph (a) of this appendix. When earlier 
implementation is required, the JSC may send proposed changes to the 
General Counsel of the Department of Defense, for coordination under DoD 
Directive 5500.1. \3\
---------------------------------------------------------------------------

    \3\ Available at http://www.dtic.mil/whs/directives.
---------------------------------------------------------------------------

    (c) Proposals to Amend the Uniform Code of Military Justice. The JSC 
may determine that the efficient administration of military justice 
within the Armed Services requires amendments to the UCMJ, or that a 
desired amendment to the MCM makes necessary an amendment to the UCMJ. 
In such cases, the JSC shall forward to the General Counsel of the 
Department of Defense, a legislative proposal to change the UCMJ. The 
General Counsel of the Department of Defense may direct that the JSC 
forward any such legislative proposal to the Code Committee for its 
consideration under Article 146, UCMJ.
    (d) Public Notice and Meeting. (1) Proposals to amend the UCMJ are 
not governed by the procedures set out in this paragraph. (See DoD 
Directive 5105. 18. This paragraph applies only to the JSC 
recommendations to amend the MCM.)
    (2) It is DoD policy to encourage public participation in the JSC's 
review of the MCM. Notice that the Department of Defense, through the 
JSC, intends to propose changes to the MCM normally shall be published 
in the Federal Register before submission of such changes to the 
President. This notice is not required when the Secretary of Defense in 
his sole and unreviewable discretion proposes that the President issue 
the change without such notice on the basis that public notice 
procedures, as set forth in this part, are unnecessary or contrary to 
the sound administration of military justice, or a MCM change 
corresponding to legislation is expeditiously required to keep the MCM 
current and consistent with changes in applicable law.
    (3) The Office of General Counsel of the Department of Defense shall 
facilitate publishing the Federal Register notice required under this 
paragraph.
    (4) The notice under this paragraph shall consist of the publication 
of the full text of the proposed changes, including discussion and 
analysis, unless the General Counsel of the Department of Defense 
determines that such publication in full would unduly burden the Federal 
Register, the time and place where a copy of the proposed change may be 
examined, and the procedure for obtaining access to or a copy of the 
proposed change.
    (5) A period of not fewer than 60 days after publication of notice 
normally shall be allowed for public comment, but a shorter period may 
be authorized when the General Counsel of the Department of Defense 
determines that a 60-day period is unnecessary or is contrary to the 
sound administration of military justice. The Federal Register notice 
shall normally indicate that public comments shall be submitted to the 
Executive Secretary of the JSC.
    (6) The JSC shall provide notice in the Federal Register and hold a 
public meeting during the public comments period, where interested 
persons shall be given a reasonable opportunity to submit views on any 
of the proposed changes contained in the annual review. Public proposals 
and comments to the JSC should include a reference to the specific 
provision to be changed, a rational for the proposed change, and 
specific and detailed proposed language to replace the current language. 
Incomplete submissions might be insufficient to receive the 
consideration desired. The JSC shall seek to consider all views 
presented at the public meeting as well as any written comments 
submitted during the 60-day period when determining the final form of 
any proposed amendments to the MCM.
    (E) Internal Rules and Record-Keeping. (1) In furthering DoD policy, 
studying issues, or performing other duties relating to the 
administration of military justice, the JSC

[[Page 628]]

may establish internal rules governing its operation.
    (2) The JSC shall create a file system and maintain appropriate JSC 
records.



   PART 153_CRIMINAL JURISDICTION OVER CIVILIANS EMPLOYED BY OR ACCOMPANYING
   THE ARMED FORCES OUTSIDE THE UNITED STATES, CERTAIN SERVICE MEMBERS, AND
   FORMER SERVICE MEMBERS--Table of Contents



Sec.
153.1 Purpose.
153.2 Applicability and scope.
153.3 Definitions.
153.4 Responsibilities.
153.5 Procedures.

Appendix A to Part 153--Guidelines
Appendix B to Part 153--Acknowledgement of Limited Legal Representation 
          (Sample)

    Authority: 10 U.S.C. 301.

    Source: 71 FR 8947, Feb. 22, 2006, unless otherwise noted.



Sec.  153.1  Purpose.

    This part:
    (a) Implements policies and procedures, and assigns responsibilities 
under the Military Extraterritorial Jurisdiction Act of 2000, as amended 
by section 1088 of the ``Ronald W. Reagan National Defense Authorization 
Act for Fiscal Year 2005,'' October 28, 2004 (hereinafter referred to as 
``the Act'') for exercising extraterritorial criminal jurisdiction over 
certain military personnel, former service members of the United States 
Armed Forces, and over civilians employed by or accompanying the Armed 
Forces outside the United States (U.S.).
    (b) Implements section 3266 of the Act.



Sec.  153.2  Applicability and scope.

    (a) This part applies to the Office of the Secretary of Defense, the 
Military Departments (including the Coast Guard by agreement with the 
Department of Homeland Security when it is not operating as a Service of 
the Department of the Navy), the Chairman of the Joint Chiefs of Staff, 
the Combatant Commands, the Inspector General of the Department of 
Defense, the Defense Agencies, the DoD Field Activities, and all other 
organizational entities within the Department of Defense (hereafter 
referred to collectively as ``the DoD Components''). The term ``Military 
Services,'' as used herein, refers to the Army, the Navy, the Air Force, 
and the Marine Corps.
    (b) Coast Guard. The Coast Guard ordinarily operates as a separate 
branch of the Armed Forces in the Department of Homeland Security (DHS). 
However, upon Presidential Directive, the Coast Guard operates as a 
Service within the Department of the Navy and becomes part of the 
Department of Defense. By agreement with the Secretary of the Department 
of Homeland Security, when the Coast Guard is operating as a separate 
Service within the DHS, this part shall apply to the Coast Guard to the 
extent permitted by the Act. Whether a provision of this Instruction 
applies to a Coast Guard case is determined by whether the Coast Guard 
is operating as a Service in the DHS or as a Service within the 
Department of the Navy.
    (c) While some Federal criminal statutes are expressly or implicitly 
extraterritorial, many acts described therein are criminal only if they 
are committed within ``the special maritime and territorial jurisdiction 
of the United States'' or if they affect interstate or foreign commerce. 
Therefore, in most instances, Federal criminal jurisdiction ends at the 
nation's borders. State criminal jurisdiction, likewise, normally ends 
at the boundaries of each State. Because of these limitations, acts 
committed by military personnel, former service members, and civilians 
employed by or accompanying the Armed Forces in foreign countries, which 
would be crimes if committed in the U.S., often do not violate either 
Federal or State criminal law. Similarly, civilians are generally not 
subject to prosecution under the Uniform Code of Military Justice 
(UCMJ), unless Congress had declared a ``time of war'' when the acts 
were committed. As a result, these acts are crimes, and therefore 
criminally punishable, only under the law of the foreign country in 
which they occurred. See section 2 of Report Accompanying the Act 
(Report to Accompany H.R. 3380, House of Representatives Report 106-778, 
July 20,

[[Page 629]]

2000 hereafter referred to as ``the Report Accompanying the Act''). 
While the U.S. could impose administrative discipline for such actions, 
the Act and this part are intended to address the jurisdictional gap 
with respect to criminal sanctions.
    (d) Nothing in this part may be construed to deprive a court-
martial, military commission, provost court, or other military tribunal 
of concurrent jurisdiction with respect to offenders or offenses that by 
statute or the law of war may be tried by court-martial, military 
commission, provost court, or other military tribunal (Section 3261(c) 
of title 18). In some cases, conduct that violates section 3261(a) of 
the Act may also violate the UCMJ, or the law of war generally. 
Therefore, for military personnel, military authorities would have 
concurrent jurisdiction with a U.S. District Court to try the offense. 
The Act was not intended to divest the military of jurisdiction and 
recognizes the predominant interest of the military in disciplining its 
service members, while still allowing for the prosecution of members of 
the Armed Forces with non-military co-defendants in a U.S. District 
Court under section 3261(d) of the Act.
    (e) This part, including its enclosures, is intended exclusively for 
the guidance of military personnel and civilian employees of the 
Department of Defense, and of the United States Coast Guard by agreement 
with the Department of Homeland Security. Nothing contained herein 
creates or extends any right, privilege, or benefit to any person or 
entity. See United States v. Caceres, 440 U.S. 741 (1979).



Sec.  153.3  Definitions.

    Accompanying the Armed Forces Outside the United States. As defined 
in section 3267 of the Act, the dependent of:
    (1) A member of the Armed Forces; or
    (2) A civilian employee of the Department of Defense (including a 
non-appropriated fund instrumentality of the Department); or
    (3) A DoD contractor (including a subcontractor at any tier); or
    (4) An employee of a DoD contractor (including a subcontractor at 
any tier); and
    (5) Residing with such member, civilian employee, contractor, or 
contractor employee outside the United States; and
    (6) Not a national of or ordinarily resident in the host nation.
    Active Duty. Full-time duty in the active military service of the 
United States. It includes full-time training duty, annual training 
duty, and attendance, while in the active military service, at a school 
designated as a service school by law or by the Secretary of the 
Military Department concerned. See section 101(d)(1) of title 10, United 
States Code.
    Armed Forces. The Army, the Navy, the Air Force, the Marine Corps, 
and the Coast Guard. See section 101(a)(4) of title 10, United States 
Code.
    Arrest. To be taken into physical custody by law enforcement 
officials.
    Charged. As used in the Act and this part, this term is defined as 
an indictment or the filing of information against a person under the 
Federal Rules of Criminal Procedure. See the analysis to Section 3264 of 
the Report Accompanying the Act.
    Civilian Component. A person or persons employed by the Armed Forces 
outside the United States, as defined in this section and section 
3267(a)(1), as amended, of the Act. A term used in Status of Forces 
Agreements.
    Dependent. A person for whom a member of the Armed Forces, civilian 
employee, contractor (or subcontractor at any tier) has legal 
responsibility while that person is residing outside the United States 
with or accompanying that member of the Armed Forces, civilian employee, 
contractor (or subcontractor at any tier), and while that responsible 
person is so assigned, employed or obligated to perform a contractual 
obligation to the Department of Defense. For purposes of this part, a 
person's ``command sponsorship'' status while outside the United States 
is not to be considered in determining whether the person is a dependent 
within the meaning of this part, except that there shall be a rebuttable 
presumption that a command-sponsored individual is a dependent.
    Designated Commanding Officer (DCO). A single military commander in 
each foreign country where U.S. Forces are

[[Page 630]]

stationed and as contemplated by DoD Directive 5525.1, Status of Forces 
Policy and Information.
    Detention. To be taken into custody by law enforcement officials and 
placed under physical restraint.
    District. A District Court of the United States.
    Employed by the Armed Forces Outside the United States. Any person 
employed as:
    (1) A civilian employee of the Department of Defense (including a 
non-appropriated fund instrumentality of the Department); or
    (2) A civilian employee of any other Federal agency, or any 
provisional authority, to the extent such employment relates to 
supporting the mission of the Department of Defense overseas; or
    (3) A contractor (including a subcontractor at any tier) of the 
Department of Defense (including a non-appropriated fund instrumentality 
of the Department of Defense); or
    (4) A contractor (including a subcontractor at any tier) of any 
other Federal agency, or any provisional authority, to the extent such 
employment relates to supporting the mission of the Department of 
Defense overseas; or
    (5) An employee of a contractor (including a subcontractor at any 
tier) of the Department of Defense (including a non-appropriated fund 
instrumentality of the Department of Defense); or
    (6) An employee of a contractor (including a subcontractor at any 
tier) of any other Federal agency, or any provisional authority, to the 
extent such employment relates to supporting the mission of the 
Department of Defense overseas; and, when the person:
    (i) Is present or resides outside the United States in connection 
with such employment; and
    (ii) Is not a national of or ordinarily resident in the host nation.
    Federal Magistrate Judge. As used in the Act and this part, this 
term includes both Judges of the United States and U.S. Magistrate 
Judges, titles that, in general, should be given their respective 
meanings found in the Federal Rules of Criminal Procedure. (See footnote 
32 of the Report Accompanying the Act) The term does not include 
Military Magistrates or Military Judges, as prescribed by the UCMJ, or 
regulations of the Military Departments or the Department of Defense.
    Felony Offense. Conduct that is an offense punishable by 
imprisonment for more than one year if the conduct had been engaged in 
the special maritime and territorial jurisdiction of the United States. 
See sections 3261 of the Act and 18 U.S.C. 7. Although the Act, uses the 
conditional phrase ``if committed within the special maritime and 
territorial jurisdiction of the United States,'' acts that would be a 
Federal crime regardless of where they are committed in the U.S., such 
as drug crimes contained in chapter 13 of title 21, United States Code, 
also fall within the scope of section 3261(a) of the Act. See the 
analysis to section 3261 of the Report Accompanying the Act.
    Host Country National. A person who is not a citizen of the United 
States, but who is a citizen of the foreign country in which that person 
is located.
    Inactive Duty Training. Duty prescribed for Reservists by the 
Secretary of the Military Department concerned under section 206 of 
title 37, United States Code, or any other provision of law; and special 
additional duties authorized for Reservists by an authority designated 
by the Secretary of the Military Department concerned and performed by 
them on a voluntary basis in connection with the prescribed training or 
maintenance activities of the units to which they are assigned. Inactive 
Duty Training includes those duties performed by Reservists in their 
status as members of the National Guard while in Federal service. See 
section 101(d)(7) of title 10, United States Code.
    Juvenile. A person who has not attained his or her eighteenth 
birthday, as defined in section 5031 of title 18, United States Code.
    Military Department. The Department of the Army, the Department of 
the Navy, and the Department of the Air Force. See section 101(a)(8) of 
title 10, United States Code.
    National of the United States. As defined in section 1101(a)(22), of 
title 8, United States Code.

[[Page 631]]

    Outside the United States. Those places that are not within the 
definition of ``United States'' below and, with the exception of 
subparagraph 7(9), those geographical areas and locations that are not 
within the special maritime and territorial jurisdiction of the United 
States, as defined in sections 7 of title 18, United States Code. The 
locations defined in subparagraph 7(9) of title 18, United States Code 
are to be considered ``Outside the United States'' for the purposes of 
this part. See 3261-3267 of title 18, United States Code.
    Qualified Military Counsel. Judge advocates assigned to or employed 
by the Military Services and designated by the respective Judge Advocate 
General, or a designee, to be professionally qualified and trained to 
perform defense counsel responsibilities under the Act.
    Staff Judge Advocate. A judge advocate so designated in the Army, 
the Air Force, the Marine Corps, or the Coast Guard; the principal legal 
advisor of a command in the Navy who is a judge advocate, regardless of 
job title. See Rule for Courts-Martial 103(17), Manual for Courts-
Martial, United States (2002 Edition).
    Third Country National. A person whose citizenship is that of a 
country other than the U.S. and the foreign country in which the person 
is located.
    United States. As defined in section 5 of title 18, United States 
Code, this term, as used in a territorial sense, includes all places and 
waters, continental or insular, subject to the jurisdiction of the 
United States, except for the Panama Canal Zone.



Sec.  153.4  Responsibilities.

    (a) The General Counsel of the Department of Defense shall provide 
initial coordination and liaison with the Departments of Justice and 
State, on behalf of the Military Departments, regarding a case for which 
investigation and/or Federal criminal prosecution under the Act is 
contemplated. This responsibility may be delegated entirely, or 
delegated for categories of cases, or delegated for individual cases. 
The General Counsel, or designee, shall advise the Domestic Security 
Section of the Criminal Division, Department of Justice (DSS/DOJ), as 
soon as practicable, when DoD officials intend to recommend that the DOJ 
consider the prosecution of a person subject to the Act for offenses 
committed outside the United States. The Assistant Attorney General, 
Criminal Division, Department of Justice, has designated the Domestic 
Security Section (DSS/DOJ) as the Section responsible for the Act.
    (b) The Inspector General of the Department of Defense shall:
    (1) Pursuant to Section 4(d) of the Inspector General Act of 1978, 
as amended (5 U.S.C. App. 3), ``report expeditiously to the Attorney 
General whenever the Inspector General has reasonable grounds to believe 
there has been a violation of Federal criminal law.'' This statutory 
responsibility is generally satisfied once an official/special agent of 
the Office of the Inspector General of the Department of Defense 
notifies either the cognizant Department of Justice representative or 
the Assistant Attorney General (Criminal Division) of the ``reasonable 
grounds.''
    (2) Pursuant to Section 8(c)(5) of the Inspector General Act of 
1978, as amended (5 U.S.C. App. 3), and 10 U.S.C. 141(b), ensure the 
responsibilities described in DoD Directive 5525.7, ``Implementation of 
the Memorandum of Understanding Between the Department of Justice and 
the Department of Defense Relating to the Investigation and Prosecution 
of Certain Crimes,'' January 22, 1985, \1\ to ``implement the 
investigative policies [,m]onitor compliance by DoD criminal 
investigative organizations [, and p]rovide specific guidance regarding 
investigative matters, as appropriate'' are satisfied relative to 
violations of the Military Extraterritorial Jurisdiction Act of 2000.
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    \1\ Available from Internet site http://www.dtic.mil/whs/directives.
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    (c) The Heads of Military Law Enforcement Organizations and Military 
Criminal Investigative Organizations, or their Designees, shall:
    (1) Advise the Commander and Staff Judge Advocate (or Legal Advisor) 
of the Combatant Command concerned, or designees, of an investigation of 
an alleged violation of the Act. Such notice

[[Page 632]]

shall be provided as soon as practicable. In turn, the General Counsel 
of the Department of Defense, or designee, shall be advised so as to 
ensure notification of and consultation with the Departments of Justice 
and State regarding information about the potential case, including the 
host nation's position regarding the case. At the discretion of the 
General Counsel of the Department of Defense, other agencies and 
organizations (such as the Legal Counsel to the Chairman of the Joint 
Chiefs of Staff and Secretary of the Military Department that sponsored 
the person into the foreign country) shall be informed, as appropriate. 
Effective investigations lead to successful prosecutions and, therefore, 
these cases warrant close coordination and cooperation between the 
Departments of Defense, Justice, and State.
    (2) Provide briefings to, and coordinate with, appropriate local law 
enforcement authorities in advance or, if not possible, as soon 
thereafter as is practicable, of investigations or arrests in specific 
cases brought under the Act. If not previously provided to local law 
enforcement authorities, such briefings about the case shall, at a 
minimum, describe the Host Nation's position regarding the exercise of 
jurisdiction under the Act that followed from any briefings conducted 
pursuant to appendix A of this part.
    (d) The Domestic Security Section, Criminal Division, Department of 
Justice (DSS/DOJ) has agreed to:
    (1) Provide preliminary liaison with the Department of Defense, 
coordinate initial notifications with other entities of the Department 
of Justice and Federal law enforcement organizations; make preliminary 
decisions regarding proper venue; designate the appropriate U.S. 
Attorney's Office; and coordinate the further assignment of DOJ 
responsibilities.
    (2) Coordinate with the designated U.S. Attorney's office 
arrangements for a Federal Magistrate Judge to preside over the initial 
proceedings required by the Act. Although the assignment of a particular 
Federal Magistrate Judge shall ordinarily be governed by the 
jurisdiction where a prosecution is likely to occur, such an assignment 
does not determine the ultimate venue of any prosecution that may be 
undertaken. Appropriate venue is determined in accordance with the 
requirements of section 3238 of title 18, United States Code.
    (3) Coordinate the assistance to be provided the Department of 
Defense with the U.S. Attorney's office in the district where venue for 
the case shall presumptively lie.
    (4) Continue to serve as the primary point of contact for DoD 
personnel regarding all investigations that may lead to criminal 
prosecutions and all associated pretrial matters, until such time as 
DSS/DOJ advises that the case has become the responsibility of a 
specific U.S. Attorney's Office.
    (e) The Commanders of the Combatant Commands shall:
    (1) Assist the DSS/DOJ on specific cases occurring within the 
Commander's area of responsibility. These responsibilities include 
providing available information and other support essential to an 
appropriate and successful prosecution under the Act with the assistance 
of the Commanders' respective Staff Judge Advocates (or Legal Advisors), 
or their designees, to the maximum extent allowed and practicable.
    (2) Ensure command representatives are made available, as necessary, 
to participate in briefings of appropriate host nation authorities 
concerning the operation of this Act and the implementing provisions of 
this part.
    (3) Determine when military necessity in the overseas theater 
requires a waiver of the limitations on removal in section 3264(a) of 
the Act and when the person arrested or charged with a violation of the 
Act shall be moved to the nearest U.S. military installation outside the 
United States that is adequate to detain the person and facilitate the 
initial proceedings prescribed in section 3265(a) of the Act and this 
part. Among the factors to be considered are the nature and scope of 
military operations in the area, the nature of any hostilities or 
presence of hostile forces, and the limitations of logistical support, 
available resources, appropriate personnel, or the communications 
infrastructure necessary to comply with the requirements of section 3265 
of the Act governing initial proceedings.

[[Page 633]]

    (4) Annually report to the General Counsel of the Department of 
Defense, by the last day of February for the immediately preceding 
calendar year, all cases involving the arrest of persons for violations 
of the Act; persons placed in temporary detention for violations of the 
Act; the number of requests for Federal prosecution under the Act, and 
the decisions made regarding such requests.
    (5) Determine the suitability of the locations and conditions for 
the temporary detention of juveniles who commit violations of the Act 
within the Commander's area of responsibility. The conditions of such 
detention must, at a minimum, meet the following requirements: Juveniles 
alleged to be delinquent shall not be detained or confined in any 
institution or facility in which the juvenile has regular contact with 
adult persons convicted of a crime or awaiting trial on criminal 
charges; insofar as possible, alleged juvenile delinquents shall be kept 
separate from adjudicated delinquents; and every juvenile in custody 
shall be provided adequate food, heat, light, sanitary facilities, 
bedding, clothing, recreation, and medical care, including necessary 
psychiatric, psychological, or other care and treatment.
    (6) As appropriate, promulgate regulations consistent with and 
implementing this part. The Combatant Commander's duties and 
responsibilities pursuant to this part may be delegated.
    (f) The Secretaries of the Military Departments shall:
    (1) Consistent with the provisions of paragraph (c) of this section, 
make provision for defense counsel representation at initial proceedings 
conducted outside the United States pursuant to the Act for those 
persons arrested or charged with violations of section 3261(a) of the 
Act.
    (2) Issue regulations establishing procedures that, to the maximum 
extent practicable, provide notice to all persons covered by the Act who 
are not nationals of the United States but who are employed by or 
accompanying the Armed Forces outside the United States, with the 
exception of individuals who are nationals of or ordinarily resident in 
the host nation, that they are potentially subject to the criminal 
jurisdiction of the United States under the Act. At a minimum, such 
regulations shall require that employees and persons accompanying the 
Armed Forces outside the United States, who are not nationals of the 
United States, be informed of the jurisdiction of the Act at the time 
that they are hired for overseas employment, or upon sponsorship into 
the overseas command, whichever event is earlier applicable. Such notice 
shall also be provided during employee training and any initial 
briefings required for these persons when they first arrive in the 
foreign country. For employees and persons accompanying the Armed Forces 
outside the United States who are not nationals of the United States, 
but who have already been hired or are present in the overseas command 
at the time this part becomes effective, such notice shall be provided 
within 60 days of the effective date of this part.
    (3) Ensure orientation training, as described in paragraph (f)(2) of 
this section, is also provided for all U.S. nationals who are, or who 
are scheduled to be, employed by or accompanying the Armed Forces 
outside the United States, including their dependents, and include 
information that such persons are potentially subject to the criminal 
jurisdiction of the United States under the Act.
    (i) For members of the Armed Forces, civilian employees of the 
Department of Defense and civilians accompanying the Armed Forces 
overseas, notice and briefings on the applicability of the Act shall, at 
a minimum, be provided to them and their dependents when travel orders 
are issued and, again, upon their arrival at command military 
installations or place of duty outside the United States.
    (ii) For civilian employees, contractors (including subcontractors 
at any tier), and employees of contractors (including subcontractors at 
any tier) of any other Federal agency, or any provisional authority, 
permit such persons to attend the above-referenced briefings on a 
voluntary basis. In addition, to the maximum extent practicable, make 
available to representatives of such other Federal agencies or 
provisional authorities such notice and

[[Page 634]]

briefing materials as is provided to civilian employees, contractors, 
and contractor employees of the Department of Defense overseas.
    (4) Failure to provide notice or orientation training pursuant to 
paragraphs (f)(2) and (f)(3) of this section shall not create any rights 
or privileges in the persons referenced and shall not operate to defeat 
the jurisdiction of a court of the United States or provide a defense or 
other remedy in any proceeding arising under the Act or this part.
    (5) Provide training to personnel who are authorized under the Act 
and designated pursuant to this part to make arrests outside the United 
States of persons who allegedly committed a violation of section 3261(a) 
of the Act. The training, at a minimum, shall include the rights of 
individuals subject to arrest.



Sec.  153.5  Procedures.

    (a) Applicability--(1) Offenses and Punishments. Section 3261(a) of 
the Act establishes a separate Federal offense under 18 U.S.C. for an 
act committed outside the United States that would be a felony crime as 
if such act had been committed within the special maritime and 
territorial jurisdiction of the United States, as defined in section 7 
of 18 U.S.C. Charged as a violation of section 3261(a) of the Act, the 
elements of the offense and maximum punishment are the same as the crime 
committed within the geographical limits of section 7 of 18 U.S.C., but 
without the requirement that the conduct be committed within such 
geographical limits. See section 1 of the Section-By-Section Analysis 
and Discussion to section 3261 in the Report Accompanying the Act.
    (2) Persons subject to this part. This part applies to certain 
military personnel, former military service members, and persons 
employed by or accompanying the Armed Forces outside the United States, 
and their dependents, as those terms are defined in section 153.3 of 
this part, alleged to have committed an offense under the Act while 
outside the United States. For purposes of the Act and this part, 
persons employed by or accompanying the Armed Forces outside the U.S. 
are subject to the ``military law'' of the U.S., but only to the extent 
to which this term has been used and its meaning and scope have been 
understood within the context of a SOFA or any other similar form of 
international agreement.
    (3) Military Service Members. Military service members subject to 
the Act's jurisdiction are:
    (i) Only those active duty service members who, by Federal 
indictment or information, are charged with committing an offense with 
one or more defendants, at least one of whom is not subject to the UCMJ. 
See section 3261(d)(2) of the Act.
    (ii) Members of a Reserve component with respect to an offense 
committed while the member was not on active duty or inactive duty for 
training (in the case of members of the Army National Guard of the 
United States or the Air National Guard of the United States, only when 
in Federal service), are not subject to UCMJ jurisdiction for that 
offense and, as such, are amenable to the Act's jurisdiction without 
regard to the limitation of section 3261(d)(2) of the Act.
    (4) Former Military Service Members. Former military service members 
subject to the Act's jurisdiction are:
    (i) Former service members who were subject to the UCMJ at the time 
the alleged offenses were committed, but are no longer subject to the 
UCMJ with respect to the offense due to their release or separation from 
active duty.
    (ii) Former service members, having been released or separated from 
active duty, who thereafter allegedly commit an offense while in another 
qualifying status, such as while a civilian employed by or accompanying 
the Armed Forces outside the United States, or while the dependent of 
either or of a person subject to the UCMJ.
    (5) Civilians Employed by the Armed Forces. Civilian employees 
employed by the U.S. Armed Forces outside the United States (as defined 
in section 153.3), who commit an offense under the Act while present or 
residing outside the U.S. in connection with such employment, are 
subject to the Act and the provisions of this part. Such civilian 
employees include:

[[Page 635]]

    (i) Persons employed by the Department of Defense (including a non-
appropriated fund instrumentality of the Department of Defense).
    (ii) Persons employed as a DoD contractor (including a subcontractor 
at any tier).
    (iii) Employees of a DoD contractor (including a subcontractor at 
any tier).
    (iv) Civilian employees, contractors (including subcontractors at 
any tier), and civilian employees of a contractor (or subcontractor at 
any tier) of any other Federal agency, or any provisional authority, to 
the extent such employment relates to supporting the mission of the 
Department of Defense overseas.
    (6) Civilians Accompanying the Armed Forces. Subject to the 
requirements of paragraph (a)(6)(ii) of this section, the following 
persons are civilians accompanying the Armed Forces outside the United 
States who are covered by the Act and the provisions of this part:
    (i) Dependents of:
    (A) An active duty service member.
    (B) A member of the reserve component while the member was on active 
duty or inactive duty for training, but in the case of members of the 
Army National Guard of the United States or the Air National Guard of 
the United States, only when in Federal service.
    (C) A former service member who is employed by or is accompanying 
the Armed Forces outside the United States.
    (D) A civilian employee of the Department of Defense (including non-
appropriated fund instrumentalities of the Department of Defense).
    (E) A contractor (including a subcontractor at any tier) of the 
Department of Defense.
    (F) An employee of a contractor (including a subcontractor at any 
tier) of the Department of Defense.
    (ii) In addition to the person being the dependent of a person who 
is listed in paragraph (a)(6)(i) of this section, jurisdiction under the 
Act requires that the dependent also:
    (A) Reside with one of the persons listed in paragraph (a)(6)(i) of 
this section.
    (B) Allegedly commit the offense while outside the United States; 
and
    (C) Not be a national of, or ordinarily resident in, the host nation 
where the offense is committed.
    (iii) Command sponsorship of the dependent is not required for the 
Act and this part to apply.
    (iv) If the dependent is a juvenile, as defined in section 153.3, 
who engaged in conduct that is subject to prosecution under section 
3261(a) of the Act, then the provisions of chapter 403 of title 18, 
United States Code would apply to U.S. District Court prosecutions.
    (7) Persons NOT Subject to the Act or the Procedures of this part. 
(i) Persons who are the nationals of, or ordinarily resident in, the 
host nation where the offense is committed, regardless of their 
employment or dependent status.
    (ii) Persons, including citizens of the United States, whose 
presence outside the United States at the time the offense is committed, 
is not then as a member of the Armed Forces, a civilian employed by the 
Armed Forces outside the United States, or accompanying the Armed Forces 
outside the United States.
    (A) Persons (including members of a Reserve component) whose 
presence outside the United States at the time the offense is committed, 
is solely that of a tourist, a student, or a civilian employee or 
civilian accompanying any other non-federal agency, organization, 
business, or entity (and thereby can not be said to be employed by or 
accompanying the Armed Forces within the definitions of those terms as 
established by the Act, as modified) are not subject to the Act. 
Civilian employees of an agency, organization, business, or entity 
accompanying the Armed Forces outside the U.S. may, by virtue of the 
agency, organization, business, or entity relationship with the Armed 
Forces, be subject to the Act and this part.
    (B) Persons who are subject to the Act and this part remain so while 
present, on official business or otherwise (e.g., performing temporary 
duty or while in leave status), in a foreign country other than the 
foreign country to which the person is regularly assigned, employed, or 
accompanying the Armed Forces outside the United States.
    (iii) Persons who have recognized dual citizenship with the United 
States

[[Page 636]]

and who are the nationals of, or ordinarily resident in, the host nation 
where the alleged conduct took place are not persons ``accompanying the 
Armed Forces outside the United States'' within the meaning of the Act 
and this part.
    (iv) Juveniles whose ages are below the minimum ages authorized for 
the prosecution of juveniles in U.S. District Court under the provisions 
of chapter 403 of title 18, United States Code.
    (v) Persons subject to the UCMJ (See sections 802 and 803 of title 
10, United States Code) are not subject to prosecution under the Act 
unless, pursuant to section 3261(d) of the Act, the member ceases to be 
subject to the UCMJ or an indictment or information charges that the 
member committed the offense with one or more other defendants, at least 
one of whom is not subject to the UCMJ. A member of a Reserve component 
who is subject to the UCMJ at the time the UCMJ offense was committed is 
not relieved from amenability to UCMJ jurisdiction for that offense. 
Such reserve component members are not subject to the Act unless section 
3261(d)(2) of the Act applies. Retired members of a regular component 
who are entitled to pay remain subject to the UCMJ after retiring from 
active duty. Such retired members are not subject to prosecution under 
the Act unless section 3261(d)(2) of the Act applies.
    (vi) Whether Coast Guard members and civilians employed by or 
accompanying the Coast Guard outside the United States, and their 
dependents, are subject to the Act and this part depends on whether at 
the time of the offense the Coast Guard was operating as a separate 
Service in the Department of Homeland Security or as a Service in the 
Department of the Navy.
    (8) Persons Having a Tenuous Nexus to the United States. Third 
Country Nationals who are not ordinarily resident in the host nation, 
and who meet the definition of ``a person accompanying the Armed Forces 
outside the United States,'' may have a nexus to the United States that 
is so tenuous that it places into question whether the Act's 
jurisdiction should be applied and whether such persons should be 
subject to arrest, detention, and prosecution by U.S. authorities. 
Depending on the facts and circumstances involved, and the relationship 
or connection of the foreign national with the U.S. Armed Forces, it may 
be advisable to consult first with the DSS/DOJ before taking action with 
a view toward prosecution. In addition, to facilitate consultation with 
the government of the nation of which the Third Country National is a 
citizen, the State Department should be notified of any potential 
investigation or arrest of a Third Country National.
    (b) Investigation, Arrest, Detention, And Delivery Of Persons To 
Host Nation Authorities--(1) Investigation. (i) Investigations of 
conduct reasonably believed to constitute a violation of the Act 
committed outside the United States must respect the sovereignty of the 
foreign nation in which the investigation is conducted. Such 
investigations shall be conducted in accordance with recognized 
practices with host nation authorities and applicable international law, 
SOFA and other international agreements. After general coordination with 
appropriate host nation authorities, as referenced in Appendix A of this 
part, specific investigations shall, to the extent practicable, be 
coordinated with appropriate local law enforcement authorities, unless 
not required by agreement with host nation authorities.
    (ii) When a Military Criminal Investigative Organization is the lead 
investigative organization, the criminal investigator, in order to 
assist DSS/DOJ and the designated U.S. Attorney representative in making 
a preliminary determination of whether the case warrants prosecution 
under the Act, shall provide a copy of the Investigative Report, or a 
summary thereof, to the Office of the Staff Judge Advocate of the 
Designated Commanding Officer (DCO) at the location where the offense 
was committed for review and transmittal, through the Combatant 
Commander, to the DSS/DOJ and the designated U.S. Attorney 
representative. The Office of the Staff Judge Advocate shall also 
furnish the DSS/DOJ and the designated U.S. Attorney representative an 
affidavit or declaration from the

[[Page 637]]

criminal investigator or other appropriate law enforcement official that 
sets forth the probable cause basis for believing that a violation of 
the Act has occurred and that the person identified in the affidavit or 
declaration has committed the violation.
    (iii) When the Defense Criminal Investigative Service (DCIS) is the 
lead investigative organization, the criminal investigator, in order to 
assist the DSS/DOJ and the designated U.S. Attorney representative in 
making a preliminary determination of whether the case warrants 
prosecution under the Act, shall provide a copy of the Investigative 
Report, or a summary thereof, to the DSS/DOJ and the designated U.S. 
Attorney representative. The criminal investigator shall also furnish 
the DSS/DOJ and the designated U.S. Attorney representative, an 
affidavit or declaration that sets forth the probable cause basis for 
believing that a violation of the Act has occurred and that the person 
identified in the affidavit or declaration has committed the violation. 
Within the parameters of 10 U.S.C. Chapter 47, the Inspector General may 
also notify the General Counsel of the Department of Defense and the 
DCO's Office of the Staff Judge Advocate at the location where the 
offense was committed, as appropriate.
    (2) Residence Information. To the extent that it can be determined 
from an individual's personnel records, travel orders into the overseas 
theater, passport, or other records, or by questioning upon arrest or 
detention, as part of the routine ``booking'' information obtained, an 
individual's last known residence in the United States shall be 
determined and forwarded promptly to the DSS/DOJ and the designated U.S. 
Attorney representative. See Pennsylvania v. Muniz, 496 U.S. 582, at 601 
(1990) and United States v. D'Anjou, 16 F. 3d 604 (4th Cir. 1993). The 
information is necessary to assist in determining what law enforcement 
authorities and providers of pretrial services, including those who 
issue probation reports, shall ultimately have responsibility for any 
case that may develop. Determination of the individual's ``last known 
address'' in the United States is also important in determining what 
Federal district would be responsible for any possible future criminal 
proceedings.
    (i) Due to the venue provisions of section 3238 of 18 U.S.C. Chapter 
212, Sections 3261-3267, the DSS/DOJ and the designated U.S. Attorney 
representative shall be consulted prior to removal of persons arrested 
or charged with a violation of the Act by U.S. law enforcement 
officials. The venue for Federal criminal jurisdiction over offenses 
committed on the high seas or elsewhere beyond the jurisdiction of a 
particular State or District (as would be required under the Act), is in 
the Federal district in which the offender is arrested or first brought. 
However, if the individual is not so arrested in or brought into any 
Federal district in the United States (i.e., is to be indicted, or 
information obtained, prior to the individual's return to the United 
States), then an indictment or information may be sought in the district 
of the person's last known residence. If no such residence is known, the 
indictment or information may be filed in the District of Columbia.
    (ii) ``First brought'' connotes the location within the U.S. to 
which the person is returned in a custodial status.
    (iii) ``Last known residence'' refers to that U.S. location where 
the person lived or resided. It is not necessarily the same as the 
person's legal domicile or home of record.
    (iv) Prompt transmittal of venue information to the DSS/DOJ and the 
designated U.S. Attorney representative in the United States may prove 
helpful in determining whether a particular case may be prosecuted, and 
may ultimately be a pivotal factor in determining whether the host 
nation or the U.S. shall exercise its jurisdiction over the matter.
    (v) The Investigative Report, and any affidavit or declaration, as 
well as all other documents associated with a case shall be transmitted 
promptly by the command Staff Judge Advocate to the DSS/DOJ and the 
designated U.S. Attorney representative. This may be accomplished 
through the use of facsimile or other means of electronic communication.

[[Page 638]]

    (3) Notice of Complaint or Indictment. Upon receipt of information 
from command authorities or Defense Criminal Investigation Organizations 
(the Defense Criminal Investigation Service, the Army's Criminal 
Investigation Command, the Naval Criminal Investigative Service, and the 
Air Force Office of Special Investigations) that a person subject to 
jurisdiction under this Act has violated section 3261(a), the U.S. 
Attorney for the District in which there would be venue for a 
prosecution may, if satisfied that probable cause exists to believe that 
a crime has been committed and that the person identified has committed 
this crime, file a complaint under Federal Rule of Criminal Procedure 3. 
As an alternative, the U.S. Attorney may seek the indictment of the 
person identified. In either case, a copy of the complaint or indictment 
shall be provided to the Office of the Staff Judge Advocate of the 
overseas command that reported the offense. The DSS/DOJ and the 
designated U.S. Attorney representative will ordinarily be the source 
from which the command's Staff Judge Advocate is able to obtain a copy 
of any complaint or indictment against a person outside the United 
States who is subject to the jurisdiction under the Act. This may be 
accomplished through the use of facsimile or other means of electronic 
communication.
    (4) Arrest. (i) Federal Rule of Criminal Procedure 4 takes the 
jurisdiction of the Act into consideration in stating where arrest 
warrants may be executed: ``Location. A warrant may be executed, or a 
summons served, within the jurisdiction of the United States or anywhere 
else a federal statute authorizes an arrest.'' The Advisory Committee 
Note explains that the new language reflects the enactment of the 
Military Extraterritorial Jurisdiction Act permitting arrests of certain 
military and Department of Defense personnel overseas.
    (ii) The Act specifically authorizes persons in DoD law enforcement 
positions, as designated by the Secretary of Defense, to make arrests 
outside the United States, upon probable cause and in accordance with 
recognized practices with host nation authorities and applicable 
international agreements, those persons subject to the Act who violate 
section 3261(a) of the Act. Section 3262(a) of the Act constitutes 
authorization by law to conduct such functions pursuant to 10 U.S.C. 
801-946 and therefore avoids possible restrictions of the Posse 
Comitatus Act regarding military personnel supporting civilian law 
enforcement agencies.
    (iii) When the host nation has interposed no objections after 
becoming aware of the Act, arrests in specific cases shall, to the 
extent practicable, be first coordinated with appropriate local law 
enforcement authorities, unless not required by agreement with host 
nation authorities.
    (iv) Military and civilian special agents assigned to the Defense 
Criminal Investigative Organizations are hereby authorized by the 
Secretary of Defense to make an arrest, outside the United States, of a 
person who has committed an offense under section 3261(a) of the Act. 
Civilian special agents assigned to Defense Criminal Investigative 
Organizations while performing duties outside the U.S. shall make 
arrests consistent with the standardized guidelines established for such 
agents, as approved in accordance with sections 1585a, 4027, 7480, and 
9027 of title 10, United States Code.
    (v) Military personnel and DoD civilian employees (including local 
nationals, either direct hire or indirect hire) assigned to security 
forces, military police, shore patrol, or provost offices at military 
installations and other facilities located outside the United States are 
also authorized to make an arrest, outside the United States, of a 
person who has committed an offense under section 3261(a) of the Act. 
This authority includes similarly-assigned members of the Coast Guard 
law enforcement community, but only when the Coast Guard is operating at 
such locations as a Service of the Department of the Navy.
    (vi) Law enforcement personnel thus designated and authorized by the 
Secretary of Defense in this part may arrest a person, outside the 
United States, who is suspected of committing a felony offense in 
violation of section 3261(a) of the Act, when the arrest is based on 
probable cause to believe that such person violated section 3261(a) of

[[Page 639]]

the Act, and when made in accordance with applicable international 
agreements. Because the location of the offense and offender is outside 
the United States, it is not normally expected that the arrest would be 
based on a previously-issued Federal arrest warrant. Law enforcement 
personnel authorized to make arrests shall follow the Secretaries of the 
Military Departments' guidelines for making arrests without a warrant, 
as prescribed by 10 U.S.C. 1585a, 4027, 7480, and 9027. Authorizations 
issued by military magistrates under the UCMJ may not be used as a 
substitute for Federal arrest warrant requirements.
    (vii) The foregoing authorization to DoD law enforcement personnel 
to arrest persons subject to Chapter 212 of title 18, United States 
Code, for violations of the Act is not intended as a limitation upon the 
authority of other Federal law enforcement officers to effect arrests 
when authorized to do so. (E.g., see 18 U.S.C. 3052 authorizing agents 
of the Federal Bureau of Investigation to make arrests ``for any felony 
cognizable under the laws of the United States, 21 U.S.C. 878(a)(3) for 
the same authority for Drug Enforcement Administration agents, and 18 
U.S.C. 3053 for the same authority for U.S. Marshals and their 
deputies.)
    (5) Temporary Detention. (i) The Commander of a Combatant Command, 
or designee, may order the temporary detention of a person, within the 
Commander's area of responsibility outside the United States, who is 
arrested or charged with a violation of the Act. The Commander of the 
Combatant Command, or designee, may determine that a person arrested 
need not be held in custody pending the commencement of the initial 
proceedings required by section 3265 of the Act and paragraph (d) of 
this section. The Commander of the Combatant Command may designate those 
component commanders or DCO commanders who are also authorized to order 
the temporary detention of a person, within the commanding officer's 
area of responsibility outside the United States, who is arrested or 
charged with a violation of the Act.
    (ii) A person arrested may be temporarily detained in military 
detention facilities for a reasonable period, in accordance with 
regulations of the Military Departments and subject to the following:
    (A) Temporary detention should be ordered only when a serious risk 
is believed to exist that the person shall flee and not appear, as 
required, for any pretrial investigation, pretrial hearing or trial 
proceedings, or the person may engage in serious criminal misconduct 
(e.g., the intimidation of witnesses or other obstructions of justice, 
causing injury to others, or committing other offenses that pose a 
threat to the safety of the community or to the national security of the 
United States). The decision as to whether temporary detention is 
appropriate shall be made on a case-by-case basis. Section 3142 of title 
18, United States Code provides additional guidance regarding conditions 
on release and factors to be considered.
    (B) A person arrested or charged with a violation of the Act who is 
to be detained temporarily shall, to the extent practicable, be detained 
in areas that separate them from sentenced military prisoners and 
members of the Armed Forces who are in pretrial confinement pending 
trial by courts-martial.
    (C) Separate temporary detention areas shall be used for male and 
female detainees.
    (D) Generally, juveniles should not be ordered into temporary 
detention. However, should circumstances warrant temporary detention, 
the conditions of such temporary detention must, at a minimum, meet the 
following requirements: juveniles alleged to be delinquent shall not be 
detained or confined in any institution or facility in which the 
juvenile has regular contact with adult persons convicted of a crime or 
awaiting trial on criminal charges; insofar as possible, alleged 
juvenile delinquents shall be kept separate from adjudicated 
delinquents; and every juvenile in custody shall be provided with 
adequate food, heat, light, sanitary facilities, bedding, clothing, 
recreation, and medical care, including necessary psychiatric, 
psychological, or other care and treatment. Appointment of a guardian ad 
litem may be required under 18 U.S.C. 5034 to represent the interests of 
the juvenile when the

[[Page 640]]

juvenile's parents are not present or when the parents' interests may be 
adverse to that of the juvenile.
    (iii) Persons arrested or charged with a violation of the Act, upon 
being ordered into temporary detention and processed into the detention 
facility, shall, as part of the processing procedures, be required to 
provide the location address of their last U.S. residence as part of the 
routine booking questions securing ``biographical data necessary to 
complete booking or pretrial services.'' See United States v. D'Anjou, 
16 F. 3d 604 (4th Cir.1993). This information shall be recorded in the 
detention documents and made available to the DCO's Office of the Staff 
Judge Advocate. This information shall be forwarded with other case file 
information, including affidavits in support of probable cause 
supporting the arrest and detention, to the DSS/DOJ. The information is 
provided so that the DSS/DOJ may make appropriate preliminary decisions 
about venue. See paragraph (b)(2) of this section.
    (A) Notice of the temporary detention of any person for a violation 
of the Act shall be forwarded through command channels, without 
unnecessary delay, to the Combatant Commander, who shall advise the 
General Counsel of the Department of Defense, as the representative of 
the Secretary of Defense, of all such detentions. At the discretion of 
the General Counsel of the Department of Defense, other agencies and 
organizations (such as the Legal Counsel to the Chairman of the Joint 
Chiefs of Staff and Secretary of the Military Department that sponsored 
the person into the foreign country) shall be informed, as appropriate.
    (B) Such notice shall include a summary of the charges, facts and 
circumstances surrounding the offenses, information regarding any 
applicable SOFA or other international agreements affecting jurisdiction 
in the case, and the reasons warranting temporary detention.
    (iv) If military command authorities at the military installation 
outside the United States intend to request a person's detention by 
order of the Federal Magistrate Judge, the military representative 
assigned to the case shall gather the necessary information setting 
forth the reasons in support of a motion to be brought by the attorney 
representing the government at the initial proceeding conducted pursuant 
to section 3265 of the Act.
    (v) This part is not intended to eliminate or reduce existing 
obligations or authorities to detain persons in foreign countries as 
required or permitted by agreements with host countries. See generally, 
United States v. Murphy, 18 M.J. 220 (CMA 1984).
    (6) Custody and Transport of Persons While in Temporary Detention. 
(i) The Department of Defense may only take custody of and transport the 
person as specifically set forth in the Act. This is limited to delivery 
as soon as practicable to the custody of U.S. civilian law enforcement 
authorities for removal to the United States for judicial proceedings; 
delivery to appropriate authorities of the foreign country in which the 
person is alleged to have committed the violation of section 3261(a) of 
the Act in accordance with section 3263; or, upon a determination by the 
Secretary of Defense, or the Secretary's designee, that military 
necessity requires it, removal to the nearest U.S. military installation 
outside the United States adequate to detain the person and to 
facilitate the initial appearance described in 3265(a) of the Act.
    (ii) Responsibility for a detained person's local transportation, 
escort, and custody requirements remains with the command that placed 
the person in temporary detention for a violation of section 3261(a) of 
the Act. This responsibility includes:
    (A) Attendance at official proceedings and other required health and 
welfare appointments (e.g., appointments with counsel, medical and 
dental appointments, etc.).
    (B) Delivery to host nation officials under section 3263 of the Act.
    (C) Attendance at Initial Proceedings conducted under section 3265 
of the Act.
    (D) Delivery under the Act to the custody of U.S. civilian law 
enforcement authorities for removal to the United States.

[[Page 641]]

    (iii) A person who requires the continued exercise of custody and 
transportation to appointments and locations away from the detention 
facility, including delivery of the person to host nation officials 
under section 3263 of the Act, may be transferred under the custody of 
command authorities or those law enforcement officers authorized to make 
arrests in paragraphs (b)(4)(iv) and (b)(4)(v) of this section. 
Transportation of a detainee outside an installation shall be 
coordinated with the host nation's local law enforcement, as appropriate 
and in accordance with recognized practices.
    (iv) Military authorities retain responsibility for the custody and 
transportation of a person arrested or charged with a violation of the 
Act who is to be removed from one military installation outside the 
United States to another military installation outside the United 
States, including when the person is transferred under the provisions of 
section 3264(b)(5) of the Act. Unless otherwise agreed to between the 
sending and receiving commands, it shall be the responsibility of the 
sending command to make arrangements for the person's transportation and 
custody during the transport or transfer to the receiving command.
    (v) In coordination with appropriate host nation authorities, U.S. 
civilian law enforcement authorities shall be responsible for taking 
custody of a person arrested or charged with a violation of the Act and 
for the removal of that person to the United States for any pretrial or 
trial proceedings. DoD officials shall consult with the DSS/DOJ to 
determine which civilian law enforcement authority (i.e., U.S. Marshals 
Service, Federal Bureau of Investigations, Drug Enforcement Agency, or 
other Federal agency) shall dispatch an officer to the overseas' 
detention facility to assume custody of the person for removal to the 
United States. Until custody of the person is delivered to such U.S. 
civilian law enforcement authorities, military authorities retain 
responsibility for the custody and transportation of the person arrested 
or charged with a violation of the Act, to include transportation within 
the host nation to help facilitate the removal of the person to the 
United States under the Act.
    (7) Release From Temporary Detention. When a person subject to the 
Act has been placed in temporary detention, in the absence of a Criminal 
Complaint or Indictment pursuant to the Federal Rules of Criminal 
Procedure, only the Commander who initially ordered detention, or a 
superior Commander, or a Federal Magistrate Judge, may order the release 
of the detained person. If a Criminal Complaint or Indictment exists, or 
if a Federal Magistrate Judge orders the person detained, only a Federal 
Magistrate Judge may order the release of the person detained. If a 
Federal Magistrate Judge orders the person temporarily detained to be 
released from detention, the Commander who ordered detention, or a 
superior Commander, shall cause the person to be released. When a person 
is released from detention under this provision, the Commander shall 
implement, to the extent practicable within the commander's authority, 
any conditions on liberty directed in the Federal Magistrate Judge's 
order. When the commander who independently ordered the person's 
temporary detention without reliance on a Federal Magistrate Judge's 
order, or a superior commander, orders a person's release before a 
Federal Magistrate Judge is assigned to review the matter, the commander 
may, within the commander's authority, place reasonable conditions upon 
the person's release from detention.
    (i) A person's failure to obey the conditions placed on his or her 
release from detention, in addition to subjecting that person to the 
commander's, or Federal Magistrate Judge's order to be returned to 
detention, may consistent with the commander's authority and applicable 
policy, laws, and regulations, subject the person to potential criminal 
sanctions, or to administrative procedures leading to a loss of command 
sponsorship to the foreign country, as well as the possibility of 
additional disciplinary or adverse action.
    (ii) A copy of all orders issued by a Federal Magistrate Judge 
concerning initial proceedings, detention, conditions on liberty, and 
removal to the

[[Page 642]]

United States shall promptly be provided to the Commander of the 
Combatant Command concerned and the Commander of the detention facility 
at which the person is being held in temporary detention.
    (8) Delivery of Persons to Host Nation Authorities. (i) Persons 
arrested may be delivered to the appropriate authorities of the foreign 
country in which the person is alleged to have violated section 3261(a) 
of the Act, when:
    (A) Authorities of a foreign country request that the person be 
delivered for trial because the conduct is also a violation of that 
foreign country's laws, and
    (B) Delivery of the person is authorized or required by treaty or 
another international agreement to which the United States is a party.
    (ii) Coast Guard personnel authorized to make arrests pursuant to 
paragraph (b)(4)(v) of this section are also authorized to deliver 
persons to foreign country authorities, as provided in section 3263 of 
the Act.
    (iii) Section 3263(b) of the Act calls upon the Secretary of 
Defense, in consultation with the Secretary of State, to determine which 
officials of a foreign country constitute appropriate authorities to 
which persons subject to the Act may be delivered. For purposes of the 
Act, those authorities are the same foreign country law enforcement 
authorities as are customarily involved in matters involving foreign 
criminal jurisdiction under an applicable SOFA or other international 
agreement or arrangement between the United States and the foreign 
country.
    (iv) No action may be taken under this part with a view toward the 
prosecution of a person for a violation of the Act if a foreign 
government, in accordance with jurisdiction recognized by the United 
States, has prosecuted or is prosecuting such person for the conduct 
constituting such offense(s), except upon the approval of the Attorney 
General or the Deputy Attorney General (or a person acting in either 
such capacity). See section 3261(b) of the Act. Requests for an 
exception shall be written and forwarded to the Combatant Commander. The 
Combatant Commander shall forward the request to the General Counsel of 
the Department of Defense, as representative for the Secretary of 
Defense, for review and transmittal to the Attorney General of the 
United States. At the discretion of the General Counsel of the 
Department of Defense, other agencies and organizations (such as the 
Legal Counsel to the Chairman of the Joint Chiefs of Staff and the 
Secretary of the Military Department that sponsored the person into the 
foreign country) shall be informed, as appropriate.
    (v) Except for persons to be delivered to a foreign country, and 
subject to the limitations of section 3264 of the Act and paragraph 
(e)(5) of this section, persons arrested for conduct in violation of the 
Act shall, upon the issuance of a removal order by a Federal Magistrate 
Judge under section 3264(b) of the Act, be delivered, as soon as 
practicable, to the custody of U.S. civilian law enforcement 
authorities. See paragraph (b)(6)(iv) of this section.
    (c) Representation. (1) Civilian Defense Counsel. (i) Civilian 
defense counsel representation shall not be at the expense of the 
Department of Defense or the Military Departments.
    (ii) The Act contemplates that a person arrested or charged with a 
violation of the Act shall be represented by a civilian attorney 
licensed to practice law in the United States. However, it is also 
recognized that in several host nations where there has been a long-
standing military presence, qualified civilian attorneys (including 
lawyers who are U.S. citizens) have established law practices in these 
host nations to assist assigned U.S. personnel and to represent service 
members in courts-martial, or before host nation courts. With the 
consent of the person arrested or charged with a violation of the Act 
who wishes to remain in the foreign country, these lawyers can provide 
adequate representation for the limited purpose of any initial 
proceedings required by the Act. When the person entitled to an attorney 
or requests counsel, staff judge advocates at such locations should 
assemble a list of local civilian attorneys for the person's 
consideration. The list shall contain a disclaimer stating that no 
endorsement by the United States government or the command is expressed 
or implied

[[Page 643]]

by the presence of an attorney's name on the list.
    (A) To the extent practicable, military authorities shall establish 
procedures by which persons arrested or charged with a violation of the 
Act may seek the assistance of civilian defense counsel by telephone. 
Consultation with such civilian counsel shall be in private and 
protected by the attorney-client privilege.
    (B) Civilian defense counsel, at no expense to the Department of 
Defense, shall be afforded the opportunity to participate personally in 
any initial proceedings required by the Act that are conducted outside 
the United States. When civilian defense counsel cannot reasonably 
arrange to be personally present for such representation, alternative 
arrangements shall be made for counsel's participation by telephone or 
by such other means that enables voice communication among the 
participants.
    (C) When at least one participant cannot arrange to meet at the 
location outside the United States where initial proceedings required by 
the Act are to be conducted, whenever possible arrangements should be 
made to conduct the proceedings by video teleconference or similar 
means. Command video teleconference communication systems should be used 
for this purpose, if resources permit, and if such systems are not 
otherwise unavailable due to military mission requirements. When these 
capabilities are not reasonably available, the proceedings shall be 
conducted by telephone or such other means that enables voice 
communication among the participants. See section 3265 of the Act.
    (D) The above provisions regarding the use of teleconference 
communication systems apply to any detention proceedings that are 
conducted outside the United States under section 3265(b) of the Act.
    (E) Civilian defense counsel practicing in host nations do not gain 
Department of Defense sponsorship, nor any diplomatic status, as a 
result of their role as defense counsel. To the extent practicable, 
notice to this effect shall be provided to the civilian defense counsel 
when the civilian defense counsel's identity is made known to 
appropriate military authorities.
    (2) Qualified Military Counsel. (i) Counsel representation also 
includes qualified military counsel that the Judge Advocate General of 
the Military Department concerned determines is reasonably available for 
the purpose of providing limited representation at initial proceedings 
required by the Act and conducted outside the United States. By 
agreement with the Department of Homeland Security, Coast Guard commands 
and activities located outside the United States shall seek to establish 
local agreements with military commands for qualified military counsel 
from the Military Departments to provide similar limited representation 
in cases arising within the Coast Guard. The Secretaries of the Military 
Departments shall establish regulations governing representation by 
qualified military counsel. These regulations, at a minimum, shall 
require that the command's Staff Judge Advocate:
    (ii) Prepare, update as necessary, and make available to a Federal 
Magistrate Judge upon request, a list of qualified military counsel who 
are determined to be available for the purpose of providing limited 
representation at initial proceedings.
    (iii) Ensure that the person arrested or charged under the Act is 
informed that any qualified military counsel shall be made available 
only for the limited purpose of representing that person in any initial 
proceedings that are to be conducted outside the United States, and that 
such representation does not extend to further legal proceedings that 
may occur either in a foreign country or the United States. The person 
arrested or charged shall also be required, in writing, to acknowledge 
the limited scope of qualified military counsel's representation and 
therein waive that military counsel's further representation in any 
subsequent legal proceedings conducted within a foreign country or the 
United States. The ``Acknowledgement of Limited Representation,'' at 
appendix B of this part, may be used for this purpose. A copy of the 
``Acknowledgement of Limited Representation'' shall be provided to the 
person arrested or

[[Page 644]]

charged under the Act, as well as to the qualified military counsel. The 
original acknowledgment shall be kept on file in the DCO's Office of the 
Staff Judge Advocate.
    (iv) Provide available information that would assist the Federal 
Magistrate Judge make a determination that qualified civilian counsel 
are unavailable, and that the person arrested or charged under the Act 
is unable financially to retain civilian defense counsel, before a 
qualified military counsel who has been made available is assigned to 
provide limited representation. See Analysis and Discussion of Section 
3265 (c), Report Accompanying the Act.
    (3) Union Representation. Agency law enforcement officials shall 
comply with applicable Federal civilian employee rights and 
entitlements, if any, regarding collective bargaining unit 
representation under Chapter 71 of title 5, United States Code, during 
pretrial questioning and temporary detention procedures under this part.
    (4) Military Representative. (i) To assist law enforcement officers 
and the U.S. Attorney's representative assigned to a case, a judge 
advocate, legal officer, or civilian attorney-advisor may be appointed 
as a military representative to represent the interests of the United 
States. As appropriate, the military representative may be appointed as 
a Special Assistant U.S. Attorney. The military representative shall be 
responsible for assisting the command, law enforcement, and U.S. 
Attorney representatives during pretrial matters, initial proceedings, 
and other procedures required by the Act and this part. These 
responsibilities include assisting the U.S. Attorney representative 
determine whether continued detention is warranted, and to provide 
information to the presiding Federal Magistrate Judge considering the 
following:
    (ii) If there is probable cause to believe that a violation of the 
Act has been committed and that the person arrested or charged has 
committed it,
    (iii) If the person being temporarily detained should be kept in 
detention or released from detention, and, if released, whether any 
conditions practicable and reasonable under the circumstances, should be 
imposed.
    (d) Initial Proceedings. (1) A person arrested for or charged with a 
violation of the Act may be entitled to an initial appearance before a 
judge and/or a detention hearing (collectively, the ``initial 
proceedings''). The initial proceedings are intended to meet the 
requirements of the Federal Rules of Criminal Procedure. The initial 
proceedings are not required when the person under investigation for 
violating the Act has not been arrested or temporarily detained by U.S. 
military authorities, or the person's arrest or temporary detention by 
U.S. law enforcement authorities occurs after the person ceases to 
accompany or be employed by the Armed Forces outside the United States, 
or the arrest or detention takes place within the United States.
    (2) The initial proceedings to be conducted pursuant to the Act and 
this part shall not be initiated for a person delivered to foreign 
country authorities and against whom the foreign country is prosecuting 
or has prosecuted the person for the conduct constituting such offense, 
except when the Attorney General or Deputy Attorney General (or a person 
acting in either such capacity) has approved an exception that would 
allow for prosecution in the United States may initial proceedings under 
the Act be conducted, under these circumstances. Requests for approval 
of such an exception shall be forwarded through the Commander of the 
Combatant Command to the General Counsel of the Department of Defense, 
in accordance with paragraph (b)(8)(iv) of this section.
    (3) Initial proceedings required by the Act and this part shall be 
conducted, without unnecessary delay. In accordance with the U.S. 
Supreme Court decision in County of Riverside v. McLaughlin, 500 U.S. 44 
(1991), the initial appearance shall be conducted within 48 hours of the 
arrest. The initial proceedings required by the Act shall be conducted 
when:
    (i) The person arrested has not been delivered to foreign country 
authorities under the provisions of section 3263 of the Act; or

[[Page 645]]

    (ii) The foreign country authorities having custody of the person 
delivers the person to U.S. military authorities without first 
prosecuting the person for such conduct as an offense under the laws of 
that foreign country.
    (4) A Federal Magistrate Judge shall preside over the initial 
proceedings that are required by the Act and this part. The proceedings 
should be conducted from the United States using video teleconference 
methods, if practicable, and with all parties to the proceedings 
participating. In the event that there is no video teleconference 
capability, or the video teleconference capability is unavailable due to 
military requirements or operations, the parties to the proceeding 
shall, at a minimum, be placed in contact by telephone.
    (5) Initial proceedings conducted pursuant to the Act and this part 
shall include the requirement for the person's initial appearance under 
the Federal Rules of Criminal Procedure. The Federal Magistrate Judge 
shall determine whether probable cause exists to believe that an offense 
under section 3261(a) of the Act has been committed and that the 
identified person committed it. This determination is intended to meet 
the due process requirements to which the person is entitled, as 
determined by the U.S. Supreme Court in Gerstein v. Pugh, 420 U.S. 103 
(1975).
    (6) Initial proceedings shall also include a detention hearing where 
required under 18 U.S.C. 3142 and the Federal Rules of Criminal 
Procedure. A detention hearing may be required when:
    (i) The person arrested or charged with a violation of the Act has 
been placed in temporary detention and the intent is to request 
continued detention; or
    (ii) The United States seeks to detain a person arrested or charged 
with a violation of the Act who has not previously been detained.
    (7) A detention hearing shall be conducted by a Federal Magistrate 
Judge. When the person arrested or charged requests, the detention 
hearing be conducted while the person remains outside the United States, 
detention hearing shall be conducted by the same Federal Magistrate 
Judge presiding over the initial proceeding and shall be conducted by 
telephone or other means that allow for voice communication among the 
participants, including the person's defense counsel. If the person does 
not so request, or if the Federal Magistrate Judge so orders, the 
detention hearing shall be held in the United States after the removal 
of the person to the United States.
    (8) In the event that the Federal Magistrate Judge orders the 
person's release prior to trial, and further directs the person's 
presence in the district in which the trial is to take place, the U.S. 
Attorney Office's representative responsible for prosecuting the case 
shall inform the military representative and the DCO's Office of the 
Staff Judge Advocate.
    (9) Under circumstances where the person suspected of committing an 
offense in violation of the Act has never been detained or an initial 
proceeding conducted, the presumption is that a trial date shall be 
established at which the defendant would be ordered to appear. Such an 
order would constitute an order under section 3264(b)(4) of the Act that 
``otherwise orders the person to be removed.'' The person's failure to 
appear as ordered shall be addressed by the Court as with any other 
failure to comply with a valid court order.
    (10) The DCO's Office of the Staff Judge Advocate shall assist in 
arranging for the conduct of initial proceedings required by the Act and 
this part, and shall provide a military representative to assist the 
U.S. Attorney's Office representative in presenting the information for 
the Federal Magistrate Judge's review. The military representative shall 
also provide any administrative assistance the Federal Magistrate Judge 
requires at the location outside the United States where the proceedings 
shall be conducted.
    (e) Removal Of Persons To The United States Or Other Countries. (1) 
In accordance with the limitation established by section 3264 of the 
Act, military authorities shall not remove, to the United States or any 
other foreign country, a person suspected of violating section 3261(a) 
of the Act, except when:

[[Page 646]]

    (i) The person's removal is to another foreign country in which the 
person is believed to have committed a violation of section 3261(a) of 
the Act; or
    (ii) The person is to be delivered, upon request, to authorities of 
a foreign country under section 3263 of the Act and paragraph (b)(8) of 
this section; or
    (iii) The person is arrested or charged with a violation of the Act 
and the person is entitled to, and does not waive, a preliminary 
examination under Federal Rule of Criminal Procedure 5.1, in which case 
the person shall be removed to the U.S. for such examination; or
    (iv) The person's removal is ordered by a Federal Magistrate Judge. 
See paragraph (e)(2) of this section; or
    (v) The Secretary of Defense, or the Secretary's designee, directs 
the person be removed, as provided in section 3264(b)(5) of the Act and 
paragraph (e)(3) of this section.
    (2) Removal By Order Of A Federal Magistrate Judge. Military 
authorities may remove a person suspected of violating section 3261(a) 
of the Act to the United States, when:
    (i) A Federal Magistrate Judge orders that the person be removed to 
the United States to be present at a detention hearing; or
    (ii) A Federal Magistrate Judge orders the detention of the person 
prior to trial (See 18 U.S.C. 3142(e)) in which case the person shall be 
promptly removed to the United States for such detention; or
    (iii) A Federal Magistrate Judge otherwise orders the person be 
removed to the United States.
    (3) Removal By Direction of the Secretary of Defense or Designee. 
The Secretary of Defense, or designee, may order a person's removal from 
a foreign country within the Combatant Command's geographic area of 
responsibility when, in his sole discretion, such removal is required by 
military necessity. See section 3264(b)(5) of the Act. Removal based on 
military necessity may be authorized in order to take into account any 
limiting factors that may result from military operations, as well as 
the capabilities and conditions associated with a specific location.
    (i) When the Secretary of Defense, or designee, determines that a 
person arrested or charged with a violation of the Act should be removed 
from a foreign country, the person shall be removed to the nearest U.S. 
military installation outside the United States where the limiting 
conditions requiring such a removal no longer apply, and where there are 
available facilities and adequate resources to temporarily detain the 
person and conduct the initial proceedings required by the Act and this 
part.
    (ii) The relocation of a person under this paragraph does not 
authorize the further removal of the person to the United States, unless 
that further removal is authorized by an order issued by a Federal 
Magistrate Judge under paragraph (e)(2) of this section.
    (iii) Delegation. The Commander of a Combatant Command, and the 
Commander's principal assistant, are delegated authority to make the 
determination, based on the criteria stated in paragraph (e)(3) of this 
section, that a person arrested or charged with a violation of the Act 
shall be removed from a foreign country under section 3264(b)(5) of the 
Act and this part. Further delegation is authorized, but the delegation 
of authority is limited to a subordinate commander within the command 
who is designated as a general court-martial convening authority under 
the UCMJ.
    (4) A person who is removed to the United States under the 
provisions of the Act and this part and who is thereafter released from 
detention, and otherwise at liberty to return to the location outside 
the United States from which he or she was were removed, shall be 
subject to any requirements imposed by a Federal District Court of 
competent jurisdiction.
    (5) Where a person has been removed to the United States for a 
detention hearing or other judicial proceeding and a Federal Magistrate 
Judge orders the person's release and permits the person to return to 
the overseas location, the Department of Defense (including the Military 
Department originally sponsoring the person to be employed or to 
accompany the Armed Forces outside the United States) shall not be 
responsible for the expenses associated with the return of the person

[[Page 647]]

to the overseas location, or the person's subsequent return travel to 
the United States for further court proceedings that may be required.



                 Sec. Appendix A to Part 153--Guidelines

    (a) Civilians employed by the Armed Forces outside the United States 
who commit felony offenses while outside the U.S. are subject to U.S. 
criminal jurisdiction under the Act, and shall be held accountable for 
their actions, as appropriate.
    (b) Civilians accompanying the Armed Forces outside the United 
States who commit felony offenses while outside the U.S. are subject to 
U.S. criminal jurisdiction under the Act, and shall be held accountable 
for their actions, as appropriate.
    (c) Former members of the Armed Forces who commit felony offenses 
while serving as a member of the Armed Forces outside the U.S., but who 
ceased to be subject to UCMJ court-martial jurisdiction without having 
been tried by court-martial for such offenses, are subject to U.S. 
criminal jurisdiction under the Act and shall be held accountable for 
their actions, as appropriate.
    (d) The procedures of this part and DoD actions to implement the Act 
shall comply with applicable Status of Forces Agreements, and other 
international agreements affecting relationships and activities between 
the respective host nation countries and the U.S. Armed Forces. These 
procedures may be employed outside the United States only if the foreign 
country concerned has been briefed or is otherwise aware of the Act and 
has not interposed an objection to the application of these procedures. 
Such awareness may come in various forms, including but not limited to 
Status of Forces Agreements containing relevant language, Diplomatic 
Notes or other acknowledgements of briefings, or case-by-case 
arrangements, agreements, or understandings with appropriate host nation 
officials.
    (e) Consistent with the long-standing policy of maximizing U.S. 
jurisdiction over its citizens, the Act and this part provide a 
mechanism for furthering this objective by closing a jurisdictional gap 
in U.S. law and thereby permitting the criminal prosecution of covered 
persons for offenses committed outside the United States. In so doing, 
the Act and this part provide, in appropriate cases, an alternative to a 
host nation's exercise of its criminal jurisdiction should the conduct 
that violates U.S. law also violate the law of the host nation, as well 
as a means of prosecuting covered persons for crimes committed in areas 
in which there is no effective host nation criminal justice system.
    (f) In addition to the limitations imposed upon prosecutions by 
section 3261(b) of the Act, the Act and these procedures should be 
reserved generally for serious misconduct for which administrative or 
disciplinary remedies are determined to be inadequate or inappropriate. 
Because of the practical constraints and limitations on the resources 
available to bring these cases to successful prosecution in the United 
States, initiation of action under this part would not generally be 
warranted unless serious misconduct were involved.
    (g) The procedures set out in the Act and this part do not apply to 
cases in which the return of fugitive offenders is sought through 
extradition and similar proceedings, nor are extradition procedures 
applicable to cases under the Act.



      Sec. Appendix B to Part 153--Acknowledgment of Limited Legal 
                         Representation (Sample)

    1. I, ______, have been named as a suspect or defendant in a matter 
to which I have been advised is subject to the jurisdiction of the 
Military Extraterritorial Jurisdiction Act of 2000 (section 3261, et 
seq., of title 18, United States Code.); hereinafter referred to as 
``the Act''). I have also been informed that certain initial proceedings 
under 18 U.S.C. 3265 may be required under this Act, for which I am 
entitled to be represented by legal counsel.
    2. I acknowledge and understand that the appointment of military 
counsel for the limited purpose of legal representation in proceedings 
conducted pursuant to the Act is dependent upon my being unable to 
retain civilian defense counsel representation for such proceedings, due 
to my indigent status, and that qualified military defense counsel has 
been made available.
    3. Pursuant to the Act, ______, a Federal Magistrate Judge, has 
issued the attached Order and has directed that that military counsel be 
made available:

__ For the limited purpose of representing me at an initial proceeding 
to be conducted outside the United States pursuant to 18 U.S.C. 3265,
__ For the limited purpose of representing me in an initial detention 
hearing to be conducted outside the United States pursuant to 18 U.S.C. 
3265(b),

    4. ______, military counsel, has been made available in accordance 
with Department of Defense Instruction 5525.bb, and as directed by the 
attached Order of a Federal Magistrate Judge.
    5. I (do) (do not) wish to be represented by ______, military 
counsel __ (initials).
    6. I understand that the legal representation of ______, military 
counsel, is limited to:
    a. Representation at the initial proceedings conducted outside the 
United States pursuant to 18 U.S.C. 3265.


[[Page 648]]


__ (Initials)

    b. The initial detention hearing to be conducted outside the United 
States pursuant to the Military Extraterritorial Jurisdiction Act of 
2000 (18 U.S.C. 3261, et seq.).

__ (Initials)

    c. Other proceedings (Specify):

______. __ (Initials)

________________________________________________________________________
Signature of Person To Be Represented By Military Counsel

________________________________________________________________________
Signature of Witness*

Attachment:

Federal Magistrate Judge Order

    (Note: The witness must be a person other than the defense counsel 
to be made available for this limited legal representation.)

[[Page 649]]



                          SUBCHAPTER F_SECURITY





PART 155_DEFENSE INDUSTRIAL PERSONNEL SECURITY CLEARANCE PROGRAM-
-Table of Contents



Sec.
155.1 Purpose.
155.2 Applicability and scope.
155.3 Definitions.
155.4 Policy.
155.5 Responsibilities.
155.6 Procedures.

Appendix A to Part 155--Additional Procedural Guidance

    Authority: E.O. 10865, 3 CFR 1959-1963 Comp., p. 398, as amended by 
E.O. 10909, 3 CFR 1959-1963 Comp., p. 437; E.O. 11382, 3 CFR 1966-1970 
Comp., p. 690; and E.O. 12829, 3 CFR 1993 Comp., p. 570.

    Source: 57 FR 5383, Feb. 14, 1992, unless otherwise noted.



Sec.  155.1  Purpose.

    This part updates policy, responsibilities, and procedures of the 
Defense Industrial Personnel Security Clearance Review Program 
implementing E.O. 10865, as amended.

[57 FR 5383, Feb. 14, 1992, as amended at 59 FR 48565, Sept. 22, 1994]



Sec.  155.2  Applicability and scope.

    This part:
    (a) Applies to the Office of the Secretary of Defense, the Military 
Departments, the Chairman of the Joint Chiefs of Staff and the Joint 
Staff, the Inspector General of the Department of Defense (IG, DoD), and 
the Defense Agencies (hereafter referred to collectively as ``the DoD 
Components'').
    (b) By mutual agreement, also extends to other Federal Agencies that 
include:
    (1) Department of Agriculture.
    (2) Department of Commerce.
    (3) Department of Interior.
    (4) Department of Justice.
    (5) Department of Labor.
    (6) Department of State.
    (7) Department of Transportation.
    (8) Department of Treasury.
    (9) Environmental Protection Agency.
    (10) Federal Emergency Management Agency.
    (11) Federal Reserve System.
    (12) General Accounting Office.
    (13) General Services Administration.
    (14) National Aeronautics and Space Administration.
    (15) National Science Foundation.
    (16) Small Business Administration.
    (17) United States Arms Control and Disarmament Agency.
    (18) United States Information Agency.
    (19) United States International Trade Commission.
    (20) United States Trade Representative.
    (c) Applies to cases that the Defense Industrial Security Clearance 
Office (DISCO) forwards to the ``Defense Office of Hearings and Appeals 
(DOHA)'' for action under this part to determine whether it is clearly 
consistent with the national interest to grant or continue a security 
clearance for the applicant.
    (d) Provides a program that may be extended to other security cases 
at the direction of the Assistant Secretary of Defense for Command, 
Control, Communications, and Intelligence (ASD(C\3\I)).
    (e) Does not apply to cases in which:
    (1) A security clearance is withdrawn because the applicant no 
longer has a need for access to classified information;
    (2) An interim security clearance is withdrawn by the DISCO during 
an investigation; or
    (3) A security clearance is withdrawn for administrative reasons 
that are without prejudice as to a later determination of whether the 
grant or continuance of the applicant's security clearance would be 
clearly consistent with the national interest.
    (f) Does not apply to cases for access to sensitive compartmented 
information or a special access program.

[57 FR 5383, Feb. 14, 1992, as amended at 59 FR 35464, July 12, 1994]



Sec.  155.3  Definitions.

    (a) Applicant. Any U.S. citizen who holds or requires a security 
clearance or any immigrant alien who holds or requires a limited access 
authorization for access to classified information

[[Page 650]]

needed in connection with his or her employment in the private sector; 
any U.S. citizen who is a direct-hire employee or selectee for a 
position with the North Atlantic Treaty Organization (NATO) and who 
holds or requires NATO certificates of security clearance or security 
assurances for access to U.S. or foreign classified information; or any 
U.S. citizen nominated by the Red Cross or United Service Organizations 
for assignment with the Military Services overseas. The term 
``applicant'' does not apply to those U.S. citizens who are seconded to 
NATO by U.S. Departments and Agencies or to U.S. citizens recruited 
through such Agencies in response to a request from NATO.
    (b) Clearance Decision. A decision made in accordance with this part 
concerning whether it is clearly consistent with the national interest 
to grant an applicant a security clearance for access to Confidential, 
Secret, or Top Secret information. A favorable clearance decision 
establishes eligibility of the applicant to be granted a security 
clearance for access at the level governed by the documented need for 
such access, and the type of investigation specified for that level in 
32 CFR part 154. An unfavorable clearance decision denies any 
application for a security clearance and revokes any existing security 
clearance, thereby preventing access to classified information at any 
level and the retention of any existing security clearance.



Sec.  155.4  Policy.

    It is DoD policy that:
    (a) All proceedings provided for by this part shall be conducted in 
a fair and impartial manner.
    (b) A clearance decision reflects the basis for an ultimate finding 
as to whether it is clearly consistent with the national interest to 
grant or continue a security clearance for the applicant.
    (c) Except as otherwise provided for by E.O. 10865, as amended, or 
this part, a final unfavorable clearance decision shall not be made 
without first providing the applicant with:
    (1) Notice of specific reasons for the proposed action.
    (2) An opportunity to respond to the reasons.
    (3) Notice of the right to a hearing and the opportunity to cross-
examine persons providing information adverse to the applicant.
    (4) Opportunity to present evidence on his or her own behalf, or to 
be represented by counsel or personal representative.
    (5) Written notice of final clearance decisions.
    (6) Notice of appeal procedures.
    (d) Actions pursuant to this part shall cease upon termination of 
the applicant's need for access to classified information except in 
those cases in which:
    (1) A hearing has commenced;
    (2) A clearance decision has been issued; or
    (3) The applicant's security clearance was suspended and the 
applicant provided a written request that the case continue.

[57 FR 5383, Feb. 14, 1992, as amended at 59 FR 48565, Sept. 22, 1994]



Sec.  155.5  Responsibilities.

    (a) The Assistant Secretary of Defense of Command, Control, 
Communications and Intelligence shall:
    (1) Establish investigative policy and adjudicative standards and 
oversee their application.
    (2) Coordinate with the General Counsel of the Department of Defense 
(GC, DoD) on policy affecting clearance decisions.
    (3) Issue clarifying guidance and instructions as needed.
    (b) The General Counsel of the Department of Defense shall:
    (1) Establish guidance and provide oversight as to legal sufficiency 
of procedures and standards established by this part.
    (2) Establish the organization and composition of the DOHA.
    (3) Designate a civilian attorney to be the Director, DOHA.
    (4) Issue clarifying guidance and instructions as needed.
    (5) Administer the program established by this part.
    (6) Issue invitational travel orders in appropriate cases to persons 
to appear and testify who have provided oral or

[[Page 651]]

written statements adverse to the applicant relating to a controverted 
issue.
    (7) Designate attorneys to be Department Counsels assigned to the 
DOHA to represent the Government's interest in cases and related matters 
within the applicability and scope of this part.
    (8) Designate attorneys to be Administrative Judges assigned to the 
DOHA.
    (9) Designate attorneys to be Administrative Judge members of the 
DOHA Appeal Board.
    (10) Provide for supervision of attorneys and other personnel 
assigned or attached to the DOHA.
    (11) Develop and implement policy established or coordinated with 
the GC, DoD, in accordance with this part.
    (12) Establish and maintain qualitative and quantitative standards 
for all work by DOHA employees arising within the applicability and 
scope of this part.
    (13) Ensure that the Administrative Judges and Appeal Board members 
have the requisite independence to render fair and impartial decisions 
consistent with DoD policy.
    (14) Provide training, clarify policy, or initiate personnel 
actions, as appropriate, to ensure that all DOHA decisions are made in 
accordance with policy, procedures, and standards established by this 
part.
    (15) Provide for maintenance and control of all DOHA records.
    (16) Take actions as provided for in Sec.  155.6(b), and the 
additional procedural guidance in appendix A to this part.
    (17) Establish and maintain procedures for timely assignment and 
completion of cases.
    (18) Issue guidance and instructions, as needed, to fulfill the 
foregoing responsibilities.
    (19) Designate the Director, DOHA, to implement paragraphs (b)(5) 
through (b)(18) of this section, under general guidance of the GC, DoD.
    (c) The Heads of the DoD Components shall provide (from resources 
available to the designated DoD Component) financing, personnel, 
personnel spaces, office facilities, and related administrative support 
required by the DOHA.
    (d) The ASD(C\3\I) shall ensure that cases within the scope and 
applicability of this part are referred promptly to the DOHA, as 
required, and that clearance decisions by the DOHA are acted upon 
without delay.

[57 FR 5383, Feb. 14, 1992, as amended at 59 FR 35464, July 12, 1994]



Sec.  155.6  Procedures.

    (a) Applicants shall be investigated in accordance with the 
standards in 32 CFR part 154.
    (b) An applicant is required to give, and to authorize others to 
give, full, frank, and truthful answers to relevant and material 
questions needed by the DOHA to reach a clearance decision and to 
otherwise comply with the procedures authorized by this part. The 
applicant may elect on constitutional or other grounds not to comply; 
but refusal or failure to furnish or authorize the providing of relevant 
and material information or otherwise cooperate at any stage in the 
investigation or adjudicative process may prevent the DOHA from making a 
clearance decision. If an applicant fails or refuses to:
    (1) Provide relevant and material information or to authorize others 
to provide such information; or
    (2) Proceed in a timely or orderly fashion in accordance with this 
part; or
    (3) Follow directions of an Administrative Judge or the Appeal 
Board; then the Director, DOHA, or designee, may revoke any security 
clearance held by the applicant and discontinue case processing. 
Requests for resumption of case processing and reinstatement of a 
security clearance may be approved by the Director, DOHA, only upon a 
showing of good cause. If the request is denied, in whole or in part, 
the decision is final and bars reapplication for a security clearance 
for 1 year from the date of the revocation.
    (c) Each clearance decision must be a fair and impartial common 
sense determination based upon consideration of all the relevant and 
material information and the pertinent criteria in 32 CFR 154.7 and 
adjudication policy in appendix H to 32 CFR part 154, including as 
appropriate:
    (1) Nature and seriousness of the conduct and surrounding 
circumstances.
    (2) Frequency and recency of the conduct.
    (3) Age of the applicant.

[[Page 652]]

    (4) Motivation of the applicant, and the extent to which the conduct 
was negligent, willful, voluntary, or undertaken with knowledge of the 
consequences involved.
    (5) Absence or presence of rehabilitation.
    (6) Probability that the circumstances or conduct will continue or 
recur in the future.
    (d) Whenever there is a reasonable basis for concluding that an 
applicant's continued access to classified information poses an imminent 
threat to the national interest, any security clearance held by the 
applicant may be suspended by the ASD(C\3\I), with the concurrence of 
the GC, DoD, pending a final clearance decision. This suspension may be 
rescinded by the same authorities upon presentation of additional 
information that conclusively demonstrates that an imminent threat to 
the national interest no longer exists. Procedures in appendix A to this 
part shall be expedited whenever an applicant's security clearance has 
been suspended pursuant to this section.
    (e) Nothing contained in this part shall limit or affect the 
responsibility and powers of the Secretary of Defense or the head of 
another Department or Agency to deny or revoke a security clearance when 
the security of the nation so requires. Such authority may not be 
delegated and may be exercised only when the Secretary of Defense or the 
head of another Department or Agency determines that the hearing 
procedures and other provisions of this part cannot be invoked 
consistent with the national security. Such a determination shall be 
conclusive.
    (f) Additional procedural guidance is in appendix A to this part.

[57 FR 5383, Feb. 14, 1992, as amended at 59 FR 35464, July 12, 1994]



       Sec. Appendix A to Part 155--Additional Procedural Guidance

    1. When the DISCO cannot affirmatively find that it is clearly 
consistent with the national interest to grant or continue a security 
clearance for an applicant, the case will be promptly referred to the 
DOHA.
    2. Upon referral, the DOHA shall make a prompt determination whether 
to grant or continue a security clearance, issue a statement of reasons 
(SOR) as to why it is not clearly consistent with the national interest 
to do so, or take interim actions, including but not limited to:
    a. Direct further investigation.
    b. Propound written interrogatories to the applicant or other 
persons with relevant information.
    c. Requiring the applicant to undergo a medical evaluation by a DoD 
Psychiatric Consultant.
    d. Interviewing the applicant.
    3. An unfavorable clearance decision shall not be made unless the 
applicant has been provided with a written SOR that shall be as detailed 
and comprehensive as the national security permits. A letter of 
instruction with the SOR shall explain that the applicant or Department 
Counsel may request a hearing. It shall also explain the adverse 
consequences for failure to respond to the SOR within the prescribed 
time frame.
    4. The applicant must submit a detailed written answer to the SOR 
under oath or affirmation that shall admit or deny each listed 
allegation. A general denial or other similar answer is insufficient. To 
be entitled to a hearing, the applicant must specifically request a 
hearing in his or her answer. The answer must be received by the DOHA 
within 20 days from receipt of the SOR. Requests for an extension of 
time to file an answer may be submitted to the Director, DOHA, or 
designee, who in turn may grant the extension only upon a showing of 
good cause.
    5. If the applicant does not file a timely and responsive answer to 
the SOR, the Director, DOHA, or designee, may discontinue processing the 
case, deny issuance of the requested security clearance, and direct the 
DISCO to revoke any security clearance held by the applicant.
    6. Should review of the applicant's answer to the SOR indicate that 
allegations are unfounded, or evidence is insufficient for further 
processing, Department Counsel shall take such action as appropriate 
under the circumstances, including but not limited to withdrawal of the 
SOR and transmittal to the Director for notification of the DISCO for 
appropriate action.
    7. If the applicant has not requested a hearing with his or her 
answer to the SOR and Department Counsel has not requested a hearing 
within 20 days of receipt of the applicant's answer, the case shall be 
assigned to an Administrative Judge for a clearance decision based on 
the written record. Department Counsel shall provide the applicant with 
a copy of all relevant and material information that could be adduced at 
a hearing. The applicant shall have 30 days from receipt of the 
information in which to submit a documentary response setting forth 
objections, rebuttal, extenuation, mitigation, or explanation, as 
appropriate.
    8. If a hearing is requested by the applicant or Department Counsel, 
the case shall be assigned to an Administrative Judge for a

[[Page 653]]

clearance decision based on the hearing record. Following issuance of a 
notice of hearing by the Administrative Judge, or designee, the 
applicant shall appear in person with or without counsel or a personal 
representative at a time and place designated by the notice of hearing. 
The applicant shall have a reasonable time to prepare his or her case. 
The applicant shall be notified at least 15 days in advance of the time 
and place of the hearing, which generally shall be held at a location in 
the United States within a metropolitan area near the applicant's place 
of employment or residence. A continuance may be granted by the 
Administrative Judge only for good cause. Hearings may be held outside 
of the United States in NATO cases, or in other cases upon a finding of 
good cause by the Director, DOHA, or designee.
    9. The Administrative Judge may require a prehearing conference.
    10. The Administrative Judge may rule on questions of procedure, 
discovery, and evidence and shall conduct all proceedings in a fair, 
timely, and orderly manner.
    11. Discovery by the applicant is limited to non-privileged 
documents and materials subject to control by the DOHA. Discovery by 
Department Counsel after issuance of an SOR may be granted by the 
Administrative Judge only upon a showing of good cause.
    12. A hearing shall be open except when the applicant requests that 
it be closed, or when the Administrative Judge determines that there is 
a need to protect classified information or there is other good cause 
for keeping the proceeding closed. No inference shall be drawn as to the 
merits of a case on the basis of a request that the hearing be closed.
    13. As far in advance as practical, Department Counsel and the 
applicant shall serve one another with a copy of any pleading, proposed 
documentary evidence, or other written communication to be submitted to 
the Administrative Judge.
    14. Department Counsel is responsible for presenting witnesses and 
other evidence to establish facts alleged in the SOR that have been 
controverted.
    15. The applicant is responsible for presenting witnesses and other 
evidence to rebut, explain, extenuate, or mitigate facts admitted by the 
applicant or proven by Department Counsel, and has the ultimate burden 
of persuasion as to obtaining a favorable clearance decision.
    16. Witnesses shall be subject to cross-examination.
    17. The SOR may be amended at the hearing by the Administrative 
Judge on his or her own motion, or upon motion by Department Counsel or 
the applicant, so as to render it in conformity with the evidence 
admitted or for other good cause. When such amendments are made, the 
Administrative Judge may grant either party's request for such 
additional time as the Administrative Judge may deem appropriate for 
further preparation or other good cause.
    18. The Administrative Judge hearing the case shall notify the 
applicant and all witnesses testifying that 18 U.S.C. 1001 is 
applicable.
    19. The Federal Rules of Evidence (28 U.S.C. 101 et seq.) shall 
serve as a guide. Relevant and material evidence may be received subject 
to rebuttal, and technical rules of evidence may be relaxed, except as 
otherwise provided herein, to permit the development of a full and 
complete record.
    20. Official records or evidence compiled or created in the regular 
course of business, other than DoD personnel background reports of 
investigation (ROI), may be received and considered by the 
Administrative Judge without authenticating witnesses, provided that 
such information has been furnished by an investigative agency pursuant 
to its responsibilities in connection with assisting the Secretary of 
Defense, or the Department or Agency head concerned, to safeguard 
classified information within industry under to E.O. 10865, as amended. 
An ROI may be received with an authenticating witness provided it is 
otherwise admissible under the Federal Rules of Evidence (28 U.S.C. 101 
et seq.).
    21. Records that cannot be inspected by the applicant because they 
are classified may be received and considered by the Administrative 
Judge, provided the GC, DoD, has:
    a. Made a preliminary determination that such evidence appears to be 
relevant and material.
    b. Determined that failure to receive and consider such evidence 
would be substantially harmful to the national security.
    22. A written or oral statement adverse to the applicant on a 
controverted issue may be received and considered by the Administrative 
Judge without affording an opportunity to cross-examine the person 
making the statement orally, or in writing when justified by the 
circumstances, only in either of the following circumstances:
    a. If the head of the Department or Agency supplying the statement 
certifies that the person who furnished the information is a 
confidential informant who has been engaged in obtaining intelligence 
information for the Government and that disclosure of his or her 
identity would be substantially harmful to the national interest; or
    b. If the GC, DoD, has determined the statement concerned appears to 
be relevant, material, and reliable; failure to receive and consider the 
statement would be substantially harmful to the national security; and 
the person who furnished the information cannot appear to testify due to 
the following:
    (1) Death, severe illness, or similar cause, in which case the 
identity of the person and

[[Page 654]]

the information to be considered shall be made available to the 
applicant; or
    (2) Some other cause determined by the Secretary of Defense, or when 
appropriate by the Department or Agency head, to be good and sufficient.
    23. Whenever evidence is received under item 21. or 22., the 
applicant shall be furnished with as comprehensive and detailed a 
summary of the information as the national security permits. The 
Administrative Judge and Appeal Board may make a clearance decision 
either favorable or unfavorable to the applicant based on such evidence 
after giving appropriate consideration to the fact that the applicant 
did not have an opportunity to confront such evidence, but any final 
determination adverse to the applicant shall be made only by the 
Secretary of Defense, or the Department or Agency head, based on a 
personal review of the case record.
    24. A verbatim transcript shall be made of the hearing. The 
applicant shall be furnished one copy of the transcript, less the 
exhibits, without cost.
    25. The Administrative Judge shall make a written clearance decision 
in a timely manner setting forth pertinent findings of fact, policies, 
and conclusions as to the allegations in the SOR, and whether it is 
clearly consistent with the national interest to grant or continue a 
security clearance for the applicant. The applicant and Department 
Counsel shall each be provided a copy of the clearance decision. In 
cases in which evidence is received under items 21. and 22., the 
Administrative Judge's written clearance decision may require deletions 
in the interest of national security.
    26. If the Administrative Judge decides that it is clearly 
consistent with the national interest for the applicant to be granted or 
to retain a security clearance, the DISCO shall be so notified by the 
Director, DOHA, or designee, when the clearance decision becomes final 
in accordance with item 36., below.
    27. If the Administrative Judge decides that it is not clearly 
consistent with the national interest for the applicant to be granted or 
to retain a security clearance, the Director, DOHA, or designee, shall 
expeditiously notify the DISCO, which shall in turn notify the 
applicant's employer of the denial or revocation of the applicant's 
security clearance. The letter forwarding the Administrative Judge's 
clearance decision to the applicant shall advise the applicant that 
these actions are being taken, and that the applicant may appeal the 
Administrative Judge's clearance decision.
    28. The applicant or Department Counsel may appeal the 
Administrative Judge's clearance decision by filing a written notice of 
appeal with the Appeal Board within 15 days after the date of the 
Administrative Judge's clearance decision. A notice of appeal received 
after 15 days from the date of the clearance decision shall not be 
accepted by the Appeal Board, or designated Board Member, except for 
good cause. A notice of cross appeal may be filed with the Appeal Board 
within 10 days of receipt of the notice of appeal. An untimely cross 
appeal shall not be accepted by the Appeal Board, or designated Board 
Member, except for good cause.
    29. Upon receipt of a notice of appeal, the Appeal Board shall be 
provided the case record. No new evidence shall be received or 
considered by the Appeal Board.
    30. After filing a timely notice of appeal, a written appeal brief 
must be received by the Appeal Board within 45 days from the date of the 
Administrative Judge's clearance decision. The appeal brief must state 
the specific issue or issues being raised, and cite specific portions of 
the case record supporting any alleged error. A written reply brief, if 
any, must be filed within 20 days from receipt of the appeal brief. A 
copy of any brief filed must be served upon the applicant or Department 
Counsel, as appropriate.
    31. Requests for extension of time for submission of briefs may be 
submitted to the Appeal Board or designated Board Member.
    A copy of any request for extension of time must be served on the 
opposing party at the time of submission. The Appeal Board, or 
designated Board Member, shall be responsible for controlling the Appeal 
Board's docket, and may enter an order dismissing an appeal in an 
appropriate case or vacate such an order upon a showing of good cause.
    32. The Appeal Board shall address the material issues raised by the 
parties to determine whether harmful error occurred. Its scope of review 
shall be to determine whether or not:
    a. The Administrative Judge's findings of fact are supported by such 
relevant evidence as a reasonable mind might accept as adequate to 
support a conclusion in light of all the contrary evidence in the same 
record. In making this review, the Appeal Board shall give deference to 
the credibility determinations of the Administrative Judge;
    b. The Administrative Judge adhered to the procedures required by 
E.O. 10865, as amended and this part; or
    c. The Administrative Judge's rulings or conclusions are arbitrary, 
capricious, or contrary to law.
    33. The Appeal Board shall issue a written clearance decision 
addressing the material issues raised on appeal. The Appeal Board shall 
have authority to:
    a. Affirm the decision of the Administrative Judge;
    b. Remand the case to an Administrative Judge to correct identified 
error. If the case is remanded, the Appeal Board shall specify the 
action to be taken on remand; or

[[Page 655]]

    c. Reverse the decision of the Administrative Judge if correction of 
identified error mandates such action.
    34. A copy of the Appeal Board's written clearance decision shall be 
provided to the parties. In cases in which evidence was received under 
items 21. and 22., the Appeal Board's clearance decision may require 
deletions in the interest of national security.
    35. Upon remand, the case file shall be assigned to an 
Administrative Judge for correction of error(s) in accordance with the 
Appeal Board's clearance decision. The assigned Administrative Judge 
shall make a new clearance decision in the case after correcting the 
error(s) identified by the Appeal Board. The Administrative Judge's 
clearance decision after remand shall be provided to the parties. The 
clearance decision after remand may be appealed pursuant to items 28. to 
35.
    36. A clearance decision shall be considered final when:
    a. A security clearance is granted or continued pursuant to item 2.;
    b. No timely notice of appeal is filed;
    c. No timely appeal brief is filed after a notice of appeal has been 
filed;
    d. The appeal has been withdrawn;
    e. When the Appeal Board affirms or reverses an Administrative 
Judge's clearance decision; or
    f. When a decision has been made by the Secretary of Defense, or the 
Department or Agency head, under item 23.
    The Director, DOHA, or designee, shall notify the DISCO of all final 
clearance decisions.
    37. An applicant whose security clearance has been finally denied or 
revoked by the DOHA is barred from reapplication for 1 year from the 
date of the initial unfavorable clearance decision.
    38. A reapplication for a security clearance must be made initially 
by the applicant's employer to the DISCO and is subject to the same 
processing requirements as those for a new security clearance 
application. The applicant shall thereafter be advised he is responsible 
for providing the Director, DOHA, with a copy of any adverse clearance 
decision together with evidence that circumstances or conditions 
previously found against the applicant have been rectified or 
sufficiently mitigated to warrant reconsideration.
    39. If the Director, DOHA, determines that reconsideration is 
warranted, the case shall be subject to this part for making a clearance 
decision.
    40. If the Director, DOHA, determines that reconsideration is not 
warranted, the DOHA shall notify the applicant of this decision. Such a 
decision is final and bars further reapplication for an additional one 
year period from the date of the decision rejecting the application.
    41. Nothing in this part is intended to give an applicant reapplying 
for a security clearance any greater rights than those applicable to any 
other applicant under this part.
    42. An applicant may file a written petition, under oath or 
affirmation, for reimbursement of loss of earnings resulting from the 
suspension, revocation, or denial of his or her security clearance. The 
petition for reimbursement must include as an attachment the favorable 
clearance decision and documentation supporting the reimbursement claim. 
The Director, DOHA, or designee, may in his or her discretion require 
additional information from the petitioner.
    43. Claims for reimbursement must be filed with the Director, DOHA, 
or designee, within 1 year after the date the security clearance is 
granted. Department Counsel generally shall file a response within 60 
days after receipt of applicant's petition for reimbursement and provide 
a copy thereof to the applicant.
    44. Reimbursement is authorized only if the applicant demonstrates 
by clear and convincing evidence to the Director, DOHA, that all of the 
following conditions are met:
    a. The suspension, denial, or revocation was the primary cause of 
the claimed pecuniary loss; and
    b. The suspension, denial, or revocation was due to gross negligence 
of the Department of Defense at the time the action was taken, and not 
in any way by the applicant's failure or refusal to cooperate.
    45. The amount of reimbursement shall not exceed the difference 
between the earnings of the applicant at the time of the suspension, 
revocation, or denial and the applicant's interim earnings, and further 
shall be subject to reasonable efforts on the part of the applicant to 
mitigate any loss of earnings. No reimbursement shall be allowed for any 
period of undue delay resulting from the applicant's acts or failure to 
act. Reimbursement is not authorized for loss of merit raises and 
general increases, loss of employment opportunities, counsel's fees, or 
other costs relating to proceedings under this part.
    46. Claims approved by the Director, DOHA, shall be forwarded to the 
Department or Agency concerned for payment. Any payment made in response 
to a claim for reimbursement shall be in full satisfaction of any 
further claim against the United States or any Federal Department or 
Agency, or any of its officers or employees.
    47. Clearance decisions issued by Administrative Judges and the 
Appeal Board shall be indexed and made available in redacted form to the 
public.

[57 FR 5383, Feb. 14, 1992, as amended at 59 FR 35464, July 12, 1994; 59 
FR 48565, Sept. 22, 1994]

[[Page 656]]



PART 156_DEPARTMENT OF DEFENSE PERSONNEL SECURITY PROGRAM (PSP)-
-Table of Contents



Sec.
156.1 Purpose.
156.2 Applicability.
156.3 Policy.
156.4 Responsibilities.
156.5 National security positions.
156.6 Common access card (CAC) investigation and adjudication.
156.7 Definitions.

    Authority: E.O. 12968, as amended; E.O. 10450, as amended; E.O. 
10865, as amended; E.O. 13526; E.O. 12829, as amended; E.O. 13467; E.O. 
13488; E.O. 12333, as amended; 5 U.S.C 301 and 7532; section 1072 of 
Pub. L. 110-181, as amended; 15 U.S.C. 278g-3; 40 U.S.C. 11331; 10 
U.S.C. 1564; 50 U.S.C. 3343; 5 CFR parts 731, 731.101, 732, and 736; and 
HSPD-12.

    Source: 79 FR 18163, Apr. 1, 2014, unless otherwise noted.



Sec.  156.1  Purpose.

    This part updates policies and responsibilities for the DoD 
Personnel Security Program (PSP) consistent with E.O. 12968, as amended; 
E.O. 10450, as amended; E.O. 10865, as amended; E.O. 13526; E.O. 12829, 
as amended; E.O. 13467; E.O. 13488; E.O. 12333, as amended; 5 U.S.C. 301 
and 7532; section 1072 of Public Law 110-181, as amended; 15 U.S.C. 
278g-3; 40 U.S.C. 11331; 10 U.S.C. 1564; 32 CFR parts 147, 154 through 
156; 50 U.S.C. 3343; 5 CFR parts 731, 731.101, 732 and 736; and HSPD-12.



Sec.  156.2  Applicability.

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



Sec.  156.3  Policy.

    It is DoD policy that:
    (a) The Department shall establish and maintain a uniform DoD PSP to 
the extent consistent with standards and procedures in E.O. 12968, as 
amended; E.O. 10450, as amended; E.O. 10865, as amended; E.O. 13526; 
E.O. 12829, as amended; E.O. 13467; E.O. 13488; E.O. 12333, as amended; 
32 CFR parts 147, 154 through 156; 5 CFR parts 731, 731.101, 732 and 
736; 5 U.S.C. 301 and 7532; section 1072 of Public Law 110-181, as 
amended; 15 U.S.C. 278g-3; section 11331 of 40 U.S.C.; 10 U.S.C. 1564; 
50 U.S.C. 3343; and the Intelligence Community Directive Number 704 (ICD 
704) (available on the Internet at http://www.dni.gov).
    (b) DoD PSP policies and procedures shall be aligned using 
consistent standards to the extent possible; provide for reciprocal 
recognition of existing investigations and adjudications; be cost-
effective, timely, and provide efficient protection of the national 
interest; and provide fair treatment of those upon whom the Federal 
Government relies to conduct the Nation's business and protect national 
security.
    (c) Discretionary judgments used to determine eligibility for 
national security positions are an inherently governmental function and 
shall be performed by appropriately trained and favorably adjudicated 
Federal Government personnel or appropriate automated procedures.
    (d) No negative inference may be raised solely on the basis of 
mental health counseling. Such counseling may be a positive factor that, 
by itself, shall not jeopardize the rendering of eligibility 
determinations or temporary eligibility for access to national security 
information. However, mental health counseling, where relevant to 
adjudication for a national security position, may justify further 
inquiry to assess risk factors that may be relevant to the DoD PSP.
    (e) The DoD shall not discriminate nor may any inference be raised 
on the basis of race, color, religion, sex, national origin, disability, 
or sexual orientation.
    (f) Discretionary judgments that determine eligibility for national 
security positions shall be clearly consistent with the national 
security interests of the United States. Any doubt shall be resolved in 
favor of national security.
    (g) No person shall be deemed to be eligible for a national security 
position merely by reason of Federal service or contracting, licensee, 
certificate holder, or grantee status, or as a matter of

[[Page 657]]

right or privilege, or as a result of any particular title, rank, 
position, or affiliation.
    (h) No person shall be appointed or assigned to a national security 
position when an unfavorable personnel security determination has been 
rendered.
    (i) Eligibility for national security positions shall be granted 
only to persons who are U.S. citizens for whom the investigative and 
adjudicative process has been favorably completed. However, based on 
exceptional circumstances where official functions must be performed 
prior to completion of the investigative and adjudicative process, 
temporary eligibility for access to classified information may be 
granted while the investigation is underway.
    (j) As an exception, a non-U.S. citizen who possesses an expertise 
that cannot be filled by a cleared or clearable U.S. citizen, may hold a 
national security position or be granted a limited access authorization 
to classified information in support of a specific DoD program, project, 
or contract following a favorable security determination by an 
authorized adjudication facility.
    (k) The DoD shall establish investigative and adjudicative policy 
and procedures to determine whether to issue, deny or revoke common 
access cards (CACs) in accordance with the standards of the Homeland 
Security Presidential Directive (HSPD)-12 (available in the Public 
Papers of the Presidents of the United States: George W. Bush (2004, 
Book II, page 1765) found on the Internet at http://www.gpo.gov/); 
Office of Management and Budget Memorandum (OMB) M-05-24 (available on 
the Internet at http://www.whitehouse.gov/omb); Federal Information 
Processing Standards Publication 201-1 (FIPS 201-1) or successor 
(available on the Internet at http://csrc.nist.gov/); 48 CFR, Chapter 1, 
Parts 1-99 (Federal Acquisition Regulation); 48 CFR, Chapter 2, Parts 
201-253 (Defense Federal Acquisition Regulation Supplement), and the 
Office of Personnel Management (OPM) Memorandum, ``Final Credentialing 
Standards for Issuing Personal Identity Verification Cards under HSPD-
12,'' dated July 31, 2008 (available on the Internet at http://
www.opm.gov/), as applicable.
    (l) Information about individuals collected as part of the 
investigative and adjudicative process shall be managed in accordance 
with applicable laws and DoD policies, including those related to 
privacy and confidentiality, security of information, and access to 
information.



Sec.  156.4  Responsibilities.

    (a) The Under Secretary of Defense for Intelligence (USD(I)) shall:
    (1) Develop, coordinate, and oversee the implementation of policy, 
programs, and guidance for the DoD PSP.
    (2) In coordination with the Under Secretary of Defense for 
Personnel and Readiness (USD(P&R)) and the General Counsel of the DoD 
(GC, DoD), develop policy for DoD personnel for the CAC personnel 
security investigation (PSI) and adjudication in accordance with HSPD-
12; OMB Memorandum M-05-24; FIPS 201-1; and OPM Memorandum, ``Final 
Credentialing Standards for Issuing Personal Identity Verification Cards 
under HSPD-12.''
    (3) In coordination with the Under Secretary of Defense for 
Acquisition, Technology and Logistics (USD(AT&L)) and the GC, DoD, 
develop policy for contractor investigations for CAC adjudication, 
outside the purview of the National Industrial Security Program, under 
the terms of applicable contracts in accordance with HSPD-12; OMB 
Memorandum M-05-24; FIPS 201-1; the Federal Acquisition Regulation; the 
Defense Federal Acquisition Regulation Supplement; and OPM Memorandum, 
``Final Credentialing Standards for Issuing Personal Identity 
Verification Cards under HSPD-12.''
    (4) Issue guidance implementing the policy in this part.
    (b) The Deputy Under Secretary of Defense for Intelligence & 
Security (DUSD(I&S)), under the authority, direction, and control of the 
USD(I) shall:
    (1) Ensure that the PSP is consistent, cost-effective, efficient, 
and balances the rights of individuals with the interests of national 
security.
    (2) Develop and publish revisions to 32 CFR Part 154.

[[Page 658]]

    (3) Approve, coordinate, and oversee all DoD personnel security 
research initiatives and activities to improve the efficiency, 
effectiveness, and fairness of the DoD PSP.
    (4) Ensure that the Defense Security Service (DSS) provides 
education, training, and awareness support to the DoD PSP.
    (5) Serve as the primary contact between DoD, the Red Cross, United 
Service Organizations, and other organizations with direct DoD 
affiliation for all matters relating to the DoD PSP.
    (6) When appropriate, approve requests for exceptions to the DoD PSP 
relating to national security eligibility requirements for access to 
classified information except North Atlantic Treaty Organization (NATO) 
classified information. Requests for exceptions involving access to NATO 
classified information shall be sent to the Office of the Under 
Secretary of Defense for Policy.
    (7) Develop guidance, interpretation, and clarification regarding 
the DoD PSP as needed.
    (8) Conduct oversight inspections of the DoD Components for 
implementation and compliance with DoD personnel security policy and 
operating procedures.
    (9) In furtherance of coordinated Government-wide initiatives under 
E.O. 13467, develop a framework setting forth an overarching strategy 
identifying goals, performance measures, roles and responsibilities, a 
communications strategy, and metrics to measure the quality of security 
clearance investigations and adjudications to ensure a sound DoD PSP 
that will continue to meet the needs of DoD.
    (c) The USD(AT&L) shall:
    (1) Establish acquisition policy, procedures, and guidance, in 
coordination with the USD(I) that facilitate DoD Component compliance 
with the DoD PSP.
    (2) Establish regulatory requirements within the Federal Acquisition 
Regulation and Defense Federal Acquisition Regulation for contracts and 
agreements that require non-DoD personnel to adhere to personnel 
security procedures in the performance of a contract or agreement.
    (d) The Under Secretary of Defense for Policy (USD(P)) is the 
approval authority for requests for exceptions to the DoD PSP involving 
access to NATO classified information.
    (e) The GC, DoD shall:
    (1) Provide advice and guidance as to the legal sufficiency of 
procedures and standards involved in implementing the DoD PSP and 
exercise oversight of the established administrative due process 
procedures of the DoD PSP.
    (2) Perform functions relating to the DoD PSP including the 
maintenance and oversight of the Defense Office of Hearings and Appeals 
(DOHA).
    (f) The Heads of the DoD Components shall:
    (1) Designate a senior agency official, consistent with the 
provisions of E.O. 12968, as amended, who shall direct and administer 
the DoD PSP consistent with this part.
    (2) Comply with the policy and procedures regarding investigation 
and adjudication for CAC issuance and distribute this guidance to local 
and regional organizations.
    (3) Provide funding to cover Component requirements for PSIs, 
adjudication, and recording of results to comply with the DoD PSP.
    (4) Enforce requirements for prompt reporting of significant 
derogatory information, unfavorable administrative actions, and adverse 
actions to the appropriate personnel security, human resources, and 
counterintelligence official(s), as appropriate, within their respective 
Component.
    (5) Perform functions relating to the DoD Security Professional 
Education Development Program to ensure the security workforce in their 
respective Component has the knowledge and skills required to perform 
security functional tasks.
    (6) Provide requested information and recommendations, as 
appropriate, on any aspect of this part and the DoD PSP to the USD(I).
    (7) Enforce the requirement that DoD personnel security adjudication 
system(s) of records, within their respective Components, shall only be 
used as a personnel security system of records and shall not be used as 
a pre-hiring screening tool.

[[Page 659]]



Sec.  156.5  National security positions.

    (a) Procedures. The objective of the PSP is to ensure persons deemed 
eligible for national security positions remain reliable and 
trustworthy.
    (1) Duties considered sensitive and critical to national security do 
not always involve classified activities or classified matters. 
Personnel security procedures for national security positions are set 
forth in E.O. 12968, as amended; E.O. 10865, 32 CFR parts 154-155; ICD 
704; and DoD Regulation 5220.22-R. The specific procedures applicable in 
each case type are set forth in DoD issuances.
    (2) Employees with access to automated systems that contain active 
duty, guard, or military reservists' personally identifiable information 
or information pertaining to Service members that are otherwise 
protected from disclosure by section 552a of title 5 United States Code, 
may be designated as national security positions within DoD, where such 
access has the potential to cause damage to national security.
    (b) Sensitive Compartmented Information (SCI) Eligibility. 
Investigative and adjudicative requirements for SCI eligibility shall be 
executed in accordance with this part and ICD 704.
    (c) Adjudication. (1) Personnel security criteria and adjudicative 
standards are described in E.O. 12968, as amended; 32 CFR parts 147, 154 
and 155; ICD 704, and DoD Regulation 5220.22-R, as applicable, in 
accordance with Adjudicative Guidelines for Determining Eligibility for 
Access to Classified Information and other types of protected 
information or assignment to national security positions. Adjudications 
of eligibility for national security positions, regardless of whether 
they involve access to classified information, must be made in 
accordance with the Adjudicative Guidelines for Determining Eligibility 
for Access to Classified Information.
    (2) When an unfavorable personnel security determination is 
rendered:
    (i) Individuals cannot be appointed or assigned to national security 
positions.
    (ii) An individual currently occupying a national security position 
will be immediately removed from the national security position and 
placed, in accordance with agency policy, in an existing non-sensitive 
position if available. Placement in a non-sensitive position requires 
compliance with employment suitability standards. The national security 
position is not to be modified or a new position created to circumvent 
an unfavorable personnel security determination. The individual is to be 
placed in an appropriate status, in accordance with agency policy, until 
a final security determination is made. A final security determination 
is the granting, denial or revocation by an appropriate central 
adjudications facility or an appeal board decision, whichever is later.
    (iii) To ensure consistency and quality in determinations of 
eligibility for national security positions, adjudicators must 
successfully complete the full program of professional training provided 
by the DSS Center for Development of Security Excellence (or equivalent 
training) and be certified through the DoD Professional Certification 
Program for Adjudicators within 2 years of program implementation or, 
for new hires, within 2 years of eligibility for certification testing.
    (d) Appeal Procedures--Denial or Revocation of Eligibility. 
Individuals may elect to appeal unfavorable personnel security 
determinations in accordance with the procedures set forth in E.O. 
12968, as amended; parts 154 and 155 of 32 CFR; ICD 704, and DoD 
Regulation 5220.22-R as applicable or as otherwise authorized by law.
    (e) Polygraph. Under certain conditions, DoD Components are 
authorized to use polygraph examinations to resolve credible derogatory 
information developed in connection with a personnel security 
investigation; to aid in the related adjudication; or to facilitate 
classified access decisions.
    (f) Continuous Evaluation. All personnel in national security 
positions shall be subject to continuous evaluation.
    (g) Financial Disclosure. DoD Component implementation of the 
electronic financial disclosure requirement, consistent with E.O. 12968, 
shall be completed by the end of calendar year 2012.
    (h) Reciprocal Acceptance of Eligibility Determinations. (1) DoD 
reciprocally accepts existing national security eligibility 
determinations or clearances

[[Page 660]]

from other government agencies in accordance with E.O. 13467, OMB 
Memorandums ``Reciprocal Recognition of Existing Personnel Security 
Clearances'' dated December 12, 2005 (Copies available on the Internet 
at http://www.whitehouse.gov/omb) and July 17, 2006 (Copies available on 
the Internet at http://www.whitehouse.gov/omb).
    (2) Reciprocity for SCI eligibility shall be executed in accordance 
with ICD 704 and associated Director of National Intelligence guidance.
    (3) Personnel who have been determined eligible for national 
security positions should not be subjected to additional security 
reviews, completion of a new security questionnaire, or initiation of a 
new investigative check, unless credible derogatory information that was 
not previously adjudicated becomes known, or the previous adjudication 
was granted by a condition, deviation, or waiver pursuant the provisions 
of OMB Memorandums ``Reciprocal Recognition of Existing Personnel 
Security Clearances'' dated December 12, 2005, or there has been a break 
in service of more than 24 months. Exceptions for access to SCI or 
special access programs are listed in the OMB Memorandums ``Reciprocal 
Recognition of Existing Personnel Security Clearances'' dated July 17, 
2006.
    (i) National Security Agency (NSA)/Central Security Service (CSS). 
Employees, contractors, military assignees, and others with similar 
affiliations with the NSA/CSS must maintain SCI eligibility for access 
to sensitive cryptologic information in accordance with 50 U.S.C. 
chapter 23.
    (j) Wounded Warrior Security and Intelligence Internship Program. 
PSIs in support of wounded warriors may be submitted and processed 
regardless of the time remaining in military service. Investigations 
will be accelerated through a special program code established by the 
Office of the USD(I) to ensure expedited service by the investigating 
and adjudicating agencies.
    (1) Category 2 wounded, ill, or injured uniformed service personnel 
who expect to be separated with a medical disability rating of 30 
percent or greater may submit a PSI for Top Secret clearance with SCI 
eligibility prior to medical separation provided they are serving in or 
have been nominated for a wounded warrior internship program.
    (2) The investigations will be funded by the DoD Component that is 
offering the internship. If the DoD Component does not have funds 
available, the Military Service in which the uniform service personnel 
served may choose to fund the investigation.



Sec.  156.6  Common access card (CAC) investigation and adjudication.

    (a) General. Individuals entrusted with access to Federal property, 
information systems, and any other information bearing on national 
security must not put the Government at risk or provide an avenue for 
terrorism.
    (1) All individuals requiring a CAC must meet credentialing 
standards of OPM Memorandum, ``Final Credentialing Standards for Issuing 
Personal Identity Verification Cards under HSPD-12.'' For those 
individuals who are subject to an interim credentialing decision before 
a security, suitability, or equivalent adjudication is completed, the 
OPM credentialing standards will be the basis for issuing or denying a 
CAC. The subsequent credentialing decision will be made upon receipt of 
the completed investigation from the ISP.
    (2) If an individual is found unsuitable for employment in a covered 
position under 5 CFR 731.101, ineligible for access to classified 
information under E.O. 12968, or disqualified from appointment in the 
excepted service or from working on a contract, the unfavorable decision 
is a sufficient basis for non-issuance or revocation of a CAC, but does 
not necessarily mandate this result.
    (b) Investigation. A favorably adjudicated National Agency Check 
with Inquiries (NACI) is the minimum investigation required for a final 
credentialing determination for CAC.
    (1) An interim credentialing determination can be made based on the 
results of a completed National Agency Check or an Federal Bureau of 
Investigation National Criminal History Check (fingerprint check), and 
submission of a request for investigation (NACI or greater).
    (2) Individuals identified as having a favorably adjudicated 
investigation on

[[Page 661]]

record, equivalent to (or greater than) the NACI do not require an 
additional investigation for CAC issuance.
    (3) There is no requirement to reinvestigate CAC holders unless they 
are subject to reinvestigation for national security or suitability 
reasons as specified in applicable DoD issuances.
    (4) Existing CAC holders without the requisite background 
investigation on record must be investigated in accordance with OMB 
Memorandum M-05-24, ``Implementation of Homeland Security Presidential 
Directive (HSPD) 12--Policy for a Common Identification Standard for 
Federal Employees and Contractors,'' dated August 5, 2005.
    (c) Adjudication. The ultimate determination whether to authorize 
CAC issuance or revoke the CAC must be an overall common-sense judgment 
after careful consideration of the basic and, if applicable, 
supplemental credentialing standards in OPM Memorandum, ``Final 
Credentialing Standards for Issuing Personal Identity Verification Cards 
under HSPD-12,'' each of which is to be evaluated in the context of the 
whole person. These standards shall be evaluated to determine if there 
is a reasonable basis to believe that issuing a CAC to the individual 
poses an unacceptable risk.
    (1) Each case is unique and must be judged on its own merits. To the 
extent pertinent to the individual case, when evaluating the conduct, 
the adjudicator should consider: the nature and seriousness of the 
conduct, the circumstances surrounding the conduct, the recency and 
frequency of the conduct, the individual's age and maturity at the time 
of the conduct, contributing external conditions, and the presence or 
absence of rehabilitation or efforts toward rehabilitation.
    (2) Final credentialing standards are:
    (i) Basic Credentialing Standards. All CAC adjudications must apply 
the basic credentialing standards. CAC shall not be issued when a 
disqualifying factor cannot be mitigated.
    (ii) Supplemental Credentialing Standards. The supplemental 
credentialing standards, in addition to the basic credentialing 
standards, shall apply generally to individuals who are not subject to 
adjudication for eligibility for a sensitive position or access to 
classified information, suitability for Federal employment or fitness. 
These standards may be applied based on the risk associated with the 
position or work on the contract.
    (3) All interim and final adjudicative determinations shall be made 
by cleared and trained Federal Government personnel. Automated 
adjudicative processes shall be used to the maximum extent practicable.
    (4) Adjudication decisions of CAC investigations shall be 
incorporated into the Consolidated Central Adjudication Facility as 
directed by the Deputy Secretary of Defense.
    (5) CAC adjudicators must successfully complete formal training 
through a DoD adjudicator course from the DSS Center for Development of 
Security Excellence to achieve maximum consistency and fairness of 
decisions rendered.
    (6) Federal Government credentialing standards do not prohibit 
employment of convicted felons who have been released from correctional 
institutions, absent other issues, if they have demonstrated clear 
evidence of rehabilitation.
    (d) Appeals. CAC applicants or holders may appeal CAC denial or 
revocation.
    (1) No separate administrative appeal process is allowed when an 
individual has been denied a CAC as a result of a negative suitability 
determination under 5 CFR Part 731, an applicable decision to deny or 
revoke a security clearance, or based on the results of a determination 
to disqualify the person from an appointment in an excepted service 
position or from working on a contract for reasons other than 
eligibility for a Federal Credential as described in OPM Memorandum, 
``Final Credentialing Standards for Issuing Personal Identity 
Verification Cards under HSPD-12.'' If a later denial or revocation of a 
CAC results from an applicable denial or revocation of a security 
clearance, suitability decision, or other action for which 
administrative process was already provided on grounds that support 
denial or revocation of a CAC, no separate appeal for CAC denial or 
revocation is allowed.

[[Page 662]]

    (2) Initial civilian and contractor applicants who have been denied 
a CAC, and for whom an appeal is allowed under this paragraph, may elect 
to appeal to a three member board containing no more than one security 
representative from the sponsoring activity.
    (3) Contractor employees who have had their CAC revoked, and for 
whom an appeal is allowed under this paragraph, may appeal to DOHA under 
the established administrative process set out in 32 CFR Part 155.
    (4) Decisions following appeal are final.
    (5) Individuals whose CACs have been denied or revoked are eligible 
for reconsideration 1 year after the date of final denial or revocation, 
provided the sponsoring activity supports reconsideration. Individuals 
with a statutory or regulatory bar are not eligible for reconsideration 
while under debarment.
    (e) Foreign Nationals. Special considerations for conducting 
background investigations of non-U.S. nationals (foreign nationals) are 
addressed in OPM Memorandum, ``Final Credentialing Standards for Issuing 
Personal Identity Verification Cards under HSPD-12.'' The following 
criteria shall be met prior to CAC issuance to foreign nationals:
    (1) The background investigation must be completed and favorably 
adjudicated before issuing CACs to foreign nationals.
    (2) Foreign nationals are not eligible to receive CAC on an interim 
basis.
    (3) At foreign locations:
    (i) Foreign national background investigations may vary based on 
standing reciprocity treaties concerning identity assurance and 
information exchange that exist between the United States and its 
allies. This includes foreign military, civilian, or contract support 
with a visit status and security assurance that has been confirmed, 
documented, and processed in accordance with USD(P) policy.
    (ii) The type of background investigation may also vary based upon 
agency agreements with the host country when the foreign national CAC 
applicant (such as a DoD direct or indirect hire) has not resided in the 
United States for at least 3 of the past 5 years or is residing in a 
foreign country. The investigation must be consistent with NACI, to the 
extent possible, and include a fingerprint check against the Federal 
Bureau of Investigation (FBI) criminal history database, an FBI 
Investigations Files (name check) search, and a name check against the 
Terrorist Screening Database.
    (4) At U.S.-based locations and in U.S. territories:
    (i) Foreign nationals who have resided in the United States or U.S. 
territory for 3 years or more must have a NACI or greater investigation.
    (ii) Components may delay the background investigation of foreign 
nationals who have resided in the U.S. or U.S. territory for less than 3 
years until the individual has been in the U.S. or U.S. territory for 3 
years. When the investigation is delayed, the Component may, in lieu of 
a CAC, issue an alternative facility access credential at the discretion 
of the relevant Component official based on a risk determination.
    (f) Recording Final Adjudication. Immediately following final 
adjudication, the sponsoring activity shall record the final eligibility 
determination (active, revoked, denied, etc.) in the OPM Central 
Verification System as directed by OPM Memorandum, ``Final Credentialing 
Standards for Issuing Personal Identity Verification Cards under HSPD-
12,'' and maintain local records for posting in a DoD repository when 
available.
    (g) Reciprocity of CAC Determinations. (1) The sponsoring activity 
shall not re-adjudicate CAC determinations for individuals transferring 
from another Federal department or agency, provided:
    (i) Possession of a valid personal identity verification (PIV) card 
or CAC can be verified by the individual's former department or agency.
    (ii) The individual has undergone the required NACI or other 
equivalent suitability, public trust, or national security investigation 
and received favorable adjudication from the former agency.
    (iii) There is no break in service greater than 24 months and the 
individual has no actionable information since the date of the last 
completed investigation.

[[Page 663]]

    (2) Interim CAC determinations are not eligible to be transferred or 
reciprocally accepted. Reciprocity shall be based on final favorable 
adjudication only.



Sec.  156.7  Definitions.

    These terms and their definitions are for the purposes of this part:
    Continuous evaluation. Defined in section 1.3(d) of E.O. 13467.
    Contractor. Defined in E.O. 13467.
    Employee. Defined in E.O. 12968, as amended.
    Limited access authorization. Defined in 32 CFR Part 154.
    National security position. (1) Any position in a department or 
agency, the occupant of which could bring about, by virtue of the nature 
of the position, a material adverse effect on the national security.
    (i) Such positions include those requiring eligibility for access to 
classified information.
    (ii) Other such positions include, but are not limited to, those 
whose duties include:
    (A) Protecting the nation, its citizens and residents from acts of 
terrorism, espionage, or foreign aggression, including those positions 
where the occupant's duties involve protecting the nation's borders, 
ports, critical infrastructure or key resources, and where the 
occupant's neglect, action, or inaction could bring about a material 
adverse effect on the national security;
    (B) Developing defense plans or policies;
    (C) Planning or conducting intelligence or counterintelligence 
activities, counterterrorism activities and related activities concerned 
with the preservation of the military strength of the United States;
    (D) Protecting or controlling access to facilities or information 
systems where the occupant's neglect, action, or inaction could bring 
about a material adverse effect on the national security;
    (E) Controlling, maintaining custody, safeguarding, or disposing of 
hazardous materials, arms, ammunition or explosives, where the 
occupant's neglect, action, or inaction could bring about a material 
adverse effect on the national security;
    (F) Exercising investigative or adjudicative duties related to 
national security, suitability, fitness or identity credentialing, where 
the occupant's neglect, action, or inaction could bring about a material 
adverse effect on the national security;
    (G) Exercising duties related to criminal justice, public safety or 
law enforcement, where the occupant's neglect, action, or inaction could 
bring about a material adverse effect on the national security; or
    (H) Conducting investigations or audits related to the functions 
described in paragraphs (1)(ii)(B) through (G) of this definition, where 
the occupant's neglect, action, or inaction could bring about a material 
adverse effect on the national security.
    (2) The requirements of this part apply to positions in the 
competitive service, positions in the excepted service where the 
incumbent can be noncompetitively converted to the competitive service, 
and career appointments in the Senior Executive Service within the 
executive branch. Departments and agencies may apply the requirements of 
this part to other excepted service positions within the executive 
branch and contractor positions, to the extent consistent with law.
    Unacceptable risk. Threat to the life, safety, or health of 
employees, contractors, vendors, or visitors; to the Government's 
physical assets or information systems; to personal property; to 
records, privileged, proprietary, financial, or medical records; or to 
the privacy of data subjects, which will not be tolerated by the 
Government.



PART 157_DOD INVESTIGATIVE AND ADJUDICATIVE GUIDANCE FOR ISSUING 
THE COMMON ACCESS CARD (CAC)--Table of Contents



Sec.
157.1 Purpose.
157.2 Applicability.
157.3 Definitions.
157.4 Policy.
157.5 Responsibilities.
157.6 Procedures.

    Authority: HSPD-12, E.O 13467, E.O. 13488, FIPS 201-2, and OPM 
Memorandum.

[[Page 664]]


    Source: 79 FR 55624, Sept. 17, 2014, unless otherwise noted.



Sec.  157.1  Purpose.

    This part establishes policy, assigns responsibilities, and 
prescribes procedures for investigating and adjudicating eligibility to 
hold a Common Access Card (CAC). The CAC is the DoD personal identity 
verification (PIV) credential.



Sec.  157.2  Applicability.

    This part applies to:
    (a) the Office of the Secretary of Defense, the Military Departments 
(including the Coast Guard at all times, including when it is a Service 
in the Department of Homeland Security by agreement with that 
Department), the Office of the Chairman of the Joint Chiefs of Staff and 
the Joint Staff, the Combatant Commands, the Office of the Inspector 
General of the Department of Defense, the Defense Agencies, the DoD 
Field Activities, and all other organizational entities within the DoD 
(hereinafter referred to collectively as the ``DoD Components'').
    (b) The Commissioned Corps of the U.S. Public Health Service 
(USPHS), under agreement with the Department of Health and Human 
Services, and the National Oceanic and Atmospheric Administration 
(NOAA), under agreement with the Department of Commerce.



Sec.  157.3  Definitions.

    These terms and their definitions are for the purpose of this part.
    Actionable information. Information that potentially justifies an 
unfavorable credentialing determination.
    CAC. The DoD Federal PIV card.
    Contractor. Defined in Executive Order 13467, ``Reforming Processes 
Related to Sustainability for Government Employment, Fitness for 
Contractor Employees, and Eligibility for Access to Classified National 
Security Information''.
    Contractor employee fitness. Defined in E.O. 13467.
    Debarment. A prohibition from taking a competitive service 
examination or from being hired (or retained in) a covered position for 
a specific time pe- 
riod.
    Drugs. Mood and behavior-altering substances, including drugs, 
materials, and other chemical compounds identified and listed in 21 
U.S.C. 801-830 (also known as ``The Controlled Substances Act of 1970, 
as amended'') (e.g., marijuana or cannabis, depressants, narcotics, 
stimulants, hallucinogens), and inhalants and other similar substances.
    Drug abuse. The illegal use of a drug or use of a legal drug in a 
manner that deviates from approved medical direction.
    Employee. Defined in E.O. 12968, ``Access to Classified 
Information''.
    Fitness. Defined in E.O. 13488, ``Granting Reciprocity on Excepted 
Service and Federal Contractor Employee Fitness and Reinvestigating 
Individuals in Positions of Public Trust''.
    Fitness determination. Defined in E.O. 13488.
    Logical and physical access. Defined in E.O. 13467.
    Material. Defined in 5 CFR part 731.
    Reasonable basis. A reasonable basis to believe occurs when a 
disinterested observer, with knowledge of the same facts and 
circumstances, would reasonably reach the same conclusion.
    Terrorism. Defined in 19 U.S.C. 2331.
    Unacceptable risk. A threat to the life, safety, or health of 
employees, contractors, vendors, or visitors; to the U.S. Government 
physical assets or information systems; to personal property; to 
records, including classified, privileged, proprietary, financial, and 
medical records; or to the privacy rights established by The Privacy Act 
of 1974, as amended, or other law that is deemed unacceptable when 
making risk management determinations.
    U.S. National. Defined in U.S. OPM Memorandum, ``Final Credentialing 
Standards for Issuing Personal Identity Verification Cards Under HSPD-
12'' (available at http://www.opm.gov/ investigate/resources/final_ 
credentialing_standards.pdf).



Sec.  157.4  Policy.

    It is DoD policy that:
    (a) Individuals appropriately sponsored for a CAC consistent with 
DoD Manual 1000.13, Volume 1, ``DoD Identification Cards: ID Card Life-
Cycle,'' January 23, 2014, (available at http://www.dtic.mil/whs/ 
directives/corres/pdf/

[[Page 665]]

100013 _vol1.pdf) must be investigated and adjudicated in accordance 
with this part. Individuals not CAC eligible may be processed for local 
or regional base passes in accordance with Under Secretary of Defense 
for Intelligence (USD(I)) policy guidance for DoD physical access 
control consistent with DoD Regulation 5200.08-R, ``Physical Security 
Program'' (available at http://www.dtic.mil/ whs/directives/corres/ pdf/
520008r.pdf) and local installation security policies and procedures.
    (b) A favorably adjudicated National Agency Check with Inquiries 
(NACI) or equivalent in accordance with revised Federal investigative 
standards is the minimum investigation required for a final 
credentialing determination for a CAC.
    (c) Individuals requiring a CAC must meet the credentialing 
standards in accordance with the U.S. Office of Personnel Management 
(OPM) Memorandum, ``Final Credentialing Standards for Issuing Personal 
Identity Verification Cards Under HSPD-12''; and U.S. Office of 
Personnel Management Memorandum, ``Introduction of Credentialing, 
Suitability, and Security Clearance Decision-Making Guide (available at 
http://www.opm.gov/ investigate/resources/decision_ making_guide.pdf) 
and this part.
    (d) A CAC may be issued on an interim basis based on a favorable 
National Agency Check or a Federal Bureau of Investigation (FBI) 
National Criminal History Check (fingerprint check) adjudicated by 
appropriate approved automated procedures or by a trained security or 
human resource (HR) specialist and successful submission to the 
investigative service provider (ISP) of a NACI, or a personnel security 
investigation (PSI) equal to or greater in scope than a NACI. 
Additionally, the CAC applicant must present two identity source 
documents, at least one of which is a valid Federal or State government-
issued picture identification.
    (e) The subsequent final credentialing determination will be made 
upon receipt of the completed investigation from the ISP.
    (f) Discretionary judgments used to render an adjudicative 
determination for issuing the CAC are inherently governmental functions 
and must only be performed by trained U.S. Government personnel who have 
successfully completed required training and possess a minimum level of 
investigation (NACI or equivalent in accordance with revised Federal 
investigative standards). Established administrative processes in 32 CFR 
part 156 and DoD Directive 5220.6, ``Defense Industrial Personnel 
Security Clearance Review Program'' (available at http://www.dtic.mil/ 
whs/directives/corres/ pdf/522006p.pdf) must be applied.
    (g) Adjudications rendered for eligibility for access to classified 
information, eligibility to hold a sensitive position, suitability, or 
fitness for Federal employment based on a NACI or higher level 
investigation may result in a concurrent CAC decision for that position.
    (h) Favorable credentialing adjudications from another Federal 
department or agency will be reciprocally accepted in accordance with 
conditions stated in the procedural guidance in this part. Reciprocity 
must be based on final favorable adjudication only.
    (i) CAC applicants or holders may appeal CAC denial or revocation in 
accordance with the conditions stated in the procedural guidance in this 
part. Appeals must be processed as indicated in the procedural guidance 
in this part.
    (j) Non-U.S. nationals at foreign locations are not eligible to 
receive a CAC on an interim basis. Special considerations for conducting 
background investigations of non-U.S. nationals are addressed in U.S. 
OPM Memorandum, ``Final Credentialing Standards for Issuing Personal 
Identity Verification Cards Under HSPD-12.'' An interim CAC may be 
issued to non-U.S. nationals in the U.S. or U.S. territories if they 
have resided in the U.S. or U.S. territory for at least 3 years, and 
they satisfy the requirements of paragraph (e) of this section and 
paragraph (a)(4)(ii)(A) of Sec.  157.6.
    (k) Individuals who have been denied a CAC or have had a CAC revoked 
due to an unfavorable credentialing determination are eligible to 
reapply for a credential 1 year after the date of final adjudicative 
denial or revocation.

[[Page 666]]

    (l) Individuals with a statutory or regulatory bar are not eligible 
for reconsideration while under debarment, see paragraph (d)(6) of Sec.  
157.6.
    (m) The Deputy Secretary of Defense directed all reports of 
investigations conducted as required for compliance with Homeland 
Security Presidential Directive-12, ``Policy for a Common Identification 
Standard for Federal Employees and Contractors'' (available at http://
www.dhs.gov/ homeland-security-presidential- directive-12) to be sent to 
the consolidated DoD Central Adjudications Facility.
    (n) When eligibility is denied or revoked, CACs shall be recovered 
whenever practicable, and shall immediately be rendered inoperable. In 
addition, agencies' physical and logical access systems shall be 
immediately updated to eliminate the use of a CAC for access.



Sec.  157.5  Responsibilities.

    (a) The USD(I) must:
    (1) In coordination with the Under Secretary of Defense for 
Personnel and Readiness (USD(P&R)) and the General Counsel of the 
Department of Defense (GC, DoD), establish adjudication procedures to 
support CAC credentialing decisions in accordance with DoD Manual 
1000.13, Volume 1, ``DoD Identification (ID) Cards; ID Card Life-
Cycle''; U.S. Office of Personnel Management Memorandum, ``Final 
Credentialing Standards for Issuing Personal Identity Verification Cards 
Under HSPD-12''; U.S. Office of Personnel Management Memorandum, 
``Introduction of Credentialing, Suitability, and Security Clearance 
Decision-Making Guide; Office of Management and Budget Memorandum M-05-
24, ``Implementation of Homeland Security Presidential Directive (HSPD) 
12--Policy for a Common Identification Standard for Federal Employees 
and Contractors'' (available at http://www.whitehouse.gov/ sites/
default/files/omb/memoranda/ fy2005/m05-24.pdf); U.S. Office of 
Personnel Management Federal Investigations Notice Number 06-04, ``HSPD 
12--Advanced Fingerprint Results'' (available at http://www.opm.gov/ 
extra/investigate/FIN06_04.pdf); Homeland Security Presidential 
Directive-12, ``Policy for a Common Identification Standard for Federal 
Employees and Contractors''; 5 U.S.C. 552, 552a and 7313; Federal 
Information Processing Standards Publication 201-2, ``Personal Identity 
Verification (PIV) of Federal Employees and Contractors'' (available at 
http://csrc.nist.gov/ publications/PubsFIPS.html); Executive Order 
13467, ``Reforming Processes Related to Suitability for Government 
Employment, Fitness for Contractor Employees, and Eligibility for Access 
to Classified National Security Information''; Executive Order 13488, 
``Granting Reciprocity on Excepted Service and Federal Contractor 
Employee Fitness and Reinvestigating Individuals in Positions of Public 
Trust''; 15 U.S.C. 278g-3; 40 U.S.C. 11331; and U.S. Office of Personnel 
Management Federal Investigations Notice Number 10-05, ``Reminder to 
Agencies of the Standards for Issuing Identity Credentials Under HSPD-
12'' (available at http://www.opm.gov/investigate/ fins/2010/fin10-
05.pdf) for issuing a CAC to Service members and DoD civilian personnel.
    (2) In coordination with the Under Secretary of Defense for 
Acquisition, Technology, and Logistics (USD(AT&L)) and the GC, DoD, 
establish adjudication procedures to support a CAC credentialing 
decision for contractors in accordance with the terms of applicable 
contracts and the references cited in paragraph (a)(1) of this section, 
the Federal Acquisition Regulation (available at http://
www.acquisition.gov/ far/current/pdf/FAR.pdf), and the Defense Federal 
Acquisition Regulation Supplement (available at http://www.acq.osd.mil/ 
dpap/dars/dfarspgi/current/ index.html).
    (3) Issue, interpret, and clarify CAC investigative and adjudicative 
guidance in coordination with the Suitability Executive Agent as 
necessary.
    (b) The USD(P&R) must, in coordination with the GC, DoD, implement 
CAC PSI and adjudication procedures established herein as necessary to 
support issuance of a CAC to Service members and DoD civilian personnel 
in accordance with the references cited in paragraph (a)(1) of this 
section.
    (c) The USD(AT&L) must, in coordination with the GC, DoD, implement 
CAC PSI and adjudication procedures

[[Page 667]]

established by the USD(I) for contractors in accordance with the terms 
of applicable contracts and the references cited in paragraph (a)(1) of 
this section, Federal Acquisition Regulation, current edition; and 
Defense Federal Acquisition Regulation Supplement, current edition.
    (d) The GC, DoD must:
    (1) Provide advice and guidance as to the legal sufficiency of 
procedures and standards involved in adjudicating CAC investigations.
    (2) Perform functions relating to the DoD Homeland Security 
Presidential Directive (HSPD)-12 Program in accordance with DoD 
Directive 5220.6, ``Defense Industrial Personnel Security Clearance 
Review Program'' (available at http://www.dtic.mil/ whs/directives/
corres/ pdf/522006p.pdf) and DoD Directive 5145.01, ``General Counsel of 
the Department of Defense'' (available at http://www.dtic.mil/ whs/
directives/corres/ pdf/514501p.pdf) including maintenance and oversight 
of the Defense Office of Hearings and Appeals (DOHA) and its involvement 
in contractor CAC revocations as specified in paragraph (b)(6)(i)(B) of 
Sec.  157.6 of this part.
    (3) Coordinate on USD(P&R) implementation of CAC PSI and 
adjudication procedures, in accordance with the references cited in 
paragraph (a)(1) of this section, for Service members and DoD civilian 
personnel, and USD(AT&L) implementation of USD(I) procedures for CAC PSI 
and adjudication in accordance with the terms of applicable contracts 
and the references cited in paragraph (a)(1) of this section, Federal 
Acquisition Regulation and Defense Federal Acquisition Regulation 
Supplement.
    (e) The Heads of the DoD Components must:
    (1) Comply with and implement this part.
    (2) Provide resources for PSIs, adjudication, appeals, and recording 
of final adjudicative results in a centralized database.
    (3) Require individuals sponsored for a CAC to meet eligibility 
requirements stated in DTM 08-003.
    (4) Provide appeals boards for those individuals appealing CAC 
denial or revocation as specified in paragraph (b)(6)(i)(A) of Sec.  
157.6.
    (5) Enforce requirements for reporting of derogatory information, 
unfavorable administrative actions, and adverse actions to personnel 
security, HR, and counterintelligence official(s), as appropriate.
    (6) Require all PSIs submitted for non-DoD personnel to be supported 
by and comply with DoD PIV procedures in contracts that implement 
requirements of paragraphs 4.1303 and 52.204-9 of Federal Acquisition 
Regulation, current edition.
    (7) Require all investigations and adjudications required for non-
DoD personnel to be in response to a current, active contract or 
agreement and that the number of personnel submitted for investigation 
and adjudication does not exceed the specific requirements of that 
contract or agreement while ensuring compliance with HSPD-12.



Sec.  157.6  Procedures.

    (a) CAC Investigative Procedures--(1) Investigative Requirements. 
(i) A personnel security investigation (NACI or greater) completed by an 
authorized ISP is required to support a CAC credentialing determination 
based on the established credentialing standards promulgated by OPM 
Memorandum, ``Final Credentialing Standards for Issuing Personal 
Identity Verification Cards Under HSPD-12''.
    (ii) Individuals identified as having a favorably adjudicated 
investigation on record, equivalent to or greater than the NACI, do not 
require an additional investigation for CAC issuance.
    (iii) There is no requirement to reinvestigate CAC holders unless 
they are subject to reinvestigation for national security or suitability 
reasons as specified in applicable DoD issuances.
    (2) Submission of Investigations. Investigative packages must be 
submitted promptly by HR or security personnel to the authorized ISP. 
Fingerprints for CAC applicants must be taken by HR or security 
personnel. DoD Components using the OPM as the ISP may request advanced 
fingerprint check results in accordance with OPM Federal Investigations 
Notice Number 06-04.
    (3) Reciprocity. (i) The sponsoring Component must not re-adjudicate 
CAC determinations for individuals

[[Page 668]]

transferring from another Federal department or agency, provided:
    (A) The individual's former department or agency verifies possession 
of a valid PIV.
    (B) The individual has undergone the required NACI or other 
equivalent (or greater) suitability or national security investigation 
and received favorable adjudication from the former department or 
agency.
    (C) There is no break in service 2 years or more and the individual 
has no actionable information since the date of the last completed 
investigation.
    (ii) Interim CAC determinations are not eligible to be transferred 
or reciprocally accepted. Reciprocity must be based on final favorable 
adjudication only.
    (4) Foreign (Non-U.S.) Nationals. DoD Components must apply the 
credentialing process and standards in this part to non-U.S. nationals 
who work as employees or contractor employees for the DoD. However, 
special considerations apply to non-U.S. nationals.
    (i) At Foreign Locations. (A) DoD Components must initiate and 
ensure completion of a background investigation before applying the 
credentialing standards to a non-U.S. national at a foreign location. 
The background investigation must be favorably adjudicated before a CAC 
can be issued to a non-U.S. national at a foreign location. The type of 
background investigation may vary based on standing reciprocity treaties 
concerning identity assurance and information exchanges that exist 
between the U.S. and its allies or agency agreements with the host 
country.
    (B) The investigation of a non-U.S. national at a foreign location 
must be consistent with a NACI, to the extent possible, and include a 
fingerprint check against the FBI criminal history database, an FBI 
investigations files (name check) search, and a name check against the 
terrorist screening database.
    (ii) At U.S.-Based Locations and in U.S. Territories (Other than 
American Samoa and Commonwealth of the Northern Mariana Islands). (A) 
Individuals who are non-U.S. nationals in the United States or U.S. 
territory for 3 years or more must have a NACI or equivalent 
investigation initiated after employment authorization is appropriately 
verified.
    (B) Non-U.S. nationals who have been in the United States or U.S. 
territory for less than 3 years do not meet the investigative 
requirements for CAC issuance. DoD Components may delay the background 
investigation of a Non-U.S. national who has been in the U.S. or U.S. 
territory for less than 3 years until the individual has been in the 
United States or U.S. territory for at least 3 years. In the event of 
such a delay, an alternative facility access identity credential may be 
issued at the discretion of the relevant DoD Component official, as 
appropriate based on a risk determination in accordance with DoD 
5200.08-R, ``Physical Security Program'' (available at http://
www.dtic.mil/ whs/directives/corres/ pdf/520008r.pdf) and U.S. Office of 
Personnel Management Memorandum, ``Final Credentialing Standards for 
Issuing Personal Identity Verification Cards Under HSPD-12.''
    (C) The U.S. territories of American Samoa and the Commonwealth of 
the Northern Mariana Islands are not included in the ``United States'' 
as defined by the Immigration and Nationality Act of 1952, as amended 
(Pub. L. 82-414).
    (5) Investigations Acceptable for CAC Adjudication. A list of 
investigations acceptable for CAC adjudication is located in the Table. 
These investigations are equivalent to or greater than a NACI. This list 
will be updated by the USD(I) as revisions to the Federal investigative 
standards are implemented.

     Table--Favorably Adjudicated Investigations Acceptable for CAC
                              Adjudication
------------------------------------------------------------------------
          Investigation                         Description
------------------------------------------------------------------------
ANACI............................  Access National Agency Check and
                                    Inquires.
BGI-0112.........................  Upgrade Background Investigation (1-
                                    12 months from LBI).
BGI-1336.........................  Upgrade Background Investigation (13-
                                    36 months from LBI).
BGI-3760.........................  Upgrade Background Investigation (37-
                                    60 months from LBI).
BI...............................  Background Investigation.

[[Page 669]]

 
BIPN.............................  Background Investigation plus Current
                                    National Agency Check.
BIPR.............................  Periodic Reinvestigation of
                                    Background Investigation.
BITN.............................  Background Investigation (10 year
                                    scope).
CNCI.............................  Child Care National Agency Check plus
                                    Written Inquires and Credit.
IBI..............................  Interview Oriented Background
                                    Investigation.
LBI..............................  Limited Background Investigation.
LBIP.............................  Limited Background Investigation plus
                                    Current National Agency Check.
LBIX.............................  Limited Background Investigation--
                                    Expanded.
MBI..............................  Moderate Risk Background
                                    Investigation.
MBIP.............................  Moderate Risk Background
                                    Investigation plus Current National
                                    Agency Check.
MBIX.............................  Moderate Risk Background
                                    Investigation--Expanded.
NACB.............................  National Agency Check/National Agency
                                    Check plus Written Inquires and
                                    Credit Check plus Background
                                    Investigation Requested.
NACI.............................  National Agency Check and Inquires.
NACLC............................  National Agency Check with Law and
                                    Credit.
NACSec...........................  National Agency Check/National Agency
                                    Check plus Written Inquires and
                                    Credit Check plus Single Scope B.I.
                                    Requested.
NACW.............................  National Agency Check plus Written
                                    Inquires and Credit.
NACZ.............................  National Agency Check plus Written
                                    Inquires and Credit plus Special
                                    Investigative Inquiry.
NLC..............................  National Agency Check, Local Agency
                                    Check and Credit.
NNAC.............................  National Agency Check plus Written
                                    Inquires and Credit Plus Current
                                    National Agency Check.
NSI..............................  NSI--NACI/Suitability Determination.
PRI..............................  Periodic Reinvestigation.
PRSec............................  Periodic Reinvestigation Secret.
PRSC.............................  Periodic Reinvestigation Secret or
                                    Confidential.
PPR..............................  Phased Periodic Reinvestigation.
SPR..............................  Secret Periodic Reinvestigation.
SSBI.............................  Single Scope Background
                                    Investigation.
SSBI-PR..........................  Periodic Reinvestigation for SSBI.
------------------------------------------------------------------------

    (b) CAC Adjudicative Procedures--(1) Guidance for Applying 
Credentialing Standards During Adjudication. (i) As established in 
Homeland Security Presidential Directive-12, credentialing adjudication 
considers whether or not an individual is eligible for long-term access 
to Federally controlled facilities and/or information systems. The 
ultimate determination to authorize, deny, or revoke the CAC based on a 
credentialing determination of the PSI must be made after consideration 
of applicable credentialing standards in OPM Memorandum, ``Final 
Credentialing Standards for Issuing Personal Identity Verification Cards 
Under HSPD-12.''
    (ii) Each case is unique. Adjudicators must examine conditions that 
raise an adjudicative concern, the overriding factor for all of these 
conditions is unacceptable risk. Factors to be applied consistently to 
all information available to the adjudicator are:
    (A) The nature and seriousness of the conduct. The more serious the 
conduct, the greater the potential for an adverse CAC determination.
    (B) The circumstances surrounding the conduct. Sufficient 
information concerning the circumstances of the conduct must be obtained 
to determine whether there is a reasonable basis to believe the conduct 
poses a risk to people, property or information systems.
    (C) The recency and frequency of the conduct. More recent or more 
frequent conduct is of greater concern.
    (D) The individual's age and maturity at the time of the conduct. 
Offenses committed as a minor are usually treated as less serious than 
the same offenses committed as an adult, unless the offense is very 
recent, part of a pattern, or particularly heinous.
    (E) Contributing external conditions. Economic and cultural 
conditions may be relevant to the determination of whether there is a 
reasonable basis to believe there is an unacceptable risk if the 
conditions are currently removed or countered (generally considered in 
cases with relatively minor issues).
    (F) The absence or presence of efforts toward rehabilitation, if 
relevant, to address conduct adverse to CAC determinations.

[[Page 670]]

    (1) Clear, affirmative evidence of rehabilitation is required for a 
favorable adjudication (e.g., seeking assistance and following 
professional guidance, where appropriate; demonstrating positive changes 
in behavior and employment).
    (2) Rehabilitation may be a consideration for most conduct, not just 
alcohol and drug abuse. While formal counseling or treatment may be a 
consideration, other factors (such as the individual's employment 
record) may also be indications of rehabilitation.
    (iii) CAC adjudicators must successfully complete formal training 
through a DoD CAC adjudicator course from the Defense Security Service 
Center for Development of Security Excellence or a course approved by 
the Suitability Executive Agent.
    (2) Credentialing Standards. HSPD-12 credentialing standards 
contained in OPM Memorandum, ``Final Credentialing Standards for Issuing 
Personal Identity Verification Cards Under HSPD-12'' must be used to 
render a final determination whether to issue or revoke a CAC based on 
results of a qualifying PSI.
    (i) Basic Standards. CAC credentialing standards and the 
adjudicative guidelines described in paragraph (c) of this section are 
designed to guide the adjudicator who must determine, based on results 
of a qualifying PSI, whether CAC issuance is consistent with the basic 
standards, would create an unacceptable risk for the U.S. Government, or 
would provide an avenue for terrorism.
    (ii) Supplemental Standards. The supplemental standards are intended 
to ensure that the issuance of a CAC to an individual does not create 
unacceptable risk. The supplemental credentialing standards must be 
applied, in addition to the basic credentialing standards. In this 
context, an unacceptable risk refers to an unacceptable risk to the 
life, safety, or health of employees, contractors, vendors, or visitors; 
to the Government's physical assets or information systems; to personal 
property; to records, including classified, privileged, proprietary, 
financial, or medical records; or to the privacy of data subjects.
    The supplemental credentialing standards, in addition to the basic 
credentialing standards, must be used for CAC adjudication of 
individuals who are not also subject to the following types of 
adjudication:
    (A) Eligibility to hold a sensitive position or for access to 
classified information,
    (B) Suitability for Federal employment in the competitive service, 
or
    (C) Qualification for Federal employment in the excepted service.
    (3) Application of the Standards. (i) CAC credentialing standards 
shall be applied to all DoD civilian employees, Service members, and 
contractors who are CAC eligible, have been sponsored by a DoD entity, 
and require: (a) Physical access to DoD facilities or non-DoD facilities 
on behalf of DoD; (b) logical access to information systems (whether on 
site or remotely); or (c) remote access to DoD networks that use only 
the CAC logon for user authentication.
    (ii) If an individual is found unsuitable for competitive civil 
service consistent with 5 CFR part 731, ineligible for access to 
classified information pursuant to E.O. 12968, or disqualified from 
appointment in the excepted service or from working on a contract, the 
unfavorable decision may be sufficient basis for non-issuance or 
revocation of a CAC, but does not necessarily mandate this result.
    (4) Adjudication. The CAC adjudicators will consider the information 
provided by the CAC PSI in rendering a CAC credentialing determination. 
The determination will be unfavorable if there is a reasonable basis to 
conclude that a disqualifying factor in accordance with the basic CAC 
credentialing standards is substantiated, or when there is a reasonable 
basis to conclude that derogatory information or conduct relating to 
supplemental CAC credentialing standards presents an unacceptable risk 
for the U.S. Government.
    (i) If a DoD Component or DOHA proposes to deny or revoke a CAC 
under conditions other than those cited in paragraph (b)(3)(ii) of this 
section, the DoD Component or DOHA, as appropriate in accordance with 
paragraph (b)(6)(i) of this section, must issue the

[[Page 671]]

individual a written statement (also known as a letter of denial (LOD) 
or revocation (LOR)) identifying the disqualifying condition(s). The 
statement must contain a summary of the concerns and supporting adverse 
information, instructions for responding, and copies of the relevant CAC 
credentialing standards and adjudicative guidelines from this section. 
The written LOD or LOR must be as comprehensive and detailed as 
permitted by the requirements of national security and to protect 
sources that were granted confidentiality, and as allowed pursuant to 
provisions of 5 U.S.C. 552 and 552a. (Section 552a is also known and 
hereinafter referred to as ``The Privacy Act of 1974, as amended.'')
    (ii) The individual may elect to respond in writing to the DoD 
Component or DOHA, as appropriate, within 30 calendar days from the date 
of the LOD or LOR. Failure to respond to the LOD or LOR will result in 
automatic CAC denial or revocation.
    (iii) When, subsequent to issuance of an interim or final CAC, the 
U.S. Government receives credible information that raises questions as 
to whether a current CAC holder continues to meet the applicable 
credentialing standards, the DoD Component may reconsider the 
credentialing determination using the procedures in this part.
    (5) Denial or Revocation. (i) DoD Components must deny or revoke a 
CAC if the individual fails to respond to the LOD or LOR within the 
specified time-frame or the response to the written statement has not 
provided a basis to reverse the decision.
    (ii) Denial or revocation of a CAC must comply with applicable 
governing laws and regulations:
    (A) The U.S. Coast Guard shall afford individuals appeal rights as 
established in applicable Department of Homeland Security and U.S. Coast 
Guard Issuances.
    (B) CAC provides Service members with Geneva Convention protection 
in accordance with DoD Instruction 1000.1, ``Identification (ID) Cards 
Required by the Geneva Conventions'' (available at http://www.dtic.mil/ 
whs/directives/corres/ pdf/100001p.pdf), and authorized benefits (e.g. 
medical) and must not be revoked or denied pursuant to the provisions of 
this part. CAC for Military Service members will be surrendered only 
upon separation, discharge, or retirement.
    (C) In certain instances a CAC provides other benefits or specific 
privileges to civilian employees (e.g. medical, post exchange and 
commissary) when assigned overseas long-term; or protected status to 
civilian employees and contractors who are accompanying U.S. forces 
during overseas deployments in accordance with DoD Instruction 1000.1. 
CAC for DoD civilians or contractors in this circumstance will not be 
revoked pursuant to the provisions of this part, but may be surrendered 
as part of other adverse employment or contracting actions or 
procedures.
    (iii) When eligibility is denied or revoked, the CAC shall be 
recovered whenever practicable, and shall immediately be rendered 
inoperable. In addition, agency's physical and logical access systems 
shall immediately be updated to eliminate the use of the CAC for access.
    (6) Appeals. (i) Individuals who have been denied a CAC or have had 
a CAC revoked due to an unfavorable credentialing determination must be 
entitled to appeal the determination in accordance with the following 
procedures:
    (A) Except as stated in paragraph (b)(6)(ii) of this section, new 
civilian and contractor applicants who have been denied a CAC may elect 
to appeal to a three member board composed of not more than one security 
representative and one human resources representative.
    (B) Contractor employees who have had their CAC revoked may appeal 
the unfavorable determination to the DOHA in accordance with the 
established administrative process set out in DoD Directive 5220.6.
    (ii) This appeal process does not apply when a CAC is denied or 
revoked as a result of either an unfavorable suitability determination 
consistent with 5 CFR part 731 or a decision to deny or revoke 
eligibility for access to classified information or eligibility for a 
sensitive national security position, since the person is already 
entitled to

[[Page 672]]

seek review in accordance with applicable suitability or national 
security procedures. Likewise, there is no right to appeal when the 
decision to deny the CAC is based on the results of a separate 
determination to disqualify the person from an appointment in the 
excepted service or to bar the person from working for or on behalf of a 
Federal department or agency.
    (iii) The DoD Component will notify the individual in writing of the 
final determination and provide a statement that this determination is 
not subject to further appeal.
    (7) Recording Final Determination. Immediately following final 
adjudication, the sponsoring activity must record the final eligibility 
determination (e.g., active, revoked, denied) in the OPM Central 
Verification System as directed by OPM Memorandum, ``Final Credentialing 
Standards for Issuing Personal Identity Verification Cards Under HSPD-
12.'' DoD Component records will document the adjudicative rationale. 
Adjudicative records shall be made available to authorized recipients as 
required for appeal purposes.
    (c) Basic Adjudicative Standards. (1) A CAC will not be issued to a 
person if the individual is known to be or reasonably suspected of being 
a terrorist.
    (i) A CAC must not be issued to a person if the individual is known 
to be or reasonably suspected of being a terrorist. Individuals 
entrusted with access to Federal property and information systems must 
not put the U.S. Government at risk or provide an avenue for terrorism.
    (ii) Therefore, conditions that may be disqualifying include 
evidence that the individual has knowingly and willfully been involved 
with reportable domestic or international terrorist contacts or foreign 
intelligence entities, counterintelligence activities, indicators, or 
other behaviors described in DoD Directive 5240.06, 
``Counterintelligence Awareness and Reporting (CIAR)'' (available at 
http://www.dtic.mil/ whs/directives/corres/ pdf/524006p.pdf).
    (2) A CAC will not be issued to a person if the employer is unable 
to verify the individual's claimed identity.
    (i) A CAC must not be issued to a person if the DoD component is 
unable to verify the individual's claimed identity. To be considered 
eligible for a CAC, the individual's identity must be clearly 
authenticated. The CAC must not be issued when identity cannot be 
authenticated.
    (ii) Therefore, conditions that may be disqualifying include:
    (A) The individual claimed it was not possible to provide two 
identity source documents from the list of acceptable documents in Form 
I-9, Office of Management and Budget No. 1115-0136, ``Employment 
Eligibility Verification,''(available at http://www.uscis.gov/ files/
form/i-9.pdf) or provided only one identity source document from the 
list of acceptable documents.
    (B) The individual did not appear in person as required by Federal 
Information Processing Standards Publication 201-2.
    (C) The individual refused to cooperate with the documentation and 
investigative requirements to validate his or her identity.
    (D) The investigation failed to confirm the individual's claimed 
identity.
    (iii) No conditions can mitigate inability to verify the applicant's 
identity.
    (3) A CAC will not be issued to a person if there is a reasonable 
basis to believe the individual has submitted fraudulent information 
concerning his or her identity.
    (i) A CAC must not be issued to a person if there is a reasonable 
basis to believe the individual has submitted fraudulent information 
concerning his or her identity in an attempt to obtain the current 
credential.
    (A) Substitution occurred in the identity proofing process; the 
individual who appeared on one occasion was not the same person that 
appeared on another occasion.
    (B) The fingerprints associated with the identity do not belong to 
the person attempting to obtain a CAC.
    (ii) No conditions can mitigate submission of fraudulent information 
in an attempt to obtain a current credential.
    (4) A CAC will not be issued to a person if there is a reasonable 
basis to believe the individual will attempt to gain unauthorized access 
to classified documents, information protected by

[[Page 673]]

the Privacy Act, information that is proprietary in nature, or other 
sensitive or protected information.
    (i) Individuals must comply with information-handling regulations 
and rules. Individuals must properly handle classified and protected 
information such as sensitive or proprietary information.
    (ii) Individuals should not attempt to gain unauthorized access to 
classified documents or other sensitive or protected information. 
Unauthorized access to U.S. Government information or improper use of 
U.S. Government information once access is granted may pose a 
significant risk to national security, may compromise individual 
privacy, and may make public information that is proprietary in nature, 
thus compromising the operations and missions of Federal agencies.
    (iii) A CAC must not be issued if there is a reasonable basis to 
believe the individual will attempt to gain unauthorized access to 
classified documents, information protected by the Privacy Act of 1974, 
as amended, information that is proprietary in nature, or other 
sensitive or protected information.
    (iv) Therefore, conditions that may be disqualifying include any 
attempt to gain unauthorized access to classified, sensitive, 
proprietary or other protected information.
    (v) Circumstances relevant to the determination of whether there is 
a reasonable basis to believe there is an unacceptable risk include:
    (A) Since the time of the last act or activities, the person has 
demonstrated a favorable change in behavior.
    (B) The behavior happened so long ago, was minor, or happened under 
such unusual circumstances that it is unlikely to recur and does not 
cast doubt on the individual's ability to safeguard protected 
information.
    (5) A CAC will not be issued to a person if there is a reasonable 
basis to believe the individual will use an identity credential outside 
the workplace unlawfully or inappropriately.
    (i) A CAC must not be issued to a person if there is a reasonable 
basis to believe the individual will use an identity credential outside 
the workplace unlawfully or inappropriately.
    (ii) Therefore, conditions that may be disqualifying include:
    (A) Documented history of fraudulent requests for credentials or 
other official documentation.
    (B) Previous incidents in which the individual used credentials or 
other official documentation to circumvent rules or regulations.
    (C) A history of incidents involving misuse of credentials that put 
physical assets or personal property at risk.
    (iii) Circumstances relevant to the determination of whether there 
is a reasonable basis to believe there is an unacceptable risk include:
    (A) The behavior happened so long ago, was minor, or happened under 
such unusual circumstances that it is unlikely to recur and does not 
cast doubt on the individual's ability and willingness to use 
credentials lawfully and appropriately.
    (6) A CAC will not be issued to a person if there is a reasonable 
basis to believe the individual will use Federally-controlled 
information systems unlawfully, make unauthorized modifications to such 
systems, corrupt or destroy such systems, or engage in inappropriate 
uses of such systems.
    (i) Individuals must comply with rules, procedures, guidelines, or 
regulations pertaining to information technology systems and properly 
protect sensitive systems, networks, and information. The individual 
should not attempt to use federally-controlled information systems 
unlawfully, make unauthorized modifications, corrupt or destroy, or 
engage in inappropriate uses of such systems. A CAC must not be issued 
to a person if there is a reasonable basis to believe the individual 
will do so or has done so in the past.
    (ii) Therefore, conditions that may be disqualifying include:
    (A) Illegal, unauthorized, or inappropriate use of an information 
technology system or component.
    (B) Unauthorized modification, destruction, manipulation of 
information, software, firmware, or hardware to corrupt or destroy 
information technology systems or data.
    (iii) Circumstances relevant to the determination of whether there 
is a reasonable basis to believe there is an unacceptable risk include:

[[Page 674]]

    (A) The behavior happened so long ago, was minor, or happened under 
such unusual circumstances that it is unlikely to recur and does not 
cast doubt on the individual's ability and willingness to conform to 
rules and regulations for use of information technology systems.
    (d) Supplemental Adjudicative Standards. (1) A CAC will not be 
issued to a person if there is a reasonable basis to believe, based on 
the individual's misconduct or negligence in employment, that issuance 
of a CAC poses an unacceptable risk.
    (i) An individual's employment misconduct or negligence may put 
people, property, or information systems at risk.
    (ii) Therefore, conditions that may be disqualifying include:
    (A) A previous history of intentional wrongdoing on the job, 
disruptive, violent, or other acts that may pose an unacceptable risk to 
people, property, or information systems.
    (B) A pattern of dishonesty or rule violations in the workplace 
which put people, property or information at risk.
    (C) A documented history of misusing workplace information systems 
to view, download, or distribute pornography.
    (D) Violation of written or recorded commitments to protect 
information made to an employer, such as breach(es) of confidentiality 
or the release of proprietary or other information.
    (E) Failure to comply with rules or regulations for the safeguarding 
of classified, sensitive, or other protected information.
    (iii) Circumstances relevant to the determination of whether there 
is a reasonable basis to believe there is an unacceptable risk include:
    (A) The behavior happened so long ago, was minor, or happened under 
such unusual circumstances that it is unlikely to recur and does not 
cast doubt on the individual's current trustworthiness or good judgment 
relating to the safety of people and proper safeguarding of property and 
information systems.
    (B) The individual was not adequately warned that the conduct was 
unacceptable and could not reasonably be expected to know that the 
conduct was wrong.
    (C) The individual made prompt, good-faith efforts to correct the 
behavior.
    (D) The individual responded favorably to counseling or remedial 
training and has since demonstrated a positive attitude toward the 
discharge of information-handling or security responsibilities.
    (2) A CAC will not be issued to a person if there is a reasonable 
basis to believe, based on the individual's criminal or dishonest 
conduct, that issuance of a CAC poses an unacceptable risk.
    (i) An individual's conduct involving questionable judgment, lack of 
candor, dishonesty, or unwillingness to comply with rules and 
regulations can raise questions about his or her reliability or 
trustworthiness and may put people, property, or information systems at 
risk. An individual's past criminal or dishonest conduct may put people, 
property, or information systems at risk.
    (ii) Therefore, conditions that may be disqualifying include:
    (A) A single serious crime or multiple lesser offenses which put the 
safety of people at risk or threaten the protection of property or 
information. A person's convictions for burglary may indicate that 
granting a CAC poses an unacceptable risk to the U.S. Government's 
physical assets and to employees' personal property on a U.S. Government 
facility.
    (B) Charges or admission of criminal conduct relating to the safety 
of people and proper protection of property or information systems, 
regardless of whether the person was formally charged, formally 
prosecuted, or convicted.
    (C) Dishonest acts (e.g., theft, accepting bribes, falsifying 
claims, perjury, forgery, or attempting to obtain identity documentation 
without proper authorization).
    (D) Deceptive or illegal financial practices such as embezzlement, 
employee theft, check fraud, income tax evasion, expense account fraud, 
filing deceptive loan statements, or other intentional financial 
breaches of trust.
    (E) Actions involving violence or sexual behavior of a criminal 
nature that

[[Page 675]]

poses an unacceptable risk if access is granted to federally-controlled 
facilities or federally-controlled information systems. For example, 
convictions for sexual assault may indicate that granting a CAC poses an 
unacceptable risk to the life and safety of persons on U.S. Government 
facilities.
    (F) Financial irresponsibility may raise questions about the 
individual's honesty and put people, property or information systems at 
risk, although financial debt should not in and of itself be cause for 
denial.
    (G) Deliberate omission, concealment, or falsification of relevant 
facts or deliberately providing false or misleading information to an 
employer, investigator, security official, competent medical authority, 
or other official U.S. Government representative, particularly when 
doing so results in personal benefit or which results in a risk to the 
safety of people and proper safeguarding of property and information 
systems.
    (iii) Circumstances relevant to the determination of whether there 
is a reasonable basis to believe there is an unacceptable risk include:
    (A) The behavior happened so long ago, was minor in nature, or 
happened under such unusual circumstances that it is unlikely to recur.
    (B) Charges were dismissed or evidence was provided that the person 
did not commit the offense and details and reasons support his or her 
innocence.
    (C) Improper or inadequate advice from authorized personnel or legal 
counsel significantly contributed to the individual's omission, of 
information. When confronted, the individual provided an accurate 
explanation and made prompt, good-faith effort to correct the situation.
    (D) Evidence has been supplied of successful rehabilitation, 
including but not limited to remorse or restitution, job training or 
higher education, good employment record, constructive community 
involvement, or passage of time without recurrence.
    (3) A CAC will not be issued to a person if there is a reasonable 
basis to believe, based on the individual's material, intentional false 
statement, deception, or fraud in connection with Federal or contract 
employment, that issuance of a CAC poses an unacceptable risk.
    (i) The individual's conduct involving questionable judgment, lack 
of candor, or unwillingness to comply with rules and regulations can 
raise questions about an individual's honesty, reliability, 
trustworthiness, and put people, property, or information systems at 
risk.
    (ii) Therefore, conditions that may be disqualifying include 
material, intentional falsification, deception or fraud related to 
answers or information provided during the employment process for the 
current or a prior Federal or contract employment (e.g., on the 
employment application or other employment, appointment or investigative 
documents, or during interviews.)
    (iii) Circumstances relevant to the determination of whether there 
is a reasonable basis to believe there is an unacceptable risk include:
    (A) The misstated or omitted information was so long ago, was minor, 
or happened under such unusual circumstances that it is unlikely to 
recur.
    (B) The misstatement or omission was unintentional or inadvertent 
and was followed by a prompt, good-faith effort to correct the 
situation.
    (4) A CAC will not be issued to a person if there is a reasonable 
basis to believe, based on the nature or duration of the individual's 
alcohol abuse without evidence of substantial rehabilitation, that 
issuance of a CAC poses an unacceptable risk.
    (i) An individual's abuse of alcohol may put people, property, or 
information systems at risk. Alcohol abuse can lead to the exercise of 
questionable judgment or failure to control impulses, and may put 
people, property, or information systems at risk, regardless of whether 
he or she is diagnosed as an abuser of alcohol or alcohol dependent. A 
person's long-term abuse of alcohol without evidence of substantial 
rehabilitation may indicate that granting a CAC poses an unacceptable 
safety risk in a U.S. Government facility.
    (ii) Therefore, conditions that may be disqualifying include:
    (A) A pattern of alcohol-related arrests.
    (B) Alcohol-related incidents at work, such as reporting for work or

[[Page 676]]

duty in an intoxicated or impaired condition, or drinking on the job.
    (C) Current continuing abuse of alcohol.
    (D) Failure to follow any court order regarding alcohol education, 
evaluation, treatment, or abstinence.
    (iii) Circumstances relevant to the determination of whether there 
is a reasonable basis to believe there is an unacceptable risk include:
    (A) The individual acknowledges his or her alcoholism or issues of 
alcohol abuse, provides evidence of actions taken to overcome this 
problem, and has established a pattern of abstinence (if alcohol 
dependent) or responsible use (if an abuser of alcohol).
    (B) The individual is participating in counseling or treatment 
programs, has no history of previous treatment or relapse, and is making 
satisfactory progress.
    (C) The individual has successfully completed inpatient or 
outpatient counseling or rehabilitation along with any required 
aftercare. He or she has demonstrated a clear and established pattern of 
modified consumption or abstinence in accordance with treatment 
recommendations, such as participation in an alcohol treatment program. 
The individual has received a favorable prognosis by a duly qualified 
medical professional or a licensed clinical social worker who is a staff 
member of a recognized alcohol treatment program.
    (5) A CAC will not be issued to a person if there is a reasonable 
basis to believe, based on the nature or duration of the individual's 
illegal use of narcotics, drugs, or other controlled substances without 
evidence of substantial rehabilitation, that issuance of a CAC poses an 
unacceptable risk.
    (i) An individual's abuse of drugs may put people, property, or 
information systems at risk. Illegal use of narcotics, drugs, or other 
controlled substances, to include abuse of prescription or over-the-
counter drugs, can raise questions about his or her trustworthiness, or 
ability or willingness to comply with laws, rules, and regulations. For 
example, a person's long-term illegal use of narcotics without evidence 
of substantial rehabilitation may indicate that granting a CAC poses an 
unacceptable safety risk in a U.S. Government facility.
    (ii) Therefore, conditions that may be disqualifying include:
    (A) Current or recent illegal drug use, serious narcotic, or other 
controlled substance offense.
    (B) A pattern of drug-related arrests or problems in employment.
    (C) Illegal drug possession, including cultivation, processing, 
manufacture, purchase, sale, or distribution of illegal drugs, or 
possession of drug paraphernalia.
    (D) Diagnosis by a duly qualified medical professional (e.g., 
physician, clinical psychologist, or psychiatrist) of drug abuse or drug 
dependence.
    (E) Evaluation of drug abuse or drug dependence by a licensed 
clinical social worker who is a staff member of a recognized drug 
treatment program.
    (F) Failure to successfully complete a drug treatment program 
prescribed by a duly qualified medical professional.
    (G) Any illegal drug use after formally agreeing to comply with 
rules or regulations prohibiting drug use.
    (H) Any illegal use or abuse of prescription or over-the-counter 
drugs.
    (iii) Circumstances relevant to the determination of whether there 
is a reasonable basis to believe there is an unacceptable risk include:
    (A) The behavior happened so long ago, was so infrequent, or 
happened under such circumstances that it is unlikely to recur (e.g., 
clear, lengthy break since last use; strong evidence the use will not 
occur again).
    (B) A demonstrated intent not to abuse any drugs in the future, such 
as:
    (1) Abstaining from drug use.
    (2) Disassociating from drug-using associates and contacts.
    (3) Changing or avoiding the environment where drugs were used.
    (C) Abuse of prescription drugs followed a severe or prolonged 
illness during which these drugs were prescribed and abuse has since 
ended.
    (D) Satisfactory completion of a prescribed drug treatment program, 
including but not limited to rehabilitation and aftercare requirements 
without recurrence of abuse, and a favorable prognosis by a duly 
qualified medical professional.

[[Page 677]]

    (6) A CAC will not be issued to a person if a statutory or 
regulatory bar prevents the individual's contract employment; or would 
prevent Federal employment under circumstances that furnish a reasonable 
basis to believe that issuance of a CAC poses an unacceptable risk.
    (i) The purpose of this standard is to verify whether there is a bar 
on contract employment, and whether the contract employee is subject to 
a Federal employment debarment for reasons that also pose an 
unacceptable risk in the contracting context. For example, a person's 5-
year bar on Federal employment based on a felony conviction related to 
inciting a riot or civil disorder, as specified in 5 U.S.C. 7313, may 
indicate that granting a CAC poses an unacceptable risk to persons, 
property, and assets in U.S. Government facilities.
    (ii) Therefore, conditions that may be disqualifying include:
    (A) A debarment was imposed by OPM, DoD, or other Federal agencies 
when the conduct poses an unacceptable risk to people, property, or 
information systems.
    (B) The suitability debarment was based on the presence of serious 
suitability issues when the conduct poses an unacceptable risk to 
people, property, or information systems.
    (iii) Circumstances relevant to the determination of whether there 
is a reasonable basis to believe there is an unacceptable risk include:
    (A) Applicant proves the reason(s) for the debarment no longer 
exists.
    (B) The debarment is job or position-specific and is not applicable 
to the job currently under consideration.
    (7) A CAC will not be issued to a person if the individual has 
knowingly and willfully engaged in acts or activities designed to 
overthrow the U.S. Government by force.
    (i) Individuals entrusted with access to U.S. Government property 
and information systems must not put the U.S. Government at risk.
    (ii) Therefore, conditions that may be disqualifying include:
    (A) Illegal involvement in, support of, training to commit, or 
advocacy of any act of sabotage, espionage, treason or sedition against 
the United States of America.
    (B) Association or agreement with persons who attempt to or commit 
any of the acts in paragraph (d)(7)(ii)(A) of this section with the 
specific intent to further those unlawful aims.
    (C) Association or agreement with persons or organizations that 
advocate, threaten, or use force or violence, or use any other illegal 
or unconstitutional means in an effort to overthrow or influence the 
U.S. Government.
    (iii) Circumstances relevant to the determination of whether there 
is a reasonable basis to believe there is an unacceptable risk include:
    (A) The behavior happened so long ago, was minor, or happened under 
such unusual circumstances that it is unlikely to recur and does not 
cast doubt on the individual's current trustworthiness.
    (B) The person was not aware of the person's or organization's 
dedication to illegal, treasonous, or seditious activities or did not 
have the specific intent to further the illegal, treasonous, or 
seditious ends of the person or organization.
    (C) The individual did not have the specific intent to incite others 
to advocate, threaten, or use force or violence, or use any other 
illegal or unconstitutional means to engage in illegal, treasonous, or 
seditious activities.
    (D) The individual's involvement in the activities was for an 
official purpose.



PART 158_OPERATIONAL CONTRACT SUPPORT--Table of Contents



Sec.
158.1 Purpose.
158.2 Applicability.
158.3 Definitions.
158.4 Policy.
158.5 Responsibilities.
158.6 Procedures.
158.7 Guidance for contractor medical and dental fitness.

    Authority: Public Law 110-181; Public Law 110-417.

    Source: 76 FR 81808, Dec. 29, 2011, unless otherwise noted.

[[Page 678]]



Sec.  158.1  Purpose.

    This part establishes policy, assigns responsibilities, and provides 
procedures for operational contract support (OCS), including OCS program 
management, contract support integration, and integration of defense 
contractor personnel into contingency operations outside the United 
States in accordance with the guidance in DoD Directive 3020.49 (see 
http://www.dtic.mil/ whs/directives/corres/ pdf/302049p.pdf) and the 
authority in DOD Directive 5134.01 (see http://www.dtic.mil/ whs/
directives/corres /pdf/513401p.pdf).



Sec.  158.2  Applicability.

    This part applies to:
    (a) The Office of the Secretary of Defense, the Military 
Departments, the Office of the Chairman of the Joint Chiefs of Staff and 
the Joint Staff, the Combatant Commands, the Office of the Inspector 
General of the Department of Defense, the Defense agencies, the DoD 
field activities, and all other organizational entities within the 
Department of Defense (hereinafter referred to collectively as the ``DoD 
Components'').
    (b) DoD operations (contingency, humanitarian assistance, and other 
peace operations) outside the United States; other military operations 
as determined by a Combatant Commander (CCDR); or as directed by the 
Secretary of Defense (hereinafter referred to collectively as 
``applicable contingency operations'').



Sec.  158.3  Definitions.

    Unless otherwise noted, the following terms and their definitions 
are for the purposes of this part.
    Acquisition. Defined in 48 CFR 2.101.
    Contingency acquisition. The process of acquiring supplies, 
services, and construction in support of contingency operations.
    Contingency contract. A legally binding agreement for supplies, 
services, and construction let by Government contracting officers in the 
operational area, as well as other contracts that have a prescribed area 
of performance within a designated operational area. Contingency 
contracts include theater support, external support, and systems support 
contracts.
    Contingency contractor personnel. Individual contractors, individual 
subcontractors at all tiers, contractor employees, and sub-contractor 
employees at all tiers under all contracts supporting the Military 
Services during contingency operations.
    Contingency operation. Defined in Joint Publication 1-02 (see http:/
/www.dtic.mil/ doctrine/new_pubs/ jp1_02.pdf).
    Contingency program management. The process of planning, organizing, 
staffing, controlling, and leading the operational contract support 
(OCS) efforts to meet joint force commander (JFC) objectives.
    Contract administration. A subset of contracting that includes 
efforts that ensure supplies and services are delivered in accordance 
with the conditions and standards expressed in the contract. Contract 
administration is the oversight function, from contract award to 
contract closeout, performed by contracting professionals and designated 
non-contracting personnel.
    Contract administration delegation. A CCDR policy or process related 
to theater business clearance that allows the CCDR to exercise control 
over the assignment of contract administration for that portion of 
contracted effort that relates to performance in, or delivery to, 
designated area(s) of operations and allows the CCDR to exercise 
oversight to ensure the contractor's compliance with CCDR and 
subordinate task force commander policies, directives, and terms and 
conditions. Whether the CCDR chooses to implement such a process depends 
on the situation.
    Contracting. Defined in 48 CFR 2.101.
    Contracting officer. Defined in 48 CFR 2.101.
    Contracting Officer's Representative (COR). Defined in 48 CFR 
202.101.
    Contractor management. The oversight and integration of contractor 
personnel and associated equipment providing support to the joint force 
in a designated operational area.
    Contractors Authorized to Accompany the Force (CAAF). Contractor 
personnel,

[[Page 679]]

including all tiers of subcontractor personnel, who are authorized to 
accompany the force in applicable contingency operations and who have 
been afforded CAAF status through Letter of Authorization (LOA). CAAF 
generally include all U.S. citizen and Third Country National (TCN) 
employees not normally residing within the operational area whose area 
of performance is in the direct vicinity of U.S. forces and who 
routinely are co-located with U.S. forces (especially in non-permissive 
environments). Personnel co-located with U.S. forces shall be afforded 
CAAF status through LOA. In some cases, CCDR subordinate commanders may 
designate mission-essential Host Nation (HN) or Local national (LN) 
contractor employees (e.g., interpreters) as CAAF. CAAF includes 
contractors identified as contractors deploying with the force in DoD 
Instruction 3020.41 and DoD Directive 3002.01E (see http://www.dtic.mil/ 
whs/directives/corres/ pdf/300201p.pdf). CAAF status does not apply to 
contractor personnel in support of contingencies within the boundaries 
and territories of the United States.
    Defense contractor. Any individual, firm, corporation, partnership, 
association, or other legal non-Federal entity that enters into a 
contract directly with the DoD to furnish services, supplies, or 
construction. Foreign governments, representatives of foreign 
governments, or foreign corporations wholly owned by foreign governments 
that have entered into contracts with the DoD are not defense 
contractors.
    Designated reception site. The organization responsible for the 
reception, staging, integration, and onward movement of contractors 
deploying during a contingency. The designated reception site includes 
assigned joint reception centers and other Service or private reception 
sites.
    Essential contractor service. A service provided by a firm or an 
individual under contract to the DoD to support vital systems including 
ships owned, leased, or operated in support of military missions or 
roles at sea and associated support activities, including installation, 
garrison, base support, and linguist/translator services considered of 
utmost importance to the U.S. mobilization and wartime mission. The term 
also includes services provided to Foreign Military Sales customers 
under the Security Assistance Program. Services are considered essential 
because:
    (1) The DoD Components may not have military or DoD civilian 
employees to perform the services immediately.
    (2) The effectiveness of defense systems or operations may be 
seriously impaired and interruption is unacceptable when the services 
are not available immediately.
    External support contracts. Prearranged contracts or contracts 
awarded during a contingency from contracting organizations whose 
contracting authority does not derive directly from theater support or 
systems support contracting authorities.
    Functional Combatant Commands. U.S. Joint Forces Command (USJFCOM), 
U.S. Special Operations Command, U.S. Strategic Command, and U.S. 
Transportation Command.
    Geographic Combatant Commands. U.S. Africa Command, U.S. Central 
Command, U.S. European Command, U.S. Northern Command, U.S. Pacific 
Command, and U.S. Southern Command.
    Hostile environment. Defined in Joint Publication 1-02.
    Host nation (HN). A nation that permits, either by written agreement 
or official invitation, government representatives and/or agencies of 
another nation to operate, under specified conditions, within its 
borders.
    Letter of authorization (LOA). A document issued by a procuring 
contracting officer or designee that authorizes contractor personnel to 
accompany the force to travel to, from, and within an operational area, 
and outlines Government-furnished support authorizations within the 
operational area, as agreed to under the terms and conditions of the 
contract. For more information, see 48 CFR PGI 225.74.
    Local national (LN). An individual who is a permanent resident of 
the nation in which the United States is conducting contingency 
operations.
    Long-term care. A variety of services that help a person with 
comfort, personal, or wellness needs. These services assist in the 
activities of daily living, including such things as bathing and

[[Page 680]]

dressing. Sometimes known as custodial care.
    Non-CAAF. Personnel who are not designated as CAAF, such as LN 
employees and non-LN employees who are permanent residents in the 
operational area or TCNs not routinely residing with U.S. forces (and 
TCN expatriates who are permanent residents in the operational area) who 
perform support functions away from the close proximity of, and do not 
reside with, U.S. forces. Government-furnished support to non-CAAF is 
typically limited to force protection, emergency medical care, and basic 
human needs (e.g., bottled water, latrine facilities, security, and food 
when necessary) when performing their jobs in the direct vicinity of 
U.S. forces.
    Operational contract support (OCS). The ability to orchestrate and 
synchronize the provision of integrated contract support and management 
of contractor personnel providing support to the joint force within a 
designated operational area.
    Prime contract. Defined in 48 CFR 3.502.
    Qualifying contingency operation. In accordance with Article 
2(a)(10) of the Uniform Code of Military Justice (UCMJ) (see http://
www.au.af.mil/ au/awc/awcgate/ucmj.htm), a military contingency 
operation conducted for the purpose of engaging an enemy or a hostile 
force in combat where disciplinary authority over civilians under 
Article 2(a)(10) is governed by the UCMJ, the Secretary of Defense 
Memorandum, ``UCMJ Jurisdiction Over DoD Civilian Employees, DoD 
Contractor Personnel, and Other Persons Serving With or Accompanying the 
Armed Forces Overseas During Declared War and in Contingency 
Operations,'' dated March 10, 2008 (see http://www.dtic.mil/ whs/
directives/corres/ pdf/DTM-08-009.pdf), and the Manual for Courts-
Martial, United States, current edition (see http://www.au.af.mil/ au/
awc/awcgate/law/mcm.pdf).
    Replacement center. The centers at selected installations that 
ensure personnel readiness processing actions have been completed prior 
to an individual reporting to the aerial port of embarkation for 
deployment to a designated operational area.
    Requiring activity. The organization charged with meeting the 
mission and delivering the requirements the contract supports. This 
activity is responsible for delivering the services to meet the mission 
if the contract is not in effect. The requiring activity may also be the 
organizational unit that submits a written requirement, or statement of 
need, for services required by a contract. This activity is responsible 
for ensuring compliance with DoD Instruction 1100.22 (see http://
www.dtic.mil/ whs/directives/corres/ pdf/110022p.pdf) and Deputy 
Secretary of Defense Memorandums, ``In-sourcing Contracted Services--
Implementation Guidance'' dated May 28, 2009, and ``Implementation of 
Section 324 of the National Defense Authorization Act for Fiscal Year 
2008 (FY 2008 NDAA)--Guidelines and Procedures on In-Sourcing New and 
Contracted Out Functions'' dated April 4, 2008 (for both Deputy 
Secretary of Defense Memorandums see http://prhome.defense.gov/ RSI/
REQUIREMENTS/INSOURCE/ INSOURCE_GUIDANCE.ASPX).
    Subcontract. Defined in 48 CFR 3.502.
    Systems support contracts. Prearranged contracts awarded by Service 
acquisition program management offices that provide fielding support, 
technical support, maintenance support, and, in some cases, repair parts 
support, for selected military weapon and support systems. Systems 
support contracts routinely are put in place to provide support to many 
newly fielded weapons systems, including aircraft, land combat vehicles, 
and automated command and control systems. Systems support contracting 
authority, contract management authority, and program management 
authority reside with the Service system materiel acquisition program 
offices. Systems support contractors, made up mostly of U.S. citizens, 
provide support in continental U.S. (CONUS) and often deploy with the 
force in both training and contingency operations. The JFC generally has 
less control over systems support contracts than other types of 
contracts.
    Theater business clearance. A CCDR policy or process to ensure 
visibility of and a level of control over systems support and external 
support contracts

[[Page 681]]

executing or delivering support in designated area(s) of operations. The 
breadth and depth of such requirements will be situational. Theater 
business clearance is not necessarily discrete and can be implemented to 
varying degrees on a continuum during all phases of an operation.
    Theater support contracts. Contingency contracts awarded by 
contracting officers deployed to an operational area serving under the 
direct contracting authority of the Service component, special 
operations force command, or designated joint contracting authority for 
the designated contingency operation.
    Uniquely military functions. Defined in DoD Instruction 1100.22, 
``Policy and Procedures for Determining Workforce Mix.''



Sec.  158.4  Policy.

    It is DoD policy that:
    (a) OCS actions (e.g., planning, accountability, visibility, 
deployment, protection, and redeployment requirements) shall be 
implemented to:
    (1) Incorporate appropriate contingency program management processes 
during applicable contingency operations.
    (2) Comply with applicable U.S., international, and local laws, 
regulations, policies, and agreements.
    (3) Use contract support only in appropriate situations consistent 
with 48 CFR subpart 7.5, 48 CFR 207.503, and DoD Instruction 1100.22, 
``Policy and Procedures for Determining Workforce Mix.''
    (4) Fully consider, plan for, integrate, and execute acquisition of, 
contracted support, including synchronizing and integrating contracted 
support flowing into an operational area from systems support, external 
support and theater support contracts and managing the associated 
contractor personnel, into applicable contingency operations consistent 
with CCDR policies and procedures and Joint Publication (JP) 4-10, 
``Operational Contract Support,'' (see http://www.dtic.mil/ doctrine/
new_pubs/ jp4_10.pdf).
    (b) Contractors are generally responsible for providing their own 
logistical support. However, in austere, uncertain, and/or hostile 
environments, the DoD may provide logistical support to ensure 
continuation of essential contractor services. CAAF may receive 
Government-furnished support commensurate with the operational situation 
in accordance with the terms and conditions of their contract.
    (c) Contracting officers will ensure that contracts used to support 
DoD operations require:
    (1) That CAAF deploying from outside the operational area be 
processed through formal deployment (replacement) centers or a DoD-
approved equivalent process prior to departure, and through in-theater 
reception centers upon arrival in the operational area, as specified in 
Sec.  158.6 of this part.
    (2) That contractors provide personnel who are medically, dentally, 
and psychologically fit, and if applicable, professionally tested and 
certified, to perform contract duties in applicable contingency 
operations. Section 158.6 of this part details medical support and 
evacuation procedures. Section 158.7 of this part provides guidance on 
contractor medical, psychological, and dental fitness.
    (3) Solicitations and contracts address any applicable host country 
and designated operational area performance considerations.
    (d) Contracts for highly sensitive, classified, cryptologic, and 
intelligence projects and programs shall implement this part to the 
maximum extent practicable, consistent with applicable laws, Executive 
orders, Presidential Directives, and DoD issuances.
    (e) In applicable contingency operations, contractor visibility and 
accountability shall be maintained through a common joint database, the 
Synchronized Predeployment and Operational Tracker (SPOT) or its 
successor.



Sec.  158.5  Responsibilities.

    (a) The Under Secretary of Defense for Acquisition, Technology, and 
Logistics (USD(AT&L)) shall develop, coordinate, establish, and oversee 
the implementation of DoD policy for managing OCS.
    (b) The Director, Defense Procurement and Acquisition Policy (DPAP), 
under the authority, direction, and control of the USD(AT&L), shall:

[[Page 682]]

    (1) Oversee all acquisition and procurement policy matters including 
the development of DoD policies for contingency contracting and the 
coordinated development and publication of contract prescriptions and 
standardized contract clauses in 48 CFR 207.503, 252.225-7040, and 
202.101, and associated contracting officer guidance in 48 CFR PGI 
225.74. This includes working collaboratively with OSD Principal Staff 
Assistants, Chairman of the Joint Chiefs of Staff (CJCS) 
representatives, and the DoD Component Heads in the development of OCS 
related policies and ensuring that contracting equities are addressed.
    (2) Develop contingency contracting policy and implement other OCS 
related policies into DFARS in support of applicable contingency 
operations.
    (3) Ensure implementation by contracting officers and CORs of 
relevant laws and policies in 48 CFR Subparts 4.1301, 4.1303, 52.204-9, 
7.5, 7.503(e), 2.101, and 3.502; 48 CFR Subparts 207.503, 252.225-7040 
and 202.101; and 48 CFR PGI 225.74.
    (4) Propose legislative initiatives that support accomplishment of 
the contingency contracting mission.
    (5) Improve DoD business processes for contingency contracting while 
working in conjunction with senior procurement executives across the 
DoD. Assist other OSD Principal Staff Assistants, CJCS representatives, 
and DoD Component Heads in efforts to improve other OCS related business 
processes by ensuring contracting equities and interrelationships are 
properly addressed.
    (6) Support efforts to resource the OCS toolset under the lead of 
the Deputy Assistant Secretary of Defense for Program Support (DASD(PS)) 
pursuant to paragraph (c)(6)(ii) of this section.
    (7) Coordinate activities with other Government agencies to provide 
unity of effort. Maintain an open, user-friendly source for reports and 
lessons learned and ensure the coordinated development and publication, 
through participation on the FAR Council, of standardized contract 
clauses.
    (8) As a member of the Contracting Functional Integrated Planning 
Team, collaborate with the Defense Acquisition University to offer 
education for all contingency contracting personnel.
    (9) Participate in the OCS Functional Capability Integration Board 
(FCIB) to facilitate development of standard joint OCS concepts, 
policies, doctrine, processes, plans, programs, tools, reporting, and 
training to improve effectiveness and efficiency.
    (10) In concert with the supported Combatant Commander, coordinate 
in advance of execution Executive Agency for Head of Contracting 
Activity requisite Operational Plans (OPLANS), Concept Plans (CONPLANS), 
and operations, where a lead service or a Joint Theater Support 
Contracting Command (JTSCC) will be established.
    (c) The DASD(PS), under the authority, direction, and control of the 
USD(AT&L) through the Assistant Security of Defense for Logistics and 
Materiel Readiness (ASD(L&MR)), is responsible for oversight and 
management to enable the orchestration, integration, and synchronization 
of the preparation and execution of acquisitions for DoD contingency 
operations, and shall:
    (1) Coordinate policy relating to field operations and contingency 
contractor personnel in forward areas and the battlespace. In 
cooperation with the Joint Staff, Military Departments, and OSD, serve 
as the DoD focal point for the community of practice and the community 
of interest for efforts to improve OCS program management and oversight.
    (2) Co-chair with the Vice Director, Directorate for Logistics, 
Joint Staff, (VDJ4) the OCS FCIB to lead and coordinate OCS with OSD, 
Military Department, and Defense Agency senior procurement officers in 
accordance with the OCS FCIB Charter (see http://www.acq.osd.mil/ log/
PS/fcib/OCS_FCIB_ charter_USA000737-09_ signed.pdf).
    (3) Ensure integration of joint OCS activities across other joint 
capability areas and joint warfighting functions.
    (4) Provide input to the Logistics Capability Portfolio Manager and 
the CJCS in the development of capability priorities; review final 
capability priorities; and provide advice to the Under Secretary of 
Defense for Policy (USD(P)) in developing the Quadrennial Defense Review 
(see http://

[[Page 683]]

www.defense.gov/ qdr/images/QDR_as_of_ 12Feb10_1000.pdf) and defense 
planning and programming guidance, as appropriate.
    (5) Serve as the DoD lead to:
    (i) Develop a programmatic approach for the preparation and 
execution of orchestrating, integrating, and synchronizing acquisitions 
for contingency operations.
    (ii) Establish and oversee DoD policies for OCS program management 
in the planning and execution of combat, post-combat, and other 
contingency operations involving the Military Departments, other 
Government agencies, multinational forces, and non-governmental 
organizations, as required.
    (6) Improve DoD business practices for OCS.
    (i) In consultation with the Under Secretary of Defense for 
Personnel and Readiness (USD(P&R)); the Director, DPAP; and the CJCS, 
ensure a joint web-based contract visibility and contractor personnel 
accountability system (currently SPOT) is designated and implemented, 
including business rules for its use.
    (ii) Lead the effort to resource the OCS toolset providing improved 
OCS program management, planning, OCS preparation of the battlefield, 
systems support, and theater support contracts, contractor 
accountability systems, and automated contract process capabilities, 
including reach back from remote locations to the national defense 
contract base (e.g., hardware and software).
    (7) In consultation with the Heads of the OSD and DoD Components, 
provide oversight of experimentation efforts focusing on concept 
development for OCS execution.
    (8) Serve as the DoD lead for the oversight of training and 
education of non-acquisition, non-contracting personnel identified to 
support OCS efforts.
    (d) The Director, DLA, under the authority, direction, and control 
of the USD(AT&L), through the ASD(L&MR) shall, through the Joint 
Contingency Acquisition Support Office (JCASO), provide enabler OCS 
support to CCDR OCS planning efforts and training events, and, when 
requested, advise, assist, and support JFC oversight of OCS operations. 
Specifically, the Director, JCASO, shall:
    (1) Provide OCS planning support to the CCDR through Joint OCS 
Planners embedded within the geographic Combatant Command staff. 
Maintain situational awareness of all plans with significant OCS equity 
for the purposes of exercise support and preparation for operational 
deployment. From JCASO forward involvement in exercises and operational 
deployments, develop and submit lessons learned that result in improved 
best practices and planning.
    (2) When requested, assist the Joint Staff in support of the 
Chairman's OCS responsibilities listed in paragraph (l) of this section.
    (3) Facilitate improvement in OCS planning and execution through 
capture and review of joint OCS lessons learned. In cooperation with 
USJFCOM, Military Services, other DoD Components, and interagency 
partners, collect joint operations focused OCS lessons learned and best 
practices from contingency operations and exercises to inform OCS policy 
and recommend doctrine, organization, training, materiel, leadership, 
personnel, and facilities (DOTMLPF) solutions.
    (4) Participate in joint exercises, derive OCS best practices from 
after-action reports and refine tactics/techniques/procedures, 
deployment drills, and personal and functional training (to include 
curriculum reviews and recommendations). Assist in the improvement of 
OCS related policy, doctrine, rules, tools, and processes.
    (5) Provide the geographic CCDRs, when requested, with deployable 
experts to assist the CCDR and subordinate JFCs in managing OCS 
requirements in a contingency environment.
    (6) Practice continuous OCS-related engagement with interagency 
representatives and multinational partners, as appropriate and 
consistent with existing authorities.
    (7) Participate in the OCS FCIB to facilitate development of 
standard joint OCS concepts, policies, doctrine, processes, plans, 
programs, tools, reporting, and training to improve effectiveness and 
efficiency.
    (e) The Director, Defense Contract Management Agency (DCMA) under 
the

[[Page 684]]

authority, direction, and control of the USD(AT&L), through the 
Assistant Secretary of Defense for Acquisition (ASD(Acquisition)), plans 
for and performs contingency contract administration services in support 
of the CJCS and CCDRs in the planning and execution of military 
operations, consistent with DCMA's established responsibilities and 
functions.
    (f) The Under Secretary of Defense for Intelligence (USD(I)), as the 
Principal Staff Assistant for intelligence, counterintelligence, and 
security in accordance with DoD Directive 5143.01 (see http://
www.dtic.mil/ whs/directives/corres/ pdf/514301p.pdf), shall:
    (1) Develop, coordinate, and oversee the implementation of DoD 
security programs and guidance for those contractors covered in DoD 
Instruction 5220.22 (see http://www.dtic.mil/ whs/directives/corres/ 
pdf/522022p.pdf.
    (2) Assist the USD(AT&L) in determining appropriate contract clauses 
for intelligence, counterintelligence, and security requirements.
    (3) Establish policy for contractor employees under the terms of the 
applicable contracts that support background investigations in 
compliance with 48 CFR 4.1301, 4.1303, and 52.204-9.
    (4) Coordinate security and counterintelligence policy affecting 
contract linguists with the Secretary of the Army pursuant to DoD 
Directive 5160.41E (see http://www.dtic.mil/ whs/directives/corres/ pdf/
516041p.pdf).
    (g) The Assistant Secretary of Defense for Health Affairs (ASD(HA)), 
under the authority, direction, and control of the USD(P&R), shall 
assist in the development of policy addressing the reimbursement of 
funds for qualifying medical support received by contingency contractor 
personnel in applicable contingency operations.
    (h) The Deputy Assistant Secretary of Defense for Readiness 
(DASD(Readiness)) under the authority, direction, and control of the 
USD(P&R), shall develop policy and set standards for managing contract 
linguist capabilities supporting the total force to include requirements 
for linguists and tracking linguist and role players to ensure that 
force readiness and security requirements are met.
    (i) The Director, Defense Manpower Data Center (DMDC), under the 
authority, direction, and control of the USD(P&R), through the Director, 
DoD Human Resources Activity, shall:
    (1) Serve as the central repository of information for all 
historical data on contractor personnel who have been issued common 
access cards (CAC) and are included in SPOT or its successor, that is to 
be archived.
    (2) Ensure all data elements of SPOT or its successor to be archived 
are USD(P&R)-approved and DMDC-system compatible, and ensure the 
repository is protected at a level commensurate with the sensitivity of 
the information contained therein.
    (j) The Under Secretary of Defense (Comptroller)/Chief Financial 
Officer (USD(C)/CFO), DoD, shall develop policy addressing the 
reimbursement of funds for qualifying medical support received by 
contingency contractor personnel in applicable contingency operations.
    (k) The Secretaries of the Military Departments and the Directors of 
the Defense Agencies and DoD Field Activities shall incorporate this 
part into applicable policy, doctrine, programming, training, and 
operations and ensure:
    (1) Assigned contracting activities populate SPOT with the required 
data in accordance with Assistant Secretary of Defense for Logistics and 
Materiel Readiness Publication, ``Business Rules for the Synchronized 
Predeployment and Operational Tracker (SPOT),'' current edition (see 
http://www.acq.osd.mil/ log/PS/spot.html) and that information has been 
reviewed for security and operational security (OPSEC) concerns in 
accordance with paragraph (c)(3)(ii)(E) of Sec.  158.6.
    (2) CAAF meet all theater and/or joint operational area (JOA) 
admission procedures and requirements prior to deploying to or entering 
the theater or JOA.
    (3) Contracting officers include in the contract:
    (i) Appropriate terms and conditions and clause(s) in accordance 
with 48 CFR 252.225-7040 and 48 CFR PGI 225.74.
    (ii) Specific deployment and theater admission requirements 
according to 48

[[Page 685]]

CFR 252.225-7040 and 48 CFR PGI 225.74, and the applicable CCDR Web 
sites.
    (iii) Specific medical preparation requirements according to 
paragraph (c)(8) of Sec.  158.6.
    (iv) The level of protection to be provided to contingency 
contractor personnel in accordance with paragraph (d)(5) of Sec.  158.6. 
Contracting officers shall follow the procedures on the applicable CCDR 
Web sites to obtain theater-specific requirements.
    (v) Government-furnished support and equipment to be provided to 
contractor personnel with prior coordination and approval of theater 
adjudication authorities, as referenced on the applicable CCDR Web 
sites.
    (vi) A requirement for contractor personnel to show and have 
verified by the COR, proof of professional certifications/proficiencies 
as stipulated in the contract.
    (4) Standardized contract accountability financial and oversight 
processes are developed and implemented.
    (5) Requirements packages are completed to include all required 
documentation (e.g., letter of justification, performance work 
statement, nominated COR, independent Government estimate (IGE)) are 
completed and funding strategies are articulated and updated as 
required.
    (6) CORs are planned for, resourced, and sustained as necessary to 
ensure proper contract management capabilities are in place and properly 
executed.
    (7) Assigned contracting activities plan for, and ensure the 
contractor plans for, the resources necessary to implement and sustain 
contractor accountability in forward areas through SPOT or its 
successor.
    (8) Contract support integration plans (CSIPs) and contractor 
management plans (CMPs) are developed as directed by the supported CCDR.
    (9) The risk of premature loss of mission-essential OCS is assessed 
and the mitigation of the loss of contingency contractor personnel in 
wartime or contingency operations who are performing essential 
contractor services is properly planned for.
    (10) Assigned contracting activities comply with theater business 
clearance and contract administration delegation policies and processes 
when implemented by CCDRs to support any phase of a contingency 
operation.
    (11) Agency equities are integrated and conducted in concert with 
the CCDR's plans for OCS intelligence of the battlefield.
    (12) The implementation of a certification of, and a waiver process 
for, contractor-performed deployment and redeployment processing in lieu 
of a formally designated group, joint, or Military Department deployment 
center.
    (13) Support the effort to resource the OCS toolset under the lead 
of the DASD(PS) pursuant to paragraph (c)(6)(ii) of this section.
    (l) The CJCS shall:
    (1) Where appropriate, incorporate program management and elements 
of this part into joint doctrine, joint instructions and manuals, joint 
training, joint education, joint capability development, joint strategic 
planning system (e.g., Joint Operation Planning and Execution System 
(JOPES)), and CCDR oversight.
    (2) Co-chair with the VDJ4 the OCS FCIB to lead and coordinate OCS 
with OSD, Military Department, and Defense Agency senior procurement 
officers in accordance with OCS FCIB charter. Provide the OCS FCIB with 
input and awareness of the CJCS functions and activities as defined in 
10 U.S.C. 153 and 155.
    (3) Perform OCS related missions and functions as outlined in the 
Joint Staff Manual 5100.01 \1\ and the Chairman's authorities as defined 
in 10 U.S.C. (see http://uscode.house.gov/ download/title_10.shtml).
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    \1\ This document is classified Restricted, and is available via 
Secure Internet Protocol Router Network at http://js.smil.mil. If the 
requester is not an authorized user of the classified network the 
requestor should contact Joint Staff J-1 at (703) 697-9645.
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    (m) The geographic CCDRs and the CDRUSSOCOM (when they are the 
supported commander) shall:
    (1) Plan and execute OCS program management, contract support 
integration, and contractor management actions in all applicable 
contingency operations in their AOR.
    (2) Conduct integrated planning to determine and synchronize 
contract support requirements to facilitate OCS

[[Page 686]]

planning and contracting and contractor management oversight.
    (3) In coordination with the Services and functional components, 
identify military capabilities shortfalls in all the joint warfighting 
functions that require contracted solutions. Ensure these requirements 
are captured in the appropriate CCDR, subordinate JFC, Service component 
and combat support agency CSIP or other appropriate section of the 
CONPLAN with time-phased force and deployment data (TPFDD), OPLAN or 
operation order (OPORD).
    (4) Require Service component commanders and supporting Defense 
Agencies and DoD Field Activities to:
    (i) Identify and incorporate contract support and operational 
acquisition requirements in supporting plans to OPLANs and CONPLANs with 
TPFDD, and to synchronize their supporting CSIPs, CMPs, and contracted 
requirements and execution plans within geographic CCDR OPLANs and 
CONPLANs with TPFDD.
    (ii) Review their supporting CSIPs and CMPs and identify funding 
strategies for particular contracted capabilities identified to support 
each OPLAN and CONPLAN.
    (iii) Develop acquisition-ready requirements documents as identified 
in CSIPs including performance work statements, IGEs, task order change 
documents, and sole source justifications.
    (iv) Ensure CAAF and their equipment are incorporated into TPFDD 
development and deployment execution processes in accordance with CJCS 
Manual 3122.02C, JOPES Volume III, ``Crisis Action Time-Phased Force and 
Deployment Data Development and Deployment Execution,'' June 19, 2006.
    (v) Ensure financial management policies and procedures are in place 
in accordance with DoD 7000.14-R (see http://comptroller.defense.gov/
fmr/) and applicable service specific financial management 
implementation guidance.
    (5) Develop and publish comprehensive OCS plans. Synchronize OCS 
requirements among all Service components and Defense Agencies and DoD 
Field Activities operating within or in support of their area of 
responsibility (AOR). Optimize operational unity of effort by analyzing 
existing and projected theater support and external support contracts to 
minimize, reduce, and eliminate redundant and overlapping requirements 
and contracted capabilities.
    (6) Ensure OCS requirements for the Defense Agencies, multinational 
partners, and other Governmental agencies are addressed and priorities 
of effort for resources are deconflicted and synchronized with OCS to 
military forces.
    (7) Ensure policies and procedures are in place for reimbursing 
Government-furnished support of contingency contractor personnel, 
including (but not limited to) subsistence, military air, intra-theater 
lift, and medical treatment, when applicable.
    (8) Ensure CAAF and equipment requirements (regardless if provided 
by the Government or the contractor) in support of an operation are 
incorporated into plan TPFDDs.
    (9) Review Service component assessments of the risk of premature 
loss of essential contractor services and review contingency plans to 
mitigate potential premature loss of essential contractor services.
    (10) Establish and communicate to contracting officers theater and/
or JOA CAAF admission procedures and requirements, including country and 
theater clearance, waiver authority, immunizations, required training or 
equipment, and any restrictions necessary to ensure proper deployment, 
visibility, security, accountability, and redeployment of CAAF to their 
AORs and/or JOAs. Implement DoD Foreign Clearance Guide, current edition 
(available at https://www.fcg.pentagon.mil/).
    (11) Coordinate with the Office of the USD(P) to ensure special 
area, country, and theater personnel clearance requirements are current 
in accordance with DoD Foreign Clearance Guide, and coordinate with 
affected agencies (e.g., Intelligence Community agencies) to ensure that 
entry requirements do not impact mission accomplishment.
    (12) Determine and distribute specific theater OCS organizational 
guidance in plans, to include command, control, and coordination, and 
Head Contracting Authority (HCA) relationships.

[[Page 687]]

    (13) Develop and distribute AOR/JOA-wide contractor management 
requirements, directives, and procedures into a separate contractor 
management plan as an annex or the appropriate section of the 
appropriate plan.
    (14) Establish, staff, and execute appropriate OCS-related boards, 
centers, and working groups.
    (15) Integrate OCS into mission rehearsals and training exercises.
    (16) When contracts are being or will be executed in an AOR/JOA, 
designate and identify the organization responsible for managing and 
prescribing processes to:
    (i) Establish procedures and assign authorities for adjudicating 
requests for provision of Government-furnished equipment and services to 
contractors when such support is operationally required. This should 
include procedures for communicating approval to the requiring activity 
and the contracting officer for incorporation into contracts.
    (ii) Authorize trained and qualified contractor personnel to carry 
weapons for personal protection not related to the performance of 
contract-specific duties.
    (iii) Establish procedures for, including coordination of, inter-
theater strategic movements and intra-theater operational and tactical 
movements of contractor personnel and equipment.
    (iv) Collect information on and refer to the appropriate Government 
agency offenses, arrests, and incidents of alleged misconduct committed 
by contractor personnel on or off-duty.
    (v) Collect and maintain information relating to CAAF and selected 
non-CAAF kidnappings, injuries, and deaths.
    (vi) Identify the minimum standards for conducting and processing 
background checks, and for issuing access badges to HN, LN, and TCN 
personnel employed, directly or indirectly, through Government-awarded 
contracts.
    (vii) Remove CAAF from the designated operational area who do not 
meet medical deployment standards, whose contract period of performance 
has expired, or who are noncompliant with contract requirements.
    (viii) Designate additional contractor personnel not otherwise 
covered by personnel recovery policy for personnel recovery support in 
accordance with DoD Directive 3002.01E.
    (ix) Ensure that contract oversight plans are developed, and that 
adequate personnel to assist in contract administration are identified 
and requested, in either a separate contractor management plan as an 
annex of plans and orders and/or within appropriate parts of plans and 
orders.
    (x) Develop a security plan for the protection of contingency 
contractor personnel according to paragraph (d)(5) of Sec.  156.8.
    (xi) Develop and implement theater business clearance and, if 
required, Contract Administration Delegation policies and procedures to 
ensure visibility of and a level of control over systems support and 
external support contracts providing or delivering contracted support in 
contingency operations.
    (17) Enforce the individual arming policy and use of private 
security contractors in accordance with 32 CFR part 159 and DoD 
Directive 5210.56 (see http://www.dtic.mil/ whs/directives/corres/ pdf/
521056p.pdf).
    (18) Establish a process for reviewing exceptions to medical 
standards (waivers) for the conditions in paragraph (j) of Sec.  158.7, 
including a mechanism to track and archive all approved and denied 
waivers and the medical conditions requiring waiver. Additionally, serve 
as the final approval/disapproval authority for all exceptions to this 
policy, except in special operations where the Theater Special 
Operations Command (TSOC) commander has the final approval or 
disapproval authority.
    (19) Establish mechanisms for ensuring contractors are required to 
report offenses alleged to have been committed by or against contractor 
personnel to appropriate investigative authorities.
    (20) Assign responsibility for providing victim and witness 
protection and assistance to contractor personnel in connection with 
alleged offenses.
    (21) Ensure applicable predeployment, deployment, in-theater 
management, and redeployment guidance and procedures are readily 
available and accessible by planners, requiring activities, contracting 
officers,

[[Page 688]]

contractors, contractor personnel and other interested parties on a Web 
page, and related considerations and requirements are integrated into 
contracts through contract terms, consistent with security 
considerations and requirements.
    (22) Ensure OCS preparation of the battlefield is vetted with 
intelligence agencies when appropriate.
    (23) Integrate OCS planning with operational planning across all 
primary and special staff sections.
    (n) The functional CCDRs utilizing OCS shall ensure their Commands 
follow the procedures in this part and applicable operational-specific 
guidance provided by the supported geographic CCDR.



Sec.  158.6  Procedures.

    (a) Requirements, Relationships, and Restrictions. In implementing 
this part, the Heads of DoD Components shall abide by applicable laws, 
regulations, DoD policy, and international agreements as they relate to 
contractor personnel supporting applicable contingency operations.
    (1) Status of Contractor Personnel. (i) Pursuant to applicable law, 
contracted services may be utilized in applicable contingency operations 
for all functions not inherently governmental. Contractor personnel may 
be utilized in support of such operations in a non-combat role as long 
as contractor personnel residing with the force in foreign contingencies 
have been designated as CAAF by the force they accompany and are 
provided with an appropriate identification card pursuant to the Geneva 
Convention Relative to the Treatment of Prisoners of War (see http://
www.icrc.org/ ihl.nsf/FULL/375). If captured during international armed 
conflict, contractors with CAAF status are entitled to prisoner of war 
status. Some contractor personnel may be covered by the Geneva 
Convention Relative to the Protection of Civilian Persons in Time of War 
(see http://www.icrc.org/ihl.nsf/ 385ec082b509e76c 41256739003e636d/ 
6756482d86146898c 125641e004aa3c5) should they be captured during armed 
conflict. All contractor personnel may be at risk of injury or death 
incidental to enemy actions while supporting military operations. CAAF 
status does not apply to contractor personnel supporting domestic 
contingencies.
    (ii) Contractor personnel may support applicable contingency 
operations such as by providing communications support; transporting 
munitions and other supplies; performing maintenance functions for 
military equipment; providing private security services; providing 
foreign language interpretation and translation services, and providing 
logistic services such as billeting and messing. Each service to be 
performed by contractor personnel in applicable contingency operations 
shall be reviewed on a case-by-case basis in consultation with the 
cognizant manpower official and servicing legal office to ensure 
compliance with DoD Instruction 1100.22 and relevant laws and 
international agreements.
    (2) Local and Third-Country Laws. Subject to the application of 
international agreements, all contingency contractor personnel must 
comply with applicable local and third country laws. Contractor 
personnel may be hired from U.S., LN, or third country sources and their 
status may change (e.g., from non-CAAF to CAAF), depending on where they 
are detailed to work by their employer or on the provisions of the 
contract. The CCDRs, as well as subordinate commanders and Service 
component commanders, and the Directors of the Defense Agencies and DoD 
Field Activities should be cognizant of limiting factors regarding the 
employment of LN and TCN personnel. Limiting factors may include 
imported labor worker permits; workforce and hour restrictions; medical, 
life, and disability insurance coverage; taxes, customs, and duties; 
cost of living allowances; hardship differentials; access to classified 
information; and hazardous duty pay.
    (3) U.S. Laws. CAAF, with some exceptions, are subject to U.S. laws 
and Government regulations. For example, all U.S. citizen and TCN CAAF 
may be subject to prosecution pursuant to Federal law including, but not 
limited to, 18 U.S.C. 3261 (also known and hereinafter referred to as 
``The Military Extraterritorial Jurisdiction Act of

[[Page 689]]

2000 (MEJA), as amended''). MEJA extends U.S. Federal criminal 
jurisdiction to certain defense contractor personnel for offenses 
committed outside U.S. territory. Additionally, CAAF are subject to 
prosecution pursuant to 10 U.S.C. chapter 47 (also known and hereinafter 
referred to as ``The Uniform Code of Military Justice (UCMJ)'') in 
accordance with Secretary of Defense Memorandum (``UCMJ Jurisdiction 
Over DoD Civilian Employees, DoD Contractor Personnel, and Other Persons 
Serving With or Accompanying the Armed Forces Overseas During Declared 
War and in Contingency Operations,'' March 10, 2008). Other laws may 
allow prosecution of offenses by contactor personnel, such as 18 U.S.C. 
7(9). Immediate consultation with the servicing legal office and the 
contracting officer is required in all cases of suspected MEJA and/or 
UCMJ application to conduct by CAAF personnel, especially in non-combat 
operations or in undeclared contingencies.
    (4) Contractual Relationships. The contract is the only legal basis 
for the relationship between the DoD and the contractor. The contract 
shall specify the terms and conditions, to include minimum acceptable 
professional standards, under which the contractor is to perform, the 
method by which the contractor will be notified of the deployment 
procedures to process contractor personnel, and the specific support 
relationship between the contractor and the DoD. The contract shall 
contain standardized clauses to ensure efficient deployment, 
accountability, visibility, protection, authorized levels of health 
service, and other support, sustainment, and redeployment of contractor 
personnel. It shall also specify the appropriate flow-down of provisions 
and clauses to subcontracts, and shall state that the service performed 
by contractor personnel is not considered to be active duty or active 
service in accordance with DoD Directive 1000.20 (see http://
www.dtic.mil/ whs/directives/corres/ pdf/100020p.pdf) and 38 U.S.C. 106.
    (5) Restrictions on Contracting Inherently Governmental Functions. 
Inherently governmental functions and duties are barred from private 
sector performance in accordance with DoD Instruction 1100.22, 48 CFR 
207.503, 48 CFR 7.5, Public Law (Pub. L.) 105-270, and Office of 
Management and Budget Circular A-76 (see http://www.whitehouse.gov/ omb/
circulars_a076_ a76_incl_ tech_correction). As required by 48 CFR 
7.503(e), 48 CFR 207.503, and Deputy Secretary of Defense Memorandum, 
``In-sourcing Contracted Services--Implementation Guidance'' dated May 
28, 2009, contracting officials shall request requiring officials to 
certify in writing that functions to be contracted (or to continue to be 
contracted) are not inherently governmental. Requiring officials shall 
determine whether functions are inherently governmental based on the 
guidance in DoD Instruction 1100.22.
    (6) Restrictions on Contracting Functions Exempted From Private 
Sector Performance. As required by 48 CFR 207.503 and Deputy Secretary 
of Defense Memorandum, ``In-sourcing Contracted Services--Implementation 
Guidance,'' May 28, 2009, contracting officials shall request requiring 
officials to certify in writing that functions to be contracted (or 
continue to be contracted) are not exempted from private sector 
performance. Requiring officials shall determine whether functions are 
exempted from private sector performance based on the guidance in DoD 
Instruction 1100.22.
    (7) Requirements for Contracting Commercial Functions. As required 
by 10 U.S.C. 2463 and Deputy Secretary of Defense Memorandum, ``In-
sourcing Contracted Services--Implementation Guidance,'' in advance of 
contracting for commercial functions or continuing to contract for 
commercial functions, requiring officials shall consider using DoD 
civilian employees to perform the work. Requiring officials shall 
determine whether DoD civilian employees should be used to perform the 
work based on the guidance in Deputy Secretary of Defense Memorandum, 
``In-sourcing Contracted Services--Implementation Guidance'' and Deputy 
Secretary of Defense Memorandum ``Implementation of Section 324 of the 
National Defense Authorization Act for Fiscal Year 2008 (FY 2008 NDAA)--
Guidelines and Procedures on In-Sourcing New and Contracted Out 
Functions,'' April, 4, 2008.

[[Page 690]]

    (8) International Laws, Local Laws, and Host Nation (HN) Support 
Agreements. Planners and requiring activities, in coordination with 
contracting officers shall take international laws, local laws, and HN 
support agreements into account when planning for contracted support, 
through assistance and coordination of the staff judge advocates (SJAs) 
office of the geographic CCDRs; the Commander, United States Special 
Operations Command (CDRUSSOCOM); the Commander, United States 
Transportation Command (CDRUSTRANSCOM); and the Service component 
commander SJA offices. These laws and support agreements may affect 
contracting by restricting the services to be contracted, limiting 
contracted services to LN or HN contractor sources or, in some cases, by 
prohibiting contractor use altogether.
    (9) Status-of-Forces Agreements (SOFAs). Planners and requiring 
activities, in coordination with contracting officers shall review 
applicable SOFAs and related agreements to determine their affect on the 
status and use of contractors in support of applicable contingency 
operations, with the assistance and coordination of the geographic CCDR 
SJA offices.
    (b) OCS Planning. Combatant and subordinate JFCs determine whether 
contracted support capabilities are appropriate in support of a 
contingency. When contractor personnel and equipment are anticipated to 
support military operations, military planners will develop 
orchestrated, synchronized, detailed, and fully developed CSIPs and CMPs 
as components CONPLANs and OPLANs, in accordance with appropriate 
strategic planning guidance. CONPLANS without TPFDD and OPORDs shall 
contain CSIP- and CMP-like guidance to the extent necessary as 
determined by the CCDR. OCS planning will, at a minimum, consider HN 
support agreements, acquisition cross-servicing agreements, and Military 
logistics support agreements.
    (1) CSIPs. All CCDR CONPLANs with TPFDD and OPLANs shall include a 
separate CSIP (i.e., Annex W) in accordance with Chairman of the Joint 
Chiefs of Staff Manual 3122.02C and Joint Publication 4-0, ``Joint 
Logistics,'' July 18, 2008. Further, plans and orders should contain 
additional contract support guidance, as appropriate, in applicable 
annexes and appendixes within the respective plans (e.g., contracted 
bulk fuel support guidance should be addressed in the Class III(B) 
Appendix to the Logistic Annex). Service component commanders shall 
provide supporting CSIPs as directed by the CCDR.
    (2) CMPs. All CCDR CONPLANs with TPFDD and OPLANs shall include a 
separate CMP and/or requisite contractor management requirements 
document in the applicable appendix or annex of these plans (e.g., 
private security contractor rules for the use of force should be 
addressed in the Rules of Engagement Appendix to the Concept of the 
Operation Annex) in accordance with Chairman of the Joint Chiefs of 
Staff Manual 3122.02C and Joint Publication 4-0, ``Joint Logistics,'' 
July 18, 2008. Service component commanders shall provide supporting 
CMPs as directed by the CCDR.
    (3) Continuation of Essential Contractor Services. To ensure that 
critical capabilities are maintained, it is necessary to assess the risk 
of premature loss of mission-essential contracted support. Supported and 
supporting commanders shall plan for the mitigation from the risk of 
premature loss of contingency contractor personnel who are performing 
essential contractor services. Planning for continuation of essential 
contractor services during applicable contingency operations includes:
    (i) Determining all services provided overseas by defense 
contractors that must continue during an applicable contingency 
operation. Contracts shall obligate defense contractors to ensure the 
continuity of essential contractor services during such operations.
    (ii) Developing mitigation plans for those tasks identified as 
essential contractor services to provide reasonable assurance of 
continuation during crisis conditions. These mitigation plans should be 
developed as part of the normal CSIP development process.
    (iii) Ensuring the Secretaries of the Military Departments and the 
geographic CCDRs plan for the mitigation from the risk of premature loss 
of contingency contractor personnel who are

[[Page 691]]

performing essential contractor services. When the cognizant DoD 
Component Commander or geographic CCDR has a reasonable doubt about the 
continuation of essential services by the incumbent contractor during 
applicable contingency operations, the commander shall prepare a 
mitigation plan for obtaining the essential services from alternative 
sources (military, DoD civilian, HN, or other contractor(s)). This 
planning requirement also applies when the commander has concerns that 
the contractor cannot or will no longer fulfill the terms of the 
contract:
    (A) Because the threat level, duration of hostilities, or other 
factors specified in the contract have changed significantly;
    (B) Because U.S., international, or local laws; HN support 
agreements; or SOFAs have changed in a manner that affect contract 
arrangements; or
    (C) Due to political or cultural reasons.
    (iv) Encouraging contingency contractor personnel performing 
essential contractor services overseas to remain in the respective 
operations area.
    (4) Requirements for Publication. CCDRs shall make OCS planning 
factors, management policies, and specific contract support requirements 
available to affected contingency contractor personnel. To implement the 
OCS-related requirements of DoD Directive 1100.4 (see http://
www.dtic.mil/ whs/directives/corres/ pdf/110004p.pdf), DoD Instruction 
1100.19 (see http://www.dtic.mil/whs/ directives/corres/ pdf/
110019p.pdf), DoD Directive 5205.02 (see http://www.dtic.mil/ whs/
directives/corres/ pdf/520502p.pdf), the mandated CCDR Web site at 
http://www.acq.osd.mil/ dpap/pacc/cc/areas_of_ responsibility.html shall 
include the information in paragraphs (b)(4)(i) through (b)(4)(ix) of 
this section (the data owner must review this information for security 
classification and OPSEC considerations prior to its posting).
    (i) Theater Business Clearance and Contract Administration 
Delegation requirements for external support and systems support 
contracts executing or delivering contracted support in the CCDR's AOR 
(implemented at the CCDR's discretion).
    (ii) Restrictions imposed by applicable international and local 
laws, SOFAs, and HN support agreements.
    (iii) CAAF-related deployment requirements and theater reception.
    (iv) Reporting requirements for accountability of contractor 
personnel and visibility of contracts.
    (v) OPSEC plans and restrictions.
    (vi) Force protection policies.
    (vii) Personnel recovery procedures.
    (viii) Availability of medical and other Government-furnished 
support.
    (ix) Redeployment procedures.
    (5) Implementing OCS Plan Decisions Into Contracts. (i) Specific 
contract-related considerations and requirements set forth in Annex Ws 
of CONPLANs with TPFDD and OPLANs shall be reflected and addressed in 
CCDR policies (e.g., Theater Business Clearance/Contract Administration 
Delegation) and orders that apply to contractors and their personnel, 
maintained on CCDR OCS Web pages and integrated into contracts 
performing or delivering in a CCDR area of responsibility. When such 
CCDR policies potentially affect contracts other than those originated 
in the CCDR AOR, the CCDR should consult the contingency contracting 
section of the Office of the Director, DPAP, for advice on how best to 
implement these policies. All contracted services in support of 
contingency operations shall be included and accounted for in accordance 
with 10 U.S.C. 235 and 2330a. This accounting shall be completed by the 
operational CCDR requiring the service.
    (ii) When making logistics sustainability recommendations, the DoD 
Components and acquisition managers shall consider the requirements of 
DoD Instruction 5000.02 (see http://www.dtic.mil/whs/ directives/corres/
pdf/ 500002p.pdf) and paragraph (a)(5) of this section. Early in the 
contingency or crisis action planning process, they shall coordinate 
with the affected supported and supporting commands any anticipated 
requirements for contractor logistics support arrangements that may 
affect existing CONPLANs, OPLANs, and OPORDs. As part of the supporting 
plans, supporting organizations (Service components, defense

[[Page 692]]

agencies, others) must provide adequate data (e.g., estimates of the 
numbers of contractors and contracts and the types of supplies or 
services that will be required to support their responsibilities within 
the OPLAN) to the supported command planners to ensure the supported 
commander has full knowledge of the magnitude of contracted support 
required for the applicable contingency operation.
    (6) TPFDD Development. Deployment data for CAAF and their equipment 
supporting the Military Services must be incorporated into TPFDD 
development and deployment execution processes in accordance with 
Chairman of the Joint Chiefs of Staff Manual 3122.02C (see https://
ca.dtic.mil/ cjcs_directives/cjcs/ manuals.htm). The requirement to 
provide deployment data shall be incorporated into known system support 
and external support contracts and shall apply regardless of whether 
defense contractors will provide or arrange their own transportation.
    (c) Deployment and Theater Admission Requirements and Procedures. 
The considerations in this section are applicable during CAAF deployment 
processing.
    (1) General. (i) The CCDR or subordinate JFC shall provide specific 
deployment and theater admission requirements to the DoD Components for 
each applicable contingency operation. These requirements must be 
delineated in supporting contracts as explained in 48 CFR PGI 225.74. At 
a minimum, contracting officers shall ensure that contracts address 
operational area-specific contract requirements and the means by which 
the Government will inform contractors of the requirements and 
procedures applicable to a deployment.
    (ii) A formally designated group, joint, or Military Department 
deployment center (e.g., replacement center, Federal deployment center, 
unit deployment site) shall be used to conduct deployment and 
redeployment processing for CAAF, unless contractor-performed theater 
admission preparation is authorized according to paragraph (c)(5), or 
waived pursuant to paragraph (c)(15), of this section. However, a 
Government-authorized process that incorporates all the functions of a 
deployment center may be used if designated in the contract.
    (2) Country Entry Requirements. Special area, country, and theater 
personnel clearance documents must be current in accordance with the DoD 
Foreign Clearance Guide (available at https://www.fcg.pentagon.mil/) and 
coordinated with affected agencies (e.g., Intelligence Community 
agencies) to ensure that entry requirements do not impact accomplishment 
of mission requirements. CAAF employed in support of a DoD mission are 
considered DoD-sponsored personnel for DoD Foreign Clearance Guide 
purposes. Contracting officers shall ensure contracts include a 
requirement that CAAF must meet theater personnel clearance requirements 
and must obtain personnel clearances prior to entering applicable 
contingency operations. Contracts shall require CAAF to obtain proper 
identification credentials (e.g., passport, visa) as required by the 
terms and conditions of the contract.
    (3) Accountability and Visibility of Contingency Contracts and 
Contractor Personnel.
    (i) DoD contracts and contractors supporting an applicable 
contingency operation shall be accountable and visible in accordance 
with this part, 48 CFR PGI 225.74, and section 862 of Public Law 110-181 
(``National Defense Authorization Act for Fiscal Year 2008,'' January 
28, 2008). Additionally, contract linguist utilization will be tracked 
using the Contract Linguist Enterprise-wide Database in accordance with 
DoD Directive 5160.41E. OCS requirements and contractor accountability 
and visibility must be preplanned and integrated into plans and OPORDs 
in accordance with Joint Publication 4-10 and Chairman of the Joint 
Chiefs of Staff Manual 3122.02C and U.S. citizen, U.S. legal alien 
contractor, LN, and TCN information provided in accordance with CJCS 
Manual 3150.13C (see http://www.dtic.mil/ cjcs_directives/cdata/ 
unlimit/m315013.pdf).
    (ii) As stated in the Deputy Under Secretary of Defense (Logistics 
and Materiel Readiness) and Deputy Under Secretary of Defense (Program 
Integration) Memorandum, ``Designation of

[[Page 693]]

Synchronized Predeployment and Operational Tracker (SPOT) as Central 
Repository for Information on Contractors Deploying with the Force,'' 
January 25, 2007 (see http://www2.centcom.mil/ sites/ contracts/
Synchronized%20 Predeployment %20and%20 Operational%20Tracker/ 01-
SPOT%20DFARS% 20Deviation% 202007-00004, %2019%20MAR%2007.pdf), SPOT was 
designated as the joint web-based database to assist the CCDRs in 
maintaining awareness of the nature, extent, and potential risks and 
capabilities associated with OCS for contingency operations, 
humanitarian assistance and peacekeeping operations, or military 
exercises designated by the CCDR. To facilitate integration of 
contingency contractors and other personnel as directed by the USD(AT&L) 
or the CCDR, and to ensure accountability, visibility, force protection, 
medical support, personnel recovery, and other related support can be 
accurately forecasted and provided, these procedures shall apply for 
establishing, maintaining, and validating the database:
    (A) SPOT or its successor shall:
    (1) Serve as the central repository for up-to-date status and 
reporting on contingency contractor personnel as directed by the 
USD(AT&L), 48 CFR 252.225-7040 and 48 CFR PGI 225.74, or the CCDR, as 
well as other Government agency contractor personnel as applicable.
    (2) Track contract information for all DoD contracts supporting 
applicable contingency operations, as directed by the USD(AT&L), 48 CFR 
PGI 225.74 and Chairman of the Joint Chiefs of Staff Manual 3150.13C, or 
the CCDR. SPOT data elements are intended to provide planners and CCDRs 
an awareness of the nature, extent, and potential risks and capabilities 
associated with contracted support.
    (3) Provide personnel accountability via unique identifier (e.g., 
Electronic Data Interchange Personnel Identifier (EDI-PI)) of DoD 
contingency contractor personnel and other personnel as directed by the 
USD(AT&L), 48 CFR PGI 225.74, Chairman of the Joint Chiefs of Staff 
Manual 3150.13C, or the CCDR.
    (4) Contain, or link to, minimum contract information (e.g., 
contract number, contract category, period of performance, contracting 
agency and contracting office) necessary to establish and maintain 
accountability and visibility of the personnel in paragraph 
(c)(3)(ii)(A)1. of this section, to maintain information on specific 
equipment related to private security contracts, and the contract 
capabilities in contingency operations, humanitarian assistance, and 
peacekeeping operations, or military exercises designated by the CCDR.
    (5) Comply with the personnel identity protection program 
requirements of DoD Directive 5205.02, DoD 5400.11-R (see http://
www.dtic.mil/whs/ directives/corres/pdf/ 540011r.pdf), and DoD 6025.18-R 
(see http://www.dtic.mil/whs/ directives/corres/pdf/ 602518r.pdf); be 
consistent with the DoD Global Information Grid enterprise architecture 
in DoD Directive 8000.01 (see http://www.dtic.mil/whs/ directives/
corres/pdf/ 800001p.pdf); and be compliant with DoD Directive 8320.02 
(see http://www.dtic.mil/whs/ directives/corres/pdf/ 832002p.pdf), DoD 
Directive 4630.05 (see http://www.dtic.mil/whs/ directives/corres/pdf/ 
463005p.pdf), and DoD Directive 8500.01E (see http://www.dtic.mil/ whs/
directives/corres/ pdf/850001p.pdf).
    (B) All required data must be entered into SPOT or its successor 
before a contractor employee is permitted to deploy to or enter a 
military theater of operations. Contracting officers, through the terms 
of the contracts, shall require contractors to enter data before an 
employee's deployment and to maintain and update the information for all 
CAAF, as well as non-CAAF as directed by the USD(AT&L), 48 CFR PGI 
225.74, or the CCDR. The contract shall require the contractor to use 
SPOT or its successor, to enter and maintain data on its employees.
    (C) A summary of all DoD contract services or capabilities for all 
contracts that are awarded to support contingency, humanitarian 
assistance, and peacekeeping operations, to include theater, external, 
and systems support contracts, shall be entered into SPOT or its 
successor in accordance with 48 CFR 252.225-7040 and 48 CFR PGI 225.74.

[[Page 694]]

    (D) In accordance with applicable acquisition policy and 
regulations, all defense contractors awarded contracts that support 
applicable contingency operations shall be required, under the terms and 
conditions of each affected contract, to input employee data and 
maintain by-name accountability of designated contractor personnel in 
SPOT or its successor as required by 48 CFR 252.225-7040 and 48 CFR PGI 
225.74. Contractors shall be required under the terms and conditions of 
their contracts to maintain policies and procedures for knowing the 
general location of their employees and to follow the procedures 
provided to them to submit up-to-date, real-time information reflecting 
all personnel deployed or to be deployed in support of contingency, 
humanitarian assistance, and peacekeeping operations. Prime contractors 
shall be required under the terms and conditions of their contract to 
follow the procedure provided to them to submit into SPOT or its 
successor, up-to-date, real-time information regarding their 
subcontractors at all tiers.
    (E) In all cases, classified information responsive to the 
requirements of this part shall be reported and maintained on systems 
approved for the level of classification of the information provided.
    (4) LOA. A SPOT-generated LOA shall be issued by the contracting 
officer or designee to all CAAF as required by the clause in 48 CFR 
subpart 252.225-7040 and selected non-CAAF (e.g., LN private security 
contractors) as required under 48 CFR PGI 225.74 or otherwise designated 
by the CCDR. The contract shall require that all contingency contractor 
personnel who are issued an LOA will carry the LOA with them at all 
times. For systems authorized in accordance with paragraph (c)(3)(ii)(B) 
of this section, DoD Components shall coordinate with the SPOT program 
manager to obtain an LOA handled within appropriate security guidelines.
    (5) Deployment Center Procedures.
    (i) Affected contracts shall require that all CAAF process through a 
designated deployment center or a Government-authorized, contractor-
performed deployment processing facility prior to deploying to an 
applicable contingency operation. Upon receiving the contracted 
company's certification that employees meet deployability requirements, 
the contracting officer or his/her representative will digitally sign 
the LOA. The LOA will be presented to officials at the deployment 
center. The deployment process shall be for, but not limited to:
    (A) Verifying accountability information in SPOT or its successor.
    (B) Issuing applicable Government-furnished equipment.
    (C) Verifying medical and dental screening, including required 
military-specific vaccinations and immunizations (e.g., anthrax, 
smallpox).
    (D) Verifying and, when necessary, providing required training 
(e.g., Geneva Conventions; law of armed conflict; general orders; 
standards of conduct; force protection; personnel recovery; first aid; 
operations security; anti-terrorism; counterintelligence reporting; the 
use of chemical, biological, radiological, nuclear (CBRN) protective 
ensemble), country and cultural awareness briefings, and other training 
and briefings as appropriate.
    (ii) Affected contingency contracts shall require that, prior to 
deployment, contractors certify to the Government authorizing 
representative named in the contract that all required deployment 
processing actions have been completed for each individual.
    (6) CAAF Identification, Training, and Security Clearance 
Requirements. Contracts shall require eligible CAAF to be issued an 
identification card with the Geneva Conventions Accompanying the Force 
designation in accordance with DoD Instruction 1000.13 (see http://
www.dtic.mil/whs/ directives/corres/pdf/100013p.pdf) and DTM 08-003 (see 
http://www.dtic.mil/ whs/directives/corres/ pdf/DTM-08-003.pdf). CAAF 
shall be required to present their SPOT generated LOA as proof of 
eligibility at the time of ID card issuance. All CAAF shall receive 
training regarding their status under the law of war and the Geneva 
Convention. In addition and to the extent necessary, the contract shall 
require the defense contractor to provide personnel who have the 
appropriate security clearance or are able to satisfy

[[Page 695]]

the appropriate background investigation to obtain access required for 
the applicable contingency operation.
    (7) Government Support. Generally, contingency contracts shall 
require that contractors provide all life, mission, and administrative 
support to their employees necessary to perform the contract in 
accordance with DoD Instruction 4161.02 (see http://www.dtic.mil/ whs/
directives/corres/ pdf/416102p.pdf) and CCDR guidance as posted on the 
CCDR OCS Web site. As part of preparing an acquisition requirement, the 
requiring activity will include an estimate of the Government support 
that is required to be provided to CAAF and selected non-CAAF in 
accordance with 48 CFR 4.1301, 4.1303, 52.204-9, 7.5, 7.503(e), 2.101, 
and 3.502 and 48 CFR PGI 225.74. The requiring activity will confirm 
with theater adjudication authorities that the Government has the 
capacity, capability, and willingness to provide the support. However, 
in many contingency operations, especially those in which conditions are 
austere, uncertain, and/or non-permissive, the contracting officer may 
decide it is in the interest of the Government to allow for selected 
life, mission, medical, and administrative support to some contingency 
contractor personnel. Prior to awarding the contract, the contracting 
officer will request the requiring activity to verify that proper 
arrangements for Government support at the deployment center and within 
the designated operational area have been made. The contract shall 
specify the level of Government-furnished support to be provided to CAAF 
and selected non-CAAF and what support is reimbursable to the 
Government. The requiring activity will ensure that approved GFS is 
available.
    (8) Medical Preparation. (i) In accordance with Sec.  158.7 of this 
part, contracts shall require that contractors provide medically and 
physically qualified contingency contractor personnel to perform duties 
in applicable contingency operations as outlined in the contract. Any 
CAAF deemed unsuitable to deploy during the deployment process due to 
medical or dental reasons will not be authorized to deploy. The 
Secretary of Defense may direct immunizations as mandatory for CAAF 
performing DoD-essential contractor services in accordance with Joint 
Publication 4-0, ``Joint Logistics'', and Chairman of the Joint Chiefs 
of Staff Manual 3150.13C. For CAAF who are U.S. citizens, contracts 
shall require contractors to make available the medical and dental 
records (including current panographic x-ray) of the deploying employees 
who grant release authorization for this purpose, according to contract 
terms based on this section, DoD Directive 6485.02E (see http://
www.dtic.mil/ whs/directives/corres/ pdf/648502p.pdf), applicable joint 
force command surgeon guidance, and relevant Military Department policy.
    (ii) Government personnel cannot force a contractor employee to 
receive an immunization or disclose private medical records against his 
or her will; therefore, particularly for medical requirements that arise 
after contract award, the contracting officer will allow contractors 
time to notify and/or hire employees who are willing to meet Government 
medical requirements and disclose their private information.
    (iii) Medical threat pre-deployment briefings will be provided to 
all CAAF to communicate health risks and countermeasures in the 
designated operational area in accordance with DoD Instruction 6490.03 
(see http://www.dtic.mil/ whs/directives/corres/ pdf/649003p.pdf). 
Health readiness, force health protection capability, either as a 
responsibility of the contractor or the DoD Components, will be fully 
delineated in plans, orders, and contracts to ensure appropriate medical 
staffing in the operational area. Health surveillance activities shall 
also include plans for contingency contractor personnel who are 
providing essential contractor services (as detailed in DoD Directive 
6490.02E (see http://www.dtic.mil/ whs/directives/corres/ pdf/
649002Ep.pdf)). Deoxyribonucleic acid (DNA) collection and other medical 
requirements are further addressed in Sec.  158.7 of this part.
    (9) Individual Protective Equipment (IPE). When necessary and 
directed by CCDR, the contracting officer will include language in the 
contract authorizing CAAF and selected non-CAAF, as designated by the 
CCDR, to be issued

[[Page 696]]

military IPE (e.g., CBRN protective ensemble, body armor, ballistic 
helmet) in accordance with DoD Directive 1100.4. This equipment shall 
typically be issued at the deployment center, before deployment to the 
designated operational area, and must be accounted for and returned to 
the Government or otherwise accounted for in accordance with appropriate 
DoD Component standing regulations (including DoD Instruction 4161.2 
(see http://www.dtic.mil/whs/ directives/corres/pdf/ 416102p.pdf), 
directives, instructions, and supplementing publications). It is 
important to plan and resource IPE as required by the geographic CCDR or 
subordinate JFC, and the terms of the contract. Training on the proper 
care, fitting, and maintenance of issued protective equipment will be 
provided as part of contractor deployment training. This training will 
include practical exercises within the context of the various mission-
oriented protective posture levels. When a contractor is required under 
the terms and conditions of the contract to provide IPE, such IPE shall 
meet minimum standards as defined by the contract.
    (10) Clothing. Defense contractors or their personnel are 
responsible for providing their own personal clothing, including casual 
and working clothing required by the assignment. Generally, commanders 
shall not issue military clothing to contractor personnel or allow the 
wearing of military or military look-alike uniforms. However, a CCDR or 
subordinate JFC deployed forward may authorize contractor personnel to 
wear standard uniform items for operational reasons. Contracts shall 
require that this authorization be in writing and maintained in the 
possession of authorized contractor personnel at all times. When 
commanders issue any type of standard uniform item to contractor 
personnel, care must be taken to ensure, consistent with force 
protection measures, that contractor personnel are distinguishable from 
military personnel through the use of distinctive patches, arm bands, 
nametags, or headgear.
    (11) Weapons. Contractor personnel shall not be authorized to 
possess or carry firearms or ammunition during applicable contingency 
operations except as provided in paragraphs (d)(5) and (d)(6) of this 
section and in 32 CFR part 159. The contract shall provide the terms and 
conditions governing the possession of firearms.
    (12) Training. Joint training policy and guidance for the Military 
Services, including DoD contractors, is provided in CJCS Instruction 
3500.01F (see http://www.dtic.mil/doctrine/ training/cjcsi3500_ 
01f.pdf). Standing training requirements shall be placed on the CCDR OCS 
Web sites for reference by contractors. Training requirements that are 
specific to the operation shall be placed on the CCDR Web sites 
immediately after a declared contingency so contracting officers can 
incorporate them into the appropriate contracts as soon as possible. 
Training requirements must be contained or incorporated by reference in 
contracts employing contractor personnel in support of an applicable 
contingency operation. Training requirements include specific training 
requirements established by the CCDR and training required in accordance 
with this part, 32 CFR part 159, DoD Directive 2000.12 (see http://
www.dtic.mil/whs/ directives/corres/ pdf/200012p.pdf), and DoD 
Instruction 2000.16 (see http://www.dtic.mil/whs/ directives/corres/pdf/ 
200016p.pdf and DoD Instruction 1300.23 (see http://www.dtic.mil/whs/ 
directives/corres/pdf/ 130023p.pdf).
    (13) Legal Assistance. Individual contractor personnel are 
responsible to have their personal legal affairs in order (including 
preparing and completing powers of attorney, wills, trusts, estate 
plans, etc.) before reporting to deployment centers. Contractor 
personnel are not entitled to military legal assistance either in-
theater or at the deployment center.
    (14) Contractor Integration. It is critical that CAAF brought into 
an operational area are properly integrated into the military operation 
through a formal reception process. This shall include, at a minimum, 
ensuring as they move into and out of the operational area, and 
commensurate with local threat levels, that they:
    (i) Have met theater entry requirements and are authorized to enter 
the theater.
    (ii) Are accounted for.

[[Page 697]]

    (iii) Possess any required IPE, including CBRN protective ensemble.
    (iv) Have been authorized any required Government-furnished support 
and force protection.
    (15) Waivers. For contract support in the operational area that is 
required for less than 30 consecutive days, the CCDR or designee may 
waive a portion of the formal procedural requirements in paragraph 
(c)(5) of this section, which may include waiving the requirement for 
processing through a deployment center. However, the requirements to 
possess proper identification cards and to establish and maintain 
accountability and visibility for all defense contractors in accordance 
with applicable policy shall not be waived, nor shall any medical 
requirement be waived without the prior approval of qualified medical 
personnel. If contingency contractor personnel are authorized to be 
armed, the requirements of paragraphs (d)(5) and (d)(6) of this section 
cannot be waived.
    (d) Contractor In-Theater Management Requirements. The DoD 
Components shall adhere to the in-theater management policies of this 
section in managing contingency contractor personnel in support of 
applicable contingency operations.
    (1) Reception. All CAAF shall be processed into the operational area 
through a designated reception site. The site shall verify, based upon a 
visual inspection of the LOA, that contractor personnel are entered into 
SPOT or its successor, and verify that personnel meet theater-specific 
entry requirements. Contractor personnel already in the designated 
operational area when a contingency is declared must report to the 
appropriate designated reception site as soon as it is operational. If 
any CAAF does not have the proper documentation, the person will be 
refused entry into the theater, and the contracting officer will notify 
the contractor to take action to resolve the reason for the lack of 
proper documentation for performing in that area. Should the contractor 
fail to take that action, the person shall be sent back to his or her 
departure point, or directed to the Service component command or Defense 
Agency responsible for that specific contract for theater entrance 
processing.
    (2) Contractor Use Restrictions. CCDRs, through their respective 
contracting officers or their representatives, may place specific 
restrictions on locations or timing of contracted support based on the 
prevailing operational situation, in coordination with subordinate 
commanders and the applicable Defense Agencies.
    (3) Contractor Security Screening. Contractor screening requirements 
for CAAF and non-CAAF who require access to U.S. facilities will be 
integrated into OPSEC programs and plans.
    (4) Contractor Conduct and Discipline. Terms and conditions of 
contracts shall require that CAAF comply with theater orders, applicable 
directives, laws, and regulations, and that employee discipline is 
maintained. Non-CAAF who require base access will be directed to follow 
base force protection and security-related procedures as applicable.
    (i) Contracting officers are the legal link between the requiring 
activity and the contractor. The contracting officer may appoint a 
designee (usually a COR) as a liaison between the contracting officer 
and the contractor and requiring activity. This designee monitors and 
reports contractor performance and requiring activity concerns to the 
contracting officer. The requiring activity has no direct contractual 
relationship with or authority over the contractor. However, the ranking 
military commander may, in emergency situations (e.g., enemy or 
terrorist actions or natural disaster), urgently recommend or issue 
warnings or messages urging that CAAF and non-CAAF personnel take 
emergency actions to remove themselves from harm's way or take other 
appropriate self-protective measures.
    (ii) The contractor is responsible for disciplining contingency 
contractor personnel. However, in accordance with paragraph (h)(1) of 48 
CFR 252.225-7040, the contracting officer may direct the contractor, at 
its own expense, to remove and replace any contingency contractor 
personnel who jeopardize or

[[Page 698]]

interfere with mission accomplishment, or whose actual field performance 
(certification/professional standard) is well below that stipulated in 
the contract, or who fail to comply with or violate applicable 
requirements of the contract. Such action may be taken at Government 
discretion without prejudice to its rights under any other provision of 
the contract, including the Termination for Default. A commander also 
has the authority to take certain actions affecting contingency 
contractor personnel, such as the ability to revoke or suspend security 
access or impose restrictions from access to military installations or 
specific worksites.
    (iii) CAAF, with some restrictions (e.g., LN CAAF are not subject to 
MEJA), are subject to prosecution under MEJA and UCMJ in accordance with 
18 U.S.C. 7(9), 2441, and 3261 and Secretary of Defense Memorandum, 
``UCMJ Jurisdiction Over DoD Civilian Employees, DoD Contractor 
Personnel, and Other Persons Serving With or Accompanying the Armed 
Forces Overseas During Declared War and in Contingency Operations,'' 
March 10, 2008. Commanders possess significant authority to act whenever 
criminal activity is committed by anyone subject to MEJA and UCMJ that 
relates to or affects the commander's responsibilities. This includes 
situations in which the alleged offender's precise identity or actual 
affiliation is to that point undetermined. Secretary of Defense 
Memorandum, ``UCMJ Jurisdiction Over DoD Civilian Employees, DoD 
Contractor Personnel, and Other Persons Serving With or Accompanying the 
Armed Forces Overseas During Declared War and in Contingency 
Operations,'' March 10, 2008, sets forth the scope of this command 
authority in detail. Contracting officers will ensure that contractors 
are made aware of their status and liabilities as CAAF and the required 
training requirements associated with this status. Subject to local or 
HN law, SOFA, and the jurisdiction of the Department of State (e.g., 
consulate or chief of mission) over civilians in another country, 
commanders retain authority to respond to an incident, restore safety 
and order, investigate, apprehend suspected offenders, and otherwise 
address the immediate needs of the situation.
    (iv) The Department of Justice may prosecute misconduct under 
applicable Federal laws, including MEJA and 18 U.S.C. 2441. Contingency 
contractor personnel are also subject to the domestic criminal laws of 
the local nation absent a SOFA or international agreement to the 
contrary. When confronted with disciplinary problems involving 
contingency contractor personnel, commanders shall seek the assistance 
of their legal staff, the contracting officer responsible for the 
contract, and the contractor's management team.
    (v) In the event of an investigation of reported offenses alleged to 
have been committed by or against contractor personnel, appropriate 
investigative authorities shall keep the contracting officer informed, 
to the extent possible without compromising the investigation, if the 
alleged offense has a potential contract performance implication.
    (5) Force Protection and Weapons Issuance. CCDRs shall develop 
security plans for protection of CAAF and selected non-CAAF (e.g., those 
working on a military facility or as otherwise determined by the 
operational commander) in locations where the civil authority is either 
insufficient or illegitimate, and the commander determines it is in the 
interests of the Government to provide security because the contractor 
cannot obtain effective private security services; such services are 
unavailable at a reasonable cost; or threat conditions necessitate 
security through military means.
    (i) In appropriate cases, the CCDR may provide security through 
military means commensurate with the level of security provided DoD 
civilians. Specific security measures shall be mission and situation 
dependent as determined by the CCDR and provided to the contracting 
officer. The contracting officer shall include in the contract the level 
of protection to be provided to contingency contractor personnel as 
determined by the CCDR or subordinate JFC. Specific procedures for 
determining requirements for and integrating contractors into the JOA 
force protection structure will be placed on the geographic CCDR Web 
sites.

[[Page 699]]

    (ii) Contracts shall require all contingency contractor personnel to 
comply with applicable CCDR and local commander force protection 
policies. Contingency contractor personnel working within a U.S. 
Military facility or in close proximity of U.S. Military forces may 
receive incidentally the benefits of measures undertaken to protect U.S. 
forces in accordance with DoD Directive 2000.12 (see http://
www.dtic.mil/whs/ directives/corres/pdf/ 200012p.pdf). However, it may 
be necessary for contingency contractor personnel to be armed for 
individual self-defense. Procedures for arming for individual self-
defense are:
    (A) According to applicable U.S., HN, or international law; relevant 
SOFAs; international agreements; or other arrangements with local 
authorities and on a case-by-case basis when military force protection 
and legitimate civil authority are deemed unavailable or insufficient, 
the CCDR (or a designee no lower than the general/flag officer level) 
may authorize contingency contractor personnel to be armed for 
individual self-defense.
    (B) The appropriate SJA to the CCDR shall review all applications 
for arming contingency contractor personnel on a case-by-case basis to 
ensure there is a legal basis for approval. In reviewing applications, 
CCDRs shall apply the criteria mandated for arming contingency 
contractor personnel for private security services provided in paragraph 
(d)(6) of this section and 32 CFR part 159. In such cases, the 
contractor will validate to the contracting officer, or designee, that 
weapons familiarization, qualification, and briefings regarding the 
rules for the use of force have been provided to contingency contractor 
personnel in accordance with CCDR policies. Acceptance of weapons by 
contractor personnel shall be voluntary and permitted by the defense 
contractor and the contract. In accordance with paragraph (j) of 48 CFR 
252.225-7040, the contract shall require that the defense contractor 
ensure such personnel are not prohibited by U.S. law from possessing 
firearms.
    (C) When armed for personal protection, contingency contractor 
personnel are only authorized to use force for individual self-defense. 
Unless immune from local laws or HN jurisdiction by virtue of an 
international agreement or international law, the contract shall include 
language advising contingency contractor personnel that the 
inappropriate use of force could subject them to U.S. and local or HN 
prosecution and civil liability.
    (6) Use of Contractor Personnel for Private Security Services. If, 
consistent with applicable U.S., local, and international laws; relevant 
HN agreements, or other international agreements and this part, a 
defense contractor may be authorized to provide private security 
services for other than uniquely military functions as identified in DoD 
Instruction 1100.22. Specific procedures relating to contingency 
contractor personnel providing private security services are provided in 
32 CFR part 159.
    (7) Personnel Recovery, Missing Persons, and Casualty Reporting. (i) 
DoD Directive 3002.01E (see http://www.dtic.mil/whs/ directives/corres/
pdf/ 300201p.pdf) outlines the DoD personnel recovery program and Joint 
Publication 3-50 (see http://www.dtic.mil/dpmo/ laws_directives/
documents/ joint_pu_3_50.pdf) details its doctrine. The DoD personnel 
recovery program covers all CAAF employees regardless of their 
citizenship. If a CAAF becomes isolated or unaccounted for, the 
contractor must expeditiously file a search and rescue incident report 
(SARIR) (available at http://www.armystudyguide.com/ content/the_tank/ 
army_report_and_message _formats/ search-and-rescue-inciden.shtml) to 
the theater's personnel recovery architecture, i.e., the component 
personnel recovery coordination cell or the Combatant Command joint 
personnel recovery center.
    (ii) Upon recovery following an isolating event, a CAAF returnee 
shall enter the first of three phases of reintegration in DoD 
Instruction 2310.4 (see http://www.dtic.mil/ whs/directives/corres/ pdf/
231004p.pdf). The additional phases of reintegration in DoD Instruction 
2310.4 shall be offered to the returnee to ensure his or her physical 
and psychological well being while adjusting to the post-captivity 
environment.
    (iii) Accounting for missing persons, including contractors, is 
addressed in

[[Page 700]]

DoD Directive 2310.07E (see http://www.dtic.mil/ whs/directives/corres/ 
pdf/231007p.pdf). Evacuation of dependents of contractor personnel is 
addressed in DoD Directive 3025.14 (see http://www.dtic.mil/ whs/
directives/corres/ pdf/302514p.pdf). All CAAF and non-CAAF casualties 
shall be reported in accordance with Joint Publication 1-0, ``Personnel 
Support to Joint Operations,'' October 16, 2006 (see http://
www.dtic.mil/doctrine/ new_pubs/jp1_0.pdf) and ASD(L&MR) Publication, 
``Business Rules for the Synchronized Predeployment and Operational 
Tracker (SPOT),'' current edition. (See http://www.acq.osd.mil/ log/PS/
spot.html)
    (8) Mortuary Affairs. (i) CAAF who die while in support of U.S. 
forces shall be covered by the DoD mortuary affairs program as described 
in DoD Directive 1300.22 (see http://www.dtic.mil/whs/ directives/
corres/pdf/ 130022p.pdf). Every effort shall be made to identify remains 
and account for un-recovered remains of contractors and their dependents 
who die in military operations, training accidents, and other multiple 
fatality incidents. The remains of CAAF who are fatalities resulting 
from an incident in support of military operations deserve and shall 
receive the same dignity and respect afforded military remains.
    (ii) The DoD may provide mortuary support for the disposition of 
remains and personal effects at the request of the Department of State. 
The USD(P&R) shall coordinate this support with the Department of State 
to include cost reimbursement, where appropriate. The disposition of 
non-CAAF contractors (LNs and TCNs) shall be given the same dignity and 
respect afforded U.S. personnel. The responsibility for coordinating the 
transfer of these remains to the HN or affected nation resides with the 
geographic CCDR in coordination and conjunction with the Department of 
State through the embassies or the International Red Cross, as 
appropriate, and in accordance with applicable contract provisions.
    (9) Medical Support and Evacuation. Theater-specific contract 
language to clarify available healthcare can be found on the CCDR Web 
sites. During applicable contingency operations in austere, uncertain, 
and/or hostile environments, CAAF may encounter situations in which they 
are unable to access medical support on the local economy. Generally, 
the DoD will only provide resuscitative care, stabilization, 
hospitalization at Level III medical treatment facilities (MTFs), and 
assistance with patient movement in emergencies where loss of life, 
limb, or eyesight could occur. Hospitalization will be limited to 
stabilization and short-term medical treatment with an emphasis on 
return to duty or placement in the patient movement system in accordance 
with DoD Instruction 6000.11 (see http://www.dtic.mil/whs/ directives/
corres/pdf/ 600011p.pdf). All costs associated with the treatment and 
transportation of CAAF to the selected civilian facility are 
reimbursable to the Government and shall be the responsibility of 
contractor personnel, their employers, or their health insurance 
providers. Nothing in this paragraph is intended to affect the 
allowability of costs incurred under a contingency contract. Medical 
support and evacuation procedures are:
    (i) Emergency Medical and Dental Care. All CAAF will normally be 
afforded emergency medical and dental care if injured while supporting 
contingency operations. Additionally, non-CAAF employees who are injured 
while in the vicinity of U.S. forces will also normally receive 
emergency medical and dental care. Emergency medical and dental care 
includes medical care situations in which life, limb, or eyesight is 
jeopardized. Examples of emergency medical and dental care include 
examination and initial treatment of victims of sexual assault; refills 
of prescriptions for life-dependent drugs; repair of broken bones, 
lacerations, infections; and traumatic injuries to the dentition.
    (ii) Primary Care. Primary medical or dental care normally will not 
be authorized or be provided to CAAF by MTFs. When required and 
authorized by the CCDR or subordinate JFC, this support must be 
specifically authorized under the terms and conditions of the contract 
and detailed in the corresponding LOA. Primary care is not authorized 
for non-CAAF employees.

[[Page 701]]

Primary care includes routine inpatient and outpatient services, non-
emergency evacuation, pharmaceutical support, dental services, and other 
medical support as determined by appropriate military authorities based 
on recommendations from the joint force command surgeon and on the 
existing capabilities of the forward-deployed MTFs.
    (iii) Long-Term Care. The DoD shall not provide long-term care to 
contractor personnel.
    (iv) Quarantine or Restriction of Movement. The CCDR or subordinate 
commander has the authority to quarantine or restrict movement of 
contractor personnel according to DoD Instruction 6200.03 (see http://
www.dtic.mil/whs/ directives/corres/pdf/ 620003p.pdf).
    (v) Evacuation. Patient movement of CAAF shall be performed in 
accordance with DoD Instruction 6000.11 (see http://www.dtic.mil/whs/ 
directives/corres/pdf/ 600011p.pdf). When CAAF are evacuated for medical 
reasons from the designated operational area to MTFs funded by the 
Defense Health Program, normal reimbursement policies will apply for 
services rendered by the facility. Should CAAF require medical 
evacuation outside the continental United States (OCONUS), the sending 
MTF shall assist CAAF in making arrangements for transfer to a civilian 
facility of their choice. When U.S. forces provide emergency medical 
care to non-CAAF, these patients will be evacuated or transported via 
national means (when possible) to their local medical systems.
    (10) Other Government-Furnished Support. In accordance with DoD 
Component policy and consistent with applicable laws and international 
agreements, Government-furnished support may be authorized or required 
when CAAF and selected non-CAAF are deployed with or otherwise provide 
support in the theater of operations to U.S. Military forces deployed 
OCONUS. Types of support are listed in 48 CFR PGI 225.74 and may include 
transportation to and within the operational area, mess operations, 
quarters, phone service, religious support, and laundry.
    (i) In operations where no reliable or local mail service is 
available, CAAF who are U.S. citizens will be authorized postal support 
in accordance with DoD 4525.6-M (see http://www.dtic.mil/whs/ 
directives/corres/pdf/ 452506m.pdf). CAAF who are not U.S. citizens will 
be afforded occasional mail service necessary to mail their pay checks 
back to their homes of record.
    (ii) Morale, welfare, and recreation (MWR) and exchange services 
will be authorized for CAAF who are U.S. citizens in accordance with 10 
U.S.C. 133. CAAF who are not U.S. citizens and non-CAAF are not 
authorized MWR and exchange services.
    (e) Redeployment Procedures. The considerations in this section are 
applicable during the redeployment of CAAF.
    (1) Transportation Out of Theater. When the terms and conditions of 
the contract state that the Government shall provide transportation out 
of theater:
    (i) Upon completion of the deployment or other authorized release, 
the Government shall, in accordance with each individual's LOA, provide 
contractor employees transportation from the theater of operations to 
the location from which they deployed, unless otherwise directed.
    (ii) Prior to redeployment from the AOR, the contractor employee, 
through their defense contractor, shall coordinate contractor exit times 
and transportation with CONUS Replacement Center (CRC) or designated 
reception site. Additionally, intelligence out-briefs must be completed 
and customs and immigration briefings and inspections must be conducted. 
CAAF are subject to customs and immigration processing procedures at all 
designated stops and their final destination during their redeployment. 
CAAF returning to the United States are subject to U.S. reentry customs 
requirements in effect at the time of reentry.
    (2) Post-Deployment Health Assessment. In accordance with DoD 
Instruction 6490.03, contracts shall require that CAAF complete a post-
deployment health assessment in the Defense Medical Surveillance System 
(DMSS) at the termination of the deployment (within 30 days of 
redeployment). These assessments will only be used by the

[[Page 702]]

DoD to accomplish population-wide assessments for epidemiological 
purposes, and to help identify trends related to health outcomes and 
possible exposures. They will not be used for individual purposes in 
diagnosing conditions or informing individuals they require a medical 
followup. Diagnosing conditions requiring medical referral is a function 
of the contractor.
    (3) Redeployment Center Procedures. In most instances, the 
deployment center/site that prepared the CAAF for deployment will serve 
as the return processing center. As part of CAAF redeployment 
processing, the deployment center/site personnel will screen contractor 
records, recover Government-issued identification cards and equipment, 
and conduct debriefings as appropriate. The amount of time spent at the 
return processing center will be the minimum required to complete the 
necessary administrative procedures.
    (i) A special effort will be made to collect all CACs from returning 
deployed contractors.
    (ii) Contractor employees are required to return any issued clothing 
and equipment. Lost, damaged, or destroyed clothing and equipment shall 
be reported in accordance with procedures of the issuing facility. 
Contractor employees shall also receive a post-deployment medical 
briefing on signs and symptoms of diseases to watch for, such as 
tuberculosis. As some countries hosting an intermediate staging base may 
not permit certain items to enter their borders, some clothing and 
equipment, whether issued by the contractor, purchased by the employee, 
or provided by the Government, may not be permitted to exit the AOR. In 
this case, alternate methods of accounting for Government-issued 
equipment and clothing will be used according to CCDR or JFC guidance 
and contract language.
    (4) Update to SPOT. Contracting officers or their designated 
representative must verify that defense contractors have updated SPOT to 
reflect their employee's change in status within 3 days of his or her 
redeployment as well as close out the deployment and collect or revoke 
the LOA.
    (5) Transportation to Home Destination. Transportation of CAAF from 
the deployment center/site to the home destination is the employer's 
responsibility. Government reimbursement to the employer for travel will 
be determined by the terms and conditions of the contract.



Sec.  158.7  Guidance for contractor medical and dental fitness.

    (a) General.
    (1) DoD contracts requiring the deployment of CAAF shall include 
medical and dental fitness requirements as specified in this section. 
Under the terms and conditions of their contracts, defense contractors 
shall provide personnel who meet such medical and dental requirements as 
specified in their contracts.
    (2) The geographic CCDR will establish theater-specific medical 
qualifications. When exceptions to these standards are requested through 
the contracting officer, the geographic CCDR will establish a process 
for reviewing such exceptions and ensuring that a mechanism is in place 
to track and archive all approved and denied waivers, including the 
medical condition requiring the waiver.
    (3) The geographic CCDR shall also ensure that processes and 
procedures are in place to remove contractor personnel in theater who 
are not medically qualified, once so identified by a healthcare 
provider. The geographic CCDR shall ensure appropriate language 
regarding procedures and criteria for requiring removal of contractor 
personnel identified as no longer medically qualified is developed, is 
posted on the CCDR OCS Web site, and also ensure contracting officers 
incorporate the same into all contracts for performance in the AOR.
    (4) Unless otherwise stated in the contract, all pre-, during-, and 
post-deployment medical evaluations and treatment are the responsibility 
of the contractor.
    (b) Medical and Dental Evaluations. (1) All CAAF deploying in 
support of a contingency operation must be medically, dentally, and 
psychologically fit for deployment as stated in DoD Directive 6200.04 
(see http://www.dtic.mil/ whs/directives/corres/ pdf/620004p.pdf). 
Fitness specifically includes the ability to accomplish the tasks and 
duties unique

[[Page 703]]

to a particular operation and the ability to tolerate the environmental 
and operational conditions of the deployed location. Under the terms and 
conditions of their contracts, defense contractors will provide 
medically, dentally, and psychologically fit contingency contractor 
personnel to perform contracted duties.
    (2) Just as military personnel must pass a complete health 
evaluation, CAAF shall have a similar evaluation based on the functional 
requirements of the job. All CAAF must undergo a medical and dental 
assessment within 12 months prior to arrival at the designated 
deployment center or Government-authorized contractor-performed 
deployment processing facility. This assessment should emphasize 
diagnosing cardiovascular, pulmonary, orthopedic, neurologic, 
endocrinologic, dermatologic, psychological, visual, auditory, dental, 
and other systemic disease conditions that may preclude performing the 
functional requirements of the contract, especially in the austere work 
environments encountered in some contingency operations.
    (3) In accordance with DoD Instruction 6490.03, contracts shall 
require that CAAF complete a pre-deployment health assessment in the 
DMSS at the designated deployment center or a Government-authorized 
contractor-performed deployment processing facility. These assessments 
will only be used by the DoD to accomplish population-wide assessments 
for epidemiological purposes, and to help identify trends related to 
health outcomes and possible exposures. They will not be used for 
individual purposes in diagnosing conditions or informing individuals 
they require a medical followup. Diagnosing conditions requiring medical 
referral is a function of the contractor.
    (4) In general, CAAF who have any of the medical conditions in 
paragraph (j) of this section, based on an individual assessment 
pursuant to DoD Instruction 6490.03, should not deploy.
    (5) Individuals who are deemed not medically qualified at the 
deployment center or at any period during the deployment process based 
upon an individual assessment, or who require extensive preventive 
dental care (see paragraph (j)(2)(xxv) of this section) will not be 
authorized to deploy.
    (6) Non-CAAF shall be medically screened when specified by the 
requiring activity, for the class of labor that is being considered 
(e.g., LNs working in a dining facility).
    (7) Contracts shall require contractors to replace individuals who 
develop, at any time during their deployment, conditions that cause them 
to become medically unqualified.
    (8) In accordance with DoD Instruction 6490.03, contracts shall 
require that CAAF complete a post-deployment health assessment in DMSS 
at the termination of the deployment (within 30 days of redeployment).
    (c) Glasses and Contact Lenses. If vision correction is required, 
contractor personnel will be required to have two pair of glasses. A 
written prescription may also be provided to the supporting military 
medical component so that eyeglass inserts for use in a compatible 
chemical protective mask can be prepared. If the type of protective mask 
to be issued is known and time permits, the preparation of eyeglass 
inserts should be completed prior to deployment. Wearing contact lenses 
in a field environment is not recommended and is at the contingency 
contractor employee's own risk due to the potential for irreversible eye 
damage caused by debris, chemical or other hazards present, and the lack 
of ophthalmologic care in a field environment.
    (d) Medications. Other than force health protection prescription 
products (FHPPPs) to be provided to CAAF and selected non-CAAF, 
contracts shall require that contractor personnel deploy with a minimum 
90-day supply of any required medications obtained at their own expense. 
Contractor personnel must be aware that deployed medical units are 
equipped and staffed to provide emergency care to healthy adults. They 
will not be able to provide or replace many medications required for 
routine treatment of chronic medical conditions, such as high blood 
pressure, heart conditions, and arthritis. The contract shall require 
contractor personnel to review both the amount of the medication and its 
suitability in the foreign area with their personal

[[Page 704]]

physician and make any necessary adjustments before deploying. The 
contract shall require the contractor to be responsible for the re-
supply of required medications.
    (e) Comfort Items. The contract shall require that CAAF take spare 
hearing-aid batteries, sunglasses, insect repellent, sunscreen, and any 
other supplies related to their individual physical requirements. These 
items will not be provided by DoD sources.
    (f) Immunizations. A list of immunizations, both those required for 
entry into the designated area of operations and those recommended by 
medical authorities, shall be produced for each deployment; posted to 
the geographic CCDR Web site or other venue, as appropriate; and 
incorporated in contracts for performance in the designated AOR.
    (1) The geographic CCDR, upon the recommendation of the appropriate 
medical authority (e.g., Combatant Command surgeon), shall provide 
guidance and a list of immunizations required to protect against 
communicable diseases judged to be a potential hazard to the health of 
those deploying to the applicable theater of operation. The Combatant 
Command surgeon of the deployed location shall prepare and maintain this 
list.
    (2) The contract shall require that CAAF be appropriately immunized 
before completing the pre-deployment process.
    (3) The Government shall provide military-specific vaccinations and 
immunizations (e.g., anthrax, smallpox) during pre-deployment 
processing. However, the contract shall stipulate that CAAF obtain all 
other immunizations (e.g., yellow fever, tetanus, typhoid, flu, 
hepatitis A and B, meningococcal, and tuberculin (TB) skin testing) 
prior to arrival at the deployment center.
    (4) Theater-specific medical supplies and FHPPPs, such as anti-
malarials and pyridostigmine bromide, will be provided to CAAF and 
selected non-CAAF on the same basis as they are to active duty military 
members. Additionally, CAAF will be issued deployment medication 
information sheets for all vaccines or deployment-related medications 
that are dispensed or administered.
    (5) A TB skin test is required within 3 months prior to deployment. 
Additionally, the contract shall stipulate that CAAF and selected non-
CAAF bring to the JOA a current copy of Public Health Service Form 791, 
``International Certificate of Vaccination,'' (also known as ``shot 
record,'' available for purchase at http://bookstore.gpo.gov/ 
collections/vaccination.jsp).
    (g) Human Immunodeficiency Virus (HIV) Testing. HIV testing is not 
mandatory for contingency contractor personnel unless specified by an 
agreement or by local requirements. HIV testing, if required, shall 
occur within 1 year before deployment.
    (h) Armed Forces Repository of Specimen Samples for the 
Identification of Remains (AFRSSIR). For identification of remains 
purposes, all CAAF who are U.S. citizens shall obtain a dental panograph 
and provide a specimen sample suitable for DNA analysis prior to or 
during deployment processing. The DoD Components shall ensure that all 
contracts require CAAF who are U.S. citizens to provide specimens for 
AFRSSIR as a condition of employment according to DoD Instruction 
5154.30 (see http://www.dtic.mil/ whs/directives/corres/ pdf/
515430p.pdf). Specimens shall be collected and managed as provided in 
paragraphs (h)(1) through (h)(3) of this section.
    (1) All CAAF who are U.S. citizens processing through a deployment 
center will have a sample collected and forwarded to the AFRSSIR for 
storage. Contracts shall require contractors to verify in SPOT or its 
successor that AFRSSIR has received the sample or that the DNA reference 
specimen sample has been collected by the contractor.
    (2) If CAAF who are U.S. citizens do not process through a 
deployment center or the defense contractor is authorized to process its 
own personnel, the contract shall require that the contractor make its 
own arrangements for collection and storage of the DNA reference 
specimen through a private facility, or arrange for the storage of the 
specimen by contacting AFRSSIR. Regardless of what specimen collection 
and storage arrangements are made, all

[[Page 705]]

defense contractors deploying CAAF who are U.S. citizens must provide 
the CAAF name and Social Security number, location of the sample, 
facility contact information, and retrieval plan to AFRSSIR. If AFRSSIR 
is not used and a CAAF who is a U.S. citizen becomes a casualty, the 
defense contractor must be able to retrieve identification media for use 
by the Armed Forces Medical Examiner (AFME) or other competent authority 
to conduct a medical-legal investigation of the incident and 
identification of the victim(s). These records must be retrievable 
within 24 hours for forwarding to the AFME when there is a reported 
incident that would necessitate its use for human remains identification 
purposes. The defense contractor shall have access to:
    (i) Completed DD Form 93 or equivalent record.
    (ii) Location of employee medical and dental records, including 
panograph.
    (iii) Location of employee fingerprint record.
    (3) In accordance with DoD Instruction 5154.30 (see http://
www.dtic.mil/ whs/directives/corres/ pdf/515430p.pdf), AFRSSIR is 
responsible for implementing special rules and procedures to ensure the 
protection of privacy interests in the specimen samples and any DNA 
analysis of those samples. Specimen samples shall only be used for the 
purposes outlined in DoD Instruction 5154.30. Other details, including 
retention and destruction requirements of DNA samples, are addressed in 
DoD Instruction 5154.30.
    (i) Pre-Existing Medical Conditions. All evaluations of pre-existing 
medical conditions should be accomplished prior to deployment. Personnel 
who have pre-existing medical conditions may deploy if all of these 
conditions are met:
    (1) The condition is not of such a nature that an unexpected 
worsening is likely to have a medically grave outcome or a negative 
impact on mission execution.
    (2) The condition is stable and reasonably anticipated by the pre-
deployment medical evaluator not to worsen during the deployment under 
contractor-provided medical care in-theater in light of the physical, 
physiological, psychological, environmental, and nutritional effects of 
the duties and location.
    (3) Any required ongoing health care or medications must be 
available or accessible to the contractor, independent of the military 
health system, and have no special handling, storage, or other 
requirements (e.g., refrigeration requirements and/or cold chain, 
electrical power requirements) that cannot be met in the specific 
theater of operations. Personnel must deploy with a minimum 90-day 
supply of prescription medications other than FHPPPs.
    (4) The condition does not and is not anticipated to require duty 
limitations that would preclude performance of duty or to impose 
accommodation. (The nature of the accommodation must be considered. The 
Combatant Command surgeon (or his delegated representative) is the 
appropriate authority to evaluate the suitability of the individual's 
limitations in-theater.)
    (5) There is no need for routine out-of-theater evacuation for 
continuing diagnostics or other evaluations.
    (j) Conditions Usually Precluding Medical Clearance. (1) This 
section is not intended to be comprehensive. A list of all possible 
diagnoses and their severity that should not be approved would be too 
expansive to list in this part. In general, individuals with the 
conditions in paragraphs (j)(2)(i) through (j)(2)(xxx) of this section, 
based on an individual assessment pursuant to DoD Instruction 6490.03, 
will not normally be approved for deployment. The medical evaluator must 
carefully consider whether climate; altitude; nature of available food 
and housing; availability of medical, behavioral health, and dental 
services; or other environmental and operational factors may be 
hazardous to the deploying person's health because of a known physical 
or mental condition.
    (2) Medical clearance for deployment of persons with any of the 
conditions in this section shall be granted only after consultation with 
the appropriate Combatant Command surgeon. The Combatant Command surgeon 
makes recommendations and serves as the geographic CCDR advisor; 
however, the

[[Page 706]]

geographic CCDR is the final approval or disapproval authority except as 
provided in paragraph (k)(3) of this section. The Combatant Command 
surgeon can determine if adequate treatment facilities and specialist 
support is available at the duty station for:
    (i) Physical or psychological conditions resulting in the inability 
to effectively wear IPE, including protective mask, ballistic helmet, 
body armor, and CBRN protective ensemble, regardless of the nature of 
the condition that causes the inability to wear the equipment if wearing 
such equipment may be reasonably anticipated or required in the deployed 
location.
    (ii) Conditions that prohibit immunizations or use of FHPPs required 
for the specific deployment. Depending on the applicable threat 
assessment, required FHPPs, vaccines, and countermeasures may include 
atropine, epinephrine and/or 2-pam chloride auto-injectors, certain 
antimicrobials, antimalarials, and pyridostigmine bromide.
    (iii) Any chronic medical condition that requires frequent clinical 
visits, that fails to respond to adequate conservative treatment, or 
that necessitates significant limitation of physical activity.
    (iv) Any medical condition that requires durable medical equipment 
or appliances or that requires periodic evaluation and/or treatment by 
medical specialists not readily available in theater (e.g., CPAC machine 
for sleep apnea).
    (v) Any unresolved acute or chronic illness or injury that would 
impair duty performance in a deployed environment during the duration of 
the deployment.
    (vi) Active tuberculosis or known blood-borne diseases that may be 
transmitted to others in a deployed environment. (For HIV infections, 
see paragraph (j)(2)(xvii) of this section.)
    (vii) An acute exacerbation of a physical or mental health condition 
that could affect duty performance.
    (viii) Recurrent loss of consciousness for any reason.
    (ix) Any medical condition that could result in sudden 
incapacitation including a history of stroke within the last 24 months, 
seizure disorders, and diabetes mellitus type I or II, treated with 
insulin or oral hypoglycemic agents.
    (x) Hypertension not controlled with medication or that requires 
frequent monitoring to achieve control.
    (xi) Pregnancy.
    (xii) Cancer for which the individual is receiving continuing 
treatment or that requires periodic specialty medical evaluations during 
the anticipated duration of the deployment.
    (xiii) Precancerous lesions that have not been treated and/or 
evaluated and that require treatment and/or evaluation during the 
anticipated duration of the deployment.
    (xiiii) Any medical condition that requires surgery or for which 
surgery has been performed that requires rehabilitation or additional 
surgery to remove devices.
    (xv) Asthma that has a Forced Expiratory Volume-1 (FEV-1) of less 
than or equal to 50 percent of predicted FEV-1 despite appropriate 
therapy, that has required hospitalization at least 2 times in the last 
12 months, or that requires daily systemic oral or injectable steroids.
    (xvi) Any musculoskeletal condition that significantly impairs 
performance of duties in a deployed environment.
    (xvii) HIV antibody positive with the presence of progressive 
clinical illness or immunological deficiency. The Combatant Command 
surgeon should be consulted in all instances of HIV seropositivity 
before medical clearance for deployment.
    (xviii) Hearing loss. The requirement for use of a hearing aid does 
not necessarily preclude deployment. However, the individual must have 
sufficient unaided hearing to perform duties safely.
    (xviiii) Loss of vision. Best corrected visual acuity must meet job 
requirements to safely perform duties.
    (xx) Symptomatic coronary artery disease.
    (xxi) History of myocardial infarction within 1 year of deployment.
    (xxii) History of coronary artery bypass graft, coronary artery 
angioplasty, carotid endarterectomy, other arterial stenting, or 
aneurysm repair within 1 year of deployment.

[[Page 707]]

    (xxiii) Cardiac dysrhythmias or arrhythmias, either symptomatic or 
requiring medical or electrophysiologic control (presence of an 
implanted defibrillator and/or pacemaker).
    (xxiv) Heart failure.
    (xxv) Individuals without a dental exam within the last 12 months or 
who are likely to require dental treatment or reevaluation for oral 
conditions that are likely to result in dental emergencies within 12 
months.
    (xxvi) Psychotic and/or bipolar disorders. For detailed guidance on 
deployment-limiting psychiatric conditions or psychotropic medications, 
see ASD(HA) Memorandum ``Policy Guidance for Deployment-Limiting 
Psychiatric Conditions and Medications'' November 7, 2006 (see http://
www.ha.osd.mil/ policies/2006/061107_deployment-limiting_ 
psych_conditions_meds.pdf).
    (xxvii) Psychiatric disorders under treatment with fewer than 3 
months of demonstrated stability.
    (xxviii) Clinical psychiatric disorders with residual symptoms that 
impair duty performance.
    (xxviiii) Mental health conditions that pose a substantial risk for 
deterioration and/or recurrence of impairing symptoms in the deployed 
environment.
    (xxx) Chronic medical conditions that require ongoing treatment with 
antipsychotics, lithium, or anticonvulsants.
    (k) Exceptions to Medical Standards (Waivers). If a contractor 
believes an individual CAAF employee with one of the conditions listed 
in paragraphs (j)(2)(i) through (j)(2)(xxx) of this section can 
accomplish his or her tasks and duties and tolerate the environmental 
and operational conditions of the deployed location, the contractor may 
request a waiver for that individual through the contracting officer or 
designee.
    (1) Waivers are unlikely for contractor personnel and an explanation 
should be given as to why other persons who meet the medical standards 
could not be identified to fulfill the deployed duties. Waivers and 
requests for waivers will include a summary of a detailed medical 
evaluation or consultation concerning the medical condition(s). 
Maximization of mission accomplishment and the protection of the health 
of personnel are the ultimate goals. Justification will include 
statements indicating the CAAF member's experience, position to be 
placed in, any known specific hazards of the position, anticipated 
availability and need for care while deployed, and the benefit expected 
to accrue from the waiver.
    (2) Medical clearance to deploy or continue serving in a deployed 
environment for persons with any of the conditions in paragraphs 
(j)(2)(i) through (j)(2)(xxx) of this section must have the concurrence 
by the Combatant Command surgeon, or his designee, who will recommend 
approval or disapproval to the geographic CCDR. The geographic CCDR, or 
his designee, is the final decision authority for approvals and 
disapprovals.
    (3) For CAAF employees working with Special Operations Forces 
personnel who have conditions in paragraphs (j)(2)(i) through 
(j)(2)(xxx) of this section, medical clearance may be granted after 
consultation with the appropriate Theater Special Operations Command 
(TSOC) surgeon. The TSOC surgeon, in coordination with the Combatant 
Command surgeon and senior in-theater medical authority, will ascertain 
the capability and availability of treatment facilities and specialist 
support in the general duty area versus the operational criticality of 
the particular SOF member. The TSOC surgeon will recommend approval or 
disapproval to the TSOC Commander. The TSOC Commander is the final 
approval or disapproval authority.



PART 159_PRIVATE SECURITY CONTRACTORS OPERATING IN CONTINGENCY 
OPERATIONS--Table of Contents



Sec.
159.1 Purpose.
159.2 Applicability and scope.
159.3 Definitions.
159.4 Policy.
159.5 Responsibilities.
159.6 Procedures.

    Authority: Pub. L. 110-181; Pub. L. 110-417.

    Source: 76 FR 49655, Aug. 11, 2011, unless otherwise noted.

[[Page 708]]



Sec.  159.1  Purpose.

    This part establishes policy, assigns responsibilities and provides 
procedures for the regulation of the selection, accountability, 
training, equipping, and conduct of personnel performing private 
security functions under a covered contract. It also assigns 
responsibilities and establishes procedures for incident reporting, use 
of and accountability for equipment, rules for the use of force, and a 
process for administrative action or the removal, as appropriate, of 
PSCs and PSC personnel.



Sec.  159.2  Applicability and scope.

    This part:
    (a) Applies to:
    (1) The Office of the Secretary of Defense, the Military 
Departments, the Office of the Chairman of the Joint Chiefs of Staff and 
the Joint Staff, the Combatant Commands, the Office of the Inspector 
General of the Department of Defense, the Defense Agencies, the DoD 
Field Activities, and all other organizational entities in the 
Department of Defense (hereafter referred to as the ``DoD Components'').
    (2) The Department of State and other U.S. Federal agencies insofar 
as it implements the requirements of section 862 of Public Law 110-181, 
as amended. Specifically, in areas of operations which require enhanced 
coordination of PSC and PSC personnel working for U.S. Government 
(U.S.G.) agencies, the Secretary of Defense may designate such areas as 
areas of combat operations or other significant military operations for 
the limited purposes of this part. In such an instance, the standards 
established in accordance with this part would, in coordination with the 
Secretary of State, expand from covering only DoD PSCs and PSC personnel 
to cover all U.S.G.-funded PSCs and PSC personnel operating in the 
designated area. The requirements of this part shall not apply to a 
nonprofit nongovernmental organization receiving grants or cooperative 
agreements for activities conducted within an area of other significant 
military operations if the Secretary of Defense and the Secretary of 
State agree that such organization may be exempted. An exemption may be 
granted by the agreement of the Secretaries under this paragraph on an 
organization-by-organization or area-by-area basis. Such an exemption 
may not be granted with respect to an area of combat operations.
    (b) Prescribes policies applicable to all:
    (1) DoD PSCs and PSC personnel performing private security functions 
during contingency operations outside the United States.
    (2) USG-funded PSCs and PSC personnel performing private security 
functions in an area of combat operations or, with the agreement of the 
Secretary of State, other significant military operations as designated 
by the Secretary of Defense.



Sec.  159.3  Definitions.

    Unless otherwise noted, these terms and their definitions are for 
the purpose of this part.
    Area of combat operations. An area of operations designated as such 
by the Secretary of Defense for the purpose of this part, when enhanced 
coordination of PSCs working for U.S.G. agencies is required.
    Contingency operation. A military operation that is either 
designated by the Secretary of Defense as a contingency operation or 
becomes a contingency operation as a matter of law (10 U.S.C. 
101(a)(13)). It is a military operation that:
    (1) Is designated by the Secretary of Defense as an operation in 
which members of the Armed Forces are or may become involved in military 
actions, operations, or hostilities against an enemy of the United 
States or against an opposing military force; or
    (2) Results in the call or order to, or retention on, active duty of 
members of the uniformed services under section 688, 12301(a), 12302, 
12304, 12305, 12406, of 10 U.S.C., chapter 15 of 10 U.S.C. or any other 
provision of law during a war or during a national emergency declared by 
the President or Congress.
    Contractor. The contractor, subcontractor, grantee, or other party 
carrying out the covered contract.
    Covered contract. (1) A DoD contract for performance of services 
and/or delivery of supplies in an area of contingency operations outside 
the United

[[Page 709]]

States or a contract of a non-DoD Federal agency for performance of 
services and/or delivery of supplies in an area of combat operations or 
other significant military operations, as designated by the Secretary of 
Defense; a subcontract at any tier under such a contract; or a task 
order or delivery order issued under such a contract or subcontract.
    (2) Also includes contracts or subcontracts funded under grants and 
sub-grants by a Federal agency for performance in an area of combat 
operations or other significant military operations as designated by the 
Secretary of Defense.
    (3) Excludes temporary arrangements entered into by non-DoD 
contractors or grantees for the performance of private security 
functions by individual indigenous personnel not affiliated with a local 
or expatriate security company. Such arrangements must still be in 
compliance with local law.
    Other significant military operations. For purposes of this part, 
the term `other significant military operations` means activities, other 
than combat operations, as part of an overseas contingency operation 
that are carried out by United States Armed Forces in an uncontrolled or 
unpredictable high-threat environment where personnel performing 
security functions may be called upon to use deadly force. \1\
---------------------------------------------------------------------------

    \1\ With respect to an area of other significant military 
operations, the requirements of this part shall apply only upon 
agreement of the Secretary of Defense and the Secretary of State. Such 
an agreement of the Secretaries may be made only on an area-by-area 
basis. With respect to an area of combat operations, the requirements of 
this part shall always apply.
---------------------------------------------------------------------------

    Private security functions. Activities engaged in by a contractor 
under a covered contract as follows:
    (1) Guarding of personnel, facilities, designated sites, or property 
of a Federal agency, the contractor or subcontractor, or a third 
party.\2\
---------------------------------------------------------------------------

    \2\ Contractors performing private security functions are not 
authorized to perform inherently governmental functions. In this regard, 
they are limited to a defensive response to hostile acts or demonstrated 
hostile intent.
---------------------------------------------------------------------------

    (2) Any other activity for which personnel are required to carry 
weapons in the performance of their duties in accordance with the terms 
of their contract. For the DoD, DoDI Instruction 3020.41, ``Contractor 
Personnel Authorized to Accompany the U.S. Armed Forces,'' \3\ 
prescribes policies related to personnel allowed to carry weapons for 
self defense.
---------------------------------------------------------------------------

    \3\ Available at http://www.dtic.mil/ whs/directives/corres/ pdf/
302041p.pdf.
---------------------------------------------------------------------------

    PSC. During contingency operations ``PSC'' means a company employed 
by the DoD performing private security functions under a covered 
contract. In a designated area of combat operations or other significant 
military operations, the term ``PSC'' expands to include all companies 
employed by U.S.G. agencies performing private security functions under 
a covered contract.
    PSC personnel. Any individual performing private security functions 
under a covered contract.



Sec.  159.4  Policy.

    (a) Consistent with the requirements of paragraph (a)(2) of section 
862 of Public Law 110-181, the selection, training, equipping, and 
conduct of PSC personnel including the establishment of appropriate 
processes shall be coordinated between the DoD and the Department of 
State. Coordination shall encompass the contemplated use of PSC 
personnel during the planning stages of contingency operations so as to 
allow guidance to be developed under paragraphs (b) and (c) of this 
section and promulgated under section 159.5 of this part in a timely 
manner that is appropriate for the needs of the contingency operation.
    (b) Geographic Combatant Commanders will provide tailored PSC 
guidance and procedures for the operational environment in their Area of 
Responsibility (AOR) in accordance with this part, the Federal 
Acquisition Regulation (FAR) \4\ and the Defense Federal Acquisition 
Regulation Supplement (DFARS).\5\
---------------------------------------------------------------------------

    \4\ Published in Title 48 of the Code of Federal Regulations.
    \5\ Published in Title 48 of the Code of Federal Regulations.
---------------------------------------------------------------------------

    (c) In a designated area of combat operations or other significant 
military operations, the relevant Chief of Mission will be responsible 
for developing

[[Page 710]]

and issuing implementing instructions for non-DoD PSCs and their 
personnel consistent with the standards set forth by the geographic 
Combatant Commander in accordance with paragraph (b) of this section. 
The Chief of Mission has the option to instruct non-DoD PSCs and their 
personnel to follow the guidance and procedures developed by the 
geographic Combatant Commander and/or a sub unified commander or joint 
force commander (JFC) where specifically authorized by the Combatant 
Commander to do so and notice of that authorization is provided to non-
DoD agencies.
    (d) The requirements of this part shall not apply to contracts 
entered into by elements of the intelligence community in support of 
intelligence activities.



Sec.  159.5  Responsibilities.

    (a) The Deputy Assistant Secretary of Defense for Program Support, 
under the authority, direction, and control of the Assistant Secretary 
of Defense for Logistics and Materiel Readiness, shall monitor the 
registering, processing, and accounting of PSC personnel in an area of 
contingency operations.
    (b) The Director, Defense Procurement and Acquisition Policy, under 
the authority, direction, and control of the Under Secretary of Defense 
for Acquisition, Technology and Logistics, shall ensure that the DFARS 
and (in consultation with the other members of the FAR Council) the FAR 
provide appropriate guidance and contract clauses consistent with this 
part and paragraph (b) of section 862 of Public Law 110-181.
    (c) The Deputy Chief Management Officer of the Department of Defense 
shall direct the appropriate component to ensure that information 
systems effectively support the accountability and visibility of 
contracts, contractors, and specified equipment associated with private 
security functions.
    (d) The Chairman of the Joint Chiefs of Staff shall ensure that 
joint doctrine is consistent with the principles established by DoD 
Directive 3020.49, ``Orchestrating, Synchronizing, and Integrating 
Program Management of Contingency Acquisition Planning and Its 
Operational Execution,'' \6\ DoD Instruction 3020.41, ``Contractor 
Personnel Authorized to Accompany the U.S. Armed Forces,'' and this 
part.
---------------------------------------------------------------------------

    \6\ Available from http://www.dtic.mil/ whs/directives/corres/ pdf/
302040p.pdf.
---------------------------------------------------------------------------

    (e) The geographic Combatant Commanders in whose AOR a contingency 
operation is occurring, and within which PSCs and PSC personnel perform 
under covered contracts, shall:
    (1) Provide guidance and procedures, as necessary and consistent 
with the principles established by DoD Directive 3020.49, 
``Orchestrating, Synchronizing, and Integrating Program Management of 
Contingency Acquisition Planning and Its Operational Execution,'' DoD 
Instruction 3020.41, ``Contractor Personnel Authorized to Accompany the 
U.S. Armed Forces,'' \7\ and this part, for the selection, training, 
accountability and equipping of such PSC personnel and the conduct of 
PSCs and PSC personnel within their AOR. Individual training and 
qualification standards shall meet, at a minimum, one of the Military 
Departments' established standards. Within a geographic combatant 
command, a sub unified commander or JFC shall be responsible for 
developing and issuing implementing procedures as warranted by the 
situation, operation, and environment, in consultation with the relevant 
Chief of Mission in designated areas of combat operations or other 
significant military operations.
---------------------------------------------------------------------------

    \7\ Available at http://www.dtic.mil/ whs/directives/corres/ html/
302041.htm.
---------------------------------------------------------------------------

    (2) Through the Contracting Officer, ensure that PSC personnel 
acknowledge, through their PSC, their understanding and obligation to 
comply with the terms and conditions of their covered contracts.
    (3) Issue written authorization to the PSC identifying individual 
PSC personnel who are authorized to be armed. Rules for the Use of Force 
shall be included with the written authorization, if not previously 
provided to the contractor in the solicitation or during the course of 
contract administration. Rules for the Use of Force shall conform to the 
guidance in the Chairman of the Joint Chiefs of Staff Instruction

[[Page 711]]

3121.01B, ``Standing Rules of Engagement/Standing Rules for the Use of 
Force for U.S. Forces.'' Access by offerors and contractors to the rules 
for the use of force may be controlled in accordance with the terms of 
FAR 52.204-2 (Aug 1996), DFARS 252.204-7000 (Dec 1991), or both.\8\
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    \8\ CJCSI 3121.01B provides guidance on the standing rules of 
engagement (SROE) and establishes standing rules for the use of force 
(SRUF) for DOD operations worldwide. This document is classified secret. 
CJCSI 3121.01B is available via Secure Internet Protocol Router Network 
at http://js.smil.mil. If the requester is not an authorized user of the 
classified network, the requester should contact Joint Staff J-3 at 703-
614-0425.
---------------------------------------------------------------------------

    (4) Ensure that the procedures, orders, directives and instructions 
prescribed in Sec.  159.6(a) of this part are available through a single 
location (to include an Internet Web site, consistent with security 
considerations and requirements).
    (f) The Heads of the DoD Components shall:
    (1) Ensure that all private security-related requirement documents 
are in compliance with the procedures listed in Sec.  159.6 of this part 
and the guidance and procedures issued by the geographic Combatant 
Command,
    (2) Ensure private security-related contracts contain the 
appropriate clauses in accordance with the applicable FAR clause and 
include additional mission-specific requirements as appropriate.



Sec.  159.6  Procedures.

    (a) Standing Combatant Command Guidance and Procedures. Each 
geographic Combatant Commander shall develop and publish guidance and 
procedures for PSCs and PSC personnel operating during a contingency 
operation within their AOR, consistent with applicable law; this part; 
applicable Military Department publications; and other applicable DoD 
issuances to include DoD Directive 3020.49, ``Orchestrating, 
Synchronizing, and Integrating Program Management of Contingency 
Acquisition Planning and Its Operational Execution,'' DFARS, DoD 
Directive 2311.01E, ``DoD Law of War Program,'' \9\ DoD 5200.8-R, 
``Physical Security Program,'' \10\ CJCSI 3121.01B, ``Standing Rules of 
Engagement/Standing Rules for the Use of Force for U.S. Forces,'' and 
DoD Directive 5210.56, ``Use of Deadly Force and the Carrying of 
Firearms by DoD Personnel Engaged in Law Enforcement and Security 
Duties.'' \11\ The guidance and procedures shall:
---------------------------------------------------------------------------

    \9\ Available at http://www.dtic.mil/ whs/directives/corres/ html/
231101.htm.
    \10\ Available at http://www.dtic.mil/ whs/directives/corres/ pdf/
520008r.pdf.
    \11\ Available at http://www.dtic.mil/ whs/directives/corres/ html/
521056.htm.
---------------------------------------------------------------------------

    (1) Contain, at a minimum, procedures to implement the following 
processes, and identify the organization responsible for managing these 
processes:
    (i) Registering, processing, accounting for and keeping appropriate 
records of PSCs and PSC personnel in accordance with DoD Instruction 
3020.41, ``Contractor Personnel Authorized to Accompany the U.S. Armed 
Forces.''
    (ii) PSC verification that PSC personnel meet all the legal, 
training, and qualification requirements for authorization to carry a 
weapon in accordance with the terms and conditions of their contract and 
host country law. Weapons accountability procedures will be established 
and approved prior to the weapons authorization.
    (iii) Arming of PSC personnel. Requests for permission to arm PSC 
personnel shall be reviewed on a case-by-case basis by the appropriate 
Staff Judge Advocate to the geographic Combatant Commander (or a 
designee) to ensure there is a legal basis for approval. The request 
will then be approved or denied by the geographic Combatant Commander or 
a specifically identified designee, no lower than the flag officer 
level. Requests to arm non-DOD PSC personnel shall be reviewed and 
approved in accordance with Sec.  159.4(c) of this part. Requests for 
permission to arm all PSC personnel shall include:
    (A) A description of where PSC personnel will operate, the 
anticipated threat, and what property or personnel such personnel are 
intended to protect, if any.

[[Page 712]]

    (B) A description of how the movement of PSC personnel will be 
coordinated through areas of increased risk or planned or ongoing 
military operations, including how PSC personnel will be rapidly 
identified by members of the U.S. Armed Forces.
    (C) A communication plan, to include a description of how relevant 
threat information will be shared between PSC personnel and U.S. 
military forces and how appropriate assistance will be provided to PSC 
personnel who become engaged in hostile situations. DoD contractors 
performing private security functions are only to be used in accordance 
with DoD Instruction 1100.22, ``Guidance for Determining Workforce 
Mix,'' \12\ that is, they are limited to a defensive response to hostile 
acts or demonstrated hostile intent.
---------------------------------------------------------------------------

    \12\ Available at http://www.dtic.mil/ whs/directives/corres/ pdf/
110022p.pdf.
---------------------------------------------------------------------------

    (D) Documentation of individual training covering weapons 
familiarization and qualification, rules for the use of force, limits on 
the use of force including whether defense of others is consistent with 
host nation Status of Forces Agreements or local law, the distinction 
between the rules of engagement applicable to military forces and the 
prescribed rules for the use of force that control the use of weapons by 
civilians, and the Law of Armed Conflict.
    (E) Written acknowledgment by the PSC and its individual PSC 
personnel, after investigation of background of PSC personnel by the 
contractor, verifying such personnel are not prohibited under U.S. law 
to possess firearms.
    (F) Written acknowledgment by the PSC and individual PSC personnel 
that:
    (1) Inappropriate use of force by contractor personnel authorized to 
accompany the U.S. Armed Forces may subject such personnel to United 
States or host nation prosecution and civil liability.\13\
---------------------------------------------------------------------------

    \13\ This requirement is specific to arming procedures. Such written 
acknowledgement should not be construed to limit potential civil and 
criminal liability to conduct arising from ``the use of weapons.'' For 
example, PSC personnel could be held criminally liable for any conduct 
that would constitute a Federal offense (see MEJA, 18 U.S.C. 3261(a)).
---------------------------------------------------------------------------

    (2) Proof of authorization to be armed must be carried by each PSC 
personnel.
    (3) PSC personnel may possess only U.S.G.-issued and/or -approved 
weapons and ammunition for which they have been qualified according to 
paragraph (a)(1)(iii)(E) of this section.
    (4) PSC personnel were briefed about and understand limitations on 
the use of force.
    (5) Authorization to possess weapons and ammunition may be revoked 
for non-compliance with established rules for the use of force.
    (6) PSC personnel are prohibited from consuming alcoholic beverages 
or being under the influence of alcohol while armed.
    (iv) Registration and identification in the Synchronized 
Predeployment and Operational Tracker (or its successor database) of 
armored vehicles, helicopters, and other vehicles operated by PSC 
personnel.
    (v) Reporting alleged criminal activity or other incidents involving 
PSCs or PSC personnel by another company or any other person. All 
incidents involving the following shall be reported and documented:
    (A) A weapon is discharged by an individual performing private 
security functions;
    (B) An individual performing private security functions is killed or 
injured in the performance of their duties;
    (C) A person other than an individual performing private security 
functions is killed or injured as a result of conduct by PSC personnel;
    (D) Property is destroyed as a result of conduct by a PSC or PSC 
personnel;
    (E) An individual performing private security functions has come 
under attack including in cases where a weapon is discharged against an 
individual performing private security functions or personnel performing 
such functions believe a weapon was so discharged; or
    (F) Active, non-lethal counter-measures (other than the discharge of 
a weapon) are employed by PSC personnel in response to a perceived 
immediate threat in an incident that

[[Page 713]]

could significantly affect U.S. objectives with regard to the military 
mission or international relations. (Active non-lethal systems include 
laser optical distracters, acoustic hailing devices, electro-muscular 
TASER guns, blunt-trauma devices like rubber balls and sponge grenades, 
and a variety of riot-control agents and delivery systems).
    (vi) The independent review and, if practicable, investigation of 
incidents reported pursuant to paragraphs (a)(1)(v)(A) through 
(a)(1)(v)(F) of this section and incidents of alleged misconduct by PSC 
personnel.
    (vii) Identification of ultimate criminal jurisdiction and 
investigative responsibilities, where conduct of U.S.G.-funded PSCs or 
PSC personnel are in question, in accordance with applicable laws to 
include a recognition of investigative jurisdiction and coordination for 
joint investigations (i.e., other U.S.G. agencies, host nation, or third 
country agencies), where the conduct of PSCs and PSC personnel is in 
question.
    (viii) A mechanism by which a commander of a combatant command may 
request an action by which PSC personnel who are non-compliant with 
contract requirements are removed from the designated operational area.
    (ix) Interagency coordination of administrative penalties or 
removal, as appropriate, of non-DoD PSC personnel who fail to comply 
with the terms and conditions of their contract, as they relate to this 
part.
    (x) Implementation of the training requirements contained below in 
paragraph (a)(2)(ii) of this section.
    (2) Specifically cover:
    (i) Matters relating to authorized equipment, force protection, 
security, health, safety, and relations and interaction with locals in 
accordance with DoD Instruction 3020.41, ``Contractor Personnel 
Authorized to Accompany the U.S. Armed Forces.''
    (ii) Predeployment training requirements addressing, at a minimum, 
the identification of resources and assistance available to PSC 
personnel as well as country information and cultural training, and 
guidance on working with host country nationals and military personnel.
    (iii) Rules for the use of force and graduated force procedures.
    (iv) Requirements and procedures for direction, control and the 
maintenance of communications with regard to the movement and 
coordination of PSCs and PSC personnel, including specifying 
interoperability requirements. These include coordinating with the Chief 
of Mission, as necessary, private security operations outside secure 
bases and U.S. diplomatic properties to include movement control 
procedures for all contractors, including PSC personnel.
    (b) Availability of Guidance and Procedures. The geographic 
Combatant Commander shall ensure the guidance and procedures prescribed 
in paragraph (a) of this section are readily available and accessible by 
PSCs and their personnel (e.g., on a Web page and/or through contract 
terms), consistent with security considerations and requirements.
    (c) Subordinate Guidance and Procedures. A sub unified commander or 
JFC, in consultation with the Chief of Mission, will issue guidance and 
procedures implementing the standing combatant command publications 
specified in paragraph (a) of this section, consistent with the 
situation and operating environment.
    (d) Consultation and Coordination. The Chief of Mission and the 
geographic Combatant Commander/sub unified commander or JFC shall make 
every effort to consult and coordinate responses to common threats and 
common concerns related to oversight of the conduct of U.S.G.-funded 
PSCs and their personnel.



PART 161_IDENTIFICATION (ID) CARDS FOR MEMBERS OF THE UNIFORMED SERVICES,
THEIR DEPENDENTS, AND OTHER ELIGIBLE INDIVIDUALS--Table of Contents



    Subpart A_Identification (ID) Cards for Members of the Uniformed 
       Services, Their Dependents, and Other Eligible Individuals

Sec.
161.1 Purpose.
161.2 Applicability.
161.3 Definitions.

[[Page 714]]

161.4 Policy.
161.5 Responsibilities.
161.6 Procedures.

       Subpart B_DoD Identification (ID) Cards: ID Card Life-Cycle

161.7 ID card life-cycle procedures.
161.8 ID card life-cycle roles and responsibilities.

  Subpart C_DoD Identification (ID) Cards: Benefits for Members of the 
  Uniformed Services, Their Dependents, and Other Eligible Individuals

161.9 DoD benefits.
161.10 Benefits for active duty members of the uniformed services.
161.11 Benefits for National Guard and Reserve members of the uniformed 
          services.
161.12 Benefits for former uniformed services members.
161.13 Benefits for retired members of the uniformed services.
161.14 Benefits for MOH recipients.
161.15 Benefits for Disabled American Veterans (DAV).
161.16 Benefits for transitional health care members and dependents.
161.17 Benefits for surviving dependents.
161.18 Benefits for abused dependents.
161.19 Benefits for former spouses.
161.20 Benefits for civilian personnel.
161.21 Benefits for retired civilian personnel.
161.22 Benefits for foreign affiliates.

   Subpart D_DoD Identification (ID) Cards: Eligibility Documentation 
  Required for Defense Enrollment Eligibility Reporting System (DEERS) 
           Enrollment, Record Management, and ID Card Issuance

161.23 Procedures.

    Authority: 10 U.S.C. 1061-1064, 1072-1074, 1074a-1074c, 1076, 1076a, 
1077, and 1095(k)(2), and 18 U.S.C. 499, 506, 509, 701, and 1001; 5 
U.S.C. 5703, 10 U.S.C. 1408(h), 10 U.S.C. 1044a, 10 U.S.C. chapter 1223.

    Source: 79 FR 709, Jan. 6, 2014, unless otherwise noted.



    Subpart A_Identification (ID) Cards for Members of the Uniformed 
       Services, Their Dependents, and Other Eligible Individuals



Sec.  161.1  Purpose.

    This part:
    (a) Establishes policy, assigns responsibilities, and provides 
procedures for the issuing of distinct DoD ID cards. The ID cards shall 
be issued to uniformed service members, their dependents, DoD civilian 
employees, and other eligible individuals and will be used as proof of 
identity and DoD affiliation.
    (b) Sets forth responsibilities and procedures for the DoD ID card 
life-cycle in accordance with this part.
    (c) Prescribes the benefits for commissary; exchange; morale, 
welfare, and recreation (MWR); Military Health Services direct care in 
military treatment facilities (MTFs); and TRICARE civilian health care 
(CHC) in support of the members of the uniformed services, their 
dependents, and other eligible individuals, in accordance with this 
part.
    (d) Provides procedures and defines acceptable documentation for 
enrollment and eligibility verification, as necessary, for DoD ID card 
issuance and as described in DoD Instruction 1000.13 and subparts B and 
C of this part.

[79 FR 709, Jan. 6, 2014, as amended at 81 FR 74875, Oct. 27, 2016]



Sec.  161.2  Applicability.

    This part applies to:
    (a) The Office of the Secretary of Defense (OSD), the Military 
Departments (including the Coast Guard at all times, including when it 
is a Service in the Department of Homeland Security by agreement with 
that Department), the Office of the Chairman of the Joint Chiefs of 
Staff and the Joint Staff, the Combatant Commands, the Office of the 
Inspector General of the Department of Defense, the Defense Agencies, 
the DoD Field Activities, and all other organizational entities within 
the Department of Defense (hereafter referred to collectively as the 
``DoD Components'').
    (b) The Commissioned Corps of the U.S. Public Health Service 
(USPHS), under agreement with the Department of Health and Human 
Services, and the National Oceanic and Atmospheric Administration 
(NOAA), under agreement with the Department of Commerce.



Sec.  161.3  Definitions.

    Unless otherwise noted, these terms and their definitions are for 
the purpose of this part.

[[Page 715]]

    20/20/20, 20/20/15, or 10/20/10. See definition of ``former 
spouse.''
    Abused dependent. Dependents of active duty uniformed service 
members:
    (1) Entitled to retired pay based on 20 or more years of service 
who, on or after October 23, 1992, while a member, are eligible to 
receive retired pay terminated as a result of misconduct involving the 
abuse of the spouse or dependent child pursuant to 10 U.S.C. 1408(h); or
    (2) Not entitled to retired pay, who have received a dishonorable or 
bad-conduct discharge, dismissal from a uniformed service as a result of 
a court martial conviction for an offense involving physical or 
emotional abuse of a spouse or child, or were administratively 
discharged as a result of such an offense, separated on or after 
November 30, 1993.
    Access to a DoD network. User logon to a Windows active directory 
account on the Nonsecure Internet Protocol Router Network (NIPRNet) or 
an authorized network operating system account on the NIPRNet.
    Access to a DoD network (remote). Authorized NIPRNet users accessing 
a NIPRNet resource from:
    (1) Another NIPRNet resource outside of the originating domain; or
    (2) An authorized system that resides outside of the NIPRNet. This 
includes domain-level access from handheld devices. Remote access 
includes logon for the purposes of telework, Virtual Private Network, 
and remote administration by DoD or non-DoD personnel.
    Active duty. Full-time duty in the active military service of the 
United States. This includes full-time training duty, annual training 
duty, and attendance, while in the active military service, at a school 
designated as a service school by law or by the Secretary of the 
Military Department concerned. Active duty does not include full-time 
National Guard duty.
    Active duty for a period of more than 30 days. Active duty under a 
call or order that does not specify a period of 30 days or less. When 
the ``Active Duty for a Period of More than 30 Days'' is established by 
consecutive sets of orders, their eligible dependents become entitled to 
TRICARE medical benefits on the first day of the set of orders that 
brings the period of active duty over 30 days.
    Adopted child. A child adopted before the age of 21 or, if enrolled 
in a full-time course of study at an institution of higher learning, 
before the age of 23. Except for entitlement to medical care, a child 
with an incapacitating condition that existed before the age of 21 or 
that occurred while the child was a full-time student prior to the age 
of 23, may be adopted at any age provided it is determined that there is 
a BONA FIDE parent-child relationship. Surviving children adopted by a 
non-military member after the death of the sponsor remain eligible for 
medical care only.
    Annulled. The status of an individual, whose marriage has been 
declared a nullity by a court of competent jurisdiction, that restores 
unremarried status to a widow, widower, or former spouse for 
reinstatement of benefits.
    Annulment decree. An order or other appropriate document from a 
court of competent jurisdiction in the United States (or U.S. territory 
or possession) that grants an annulment of a marriage.
    Attainment of age 65. The first day of the month of the anniversary 
of the 65th birthday, unless the birthday falls on the first of the 
month. If the birthday is the first of the month, attainment of age 65 
occurs on the first day of the preceding month.
    Benefits. Entitlements or privileges that are assigned to a person 
or group of persons.
    CAC PIN reset (CPR). A portable, single-purpose system capable of 
providing timely PIN reset capability to the field without requiring a 
Common Access Card (CAC) holder to return to a CAC issuance facility 
(i.e. Real-Time Automated Personnel Identification System (RAPIDS), 
workstation).
    Certificate of live birth. A certificate authenticated by an 
attending physician or other responsible person from a U.S. hospital or 
a military treatment facility showing the name of at least one parent.
    Certified document. A document that is certified as a true original 
and:
    (1) Conveys the appropriate seal or markings of the issuer;

[[Page 716]]

    (2) Has a means to validate the authenticity of the document by a 
reference or source number;
    (3) Is a notarized legal document or other document approved by a 
Judge Advocate, other members of the armed forces designated by law and 
regulations to have the powers set forth in 10 U.S.C 1044a, or other 
eligible persons in accordance with 10 U.S.C. 1044a; or
    (4) Has the appropriate certificate of authentication by a U.S. 
Consular Officer in the foreign country of issuance which attests to the 
authenticity of the signature and seal.
    Certified English translation. See requirements for certified 
document.
    CHC. Medical care provided through the TRICARE program including 
networks of CHC professionals, institutions, pharmacies, and suppliers 
to provide access to high-quality health care services.
    Child. A legitimate child, illegitimate child, stepchild, or adopted 
child of the sponsor, who is younger than 21 years of age. If 21 or 
older, the child may remain eligible if the child is:
    (1) 21 or 22 years old and enrolled in a full-time course of higher 
learning;
    (2) 21 or older but incapable of self-support because of a mental or 
physical incapacity that existed before the 21st birthday; or
    (3) 21 or 22 years old and was enrolled full-time in an accredited 
institution of higher learning but became incapable of self-support 
because of a mental or physical condition while a full-time student.
    Civilian employee. DoD civilian employees, as defined in 5 U.S.C. 
2105 are individuals appointed to positions by designated officials. 
Appointments to appropriated fund positions are either permanent or 
time-limited and the employees are on full-time, part-time, or 
intermittent work schedules. In some instances, the appointments are 
seasonal with either a full-time, part-time, or intermittent work 
schedule. Positions are categorized further as Senior Executive Service 
(SES), Competitive Service, and Excepted Service positions. In addition, 
DoD employs individuals paid from NAFs, as well as foreign national 
citizens outside the United States, its territories, and its 
possessions, in DoD activities overseas. The terms and conditions of 
host-nation citizen employment are governed by controlling treaties, 
agreements, and memoranda of understanding with the foreign nations.
    Civilian noncombatant personnel. Personnel who have been authorized 
to accompany military forces of the United States in regions of 
conflict, combat, and contingency operations and who are liable to 
capture and detention by the enemy as POWs.
    Commissary. A benefit granted to eligible personnel in accordance 
with this part and DoD Instruction 1330.17 (available at http://
www.dtic.mil/ whs/directives/corres/ pdf/133017p.pdf).
    Competitive service positions. See 5 U.S.C. 2102.
    Contingency operation. Defined in Joint Publication 1-02 (available 
at http://www.dtic.mil/ doctrine/new_pubs/ jp1_02.pdf).
    Contractor employee. An employee of a firm, or individual under 
contract or subcontract to the DoD, designated as providing services or 
support to the Department.
    Contractors authorized to accompany the force. Defined in Joint 
Publication 1-02.
    Cross-servicing. Agreement amongst all uniformed services to assist 
Service members, regardless of the Service member's responsible 
uniformed service, and their dependents, for all ID card or benefits-
related matters, when appropriate and not restricted by subpart B of 
this part.
    Defense Enrollment Eligibility Reporting System (DEERS). The 
definitive centralized person data repository of identity and enrollment 
and eligibility verification data and associated contact information on 
members of the DoD Components, members of the Uniformed Services, and 
other personnel as designated by the DoD, and their eligible dependents 
and associated contact information.
    Dependent. An individual whose relationship to the sponsor leads to 
entitlement to benefits and privileges.
    Direct Care (DC). Medical care that TRICARE provides through the 
health care resources of the uniformed services through their clinics 
and MTFs. This does not include any medical care

[[Page 717]]

provided through the TRICARE CHC network.
    Dissolution decree. An order or other appropriate document from a 
court of competent jurisdiction in the United States (or U.S. territory 
or possession) that grants dissolution of a marriage.
    Divorce decree. An order or other appropriate document from a court 
of competent jurisdiction in the United States (or U.S. territory or 
possession) that grants termination of a marriage.
    Dual eligible. A person who is entitled to Medicare Part A and 
enrolled in Medicare Part B and is also entitled to TRICARE medical 
benefits, in accordance with section 706 of Public Law 106-398 and 
Public Law 102-190, ``National Defense Authorization Act for Fiscal 
Years 1992 and 1993'' (available at http://thomas.loc.gov/cgi-bin/query/ 
C?c102:./temp/c102UvpYbH).
    Dual status. A person who is entitled to privileges from two sources 
(e.g., a retired member, who is also the dependent of an active duty 
member; a retired-with-pay member who is employed overseas as a civilian 
by the U.S. Government and is qualified for logistical support because 
of that civilian employment; a member of a Reserve Component who is an 
eligible dependent of an active duty military sponsor; or a child, who 
is the natural child of one sponsor and the stepchild and member of a 
household of another sponsor).
    Eligibility documentation. Properly certified birth certificate or 
certificate of live birth authenticated by attending physician or other 
responsible person from a U.S. hospital or a MTF showing the name of at 
least one parent; properly certified marriage certification; properly 
certified final decree of divorce, dissolution, or annulment of marriage 
and statements attesting to nonremarriage and status of employer-
sponsored healthcare; court order for adoption or guardianship; 
statement of incapacity from a physician or personnel or medical 
headquarters of sponsor's parent uniformed service; letter from school 
registrar; retirement orders (providing entitlement to retired pay is 
established) or DD Form 214 ``Certificate of Release or Discharge from 
Active Duty;'' DD Form 1300, ``Report of Casualty;'' certification from 
the Department of Veterans' Affairs of 100 percent disabled status; 
orders awarding Medal of Honor (MOH); formal determination of 
eligibility for Medicare Part A benefits from the Social Security 
Administration (SSA); civilian personnel records; and invitational 
travel orders.
    Entitlements. Rights or authorities that are provided based on 
legislative statute.
    Entry level separation. As defined in DoD Instruction 1332.14, 
``Enlisted Administrative Separations'' (available at http://
www.dtic.mil/ whs/directives/corres/ pdf/133214p.pdf), an enlisted 
service member is considered in an entry-level status during the first 
180 days of continuous active military service, or the first 180 days of 
continuous active service after a service break of more than 92 days of 
active service. A Service member of a Reserve Component who is not on 
active duty or who is serving under a call or order to active duty for 
180 days or less begins entry-level status upon enlistment in a Reserve 
Component. Entry-level status for such a Service member of a Reserve 
Component terminates as follows:
    (1) 180 days after beginning training if the Service member is 
ordered to active duty for training for one continuous period of 180 
days or more; or
    (2) 90 days after the beginning of the second period of active duty 
training if the Service member is ordered to active duty for training 
under a program that splits the training into two or more separate 
periods of active duty. For the purposes of characterization of service 
or description of separation, the Service member's status is determined 
by the date of notification as to the initiation of separation 
proceedings.
    Excepted service positions. Defined in 5 U.S.C. 2103.
    Exchange. A benefit that is extended to eligible individuals in 
accordance with DoD Instruction 1330.21.
    Family member. An individual who receives benefits based on his or 
her association to a sponsor. A family member is often a dependent.
    Federal employee. Defined in 5 U.S.C. 2105.
    Federally controlled facility. Defined in Office of Management and 
Budget

[[Page 718]]

(OMB) Memorandum M-05-24, ``Implementation of Homeland Security 
Presidential Directive (HSPD) 12--Policy for a Common Identification 
Standard for Federal Employees and Contractors'' (available at http://
www.whitehouse.gov/ sites/default/files/omb/ memoranda/fy2005/m05-
24.pdf).
    Federally controlled information systems. (1) An information 
technology system (or information system), as defined by the Federal 
Information Security Management Act of 2002 (44 U.S.C. 3502(8)).
    (2) Information systems used or operated by an agency or by a 
contractor of an agency or other organization on behalf of an agency (44 
U.S.C. 3544(a)(1)(A)).
    Financial dependency determination. Service-level process used to 
determine whether the financial dependency of a dependent on a sponsor 
meets the requirement for benefits eligibility.
    Foreign affiliate. A foreign national, including foreign civilian, 
foreign contractor, or foreign uniformed services personnel, who is 
sponsored by their government in accordance with DoD Directive 5230.20, 
``Visits and Assignments of Foreign Nationals'' (available at http://
www.dtic.mil/ whs/directives/corres/ pdf/523020p.pdf) through an 
official visit, assignment, temporary duty, school, training, policy 
board, or other defined agreement to work or reside on a DoD facility, 
or require access to DoD networks on-site or remotely.
    Foreign affiliate. A foreign national, including foreign civilian, 
foreign contractor, or foreign uniformed services personnel, who is 
sponsored by their government in accordance with DoD Directive 5230.20, 
``Visits and Assignments of Foreign Nationals'' (available at http://
www.dtic.mil/ whs/directives/corres/ pdf/523020p.pdf) through an 
official visit, assignment, temporary duty, school, training, policy 
board, or other defined agreement to work or reside on a DoD facility, 
or require access to DoD networks on-site or remotely.
    Foreign national civilians and contractors. A category of personnel 
that are CAC-eligible if sponsored by their government as part of an 
official visit or assigned to work on a DoD facility and/or require 
access to DoD networks both on site or remotely (remote access must be 
on an exception only basis for this category).
    Former member. An individual who is eligible to receive retired pay, 
at age 60, for non-regular service pursuant to 10 U.S.C. chapter 1223 
but who has been discharged and who maintains no military affiliation. 
These former members, at age 60, and their eligible dependents are 
entitled to medical care, commissary, exchange, and MWR privileges. 
Under age 60, they and their eligible dependents are entitled to 
commissary, exchange, and MWR privileges only.
    Former spouse. An individual who was married to a uniformed services 
member for at least 20 years, and the member had at least 20 years of 
service creditable toward retirement, and the marriage overlapped as 
follows:
    (1) 20 years marriage, 20 years creditable service for retirement, 
and 20 years overlap between the marriage and the service (referred to 
as 20/20/20). The benefits eligibility begins on the date of divorce;
    (2) 20 years marriage, 20 years creditable service for retirement, 
and 15 years overlap between the marriage and the service (referred to 
as 20/20/15). The benefits eligibility begins on the date of divorce; or
    (3) A spouse whose marriage was terminated from a uniformed service 
member who has their eligibility to receive retired pay terminated as a 
result of misconduct based on Service-documented abuse of the spouse and 
has 10 years of marriage, 20 years of creditable service for retirement, 
10 years of overlap between the marriage and the service (referred to as 
10/20/10). The benefits eligibility begins on the date of divorce.
    Foster child. A child without parental support and protection, 
placed with a person or family, usually by local welfare services or by 
court order. The foster parent(s) do not have custody, nor is there an 
adoption, but they are expected to treat the foster child as they would 
their own in regard to food, housing, clothing, and education. This is a 
non-medically entitled dependent.
    Full-time student. A child who has not attained the age of 23, who 
is enrolled in a full-time course of study at an institution of higher 
learning approved

[[Page 719]]

by the administering Secretary and is, or was at the time of the 
member's or former member's death, dependent on the member or former 
member for more than 50 percent of the child's support.
    Full-time work schedule. Full-time employment with a basic 40-hour 
work week.
    Inactive National Guard (ING). Part of the Army National Guard. 
These individuals are Reservists who are attached to a specific National 
Guard unit, but who do not participate in training activities. On 
mobilization, they shall mobilize with their assigned units. These 
members muster with their units once a year. Issuance of DD Form 1173-1 
``United States Uniformed Services Identification and Privilege Card 
(Guard and Reserve Family Member)'' to ING dependents is mandatory.
    Incapacitated person. An individual who is impaired by physical 
disability, mental illness, mental deficiency, or other causes that 
prevent sufficient understanding or capacity to competently manage his 
or her own affairs.
    Individual Ready Reserve (IRR). Trained individuals who have 
previously served in the active component or Selected Reserve (SelRes) 
and have time remaining on their military service obligation. Includes 
volunteers who do not have time remaining on the military service 
obligation, but are under contractual agreement to be a member of the 
IRR. These individuals are mobilization assets and may be called to 
active duty pursuant to the provisions of 10 U.S.C. chapter 1209. 
Issuance of DD Form 1173-1 to IRR dependents is mandatory.
    Institution of higher learning. A college, university, or similar 
institution, including a technical or business school, offering post 
secondary-level academic instruction that leads to an associate or 
higher degree, if the school is empowered by the appropriate State 
education authority under State law to grant an associate or higher 
degree. When there is no State law to authorize the granting of a 
degree, the school may be recognized as an institution of higher 
learning if it is accredited for degree programs by a recognized 
accrediting agency. The term also includes a hospital offering 
educational programs at the post secondary level regardless of whether 
the hospital grants a post secondary degree. The term also includes an 
educational institution that is not located in a State that offers a 
course leading to a standard college degree or equivalent and is 
recognized as such by the Secretary of Education (or comparable 
official) of the country or other jurisdiction in which the institution 
is located.
    Intergovernmental Personnel Act personnel. Employees covered by 
Public Law 91-648, ``Intergovernmental Personnel Act of 1970.'' The 
Intergovernmental Personnel Act mobility program provides temporary 
assignment of personnel between the Federal Government and State and 
local governments, colleges and universities, tribal governments, 
federally funded research and development centers, and other eligible 
organizations.
    Intermittent work schedule. Employment without a regularly scheduled 
tour of duty.
    Invitational travel order (ITO). The document authorizing travel by 
individuals either not employed by the government or employed in 
accordance with 5 U.S.C. 5703 intermittently in the government's service 
as consultants or experts and paid on a daily basis, when actually 
employed. ITOs include the names of accompanying dependents who may be 
eligible for DoD benefits in accordance with DoD policy and reciprocal 
international agreements.
    Letter of authorization (LOA). A document generated by Synchronized 
Predeployment and Operational Tracker (SPOT) that states the intended 
length of assignment, planned use of government facilities and 
privileges, and name of the approving governmental official.
    Letter from a school registrar. A letter certifying enrollment in a 
full-time in-residence, or online course of study, leading to an 
associate degree or higher and listing an anticipated graduation date. 
Students attending two institutions less than full-time may not combine 
courses from both institutions to meet full-time student status. Most 
colleges and universities contract with third parties, such as the 
National Student Clearinghouse, to verify student enrollment. These 
third parties must

[[Page 720]]

comply with 20 U.S.C. 1232g and 34 CFR part 99 and are considered 
official agents of the institution for that purpose. Such documentation 
is considered equivalent to and accepted in lieu of a letter from the 
registrar's office. For graduate students, a letter of acceptance of 
enrollment signed by an authorized officer of the college or university 
is required to serve as the school letter.
    Marriage certificate. State-certified record of marriage.
    Medical sufficiency statement. A statement from a physician from a 
military treatment facility or approved TRICARE provider used in 
conjunction with eligibility and dependency determinations. The 
statement includes a recent medical or psychiatric evaluation and 
diagnosis, a statement of illness (including the date, child's age, and 
onset of incapacity), the current treatment being rendered, the 
prognosis for recovery, and the ability to become self-supporting.
    Medicare. Health insurance for people age 65 or older, under 65 with 
certain disabilities, and any age with end-stage renal disease. The 
different parts of Medicare help cover specific services if certain 
conditions are met.
    (1) Medicare part A. Covers hospice care, home health care, skilled 
nursing facilities, and inpatient hospital stays.
    (2) Medicare part B. Covers doctors' services, outpatient hospital 
care, and other medical services that Part A does not cover, such as 
physical and occupational therapy. Other examples include X-rays, 
medical equipment, or limited ambulance service.
    Member. An individual who is affiliated with a Service, either 
active duty, Reserve, active duty retired, or Retired Reserve. Retired 
members are not former members. Also referred to as the sponsor.
    MWR. A benefit that is extended to eligible individuals in 
accordance with DoD Instruction 1015.10, ``Military Morale, Welfare, and 
Recreation (MWR) Programs'' (available at http://www.dtic.mil/ whs/
directives/corres/ pdf/101510p.pdf).
    National Agency Check with Inquiries (NACI). Is the minimum 
investigation conducted by the Office of Personnel Management (OPM) for 
federal employment in nonsensitive positions and for individuals 
requiring eligibility for logical and physical access. The NACI consists 
of a records check (of designated agencies of the Federal Government 
that maintain record systems containing information relevant to making a 
personnel security determination) plus Written Inquiries to law 
enforcement agencies, former employers and supervisors, references and 
schools covering the last 5 years.
    Nonappropriated fund (NAF) employees. NAF employees are Federal 
employees within the Department who are paid from NAFs. 5 U.S.C. 2105 
explains the status of NAF employees as Federal employees.
    Non-regular service retirement. A person who, as a member of the 
Ready Reserve, serves on active duty or performs active service, after 
the date of the enactment of sections 647 and 1106 of Public Law 110-181 
and may receive retired pay in accordance with 10 U.S.C. 12731. Under 
these provisions the eligibility age for applying for retired pay shall 
be reduced below 60 years of age by 3 months for each aggregate of 90 
days on which the member performs in any fiscal year after such date, 
providing the applicant is at least 50 years of age. However, the member 
must be age 60 to qualify for CHC and CD.
    Notarization. The official fraud-deterrent process that assures that 
the signatures on a document are authentic and valid. The signature of 
any such person acting as notary, together with the title of that 
person's offices, is prima facie evidence that the signature is genuine, 
that the person holds the designated title, and that the person is 
authorized to perform a notarial act. A person acting as notary must be 
impartial.
    Part-time work schedule. Part-time employment of 16 to 32 hours a 
week under a schedule consisting of an equal or varied number of hours 
per day.
    Permanent employee. Career or career-conditional appointment in the 
Competitive or SES or an appointment in the Excepted Service that 
carries no restrictions or conditions.
    Placement agency (recognized by the Secretary of Defense). An 
authorized placement agency in the United States or U.S. territories or 
possessions that

[[Page 721]]

must be licensed for adoption by the State, territory, or possession in 
which the adoption procedures will be completed. In all other locations, 
a request for recognition must be approved by the appropriate Assistant 
Secretary of the Military Department concerned or an appropriate 
official who has been delegated approval authority.
    Placement agreement. An agreement between the State and the 
parent(s) placing the child in the legal custody of the parent(s). To 
establish the child as a pre-adoptive child, the placement agreement 
must include the intent to adopt.
    Pre-adoptive child. With respect to determinations of dependency 
made on or after October 5, 1994, an unmarried person who is placed in 
the home of the member or former member by a placement agency 
(recognized by the Secretary of Defense) or by any other source 
authorized by State or local law to provide adoption placement, in 
anticipation of the legal adoption of the child by the member or former 
member, and:
    (1) Has not attained the age of 21; or
    (2) Has not attained the age of 23, is enrolled in a full-time 
course of study at an institution of higher learning approved by the 
administering Secretary and is, or was at the time of the member's or 
former member's death, in fact dependent on the member or former member 
for over one-half of the child's support; or
    (3) Is incapable of self-support because of a mental or physical 
incapacity that occurs while a dependent of a member or former member 
and is, or was at the time of the member's or former member's death, in 
fact dependent on the member or former member for over one-half of the 
child's support.
    Privileges. Benefits or advantages allowed based on position, 
authority, relationship, or status and which may be removed by proper 
authority. Privileges are not necessarily ``rights'' specifically 
granted by law.
    Ready Reserve. Military members of the National Guard and Reserve, 
organized in units or as individuals, liable for recall to active duty 
to augment the active components in time of war or national emergency. 
The Ready Reserve consists of three Reserve Component subcategories: The 
SelRes, the IRR, and the ING.
    Remarried parent. A dependent parent of a deceased military member 
who loses dependency-based eligibility for benefits on remarriage.
    Retired Reserve entitled to pay at age 60 (Gray Area Retirees). 
Reserve members who have completed 20 qualifying years for retirement 
and are entitled to receive pay at age 60, but have not yet reached age 
60. Reserve Retirees and their dependents receive commissary, MWR, and 
exchange benefits until the sponsor receives retired pay. Individuals 
may be recalled to active duty in accordance with 10 U.S.C.
    Seasonal employment. Annually recurring periods of work of less than 
12 months each year. Seasonal employees generally are permanent 
employees who are placed in non-duty or non-pay status and recalled to 
duty in accordance with pre-established conditions of employment. 
Seasonal employees may have full-time, part-time, or intermittent work 
schedules.
    Selected Reserve (SelRes). Those National Guard and Reserve units 
and individuals within the Ready Reserve designated by their respective 
Services and approved by the Chairman of the Joint Chiefs of Staff, as 
so essential to initial wartime missions that they have priority over 
all other Reserves. They must be prepared to mobilize within 24 hours. 
The issuance of DD Form 1173-1 to their dependents and participation in 
the Guard and Reserve DEERS Enrollment Program are mandatory.
    Service Project Officer (SPO). The uniformed services, National 
Guard and Reserve Component, and agency-level office that coordinates 
with OUSD(P&R) on policy and functional matters related to DEERS, 
RAPIDS, and Trusted Associate Sponsorship System (TASS), and manages ID 
card operations within the respective organization.
    SES positions. Appropriated fund positions in an agency classified 
above General Service-15 pursuant to 5 U.S.C. 5108 or in level 4 or 5 of 
the Executive Schedule, or an equivalent position, which is not required 
to be filled by an appointment by the President by and

[[Page 722]]

with the advice and consent of the Senate.
    Site security manager (SSM). The SPO-appointed individual that 
manages the daily operations at a RAPIDS site to include managing users, 
cardstock, and consumables.
    Sponsor. The person affiliated to the DoD, uniformed service, or 
other Federal agency who is delegated the responsibility for verifying 
and authorizing an applicant's need for an ID card. This term also 
refers to the prime beneficiary who derives eligibility based on 
individual status rather than dependence upon or relationship to another 
person. This beneficiary receives benefits based on the beneficiary's 
direct affiliation to the DoD or other unformed service.
    Spouse. A person legally married to a current, former, or retired 
uniformed service member, eligible civilian employee, or other eligible 
individual in accordance with subpart C of this part, regardless of 
gender or State of residence.
    Standby Reserve. Personnel who maintain their military affiliation 
without being in the Ready Reserve, who have been designated key 
civilian employees, or who have a temporary hardship or disability. 
These individuals are not required to perform training and are not part 
of units. These individuals are trained and could be mobilized, if 
necessary, to fill manpower needs in specific skills.
    Stepchild. A natural or adopted child of a spouse of a sponsor and 
who qualifies as a child.
    Surviving dependent. The dependent of a member who died while on 
active duty under orders that specified a period of more than 30 days, 
or a member who died while in a retired with-pay status.
    Temporary assignment. An appointment for a specified period not to 
exceed 1 year. A temporary assignment can be extended up to a maximum of 
1 additional year.
    Transitional Health Care (THC). A healthcare system, formerly known 
as Transition Assistance Management Program (TAMP), instituted in 
section 502 of Public Law 101-510. It includes pre-separation and 
separation services, the Continued Health Care Benefit Program, a 
voluntary insurance program for sponsors and eligible dependents 
separating from active service; pre-separation counseling service for 
separating uniformed services members; and various other transitional 
initiatives. Uniformed service members separated as uncharacterized 
entry-level separations do not qualify for THC. Section 706 of Public 
Law 108-375 replaced the TAMP with the THC program. Section 651 of 
Public Law 110-181 included the 2-year commissary and exchange privilege 
for involuntarily separated uniformed service members. The DoD added MWR 
to the benefit set and extended the same benefits to the eligible 
dependents. To qualify for benefits under this program, individuals must 
be separated with service characterized as honorable or general under 
honorable conditions meeting the separation reasons identified in 10 
U.S.C. 1145. The THC program is a permanent program and made the medical 
eligibility 180 days for all eligible uniformed service members and 
eligible dependents. Enlisted uniformed service members discharged for 
reasons of misconduct, discharge in lieu of court-martial, or other 
reasons for which service normally is characterized as under other than 
honorable conditions are not eligible for transition benefits. Officers 
discharged as a result of resignation in lieu of trial by court-martial, 
or misconduct or moral or professional dereliction if the discharge 
could be characterized as under other than honorable conditions are not 
eligible for transition benefits. Pursuant to 10 U.S.C. 1145, the 
qualifying periods of active duty include:
    (1) A member who is involuntarily separated from active duty.
    (2) A member of a Reserve Component who is separated from active 
duty to which called or ordered in support of a contingency operation if 
the active duty is for a period of more than 30 days.
    (3) A member who is separated from active duty for which the member 
is involuntarily retained in accordance with 10 U.S.C. 12305 in support 
of a contingency operation.

[[Page 723]]

    (4) A member who is separated from active duty served pursuant to a 
voluntary agreement of the member to remain on active duty for a period 
of less than 1 year in support of a contingency operation.
    (5) A member who receives a sole survivorship discharge (as defined 
in 10 U.S.C. 1174); or
    (6) A member who is separated from active duty who agrees to become 
a member of the SelRes. Section 734 of Public Law 110-417, which took 
effect on October 14, 2008 extended THC benefits to a uniformed service 
member who is separated from active duty who agrees to become a member 
of the SelRes of the Ready Reserve of a Reserve Component.
    Trusted Agent (TA). An individual appointed by a TASM that serves as 
a sponsor for eligible populations within TASS, utilizes TASS to 
register data for the DD Form 1172-2 (available at http://www.dtic.mil/ 
whs/directives/infomgt/forms/ eforms/dd1172-2.pdf), re-verifies CAC 
holder affiliation, and revokes CACs.
    Trusted Agent Security Manager (TASM). An individual appointed by a 
SPO to oversee the activity for a specific TASS site and associated TAs. 
These individuals also serve in the TA role.
    Trusted Associate Sponsorship System (TASS) (formerly known as 
Contractor Verification System (CVS)). A Web application used to verify 
that CAC applicants have the appropriate government sponsorship for the 
purpose of issuing CACs. The TASS web interface automates the DD Form 
1172-2 for tracking the request process and updating DEERS with 
applicant information required for CAC issuance. The system also 
provides a mechanism for periodic re-verification of contractor 
eligibility to ensure that information is current and contractor CACs do 
not remain active when not appropriate. This capability will be expanded 
to support registration and background investigation confirmation for 
additional CAC eligible populations.
    United States. The 50 United States and the District of Columbia.
    Unmarried. A widow or widower who remarried and whose remarriage 
ended by death or divorce, or a former spouse of a sponsor whose 
subsequent remarriage ended by death or divorce.
    Unremarried. A widow or widower who has never remarried, or a former 
spouse whose only remarriage was to the same military sponsor. Periods 
of marriage in this case may be combined to document eligibility for 
former spouse benefits.
    U.S. territories and possessions. Puerto Rico, American Samoa, Guam, 
the Commonwealth of the Northern Mariana Islands, and the U.S. Virgin 
Islands.
    VA rating determination letter. A letter from the appropriate VA 
authorities that establishes that the uniformed service member has been 
rated as 100 percent disabled or incapable of pursuing substantially 
gainful employment by the VA.
    Verifying Official (VO). An individual who is responsible for 
validating eligibility of bona fide beneficiaries to receive benefits 
and entitlements.
    Voluntary acknowledgment of paternity. A document recognized by 
relevant and applicable State law as establishing legal paternity. Such 
documents must be certified as a ``true copy'' by the appropriate state 
office.
    Ward. An unmarried person who is placed in the legal custody of the 
member or former member as a result of an order of a court of competent 
jurisdiction in the United States (or a U.S. territory or possession) 
for a period of at least 12 consecutive months; is dependent on the 
member or former member for more than 50 percent of the person's 
support; resides with the member or former member unless separated by 
the necessity of uniformed service or to receive institutional care as a 
result of disability or incapacitation or under such other circumstances 
as the administering Secretary may by regulation prescribe; is not a 
dependent of a member or a former member under 10 U.S.C. 1072(2); and 
either:
    (1) Has not attained the age of 21;
    (2) Has not attained the age of 23 and is enrolled in a full-time 
course of study at an institution of higher learning approved by the 
administering Secretary; or
    (3) Is incapable of self-support because of a mental or physical 
incapacity that occurred while the person

[[Page 724]]

was considered a dependent of the member or former member.
    Widow. The female spouse of a deceased member of the uniformed 
Services.
    Widower. The male spouse of a deceased member of the uniformed 
Services.

[79 FR 709, Jan. 6, 2014, as amended at 81 FR 74875, Oct. 27, 2016]



Sec.  161.4  Policy.

    (a) It is DoD policy that a distinct DoD ID card shall be issued to 
uniformed service members, their dependents, DoD civilian employees, and 
other eligible individuals and will be used as proof of identity and DoD 
affiliation.
    (b) DoD ID cards shall serve as the Geneva Convention Card for 
eligible personnel in accordance with DoD Instruction 1000.1, ``Identity 
Cards Required by the Geneva Convention'' (available at http://
www.dtic.mil/ whs/directives/corres/ pdf/100001p.pdf).
    (c) DoD ID cards shall be issued through a secure and authoritative 
process in accordance with DoD Instruction 1000.25, ``DoD Personnel 
Identity Protection (PIP) Program'' (available at http://www.dtic.mil/ 
whs/directives/corres/ pdf/100025p.pdf).
    (d) The CAC, a form of DoD ID card, shall serve as the Federal 
Personal Identity Verification (PIV) card for DoD implementation of 
Homeland Security Presidential Directive 12, ``Policy for a Common 
Identification Standard for Federal Employees and Contractors'' 
(available at http://www.dhs.gov/ xabout/laws/gc_ 1217616624097.shtm).
    (e) ID cards, in a form distinct from the CAC, shall be issued and 
will serve as proof of identity and DoD affiliation for eligible 
communities that do not require the Federal PIV card that complies with 
Homeland Security Presidential Directive 12 and FIPS Publication 201-2, 
``Personal Identity Verification (PIV) of Federal Employees and 
Contractors'' (available at http://dx.doi.org/10.6028/ NIST.FIPS.201-2).

[79 FR 709, Jan. 6, 2014, as amended at 81 FR 74877, Oct. 27, 2016]



Sec.  161.5  Responsibilities.

    (a) The USD(P&R) shall:
    (1) Oversee implementation of the procedures within this part.
    (2) Establish overall policy and procedures for the issuance of ID 
cards to members of the uniformed services, their dependents, and other 
eligible individuals.
    (3) Establish minimum acceptable criteria for establishment and 
confirmation of personal identity, policy for the issuance of the DoD 
enterprise personnel identity credentials, and approve of additional 
systems under the PIP Program in accordance with DoD Instruction 
1000.25.
    (4) Act as the Principal Staff Assistant (PSA) for the DEERS, the 
RAPIDS, and the Personnel Identity Protection (PIP) Program in 
accordance with DoD Instruction 1000.25.
    (5) Maintain the DEERS data system in support of the Department of 
Defense in accordance with applicable law and directives.
    (6) Develop and field the required RAPIDS infrastructure and all 
elements of field support to issue ID cards including but not limited to 
software distribution, hardware procurement and installation, on-site 
and depot-level hardware maintenance, on-site and Web-based user 
training and central telephone center support, and telecommunications 
engineering and network control center assistance.
    (7) In coordination with the Under Secretary of Defense for 
Intelligence (USD(I)), the Under Secretary of Defense for Acquisition, 
Technology, and Logistics (USD(AT&L)), and the DoD Chief Information 
Officer (DoD CIO) establish policy and oversight for CAC life-cycle 
compliance with FIPS Publication 201-2.
    (8) Establish procedures that will uniquely identify personnel with 
specific associations with the Department of Defense and maintain the 
integrity of the unique personnel identifier in coordination with the 
DoD Components in accordance with DoD Directive 8320.03, ``Unique 
Identification (UID) Standards for a Net-Centric Department of Defense'' 
(available at http://www.dtic.mil/ whs/directives/corres/ pdf/
832003p.pdf).

[[Page 725]]

    (b) The Assistant Secretary of Defense for Reserve Affairs 
(ASD(RA)), under the authority, direction, and control of the USD(P&R), 
shall develop policies and establish guidance for the National Guard and 
Reserve Component communities that affect benefits, entitlements, 
identity, and ID cards.
    (c) The Deputy Assistant Secretary of Defense for Military Community 
and Family Policy (DASD(MC&FP)), under the authority, direction, and 
control of the USD(P&R), shall develop policy and procedures to 
determine eligibility for access to DoD programs for MWR; commissaries; 
exchanges; lodging; children and youth; DoD schools; family support; 
voluntary and post-secondary education; and other military community and 
family benefits that affect identity and ID cards.
    (d) The Director, Defense Human Resources Activity (DHRA), under the 
authority, direction, and control of the USD(P&R) and in addition to the 
responsibilities in paragraph (h) of this section, shall, in accordance 
with DoD Instruction 1000.25:
    (1) Develop policies and procedures for the oversight, funding, 
personnel staffing, direction, and functional management of the PIP 
Program.
    (2) Coordinate with the Principal Under Secretary of Defense for 
Health Affairs (ASD(HA)), and the ASD(RA) on changes to enrollment and 
eligibility policy and procedures pertaining to personnel, medical, and 
dental issues that affect the PIP Program.
    (3) Develop policies and procedures to support the functional 
requirements of the PIP Program, DEERS, and the DEERS client 
applications.
    (4) Secure funding in support of new requirements to support the PIP 
Program or the enrollment and eligibility functions of DEERS and RAPIDS.
    (5) Approve the addition or elimination of population categories 
eligible for ID cards in accordance with applicable law.
    (6) Establish the type and form of ID card issued to eligible 
populations categories and administer pilot programs to determine the 
suitable form of ID card for newly identified populations.
    (7) Determines and maintains a list of forms of documentation that 
are acceptable for the purpose of eligibility verification, in 
accordance with applicable law.
    (8) Through the Director, Defense Manpower Data Center:
    (i) Provides and maintains training on the examination and 
inspection of documentation for the purpose of eligibility verification 
for DEERS enrollment, record management, and ID card issuance.
    (ii) Supports and maintains the development of automated data feeds 
to DEERS that serve as authoritative eligibility sources for applicable 
DoD ID card-eligible personnel.
    (iii) Supports and maintains the development of the Real-time 
Automated Personnel Identification System (RAPIDS) as the application 
used to incorporate and collect eligibility documentation.
    (e) The USD(AT&L) shall:
    (1) Update the Defense Federal Acquisition Regulation Supplement 
(DFARS), current edition (available at http://www.acq.osd.mil/ dpap/
dars/dfarspgi/ current/index.html) to support requirements for CAC and 
Homeland Security Presidential Directive 12 for contracts.
    (2) Ensure that the requirement for contractors to return CACs at 
the completion or termination of each individual's support on a specific 
contract is included in all applicable contracts.
    (f) The USD(I) shall:
    (1) Establish policy for the use of DoD issued ID cards for physical 
access purposes in accordance with DoD 5200.08-R, ``Physical Security 
Program'' (available at http://www.dtic.mil/ whs/directives/corres/ pdf/
520008r.pdf).
    (2) Establish policy for military, civilian, and contractor employee 
background investigation, submission, and adjudication across the 
Department of Defense, in compliance with Homeland Security Presidential 
Directive 12 and Office of Personnel Management Memorandum, ``Final 
Credentialing Standards for Issuing Personal Identity Verification (PIV) 
Cards Under HSPD-12'' (available at http://www.opm.gov/ investigate/
resources/final_ credentialing_standards.pdf).
    (g) The DoD CIO shall:
    (1) In coordination with the USD(I), USD(P&R), and USD(AT&L), 
establish policy and oversight for CAC life-cycle

[[Page 726]]

compliance with Federal Information Processing Standards Publication 
201-1.
    (2) Provide guidance regarding the use of DoD and non-DoD 
identification credentials on DoD information systems, including the 
Federal PIV cards, for authenticating to DoD network accounts and DoD 
private Web sites.
    (3) Ensure that the DoD Public Key Infrastructure (PKI) conforms to 
all applicable FIPS to the greatest extent possible.
    (h) The OSD and DoD Component heads other than the Secretaries of 
the Military Departments, shall:
    (1) Develop and implement Component-level procedures for DoD 
directed policies and statutory requirements to support benefits 
eligibility through DEERS.
    (2) Develop and implement Component-level ID card life-cycle 
procedures to comply with the provisions of this Instruction.
    (3) Ensure all DoD employees, uniformed service members, and all 
other eligible CAC applicants, including contractor employees and other 
affiliate CAC applicants, have met the background investigation 
requirements referenced in paragraph (a)(3) of Sec.  161.6 of this part 
prior to approving CAC sponsorship and registration. Background 
investigation status must be verified and documented by the sponsor or 
sponsoring organization in conjunction with application for CAC 
issuance.
    (4) Establish processes and procedures as part of the normal check-
in and check-out process for collection of the CAC for all categories of 
DoD personnel and contractor employees when there is a separation, 
retirement, termination, contract termination or expiration, or CAC 
revocation. Since CACs contain personally identifiable information 
(PII), they shall be treated and controlled in accordance with 32 CFR 
part 310, and DoD 5200.1-M, Volume 4, ``DoD Information Security 
Program: Controlled Unclassified Information (CUI)'' (available at 
http://www.dtic.mil/ whs/directives/corres/ pdf/520001_vol4.pdf). CACs 
shall be returned to any RAPIDS issuance location for proper disposal in 
a timely manner once surrendered by the CAC holder.
    (5) Provide appropriate space and staffing for all DoD ID card 
issuing operations, as well as reliable telecommunications to and from 
the Defense Information Systems Agency managed Non-Classified Internet 
Protocol Router Network.
    (6) Provide funding for CAC cardstock, printer consumables, and 
electromagnetically opaque sleeves to Defense Manpower Data Center 
(DMDC).
    (7) Protect cardstock and consumables in accordance with the 
guidelines and standards issued and maintained by DMDC.
    (8) In accordance with FIPS Publication 201-2, provide 
electromagnetic opaque sleeves or other comparable technologies to 
protect against any unauthorized contactless access to the cardholder 
unique identification number stored on the CAC.
    (9) Manage the distribution and locations of CAC personal 
identification number (PIN) reset workstations.
    (10) To the maximum extent possible, and in accordance with DoD 
Components' designated accrediting authority guidelines, ensure 
networked workstations are properly configured and available for CAC 
holders to use the User Maintenance Portal-Post Issuance Portal (UMP-
PIP) service.
    (11) Oversee supervision of TASS TAs and TA security managers and 
ensure the number of contractors overseen by any TA is manageable.
    (12) Comply with the provisions of this part and provide timely and 
accurate support to the provisions of this part.
    (13) Ensure that the policies and procedures in subpart D of this 
part are implemented to protect the privacy of individuals in the 
collection, use, maintenance, and dissemination of personally 
identifiable information, in accordance with 32 CFR part 310.
    (i) The Secretaries of the Military Departments; Director, Division 
of Commissioned Corps Personnel and Readiness, USPHS; and Administrator, 
NOAA, shall:
    (1) Appoint project officers from a level that represents the 
Service position of the active, National Guard, and Reserve Components 
for personnel policy to serve on the Joint Uniformed

[[Page 727]]

Services Personnel Advisory Committee.
    (2) Comply with the provisions of this part and other related policy 
and procedural guidance from the Department of Defense.
    (3) Coordinate with the Director, DoDHRA, through the Joint 
Uniformed Services Personnel Advisory Committee, to determine if the 
list of acceptable eligibility documentation needs to be amended to add 
new documents or remove outdated documents.
    (4) Ensure that the policies and procedures in this subpart are 
implemented to protect the privacy of individuals in the collection, 
use, maintenance, and dissemination of personally identifiable 
information, in accordance with 32 CFR part 310.

[79 FR 709, Jan. 6, 2014, as amended at 81 FR 74878, Oct. 27, 2016]



Sec.  161.6  Procedures.

    (a) The DoD ID card life cycle shall be supported by an 
infrastructure that is predicated on a systems-based model for 
credentialing as described in FIPS Publication 201-2. Paragraphs (a)(1) 
through (7) of this section represent the baseline requirements for the 
life cycle of all DoD ID cards. The specific procedures and sequence of 
order for these items will vary based on the applicant's employment 
status or affiliation with the DoD and the type of ID card issued. 
Detailed procedures of the ID card life cycle for each category of 
applicant and type of ID card shall be provided by the responsible 
agency.
    (1) Sponsorship and eligibility. Sponsorship shall incorporate the 
processes for confirming eligibility for an ID card. The sponsor is the 
person affiliated with the DoD or other Federal agency who takes 
responsibility for verifying and authorizing the applicant's need for an 
ID card. Applicants for a CAC must be sponsored by a DoD government 
official or employee.
    (2) Registration and enrollment. Sponsorship and enrollment 
information on the ID card applicant shall be registered in DEERS prior 
to card issuance.
    (3) Background investigation. Background investigation is required 
for those individuals eligible for a CAC. A background investigation is 
not currently required for those eligible for other forms of DoD ID 
cards. Sponsored CAC applicants shall not be issued a CAC without a 
favorably adjudicated background investigation stipulated in FIPS 
Publication 201-2. Applicants that have been denied a CAC based on an 
unfavorable adjudication of the background investigation may submit an 
appeal in accordance with FIPS Publication 201-2 and Office of Personnel 
Management Memorandum, ``Final Credentialing Standards for Issuing 
Personal Identity Verification Cards under HSPD-12.''
    (4) Identity and eligibility verification. Identity and eligibility 
verification shall be completed at a RAPIDS workstation. Verifying 
officials (VOs) shall inspect identity and eligibility documentation and 
RAPIDS shall authenticate individuals to ensure that ID cards are 
provided only to those sponsored and with a current affiliation with the 
DoD. RAPIDS shall also capture uniquely identifying characteristics that 
bind an individual to the information maintained on that individual in 
DEERS and to the ID card issued by RAPIDS. These characteristics may 
include, but are not limited to, digital photographs and fingerprints.
    (5) Issuance. ID cards shall be issued at the RAPIDS workstation 
after all sponsorship, enrollment and registration, background 
investigation (CAC only), and identity and eligibility verification 
requirements have been satisfied.
    (6) Use and maintenance. ID cards shall be used as proof of identity 
and DoD affiliation to facilitate access to DoD facilities and systems. 
Additionally, ID cards shall represent authorization for entitled 
benefits and privileges in accordance with DoD policies.
    (7) Retrieval and revocation. ID cards shall be retrieved by the 
sponsor or sponsoring organization when the ID card has expired, when it 
is damaged or compromised, or when the card holder is no longer 
affiliated with the DoD or no longer meets the eligibility requirements 
for the card. The active status of an ID card shall be revoked within 
the DEERS and RAPIDS infrastructure and the PKI certificates on the CAC 
shall be revoked.

[[Page 728]]

    (b) The guidelines and restrictions of this paragraph apply to all 
forms of DoD ID cards.
    (1) Any person willfully altering, damaging, lending, 
counterfeiting, or using these cards in any unauthorized manner is 
subject to fine or imprisonment or both, as prescribed in 18 U.S.C. 499, 
506, 509, 701, and 1001. Section 701 of 18 U.S.C. prohibits 
photographing or otherwise reproducing or possessing DoD ID cards in an 
unauthorized manner, under penalty of fine or imprisonment or both. 
Unauthorized or fraudulent use of ID cards would exist if bearers used 
the card to obtain benefits and privileges to which they are not 
entitled. Examples of authorized photocopying include photocopying of 
DoD ID cards to facilitate medical care processing, check cashing, 
voting, tax matters, compliance with 50 U.S.C. appendix 501 (also known 
as ``The Service member's Civil Relief Act''), or administering other 
military-related benefits to eligible beneficiaries. When possible, the 
ID card will be electronically authenticated in lieu of photographing 
the card.
    (2) International agreements (including status-of-forces agreements) 
and host-nation law may limit and/or define the types of support 
available to personnel in overseas areas. Although an ID card may be 
used to verify eligibility in the United States for access to, for 
example, commissary or exchange facilities, the use of such facilities 
overseas may be limited to persons who are stationed or performing 
temporary duty in a foreign country under official orders in support of 
a mutual defense mission with the host nation. ID cards shall be issued 
only for the purposes identified in and in accordance with this 
Instruction, and the Heads of the DoD Components shall use other means, 
such as ration cards, to implement provisions in international 
agreements or to prevent violations of applicable host-nation law. ID 
cards shall not be issued for the sole purpose of implementing 
provisions of international agreements or restrictions based on 
applicable host-nation law.
    (3) All ID cards are property of the U.S. Government and shall be 
returned upon separation, resignation, firing, termination of contract 
or affiliation with the DoD, or upon any other event in which the 
individual no longer requires the use of such ID card.
    (4) To prevent any unauthorized use, ID cards that are expired, 
invalidated, stolen, lost, or otherwise suspected of potential or actual 
unauthorized use shall be revoked in DEERS along with the PKI 
certificates on the CACs immediately revoked.
    (5) There are instances where graphical representations of ID cards 
are necessary to facilitate the DoD mission. When used and distributed, 
the replicas must not be the same size as the ID card, must have the 
word ``SAMPLE'' written on them, and shall not contain an individual's 
PII. All SAMPLE ID cards must be maintained in a controlled environment 
and shall not serve as a valid ID.
    (6) Individuals within the DoD who have multiple personnel category 
codes (e.g., an individual who is both a reservist and a contractor) 
shall be issued a separate ID card in each personnel category for which 
they are eligible. Multiple current ID cards of the same form (e.g., 
CAC) shall not be issued or exist for an individual under a single 
personnel category code.
    (7) ID cards shall not be amended, modified, or overprinted by any 
means. No stickers or other adhesive materials are to be placed on 
either side of an ID card. Holes shall not be punched into ID cards, 
except when a CAC has been requested by the next of kin for an 
individual who has perished in the line of duty. A CAC provided to next 
of kin shall have the status of the card revoked in DEERS, have the 
certificates revoked, and have a hole punched through the integrated 
circuit chip before it is released to the next of kin.
    (8) An ID card shall be in the personal custody of the individual to 
whom it was issued at all times. If required by military authority, it 
shall be surrendered for ID or investigation.
    (c) CAC migration to Federal PIV requirements. The DoD is migrating 
the CAC to meet the Federal requirements for credentialing contained 
within Homeland Security Presidential Directive 12 and FIPS Publication 
201-2. Migration will take place over multiple years as the card 
issuance hardware, software, and supporting systems and

[[Page 729]]

processes are upgraded. Successful migration will require coordination 
and collaboration within and among all CAC communities (e.g., personnel 
security, operational security, industrial security, information 
security, physical security, and information technology). The 
organizations listed in this section will support the migration in 
conjunction with the responsibilities listed in Sec.  161.5:
    (1) The Director, DMDC shall:
    (i) Procure and distribute CAC consumables, including card stock, 
electromagnetically opaque sleeves, and printer supplies, commensurate 
with funding received from the DoD Components.
    (ii) In coordination with the Office of the Under Secretary of 
Defense for Policy, establish an electronic process for securing CAC 
eligibility information on foreign government military, employee, or 
contract support personnel whose visit status and background 
investigation has been confirmed, documented, and processed in 
accordance with DoD Directive 5230.20, ``Visits and Assignments of 
Foreign Nationals'' (available at http://www.dtic.mil/ whs/directives/
corres/ pdf/523020p.pdf).
    (iii) In accordance with FIPS Publication 201-2, electronically 
capture and store source documents in the identity-proofing process at 
the accession points for eligible ID card holders.
    (iv) Implement modifications to the CAC applets and interfaces, add 
contactless capability to the CAC platform and implement modifications 
to the CAC topology to support compliance with FIPS Publication 201-2.
    (v) Establish and implement procedures for capturing biometrics 
required to support CAC issuance, which includes fingerprints and facial 
images specified in FIPS Publication 201-2 and National Institute of 
Standards and Technology Special Publication 800-76-1, ``Biometric Data 
Specification for Personal Identity Verification'' (available at http://
csrc.nist.gov /publications/nistpubs/ 800-76-1/SP800-76-1_ 012407.pdf).
    (vi) In coordination with the Executive Manager for DoD Biometrics 
and the Office of the USD(AT&L), implement the capability to obtain two 
segmented images (primary and secondary) fingerprint minutiae from the 
full 10-print fingerprints captured as part of the initial background 
investigation process for CAC issuance.
    (vii) Maintain a capability for a CAC holder to reset or unlock PINs 
from a system outside of the CAC issuance infrastructure.
    (2) The Executive Manager for DoD Biometrics, as appointed by the 
Secretary of the Army as DoD Executive Agent for DoD Biometrics in 
accordance with DoD Directive 8521.01E, ``Department of Defense 
Biometrics'' (available at http://www.dtic.mil/ whs/directives/corres/ 
pdf/852101p.pdf), shall:
    (i) Establish biometric standards for collection, storage, and 
subsequent transmittal of biometric information in accordance with DoD 
Directive 8521.01E (available at http://www.dtic.mil/ whs/directives/
corres/ pdf/852101p.pdf).
    (ii) In coordination with the USD(P&R), the USD(I), and the Heads of 
the DoD Components, establish capability for biometric collection and 
enrollment operations to support CAC issuance in accordance with 32 CFR 
part 310 and National Institute of Standards and Technology Special 
Publication 800-76-1 (available at http://csrc.nist.gov/ publications/
nistpubs/ 800-76-1/SP800-76-1_012407.pdf).
    (3) The Identity Protection and Management Senior Coordinating Group 
shall:
    (i) Monitor the CAC and identity management related activities 
outlined within this Instruction in accordance with DoD Instruction 
1000.25 (available at http://www.dtic.mil/ whs/directives/corres/ pdf/
100025p.pdf).
    (ii) Maintain a configuration management process for the CAC and its 
related components to monitor DoD compliance with FIPS Publication 201-
2.

[79 FR 709, Jan. 6, 2014, as amended at 81 FR 74878, Oct. 27, 2016]



       Subpart B_DoD Identification (ID) Cards: ID Card Life-Cycle



Sec.  161.7  ID card life-cycle procedures.

    (a) Sponsorship and eligibility. In accordance with this part, 
sponsorship shall incorporate the processes for confirming eligibility 
for an ID card. The sponsor is the person affiliated with

[[Page 730]]

the DoD or other Federal agency who takes responsibility for verifying 
and authorizing the applicant's need for an ID card. Applicants for a 
CAC shall be sponsored by a DoD Government official or employee.
    (1) The population categories and specific ID cards for which 
applicants are eligible are listed in Appendix 1 of this section. The 
majority of these populations are eligible to be sponsored for an ID 
card based on either their employment status with the DoD or their 
authorization to receive DoD benefits and entitlements. Examples of 
these population categories include, but are not limited to: Uniformed 
services personnel; DoD civilian employees; military retirees; certain 
DoD beneficiaries; and the eligible dependents for these categories.
    (2) Specific populations, listed in paragraph (c)(2)(ii) of Appendix 
1 of this section who are eligible to submit for the ``U.S. DoD/
Uniformed Service ID Card'' may only be sponsored if they meet 
additional criteria. Examples of these population categories include DoD 
contractors, non-DoD Federal civilians, State employees, and other non-
DoD personnel that have an affiliation with the DoD other than through 
employment or contract. Eligibility for these approved population 
categories is based on the DoD Government sponsor's determination of the 
type and frequency of access required to DoD facilities or networks. For 
the populations described in this paragraph, the applicant's sponsor 
must confirm that the applicant meets one of the requirements in 
paragraphs (a)(2)(i) and (iii) of this section:
    (i) Both physical access to a DoD facility and access, via logon, to 
DoD networks on-site or remotely. Access to the DoD network must require 
the use of a computer with Government-controlled configuration or use of 
a DoD-approved remote access procedure in accordance with the Defense 
Information Systems Agency Security Technical Implementation Guide, 
``Secure Remote Computing'' (available at http://iase.disa.mil/ stigs/a-
z.html under ``Remote. . .'').
    (ii) Remote access, via logon, to a DoD network using DoD-approved 
remote access procedures.
    (iii) Physical access to multiple DoD facilities or multiple non-DoD 
federally controlled facilities on behalf of the DoD (applicable to DoD 
contractors only) on a recurring basis for a period of 6 months or more.
    (A) The frequency of ``recurring basis'' for access shall be 
determined by the DoD Component concerned in coordination with 
installation security policies.
    (B) CAC eligibility for applicants requiring physical access to 
multiple DoD facilities on a recurring basis for less than 6 months are 
risk-based decisions that shall be made by the DoD Component concerned 
in coordination with installation security policies. These applicants 
may instead be eligible for local or regional base passes in accordance 
with Office of the Under Secretary of Defense for Intelligence (USD(I)) 
and local installation security policies and procedures.
    (b) Registration and enrollment. In accordance with this part, 
sponsorship and enrollment information about the ID card applicant shall 
be registered in the DEERS prior to card issuance.
    (1) For uniformed services personnel and DoD civilians, all 
submissions to DEERS must be made electronically via an authorized data 
source feed (e.g., Civilian Personnel Management Service). Data source 
feeds for additional population categories shall be approved and 
incorporated by the Office of the USD(P&R) (OUSD(P&R)) as they become 
available.
    (2) The population categories that are not registered via an 
authorized data source feed will be registered in DEERS via the RAPIDS 
using the DD Form 1172-2 or via the TASS (formerly known as CVS, as 
described in Sec.  161.8 of this subpart.
    (c) Background Investigation. In accordance with this subpart and 
DoDI 5200.46, ``DoD Investigative and Adjudicative Guidance for Issuing 
the Common Access Card (CAC)'' (available at: http://www.dtic.mil/whs/ 
directives/corres/pdf/ 520046p.pdf), a background investigation is 
required for those individuals eligible for a CAC. A background 
investigation is not currently required for those eligible for other 
forms of DoD ID cards. The use of the CAC, as the DoD Federal personal 
identity

[[Page 731]]

verification (PIV) card, is governed and supported by additional 
policies when compared to non-CAC ID cards. Sponsored CAC applicants 
shall not be issued a CAC without the required background investigation 
stipulated in DoDI 5200.46 and FIPS Publication 201-2.
    (1) A background investigation shall be initiated by the sponsoring 
organization before a CAC can be issued. The mechanisms required to 
verify completion of background investigation activities for DoD, 
military, and civilian CAC populations are managed within the DoD human 
resources and personnel security communities and are linked to the CAC 
issuance process. An automated means is not currently in place to 
confirm the vetting for populations other than DoD military and civilian 
personnel such as CAC-eligible contractors and non-DoD Federal civilian 
affiliates. When data is not available within the CAC issuance 
infrastructure on the background investigation status for an applicant, 
the sponsor shall be responsible for confirming that the required 
background investigation procedures comply with the DoD Instruction 
5200.46 and FIPS Publication 201-2 before a CAC is authorized for 
issuance.
    (2) Issuance of a CAC requires, at a minimum, the completion of the 
Federal Bureau of Investigation (FBI) fingerprint check with favorable 
results and successful submission of a NACI (or investigation approved 
in Federal Investigative Standards) to the Office of Personnel 
Management (OPM). Completed background investigations for CAC issuance 
shall be adjudicated in accordance with DoD Instruction 5200.46 and 
Office of Personnel Management Memorandum, ``Final Credentialing 
Standards for Issuing Personal Identity Verification Cards under HSPD-
12'' (available at http://www.opm.gov/ investigate/resources/final_ 
credentialing_standards.pdf).
    (3) Except for uniformed services members, special considerations 
for conducting background investigations of non-U.S. nationals are 
addressed in DoD Instruction 5200.46. Non-U.S. person CAC applicants 
that do not meet the criteria to complete a NACI (e.g., U.S. residency 
requirements), must meet one of the criteria in paragraph (c)(3)(i) or 
(ii) of this section prior to CAC issuance. CACs issued to these non-
U.S. persons shall display a blue stripe as described in appendix 2 of 
this section. Procedures for the acceptance of this CAC shall be in 
accordance with DoD Instruction 5200.46 and Office of Personnel 
Management Memorandum, ``Final Credentialing Standards for Issuing 
Personal Identity Verification Cards under HSPD-12.'' The specific 
background investigation conducted on the non-U.S. person may vary based 
on governing international agreements. Non-U.S. persons must:
    (i) Possess (as foreign military, employee, or contract support 
personnel) a visit status and security assurance that has been 
confirmed, documented, and processed in accordance with international 
agreements pursuant to DoD Directive 5230.20, ``Visits and Assignments 
of Foreign Nationals'' (available at http://www.dtic.mil/whs/ 
directives/corres/pdf/ 523020p.pdf).
    (ii) Meet (as direct or indirect DoD hire personnel overseas) the 
investigative requirements for DoD employment as recognized through 
international agreements pursuant to Volume 1231 of DoD Instruction 
1400.25, ``DoD Civilian Personnel Management System: Employment of 
Foreign Nationals'' (available at http://www.dtic.mil/ whs/directives/
corres/ html/CPM_table2.html). In addition to these investigative 
requirements, a fingerprint check against the FBI criminal history 
database, an FBI investigations files (name check search), and a name 
check against the Terrorist Screening Database shall be required prior 
to CAC issuance in accordance with Office of Personnel Management 
Memorandum, ``Final Credentialing Standards for Issuing Personal 
Identity Verification Cards under HSPD-12.''
    (d) Identity and eligibility verification. In accordance with this 
part, identity and eligibility verification shall be completed at a 
RAPIDS workstation. VOs shall inspect identity and eligibility 
documentation and RAPIDS shall authenticate individuals to ensure that 
ID cards are provided only to those sponsored and who have a current 
affiliation with the DoD. RAPIDS shall also capture uniquely identifying

[[Page 732]]

characteristics that bind an individual to the information maintained in 
DEERS and to the ID card issued by RAPIDS. These characteristics may 
include, but are not limited to, digital photographs and fingerprints.
    (1) Identity documents. Applicants for initial ID card issuance 
shall submit two identity documents in original form as proof of 
identity. A VO at a RAPIDS workstation shall inspect and verify the 
documents presented by the applicant before ID card issuance. The 
identity documents must come from the list of acceptable primary and 
secondary documents included in the FIPS Publication 201-2 PIV Identity 
Proofing and Registration Requirements, or, for non-U.S. persons, other 
sources as outlined within paragraph (d)(1)(ii) of this section. Copies 
of the identity documentation may be accepted so long as they are 
certified documents. In accordance with FIPS Publication 201-2 PIV 
Identity Proofing and Registration Requirements, the identity documents 
shall be neither expired nor cancelled. The primary identity document 
shall be a State or Federal Government-issued picture ID. The identity 
documents shall be inspected for authenticity and scanned and stored in 
the DEERS in accordance with the DMDC, ``Real-time Automated Personnel 
Identification System (RAPIDS) User Guide'' upon issuance of an ID card. 
The requirement for the primary identity document to have a photo cannot 
be waived for initial ID card issuance, consistent with applicable 
statutory requirements. Identity documentation requirements for renewal 
or re-issuance are provided in paragraph (e)(3) of this section. When it 
has been determined that a CAC applicant has purposely misrepresented or 
not provided the applicant's true identity, the case shall be referred 
by the relevant RAPIDS Service Project office (SPO) to the sponsoring 
DoD or other Uniformed Service Component organization. The DoD or other 
Uniformed Service Component organization concerned shall initiate an 
investigation or provide appeals procedures as appropriate. Exceptions 
to the identity documentation requirements for initial ID card issuance 
are provided in paragraphs (d)(1)(i) and (ii) of this section:
    (i) Children. Children under the age of 18 applying for a dependent 
ID card are only required to provide documentation for the initial 
verification of eligibility or proof of relationship to the sponsor 
described in paragraph (d)(2) of this section.
    (ii) Documentation for non-U.S. persons. At foreign locations, 
eligible non-U.S. persons may not possess identity documentation from 
the FIPS Publication 201-2 PIV Identity Proofing and Registration 
Requirements required for ID card issuance. These individuals shall 
still provide personal ID as required by the intent of this paragraph 
(d)(1). Non-U.S. persons within the continental United States (CONUS) 
shall present a valid (unexpired) foreign passport as the primary form 
of identity source documentation. DoD organizations based outside the 
CONUS should work with the local consular affairs office to determine 
guidelines for the appropriate identity documentation for eligible non-
U.S. persons in accordance with agreements with host nations. It is 
recommended that a foreign passport be used as the primary form of 
identity source documentation for these individuals. The requirement for 
the primary identity document to have a photo cannot be waived. 
Additional documentation used to verify identity must be original or 
certified true copies. All documentation not in English must have a 
certified English translation.
    (2) Eligibility documents. ID card applicants may be required to 
provide documentation as initial verification of eligibility for 
benefits or proof of relationship to the sponsor. The eligibility 
documents shall be inspected for authenticity by the VO and scanned and 
stored in DEERS in accordance with the procedures in DMDC, ``Real-time 
Automated Personnel Identification System (RAPIDS) User Guide.'' 
Specifications and the types of documents and how they are utilized to 
verify eligibility for a member or dependent based on their status 
(e.g., Retired, Reservist, spouse, former spouse, child) shall be 
established by the uniformed services subject to the guidelines in this 
subpart. All documentation used to verify eligibility must be original 
or

[[Page 733]]

certified true copies. All documentation not in English must have a 
certified English translation. Eligibility documentation is not required 
when DEERS can verify eligibility via an authoritative source or 
process.
    (3) DEERS verification. The VO shall utilize DEERS to verify 
affiliation and eligibility for benefits as described in subpart C of 
this part.
    (4) Biometrics. In accordance with DoD Instruction 1000.25, ID card 
applicants shall provide two fingerprint biometric scans and a facial 
image, to assist with authenticating the applicant's identity and to 
bind the information maintained on that individual in DEERS and to the 
ID card issued by RAPIDS. These requirements shall be integrated into 
the ID card issuance processes in the following manner:
    (i) A digitized, full-face passport-type photograph will be captured 
for the facial image and stored in DEERS and shall have a plain white or 
off-white background. No flags, posters, or other images shall appear in 
the photo. All ID cards issued will display a photograph.
    (ii) Two fingerprints are captured for storage within DEERS for 
applicable ID card applicants. The right and left index fingers shall 
normally be designated as the primary and secondary finger, 
respectively. However, if those fingers cannot be imaged, the primary 
and secondary designations shall be taken in the following order of 
priority: Right thumb, left thumb, right middle finger, left middle 
finger, right ring finger, left ring finger, right little finger, left 
little finger.
    (iii) If two fingerprints cannot be captured, the facial image will 
be the alternative for authenticating ID card applicants and ID card 
holders during the issuance process. Additionally, when verification or 
capture of biometrics is not possible, authorization will be provided by 
the RAPIDS SSM's digital signature. This transaction shall be subject to 
audit by DMDC and the uniformed services.
    (e) Issuance. In accordance with this part, ID cards shall be issued 
at the RAPIDS workstation after all sponsorship, enrollment and 
registration, background investigation (CAC only), and identity and 
eligibility verification requirements have been satisfied. Initial 
issuance of an ID card to an applicant will be contingent on satisfying 
the criteria in paragraphs (a) through (d) of this section.
    (1) Cross-servicing. The uniformed services agree to cross-service 
the issuance of ID cards when affiliation and eligibility can be 
verified in DEERS. When eligibility cannot be verified through DEERS, 
presentation of documentation shall be required. The uniformed services 
shall restrict cross-servicing for verification of the DD Form 1172-2 
and eligibility documentation to the parent uniformed service for the 
categories in paragraphs (e)(1)(i) through (viii) of this section:
    (i) Initial application for permanently incapacitated individuals 
over age 21 and temporarily incapacitated children over age 21.
    (ii) All dependent parents and parents-in-law.
    (iii) Illegitimate child of a male sponsor, whose paternity has not 
been judicially determined.
    (iv) Illegitimate child of spouse or sponsor.
    (v) Unremarried and unmarried former spouses applying for initial 
issuance of an ID card.
    (vi) Retiree from other services, and former members not currently 
enrolled in DEERS.
    (vii) Surviving dependents of Reserve Retirees on the sponsor's 60th 
birthday.
    (viii) Abused dependents.
    (ix) Wards.
    (2) Expiration dates--(i) CACs. Except as noted in paragraphs 
(e)(2)(i)(A) and (B) of this section, CACs shall be issued for a period 
not to exceed 3 years from the date of issuance or contract expiration 
date, whichever is shorter. Unfunded contract options shall be 
considered in the determination of the length of contract. For example, 
a contractor hired under DoD contract with a base year plus 2 option 
years shall be issued a CAC with a 3-year expiration. The expiration 
date of the PKI certificates on the CAC shall match the expiration date 
on the card.
    (A) CACs issued to DoD civilian employees, contractors, and other 
eligible

[[Page 734]]

personnel assigned overseas or deploying in support of contingency 
operations shall have an expiration date coinciding with their 
deployment period end date.
    (B) Service Academy students shall be issued 4-year cards with 3-
year certificates.
    (ii) Non-CAC ID cards. (A) DD Form 1173, ``United States Uniformed 
Services ID and Privilege Card'' issued to dependents of DoD civilian 
employees, contractors, and other eligible personnel assigned overseas 
or deploying in support of contingency operations shall have an 
expiration date coinciding with their deployment period end date.
    (B) An indefinite DD Form 1173 will be issued to a dependent of 
retired Service members who are either 75 years of age or permanently 
incapacitated in accordance with 10 U.S.C. 1060b.
    (C) All other non-CAC ID cards shall be given expiration dates in 
accordance with the guidance listed on www.cac.mil.
    (3) Renewal and reissuance. Consistent with applicable law, the 
applicant for ID renewal or reissuance shall be required to surrender 
the current DoD ID card that is up for renewal or reissuance except as 
indicated for lost and stolen ID cards in paragraph (e)(3)(iii) of this 
section. To authenticate renewal or reissuance applicants, the VO shall 
visually compare the applicant against the facial image stored in DEERS. 
For applicants who have fingerprint biometrics stored in DEERS, live 
fingerprint biometrics samples shall be checked against the applicant's 
DEERS record. If the biometric check confirms the identity of the 
renewal or reissuance applicant then no additional documentation is 
required to verify identity other than the ID card that is being renewed 
or reissued (documentation may still be required to verify or re-verify 
eligibility as described in paragraph (d)(2) of this section). As a 
general practice for renewal or re-issuance, two fresh fingerprint 
biometric captures may be stored for applicable personnel through the 
initial procedures in paragraph (d)(4)(ii) of this section to support 
DMDC's biometric update schedule.
    (i) An ID card holder may apply for a renewal starting 90 days prior 
to the expiration of a valid ID. The SPO can provide exceptions to this 
requirement.
    (ii) An ID card shall be reissued when printed information requires 
changes (e.g., pay grade, rank, change in eligibility), when any of the 
media (including printed data, magnetic stripe, bar codes, or integrated 
circuit chip) becomes illegible or inoperable, or when a CAC is known or 
suspected to be compromised.
    (iii) An ID card shall be reissued when it is reported lost or 
stolen. The individual reporting a lost or stolen ID card shall be 
required to provide a valid (unexpired) State or Federal Government-
issued picture ID as noted in paragraph (d)(1) of this section, 
consistent with applicable law, when available. If the individual is 
unable to present the required identity documentation, a biometric 
verification shall be used as proof of identity as described in 
paragraph (e)(3)(iii)(A) of this section. The VO shall verify the 
cardholder's identity against the biometric information stored in DEERS 
and confirm the expiration date of the missing ID card. The individual 
shall also be required to present documentation from the local security 
office or ID card sponsor confirming that the ID card has been reported 
lost or stolen. This documentation must be scanned and stored in DEERS. 
For dependents, the DD Form 1172-2 serves as the supporting 
documentation for a lost or stolen card. For individuals sponsored 
through TASS, the replacement ID card shall have the same expiration 
date as the lost or stolen card.
    (A) If no identity documentation is available but biometric 
information (facial image or fingerprint when applicable) in the DEERS 
database can be verified by the VO, an ID card can be reissued to the 
individual upon the additional approval of a SSM. This transaction shall 
be digitally signed and audited.
    (B) If biometric information cannot be verified, the requirements 
for initial issuance shall apply or a temporary card may be issued in 
accordance with paragraph (e)(4) of this section.
    (4) Temporary cards--(i) Temporary issuance of a CAC. During 
contingency

[[Page 735]]

operations, in the event there is no communication with the DEERS 
database or the certificate authority, a temporary CAC may be issued 
with an abbreviated expiration date for a maximum of 10 days. The 
temporary card will not have PKI certificates and will be replaced as 
soon as the member can reach an online RAPIDS station or communications 
have been restored. Additionally, the temporary CAC does not communicate 
or imply eligibility to any DoD benefit. This capability will be enabled 
only at affected RAPIDS sites and must have approval granted by DMDC.
    (ii) Temporary issuance of a Uniformed Services Identification card. 
There are multiple scenarios under which a temporary Uniformed Services 
Identification card may be issued. The uniformed services shall develop 
standard processes and procedures for scenarios requiring issuance of a 
temporary DD Forms 2765 ``Department of Defense/Uniformed Services 
Identification and Privilege Card'' or DD 1173, including but not 
limited to those situations where the applicant needs to obtain the 
necessary legal documentation or the sponsor is unavailable to provide 
an authorizing signature.
    (5) Multiple cards. Individuals shall be issued a separate ID card 
for each population category for which they qualify as described in 
Appendix 1 of this section. In instances where an individual has been 
issued more than one ID card (e.g., an individual that is eligible for 
an ID card as both a Reservist and as a DoD contractor employee), only 
the ID card that most accurately depicts the capacity in which the 
individual is affiliated with the DoD should be utilized at any given 
time.
    (f) Use and maintenance. In accordance with this part, ID cards 
shall be used as proof of identity and DoD affiliation to facilitate 
access to DoD facilities and systems. Additionally, ID cards shall 
represent authorization for entitled benefits and privileges in 
accordance with DoD policies. The CAC, as the DoD Federal PIV card, is 
governed and supported by additional policies and infrastructure when 
compared to non-CAC ID cards. This section provides additional guidance 
on CAC use and maintenance:
    (1) Access. The granting of access privileges is determined by the 
facility or system owner as prescribed by the DoD.
    (2) Accountability. CAC holders will maintain accountability of 
their CAC at all times while affiliated with the DoD.
    (3) PKI. Using the RAPIDS platform, DoD PKI identity and PIV 
authentication certificates will be issued on the CAC at the time of 
card issuance in compliance with OPM Memorandum, ``Final Credentialing 
Standards for Issuing Personal Identity Verification Cards under HSPD-
12.'' Email signature, email encryption, or PIV authentication 
certificates may also be available on the CAC either upon issuance or at 
a later time. If the person receiving a CAC does not have an 
organization email address assigned to them, they may return to a RAPIDS 
terminal or use milConnect to receive their email certificate when the 
email address has been assigned. To help prevent inadvertent disclosure 
of controlled information, email addresses assigned by an organization 
shall comply with DoD Instruction 8500.2, ``Information Awareness (IA) 
Implementation'' (available at http://www.dtic.mil/whs/ directives/
corres/pdf/ 850002p.pdf).
    (4) milConnect. DoD has a self-service Web site available that 
allows an authenticated CAC holder to add applets to the CAC, change the 
email address, add/update Email Signature and Email Encryption 
Certificates, and activate the Personal Identity Verification (PIV) 
Authentication certificate. This capability can be utilized from any 
properly configured UNCLASSIFED networked workstation. The milConnect 
Web site is https://www.dmdc.osd.mil/milconnect.
    (5) CAC Personal ID Number (PIN) Reset. DoD has manned workstations 
capable of resetting the PINs of a CAC holder with a locked card or 
forgotten PIN. These workstations are intended to provide alternative 
locations for CAC holders to service their cards other than RAPIDS 
issuance locations. To authenticate cardholders, live biometric samples 
shall be checked against the biometrics stored in DEERS prior to 
resetting CACs. This process requires the presence of a CPR

[[Page 736]]

trusted agent (CTA) or TASM or RAPIDS VO or SSM.
    (g) Retrieval and revocation. In accordance with this part, ID cards 
shall be retrieved by the sponsor or sponsoring organization when the ID 
card has expired, when it is damaged or compromised, or when the card 
holder is no longer affiliated with the DoD or no longer meets the 
eligibility requirements for the card. The active status of the card 
shall be terminated within the DEERS and RAPIDS infrastructure. The CAC, 
as the DoD Federal PIV card, is governed and supported by additional 
policies and infrastructure when compared to non-CAC ID cards. This 
section provides additional guidance on CAC retrieval and revocation:
    (1) CACs shall be retrieved as part of the normal organizational or 
command-level check-out processes. The active status of the CAC shall 
also be terminated in special circumstances (e.g., absent without leave, 
unauthorized absence, missing in action) in accordance with organization 
or command-level security policies.
    (2) The DoD sponsor or sponsoring organization is ultimately 
responsible for retrieving CACs from their personnel who are no longer 
supporting their organization or activity. CAC retrieval will be 
documented and treated as personally identifiable information, in 
accordance with DoD Regulation 5200.1-R, and 32 CFR part 310 and 
receipted to a RAPIDS site for disposition in a timely manner.
    (3) Upon loss, destruction, or revocation of the CAC, the 
certificates thereon are revoked and placed on the certificate 
revocation list in accordance with Assistant Secretary of Defense for 
Networks and Information Integration Certificate Policy, ``X.509 
Certificate Policy for the United States Department of Defense'' 
(available at http://jitc.fhu.disa.mil/ pki/documents/dod_x509_ 
certificate_policy_ v9_0_9_ february_2005.pdf). All other situations 
that pertain to the disposition of the certificates are handled in 
accordance with Assistant Secretary of Defense for Networks and 
Information Integration Certificate Policy, ``X.509 Certificate Policy 
for the United States Department of Defense'' as implemented.

     Appendix 1 to Sec.  161.7--ID Card Descriptions and Population 
                         Eligibility Categories

    (a) Overview. Paragraphs (b) through (e) of this appendix contain 
information on the CAC type of ID card. The remaining paragraphs in the 
appendix contain information on all other versions of DoD enterprise-
wide ID cards. This appendix describes these cards and lists some of the 
categories of populations that are eligible to be sponsored for the 
cards under the guidelines described in paragraph (a) of Sec.  161.7; 
additional ID-card eligible categories are codified in subpart C of this 
part. RAPIDS accesses DEERS information collected by the DD Form 1172-2 
to generate all of the ID Cards identified in this appendix. The 
benefits and entitlements that support ID card eligibility for 
populations in this appendix are described in subpart C of this part. 
Guidelines and restrictions that pertain to all forms of DoD ID cards 
are included in this part.
    (b) Armed Forces of the United States Geneva Conventions ID Card--
(1) Description. This CAC is the primary ID card for uniformed services 
members and shall be used to identify the member's eligibility for 
benefits and privileges administered by the uniformed services as 
described in subpart C of this part. The CAC shall also be used to 
facilitate standardized, uniform access to DoD facilities, and 
installations in accordance with Directive Type Memorandum 09-012, 
``Interim Policy Guidance for DoD Physical Access Control'' (available 
at: http://www.dtic.mil/ whs/directives/corres/ pdf/DTM-09-012.pdf) and 
DoD 5200.08-R, ``Physical Security Program,'' and to computer systems in 
accordance with DoD Instruction 8520.02, ``Public Key Infrastructure 
(PKI) and Public Key (PK) Enabling,'' (available at: http://
www.dtic.mil/ whs/directives/corres/ pdf/852002p.pdf).
    (i) The card shall also serve as ID for purposes of Geneva 
Convention requirements in accordance with DoD Instruction 1000.01.
    (ii) If a member is captured as a hostage, detainee, or prisoner of 
war (POW), the card shall be shown to the capturing authorities, but, 
insofar as possible, should not be surrendered.
    (2) Eligibility. Those populations eligible for this type of CAC 
include:
    (i) Members of the regular components of the Military Services.
    (ii) Members of the Selected Reserve of the Ready Reserve of the 
Reserve Components.
    (iii) Members of the IRR of the Ready Reserve authorized in 
accordance with regulations prescribed by the Secretary of Defense to 
perform duty in accordance with 10 U.S.C. 10147.
    (iv) Uniformed services members of NOAA and USPHS.
    (c) U.S. DoD or Uniformed Services ID Card--(1) Description. This 
CAC is the primary ID

[[Page 737]]

card for eligible civilian employees, contractors, and foreign national 
affiliates and shall be used to facilitate standardized, uniform access 
to DoD facilities, and installations in accordance with Directive Type 
Memorandum 09-012, ``Interim Policy Guidance for DoD Physical Access 
Control'' and DoD 5200.08-R, ``Physical Security Program,'' and computer 
systems in accordance with DoD Instruction 8520.02, ``Public Key 
Infrastructure (PKI) and Public Key (PK) Enabling.''
    (2) Eligibility. (i) DoD civilian employees are eligible for this 
CAC, to include:
    (A) Individuals appointed to appropriated fund and NAF positions.
    (B) USCG and NOAA civilian employees.
    (C) Permanent or time-limited employees on full-time, part-time, or 
intermittent work schedules for 6 months or more.
    (D) SES, Competitive Service, and Excepted Service employees.
    (ii) Eligibility for additional populations shall be based on a 
combination of the personnel category and the DoD Government sponsor's 
determination of the type and frequency of access required to DoD 
networks and facilities described in paragraph (a) of Sec.  161.7 of 
this subpart. These personnel categories include:
    (A) Non-DoD civilian employees to include:
    (1) State employees working in support of the National Guard.
    (2) IPA employees.
    (3) Non-DoD Federal employees that are working in support of DoD but 
do not possess a Federal PIV card that is accepted by the sponsoring DoD 
Component. DoD Components shall obtain DHRA approval prior to 
sponsorship.
    (B) DoD contractors.
    (C) USCG and NOAA contractors.
    (D) Persons whose affiliation with DoD is established through:
    (1) Direct and Indirect Hiring Overseas. Non-U.S. citizens hired 
under an agreement with the host nation and paid directly by the 
uniformed services (direct hire) or paid by an entity other than the 
uniformed services for the benefits of the uniformed services (indirect 
hire).
    (2) Assignment as Foreign Military, Foreign Government Civilians, or 
Foreign Government Contractors to Support DoD Missions. Non-U.S. 
citizens who are sponsored by their government as part of an official 
visit or assignment to work with DoD.
    (3) Procurement Contracts, Grant Agreements or Other Cooperative 
Agreements. Individuals who have a established relationship between the 
U.S. Government and a State, a local government, or other recipient as 
specified in 31 U.S.C. 6303, 6304, and 6305.
    (d) U.S. DoD or Uniformed Services ID and Privilege Card--(1) 
Description. This CAC is the primary ID card for civilian employees, 
contractors, and foreign national military, as well as other eligible 
individuals entitled to benefits and privileges administered by the 
uniformed services as described in subpart C of this part. The CAC shall 
be used to facilitate standardized, uniform access to DoD facilities, 
and installations in accordance with Directive Type Memorandum 09-012, 
``Interim Policy Guidance for DoD Physical Access Control'' and DoD 
5200.08-R, ``Physical Security Program,'' and computer systems in 
accordance with DoD Instruction 8520.02, ``Public Key Infrastructure 
(PKI) and Public Key (PK) Enabling.''
    (2) Eligibility. Specific population categories are entitled to 
benefits and privileges, in accordance with subpart C of this part, and 
shall be eligible for this CAC, to include:
    (i) DoD and uniformed services civilian employees (both appropriated 
and non-appropriated) when required to reside in a household on a 
military installation within the CONUS, Hawaii, Alaska, Puerto Rico, and 
Guam.
    (ii) DoD and uniformed services civilian employees when stationed or 
employed and residing in foreign countries for a period of at least 365 
days.
    (iii) DoD contractors when stationed or employed and residing in 
foreign countries for a period of at least 365 days.
    (iv) DoD Presidential appointees who have been appointed with the 
advice and consent of the Senate.
    (v) Civilian employees of the Army and Air Force Exchange System, 
Navy Exchange System, and Marine Corps Exchange System and NAF activity 
employees of the Coast Guard Exchange Service.
    (vi) Uniformed and non-uniformed full-time paid personnel of the Red 
Cross assigned to duty with the uniformed services within the CONUS, 
Hawaii, Alaska, Puerto Rico, and Guam, when required to reside in a 
household on a military installation.
    (vii) Uniformed and non-uniformed, full-time, paid personnel of the 
Red Cross assigned to duty with the uniformed services in foreign 
countries.
    (viii) Foreign military who meet the eligibility requirement of 
paragraph (a)(2) of Sec.  161.7 and are in one of the categories in 
paragraphs (d)(2)(viii)(A) through (C) of this appendix. Those foreign 
military not meeting the eligibility requirements for CAC as described 
in paragraph (a)(2) of Sec.  161.7 shall be issued a DD Form 2765 as 
described in paragraph (l) of this appendix.
    (A) Active duty officers and enlisted personnel of North Atlantic 
Treaty Organization (NATO) and Partnership For Peace (PFP) countries 
serving in the United States under the sponsorship or invitation of the 
DoD or a Military Department.
    (B) Active duty officers and enlisted personnel of non-NATO 
countries serving in the United States under the sponsorship or 
invitation of the DoD or a Military Department.

[[Page 738]]

    (C) Active duty officers and enlisted personnel of NATO and non-NATO 
countries when serving outside the United States and outside their own 
country under the sponsorship or invitation of the DoD or a Military 
Department, or when it is determined by the major overseas commander 
that the granting of such privileges is in the best interests of the 
United States and such personnel are connected with, or their activities 
are related to, the performance of functions of the U.S. military 
establishment.
    (e) U.S. DoD or Uniformed Service Geneva Conventions ID Card for 
Civilians Accompanying the Armed Forces--(1) Description. This CAC 
serves as the DoD and/or Uniformed Services Geneva Conventions ID card 
for civilians accompanying the uniformed services and shall be used to 
facilitate standardized, uniform access to DoD facilities, and 
installations in accordance with Directive Type Memorandum 09-012, 
``Interim Policy Guidance for DoD Physical Access Control'' and DoD 
5200.08-R, ``Physical Security Program,'' and computer systems in 
accordance with DoD Instruction 8520.02, ``Public Key Infrastructure 
(PKI) and Public Key (PK) Enabling.''
    (2) Eligibility. The following population categories are eligible 
for this CAC:
    (i) Emergency-essential employees as defined in DoD Directive 
1404.10, ``DoD Civilian Expeditionary Workforce'' (available at http://
www.dtic.mil/whs/ directives/corres/ pdf/140410p.pdf).
    (ii) Contractors authorized to accompany the force (contingency 
contractor employees) as defined in Joint Publication 1-02 (available at 
http://www.dtic.mil/ doctrine/new_pubs/ jp1_02.pdf).
    (f) DD Form 2, ``Armed Forces of the United States Identification 
Card (Reserve).''--(1) Description. This is the primary ID card for RC 
members not eligible for a CAC. Benefits and privileges shall be 
administered by the uniformed services as described in subpart C of this 
part.
    (i) The DD Form 2S (RES) shall serve as ID for purposes of the 
Geneva Convention requirements in accordance with DoD Instruction 
1000.01.
    (ii) If a member is captured as a hostage, detainee, or POW, the DD 
Form 2S (RES), shall be shown to the capturing authorities, but, insofar 
as possible, should not be surrendered.
    (2) Eligibility. Those populations eligible for the DD Form 2S (RES) 
include:
    (i) Ready Reserve, who are not otherwise entitled to either DD Form 
2S (RET), ``Armed Forces of the United States Geneva Conventions 
Identification Card (Retired) (Blue),'' or a CAC.
    (ii) The Standby Reserve.
    (iii) The Reserve Officers' Training Corps College Program students 
that have signed a contract leading to military service.
    (g) DD Form 2S (Ret)--(1) Description. This is the primary ID card 
for retired uniformed services members entitled to retired pay. Benefits 
and privileges shall be administered by the uniformed services as 
described in subpart C of this part.
    (2) Eligibility. Members of the uniformed services who are entitled 
and in receipt of retired pay, or entitled and have waived their retired 
pay, are eligible for the DD 2S (RET).
    (h) DD Form 2, ``United States Uniformed Services Identification 
Card (Reserve Retired).''--(1) Description. This is the primary ID card 
for members of the National Guard or Reserves who have completed 20 
creditable years of service and have elected to be transferred to the 
Retired Reserve. They will qualify for pay at age 60, or earlier if they 
have qualified contingency service.
    (2) Eligibility. Members of the Reserve Components who are entitled 
to retired pay at age 60 (or earlier if they have qualified contingency 
service) and have not yet attained age 60 are eligible for the DD Form 2 
(Reserve Retired).
    (i) DD Form 1173--(1) Description. This is the primary ID card for 
dependents and other similar categories of individuals eligible for 
benefits and privileges administered by the uniformed services as 
described in subpart C of this part.
    (2) Eligibility. Specific population categories entitled to benefits 
and privileges as described in subpart C of this part are eligible for 
the DD Form 1173 to include:
    (i) Dependents of active duty Service members of the regular 
components, Reserve Component Service members on active duty for more 
than 30 days, and retirees.
    (ii) Surviving dependents of active duty members.
    (iii) Surviving dependents of retired military members.
    (iv) Surviving dependents of MOH recipients and surviving dependents 
of honorably discharged veterans rated by the Department of Veterans 
Affairs (VA) as 100 percent disabled from a uniformed services-connected 
injury or disease at the time of his or her death.
    (v) Accompanying dependents of foreign military.
    (vi) Dependents of authorized civilian personnel overseas.
    (vii) Other benefits eligible categories as described in subpart C 
of this part.
    (j) DD Form 1173-1, ``Department of Defense Guard and Reserve Family 
Member Identification Card.''--(1) Description. This is the primary ID 
card for dependents of Ready Reserve and Standby Reserve members not on 
active duty in excess of 30 days. When accompanied by a set of the 
sponsor's valid active duty orders, the card shall be used in place of a 
DD Form 1173 for a period of time not to exceed 270 days, if the member 
is called to active duty by congressional decree

[[Page 739]]

or Presidential call-up under 10 U.S.C. chapter 1209.
    (2) Eligibility. Eligible dependents of Reserve Component members 
and retirees as described in subpart C of this part are eligible for the 
DD Form 1173-1.
    (k) DD Form 2764, ``United States DoD/Uniformed Services Geneva 
Conventions Card.''--(1) Description. This is the primary ID for non-CAC 
eligible civilian noncombatant personnel who are deployed in conjunction 
with military operations overseas. The DD Form 2764 also replaces DD 
Form 489, ``Geneva Conventions Identity Card for Civilians Who Accompany 
the Armed Forces.''
    (2) Eligibility. Civilian noncombatant personnel who have been 
authorized to accompany U.S. forces in regions of conflict, combat, and 
contingency operations and who are liable to capture and detention by 
the enemy as POWs are eligible for the DD Form 2764 in accordance with 
DoD Instruction 1000.01.
    (l) DD Form 2765--(1) Description. This is the primary ID card for 
categories of individuals, other than current or retired members of the 
uniformed services, who are eligible for uniformed services benefits and 
privileges in their own right without requiring a current affiliation 
with another sponsor.
    (2) Eligibility. Those populations eligible for the DD Form 2765 
include:
    (i) Foreign national military personnel described in paragraph 
(d)(2)(viii) of this appendix that cannot meet all criteria for CAC 
issuance.
    (ii) Former members.
    (iii) Members eligible for transitional health care (THC). These 
individuals shall be eligible for DD Form 2765 (with a ``TA'' overstamp) 
showing expiration date for each benefit, as shown on the reverse of the 
card.
    (iv) MOH recipients.
    (v) DAV (rated 100 percent disabled by the Department of Veterans 
Affairs).
    (vi) Former spouse (that qualify as a DoD beneficiary).
    (vii) Civilian personnel in the categories listed in paragraphs 
(l)(2)(vii)(A) through (D) of this appendix:
    (A) Other U.S. Government agency civilian employees when stationed 
or employed and residing in foreign countries for a period of at least 
365 days.
    (B) Area executives, center directors, and assistant directors of 
the United Service Organization, when serving in foreign countries.
    (C) United Seaman's Service (USS) personnel in foreign countries.
    (D) Military Sealift Command (MSC) civil service marine personnel 
deployed to foreign countries on MSC-owned and -operated vessels.
    (m) DoD Civilian Retiree Card--(1) Description. This ID shall only 
be used to establish DoD civilian retiree identity and affiliation with 
the DoD.
    (2) Eligibility. Appropriated and NAF civilians that have retired 
from any DoD Service component or agency are eligible for the DoD 
Civilian Retiree Card. These civilians must have their retired status 
verified in DEERS before an ID card can be issued.
    (n) NOAA Retired Wage Mariner and Family Member Card--(1) 
Description. The NOAA Retired Wage Mariner and Family Member Card is a 
sub-category of the DoD Civilian Retiree Card and shall be used to 
establish identity and affiliation with the DoD and to identify the 
individual's eligibility for benefits and privileges administered by the 
uniformed services as described in subpart C of this part.
    (2) Eligibility. Retired Wage Mariners of NOAA and their dependents 
as described in subpart C of this part are eligible for the NOAA Retired 
Wage Mariners and Family Members Card.

           Appendix 2 to Sec.  161.7--Topology Specifications

    (a) Topology. Graphical representations of all CACs are maintained 
at www.cac.mil.
    (b) CAC stripe color coding. The CAC shall be color-coded as 
indicated in the Table to reflect the status of the holder of the card.
    (1) If a person meets more than one condition as shown in the Table, 
priority will be given to the blue stripe to denote a non-U.S. citizen 
unless the card serves as a Geneva Conventions card.
    (2) FIPS Publication 201-2 reserves the color red to distinguish 
emergency first responder officials. Until the DoD implementation of 
Homeland Security Presidential Directive 12 is complete, the color red 
will also be used to denote non-U.S. personnel in the same manner as the 
blue stripe in the Table (i.e., some cards with red stripes may continue 
to exist in circulation until the 3-year life cycle is complete).

                     Table--CAC Stripe Color Coding
------------------------------------------------------------------------
                                       U.S. military and DoD civilian
             No stripe               personnel or any personnel eligible
                                        for a Geneva Conventions card
------------------------------------------------------------------------
Blue..............................  Non-U.S. personnel, including DoD
                                     contract employees (other than
                                     those persons requiring a Geneva
                                     Conventions card).
------------------------------------------------------------------------
Green.............................  All U.S. citizen personnel under
                                     contract to the DoD (other than
                                     those persons requiring a Geneva
                                     Conventions card).
------------------------------------------------------------------------


[[Page 740]]

    (c) CAC printed statements--(1) Eligible individuals who are 
permanently assigned in foreign countries for at least 365 days (it 
should be noted that local nationals are in their home country, not a 
foreign country) will have the word ``OVERSEAS'' printed within the 
authorized patronage area of the CAC.
    (2) The authorized patronage area for eligible individuals 
permanently assigned within CONUS will be blank. Travel orders authorize 
access for these individuals while en route to the deployment site.
    (3) During a conflict, combat, or contingency operation, civilian 
employees with a U.S. DoD or Uniformed Services Geneva Conventions ID 
Card for Civilians Accompanying the Uniformed Services will be granted 
all commissary; exchange; MWR; and medical privileges available at the 
site of the deployment, regardless of the statements on the ID card. 
Contractor employees possessing this ID card shall receive the benefit 
of those commissary, exchange, MWR, and medical privileges that are 
accorded to such persons by international agreements in force between 
the United States and the host country concerned and their letter of 
authorization.
    (4) The medical area on the card for individuals on permanent 
assignment in a foreign country will contain the statement: ``When TAD/
TDY or stationed overseas on a space available fully reimbursable 
basis.'' However, civilian employees and contractor employees providing 
support when forward deployed during a conflict, combat, or contingency 
operation are treated in accordance with 10 U.S.C. 10147 and chapters 
1209 and 1223 and DoD Instruction 3020.41, ``Operational Contract 
Support'' (available at http://www.dtic.mil/ whs/directives/corres/ pdf/
302041p.pdf), and the Deputy Secretary of Defense Memorandum, ``Policy 
Guidance for Provision of Medical Care to Department of Defense Civilian 
Employees Injured or Wounded While Forward Deployed in Support of 
Hostilities'' (available at http://cpol.army.mil/library/ nonarmy/
dod_092407.pdf).
    (d) Blood type indicators. A blood type indicator is an optional 
data element on the ID card and will only appear on the card if the 
blood type is provided by an authoritative data source prescribed by 
TRICARE Management Activity.
    (e) Organ donor indicators. An organ donor indicator is an optional 
data element on the ID card and will only appear if the card applicant 
opts for this feature at the time of card issuance.

[79 FR 709, Jan. 6, 2014, as amended at 81 FR 74878, Oct. 27, 2016]



Sec.  161.8  ID card life-cycle roles and responsibilities.

    (a) General. This section provides the roles and responsibilities 
associated with a series of processes and systems that support the ID 
card life-cycle. The requirements provided in this section may be 
supplemented by military Service guidance, DoD Component-level 
procedures and DMDC procedural and system documentation on DEERS, 
RAPIDS, TASS, and CPR.
    (b) Separation of duties. The ID card life-cycle includes a 
requirement for a separation of duties to support the issuance process. 
This rule requires more than one person to serve in an official role 
during the sponsorship and enrollment and issuance processes. 
Authorizing a RAPIDS SSM or VO to exercise the duties of a TASS TASM, 
TA, or sponsor would allow a single individual to control the ID card 
issuance process, from record creation to card issuance. Individuals 
serving in the role of a RAPIDS SSM or VO shall not exercise the role of 
the TASS TASM or TA or the role of the signatory sponsor on the DD Form 
1172-2. (In the case of their own dependents, a RAPIDS SSM or VO can 
serve as the sponsor on the DD Form 1172-2 but cannot serve as the VO 
for card issuance.)
    (c) DD Form 1172-2. The DD Form 1172-2 shall be used to collect the 
information necessary to register ID card and CAC applicants in DEERS 
via RAPIDS who are not enrolled through an authorized personnel data 
feed or are not registered through TASS. The DD Form 577, ``Appointment/
Termination Record--Authorized Signature,'' shall be used to verify the 
sponsoring individual's signature, when verification through RAPIDS is 
unavailable. This form is to be used primarily for DEERS enrollment and 
verification of initial and continued association for dependents and DoD 
affiliates (e.g., foreign national military). The DD Form 1172-2 shall 
also be used to add benefits conditions for eligible personnel in 
accordance with DMDC, ``Real-time Automated Personnel Identification 
System (RAPIDS) User Guide'' and subpart C of this part. Retention and 
disposition of the DD Form 1172-2 shall be in accordance with the 
uniformed services' regulatory instructions. In the absence of 
electronic verification of sponsorship for the enrollment or 
reenrollment of dependents, the sponsor signing block 65 in

[[Page 741]]

Section 5 of the DD Form 1172-2 for the ID card applicant:
    (1) Shall be a uniformed services member, retiree, civilian employee 
working for the sponsoring organization, or an individual entitled to 
DoD benefits in their own right, without requiring relationship to 
another sponsor, as described in subpart C of this part.
    (2) Must be a DoD ID card or CAC holder.
    (3) Shall establish the applicant's initial and continued 
relationship to the sponsor, affiliation with DoD, and need for a CAC 
card in accordance with this subpart and DoD Component-level procedures.
    (d) TASS. TASS shall serve as the sponsorship and DEERS data 
registration tool for CAC-eligible DoD contractors and other populations 
as determined by the Director, DHRA. TASS employs an automated version 
of the DD Form 1172-2 to collect information necessary for DEERS 
enrollment. Organizations that use TASS shall adhere to the following 
guidelines on user roles:
    (1) Service Point of Contact (SPOC). A DoD Component that utilizes 
TASS shall appoint a SPOC for TASS management and operation. The SPOC 
shall coordinate with the DMDC to establish a site with TASS capability. 
The SPOC shall create policies, operating procedures, and other 
supporting documentation in support of the Service or agency-specific 
implementation. The SPOC will oversee TASM registration, and provide any 
other required field support. The TASS SPOC:
    (i) Must be a U.S. citizen.
    (ii) Must be a uniformed services member, civilian employee working 
for the sponsoring organization, or a DoD contractor providing 
management support to the service or agency implementing TASS (a 
contractor cannot perform the TA or TASM role).
    (iii) Must be capable of sending and receiving digitally signed and 
encrypted email.
    (iv) Must be a CAC holder.
    (v) Shall complete the training provided by DMDC for the TASM and TA 
roles.
    (2) TASM. The TASM will act as a TA and oversee the activity for 
TASS site TAs. A TASS TASM:
    (i) Must be a U.S. citizen.
    (ii) Must be a uniformed services member or a DoD civilian employee 
working for the sponsoring organization.
    (iii) Must be capable of sending and receiving digitally signed and 
encrypted email.
    (iv) Must be a CAC holder.
    (v) Shall complete the training provided by DMDC for the TASM role.
    (3) TA. TAs shall be sponsors for eligible populations within TASS 
and will utilize TASS to register data for the DD Form 1172-2, re-verify 
CAC holder affiliation, and revoke CACs in accordance with this part and 
the DMDC ``Contractor Verification System TASS (CVS) TASM/TA and 
Applicant User Guides, Version 3.03'' (available at https://
www.dmdc.osd.mil /appj/cvs/login). Sponsoring an applicant is a multi-
step process which includes establishing the individual's eligibility in 
accordance with paragraph (a) of Sec.  161.7 of this subpart and 
verifying that the individual has the necessary background investigation 
completed to be issued a CAC in accordance with paragraph (c) of Sec.  
161.7 of this subpart. A TASS TA:
    (i) Must be a U.S. citizen.
    (ii) Must be a uniformed services member, a DoD civilian employee 
working for the sponsoring organization, or a non DoD Federal agency 
employee approved by DHRA.
    (iii) Must be capable of sending and receiving digitally signed and 
encrypted email.
    (iv) Must be a CAC holder.
    (v) Shall complete the training provided by DMDC for the TA role.
    (vi) Shall manage no more than 100 active contractors at any given 
time within TASS. Exceptions to this limit can be authorized by the DoD 
Component concerned to address specific contract requirements that 
substantiate a need for a larger contractor-to-TA ratio. The DoD 
Component SPOC shall document any authorized exceptions to the 100-
contractors limit and shall, at a minimum, conduct annual audits on the 
oversight functions of these specific TAs.

[[Page 742]]

    (vii) Shall coordinate with their contracting personnel when 
establishing the contractor's initial and continued affiliation with DoD 
and need for CACs in accordance with agency or Component-level 
procedures.
    (viii) Shall coordinate with their contracting, human resources, or 
personnel security organizations to confirm that the appropriate 
background check has been completed for CAC applicants.
    (ix) Shall re-verify a CAC holder's need for a CAC every 6 months 
(180 days) within TASS.
    (x) Shall revoke the CAC within the TASS upon termination of 
employment or completion of affiliation with the DoD.
    (xi) Shall ensure that the CAC is retrieved upon the CAC holder's 
termination of employment or completion of affiliation with the DoD.
    (e) RAPIDS. RAPIDS must be operated in accordance with DMDC, ``Real-
time Automated Personnel Identification System (RAPIDS) User Guide.'' 
RAPIDS shall be supported by:
    (1) SSM. The SSM shall manage the daily operations at a RAPIDS site 
to include managing users, cardstock, and consumables. The SPO shall 
assign a primary and secondary SSM to each site to ensure the site 
continues to function in the absence of one of the SSMs. The SSM shall 
perform all responsibilities of a RAPIDS user (VO), as well as all SSM 
responsibilities. The SSM shall:
    (i) Be a U.S. citizen.
    (ii) Be a uniformed services member, civilian employee working for 
the sponsoring organization, or a DoD contractor.
    (iii) Be a CAC holder.
    (iv) Complete the training provided by DMDC for the SSM and VO 
roles.
    (v) Be responsible for supporting RAPIDS functions delineated in 
DMDC, ``Real-time Automated Personnel Identification System (RAPIDS) 
User Guide.''
    (vi) Must have a favorably adjudicated NACI.
    (2) VO. The VO shall complete identity and eligibility verification 
and card issuance functions in accordance with this part. The VO:
    (i) Must be a U.S. citizen.
    (ii) Must be a uniformed services member, civilian employee working 
for the sponsoring organization, or a DoD contractor.
    (iii) Must be a CAC holder.
    (iv) Shall complete the training provided by DMDC for the VO role.
    (v) Be responsible for supporting RAPIDS functions delineated in 
DMDC, ``Real-time Automated Personnel Identification System (RAPIDS) 
User Guide.''
    (f) CPR. Organizations that utilize CPR shall adhere to the 
guidelines in this section on user roles:
    (1) CPR project officer. The CPR project officer (CPO) shall be 
appointed by the Service or Agency as the focal point for day-to-day CPR 
management and operation. The CPO:
    (i) Must be a U.S. citizen.
    (ii) Must be a uniformed services member, civilian employee working 
for the sponsoring organization, or a DoD contractor.
    (iii) Must be a CAC holder.
    (iv) Must establish sites with CPR capability, oversee CPR TASM 
registration, and ensure other required field support in accordance with 
DMDC and Service- or agency-level guidelines.
    (2) CPR TASM. The CPR TASM manages the CPR trusted agent (CTA) 
operations. The CPR TASM:
    (i) Must be a U.S. citizen.
    (ii) Must be a uniformed services member, civilian employee working 
for the sponsoring organization, or a DoD contractor.
    (iii) Must be a CAC holder.
    (iv) Shall complete the required training and manage CTA operations 
in accordance with DMDC and Service- or agency-level guidelines.
    (3) CTA. The CTA's primary role is to provide PIN reset. The CTA:
    (i) Must be a U.S. citizen.
    (ii) Must be a uniformed services member, civilian employee working 
for the sponsoring organization, or a DoD contractor.
    (iii) Must be a CAC holder.
    (iv) Shall complete the required training and conduct CPR operations 
in accordance with DMDC and Service- or agency-level guidelines.

[[Page 743]]



  Subpart C_DoD Identification (ID) Cards: Benefits for Members of the 
  Uniformed Services, Their Dependents, and Other Eligible Individuals

    Source: 81 FR 74879, Oct. 27, 2016, unless otherwise noted.



Sec.  161.9  DoD benefits.

    The benefits population is defined by roles. There are roles that 
have a direct affiliation with the DoD, such as an active duty Service 
member, or those that have an association to someone who is affiliated, 
such as the spouse of an active duty member. This section reflects 
benefit eligibility established by law and associated DoD policy, and 
addresses the roles that receive benefits. These benefits can include 
civilian health care, direct care at an MTF, commissary, exchange, and 
MWR, which are conveyed on the authorized CAC or uniformed services ID 
card. Sections 161.10 through 161.22 identify the categories of eligible 
persons and their authorized benefits as they would be recorded in the 
Defense Eligibility Enrollment Reporting System (DEERS).
    (a) Sections 161.10 through 161.22 reflect the eligibility of 
persons for the benefits administered by the uniformed services in 
accordance with 10 U.S.C. chapter 55 and DoD Instruction 1330.17, 
``Armed Services Commissary Operations'' (available at http://
www.dtic.mil/ whs/directives/corres/ pdf/133017p.pdf); DoD Instruction 
1330.21, ``Armed Services Exchange Regulations'' (available at http://
www.dtic.mil/ whs/directives/corres/ pdf/133021p.pdf); and DoD 
Instruction 1015.10.
    (1) Additional benefits may be authorized by DoD Instruction 
1330.17, DoD Instruction 1330.21, and DoD Instruction 1015.10, but are 
not printed on the DoD ID card; access to benefits may be facilitated in 
another manner in accordance with DoD Instruction 1330.17, DoD 
Instruction 1330.21, and DoD Instruction 1015.10.
    (2) Installation commanders may never authorize benefits beyond 
those allowed by DoD Instruction 1330.17, DoD Instruction 1330.21, and 
DoD Instruction 1015.10, but they may deny privileges indicated when 
base support facilities cannot handle the burden imposed as authorized 
by DoD Instruction 1330.17, DoD Instruction 1330.21, and DoD Instruction 
1015.10.
    (b) A sponsor's begin date for benefit eligibility is based on the 
date the sponsor begins their affiliation with the Department.
    (c) A dependent's begin date for benefit eligibility is based on the 
date the dependent becomes associated as an eligible dependent to an 
eligible sponsor.
    (d) Guidance on benefit eligibility begin dates and ID card 
expiration dates based on benefits will be maintained at http://
www.cac.mil.
    (e) Refer to the figure 1 to this subpart for abbreviations for the 
tables in this subpart.

     Figure 1 to Subpart C of Part 161--Benefits Table Abbreviations
------------------------------------------------------------------------
 
------------------------------------------------------------------------
CHC...............................  civilian health care.
DC................................  direct care at MTFs.
C.................................  commissary privileges.
MWR...............................  MWR privileges.
E.................................  exchange privileges.
------------------------------------------------------------------------



Sec.  161.10  Benefits for active duty members of the uniformed services.

    This section describes the benefits for active duty uniformed 
services members and their eligible dependents administered by the 
uniformed services in accordance with 10 U.S.C. chapter 55. Descriptions 
of benefits for National Guard and Reserve members and their eligible 
dependents are contained in Sec.  161.11. Descriptions of benefits for 
surviving dependents of active duty uniformed services members are 
contained in Sec.  161.17.
    (a) Active duty service members. Active duty uniformed services 
members are eligible for benefits administered by the uniformed services 
as shown in Table 1 to this subpart.

[[Page 744]]



                   Table 1 to Subpart C of Part 161--Benefits for Active Duty Members, Not Including National Guard or Reserve Members
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Member (Self).....................  No....................  Yes...................  Yes...................  Yes..................  Yes.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    (b) Dependents of active duty members. Dependents of active duty 
members are eligible for benefits as shown in Table 2 to this subpart. 
Benefits for the eligible dependents of National Guard or Reserve 
members, non-regular Service retirees not yet age 60, or members 
entitled to retired pay or who are in receipt of retired pay for non-
regular service, and non-regular Service retirees who are not in receipt 
of retired pay are identified in Sec. Sec.  161.11 through 161.14.

                                    Table 2 to Subpart C of Part 161--Benefits for Dependents of Active Duty Members
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Spouse............................  Yes...................  Yes...................  Yes...................  Yes..................  Yes.
Children, Unmarried, Under 21
 Years:
    Legitimate, adopted,            Yes...................  Yes...................  1.....................  1....................  1.
     stepchild, illegitimate child
     of record of female member,
     or illegitimate child of male
     member whose paternity has
     been judicially determined or
     voluntarily acknowledged.
    Ward..........................  3.....................  3.....................  3.....................  3....................  3.
    Pre-adoptive Child............  4.....................  4.....................  4.....................  4....................  4.
    Foster Child..................  No....................  No....................  1.....................  1....................  1
Children, Unmarried, 21 Years and   5.....................  5.....................  6.....................  6....................  6.
 Over.
Parent, Parent-in-Law, Stepparent,  No....................  2.....................  2.....................  2....................  2.
 or Parent by Adoption.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1. Yes, if dependent on an authorized sponsor for over 50 percent of the child's support.
2. Yes, if dependent on an authorized sponsor for over 50 percent of the parent's support and residing in the sponsor's household.
3. Yes, if, for determination of dependency made on or after July 1, 1994, placed in the legal custody of the member as a result of a court of competent
  jurisdiction in the United States (or possession of the United States) for a period of at least 12 consecutive months; and:
a. Is dependent on the member for over 50 percent support.
b. Resides with the member unless separated by the necessity of uniformed service or to receive institutional care as a result of a disability or
  incapacitation or under such other circumstances as the administering Secretary or Director may, by regulation, prescribe.
4. Yes, if, for determinations of dependency made on or after October 5, 1994, placed in the home of the member by a placement agency (recognized by the
  Secretary of Defense) or by another organization authorized by State or local law to provide adoption placement, in anticipation of the legal adoption
  by the member.
5. Yes, if the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary and is dependent on the member for over 50 percent of the child's support; or
b. Is incapable of self-support because of a mental or physical incapacity that existed before age 21, or occurred before the age of 23 while a full-
  time student, while a dependent of a member and is dependent on the member for over 50 percent of the child's support.
6. Yes, if the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary and is dependent on the member for over 50 percent of the child's support; or
b. Is incapable of self-support because of a mental or physical incapacity and is dependent on the member for over 50 percent of the child's support.


[[Page 745]]



Sec.  161.11  Benefits For National Guard and Reserve members of the uniformed services.

    This section describes the benefits for National Guard and Reserve 
members of the uniformed services and their eligible dependents. 
Benefits for members of the Retired Reserve and their eligible 
dependents are described in Sec.  161.13. Benefits for surviving 
dependents of deceased National Guard and Reserve members are described 
in Sec.  161.17.
    (a) National Guard and Reserve members. National Guard and Reserve 
members are eligible for benefits based on being ordered to periods of 
active duty or full-time National Guard duty or active status in the 
SelRes, including Ready Reserve and Standby Reserve and participation in 
the Reserve Officer Training Corps.

                Table 3 to Subpart C of Part 161--Benefits for National Guard and Reserve Members Not on Active Duty Greater Than 30 Days
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Member (Self).....................  No....................  No....................  Yes...................  Yes..................  Yes.
--------------------------------------------------------------------------------------------------------------------------------------------------------


            Table 4 to Subpart C of Part 161--Benefits for National Guard and Reserve Members on Active Duty for Periods Greater Than 30 Days
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Member (Self).....................  No....................  Yes...................  Yes...................  Yes..................  Yes.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1. This includes reported periods of early identification of Service members in support of a contingency operation in accordance with DoD Instruction
  7730.54, ``Reserve Components Common Personnel Data System (RCCPDS)'' (available at http://www.dtic.mil/ whs/directives/corres/ pdf/773054p.pdf).

    (b) Dependents of National Guard or Reserve members. Dependents of 
National Guard or Reserve members are eligible for benefits as shown in 
Table 5 to this subpart.

                             Table 5 to Subpart C of Part 161--Benefits for Dependents of National Guard or Reserve Members
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Spouse............................  1.....................  1.....................  Yes...................  Yes..................  Yes.
Children, Unmarried, Under 21
 Years:
    Legitimate, adopted,            1.....................  1.....................  2.....................  2....................  2.
     stepchild, illegitimate child
     of record of female member,
     or illegitimate child of male
     member whose paternity has
     been judicially determined or
     voluntarily acknowledged.
    Ward..........................  1, 4..................  1, 4..................  4.....................  4....................  4.
    Pre-adoptive Child............  1, 5..................  1, 5..................  5.....................  5....................  5.
    Foster Child..................  No....................  No....................  2.....................  2....................  2.
Children, Unmarried, 21 Years and   1, 6..................  1, 6..................  7.....................  7....................  7.
 Over.
Parent, Parent-in-Law, Stepparent,  No....................  1, 3..................  3.....................  3....................  3.
 or Parent by Adoption.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1. Yes, if the sponsor is on active duty greater than 30 days. When the order to active duty period is greater than 30 days the eligibility for CHC and
  DC for eligible dependents begins on the first day of the active duty period.
2. Yes, if dependent on an authorized sponsor for over 50 percent of the child's support.

[[Page 746]]

 
3. Yes, if dependent on an authorized sponsor for over 50 percent support of the parent's support and residing in the sponsor's household.
4. Yes, if, for determination of dependency made on or after July 1, 1994, placed in the legal custody of the member as a result of a court of competent
  jurisdiction in the United States (or possession of the United States) for a period of at least 12 consecutive months; and:
a. Is dependent on the member for over 50 percent support.
b. Resides with the member unless separated by the necessity of uniformed service or to receive institutional care as a result of a disability or
  incapacitation or under such other circumstances as the administering Secretary may, by regulation, prescribe.
5. Yes, if, for determinations of dependency made on or after October 5, 1994, placed in the home of the member by a placement agency (recognized by the
  Secretary of Defense) or by another source authorized by State or local law to provide adoption placement, in anticipation of the legal adoption by
  the member.
6. Yes, if the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is dependent on the member for over 50 percent of the child's support; or
b. Is incapable of self-support because of a mental or physical incapacity that existed before age 21, or occurred before the age of 23 while a full-
  time student, while a dependent of a member and is dependent on the member for over 50 percent of the child's support.
7. Yes, if the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is dependent on the member for over 50 percent of the child's support; or
b. Is incapable of self-support because of a mental or physical incapacity and is dependent on the member for over 50 percent of the child's support.



Sec.  161.12  Benefits for former uniformed services members.

    This section describes the benefits for former uniformed services 
members and their eligible dependents. Former members are eligible to 
receive retired pay, at age 60, for non-regular service in accordance 
with 10 U.S.C. chapter 1223, but have been discharged from their 
respective Service or agency and maintain no military affiliation.
    (a) Former members and their eligible dependents. Former members and 
their dependents are eligible for benefits as shown in Table 6 to this 
subpart.

                                      Table 6 to Subpart C of Part 161--Benefits for Former Members and Dependents
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Former Member (Self)..............  1.....................  1.....................  Yes...................  Yes..................  Yes.
Lawful Spouse.....................  1.....................  2.....................  Yes...................  Yes..................  Yes.
Children, Unmarried, Under 21
 Years:
    Legitimate, adopted,            1.....................  2.....................  3.....................  3....................  3.
     stepchild, illegitimate child
     of record of female member,
     or illegitimate child of male
     member whose paternity has
     been judicially determined or
     voluntarily acknowledged.
    Ward..........................  1, 5..................  2, 5..................  5.....................  5....................  5.
    Pre-adoptive Child............  1, 6..................  2, 6..................  6.....................  6....................  6.
    Foster Child..................  No....................  No....................  3.....................  3....................  3.
Children, Unmarried, 21 Years and   1, 7..................  2, 7..................  8.....................  8....................  8.
 Over.
Parent, Parent-in-Law, Stepparent,  No....................  2, 4..................  4.....................  4....................  4.
 or Parent by Adoption.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1. Yes, if the former member is age 60 or over and in receipt of retired pay for non-regular service; and is:
a. Not entitled to Medicare Part A hospital insurance through the SSA, or
b. Entitled to Medicare Part A hospital insurance and enrolled in Medicare Part B medical insurance or qualified as an exception in accordance with
  section 706 of Public Law 111-84, ``National Defense Authorization Act for Fiscal Year 2010.''
2. Yes, if former member is age 60 or over and in receipt of retired pay for non-regular service.
3. Yes, if dependent on an authorized sponsor for over 50 percent of the child's support.
4. Yes, if dependent on an authorized sponsor for over 50 percent of the parent's support and residing in the sponsor's household.
5. Yes, if, for determination of dependency made on or after July 1, 1994, placed in the legal custody of the member or former member as a result of a
  court of competent jurisdiction in the United States (or possession of the United States) for a period of at least 12 consecutive months; and:
a. Is dependent on the member for over 50 percent support.
b. Resides with the member or former member unless separated by the necessity of uniformed service or to receive institutional care as a result of a
  disability or incapacitation or under such other circumstances as the administering Secretary may, by regulation, prescribe.

[[Page 747]]

 
6. Yes, if, for determinations of dependency made on or after October 5, 1994, placed in the home of the member or former member by a placement agency
  (recognized by the Secretary of Defense) or by another source authorized by State or local law to provide adoption placement, in anticipation of the
  legal adoption by the member or former member.
7. Yes, if the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is dependent on the former member for over 50 percent of the child's support; or
b. Is incapable of self-support because of a mental or physical incapacity that existed before age 21, or occurred before the age of 23 while a full-
  time student, while a dependent of a member or former member, and is dependent on the member or former member for over 50 percent of the child's
  support.
8. Yes, if the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is dependent on the former member for over 50 percent of the child's support; or
b. Is incapable of self-support because of a mental or physical incapacity and is dependent on the former member for over 50 percent of the child's
  support.

    (b) [Reserved]



Sec.  161.13  Benefits for retired members of the uniformed services.

    This section describes the benefits for retired uniformed service 
members entitled to retired pay and their eligible dependents. Retired 
uniformed service members are entitled to retired pay and eligible for 
benefits administered by the uniformed services in accordance with 10 
U.S.C., DoD Instruction 1330.17, DoD Instruction 1330.21, DoD 
Instruction 1015.10, and TRICARE Policy Manual 6010.57-M (available at 
http://www.tricare.mil/ contracting/healthcare/t3manuals/ change2/tp08/
c8s9_1.pdf). This includes voluntary, temporary, and permanent 
disability retired list (PDRL) retirees. Benefits for former members and 
their eligible dependents are described in Sec.  161.12.
    (a) Retired members. Benefits for voluntary retired members and PDRL 
retirees are shown in Table 7 to this subpart. Benefits for temporary 
disability retired list (TDRL) retirees are shown in Table 8 to this 
subpart.

                                Table 7 to Subpart C of Part 161--Benefits for Voluntary Retired Members and PDRL Members
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Member (Self).....................  1.....................  Yes...................  Yes...................  Yes..................  Yes.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1. Yes, if:
a. Not entitled to Medicare Part A hospital insurance through the SSA or
b. Entitled to Medicare Part A hospital insurance and enrolled in Medicare Part B medical insurance or qualified as an exception in accordance with
  section 706 of Public Law 111-84.


                                               Table 8 to Subpart C of Part 161--Benefits for TDRL Members
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Member (Self).....................  1, 2..................  Yes...................  Yes...................  Yes..................  Yes.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1. If not removed sooner, retention of the service member on the TDRL shall not exceed a period of 5 years. The uniformed service member must be
  returned to active duty, separated with or without severance pay, or retired as PDRL in accordance with 10 U.S.C. 1210.
2. Yes, if:
a. Not entitled to Medicare Part A hospital insurance through the SSA or
b. Entitled to Medicare Part A hospital insurance and enrolled in Medicare Part B medical insurance or qualified as an exception in accordance with
  section 706 of Public Law 111-84.

    (b) Retired Reserve. Benefits for members of the Retired Reserve who 
have attained 20 creditable years of service, have not reached the age 
of 60, and are not in receipt of retired pay are shown in Table 9 to 
this subpart. When a Retired Reserve member is ordered to active duty 
greater than 30 days, their benefits will reflect what is shown in Table 
10 to this subpart. When a Retired Reserve member is in receipt of 
retired pay under age 60 (non-regular Service retirement), or upon 
reaching age 60, their benefits will reflect what is shown in Table 11 
to this subpart.

[[Page 748]]



                                         Table 9 to Subpart C of Part 161--Benefits for Retired Reserve Members
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Member (Self).....................  No....................  No....................  Yes...................  Yes..................  Yes.
--------------------------------------------------------------------------------------------------------------------------------------------------------


                   Table 10 to Subpart C of Part 161--Benefits for Retired Reserve Members Ordered to Active Duty Greater Than 30 Days
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Member (Self).....................  No....................  Yes...................  Yes...................  Yes..................  Yes.
--------------------------------------------------------------------------------------------------------------------------------------------------------


                   Table 11 to Subpart C of Part 161--Benefits for Non-Regular Service Retirement for Qualifying Ready Reserve Members
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Member (Self).....................  1.....................  1.....................  Yes...................  Yes..................  Yes.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1. Yes, if age 60 or over, and:
a. Applied for or in receipt of retired pay in accordance with 10 U.S.C. 1074. If in receipt of retired pay in accordance with the provisions of 10
  U.S.C. 12731, after the date of the enactment of section 647 of Public Law 110-181, ``National Defense Authorization Act for Fiscal Year 2008,'' the
  member must be age 60 to qualify for CHC and DC.
b. Not entitled to Medicare Part A hospital insurance through the SSA, or
c. Entitled to Medicare Part A hospital insurance and enrolled in Medicare Part B medical insurance or qualified as an exception in accordance with
  section 706 of Public Law 111-84.

    (c) Dependents. Dependents of retired uniformed services members 
entitled to retired pay, including TDRL and PDRL, non-regular Service 
retirees not yet age 60 not in receipt of retired pay; non-regular 
Service retirees entitled to retired pay in accordance with the 
provisions of 10 U.S.C. 12731 after the date of the enactment of section 
647 of Public Law 110-181; and non-regular Service retirees, age 60 or 
over, in receipt of retired pay for non-regular service in accordance 
with 10 U.S.C. chapter 1223, are eligible for benefits as shown in Table 
12 to this subpart.

                            Table 12 to Subpart C of Part 161--Benefits for Dependents of Retired Uniformed Services Members
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Lawful Spouse.....................  1.....................  2.....................  Yes...................  Yes..................  Yes.
Children, Unmarried, Under 21
 Years:
    Legitimate, adopted,            1.....................  2.....................  3.....................  3....................  3.
     stepchild, illegitimate child
     of record of female member,
     or illegitimate child of male
     member whose paternity has
     been judicially determined or
     voluntarily acknowledged.
    Ward..........................  1, 5..................  2, 5..................  5.....................  5....................  5.
    Pre-adoptive Child............  1, 6..................  2, 6..................  6.....................  6....................  6.
    Foster Child..................  No....................  No....................  3.....................  3....................  3.
Children, Unmarried, 21 Years and   1, 7..................  2, 7..................  8.....................  8....................  8.
 Over.
Parent, Parent-in-Law, Stepparent,  No....................  2, 4..................  4.....................  4....................  4.
 or Parent by Adoption.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1. Yes, if the sponsor is:

[[Page 749]]

 
a. Retired (as shown in Tables 7 and 8 to this subpart) and the dependent is not entitled to Medicare Part A hospital insurance through the SSA; or if
  entitled to Medicare Part A hospital insurance and enrolled in Medicare Part B medical insurance or qualified as an exception in accordance with
  section 706 of Public Law 111-84;
b. A National Guard or Reserve member on a period of active duty in excess of 30 days (as shown in Table 10 to this subpart). When the ordered to active
  duty period is greater than 30 days the eligibility for CHC and DC for the eligible dependents begins on the first day of the active duty period; or
c. A medically eligible non-regular Service Reserve Retiree, age 60 or over, as shown in Table 11 of this subpart.
2. Yes, if the sponsor is:
a. Retired (as shown in Tables 7 and 8 to this subpart);
b. A National Guard or Reserve member on a period of active duty in excess of 30 days (as shown in Table 10 to this subpart). When the ordered to active
  duty period is greater than 30 days the eligibility for CHC and DC for the eligible dependents begins on the first day of the active duty period; or
c. A medically eligible non-regular Service Reserve Retiree, age 60 or over, as seen in Table 11 to this subpart.
3. Yes, if dependent on an authorized sponsor for over 50 percent of the child's support.
4. Yes, if dependent on an authorized sponsor for over 50 percent of the parent's support and residing in the sponsor's household.
5. Yes, if, for determination of dependency made on or after July 1, 1994, placed in the legal custody of the member or former member as a result of a
  court of competent jurisdiction in the United States (or possession of the United States) for a period of at least 12 consecutive months; and:
a. Is dependent on the member for over 50 percent support.
b. Resides with the member or former member unless separated by the necessity of uniformed service or to receive institutional care as a result of a
  disability or incapacitation or under such other circumstances as the administering Secretary may, by regulation, prescribe.
6. Yes, if, for determinations of dependency made on or after October 5, 1994, placed in the home of the member or former member by a placement agency
  (recognized by the Secretary of Defense) or by another source authorized by State or local law to provide adoption placement, in anticipation of the
  legal adoption by the member or former member.
7. Yes, if the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is dependent on the former member for over 50 percent of the child's support; or
b. Is incapable of self-support because of a mental or physical incapacity that existed before age 21, or occurred before the age of 23 while a full-
  time student, while a dependent of a member or former member, and is dependent on the member or former member for over 50 percent of the child's
  support.
8. Yes, if the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is dependent on the retired member for over 50 percent of the child's support; or
b. Is incapable of self-support because of a mental or physical incapacity and is dependent on the retired member for over 50 percent of child's
  support.



Sec.  161.14  Benefits for MOH recipients.

    This section describes the benefits for MOH recipients and their 
dependents who are authorized pursuant to section 706 of Public Law 106-
398, ``National Defense Authorization Act for Fiscal Year 2001'' and who 
are not otherwise entitled to military medical and dental care. Section 
706 of Public Law 106-398 authorized MOH recipients not otherwise 
entitled to military medical and dental care and their dependents to be 
given care in the same manner that such care is provided to former 
uniformed service members who are entitled to military retired pay and 
the dependents of those former members. Eligibility for the benefits 
described in Table 13 to this subpart begins on the date of award of the 
MOH but no earlier than October 30, 2000.

                                      Table 13 to Subpart C of Part 161--Benefits for MOH Recipients and Dependents
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Self..............................  1.....................  2.....................  Yes...................  Yes..................  Yes.
Lawful Spouse.....................  1.....................  2.....................  Yes...................  Yes..................  Yes.
Children, Unmarried, Under 21
 Years:
    Legitimate, adopted,
     stepchild, illegitimate child
     of record of female member,
     or illegitimate child of male
     member whose paternity has
     been judicially determined or
     voluntarily acknowledged.
    Ward..........................  1, 5..................  2, 5..................  5.....................  5....................  5.
    Pre-adoptive Child............  1, 6..................  2, 6..................  6.....................  6....................  6.
    Foster Child..................  No....................  No....................  3.....................  3....................  3.
Children, Unmarried, 21 Years and   1, 7..................  2, 7..................  8.....................  8....................  8.
 Over.

[[Page 750]]

 
Parent, Parent-in-Law, Stepparent,  No....................  2, 4..................  4.....................  4....................  4.
 or Parent by Adoption.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1. Yes, if the sponsor is a MOH recipient and is not otherwise entitled to medical care as of or after October 30, 2000 pursuant to section 706 of
  Public Law 106-398 and:
a. Is not entitled to Medicare Part A hospital insurance through the SSA or
b. Is entitled to Medicare Part A hospital insurance and enrolled in Medicare Part B medical insurance or qualified as an exception in accordance with
  section 706 of Public Law 111-84.
2. Yes, if the sponsor is a MOH recipient and is not otherwise entitled to medical care as of or after October 30, 2000 pursuant to section 706 of
  Public Law 106-398.
3. Yes, if dependent on an authorized sponsor for over 50 percent of the child's support.
4. Yes, if dependent on an authorized sponsor for over 50 percent of the parent's support and residing in the sponsor's household.
5. Yes, if, for determination of dependency made on or after July 1, 1994, placed in the legal custody of the member or former member as a result of a
  court of competent jurisdiction in the United States (or possession of the United States) for a period of at least 12 consecutive months; and:
a. Is dependent on the member for over 50 percent support.
b. Resides with the member or former member unless separated by the necessity of uniformed service or to receive institutional care as a result of a
  disability or incapacitation or under such other circumstances as the administering Secretary may, by regulation, prescribe.
6. Yes, if, for determinations of dependency made on or after October 5, 1994, placed in the home of the member or former member by a placement agency
  (recognized by the Secretary of Defense) or by another source authorized by State or local law to provide adoption placement, in anticipation of the
  legal adoption by the member or former member.
7. Yes, if the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is dependent on the former member for over 50 percent of the child's support or
b. Is incapable of self-support because of a mental or physical incapacity that existed before age 21, or occurred before the age of 23 while a full-
  time student, while a dependent of a member or former member, and is dependent on the member or former member for over 50 percent of the child's
  support.
8. Yes, if the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is dependent on the MOH recipient for over 50 percent of the child's support; or
b. Is incapable of self-support because of a mental or physical incapacity and is dependent on the MOH recipient for over 50 percent of the child's
  support.



Sec.  161.15  Benefits for Disabled American Veterans (DAV).

    This section describes the benefits for DAVs rated as 100 percent 
disabled or incapable of pursuing substantially gainful employment by 
the VA and their eligible dependents. Neither DAVs nor their eligible 
dependents receive CHC or DC benefits from the DoD based on their 
affiliation. Honorably discharged veterans rated by the VA as 100 
percent disabled or incapable of pursuing substantially gainful 
employment from a service-connected injury or disease, and their 
dependents, are eligible for benefits as shown in Table 14 to this 
subpart.

                                     Table 14 to Subpart C of Part 161--Benefits for 100 Percent DAVs and Dependents
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Self..............................  No....................  No....................  Yes...................  Yes..................  Yes.
Lawful Spouse.....................  No....................  No....................  Yes...................  Yes..................  Yes.
Children, Unmarried, Under 21
 Years:
    Legitimate, adopted,            No....................  No....................  1.....................  1....................  1.
     stepchild, illegitimate child
     of record of female member,
     or illegitimate child of male
     member whose paternity has
     been judicially determined or
     voluntarily acknowledged.
    Ward..........................  No....................  No....................  3.....................  3....................  3.
    Pre-adoptive Child............  No....................  No....................  4.....................  4....................  4.
    Foster Child..................  No....................  No....................  1.....................  1....................  1.

[[Page 751]]

 
Children, Unmarried, 21 Years and   No....................  No....................  5.....................  5....................  5.
 Over.
Parent, Parent-in-Law, Stepparent,  No....................  No....................  2.....................  2....................  2.
 or Parent-by-Adoption.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1. Yes, if dependent on an authorized sponsor for over 50 percent of the child's support.
2. Yes, if dependent on an authorized sponsor for over 50 percent of the parent's support and residing in the sponsor's household.
3. Yes, if, for determination of dependency made on or after July 1, 1994, placed in the legal custody of the member or former member as a result of a
  court of competent jurisdiction in the United States (or possession of the United States) for a period of at least 12 consecutive months; and:
a. Is dependent on the member for over 50 percent support.
b. Resides with the member or former member unless separated by the necessity of uniformed service or to receive institutional care as a result of a
  disability or incapacitation or under such other circumstances as the administering Secretary may, by regulation, prescribe.
4. Yes, if, for determinations of dependency made on or after October 5, 1994, placed in the home of the member or former member by a placement agency
  (recognized by the Secretary of Defense) or by another source authorized by State or local law to provide adoption placement, in anticipation of the
  legal adoption by the member or former member.
5. Yes, if the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is dependent on the authorized sponsor for over 50 percent of the child's support or
b. Is incapable of self-support because of a mental or physical incapacity, and is dependent on the authorized sponsor for over 50 percent of the
  child's support.



Sec.  161.16  Benefits for transitional health care members and dependents.

    This section shows the benefits for THC members and their eligible 
dependents. THC (formerly the TAMP) was instituted in section 502 of 
Public Law 101-510, ``Department of Defense Appropriations Bill Fiscal 
Year 1991'' effective October 1, 1990. Section 706 of Public Law 108-
375, ``National Defense Authorization Act of for Fiscal Year 2005'' made 
the THC program permanent and made the medical eligibility 180 days for 
all eligible uniformed services members. Section 651 of Public Law 110-
181 extended 2 years' commissary and exchange benefits to THC members. 
Section 734 of Public Law 110-417, ``National Defense Authorization Act 
for Fiscal Year 2009'' extended THC benefits to uniformed service 
members separating from active duty who agree to become members of the 
SelRes of the Ready Reserve of a reserve component. Uniformed service 
members separated as uncharacterized entry-level separations do not 
qualify for THC.

                                       Table 15 to Subpart C of Part 161--Benefits for THC Members and Dependents
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
THC Member (Self).................  1.....................  1.....................  2, 3..................  2, 3.................  2, 3.
Lawful Spouse.....................  1.....................  1.....................  2, 3..................  2, 3.................  2, 3.
Children, Unmarried, Under 21
 Years:
    Legitimate, adopted,            1.....................  1.....................  2, 3, 4...............  2, 3, 4..............  2, 3. 4.
     stepchild, illegitimate child
     of record of female member,
     or illegitimate child of male
     member whose paternity has
     been judicially determined or
     voluntarily acknowledged.
    Ward..........................  1, 6..................  1, 6..................  2, 3, 6...............  2, 3, 6..............  2, 3, 6.
    Pre-adoptive Child............  1, 7..................  1, 7..................  2, 3, 7...............  2, 3, 7..............  2, 3, 7.
    Foster Child..................  No....................  No....................  2, 3, 4...............  2, 3, 4..............  2, 3, 4.

[[Page 752]]

 
Children, Unmarried, 21 Years and   1, 8..................  1, 8..................  9.....................  9....................  9.
 Over.
Parent, Parent-in-Law, Stepparent,  No....................  1, 5..................  2, 3, 5...............  2, 3, 5..............  2, 3, 5.
 or Parent-by-Adoption.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1. Yes, medical entitlement for 180 days beginning on the date after the member separated from the qualifying active duty period. There is no exception
  based on entitlement to Medicare Part A. The THC eligible sponsor and eligible dependents receive the medical benefits as if they were active duty
  eligible dependents.
2. No, if the member:
a. Separated on or after January 1, 2001 but before October 1, 2007
b. Separated in accordance with 10 U.S.C. 1145(a)(2)(F).
c. Separated from active duty to join the SelRes or the Ready Reserve of a Reserve Component.
3. Yes, if the member was separated during the period beginning on October 1, 1990, through December 31, 2001, or after October 1, 2007. Entitlement
  shall be for 2 years, beginning on the date the member separated.
4. Yes, if dependent on an authorized sponsor for over 50 percent of the child's support.
5. Yes, if dependent on an authorized sponsor for over 50 percent of the parent's support and residing in the sponsor's household.
6. Yes, if, for determination of dependency made on or after July 1, 1994, placed in the legal custody of the member or former member as a result of a
  court of competent jurisdiction in the United States (or possession of the United States) for a period of at least 12 consecutive months; and:
a. Is dependent on the member for over 50 percent support.
b. Resides with the member or former member unless separated by the necessity of uniformed service or to receive institutional care as a result of a
  disability or incapacitation or under such other circumstances as the administering Secretary may, by regulation, prescribe.
7. Yes, if, for determinations of dependency made on or after October 5, 1994, placed in the home of the member or former member by a placement agency
  (recognized by the Secretary of Defense) or by another source authorized by State or local law to provide adoption placement, in anticipation of the
  legal adoption by the member or former member.
8. Yes, if the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is dependent on the authorized sponsor for over 50 percent of the child's support; or
b. Is incapable of self-support because of a mental or physical incapacity that existed before age 21, or occurred before the age of 23 while a full-
  time student, while a dependent of a member or former member, and is dependent on the authorized sponsor for over 50 percent of the child's support.
9. Yes, if the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is dependent on the authorized sponsor for over 50 percent of the child's support; or
b. Is incapable of self-support because of a mental or physical incapacity and is dependent on the authorized sponsor for over 50 percent of the child's
  support.



Sec.  161.17  Benefits for surviving dependents.

    This section describes the benefits for surviving dependents of 
active duty deceased uniformed services members, deceased National Guard 
and Reserve service members, deceased MOH recipients, and deceased 100 
percent DAV. Surviving children who are adopted by a non-military member 
after the death of the sponsor remain eligible for all benefits as shown 
in this section.
    (a) Surviving dependents of active duty deceased members. Surviving 
dependents of members who died while on active duty under orders that 
specified a period of more than 30 days or members who died while in a 
retired with pay status are eligible for benefits as shown in Table 16 
to this subpart.

                          Table 16 to Subpart C of Part 161--Benefits for Surviving Dependents of Active Duty Deceased Members
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Widow or widower:
    Unremarried...................  1.....................  Yes...................  Yes...................  Yes..................  Yes.
    Remarried.....................  No....................  No....................  No....................  No...................  No.
    Unmarried.....................  No....................  No....................  Yes...................  Yes..................  Yes.
Children, Unmarried, or Under 21
 Years (Including Orphans):

[[Page 753]]

 
    Legitimate, adopted,            1.....................  Yes...................  2.....................  2....................  2.
     stepchild, illegitimate child
     of record of female member,
     or illegitimate child of male
     member whose paternity has
     been judicially determined or
     voluntarily acknowledged.
    Ward..........................  1, 4..................  1, 4..................  4.....................  4....................  4.
    Pre-adoptive Child............  1, 5..................  1, 5..................  5.....................  5....................  5.
    Foster Child..................  No....................  No....................  2.....................  2....................  2.
Children, Unmarried, 21 Years and   1, 6..................  6.....................  7.....................  7....................  7.
 Over.
Parent, Parent-in-Law, Stepparent,  No....................  3.....................  3.....................  3....................  3.
 or Parent by Adoption.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1. Yes, if the sponsor died on active duty (for dependents of National Guard or Reserve members or Retired Reserve members the period of active duty
  must be in excess of 30 days in order to qualify for the benefits in this table) and:
a. If claims are filed less than 3 years from the date of death, there is no Medicare exception for the widow. After 3 years from the date of death, the
  widow is eligible if,
(1) Not entitled to Medicare Part A hospital insurance through the SSA.
(2) Entitled to Medicare Part A hospital insurance and enrolled in Medicare Part B medical insurance or qualified as an exception in accordance with
  section 706 of Public Law 111-84.
b. Yes, for children regardless of the number of years from the date of death or entitlement to Medicare they are entitled.
2. Yes, if dependent on an authorized sponsor for over 50 percent of the child's support at the time of the sponsor's death.
3. Yes, if dependent on an authorized sponsor for over 50 percent of the parent's support and residing in the sponsor's household at the time of the
  sponsor's death.
4. Yes, if, for determinations of dependency made on or after July 1, 1994, and prior to the death of the member, the child had been placed in the legal
  custody of the member as a result of a court of competent jurisdiction in the United States (or possession of the United States) for a period of at
  least 12 consecutive months; and was at the time of the sponsor's death:
a. Dependent on the member for over 50 percent support.
b. Residing with the member unless separated by the necessity of uniformed service or to receive institutional care as a result of a disability or
  incapacitation or under such other circumstances as the administering Secretary may, by regulation, prescribe.
5. Yes, if, for determinations of dependency made on or after October 5, 1994, and prior to the death of the member, the child had been placed in the
  home of the member by a placement agency (recognized by the Secretary of Defense) or by another source authorized by State or local law to provide
  adoption placement, in anticipation of the legal adoption by the member.
6. Yes, if the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is or was at the time of the member's death dependent on the member for over 50 percent of the child's support; or
b. Is incapable of self-support because of a mental or physical incapacity that existed before age 21, or occurred before the age of 23 while a full-
  time student, while a dependent of a member or former member and is or was at the time of the member's death dependent on the member for over 50
  percent of the child's support.
7. Yes, if the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is, or was at the time of the member's death, dependent on the member for over 50 percent of the child's support.
b. Is incapable of self-support because of a mental or physical incapacity and is, or was at the time of the member's death, dependent on the member for
  over 50 percent of the child's support.

    (b) Surviving dependents of deceased National Guard and Reserve 
members not on an active duty period greater than 30 days. The surviving 
dependents of National Guard and Reserve Service members are eligible 
for the benefits shown in Table 17 to this subpart if:
    (1) The National Guard or Reserve member died from an injury or 
illness incurred or aggravated while on active duty for a period of 30 
days or less, on active duty for training, or on inactive duty training, 
or while traveling to or from the place at which the member was to 
perform, or performed, such active duty, active duty for training, or 
inactive duty training pursuant to 10 U.S.C. 1076 and 1086(c)(2) and if 
death occurred on or after October 1, 1985; or
    (2) The National Guard or Reserve member died from an injury, 
illness, or disease incurred or aggravated while performing, or while 
traveling to or from performing active duty for a period of 30 days or 
less, or active duty for training, or inactive duty training,

[[Page 754]]

or while performing service on funeral honors in accordance with 10 
U.S.C. 1074a and if death occurred on or after November 15, 1986.

   Table 17 to Subpart C of Part 161--Benefits for Surviving Dependents of Deceased National Guard and Reserve Members Not On Active Duty for a Period
                                                                  Greater Than 30 Days
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Widow or Widower:
    Unremarried...................  1, 2..................  2.....................  Yes...................  Yes..................  Yes.
    Remarried.....................  No....................  No....................  No....................  No...................  No.
    Unmarried.....................  No....................  No....................  Yes...................  Yes..................  Yes.
Children, Unmarried, Under 21
 Years (Including Orphans):
    Legitimate, adopted,            1, 2..................  2.....................  3.....................  3....................  3.
     stepchild, illegitimate child
     of record of female member,
     or illegitimate child of male
     member whose paternity has
     been judicially determined or
     voluntarily acknowledged.
    Ward..........................  1, 2, 5...............  2, 5..................  5.....................  5....................  5.
    Pre-adoptive Child............  1, 2, 6...............  2, 6..................  6.....................  6....................  6.
    Foster Child..................  No....................  No....................  3.....................  3....................  3.
Children, Unmarried, 21 Years and   1, 2, 7...............  2, 7..................  8.....................  8....................  8.
 Over.
Parent, Parent-in-Law, Stepparent,  No....................  2, 4..................  4.....................  4....................  4.
 or Parent by Adoption.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1. Yes, if:
a. Not entitled to Medicare Part A hospital insurance through the SSA.
b. Entitled to Medicare Part A hospital insurance and enrolled in Medicare Part B medical insurance or qualified as an exception in accordance with
  section 706 of Public Law 111-84.
2. Yes, only if death occurred on or after 1 October 1985 in accordance with the provisions of 10 U.S.C. 1076, or on or after November 15, 1986 in
  accordance with the provisions of 10 U.S.C. 1074a.
3. Yes, if dependent on an authorized sponsor for over 50 percent of the child's support at the time of the sponsor's death.
4. Yes, if dependent on an authorized sponsor for over 50 percent of the parent's support and residing in the sponsor's household at the time of the
  sponsor's death.
5. Yes, if, for determinations of dependency made on or after July 1, 1994, and prior to the death of the member, the child had been placed in the legal
  custody of the member as a result of a court of competent jurisdiction in the United States (or possession of the United States) for a period of at
  least 12 consecutive months and was at the time of the sponsor's death:
a. Dependent on the member for over 50 percent support.
b. Residing with the member unless separated by the necessity of uniformed service or to receive institutional care as a result of a disability or
  incapacitation or under such other circumstances as the administering Secretary may, by regulation, prescribe.
6. Yes, if, for determinations of dependency made on or after October 5, 1994, and prior to the death of the member, the child had been placed in the
  home of the member by a placement agency (recognized by the Secretary of Defense) or by another source authorized by State or local law to provide
  adoption placement, in anticipation of the legal adoption.
7. Yes, if the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is or was at the time of the member's death dependent on the member for over 50 percent of the child's support; or
b. Is incapable of self-support because of a mental or physical incapacity that existed before age 21, or occurred before the age of 23 while a full-
  time student, while a dependent of a member and is or was at the time of the member's or former member's death dependent on the member for over 50
  percent of the child's support.
8. Yes, if the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is, or was at the time of the member's death, dependent on the member for over 50 percent of the child's support.
b. Is incapable of self-support because of a mental or physical incapacity and is, or was at the time of the member's death, dependent on the member for
  over 50 percent of the child's support.

    (c) Surviving dependents of deceased National Guard and Reserve 
members in receipt of their notice of eligibility (NOE), Retired Reserve 
members not yet age 60, and former members not in receipt of retired 
pay. The surviving dependents of National Guard and Reserve members who 
have died before the age of 60 are eligible for the benefits shown in 
Table

[[Page 755]]

18 to this subpart if the deceased sponsor was:
    (1) A Reserve member who had earned 20 qualifying years for 
retirement and received their NOE for retired pay at age 60, but had not 
transferred to the Retired Reserve.
    (2) A Retired Reserve member eligible for pay at age 60, not yet age 
60.
    (3) A former member who had met time-in-service requirements.

         Table 18 to Subpart C of Part 161--Benefits for Surviving Dependents of National Guard and Reserve Members Who Have Died Before Age 60
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Widow or Widower:
    Unremarried...................  1, 2..................  1.....................  Yes...................  Yes..................  Yes.
    Remarried.....................  No....................  No....................  No....................  No...................  No.
    Unmarried.....................  No....................  No....................  Yes...................  Yes..................  Yes.
Children, Unmarried, Under 21
 Years (Including Orphans):
    Legitimate, adopted,            1, 2..................  1.....................  3.....................  3....................  3.
     stepchild, illegitimate child
     of record of female member,
     or illegitimate child of male
     member whose paternity has
     been judicially determined or
     voluntarily acknowledged.
    Ward..........................  1, 2, 5...............  1, 5..................  5.....................  5....................  5.
    Pre-adoptive Child............  1, 2, 6...............  1, 6..................  6.....................  6....................  6.
    Foster Child..................  No....................  No....................  3.....................  3....................  3.
Children, Unmarried, 21 Years and   1, 2, 7...............  1, 7..................  8.....................  8....................  8.
 Over.
Parent, Parent-in-Law, Stepparent,  No....................  1, 4..................  4.....................  4....................  4.
 or Parent by Adoption.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1. Yes, on or after the date the member would have become age 60.
2. Yes, if:
a. Not entitled to Medicare Part A hospital insurance through the SSA or
b. Entitled to Medicare Part A hospital insurance and enrolled in Medicare Part B medical insurance or qualified as an exception in accordance with
  section 706 of Public Law 111-84.
3. Yes, if dependent on an authorized sponsor for over 50 percent of the child's support at the time of the sponsor's death.
4. Yes, if dependent on an authorized sponsor for over 50 percent of the parent's support and residing in the sponsor's household at the time of the
  sponsor's death.
5. Yes, if, for determinations of dependency made on or after July 1, 1994, and prior to the death of the member, the child had been placed in the legal
  custody of the member or former member as a result of a court of competent jurisdiction in the United States (or possession of the United States) for
  a period of at least 12 consecutive months; and was at the time of the sponsor's death:
a. Dependent on the member for over 50 percent support.
b. Residing with the member or former member unless separated by the necessity of uniformed service or to receive institutional care as a result of a
  disability or incapacitation or under such other circumstances as the administering Secretary may, by regulation, prescribe.
6. Yes, if, for determinations of dependency made on or after October 5, 1994, and prior to the death of the member, the child had been placed in the
  home of the member or former member by a placement agency (recognized by the Secretary of Defense) or by another source authorized by State or local
  law to provide adoption placement, in anticipation of the legal adoption.
7. Yes, if the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is or was at the time of the member's or former member's death dependent on the former member for over 50 percent of the child's
  support; or
b. Is incapable of self-support because of a mental or physical incapacity that existed before age 21, or occurred before the age of 23 while a full-
  time student, while a dependent of a member or former member and is, or was at the time of the member's or former member's death, dependent on the
  member or former member for over 50 percent of the child's support.
8. Yes, if the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is, or was at the time of the member's death, dependent on the member for over 50 percent of the child's support.
b. Is incapable of self-support because of a mental or physical incapacity and is, or was at the time of the member's death, dependent on the member for
  over 50 percent of the child's support.


[[Page 756]]

    (d) Surviving dependents of deceased National Guard and Reserve 
members whose death is unrelated to the member's service. The surviving 
dependents of National Guard and Reserve members are eligible for the 
benefits shown in Table 19 to this subpart if:
    (1) The member's death was unrelated to the member's service.
    (2) The member was not on active duty, active duty for training, or 
on inactive duty training, or while traveling to or from the place at 
which the member was to perform, or performed, such active duty, active 
duty for training, or inactive duty training.
    (3) The member was not eligible for retired pay.

  Table 19 to Subpart C of Part 161--Benefits for Surviving Dependents of National Guard and Reserve Members Whose Death Was Unrelated to the Member's
                                                                         Service
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Widow or Widower:
    Unremarried...................  No....................  No....................  Yes...................  Yes..................  Yes.
    Remarried.....................  No....................  No....................  No....................  No...................  No.
    Unmarried.....................  No....................  No....................  Yes...................  Yes..................  Yes.
Children, Unmarried, Under 21
 Years (Including Orphans):
    Legitimate, adopted,            No....................  No....................  1.....................  1....................  1.
     stepchild, illegitimate child
     of record of female member,
     or illegitimate child of male
     member whose paternity has
     been judicially determined or
     voluntarily acknowledged,
     foster child.
    Ward..........................  No....................  No....................  2.....................  2....................  2.
    Pre-adoptive Child............  No....................  No....................  3.....................  3....................  3.
Children, Unmarried, 21 Years and   No....................  No....................  4.....................  4....................  4.
 Over.
Parent, Parent-in-Law, Stepparent,  No....................  No....................  5.....................  5....................  5.
 or Parent by Adoption.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1. Yes, if dependent on an authorized sponsor for over 50 percent of the child's support at the time of the sponsor's death.
2. Yes, if, for determinations of dependency made on or after July 1, 1994, and prior to the death of the member, the child had been placed in the legal
  custody of the member as a result of a court of competent jurisdiction in the United States (or possession of the United States) for a period of at
  least 12 consecutive months and was at the time of the sponsor's death:
a. Dependent on the member for over 50 percent support.
b. Residing with the member unless separated by the necessity of uniformed service or to receive institutional care as a result of a disability or
  incapacitation or under such other circumstances as the administering Secretary may, by regulation, prescribe.
3. Yes, if, for determinations of dependency made on or after October 5, 1994, and prior to the death of the member, the child had been placed in the
  home of the member by a placement agency (recognized by the Secretary of Defense) or by another source authorized by State or local law to provide
  adoption placement, in anticipation of the legal adoption.
4. Yes, if the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is, or was at the time of the member's death, dependent on the member for over 50 percent of the child's support.
b. Is incapable of self-support because of a mental or physical incapacity and is, or was at the time of the member's death, dependent on the member for
  over 50 percent of the child's support.
5. Yes, if dependent on that sponsor for over 50 percent of the child's support and residing in the sponsor's household at the time of the sponsor's
  death.

    (e) Surviving dependents of deceased uniformed services retirees or 
deceased MOH recipients. The surviving dependents of deceased uniformed 
services retirees or deceased MOH recipients are eligible for the 
benefits shown in Table 20 to this subpart.

[[Page 757]]



        Table 20 to Subpart C of Part 161--Benefits for Surviving Dependents of Deceased Uniformed Services Retirees and Deceased MOH Recipients
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Widow or Widower:
    Unremarried...................  1, 2..................  2, 4..................  Yes...................  Yes..................  Yes.
    Remarried.....................  No....................  No....................  No....................  No...................  No.
    Unmarried.....................  No....................  No....................  Yes...................  Yes..................  Yes.
Children, Unmarried, Under 21
 Years:
    Legitimate, adopted,            1, 2..................  2, 4..................  4.....................  3....................  3.
     stepchild, illegitimate child
     of member, illegitimate child
     of spouse.
    Ward..........................  1, 2, 6...............  2, 3, 6...............  6.....................  6....................  6.
    Pre-adoptive Child............  1, 2, 7...............  2, 3, 7...............  7.....................  7....................  7.
    Foster Child..................  No....................  No....................  3.....................  3....................  3.
Children, Unmarried, 21 Years and   1, 2, 8...............  2, 8..................  9.....................  9....................  9.
 Over.
Parent, Parent-in-Law, Stepparent,  No....................  No....................  5.....................  5....................  5.
 or Parent-by-Adoption.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1. Yes, if the:
a. Deceased uniformed service member was a retired uniformed service member entitled to retired pay, including TDRL or PDRL, or a non-regular Service
  retiree, age 60 or over, in receipt of retired pay, and if the person is:
(1) Not entitled to Medicare Part A hospital insurance through the SSA; or,
(2) Entitled to Medicare Part A hospital insurance and enrolled in Medicare Part B medical insurance or qualified as an exception in accordance with
  section 706 of Public Law 111-84.
b. Deceased MOH recipient was not otherwise entitled to medical care as of, or after October 30, 2000 in accordance with section 706 of Public Law 106-
  398 and if the person is:
(1) Not entitled to Medicare Part A hospital insurance through the SSA; or,
(2) Entitled to Medicare Part A, hospital insurance and enrolled in Medicare Part B medical insurance or qualified as an exception in accordance with
  section 706 of Public Law 111-84.
2. No, if the deceased uniformed service member was a non-regular Service Retiree in accordance with the provision of 10 U.S.C. 12731 after the
  enactment of Public Law 110-181, sections 647 and 1106. The eligible surviving dependents will become eligible for CHC and DC on the anniversary of
  the 60th birthday of the deceased uniformed service member. Eligibility for CHC also requires that the person is:
a. Not entitled to Medicare Part A hospital insurance through the SSA; or,
b. Entitled to Medicare Part A hospital insurance and enrolled in Medicare Part B medical insurance or qualified as an exception in accordance with
  section 706 of Public Law 111-84.
3. Yes, if dependent on an authorized sponsor for over 50 percent of the individual's support at the time of the sponsor's death.
4. Yes, if the deceased was a retired uniformed services member entitled to retired pay, including TDRL or PDRL, or a non-regular Service retiree, age
  60 or over, in receipt of retired pay, or a deceased MOH recipient not otherwise entitled to medical care as of or after, October 30, 2000, or a
  deceased non-regular Service retiree entitled in accordance with the provisions of 10 U.S.C. 12731 after the enactment of Public Law 110-181, sections
  647 and 1106 on the anniversary of the 60th birthday of the deceased uniformed Service member.
5. Yes, if dependent on an authorized sponsor for over 50 percent of the individual's support and residing in the sponsor's household at the time of the
  sponsor's death.
6. Yes, if, for determinations of dependency made on or after July 1, 1994, and prior to the death of the member, the child had been placed in the legal
  custody of the member or former member as a result of a court of competent jurisdiction in the United States (or possession of the United States) for
  a period of at least 12 consecutive months; and was at the time of the sponsor's death:
a. Dependent on the member for over 50 percent support.
b. Residing with the member or former member unless separated by the necessity of uniformed service or to receive institutional care as a result of a
  disability or incapacitation or under such other circumstances as the administering Secretary may, by regulation, prescribe.
7. Yes, if, for determinations of dependency made on or after October 5, 1994, and prior to the death of the member, the child had been placed in the
  home of the member or former member by a placement agency (recognized by the Secretary of Defense) or by another source authorized by State or local
  law to provide adoption placement, in anticipation of the legal adoption.
8. Yes, if the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is or was at the time of the member's or former member's death dependent on the former member for over 50 percent of the child's
  support; or
b. Is incapable of self-support because of a mental or physical incapacity that existed before age 21, or occurred before the age of 23 while a full-
  time student, while a dependent of a member or former member and is or was at the time of the member's or former member's death dependent on the
  member or former member for over 50 percent of the child's support.
9. Yes, if the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is, or was at the time of the member's death, dependent on the member for over 50 percent of the child's support.
b. Is incapable of self-support because of a mental or physical incapacity and is, or was at the time of the member's death, dependent on the member for
  over 50 percent of the child's support.

    (f) Surviving dependents of 100 percent DAVs. Surviving dependents 
of honorably discharged veterans rated as 100

[[Page 758]]

percent disabled or incapable of pursuing substantially gainful 
employment by the VA from a service-connected injury or disease at the 
time of the veteran's death are eligible for benefits as shown in Table 
21 to this subpart.

                                Table 21 to Subpart C of Part 161--Benefits for Surviving Dependents of 100 Percent DAVs
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Widow or Widower (DoD
 Beneficiary):
    Unremarried...................  No....................  No....................  Yes...................  Yes..................  Yes.
    Remarried.....................  No....................  No....................  No....................  No...................  No.
    Unmarried.....................  No....................  No....................  Yes...................  Yes..................  Yes.
Children, Unmarried, Under 21
 Years:
    Legitimate, adopted,            No....................  No....................  1.....................  1....................  1.
     stepchild, illegitimate child
     of record of female member,
     or illegitimate child of male
     member whose paternity has
     been judicially determined or
     voluntarily acknowledged,
     foster child.
    Ward..........................  No....................  No....................  2.....................  2....................  2.
    Pre-adoptive Child............  No....................  No....................  3.....................  3....................  3.
Children, Unmarried, 21 Years and   No....................  No....................  4.....................  4....................  4.
 Over.
Parent, Parent-in-Law, Stepparent,  No....................  No....................  5.....................  5....................  5.
 or Parent-by-Adoption.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1. Yes, if dependent on an authorized sponsor for over 50 percent of the child's support at the time of the sponsor's death.
2. Yes, if, for determination of dependency made on or after July 1, 1994, was placed in the legal custody of the member or former member as a result of
  a court of competent jurisdiction in the United States (or possession of the United States) for a period of at least 12 consecutive months; and was at
  the time of the sponsor's death:
a. Dependent on the member for over 50 percent support.
b. Residing with the member or former member unless separated by the necessity of uniformed service or to receive institutional care as a result of a
  disability or incapacitation or under such other circumstances as the administering Secretary may, by regulation, prescribe.
3. Yes, if, for determinations of dependency made on or after July 1, 1994, and prior to the death of the member, the child had been placed in the home
  of the member or former member by a placement agency (recognized by the Secretary of Defense) or by another source authorized by State or local law to
  provide adoption placement, in anticipation of the legal adoption.
4. Yes, if the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is or was at the time of the member's or former member's death, dependent on the former member for over 50 percent of the child's
  support; or
b. Is incapable of self-support because of a mental or physical incapacity that existed before age 21, or occurred before the age of 23 while a full-
  time student, while a dependent of a member or former member and is, or was at the time of the member's or former member's death, dependent on the
  member or former member for over 50 percent of the child's support.
5. Yes, if dependent on that sponsor for over 50 percent of the parent's support and residing in the sponsor's household at the time of the sponsor's
  death.



Sec.  161.18  Benefits for abused dependents.

    (a) Abused dependents of active duty uniformed services members 
entitled to retired pay based on 20 or more years of service who, on or 
after October, 23, 1992, while a member, have their eligibility to 
receive retired pay terminated as a result of misconduct involving the 
abuse of the spouse or dependent child pursuant to 10 U.S.C. 1408(h), 
are eligible for benefits as shown in Table 22 to this subpart. For the 
purposes of these benefits the eligible spouse or child may not reside 
in the household of the sponsor. See Sec.  161.19 for additional 
information on abused dependents under the 10/20/10 former spouse rule.

[[Page 759]]



                   Table 22 to Subpart C of Part 161--Benefits for Abused Dependents of Retirement Eligible Uniformed Services Members
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Lawful Spouse.....................  1, 2, 6...............  2, 6..................  Yes...................  Yes..................  Yes.
Children, Unmarried, Under 18
 Years:
    Legitimate, adopted,            1, 3..................  3.....................  4.....................  4....................  4.
     stepchild, pre-adoptive.
Children, Unmarried, 18 Years and
 Over:
    (If entitled above)...........  1, 4, 5...............  4, 5..................  7.....................  7....................  7.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1. Yes, if:
a. Not entitled to Medicare Part A hospital insurance through the SSA.
b. Entitled to Medicare Part A hospital insurance and enrolled in Medicare Part B medical insurance or qualified as an exception in accordance with
  section 706 of Public Law 111-84.
2. Yes, if a court order provides for an annuity for the spouse.
3. Yes, if a member of the household where the abuse occurred.
4. Yes, if dependent on an authorized sponsor for over 50 percent of child's support at the time the abuse occurred.
5. Yes, if the child:
a. Is older than 18 years old and is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary; or
b. Is incapable of self-support because of a mental or physical incapacity that existed before age 18, or occurred before the age of 23 while a full-
  time student.
6. The spouse must have been married to the uniformed service member for at least 10 years, the uniformed service member must have completed 20
  creditable years for retired pay, and they must have been married at least 10 years during the 20 years of creditable service (see Sec.   161.19). The
  uniformed services shall prescribe specific procedures to verify the eligibility of an applicant.
7. Yes, if the child:
a. Is older than 18 years old but has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning
  approved by the administering Secretary, and was dependent on the sponsor for over 50 percent the child's support at the time the abuse occurred; or
b. Is incapable of self-support because of a mental or physical incapacity and was dependent on the sponsor for over 50 percent of the child's support
  at the time the abuse occurred.

    (b) Dependents of active duty uniformed service members (who have 
served for a continuous period greater than 30 days) not entitled to 
retired pay who have received a dishonorable or bad-conduct discharge, 
dismissal from a uniformed service as a result of a court martial 
conviction for an offense involving physical or emotional abuse of the 
spouse or child, or was administratively discharged as a result of such 
an offense, separated on or after November 30, 1993, are eligible for 
transitional privileges in accordance with DoD Instruction 1342.24, 
``Transitional Compensation for Abused Dependents'' (available at: 
http://www.dtic.mil/ whs/directives/corres/ pdf/134224p.pdf). For the 
purposes of these benefits the eligible spouse or child may not reside 
in the household of the sponsor. A maximum of up to 36 months of medical 
benefits can be granted by the uniformed services to the transitional 
compensation dependent.

                 Table 23 to Subpart C of Part 161--Benefits for Abused Dependents of Non-Retirement Eligible Uniformed Services Members
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Lawful Spouse.....................  1, 2..................  2.....................  4.....................  4....................  4.
Children, Unmarried, Under 18
 Years:
    Legitimate, adopted, and        1, 2..................  2.....................  4.....................  4....................  4.
     stepchild.
Children, Unmarried, 18 Years and   1, 2, 3...............  2, 3..................  4.....................  4....................  4.
 Over (If entitled above).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1. Yes, if:
a. Not entitled to Medicare Part A hospital insurance through the SSA.
b. Entitled to Medicare Part A hospital insurance and enrolled in Medicare Part B medical insurance or qualified as an exception in accordance with
  section 706 of Public Law 111-84.
2. Yes, if

[[Page 760]]

 
a. Residing with the member at the time of the dependent-abuse offense and not residing with the member while receiving transitional compensation for
  abused dependents.
b. Married to and residing with the member at the time of the dependent-abuse offense and while receiving transitional compensation for abused
  dependents.
3. Yes, if:
a. 18 years of age or older and incapable of self-support because of a mental or physical incapacity that existed before the age of 18 and who is (or
  was when a punitive or other adverse action was carried out on the member) dependent on the member for over one-half of the child's support; or
b. 18 years of age or older, but less than 23 years of age, is enrolled in a full-time course of study in an institution of higher learning approved by
  the Secretary of Defense and who is (or was when a punitive or other adverse action was carried out on the member) dependent on the member for over
  one-half of the child's support.
4. Yes, if receiving transitional compensation.



Sec.  161.19  Benefits for former spouses.

    (a) 20/20/20 former spouses. Unremarried former spouses of a 
uniformed services member or retired member, married to the member or 
retired member for a period of at least 20 years, during which period 
the member or retired member performed at least 20 years of service that 
is creditable in determining the member's or retired member's 
eligibility for retired or retainer pay, or equivalent pay pursuant to 
10 U.S.C. 1408 and 1072(2)(F), and the period of the marriage and the 
service overlapped by at least 20 years are eligible for benefits as 
shown in Tables 24 and 25 to this subpart. The benefit eligibility 
period begins on qualifying date of divorce from the uniformed services 
member.
    (1) 20/20/20 former spouses of an active duty, regular retired, or a 
non-regular retired sponsor at age 60. 20/20/20 former spouses of an 
active duty, regular retired, or a non-regular retired sponsor at age 60 
are eligible for benefits as shown in Table 24 to this subpart.

   Table 24 to Subpart C of Part 161--Benefits for 20/20/20 Former Spouses of Active Duty, Regular Retired, and Non-Regular Retired Members at Age 60
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Former Spouse:
    Unremarried...................  1, 2..................  1.....................  Yes...................  Yes..................  Yes.
    Remarried.....................  No....................  No....................  No....................  No...................  No.
    Unmarried.....................  No....................  No....................  Yes...................  Yes..................  Yes.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1. Yes, if the former spouse certifies in writing that the former spouse has no medical coverage under an employer-sponsored health plan.
2. Yes, if:
a. Not entitled to Medicare Part A hospital insurance through the SSA.
b. Entitled to Medicare Part A hospital insurance and enrolled in Medicare Part B medical insurance with the exception of those individuals who qualify
  in accordance with section 706 of Public Law 111-84.

    (2) 20/20/20 former spouses of a National Guard, Reserve member, or 
Retired Reserve member under age 60. (i) In the case of former spouses 
of National Guard, Reserve, or Retired Reserve members or former members 
who are entitled to retired pay at age 60, but have not yet reached age 
60, the former spouse is only entitled to commissary, MWR, and exchange 
benefits as shown in Table 25 to this subpart. When the Retired Reserve 
member or former member attains or would have attained, age 60, the 
former spouse will be entitled to benefits as shown in Table 24 to this 
subpart.
    (ii) In the case of former spouses of National Guard members or 
Reserve members ordered to active duty, or Retired Reserve members under 
age 60 recalled to active duty, they continue to receive benefits as 
shown in Table 25 to this subpart if the orders are for a period of 30 
days or less. If the National Guard member, Reserve member, or recalled 
Retired Reserve member is on active duty orders in excess of 30 days, 
the former spouse will receive benefits as shown in Table 24 to this 
subpart.

[[Page 761]]



                        Table 25 to Subpart C of Part 161--Benefits for 20/20/20 Former Spouses for Retired Reserve Under Age 60
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Former Spouse:
    Unremarried...................  No....................  No....................  Yes...................  Yes..................  Yes.
    Remarried.....................  No....................  No....................  No....................  No...................  No.
    Unmarried.....................  No....................  No....................  Yes...................  Yes..................  Yes.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    (b) 20/20/15 former spouses. Unremarried former spouses described in 
paragraph (a)(1) of this section, with the period of overlap of marriage 
and the member's creditable service at least 15 years, but less than 20 
years, are not eligible for the commissary, MWR, or exchange benefits.
    (1) 20/20/15 former spouses of an active duty, regular retired, or a 
non-regular retired sponsor at age 60. 20/20/15 former spouses of an 
active duty, regular retired, or a non-regular retired sponsor at age 60 
are eligible for benefits as shown in Table 26 to this subpart.

       Table 26 to Subpart C of Part 161--Benefits for 20/20/15 Former Spouses of Active Duty, Regular Retired, and Non-Regular Retired at Age 60
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Former Spouse:
    Unremarried...................  1, 2, 3...............  1, 3..................  No....................  No...................  No.
    Remarried.....................  No....................  No....................  No....................  No...................  No.
    Unmarried.....................  No....................  No....................  No....................  No...................  No.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1. Yes, if former spouse certifies in writing that the former spouse has no medical coverage under an employer-sponsored health plan.
2. Yes, if:
a. Not entitled to Medicare Part A hospital insurance through the SSA; or
b. Entitled to Medicare Part A hospital insurance and enrolled in Medicare Part B medical insurance or qualified as an exception in accordance with
  section 706 of Public Law 111-84.
3. Yes, if the:
a. Final decree of divorce, dissolution, or annulment of the marriage was before April 1, 1985; or
b. Marriage ended on, or after, September 29, 1988, entitlements shall exist for 1 year, beginning on the date of the divorce, dissolution, or annulment
  pursuant to 10 U.S.C. 1076 and 1072(2)(H).

    (2) 20/20/15 former spouses of a Retired Reserve member under age 
60. (i) In the case of former spouses of Retired Reserve members or 
former members who are entitled to retired pay at age 60, but have not 
yet reached age 60, the former spouse has no entitlement prior to the 
Retired Reserve member or former member reaching age 60. The benefit 
eligible period is 1 year from the date of divorce. If any period of 
eligibility extends beyond the Retired Reserve or former member's 60th 
birthday then the former spouse will receive benefits as shown in Table 
26 to this subpart for that period.
    (ii) In the case of former spouses of Reserve members or Retired 
Reserve members under age 60 recalled to active duty on orders for a 
period of 30 days or less they are not entitled to any benefits as shown 
in Table 27 to this subpart. If the Reserve member or recalled Retired 
Reserve member is on active duty orders in excess of 30 days, the former 
spouse will receive benefits as shown in Table 26 to this subpart if 
they are within 1 year from the date of divorce from the uniformed 
service member.

                    Table 27 to Subpart C of Part 161--Benefits for 20/20/15 Former Spouses of a Retired Reserve Member Under Age 60
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Former Spouse:
    Unremarried...................  No....................  No....................  No....................  No...................  No.
    Remarried.....................  No....................  No....................  No....................  No...................  No.

[[Page 762]]

 
    Unmarried.....................  No....................  No....................  No....................  No...................  No.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    (c) 10/20/10 former spouses. Unremarried former spouses of a member 
or retired member, married to the member or retired member for a period 
of at least 10 years to a member or retired member who performed at 
least 20 years of service that is creditable in determining the member's 
or retired member's eligibility for retired or retainer pay, when the 
period of overlap of marriage and the member's creditable service was at 
least 10 years and the former spouse is in receipt of an annuity as a 
result of the member being separated from the service due to misconduct 
involving dependent abuse pursuant to 10 U.S.C. 1408(h), are eligible 
for benefits as shown in Table 28 to this subpart.

                                         Table 28 to Subpart C of Part 161--Benefits for 10/20/10 Former Spouses
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Former Spouse:
    Unremarried...................  1, 2..................  1, 2..................  Yes...................  Yes..................  Yes.
    Remarried.....................  No....................  No....................  No....................  No...................  No.
    Unmarried.....................  1, 2..................  1, 2..................  Yes...................  Yes..................  Yes.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1. Yes, if:
a. Not entitled to Medicare Part A hospital insurance through the SSA.
b. Entitled to Medicare Part A hospital insurance and enrolled in Medicare Part B medical insurance or qualified as an exception in accordance with
  section 706 of Public Law 111-84.
2. The spouse must have been married to the uniformed service member for at least 10 years, the uniformed service member must have completed 20
  creditable years for retired pay, and they must have been married at least 10 years during the 20 years of creditable service (see Sec.   161.18,
  paragraph (a)(1)). The uniformed services shall prescribe specific procedures to verify the eligibility of an applicant.



Sec.  161.20  Benefits for civilian personnel.

    Civilian personnel may be eligible for certain benefits described in 
this section based on their affiliation with DoD, Service-specific 
guidelines, or other authorizing conditions. The definition of 
``civilian personnel'' (e.g., civilian employee, DoD contractor, Red 
Cross employee) is specific to each benefit set described.
    (a) Civilian personnel in the United States may be issued a DoD ID 
card as a condition of employment or assignment in accordance with 
subpart B of this part. Civilian personnel in the United States are 
eligible for benefits as shown in Table 29 to this subpart.

                                 Table 29 to Subpart C of Part 161--Benefits for Civilian Personnel in the United States
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Self:
    DoD Civilian Employees, IPA     No....................  No....................  No....................  1....................  No.
     Personnel.
    Non-DoD Civilian Employees....  No....................  No....................  No....................  2....................  No.
    DoD Contractors...............  No....................  No....................  No....................  2....................  No.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1. Yes, but benefit is not printed on the DoD ID card and will be facilitated in accordance with DoD Instruction 1015.10.
2. Yes, if working full-time on the installation in accordance with DoD Instruction 1015.10. Benefit is not printed on the DoD ID card and will be
  facilitated in accordance with DoD Instruction 1015.10.

    (b) Civilian personnel residing on a military installation in the 
United States are eligible for benefits as shown in Table 30 to this 
subpart.

[[Page 763]]



            Table 30 to Subpart C of Part 161--Benefits for Civilian Personnel When Residing on a Military Installation in the United States
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Self:
    DoD Civilian Employees, IPA     No....................  No....................  No....................  1....................  2.
     Personnel.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1. Yes, but benefit is not printed on the DoD ID card and will be facilitated in accordance with DoD Instruction 1015.10.
2. Yes, but subject to purchase restrictions, in accordance with DoD Instruction 1330.21. Benefit is not printed on the DoD ID card and will be
  facilitated in accordance with DoD Instruction 1330.21.

    (c) DoD civilian personnel stationed or employed outside the United 
States and outside U.S. Territories and Possessions, and their 
accompanying dependents, when residing in the same household, are 
eligible for benefits as shown in Table 31 to this subpart.

 Table 31 to Subpart C of Part 161--Benefits for DoD Civilian Personnel Stationed Outside the United States and Outside U.S. Territories and Possessions
                                                               and Accompanying Dependents
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Self:
    DoD Civilian Employee, IPA      No....................  1.....................  Yes...................  Yes..................  Yes.
     Personnel.
    DoD Contractor................  No....................  1.....................  2.....................  Yes..................  3.
Lawful Spouse.....................  No....................  1.....................  4.....................  Yes..................  4.
Children, Unmarried, Under 21
 Years:
    Legitimate, adopted,            No....................  1, 5..................  5.....................  5....................  5.
     stepchild, Illegitimate child
     of employee, or Illegitimate
     child of spouse.
    Ward..........................  No....................  1, 6..................  6.....................  6....................  6.
    Pre-adoptive..................  No....................  1, 7..................  7.....................  7....................  7.
    Foster Child..................  No....................  No....................  5.....................  5....................  5.
Children, Unmarried, 21 Years and   No....................  1, 8..................  9.....................  9....................  9.
 Over.
Parent, Parent-in-Law, Stepparent,  No....................  1, 5..................  1, 5..................  5....................  5.
 or Parent-by-Adoption.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1. Yes, on a space-available, fully reimbursable basis. Medical care at uniformed services facilities shall be rendered in accordance with Service
  instructions. Additional guidelines are contained in DoD Instruction 1100.22 and Volume 1231 of DoD Instruction 1400.25.
2. Yes, if a U.S. citizen and on a fully-reimbursable basis in accordance with DoD Instruction 1330.17 (not a local hire).
3. Yes, if a U.S. citizen assigned overseas (not a local hire).
4. Yes, if a dependent of an authorized sponsor and residing in the sponsor's household.
5. Yes, if dependent on an authorized sponsor for over 50 percent of the child's support and residing in the sponsor's household.
6. Yes, if, for determination of dependency made on or after July 1, 1994, placed in the legal custody of the sponsor as a result of a court of
  competent jurisdiction in the United States (or possession of the United States) for a period of at least 12 consecutive months, and if dependent on
  the sponsor for over 50 percent of the child's support, and residing in the sponsor's household.
7. Yes, if, for determinations of dependency made on or after October 5, 1994, placed in the home of the sponsor by a placement agency (recognized by
  the Secretary of Defense) or by another source authorized by State or local law to provide adoption placement, in anticipation of the legal adoption
  by the sponsor.
8. Yes, if the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is dependent on the sponsor for over 50 percent of the child's support; or
b. Is incapable of self-support because of a mental or physical incapacity that existed before age 21, or occurred before the age of 23 while a full-
  time student, while a dependent of a sponsor and is, dependent on the sponsor for over 50 percent of the child's support.
9. Yes, if the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is dependent on the sponsor for over 50 percent of the child's support; or
b. Is incapable of self-support because of a mental or physical incapacity, and is dependent on the sponsor for over 50 percent of the child's support.


[[Page 764]]

    (d) Non-DoD Government agency civilian personnel stationed or 
employed outside the United States and outside U.S. territories and 
possessions, and their dependents, when residing in the same household, 
are eligible for benefits as shown in Table 32 to this subpart.

   Table 32 to Subpart C of Part 161--Benefits for Non-DoD Government Agencies Civilian Personnel Stationed or Employed Outside the United States and
                                          Outside U.S. Territories and Possessions and Accompanying Dependents
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Self:
    Non-DoD Civilian Personnel....  No....................  1.....................  2.....................  Yes..................  2.
Lawful Spouse.....................  No....................  1.....................  3.....................  Yes..................  3.
Children, Unmarried, Under 21
 Years:
    Legitimate, adopted,            No....................  1, 4..................  4.....................  4....................  4.
     stepchild, Illegitimate child
     of employee, or Illegitimate
     child of spouse.
    Ward..........................  No....................  1, 5..................  5.....................  5....................  5.
    Pre-adoptive..................  No....................  1, 6..................  6.....................  6....................  6.
    Foster Child..................  No....................  No....................  4.....................  4....................  4.
Children, Unmarried, 21 Years and   No....................  1, 7..................  8.....................  8....................  8.
 Over.
Parent, Parent-in-Law, Stepparent,  No....................  1, 4..................  4.....................  4....................  4.
 Parent-by-Adoption.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1. Yes, on a space-available, fully reimbursable basis. Medical care at uniformed services facilities shall be rendered in accordance with Service
  instructions. Additional guidelines are contained in DoD Instruction 1100.22 and Volume 1231 of DoD Instruction 1400.25.
2. Yes, excluding local hires in accordance with DoD Instruction 1330.17 and DoD Instruction 1330.21.
3. Yes, if a dependent of an authorized sponsor and residing in the sponsor's household.
4. Yes, if dependent on an authorized sponsor for over 50 percent of the individual's support and residing in the sponsor's household.
5. Yes, if, for determination of dependency made on or after July 1, 1994, placed in the legal custody of the sponsor as a result of a court of
  competent jurisdiction in the United States (or possession of the United States) for a period of at least 12 consecutive months, and if dependent on
  the sponsor for over 50 percent of the dependent's support, and residing in the sponsor's household.
6. Yes, if, for determinations of dependency made on or after October 5, 1994, placed in the home of the sponsor by a placement agency (recognized by
  the Secretary of Defense) or by another source authorized by State or local law to provide adoption placement, in anticipation of the legal adoption
  by the sponsor.
7. Yes, if the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is dependent on the sponsor for over 50 percent of the child's support; or
b. Is incapable of self-support because of a mental or physical incapacity that existed before age 21, or occurred before the age of 23 while a full-
  time student, while a dependent of a sponsor and is, dependent on the member or former member for over 50 percent of the child's support.
8. Yes, if the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is dependent on the sponsor for over 50 percent of the child's support; or
b. Is incapable of self-support because of a mental or physical incapacity, and is dependent on the sponsor for over 50 percent of the child's support.

    (e) Civilian personnel stationed or employed in U.S. Territories and 
Possessions and their dependents, when residing in the same household, 
are eligible for benefits as shown in Table 33 to this subpart.

Table 33 to Subpart C of Part 161--Benefits for Civilian Personnel Stationed or Employed in U.S. Territories and Possessions and Accompanying Dependents
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Self:
    DoD Civilian employee, IPA      No....................  1.....................  2.....................  Yes..................  2.
     personnel.
    Non-DoD Civilian employee; DoD  No....................  1.....................  No....................  3....................  No.
     contractor.

[[Page 765]]

 
Lawful Spouse.....................  No....................  1.....................  4.....................  4....................  4.
Children, Unmarried, Under 21
 Years:
    Legitimate, adopted,            No....................  1, 5..................  5.....................  5....................  5.
     stepchild, Illegitimate child
     of employee or illegitimate
     child of spouse.
    Ward..........................  No....................  1, 6..................  6.....................  6....................  6.
    Pre-adoptive..................  No....................  1, 7..................  7.....................  7....................  7.
    Foster Child..................  No....................  No....................  5.....................  5....................  5.
Children, Unmarried, 21 Years and   No....................  1, 8..................  9.....................  9....................  9.
 Over.
Parent, Parent -in-Law,             No....................  1, 5..................  No....................  5....................  5.
 Stepparent, Parent-by-Adoption.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1. Yes, on a space-available, fully reimbursable basis only if residing in a household on a military installation. Additional guidelines are contained
  in DoD Instruction 1100.22 and Volume 1231 of DoD Instruction 1400.25.
2. Yes, excluding local hires in accordance with DoD Instruction 1330.17 and DoD Instruction 1330.21.
3. Yes, if working full-time on the installation in accordance with DoD Instruction 1015.10. Benefit will not be printed on the DoD ID card and will be
  facilitated in accordance with DoD Instruction 1015.10.
4. Yes, if a dependent of an authorized sponsor and residing in the sponsor's household.
5. Yes, if dependent on an authorized sponsor for over 50 percent of the individual's support and residing in the sponsor's household.
6. Yes, if, for determination of dependency made on or after July 1, 1994, placed in the legal custody of the sponsor as a result of a court of
  competent jurisdiction in the United States (or possession of the United States) for a period of at least 12 consecutive months, and if dependent on
  the sponsor for over 50 percent of the child's support, and residing in the sponsor's household.
7. Yes, if, for determinations of dependency made on or after October 5, 1994, placed in the home of the sponsor by a placement agency (recognized by
  the Secretary of Defense) or by another source authorized by State or local law to provide adoption placement, in anticipation of the legal adoption
  by the sponsor.
8. Yes, if the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is dependent on the sponsor for over 50 percent of the child's support; or
b. Is incapable of self-support because of a mental or physical incapacity that existed before age 21, or occurred before the age of 23 while a full-
  time student, while a dependent of a sponsor, and is dependent on the sponsor for over 50 percent of the child's support.
9. Yes, if the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is dependent on the sponsor for over 50 percent of the child's support; or
b. Is incapable of self-support because of a mental or physical incapacity, and is dependent on the sponsor for over 50 percent of the child's support.

    (f) DoD OCONUS hires are foreign nationals in host countries who are 
employed by U.S. forces, consistent with any agreement with the host 
country as defined in Volume 1231 of DoD Instruction 1400.25. They are 
entered into DEERS for the purposes of issuing a CAC and are eligible 
for benefits as shown in Table 34 to this subpart.

                        Table 34 to Subpart C of Part 161--Benefits for DoD OCONUS Hires
----------------------------------------------------------------------------------------------------------------
                                        CHC             DC               C              MWR              E
----------------------------------------------------------------------------------------------------------------
Self............................  No............  No............  No............  1.............  No.
----------------------------------------------------------------------------------------------------------------
Note:
1. Yes, for appropriated fund and NAF foreign national employees assigned and working directly for DoD
  installations overseas, if not prohibited by Status of Forces Agreements, other international agreements, or
  local laws, and the installation commander determines it is in the best interest of the command. Annual
  recertification of the employee authorization is required in accordance with DoD Instruction 1015.10. Benefit
  is not printed on the DoD ID card and will be facilitated in accordance with DoD Instruction 1015.10.

    (g) Full-time paid personnel of the Red Cross assigned to duty with 
the uniformed services in the United States and residing on a military 
installation and their accompanying dependents, when residing in the 
same household are eligible for benefits as shown in Table 35 to this 
subpart.

[[Page 766]]



  Table 35 to Subpart C of Part 161--Benefits for Full-Time Paid Personnel of the Red Cross Assigned to Duty With the Uniformed Services in the United
                                       States and Residing on a Military Installation and Accompanying Dependents
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Self..............................  No....................  No....................  No....................  Yes..................  1.
Lawful Spouse.....................  No....................  No....................  No....................  Yes..................  1, 2.
Children, Unmarried, Under 21
 Years:
    Legitimate, adopted,            No....................  No....................  No....................  3....................  1, 3.
     stepchild, Illegitimate child
     of employee, illegitimate
     child of spouse, or foster
     child.
    Ward..........................  No....................  No....................  No....................  4....................  1, 4.
    Pre-adoptive..................  No....................  No....................  No....................  5....................  1, 5.
Children, Unmarried, 21 Years and   No....................  No....................  No....................  6....................  1, 6.
 Over.
Parent, Parent-in-Law, Stepparent,  No....................  No....................  No....................  3....................  1, 3.
 Parent-by-Adoption.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1. Yes, but subject to purchase restrictions in accordance with DoDI 1330.21.
2. Yes, if a dependent of an authorized sponsor, and residing in the sponsor's household.
3. Yes, if dependent on an authorized sponsor for over 50 percent of the individual's support and residing in the sponsor's household.
4. Yes, if, for determination of dependency made on or after July 1, 1994, placed in the legal custody of the sponsor as a result of a court of
  competent jurisdiction in the United States (or possession of the United States) for a period of at least 12 consecutive months, and if dependent on
  the sponsor for over 50 percent of the child's support, and residing in the sponsor's household.
5. Yes, if, for determinations of dependency made on or after October 5, 1994, placed in the home of the sponsor by a placement agency (recognized by
  the Secretary of Defense) or by another source authorized by State or local law to provide adoption placement, in anticipation of the legal adoption
  by the sponsor.
6. Yes, if the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is dependent on the sponsor for over 50 percent of the child's support; or
b. Is incapable of self-support because of a mental or physical incapacity that existed before age 21, or occurred before the age of 23 while a full-
  time student, while a dependent of a sponsor, and is dependent on the sponsor for over 50 percent of the child's support.

    (h) Full-time paid personnel of the Red Cross assigned to duty with 
the uniformed services outside the United States and their accompanying 
dependents, when residing in the same household, are eligible for 
benefits as shown in Table 36 to this subpart.

   Table 36 to Subpart C of Part 161--Benefits for Full-Time Paid Personnel of the Red Cross Assigned to Duty With the Uniformed Services Outside the
                                                        United States and Accompanying Dependents
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Self..............................  No....................  1.....................  2.....................  Yes..................  2.
Lawful Spouse.....................  No....................  1.....................  3.....................  Yes..................  3.
Children, Unmarried, Under 21
 Years:
    Legitimate, adopted,            No....................  1, 4..................  4.....................  4....................  4.
     stepchild, Illegitimate child
     of employee or illegitimate
     child of spouse.
    Ward..........................  No....................  No....................  5.....................  5....................  5.
    Foster Child..................  No....................  No....................  4.....................  4....................  4.
Children, Unmarried, 21 Years and   No....................  1, 6..................  7.....................  7....................  7.
 Over.
Parent, Parent-in-Law, Stepparent,  No....................  1, 4..................  4.....................  4....................  4.
 or Parent-by-Adoption.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:

[[Page 767]]

 
1. Yes, on a space-available basis at rates specified in uniformed services instructions. Additional guidelines are contained in DoD Instruction 1100.22
  and Volume 1231 of DoD Instruction 1400.25.
2. Yes, if U.S. citizen assigned overseas (not a local hire).
3. Yes, if a dependent of an authorized sponsor and residing in the sponsor's household.
4. Yes, if a dependent on an authorized sponsor for over 50 percent of the individual's support and residing in the sponsor's household.
5. Yes, if, for determination of dependency made on or after July 1, 1994, placed in the legal custody of the sponsor as a result of a court of
  competent jurisdiction in the United States (or possession of the United States) for a period of at least 12 consecutive months, and if dependent on
  the sponsor for over 50 percent of the child's support, and residing in the sponsor's household.
6. Yes, if the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is dependent on the sponsor for over 50 percent of the child's support; or
b. Is incapable of self-support because of a mental or physical incapacity that existed before age 21, or occurred before the age of 23 while a full-
  time student, while a dependent of a sponsor, and is dependent on the sponsor for over 50 percent of the child's support.
7. Yes, if the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is dependent on the sponsor for over 50 percent of the child's support; or
b. Is incapable of self-support because of a mental or physical incapacity, and is dependent on the sponsor for over 50 percent of the child's support.

    (i) Full-time paid personnel of the United Service Organizations 
(USO) serving outside the United States and their accompanying 
dependents when residing in the same household are eligible for benefits 
as shown in Table 37 to this subpart.

    Table 37 to Subpart C of Part 161--Benefits for Full-Time Paid Personnel of the USO and Accompanying Dependents Serving Outside the United States
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Self..............................  No....................  1.....................  2.....................  Yes..................  2.
Lawful Spouse.....................  No....................  1.....................  3.....................  Yes..................  3.
Children, Unmarried, Under 21
 Years:
    Legitimate, adopted,            No....................  1, 4..................  4.....................  4....................  4.
     stepchild, illegitimate child
     of employee, or illegitimate
     child of spouse.
    Ward..........................  No....................  No....................  5.....................  5....................  5.
    Foster child..................  No....................  No....................  4.....................  4....................  4.
Children, Unmarried, 21 Years and   No....................  1, 5..................  7.....................  7....................  7.
 Over.
Parent, Parent-in-Law, Stepparent,  No....................  1, 4..................  4.....................  4....................  4.
 or Parent-by-Adoption.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1. Yes, on a space-available, fully reimbursable basis. Additional guidelines are contained in DoD Instruction 1100.22 and Volume 1231 of DoD
  Instruction 1400.25.
2. Yes, if U.S. citizens assigned overseas (not a local hire).
3. Yes, if a dependent of an authorized sponsor and residing in the sponsor's household.
4. Yes, if dependent on an authorized sponsor for over 50 percent of the individual's support and residing in the sponsor's household.
5. Yes, if, for determination of dependency made on or after July 1, 1994, placed in the legal custody of the sponsor as a result of a court of
  competent jurisdiction in the United States (or possession of the United States) for a period of at least 12 consecutive months, and if dependent on
  the sponsor for over 50 percent of the child's support, and residing in the sponsor's household.
6. Yes, if the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is dependent on the member sponsor for over 50 percent of the child's support; or
b. Is incapable of self-support because of a mental or physical incapacity that existed before age 21, or occurred before the age of 23 while a full-
  time student, while a dependent of a sponsor, and is dependent on the sponsor for over 50 percent of the child's support.
7. Yes, if the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is dependent on the sponsor for over 50 percent of the child's support; or
b. Is incapable of self-support because of a mental or physical incapacity, and is dependent on the sponsor for over 50 percent of the child's support.


[[Page 768]]

    (j) Full-time paid personnel of the USS serving outside the United 
States and outside U.S. territories and possessions, and their 
accompanying dependents, when residing in the same household, are 
eligible for benefits as shown in Table 38 to this subpart.

 Table 38 to Subpart C of Part 161--Benefits for Full-Time Paid Personnel of the USS Serving Outside the United States and Outside U.S. Territories and
                                                         Possessions and Accompanying Dependents
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Self..............................  No....................  1.....................  No....................  Yes..................  No.
Lawful Spouse.....................  No....................  1.....................  No....................  Yes..................  No.
Children, Unmarried, Under 21
 Years:
    Legitimate, adopted,            No....................  1, 2..................  No....................  2....................  No.
     stepchild, illegitimate child
     of employee, or illegitimate
     child of spouse.
    Ward..........................  No....................  No....................  No....................  3....................  No.
    Foster Child..................  No....................  No....................  No....................  2....................  No.
Children, Unmarried, 21 Years and   No....................  1, 4..................  No....................  5....................  No.
 Over.
Parent, Parent-in-Law, Stepparent,  No....................  1, 2..................  No....................  2....................  No.
 or Parent-by-Adoption.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1. Yes, on a space-available, fully reimbursable basis. Additional guidelines are contained in DoD Instruction 1100.22 and Volume 1231 of DoD
  Instruction 1400.25.
2. Yes, if dependent on an authorized sponsor for over 50 percent of the child's support and residing in the sponsor's household.
3. Yes, if, for determination of dependency made on or after July 1, 1994, placed in the legal custody of the sponsor as a result of a court of
  competent jurisdiction in the United States (or possession of the United States) for a period of at least 12 consecutive months, and if dependent on
  the sponsor for over 50 percent of the child's support, and residing in the sponsor's household.
4. Yes, if the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is dependent on the sponsor for over 50 percent of the child's support; or
b. Is incapable of self-support because of a mental or physical incapacity that existed before age 21, or occurred before the age of 23 while a full-
  time student, while a dependent of a sponsor, and is dependent on the sponsor for over 50 percent of the child's support.
5. Yes, if the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is dependent on the sponsor for over 50 percent of the child's support; or
b. Is incapable of self-support because of a mental or physical incapacity, and is dependent on the sponsor for over 50 percent of the child's support.

    (k) MSC civil service Marine personnel deployed on MSC-owned and 
operated vessels outside the United States and outside U.S. territories 
and possessions are eligible for benefits as shown in Table 39 to this 
subpart.

   Table 39 to Subpart C of Part 161--Benefits for MSC Personnel Deployed on MSC-Owned and Operated Vessels Outside the United States and Outside U.S.
                                                               Territories and Possessions
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Self..............................  No....................  1.....................  No....................  Yes..................  No.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
1. Yes, on a space-available, fully reimbursable basis.

    (l) Ship's officers and members of the crews of NOAA vessels are 
eligible for benefits in accordance with 33 U.S.C. 3074 as shown in 
Table 40 to this subpart. Ship's officers are not commissioned officers, 
but civilian employees of NOAA.

[[Page 769]]



                        Table 40 to Subpart C of Part 161--Benefits for Ship's Officers and Members of the Crews of NOAA Vessels
                                                              [NOAA Wage Mariner Employees]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Self..............................  No....................  No....................  Yes...................  Yes..................  Yes.
Lawful Spouse.....................  No....................  No....................  Yes...................  Yes..................  Yes.
Children, Unmarried, Under 21
 Years:
    Legitimate, adopted,            No....................  No....................  1.....................  1....................  1.
     stepchild, Illegitimate child
     of employee, Illegitimate
     child of spouse, or Foster
     Child.
    Ward..........................  No....................  No....................  2.....................  2....................  2.
    Pre-adoptive..................  No....................  No....................  3.....................  3....................  3.
Children, Unmarried, 21 Years and   No....................  No....................  4.....................  4....................  4.
 Over.
Parent, Parent-in-Law, Stepparent,  No....................  No....................  1.....................  1....................  1.
 Parent-by-Adoption.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1. Yes, if dependent on an authorized sponsor for over 50 percent of the individual's support and residing in the sponsor's household.
2. Yes if, for determination of dependency made on or after July 1, 1994, placed in the legal custody of the sponsor as a result of a court of competent
  jurisdiction in the United States (or possession of the United States) for a period of at least 12 consecutive months, and if dependent on the sponsor
  for over 50 percent of the child's support, and residing in the sponsor's household.
3. Yes if, for determinations of dependency made on or after October 5, 1994, placed in the home of the sponsor by a placement agency (recognized by the
  Secretary of Defense) or by another source authorized by State or local law to provide adoption placement, in anticipation of the legal adoption by
  the sponsor.
4. Yes, if the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is dependent on the sponsor for over 50 percent of the child's support; or
b. Is incapable of self-support because of a mental or physical incapacity, and is dependent on the sponsor for over 50 percent of the child's support.

    (m) Officers and crews of vessels, lighthouse keepers, and depot 
keepers of the former Lighthouse Service are eligible for benefits as 
shown in Table 41 to this subpart.

  Table 41 to Subpart C of Part 161--Benefits for Officers and Crews of Vessels, Lighthouse Keepers, and Depot Keepers of the Former Lighthouse Service
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Self..............................  No....................  No....................  Yes...................  Yes..................  Yes.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    (n) Presidential appointees who have been confirmed by the Senate 
(PASs) are eligible for benefits as shown in Table 42 to this subpart.

                                         Table 42 to Subpart C of Part 161--Benefits for Presidential Appointees
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Self..............................  No....................  1.....................  2.....................  Yes..................  2.
PASec.............................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1. Designation for PASs and other designated civilian officials within the DoD and the Military Departments. This is a specific reimbursable care value
  at the interagency rate outside the National Capital Region.
2. Yes, if residing in quarters on DoD military installations.

    (o) Contract surgeons overseas during the period of their contract 
are eligible for benefits as shown in Table 43 to this subpart.

[[Page 770]]



                                       Table 43 to Subpart C of Part 161--Benefits for Contract Surgeons Overseas
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Self..............................  No....................  No....................  No....................  1....................  1.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
1. Only during the period of their contract with the Surgeon General.

    (p) State employees of the National Guard may be identified in DEERS 
for the purpose of issuing a CAC to access DoD networks. There are no 
benefits assigned and no dependent benefits are extended as shown in 
Table 44 to this subpart.

                                          Table 44 to Subpart C of Part 161--Benefits for State Guard Employees
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Self..............................  No....................  No....................  No....................  No...................  No.
--------------------------------------------------------------------------------------------------------------------------------------------------------



Sec.  161.21  Benefits for retired civilian personnel.

    (a) Retired DoD civilian employees. Retired appropriated and non-
appropriated fund employees of the DoD are eligible for benefits as 
shown in Table 45 to this subpart. The Under Secretary of Defense for 
Personnel and Readiness Memorandum, ``Department of Defense Civilian 
Retiree Identification Cards,'' authorized the issuance of a DoD ID card 
to this population.

                                     Table 45 to Subpart C of Part 161--Benefits for Retired DoD Civilian Employees
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Self..............................  No....................  No....................  No....................  1....................  No.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
1. Yes, but benefit is not printed on the DoD ID card and will be facilitated in accordance with DoD Instruction 1015.10.

    (b) Retired NOAA Wage Mariner employees and their eligible 
dependents. Retired NOAA Wage Mariners (including retired ship's 
noncommissioned officers and members of the crews of NOAA vessels and 
its predecessors), and their dependents are eligible for benefits in 
accordance with 33 U.S.C. 3074 as shown in Table 46 to this subpart. 
Surviving dependents of deceased retired NOAA wage mariners remain 
eligible for benefits in accordance with governing policies as shown in 
Table 46 to this subpart.

                    Table 46 to Subpart C of Part 161--Benefits for Retired NOAA Wage Mariner Employees and Their Eligible Dependents
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Self..............................  No....................  No....................  Yes...................  Yes..................  Yes.
Lawful Spouse.....................  No....................  No....................  Yes...................  Yes..................  Yes.
Children, Unmarried, Under 21
 Years:
    Legitimate, adopted,            No....................  No....................  1.....................  1....................  1.
     stepchild, illegitimate child
     of record of female member,
     illegitimate child of male
     member, whose paternity has
     been judicially determined,
     or foster child.
    Ward..........................  No....................  No....................  2.....................  2....................  2.

[[Page 771]]

 
    Pre-adoptive Child............  No....................  No....................  3.....................  3....................  3.
Children, Unmarried, 21 Years and   No....................  No....................  4.....................  4....................  4.
 Over.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1. Yes, if dependent on an authorized sponsor for over 50 percent of the child's support and residing in the sponsor's household.
2. Yes, if, for determinations of dependency made on or after July 1, 1994, placed in the legal custody of the sponsor or former member as a result of a
  court of competent jurisdiction in the United States (or possession of the United States) for a period of at least 12 consecutive months, and if
  dependent on the sponsor for over 50 percent of the child's support, and residing in the sponsor's household.
3. Yes, if, for determinations of dependency made on or after October 5, 1994, placed in the home of the sponsor by a placement agency (recognized by
  the Secretary of Defense) or by another source authorized by State or local law to provide adoption placement, in anticipation of the legal adoption
  by the sponsor.
4. Yes, if the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is dependent on the sponsor for over 50 percent of the child's support; or
b. Is incapable of self-support because of a mental or physical incapacity, and is dependent on the sponsor for over 50 percent of the child's support.



Sec.  161.22  Benefits for foreign affiliates.

    (a) Sponsored NATO and PFP personnel in the United States. Active 
duty officer and enlisted personnel of NATO and PFP countries serving in 
the United States under the sponsorship or invitation of the DoD or a 
Military Service and their accompanying dependents living in the 
sponsor's U.S. household are eligible for benefits as shown in Table 47 
to this subpart.

            Table 47 to Subpart C of Part 161--Benefits for Sponsored NATO and PFP Personnel and Accompanying Dependents in the United States
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Self..............................  No....................  1.....................  2.....................  2....................  2.
Lawful Spouse.....................  3.....................  1.....................  4.....................  4....................  4.
Children, Unmarried, Under 21
 Years:
    Legitimate, adopted,            3, 4..................  1, 4..................  4.....................  4....................  4.
     stepchild, illegitimate child
     of member, or illegitimate
     child of spouse.
    Ward..........................  No....................  No....................  5.....................  5....................  5.
Children, Unmarried, 21 Years and   3, 6..................  1, 6..................  7.....................  7....................  7.
 Over.
Parent, Parent-in-Law, Stepparent,  No....................  No....................  4.....................  4....................  4.
 or Parent by Adoption.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1. Yes, for outpatient care no charge and for inpatient care at full reimbursable rate.
2. Yes, if:
a. Under orders issued by a U.S. Military Service; or
b. Assigned military attach[eacute] duties in the United States and designated on reciprocal agreements with the Department of State.
3. Yes, for outpatient care only.
4. Yes, if residing in the household of the authorized sponsor in the United States.
5. Yes, if, for determination of dependency made on or after July 1, 1994, placed in the legal custody of the sponsor as a result of a court of
  competent jurisdiction in the United States (or possession of the United States) for a period of at least 12 consecutive months, and if residing in
  the authorized sponsor's household.
6. Yes, if residing in the household of the authorized sponsor in the United States and the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is dependent on the sponsor for over 50 percent of the child's support; or
b. Is incapable of self-support because of a mental or physical incapacity that existed before age 21, or occurred before the age of 23 while a full-
  time student, while a dependent of a sponsor, and is dependent on the sponsor for over 50 percent of the child's support.
7. Yes, if the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is dependent on the sponsor for over 50 percent of the child's support; or
b. Is incapable of self-support because of a mental or physical, and is dependent on the sponsor for over 50 percent of the child's support.


[[Page 772]]

    (b) Sponsored non-NATO personnel in the United States. Active duty 
officer and enlisted personnel of non-NATO countries serving in the 
United States under DoD or Service sponsorship or invitation and their 
dependents, living in the non-NATO personnel's U.S. household, are 
eligible for benefits as shown in Table 48 to this subpart.

              Table 48 to Subpart C of Part 161--Benefits for Sponsored Non-NATO Personnel and Accompanying Dependents in the United States
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Self..............................  No....................  1.....................  2.....................  2....................  2.
Lawful Spouse.....................  No....................  1.....................  3.....................  3....................  3.
Children, Unmarried, Under 21
 Years:
    Legitimate, adopted,            No....................  1, 4..................  3.....................  3....................  3.
     stepchild, illegitimate child
     of member, or illegitimate
     child of spouse.
    Ward..........................  No....................  No....................  4.....................  4....................  4.
Children, Unmarried, 21 Years and   No....................  1, 5..................  6.....................  6....................  6.
 Over.
Parent, Parent-in-Law, Stepparent,  No....................  No....................  3.....................  3....................  3.
 or Parent by Adoption.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1. Yes, for outpatient care only on a reimbursable basis.
2. Yes, if under orders issued by a U.S. Military Service.
3. Yes, if residing in the household of the authorized sponsor in the United States.
4. Yes, if, for determination of dependency made on or after July 1, 1994, placed in the legal custody of the sponsor as a result of a court of
  competent jurisdiction in the United States (or possession of the United States) for a period of at least 12 consecutive months, and if residing in
  the authorized sponsor's household.
5. Yes, if residing in the household of the authorized sponsor in the United States and the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is dependent on the sponsor for over 50 percent of the child's support; or
b. Is incapable of self-support because of a mental or physical incapacity that existed before age 21, or occurred before the age of 23 while a full-
  time student, while a dependent of a sponsor, and is dependent on the sponsor for over 50 percent of the child's support.
6. Yes, if residing in the household of the authorized sponsor in the United States and the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is dependent on the sponsor for over 50 percent of the child's support; or
b. Is incapable of self-support because of a mental or physical, and is dependent on the sponsor for over 50 percent of the child's support.

    (c) Non-sponsored NATO personnel in the United States. Active duty 
officer and enlisted personnel of NATO countries who, in connection with 
their official NATO duties, are stationed in the United States but are 
not under DoD or Service sponsorship and their accompanying dependents 
living in the non-sponsored NATO personnel's U.S. household are eligible 
for benefits as shown in Table 49 to this subpart.

          Table 49 to Subpart C of Part 161--Benefits for Non-Sponsored NATO and PFP Personnel in the United States and Accompanying Dependents
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Self..............................  No....................  1.....................  No....................  No...................  No.
Lawful Spouse.....................  2.....................  1.....................  No....................  No...................  No.
Children, Unmarried, Under 21
 Years:
    Legitimate, adopted,            2, 3..................  1, 3..................  No....................  No...................  No.
     stepchild, illegitimate child
     of member, or illegitimate
     child of spouse.
    Ward..........................  No....................  No....................  No....................  No...................  No.
Children, Unmarried, 21 Years and   2, 3, 4...............  1, 3, 4...............  No....................  No...................  No.
 Over.

[[Page 773]]

 
Parent, Parent-in-Law, Stepparent,  No....................  No....................  No....................  No...................  No.
 or Parent by Adoption.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1. Yes, for outpatient care no charge and for inpatient care at full reimbursable rate.
2. Yes, for outpatient care only.
3. Yes, if residing in the household of the authorized sponsor in the United States.
4. Yes, if residing in the household of the authorized sponsor in the United States and the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is dependent on the sponsor for over 50 percent of the child's support; or
b. Is incapable of self-support because of a mental or physical incapacity that existed before age 21, or occurred before the age of 23 while a full-
  time student, while a dependent of a sponsor, and is dependent on the sponsor for over 50 percent of the child's support.

    (d) NATO and non-NATO personnel outside the United States. Active 
duty officer and enlisted personnel of NATO and non-NATO countries 
serving outside the United States and outside their own country under 
DoD or Service sponsorship or invitation and their accompanying 
dependents living with the sponsor are eligible for benefits as shown in 
Table 50 to this subpart. These benefits may be extended to this 
category of personnel not under DoD or Service sponsorship or invitation 
when it is determined by the major overseas commander that the granting 
of such privileges is in the best interests of the United States and 
such personnel are connected with, or their activities are related to, 
the performance of functions of the Service establishment.

         Table 50 to Subpart C of Part 161--Benefits for NATO, PFP, and Non-NATO Personnel Outside the United States and Accompanying Dependents
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Self..............................  No....................  1.....................  Yes...................  Yes..................  Yes.
Lawful Spouse.....................  No....................  1.....................  Yes...................  Yes..................  Yes.
Children, Unmarried, Under 21
 Years:
    Legitimate, adopted,            No....................  1, 2..................  2.....................  2....................  2.
     stepchild, illegitimate child
     of member, or illegitimate
     child of spouse.
    Ward..........................  No....................  No....................  3.....................  3....................  3.
Children, Unmarried, 21 Years and   No....................  1, 4..................  5.....................  5....................  5.
 Over.
Parent, Parent-in-Law, Stepparent,  No....................  No....................  2.....................  2....................  2.
 or Parent by Adoption.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1. Yes, for outpatient care only on a reimbursable basis.
2. Yes, if residing in the household of the authorized sponsor and dependent on over 50 percent support.
3. Yes, if, for determination of dependency made on or after July 1, 1994, placed in the legal custody of the sponsor as a result of a court of
  competent jurisdiction in the United States (or possession of the United States) for a period of at least 12 consecutive months, and if dependent on
  the sponsor for over 50 percent of the child's support, and residing in the sponsor's household.
4. Yes, if residing in the household of the authorized sponsor and the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is dependent on the sponsor for over 50 percent of the child's support; or
b. Is incapable of self-support because of a mental or physical incapacity that existed before age 21, or occurred before the age of 23 while a full-
  time student, while a dependent of a sponsor, and is dependent on the sponsor for over 50 percent of the child's support.
5. Yes, if residing in the household of the authorized sponsor in the United States and the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is dependent on the sponsor for over 50 percent of the child's support; or
b. Is incapable of self-support because of a mental or physical, and is dependent on the sponsor for over 50 percent of the child's support.


[[Page 774]]

    (e) Korean Augmentation to the U.S. Army (KATUSA). Military service 
is mandatory for all Republic of Korea (ROK) male citizens. Those male 
citizens who speak English often become KATUSA serving with the U.S. 
Army forces in the ROK. This arrangement is provided for in the status 
of forces agreement between the United States and ROK. The KATUSAs are 
identified in DEERS for the purpose of issuing CACs for access to the 
U.S. installations in the ROK. No other benefits are provided as shown 
in Table 51 to this subpart.

                                                 Table 51 to Subpart C of Part 161--Benefits for KATUSA
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Self..............................  No....................  No....................  No....................  No...................  No.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    (f) Foreign national civilians. Civilian employees of a foreign 
government who are assigned a support role with the DoD or Military 
Services or attending school at one of the DoD or uniformed services 
advanced schools may be identified in DEERS for the purpose of issuing a 
CAC. The foreign national civilian must be sponsored by the DoD or a 
Military Service regardless of whether the foreign national civilian is 
from a NATO, PFP, or non-NATO country. There are no benefits assigned 
and no dependent benefits are extended as shown in Table 52 to this 
subpart.

                                       Table 52 to Subpart C of Part 161--Benefits for Foreign National Civilians
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Self..............................  No....................  No....................  No....................  No...................  No.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    (g) Foreign national contractors. Contractor personnel, contracted 
to a foreign government, who are assigned a support role with the DoD or 
Military Services or as a representative of a foreign government at one 
of the DoD or uniformed services advanced schools may be identified in 
DEERS for the purpose of issuing a CAC for physical and logical access 
requirements. The foreign national contractor must be sponsored by the 
DoD or a Military Service regardless of whether the foreign national 
civilian is from a NATO, PFP, or a non-NATO country. There are no 
benefits assigned and no dependent benefits are extended as shown in 
Table 53 to this subpart.

                                      Table 53 to Subpart C of Part 161--Benefits for Foreign National Contractors
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Self..............................  No....................  No....................  No....................  No...................  No.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    (h) Personnel subject to a Reciprocal Health Care Agreement (RHCA) 
in the United States. For countries that have bilateral RHCAs with the 
DoD, RHCAs provide that a limited number of foreign force members and 
their dependents in the United States may be provided inpatient medical 
care at MTFs on a space-available basis without cost (except for a 
subsistence charge, if it applies). Provision of such care is contingent 
on comparable care being made available to a comparable number of U.S. 
military personnel and their dependents in the foreign country. Benefits 
are provided as shown in Table 54 to this subpart.

[[Page 775]]



 Table 54 to Subpart C of Part 161--Benefits for Foreign Force Members and Eligible Dependents Residing in the United States Who Are Covered by an RHCA
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              CHC                     DC                       C                     MWR                     E
--------------------------------------------------------------------------------------------------------------------------------------------------------
Self..............................  No....................  1.....................  No....................  No...................  No.
Lawful Spouse.....................  No....................  1.....................  No....................  No...................  No.
Children, Unmarried, Under 21
 Years:
    Legitimate, adopted,            No....................  1, 2..................  No....................  No...................  No.
     stepchild, illegitimate child
     of member, or illegitimate
     child of spouse.
    Ward..........................  No....................  No....................  No....................  No...................  No.
Children, Unmarried, 21 Years and   No....................  1, 2, 3...............  No....................  No...................  No.
 Over.
Parent, Parent-in-Law, Stepparent,  No....................  No....................  No....................  No...................  No.
 or Parent by Adoption.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1. As determined by the appropriate RHCA.
2. Yes, if residing in the household of the authorized sponsor in the United States.
3. Yes, if residing in the household of the authorized sponsor in the United States, the child:
a. Has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering
  Secretary, and is dependent on the sponsor for over 50 percent of the child's support; or
b. Is incapable of self-support because of a mental or physical incapacity that existed before age 21, or occurred before the age of 23 while a full-
  time student, while a dependent of a sponsor, and is dependent on the sponsor for over 50 percent of the child's support.



   Subpart D_DoD Identification (ID) Cards: Eligibility Documentation 
  Required for Defense Enrollment Eligibility Reporting System (DEERS) 
           Enrollment, Record Management, and ID Card Issuance

    Source: 81 FR 74904, Oct. 27, 2016, unless otherwise noted.



Sec.  161.23  Procedures.

    (a) Eligibility documentation--(1) Basic requirements. (i) ID card 
applicants must provide documentation as initial verification of 
eligibility for benefits or as proof of relationship to the sponsor. The 
sponsor is the prime beneficiary who derives eligibility based on 
individual status rather than dependence upon or relationship to another 
person, in accordance with Sec.  161.7(a). When possible, DEERS records 
will be established and updated by authoritative data feeds.
    (ii) An individual's DEERS record is established through the in-
person presentation of identity documentation and, in some cases, 
eligibility documentation. Documentation verifying an ID card 
applicant's identity is always required in accordance with Sec.  
161.7(d)(1). Eligibility documentation may also be required to update a 
DEERS record to reflect a change in benefits or status.
    (A) Identity and eligibility documentation is reviewed for 
authenticity by a RAPIDS verifying official (VO) and incorporated into 
the individual's DEERS record as necessary.
    (B) The sponsor or DoD beneficiary must provide documentation to 
establish or terminate the relationship to a dependent within 30 days of 
the change.
    (C) The VO ensures that the DD Form 1172-2 is signed by the sponsor.
    (1) If the sponsor refuses to sign or is physically unable to sign 
the application, the VO verifies that the dependency between the sponsor 
and dependent exists and includes reasons why the sponsor is not able to 
or will not sign the application on the DD Form 1172-2. The VO then 
signs in the sponsor signature block and in the verifier's block.
    (2) If the sponsor is deceased, the DoD beneficiary signs on the 
beneficiary's own behalf or on behalf of the surviving dependent.
    (D) A VO may request additional documentation if there is any 
question of the authenticity of those presented.
    (iii) Eligible individuals presenting eligibility documentation not 
listed in this subpart must have the responsible

[[Page 776]]

uniformed service Judge Advocate General or local Staff Judge Advocate 
(SJA) review and verify the documentation. A written Judge Advocate 
General or SJA opinion may need to be submitted at ID card issuance, 
verifying the documentation's use for DEERS enrollment.
    (2) Documentation standards--(i) Certified documentation. All 
documentation must be an original or certified document.
    (ii) Foreign documentation. Additional requirements are applied 
toward the verification of foreign eligibility documentation submitted 
to support enrollment of a dependent, including:
    (A) A full English language translation, which the translator has 
certified as complete and accurate, and the translator's certification 
of competency to translate from the foreign language into English, in 
accordance with 8 CFR 103.2(b)(3). Translation must be provided by a 
translator other than the individual presenting the document.
    (B) A written Judge Advocate General or local SJA opinion confirming 
use of the eligibility documentation, if the uniformed service member is 
stationed overseas.
    (C) Documentation that attests to the genuineness of the signature 
and seal, or the position of the foreign official who executed, issued, 
or certified the foreign documentation being presented to substantiate 
the dependency relationship to the sponsor.
    (1) An accompanying original apostille (i.e., certification) from a 
higher-level authority in the foreign country of issuance, for 
eligibility documents from countries that have adopted the Hague 
Convention Abolishing the Requirement of Legalisation for Foreign Public 
Documents, October 5, 1961 (copies may be obtained from the Internet at 
https://www.hcch.net/en/ instruments/conventions/ full-text/?cid=41). 
Sponsors should contact their SJA for information on how to obtain an 
apostille from a member nation; or
    (2) An accompanying original certificate of authentication by a U.S. 
Consular Officer in the foreign country of issuance, for eligibility 
documents from all other foreign nations. Sponsors should contact their 
SJA for information on how to request issuance of certificate(s) of 
authentication from a U.S. Consular official.
    (b) Documentation for dependents--(1) Overview. This paragraph (b) 
describes eligibility documentation required for eligible dependents of 
qualifying sponsors, including current, former, and retired uniformed 
service members, civilian employees, and other eligible individuals in 
accordance with subpart C of this part. Dependents who are eligible for 
benefits in accordance with subpart C of this part must provide 
eligibility documentation that establishes the dependent's relationship 
to the sponsor and verifies eligibility, as shown in Tables 1 through 12 
to this subpart.
    (i) The uniformed services restrict cross-servicing for verification 
of the DD Form 1172-2 and eligibility documentation to the responsible 
uniformed service for certain categories of dependents, in accordance 
with Sec.  161.7(e)(1).
    (ii) Service-specific requirements and processes are addressed in 
Air Force Instruction 36-3026, ``Identification Cards for Members of the 
Uniformed Services, Their Eligible Family Members, and Other Eligible 
Personnel'' (available at: http://static.e-publishing.af.mil/ 
production/1/af_a1/ publication/afi36-3026v1_ip/ afi_36-3026_ip.pdf).
    (2) Spouse. A sponsor's spouse must have eligibility verified by 
documentation shown in Table 1 to this subpart.

Table 1 to Subpart D of Part 161--Eligibility Documentation Required for
                                a Spouse
------------------------------------------------------------------------
              Status                      Eligibility documentation
------------------------------------------------------------------------
Spouse............................  Marriage certificate.
Common Law Spouse.................  SJA opinion (Note 1) and Common law
                                     marriage certificate (Note 2) or
                                     Court order (Note 3).
------------------------------------------------------------------------
Notes:
1. A written SJA opinion that a common law marriage is recognized in the
  relevant State or U.S. jurisdiction.
2. A common law marriage certificate certified by the State.
3. An order or other appropriate document from a court of competent
  jurisdiction in the United States (or U.S. territory or possession)
  that establishes a common law marriage.


[[Page 777]]

    (3) Child, unmarried, under the age of 21. A sponsor's dependent 
child, who is unmarried and under the age of 21, must have eligibility 
verified as shown in Tables 2 through 7 to this subpart. A child under 
the age of 21, who marries and subsequently divorces, may present a 
divorce decree and have eligibility reinstated, if the other 
requirements for a dependent child are met.
    (i) Legitimate child. A sponsor's legitimate child must have 
eligibility verified by documentation shown in Table 2 to this subpart.

Table 2 to Subpart D of Part 161--Eligibility Documentation Required for
                           a Legitimate Child
------------------------------------------------------------------------
              Status                      Eligibility documentation
------------------------------------------------------------------------
Legitimate Child..................  Birth certificate (Note 1).
Legitimate Child Conceived          Birth certificate (Note 1) and
 Posthumously.                       Director, DoDHRA memorandum (Note
                                     2).
------------------------------------------------------------------------
Notes:
1. A certificate of live birth or an FS-240, ``Consular Report of Birth
  Abroad,'' may be used in lieu of a birth certificate.
2. A memorandum signed by the Director, DoDHRA, establishing the
  eligibility for a child conceived of artificial insemination after the
  sponsor's death. The deceased sponsor's responsible uniformed service
  project office must submit all eligibility determination requests to
  DoDHRA, including documentation that:
a. Verifies the sponsor's intent to start a family, usually provided by
  the lab or clinic that assisted the couple with the in vitro process.
b. Provides the date of the sponsor's death.
c. Provides the date of birth or expected date of birth of the child.

    (ii) Pre-adoptive or adopted child. A sponsor's pre-adoptive or 
adopted child must have eligibility verified by documentation shown in 
Table 3 to this subpart.

Table 3 to Subpart D of Part 161--Eligibility Documentation Required for
                     a Pre-Adoptive or Adopted Child
------------------------------------------------------------------------
              Status                      Eligibility documentation
------------------------------------------------------------------------
Pre-Adoptive Child................  Birth certificate (Note 1) and
                                     Placement agreement (Note 2) or
                                     Court order (Note 2) or Document
                                     authorized by State or local law
                                     (Notes 2, 3).
Adopted Child.....................  Birth certificate (Note 1) and
                                     Adoption decree (Note 4) or Court
                                     order (Note 4).
------------------------------------------------------------------------
Notes:
1. A certificate of live birth or an FS-240 may be used in lieu of a
  birth certificate. When a placement agreement or an order or other
  appropriate document from a court of competent jurisdiction in the
  United States (or U.S. territory or possession) establishes the
  child's date of birth, it may also be used in lieu of a birth
  certificate.
2. The placement agreement, order or other appropriate document from a
  court of competent jurisdiction in the United States (or U.S.
  territory or possession), or other appropriate document from any other
  source authorized by State or local law to provide adoption placement
  must include the intent to adopt.
3. An appropriate document from any other source authorized by State or
  local law with written approval from the responsible uniformed service
  Judge Advocate General or local SJA.
4. An order or other appropriate document from a court of competent
  jurisdiction in the United States (or U.S. territory or possession)
  that establishes legal adoption of the child by the sponsor.

    (iii) Stepchild. A sponsor's stepchild must have eligibility 
verified by documentation shown in Table 4 to this subpart.

Table 4 to Subpart D of Part 161--Eligibility Documentation Required for
                               a Stepchild
------------------------------------------------------------------------
              Status                      Eligibility documentation
------------------------------------------------------------------------
Stepchild.........................  Birth certificate (Note 1) and
                                     Sponsor's marriage certificate
                                     (Note 2).
------------------------------------------------------------------------
Note:
1. A certificate of live birth or an FS-240 may be used in lieu of a
  birth certificate. When a placement agreement or an order or other
  appropriate document from a court of competent jurisdiction in the
  United States (or U.S. territory or possession) establishes the
  child's date of birth, it may also be used in lieu of a birth
  certificate.
2. A marriage certificate that establishes the relationship between the
  child's parent and the sponsor.

    (iv) Illegitimate child of record. A male sponsor's illegitimate 
child of record must have eligibility verified by documentation shown in 
Table 5 to this subpart.

[[Page 778]]



Table 5 to Subpart D of Part 161--Eligibility Documentation Required for
              a Male Sponsor's Illegitimate Child of Record
------------------------------------------------------------------------
              Status                      Eligibility documentation
------------------------------------------------------------------------
Illegitimate child of record whose  Birth certificate (Note 1) and Court
 paternity has been judicially       document (Note 2) or Consent order
 determined.                         of paternity (Note 3).
Illegitimate child of record whose  Birth certificate (Note 1) and SJA
 paternity has not been judicially   opinion (Note 4) or Voluntary
 determined.                         acknowledgment of paternity (Note
                                     5).
------------------------------------------------------------------------
Notes:
1. A certificate of live birth or an FS-240 may be used in lieu of a
  birth certificate. When a placement agreement or an order or other
  appropriate document from a court of competent jurisdiction in the
  United States (or U.S. territory or possession) establishes the
  child's date of birth, it may also be used in lieu of a birth
  certificate.
2. An order or other appropriate document from a court of competent
  jurisdiction in the United States (or U.S. territory or possession)
  that establishes paternity.
3. A consent order of paternity, recognized by a court of competent
  jurisdiction in the United States (or U.S. territory or possession).
  An affidavit of paternity, recognized by a court of competent
  jurisdiction in the United States (or U.S. territory or possession),
  may be used in lieu of a consent order of paternity.
4. A written SJA opinion, if the member is stationed in a foreign
  country.
5. A voluntary acknowledgement of paternity signed by both parents and
  filed with the State.

    (v) Ward. A sponsor's ward must have eligibility verified by 
documentation shown in Table 6 to this subpart. The sponsor must certify 
on the DD Form 1172-2 that the sponsor is providing more than 50 percent 
of the dependent's support and that the ward resides in the sponsor's 
household in order to issue an ID card.

Table 6 to Subpart D of Part 161--Eligibility Documentation Required for
                                 a Ward
------------------------------------------------------------------------
              Status                      Eligibility documentation
------------------------------------------------------------------------
Ward..............................  Birth certificate (Note 1) and
                                     Financial dependency determination
                                     (Note 2) and Placement agreement
                                     (Note 3) or Court document (Note
                                     3).
------------------------------------------------------------------------
Notes:
1. A certificate of live birth or an FS-240 may be used in lieu of a
  birth certificate. When a placement agreement or an order or other
  appropriate document from a court of competent jurisdiction in the
  United States (or U.S. territory or possession) establishes the
  child's date of birth, it may also be used in lieu of a birth
  certificate.
2. A financial dependency determination from the responsible service's
  Defense Finance and Accounting Services (DFAS), or the service
  equivalent pay office, acknowledging that the sponsor is providing
  more than 50 percent of the dependent's support, or was at the time of
  the sponsor's death.
3. A placement agreement or an order or other appropriate document from
  a court of competent jurisdiction in the United States (or U.S.
  territory or possession) that establishes legal custody of the child
  by the sponsor for no less than 12 consecutive months.

    (vi) Foster child. A sponsor's foster child must have eligibility 
verified by documentation shown in Table 7 to this subpart.

Table 7 to Subpart D of Part 161--Eligibility Documentation Required for
                             a Foster Child
------------------------------------------------------------------------
              Status                      Eligibility documentation
------------------------------------------------------------------------
Foster Child......................  Birth certificate (Note 1) and
                                     Placement agreement (Note 2) or
                                     Court document (Note 2).
------------------------------------------------------------------------
Notes:
1. A certificate of live birth or an FS-240 may be used in lieu of a
  birth certificate. When a placement agreement or an order or other
  appropriate document from a court of competent jurisdiction in the
  United States (or U.S. territory or possession) establishes the
  child's date of birth, it may also be used in lieu of a birth
  certificate.
2. A placement agreement or an order or other appropriate document from
  a court of competent jurisdiction in the United States (or U.S.
  territory or possession) that establishes the child's relationship to
  the sponsor.

    (4) Child, unmarried, over the age of 21. A sponsor's dependent 
child, who is unmarried and over the age of 21, must have eligibility 
verified as shown in Tables 8 and 9 to this subpart.
    (i) Full-time student. A sponsor's child who is between the ages of 
21 and 23 and enrolled as a full-time student at an institution of 
higher learning must have eligibility verified by documentation shown in 
Table 8 to this subpart.

[[Page 779]]



Table 8 to Subpart D of Part 161--Eligibility Documentation Required for
                           a Full-Time Student
------------------------------------------------------------------------
              Status                      Eligibility documentation
------------------------------------------------------------------------
Full-Time Student.................  Dependent documentation (Note 1) and
                                     Letter from school registrar (Note
                                     2) and Sponsor's certification of
                                     50 percent support (Note 3).
------------------------------------------------------------------------
Notes:
1. Eligible dependents, as identified in subpart C of this part, must
  establish their relationship to the sponsor as specified in Tables 2
  through 7 in this subpart, if the relationship has not previously been
  established.
2. A letter from the school registrar that establishes the child as a
  full-time student.
3. Sponsor's certification on the DD Form 1172-2 that he or she is
  providing more than 50 percent of the dependent's support.

    (ii) Incapacitated child. A sponsor must follow the Service-specific 
process for initial determination of an incapacitated dependent child. 
The incapacitated dependent child must have eligibility verified by 
documentation shown in Table 9 to this subpart.

Table 9 to Subpart D of Part 161--Eligibility Documentation Required for
                         an Incapacitated Child
------------------------------------------------------------------------
              Status                      Eligibility documentation
------------------------------------------------------------------------
Incapacitated Child...............  Dependent documentation (Note 1) and
                                     Medical sufficiency statement (Note
                                     2) and Financial dependency
                                     determination (Note 3).
------------------------------------------------------------------------
Notes:
1. Eligible dependents, as identified in subpart C of this part, must
  establish their relationship to the sponsor as specified in Tables 2
  through 7 of this subpart, if the relationship has not previously been
  established.
2. A medical sufficiency statement issued by a physician in support of
  the military treatment facility or authorized TRICARE service
  provider, stating incapacitation, and dated within 90 days of
  application, as required by the sponsoring component. If applicable,
  the physician's statement must reflect that the incapacitation
  occurred after the 21st birthday but before the 23rd birthday, while
  the dependent was a full-time student.
3. A financial dependency determination from the responsible Service's
  DFAS, or the Service equivalent pay office, acknowledging that the
  sponsor is providing more than 50 percent of the dependent's support,
  or was at the time of the sponsor's death.

    (5) Parent. A sponsor's dependent parent, parent-in-law, stepparent, 
or parent-by-adoption, must have eligibility verified by documentation 
shown in Table 10 to this subpart.

  Table 10 to Subpart D of Part 161--Eligibility Documentation Required
                              for a Parent
------------------------------------------------------------------------
              Status                      Eligibility documentation
------------------------------------------------------------------------
Parent............................  Financial dependency determination
                                     (Note 1) and Birth certificate
                                     (Notes 2) and Marriage certificate
                                     (Note 3) or Adoption decree (Note
                                     4).
------------------------------------------------------------------------
Notes:
1. A financial dependency determination from the responsible Service's
  DFAS, or the Service equivalent pay office, acknowledging that the
  sponsor is providing more than 50 percent of the dependent's support,
  or was at the time of the sponsor's death.
2. A birth certificate establishing parental relationship to the
  sponsor, or the sponsor's spouse.
3. A marriage certificate establishing a relationship to the sponsor's
  parent, or the sponsor's spouse's parent.
4. An adoption decree establishing legal adoption of the sponsor, or the
  sponsor's spouse, by the parent, or parent-in-law.

    (c) Documentation for surviving dependents. This paragraph (c) 
describes eligibility documentation required for surviving dependents of 
deceased uniformed service members who are eligible for benefits in 
accordance with subpart C of this part. Surviving dependents must have 
eligibility verified by documentation shown in Table 11 to this subpart. 
For ID card issuance, the unremarried widow or widower must certify on 
the DD Form 1172-2 that the widow or widower has not remarried.

  Table 11 to Subpart D of Part 161--Eligibility Documentation Required
                        for a Surviving Dependent
------------------------------------------------------------------------
              Status                      Eligibility documentation
------------------------------------------------------------------------
Widow or Widower:
    Unremarried...................  Marriage certificate to sponsor
                                     (Note 1) and Death certificate of
                                     sponsor.

[[Page 780]]

 
    Unmarried.....................  Marriage certificate to sponsor
                                     (Note 1) and Death certificate of
                                     sponsor and Marriage certificate
                                     from subsequent marriage (Note 1)
                                     and Divorce decree from subsequent
                                     marriage (Note 2) or Death
                                     certificate from subsequent
                                     marriage.
Dependent.........................  Dependent documentation (Note 3).
------------------------------------------------------------------------
Notes:
1. A common law marriage certificate, a court order, or a written SJA
  opinion that a common law marriage is recognized by the relevant State
  or U.S. jurisdiction is also accepted.
2. A dissolution decree or annulment decree is also accepted.
3. Eligible dependents, as identified in subpart C of this part, are
  required to establish their relationship to the sponsor as specified
  in Tables 1 through 10 of this subpart, if the relationship has not
  previously been established.

    (d) Documentation for abused dependents--(1) Overview. This 
paragraph (d) describes eligibility documentation required for abused 
dependents of uniformed service members who are eligible for benefits in 
accordance with subpart C of this part.
    (i) For the purposes of this paragraph (d), dependent children are 
limited to the sponsor's legitimate children, adopted children, and 
stepchildren, in accordance with 10 U.S.C. 1408(h). Their eligibility 
ends at age 18 unless otherwise eligible as full-time students (aged 18-
23) or based on an incapacitation that existed before age 18 or occurred 
between the ages of 18 and 23 while a full-time student.
    (ii) Abused dependents are required to provide documentation that 
verifies eligibility as shown in Tables 12 and 13 to this subpart to the 
responsible uniformed service project office.
    (2) Abused dependent of a retirement-eligible service member. An 
abused dependent of a retirement eligible service member must have 
eligibility verified by documentation shown in Table 12 to this subpart.

  Table 12 to Subpart D of Part 161--Eligibility Documentation Required
     for an Abused Dependent of a Retirement-Eligible Service Member
------------------------------------------------------------------------
              Status                      Eligibility documentation
------------------------------------------------------------------------
Dependent.........................  DD Form 2698 ``Application for
                                     Transitional Compensation'' (Note
                                     1) and Letter from DFAS (Note 2)
                                     and Dependent documentation (Note
                                     3).
------------------------------------------------------------------------
Notes:
1. DD Form 2698, approved by the responsible uniformed service.
2. A letter from DFAS, approving request to receive a portion of retired
  pay, or other approval from the service equivalent pay office.
3. Eligible dependents, as identified in subpart C of this part, are
  required to establish their relationship to the sponsor as specified
  in Tables 1 through 4 of this subpart, if the relationship has not
  previously been established.

    (3) Abused dependent of a non-retirement-eligible service member. An 
abused dependent of a non-retirement-eligible Service member must have 
eligibility verified by documentation shown in Table 13 to this subpart.

  Table 13 to Subpart D of Part 161--Eligibility Documentation Required
   for an Abused Dependent of a Non-Retirement Eligible Service Member
------------------------------------------------------------------------
              Status                      Eligibility documentation
------------------------------------------------------------------------
Dependent.........................  DD Form 2698 (Note 1) and Dependent
                                     documentation (Note 2).
------------------------------------------------------------------------
Notes:
1. DD Form 2698, approved by the responsible uniformed service.
2. Eligible dependents, as identified in subpart C of this part, must
  establish their relationship to the sponsor as specified in Tables 1
  through 4 of this subpart, if the relationship has not previously been
  established.

    (e) Documentation for former spouses. This paragraph (e) describes 
eligibility documentation required for 20/20/20, 20/20/15, and 10/20/10 
former spouses of current, former, and retired uniformed service 
members, who are eligible for

[[Page 781]]

benefits in accordance with subpart C of this part. For ID card 
issuance, the unremarried former spouse must certify on the DD Form 
1172-2 that the former spouse has not remarried. 10/20/10 former 
spouses, also known as abused former spouses of retirement-eligible 
Service members who are eligible under 10 U.S.C. 4108(h), should refer 
to paragraphs (d)(1) and (2) of this section for more information. 
Eligible former spouses, as identified in subpart C of this part, must 
have eligibility verified by documentation shown in Table 14 to this 
subpart.

  Table 14 to Subpart D of Part 161--Eligibility Documentation Required
                           for a Former Spouse
------------------------------------------------------------------------
              Status                      Eligibility documentation
------------------------------------------------------------------------
Former Spouse:
    Unremarried...................  Marriage certificate to sponsor
                                     (Note 1) and Divorce decree from
                                     sponsor (Note 2) and Statement of
                                     service (Note 3).
    Unmarried.....................  Marriage certificate to sponsor
                                     (Note 1) and Divorce decree from
                                     sponsor (Note 2) and Statement of
                                     service (Note 3) and Marriage
                                     certificate from subsequent
                                     marriage (Note 1) and Divorce
                                     decree from subsequent marriage
                                     (Note 2) or Death certificate from
                                     subsequent marriage.
------------------------------------------------------------------------
Notes:
1. A common law marriage certificate, a court order, or a written SJA
  opinion that a common law marriage is recognized in the relevant State
  or U.S. jurisdiction, is also accepted.
2. A dissolution decree or annulment decree is also accepted.
3. Statement of service that establishes the uniformed service member's
  service. A complete set of DD Form 214, ``Certificate of Release or
  Discharge from Active Duty,'' or dates of inclusive service for
  servicing personnel may be used in lieu of the statement of service.

    (f) Documentation for uniformed service members--(1) Overview. This 
paragraph (f) describes eligibility documentation required for current, 
former, and retired uniformed service members, Medal of Honor (MOH) 
recipients, 100 percent disabled American veterans (DAVs), and their 
eligible dependents, in accordance with subpart C of this part.
    (i) MOH recipients must have their DEERS records updated manually, 
as indicated in this paragraph.
    (ii) Current, former, and retired members identified in this 
paragraph (f) should have eligibility updated in DEERS by an 
authoritative feed; however, under certain circumstances described in 
paragraphs (f)(2) and (3) of this section, a Service member may have 
eligibility verified by documentation shown in Tables 15 through 21 to 
this subpart.
    (iii) All other uniformed service members should have their DEERS 
records updated by authoritative data feeds.
    (2) Active duty member. An active duty member should have 
eligibility updated in DEERS by an authoritative feed; however, under 
certain circumstances described in the notes of the table, an active 
duty member may have eligibility verified by documentation shown in 
Table 15 to this subpart.

  Table 15 to Subpart D of Part 161--Eligibility Documentation Required
                for an Active Duty Member and Dependents
------------------------------------------------------------------------
              Status                      Eligibility documentation
------------------------------------------------------------------------
Active Duty Member................  Military orders (Note 1).
Dependent.........................  Dependent documentation (Note 2).
------------------------------------------------------------------------
Notes:
1. Military orders may be used at the service project officer level when
  DEERS verification is not available.
2. Eligible dependents, as identified in subpart C of this part, must
  establish their relationship to the sponsor, as specified in Tables 1
  through 10 of this subpart, if the relationship has not previously
  been established.

    (3) National Guard and Reserve member. A National Guard or Reserve 
member who is activated to active duty should have eligibility updated 
in DEERS by an authoritative feed; however, under certain circumstances 
described in the notes of the table, a National Guard or Reserve member 
may

[[Page 782]]

have eligibility verified by documentation shown in Table 16 to this 
subpart.

  Table 16 to Subpart D of Part 161--Eligibility Documentation Required
          for a National Guard or Reserve Member and Dependents
------------------------------------------------------------------------
              Status                      Eligibility documentation
------------------------------------------------------------------------
National Guard or Reserve Member..  Military orders (Note 1).
Dependent.........................  Dependent documentation (Note 2).
------------------------------------------------------------------------
Notes:
1. Military orders may be used at the service project officer level when
  DEERS verification is not available.
2. Eligible dependents, as identified in subpart C of this part, must
  establish their relationship to the sponsor, as specified in Tables 1
  through 10 of this subpart, if the relationship has not previously
  been established.

    (4) Retired reserve member. A retired reserve member should have 
eligibility updated in DEERS by an authoritative feed; however, a 
retired reserve member may also have eligibility verified by 
documentation shown in Table 17 to this subpart.

  Table 17 to Subpart D of Part 161--Eligibility Documentation Required
               for a Retired Reserve Member and Dependents
------------------------------------------------------------------------
              Status                      Eligibility documentation
------------------------------------------------------------------------
Retired Reserve Member............  Notice of eligibility (Note 1) or
                                     Retired pay orders (Note 2) or DD
                                     Form 214 (Note 3).
Retired Reserve Member ordered to   DD Form 214 (Note 3) or Military
 active duty.                        order (Note 4) or Commissioning
                                     oath (Note 4) or Enlistment
                                     contract (Note 4).
Dependent.........................  Dependent documentation (Note 5).
------------------------------------------------------------------------
Notes:
1. Notice of eligibility from the Service's designated Reserve Personnel
  Center establishing the uniformed service member's eligibility for
  retired pay at age 60.
2. Retired pay orders, establishing the uniformed service member's
  eligibility for retired pay at age 60.
3. A DD Form 214 that establishes the uniformed service member's service
  can be used when DEERS verification is not available. A statement of
  service or dates of inclusive service for servicing personnel may be
  used in lieu of the DD Form 214.
4. Documentation establishing the uniformed service member being ordered
  to active duty for greater than 30 days.
5. Eligible dependents, as identified in subpart C of this part, must
  establish their relationship to the sponsor as specified in Tables 1
  through 10 of this subpart, if the relationship has not previously
  been established.

    (5) Retired member. A retired member should have eligibility updated 
in DEERS by an authoritative feed; however, a retired member may also 
have eligibility verified by documentation shown in Table 18 to this 
subpart. Retired members include voluntary retired members, permanent 
disability retired list members, and temporary disability retired list 
members.

  Table 18 to Subpart D of Part 161--Eligibility Documentation Required
                   for a Retired Member and Dependents
------------------------------------------------------------------------
              Status                      Eligibility documentation
------------------------------------------------------------------------
Retired Member....................  Retirement orders or Correction of
                                     military record (Note 1) or DD Form
                                     214 (Note 2).
Dependent.........................  Dependent documentation (Note 3).
------------------------------------------------------------------------
Notes:
1. A correction of military record can be used at the service project
  officer level when DEERS verification is not available.
2. A DD Form 214 that establishes the uniformed service member's service
  can be used when DEERS verification is not available. A statement of
  service or dates of inclusive service for servicing personnel may be
  used in lieu of the DD Form 214.
3. Eligible dependents, as identified in subpart C of this part, must
  establish their relationship to the sponsor, as specified in Tables 1
  through 10 of this subpart, if the relationship has not previously
  been established.

    (6) Transitional Health Care (THC) member. A THC member should have 
eligibility updated in DEERS by an authoritative feed; however, a THC 
member may also have eligibility verified by documentation shown in 
Table 19 to this subpart to correct an ineligible condition.

[[Page 783]]



  Table 19 to Subpart D of Part 161--Eligibility Documentation Required
                     for a THC Member and Dependents
------------------------------------------------------------------------
              Status                      Eligibility documentation
------------------------------------------------------------------------
THC Member........................  DD Form 214 (Note 1).
Dependent.........................  Dependent documentation (Note 2).
------------------------------------------------------------------------
Notes:
1. DD Form 214, reflecting the appropriate separation program designator
  code for Transition Assistance (TA)-180 eligibility. Separation
  orders, reflecting the appropriate separation program designator code
  for TA-180 eligibility may be used in lieu of the DD Form 214.
2. Eligible dependents, as identified in subpart C of this part, must
  establish their relationship to the sponsor, as specified in Tables 1
  through 10 of this subpart, if the relationship has not previously
  been established.

    (7) MOH recipient. A MOH recipient should have eligibility verified 
by documentation shown in Table 20 to this subpart. DoDHRA will update 
all MOH DEERS records.

  Table 20 to Subpart D of Part 161--Eligibility Documentation Required
                   for a MOH Recipient and Dependents
------------------------------------------------------------------------
              Status                      Eligibility documentation
------------------------------------------------------------------------
MOH Recipient.....................  Confirmation of MOH status (Note 1).
Dependent.........................  Dependent documentation (Note 2).
------------------------------------------------------------------------
Notes:
1. Confirmation of MOH status by DoDHRA.
2. Eligible dependents, as identified in subpart C of this part, must
  establish their relationship to the sponsor, as specified in Tables 1
  through 10 of this subpart, if the relationship has not previously
  been established.

    (8) 100 percent DAV. An honorably discharged veteran who has been 
rated as 100 percent disabled or incapable of pursuing substantially 
gainful employment by the Department of Veterans Affairs (VA) should 
have eligibility verified by documentation shown in Table 21 to this 
subpart.

  Table 21 to Subpart D of Part 161--Eligibility Documentation Required
                  for a 100 Percent DAV and Dependents
------------------------------------------------------------------------
              Status                      Eligibility documentation
------------------------------------------------------------------------
100 Percent DAV...................  VA rating determination letter (Note
                                     1) and DD Form 214 (Note 2).
Dependent.........................  Dependent documentation (Note 3).
------------------------------------------------------------------------
Notes:
1. VA rating determination letter that establishes eligibility as 100
  percent disabled or incapable of pursuing substantially gainful
  employment.
2. A DD Form 214 that characterizes the uniformed service member's
  discharge as honorable.
3. Eligible dependents, as identified in subpart C of this part, are
  required to establish their relationship to the sponsor, as specified
  in Tables 1 through 10 of this subpart, if the relationship has not
  previously been established.

    (g) Documentation for civilian personnel--(1) Overview. This 
paragraph (g) describes eligibility documentation required for civilian 
personnel, and their dependents, when they are eligible for benefits in 
accordance with subpart C of this part. Civilian personnel, as the 
sponsors, and their dependents, qualify for different benefits based on 
the sponsor's status in accordance with subpart C of this part. The 
definition of ``civilian personnel'' (e.g., civilian employee, DoD 
contractor, Red Cross employee) is specific to each eligibility set 
described. Civilian employees include both appropriated fund and 
nonappropriated fund employees, in accordance with subpart B of this 
part.
    (2) Civilian personnel--(i) Civilian personnel residing on a 
military installation in the United States. Civilian personnel residing 
on a military installation in the United States, and accompanying 
dependents, must have eligibility verified by documentation shown in 
Table 22 to this subpart.

[[Page 784]]



  Table 22 to Subpart D of Part 161--Eligibility Documentation Required
for Civilian Personnel Residing on a Military Installation in the United
                   States and Accompanying Dependents
------------------------------------------------------------------------
                 Status                      Eligibility documentation
------------------------------------------------------------------------
Civilian: DoD civilian employee, DoD      Travel authorization (Note 1).
 contractor, Intergovernmental Personnel
 Act personnel, non-DoD government
 agency civilian employee under DoD
 sponsorship.
Dependent...............................  Travel authorization (Note 2)
                                           and Dependent documentation
                                           (Note 3).
------------------------------------------------------------------------
Notes:
1. A travel authorization produced by the sponsoring DoD Component
  authorizing the sponsor to reside on a military installation.
2. A travel authorization produced by the sponsoring DoD Component
  authorizing eligible dependents to accompany the sponsor.
3. Eligible dependents, as identified in subpart C of this part, are
  required to establish their relationship to the sponsor, as specified
  in Tables 1 through 12 of this subpart, if the relationship has not
  previously been established.

    (ii) Civilian personnel outside the United States. Civilian 
personnel stationed outside the United States, and accompanying 
dependents, must have eligibility verified by documentation shown in 
Table 23 to this subpart.

  Table 23 to Subpart D of Part 161--Eligibility Documentation Required
     for Civilian Personnel Stationed Outside the United States and
                         Accompanying Dependents
------------------------------------------------------------------------
                 Status                      Eligibility documentation
------------------------------------------------------------------------
Civilian: DoD civilian employee, DoD      Travel authorization (Note 1)
 contractor, Intergovernmental Personnel   and SPOT LOA (Note 2, 3).
 Act personnel, non-DoD government
 agency civilian employee under DoD
 sponsorship, DoD contractor authorized
 to accompany the Armed Forces (CAAF).
Dependent...............................  Dependent documentation (Note
                                           4) and Travel authorization
                                           (Note 5) or SPOT LOA (Note
                                           5).
------------------------------------------------------------------------
Notes:
1. A travel authorization produced by the sponsoring DoD Component,
  indicating an assignment outside the United States.
2. A SPOT LOA that designates the contractor as CAAF, if a CAAF in
  accordance with DoD Instruction 3020.41, ``Operational Contract
  Support (OCS)'' (available at: http://www.dtic.mil/ whs/directives/
  corres/ pdf/302041p.pdf).
3. A SPOT LOA, if applicable in accordance with Combatant Command
  guidance.
4. Eligible dependents, as identified in subpart C of this part, are
  required to establish their relationship to the sponsor as specified
  in Tables 1 through 10 of this subpart, if the relationship has not
  previously been established.
5. A travel authorization produced by the sponsoring DoD Component or
  SPOT LOA authorizing eligible dependents to accompany the sponsor.

    (3) Red Cross personnel. Uniformed and non-uniformed full-time paid 
personnel of the Red Cross assigned to duty with the uniformed services 
and either residing on a military installation in the United States, or 
stationed outside the United States, and accompanying dependents, must 
have eligibility verified by documentation shown in Table 24 to this 
subpart.

  Table 24 to Subpart D of Part 161--Eligibility Documentation Required
     for Full-Time Paid Personnel of the Red Cross and Accompanying
                               Dependents
------------------------------------------------------------------------
              Status                      Eligibility documentation
------------------------------------------------------------------------
Red Cross Employee................  Travel authorization (Note 1).
Dependent.........................  Travel authorization (Note 2) and
                                     Dependent documentation (Note 3).
------------------------------------------------------------------------
Notes:
1. A travel authorization produced by the sponsoring DoD Component
  authorizing the sponsor to reside on a military installation in the
  United States, or indicating an assignment outside the United States.
2. A travel authorization produced by the sponsoring DoD Component
  authorizing eligible dependents to accompany the sponsor.
3. Eligible dependents, as identified in subpart C of this part, are
  required to establish their relationship to the sponsor, as specified
  in Tables 1 through 10 of this subpart, if the relationship has not
  previously been established.

    (4) United Service Organizations (USO) personnel. USO area 
executives, center directors, and assistant directors serving outside 
the United States and outside U.S. territories and possessions and 
accompanying dependents, must

[[Page 785]]

have eligibility verified by documentation shown in Table 25 to this 
subpart.

  Table 25 to Subpart D of Part 161--Eligibility Documentation Required
 for USO Area Executives, Center Directors, and Assistant Directors and
                         Accompanying Dependents
------------------------------------------------------------------------
              Status                      Eligibility documentation
------------------------------------------------------------------------
USO Employee......................  Travel authorization (Note 1).
Dependent.........................  Travel authorization (Note 2) and
                                     Dependent documentation (Note 3).
------------------------------------------------------------------------
Notes:
1. A travel authorization produced by the sponsoring DoD Component.
2. A travel authorization produced by the sponsoring DoD Component
  authorizing eligible dependents to accompany the sponsor.
3. Eligible dependents, as identified in subpart C of this part, are
  required to establish their relationship to the sponsor, as specified
  in Tables 1 through 10 of this subpart, if the relationship has not
  previously been established.

    (5) United Seaman's Service (USS) personnel. USS personnel serving 
outside the United States and outside U.S. territories and possessions, 
and accompanying dependents, must have eligibility verified by 
documentation shown in Table 26 to this subpart.

  Table 26 to Subpart D of Part 161--Eligibility Documentation Required
              for USS Personnel and Accompanying Dependents
------------------------------------------------------------------------
              Status                      Eligibility documentation
------------------------------------------------------------------------
USS Employee (Self)...............  Travel authorization (Note 1).
Dependent.........................  Travel authorization (Note 2) and
                                     Dependent documentation (Note 3).
------------------------------------------------------------------------
Notes:
1. A travel authorization produced by the sponsoring DoD Component.
2. A travel authorization produced by the sponsoring DoD Component
  authorizing eligible dependents to accompany the sponsor.
3. Eligible dependents, as identified in subpart C of this part, are
  required to establish their relationship to the sponsor, as specified
  in Tables 1 through 10 of this subpart, if the relationship has not
  previously been established.

    (6) Military Sealift Command (MSC) personnel. MSC personnel on MSC-
owned and operated vessels outside the United States and outside U.S. 
territories and possessions, and accompanying dependents, must have 
eligibility verified by documentation shown in Table 27 to this subpart.

  Table 27 to Subpart D of Part 161--Eligibility Documentation Required
    for MSC Personnel Deployed on MSC-Owned and Operated Vessels and
                         Accompanying Dependents
------------------------------------------------------------------------
              Status                      Eligibility documentation
------------------------------------------------------------------------
MSC Employee......................  Travel authorization (Note 1).
Dependent.........................  Travel authorization (Note 2) and
                                     Dependent documentation (Note 3).
------------------------------------------------------------------------
Notes:
1. A travel authorization produced by the sponsoring DoD Component.
2. A travel authorization produced by the sponsoring DoD Component
  authorizing eligible dependents to accompany the sponsor.
3. Eligible dependents, as identified in subpart C of this part, are
  required to establish their relationship to the sponsor, as specified
  in Tables 1 through 10 of this subpart, if the relationship has not
  previously been established.

    (h) Documentation for foreign affiliates. This paragraph (h) 
describes eligibility documentation required for foreign affiliates, 
including foreign national military, civilian, and contractor personnel, 
and their dependents, when they are eligible for benefits in accordance 
with subpart C of this part. A foreign affiliate serving in the United 
States or outside the United States under the sponsorship or invitation 
of the DoD or a Military Service, and accompanying dependents, or a 
foreign affiliate serving in the United States in connection with their 
official duties but who are not under the sponsorship or invitation of 
the DoD or a Military Service, and accompanying dependents,

[[Page 786]]

must have eligibility verified by documentation shown in Table 28 to 
this subpart.

  Table 28 to Subpart D of Part 161--Eligibility Documentation Required
 for Sponsored Foreign Affiliates in the United States and Accompanying
                               Dependents
------------------------------------------------------------------------
              Status                      Eligibility documentation
------------------------------------------------------------------------
Foreign Affiliate.................  ITO (Note 1) or Foreign Visit
                                     Request (Note 1).
Dependent.........................  ITO (Note 2) or Foreign Visit
                                     Request (Note 2).
------------------------------------------------------------------------
Notes:
1. An ITO, Foreign Visit Request, or other document establishing the
  foreign affiliate's sponsorship to travel to the United States.
2. An ITO, Foreign Visit Request, or letter produced by the sponsoring
  DoD Component authorizing eligible dependents to accompany the
  sponsor.

    (i) Documentation required to terminate eligibility in DEERS--(1) 
Overview. This paragraph (i) describes documentation required to 
terminate eligibility in DEERS. When terminating eligibility in DEERS, 
documentation is required in accordance with Tables 29 through 31 to 
this subpart.
    (2) Spouse. A sponsor's spouse, former spouse, or surviving widow or 
widower, who does not qualify as a DoD beneficiary and no longer meets 
the eligibility requirements identified in subpart C of this part, must 
have eligibility terminated in DEERS by documentation shown in Table 29 
to this subpart.

 Table 29 to Subpart D of Part 161--Documentation Required To Terminate
                    Eligibility of a Spouse in DEERS
------------------------------------------------------------------------
              Status                      Eligibility documentation
------------------------------------------------------------------------
Spouse............................  Divorce decree (Note 1) or Death
                                     certificate.
Former Spouse.....................  Marriage certificate from subsequent
                                     marriage (Note 2).
Widow/Widower.....................  Marriage certificate from subsequent
                                     marriage (Note 2).
------------------------------------------------------------------------
Notes:
1. A dissolution decree or annulment decree is also accepted.
2. A common law marriage certificate, a court order, or a written SJA
  opinion that a common law marriage is recognized in the relevant State
  or U.S. jurisdiction, is also accepted.

    (3) Child. A sponsor's child, who no longer meets the eligibility 
requirements identified in subpart C of this part, must have eligibility 
terminated in DEERS by documentation shown in Table 30 to this subpart.

 Table 30 to Subpart D of Part 161--Documentation Required To Terminate
                     Eligibility of a Child in DEERS
------------------------------------------------------------------------
              Status                      Eligibility documentation
------------------------------------------------------------------------
Child, Under Age 21:
    Legitimate, Adopted, Pre-       Marriage certificate (Note 1) or
     Adoptive, Illegitimate Child.   Adoption decree (Note 2) or Court
                                     order (Note 3) or Death certificate
                                     (Note 4).
    Stepchild.....................  Marriage certificate (Note 1) or
                                     Adoption decree (Note 2) or Court
                                     order (Note 3) or Death certificate
                                     (Note 4) or Divorce decree (Notes
                                     5, 6).
    Ward, Foster Child............  Marriage certificate (Note 1) or
                                     Adoption decree (Note 2) or Court
                                     order (Note 3) or Death certificate
                                     (Note 4) or Dependency
                                     certification (Note 7).
Child, Over Age 21:
    Full-Time Student.............  Marriage certificate (Note 1) or
                                     Death certificate (Note 4) or
                                     Change in financial status (Note 7)
                                     or Letter from school registrar
                                     (Note 8).
    Temporary or Permanent          Marriage certificate (Note 1) or
     Incapacitated Child.            Death certificate (Note 4) or
                                     Change in financial status (Note 7)
                                     or Medical sufficiency statement
                                     (Note 9).
------------------------------------------------------------------------
Notes:
1. A marriage certificate, if the child marries.
2. An adoption decree, if the child is adopted and the relationship to
  the sponsor is severed. This does not apply to surviving children
  adopted by a non-military member after the death of the sponsor in
  accordance with 32 CFR 199.3(f)(3).

[[Page 787]]

 
3. An order or appropriate document from a court of competent
  jurisdiction in the United States (or U.S. territory or possession),
  affirming either the voluntary relinquishment or involuntary
  termination of parental rights and placing the child into custody of
  another guardian, or emancipating the child. In cases of involuntary
  termination, the Service project office should consult with the local
  SJA and confirm that the sponsor was properly notified of the
  involuntary termination proceedings and was given the opportunity to
  defend the sponsor's rights.
4. A death certificate, if the child dies.
5. A final divorce decree, if the sponsor and the child's parent divorce
  in accordance with 32 CFR 199.3(f)(3).
6. A dissolution decree or annulment decree is also accepted.
7. Sponsor certification on the DD Form 1172-2 that the sponsor is not
  providing more than 50 percent or that the child does not resides in
  the household.
8. A letter from the school registrar that establishes the child is no
  longer a full-time student.
9. A medical sufficiency statement issued by a physician in support of
  the military treatment facility or authorized TRICARE service
  provider, establishing the end of an incapacitation.

    (4) Parent. A sponsor's parent, including a parent-in-law, 
stepparent, or parent-by-adoption, who no longer meets the eligibility 
requirements, as identified in subpart C of this part, must have 
eligibility terminated in DEERS by documentation shown in Table 31 to 
this subpart.

 Table 31 to Subpart D of Part 161--Documentation Required To Terminate
                    Eligibility of a Parent in DEERS
------------------------------------------------------------------------
              Status                      Eligibility documentation
------------------------------------------------------------------------
Parent............................  Change in financial status (Note 1)
                                     or Divorce decree (Note 2) or
                                     Marriage certificate (Note 3) or
                                     Death certificate (Note 4) or.
------------------------------------------------------------------------
Notes:
1. The sponsor, or the dependent parent, verifies that the sponsor is
  not providing more than 50 percent financial support for the parent.
2. The relationship between the sponsor and the parent-in-law is
  terminated as a result of a divorce. A dissolution decree or annulment
  decree is also accepted.
3. The parent marries.
4. The parent dies.

    (j) Documentation required to set data display restrictions in 
DEERS. This paragraph (j) describes documentation required to request 
data display restrictions in DEERS. In certain circumstances, data 
display restrictions may be applied in DEERS to mask data elements from 
being viewed by affiliated family members by documentation shown in 
Table 32 to this subpart. Reasons and circumstances for restricting data 
may include, but are not limited to, personal preference and cases of 
abuse. Restricted data may include, but is not limited to, contact 
information such as an address, phone number, or email address.

  Table 32 to Subpart D of Part 161--Documentation Required To Set Data
                          Display Restrictions
------------------------------------------------------------------------
              Status                            Documentation
------------------------------------------------------------------------
Sponsor or Dependent..............  DEERS Support Office request (Note
                                     1) or Project Office request (Note
                                     2) or Protective order (Note 3) or
                                     Health Insurance Portability and
                                     Accountability Act request (Note
                                     4).
------------------------------------------------------------------------
Notes:
1. A request to the DEERS Support Office asking for contact information
  to be restricted.
2. A request to the Service DEERS/RAPIDS Project Office asking for the
  contact information to be restricted.
3. An order or other appropriate document from a court of competent
  jurisdiction in the United States (or U.S. territory or possession)
  that establishes a protective order.
4. A request to restrict health information.

    (k) Documentation required to change a gender marker in DEERS. This 
paragraph (k) describes documentation required to request a change to a 
retiree's, a dependent's, or a contractor's gender marker in DEERS. 
Requests to change a gender marker require submission of documentation 
listed in Table 33 to this subpart that reflects the applicant's gender 
identity. All requests by retirees, dependents, and contractors to 
change gender markers must be submitted by the sponsor's responsible 
uniformed service project office or sponsoring agency to DoDHRA.
    (1) For changes to a retiree's gender marker, after DoDHRA confirms 
the

[[Page 788]]

change in DEERS, the uniformed service project office must follow 
existing Service procedures to send an update to DFAS, or the Service 
equivalent pay office, to allow DFAS, or the Service equivalent pay 
office, to update its system with the retiree's gender identity.
    (2) A military Service member should refer to DoD Instruction 
1300.28, ``In-Service Transition For Transgender Service Members'' 
(available at: http://www.dtic.mil/ whs/directives/corres/ pdf/
130028p.pdf) and the Secretary of Defense Memorandum of June 30, 2016, 
Directive Type Memorandum (DTM) 16-005, ``Military Service of 
Transgender Service Members'' (available at: http://www.dtic.mil/ whs/
directives/corres/ pdf/DTM-16-005.pdf) for DoD policy concerning 
changing their gender in DEERS.
    (3) Government civilian employees should consult their servicing 
human resources or civilian personnel office for guidance concerning 
changing their gender markers in DEERS.
    (4) If a name change is required in conjunction with a change of 
gender marker, see paragraph (m) of this section.
    (5) To change a gender marker in DEERS to correct an administrative 
error, see paragraph (n) of this section.

  Table 33 to Subpart D of Part 161--Documentation Required To Change a
                         Gender Marker in DEERS
------------------------------------------------------------------------
              Status                            Documentation
------------------------------------------------------------------------
Retiree, Dependent, or Contractor   Re-issued or amended birth
 (Note 4).                           certificate (Note 1) or U.S.
                                     Passport (Note 1) or Court order
                                     (Note 2) or Doctor's letter with
                                     justification (Note 3).
------------------------------------------------------------------------
Notes:
1. Document must reflect the individual's gender identity.
2. An order or other appropriate document from a court of competent
  jurisdiction in the United States (or U.S. territory or possession)
  reflecting the individual's gender identity.
3. If unable to submit a re-issued or an amended birth certificate
  reflecting the individual's gender identity, a U.S. passport
  reflecting the individual's gender identity, or a certified true copy
  of a court order reflecting the individual's gender identity, a
  retiree, dependent or contractor may submit a letter from a doctor
  certifying that the sponsor or dependent has had the appropriate
  clinical treatment for gender transition. If a doctor's letter is
  being submitted in lieu of the other official documents identified in
  this table, the individual submitting the request shall attach to the
  doctor's letter a written statement that the other official documents
  cannot be submitted. Information that must be included in the doctor's
  letter follows:
a. Physician's full name.
b. Physician's medical license or certificate number.
c. Issuing state or other jurisdiction of medical license/certificate.
d. Physician's office address and telephone number.
e. Language stating that the physician is the sponsor's or dependent's
  attending physician and that the physician has a doctor/patient
  relationship with the sponsor or dependent.
f. Language stating the sponsor or dependent has had the appropriate
  clinical treatment for gender transition to the individual's gender
  identity. Specific treatment information is not required.
g. Language stating ``I declare under penalty of perjury under the laws
  of the United States that the forgoing is true and correct.''
4. Includes other ID card eligible populations managed by the Trusted
  Associate Sponsorship System for which DEERS is the authoritative
  source.

    (l) Documentation required to change a Social Security Number (SSN) 
in DEERS. This paragraph (l) describes documentation required to change 
an SSN in DEERS. An individual's SSN should be changed in DEERS with 
documentation shown in Table 34 to this subpart.
    (1) To change an SSN in a DEERS record that was established by an 
authoritative feed (e.g., uniformed service member records, DoD civilian 
personnel records), the sponsor will need to consult the personnel 
office that established the authoritative feed.
    (2) To change an SSN in a DEERS record that was manually established 
(e.g., dependent records), the sponsor will need to go to a RAPIDS site 
for assistance.

 Table 34 to Subpart D of Part 161--Documentation Required To Change an
                              SSN in DEERS
------------------------------------------------------------------------
              Status                            Documentation
------------------------------------------------------------------------
Sponsor...........................  Social security cards (Note 1) and
                                     Social Security Administration
                                     letter (Note 2).
Dependent.........................  Social security cards (Note 1) and
                                     Social Security Administration
                                     letter (Note 2).
------------------------------------------------------------------------
Notes:
1. Social security cards issued by the Social Security Administration,
  establishing the old and new SSNs.

[[Page 789]]

 
2. A letter from the Social Security Administration, explaining that a
  new SSN has been issued and stating that the individual will no longer
  use the old SSN.

    (m) Documentation required to change a name in DEERS. This paragraph 
(m) describes documentation required to change a name in DEERS. Name 
changes based on a marriage, divorce, or death, are made at the time of 
enrollment or ID card issuance. An individual's name should be changed 
in DEERS with documentation shown in Table 35 to this subpart.
    (1) To change a name in a DEERS record that was established by an 
authoritative feed (e.g., uniformed service member records, DoD civilian 
personnel records), the sponsor will need to first consult the personnel 
office that established the authoritative feed. If an immediate change 
is required, the sponsor may visit a RAPIDS site with the applicable 
documentation identified in Table 35 to this subpart.
    (2) To change a name in a DEERS record that was manually established 
(e.g., dependent records), the sponsor will need to visit a RAPIDS site 
with the applicable documentation identified in Table 35 to this 
subpart.

  Table 35 to Subpart D of Part 161--Documentation Required To Change a
                              Name in DEERS
------------------------------------------------------------------------
              Status                            Documentation
------------------------------------------------------------------------
Sponsor...........................  Court order or Marriage certificate
                                     (Note 1) or Divorce decree (Note 2)
                                     or Death decree (Note 3) or Social
                                     security cards (Note 4).
Spouse............................  Court order or Marriage certificate
                                     (Note 1) or Divorce decree (Note 2)
                                     or Death certificate (Note 3) or
                                     Social security cards (Note 4).
Child.............................  Court order or Social security cards
                                     (Note 4).
------------------------------------------------------------------------
Notes:
1. A marriage certificate to change an individual's last name to match
  the spouse's last name or to hyphenate the last name.
2. A divorce decree to establish the individual's last name as the
  individual's last name before being married. A dissolution decree or
  annulment decree is also accepted. Additional documentation confirming
  name before being married may be required.
3. A death certificate to establish the individual's last name as the
  individual's last name before being married. Additional documentation
  confirming name before being married may be required.
4. Social security cards issued by the Social Security Administration,
  establishing the individual's old full name and new full name.

    (n) Documentation required to correct an administrative error in 
DEERS--(1) Overview. This paragraph (n) describes documentation required 
to correct administrative errors in DEERS.
    (i) To correct an administrative error in a DEERS record that was 
established and updated by authoritative feed, the sponsor should 
consult the personnel office that owns the authoritative feed.
    (ii) To correct an administrative error in a DEERS record that was 
established and updated manually, the sponsor, on behalf of a dependent, 
should seek the support of the uniformed service's DEERS Support Office 
Field Support personnel with documentation shown in Tables 36 through 38 
of this subpart.
    (2) Name or date of birth. An individual's name or date of birth, 
when incorrectly entered in DEERS, should be corrected with the 
documentation shown in Table 36 to this subpart.

  Table 36 to Subpart D of Part 161--Documentation Required To Modify a
    Name or Date of Birth in DEERS To Correct an Administrative Error
------------------------------------------------------------------------
              Status                            Documentation
------------------------------------------------------------------------
Sponsor or Dependent..............  U.S. Citizenship and Immigration
                                     Services Form I-9, ``Instructions
                                     for Employment Eligibility
                                     Verification,'' Documentation
                                     (Note).
------------------------------------------------------------------------
Note: Documentation from the U.S. Citizenship and Immigration Services
  Form I-9, Lists of Acceptable Documents), that establishes name or
  date of birth.

    (3) Gender. An individual's gender marker, when incorrectly entered 
in DEERS, should be corrected with the

[[Page 790]]

documentation shown in Table 37 to this subpart.

  Table 37 to Subpart D of Part 161--Documentation Required To Modify a
        Gender Marker in DEERS To Correct an Administrative Error
------------------------------------------------------------------------
              Status                            Documentation
------------------------------------------------------------------------
Sponsor or Dependent..............  Birth certificate and Form I-9
                                     Documentation (Note).
------------------------------------------------------------------------
Note: Documentation from the U.S. Citizenship and Immigration Services
  Form I-9 (Lists of Acceptable Documents) that establishes gender.

    (4) SSN. An individual's SSN, when incorrectly entered in DEERS, 
should be corrected with the documentation shown in Table 38 to this 
subpart.

 Table 38 to Subpart D of Part 161--Documentation Required To Modify an
             SSN in DEERS To Correct an Administrative Error
------------------------------------------------------------------------
              Status                            Documentation
------------------------------------------------------------------------
Sponsor or Dependent..............  Documentation establishing SSN
                                     (Note).
------------------------------------------------------------------------
Note: Government-issued documentation establishing SSN, including but
  not limited to, social security card, Department of the Treasury
  Internal Revenue Service Form W-2, ``Wage and Tax Statement,'' and
  Form SSA-1099, ``Social Security Benefit Statement.''


[[Page 791]]



                    SUBCHAPTER G_DEFENSE CONTRACTING





PART 168a_NATIONAL DEFENSE SCIENCE AND ENGINEERING GRADUATE 
FELLOWSHIPS--Table of Contents



Sec.
168a.1 Purpose.
168a.2 Applicability.
168a.3 Definition.
168a.4 Policy and procedures.
168a.5 Responsibilities.

    Authority: 10 U.S.C. 2191.

    Source: 55 FR 29844, July 23, 1990, unless otherwise noted.



Sec.  168a.1  Purpose.

    This part:
    (a) Establishes guidelines for the award of National Defense Science 
and Engineering Graduate (NDSEG) Fellowships, as required by 10 U.S.C. 
2191.
    (b) Authorizes, in accordance with 10 U.S.C. 2191 and consistent 
with DoD 5025.1, the publication of a regulation which will be codified 
at 32 CFR part 168b.



Sec.  168a.2  Applicability.

    This part applies to the Office of the Secretary of Defense (OSD), 
the Military Departments, and the Defense Agencies (hereafter referred 
to collectively as ``DoD Components'').



Sec.  168a.3  Definition.

    Sponsoring Agency. A DoD Component or an activity that is designated 
to award NDSEG fellowships under Sec.  168a.5(a).



Sec.  168a.4  Policy and procedures.

    (a) Sponsoring Agencies, in awarding NDSEG fellowships, shall award:
    (1) Solely to U.S. citizens and nationals who agree to pursue 
graduate degrees in science, engineering, or other fields of study that 
are designated, in accordance with Sec.  168a.5(b)(2), to be of priority 
interest to the Department of Defense.
    (2) Through a nationwide competition in which all appropriate 
actions have been taken to encourage applications from members of groups 
(including minorities, women, and disabled persons) that historically 
have been underrepresented in science and engineering.
    (3) Without regard to the geographic region in which the applicant 
lives or the geographic region in which the applicant intends to pursue 
an advanced degree.
    (b) The criteria for award of NDSEG fellowships shall be:
    (1) The applicant's academic ability relative to other persons 
applying in the applicant's proposed field of study.
    (2) The priority of the applicant's proposed field of study to the 
Department of Defense.



Sec.  168a.5  Responsibilities.

    (a) The Deputy Director, Defense Research and Engineering (Research 
and Advanced Technology) [DDDR&E(R&AT)], shall:
    (1) Administer this part and issue DoD guidance, as needed, for 
NDSEG fellowships.
    (2) Designate those DoD Components that will award NDSEG 
fellowships, consistent with relevant statutory authority.
    (3) Issue a regulation in accordance with 10 U.S.C. 2191 and DoD 
5025.1-M.
    (b) The Heads of Sponsoring Agencies, or their designees, in 
coordination with a representative of the Deputy Director, Defense 
Research and Engineering (Research and Advanced Technology) 
[DDDR&E(R&AT)], shall:
    (1) Oversee the nationwide competition to select NDSEG fellowship 
recipients.
    (2) Determine those science, engineering and other fields of 
priority interest to the Department of Defense in which NDSEG 
fellowships are to be awarded.
    (3) Prepare a regulation, in accordance with 10 U.S.C. 2191, that 
prescribes.
    (i) Procedures for selecting NDSEG fellows.
    (ii) The basis for determining the amounts of NDSEG fellowships.
    (iii) The maximum NDSEG fellowship amount that may be awarded to an 
individual during an academic year.

[[Page 792]]



PART 169_COMMERCIAL ACTIVITIES PROGRAM--Table of Contents



Sec.
169.1 Purpose.
169.2 Applicability and Scope.
169.3 Definitions.
169.4 Policy.
169.5 Responsibilities.

    Authority: 5 U.S.C. 301 and 552 and Pub. L. 93-400.

    Source: 54 FR 13373, Apr. 3, 1989, unless otherwise noted.



Sec.  169.1  Purpose.

    This document:
    (a) Revises 32 CFR part 169.
    (b) Updates DoD policies and assigns responsibilities for commercial 
activities (CAs) as required by E.O. 12615, Pub. L. 100-180, sec. 1111, 
and OMB Circular A-76.



Sec.  169.2  Applicability and scope.

    This part:
    (a) Applies to the Office of the Secretary of Defense (OSD), the 
Military Departments, and the Defense Agencies (hereafter referred to 
collectively as ``DoD Components'').
    (b) Encompasses DoD policy for CAs in the United States, its 
territories and possessions, the District of Columbia, and the 
Commonwealth of Puerto Rico.
    (c) Is not mandatory for CAs staffed solely with DoD civilian 
personnel paid by nonappropriated funds, such as military exchanges. 
However, this part is mandatory for CAs when they are staffed partially 
with DoD civilian personnel paid by or reimbursed from appropriated 
funds, such as libraries, open messes, and other morale, welfare, and 
recreation (MWR) activities. When related installation support functions 
are being cost-compared under a single solicitation, a DoD Component may 
decide that it is practical to include activities staffed solely with 
DoD civilian personnel paid by nonappropriated funds.
    (d) Does not apply to DoD governmental functions as defined Sec.  
169.3.
    (e) Does not apply when contrary to law, Executive orders, or any 
treaty or international agreement.
    (f) Does not apply in times of a declared war or military 
mobilization.
    (g) Does not provide authority to enter into contracts.
    (h) Does not apply to the conduct of research and development, 
except for severable in-house CAs that support research and development, 
such as those listed in enclosure 3 of DoD Instruction 4100.33 \1\ (32 
CFR part 169a).
---------------------------------------------------------------------------

    \1\ Copies may be obtained, if needed, from the U.S. Naval 
Publications and Forms Center, ATTN: Code 1053, 5801 Tabor Avenue, 
Philadelphia, PA 19120.
---------------------------------------------------------------------------

    (i) Does not justify conversion to contract solely to avoid 
personnel ceilings or salary limitations.
    (j) Does not authorize contracts that establish an employer-employee 
relationship between the Department of Defense and contractor employees, 
as described in FAR 37.104.



Sec.  169.3  Definitions.

    Commercial Activity Review. The process of evaluating CAs for the 
purpose of determining whether or not a cost comparison will be 
conducted.
    Commercial Source. A business or other non-Federal activity located 
in the United States, its territories and possessions, the District of 
Columbia, or the Commonwealth of Puerto Rico that provides a commercial 
product or service.
    Conversion to Contract. The changeover of a CA from performance by 
DoD personnel to performance under contract by a commercial source.
    Conversion to In-House. The changeover of a CA from performance 
under contract to performance by DoD personnel.
    Core Logistics. Those functions identified as core logistics 
activities pursuant to section 307 of Pub. L 98-525 and section 1231 of 
Pub. L. 99-145, codified at section 2464, title 10 that are necessary to 
maintain a logistics capability (including personnel, equipment, and 
facilities) to ensure a ready and controlled source of technical 
competence and resources necessary to ensure effective and timely 
response to a mobilization, national defense contingency situation, and 
other emergency requirements.
    Cost Comparison. The process of developing an estimate of the cost 
of performance of a CA by DoD employees

[[Page 793]]

and comparing it, in accordance with the requirements in DoD Instruction 
4100.33 to the cost of performance by contract.
    Direct-Conversion. Conversion to contract performance of an in-house 
commercial activity based on a simplified cost comparsion or the 
conversion of an in-house commercial activity performed exclusively by 
military personnel.
    Displaced DoD Employee. Any DoD employee affected by conversion to 
contract operation (including such actions as job elimination, or grade 
reduction). It includes both employees in the function converted to 
contract and employees outside the function who are affected adversely 
by conversion through reassignment or the exercise of bumping or retreat 
rights.
    DoD Commercial Activity (CA). An activity that provides a product or 
service obtainable (or obtained) from a commercial source. A DoD CA may 
be the mission of an organization or a function within the organization. 
It must be type of work that is separable from other functions or 
activities so that it is suitable for performance by contract. A 
representative list of the functions performed by such activities is 
provided in enclosure 3 of DoD Instruction 4100.33. A DoD CA falls into 
one of two categories:
    (a) Contract CA. A DoD CA managed by a DoD Component, but operated 
with contractor personnel.
    (b) In-House CA. A DoD CA operated by a DoD Component with DoD 
personnel.
    DoD Employee. Civilian personnel of the Department of Defense.
    DoD Governmental Function. A function that is related so intimately 
to the public interest as to mandate performance by DoD personnel. These 
functions include those that require either the exercise of discretion 
in applying Government authority or the use of value judgment in making 
the decision for the Department of Defense. Services or products in 
support of Governmental functions, such as those listed in enclosure 3 
of DoD Instruction 4100.33, are CAs and are subject to this part and its 
implementing Instructions. Governmental functions normally fall into two 
categories:
    (a) Act of Governing. The discretionary exercise of Governmental 
authority. Examples include criminal investigations, prosecutions, and 
other judicial functions; management of Government programs requiring 
value judgments, as in direction of the national defense; management and 
direction of the Armed Services; activities performed exclusively by 
military personnel who are subject to deployment in a combat, combat 
support, or combat service support role; conduct of foreign relations; 
selection of program priorities; direction of Federal employees; 
regulation of the use of space, oceans, navigable rivers, and other 
natural resources; management of natural resources on Federal Property; 
direction of intelligence and counterintelligence operations; and 
regulation of industry and commerce, including food and drugs.
    (b) Monetary Transactions and Entitlements. Refers to such actions 
as tax collection and revenue disbursements; control of treasury 
accounts and the money supply, and the administration of public trusts.
    DoD Personnel. Military and civilian personnel of the Department of 
Defense.
    Expansion. The modernization, replacement, upgrading, or enlargement 
of a DoD CA involving a cost increase exceeding either 30 percent of the 
total capital investment or 30 percent of the annual personnel and 
material costs. A consolidation of two or more CAs is not an expansion, 
unless the proposed total capital investment or annual personnel and 
material costs of the consolidation exceeds the total of the individual 
CAs by 30 percent or more.
    Installation. An installation is the grouping of facilities, 
collocated in the same vicinity, that supports particular functions. 
Activities collocated and supported by an installation are considered to 
be tenants.
    Installation Commander. The commanding officer or head of an 
installation or a tenant activity, who has budget and supervisory 
control over resources and personnel.
    New Requirement. A recently established need for a commercial 
product or service. A new requirement does not include interim in-house 
operation of

[[Page 794]]

essential services pending reacquisition of the services prompted by 
such action as the termination of an existing contract operation.
    Preferential Procurement Programs. Preferential procurement programs 
include mandatory source programs such as Federal Prison Industries 
(FPI) and the workshops administered by the Committee for Purchase from 
the Blind and Other Severely Handicapped under Pub. L. 92-98. Small, 
minority, and disadvantaged businesses; and labor surplus area set-
asides and awards made under Pub. L. 85-536, section 8(a) and Pub. L. 
95-507 are included under preferential procurement programs.
    Right of First Refusal of Employment. Contractors provide Government 
employees, displaced as a result of the conversion to contract 
performance, the right of first refusal for employment openings under 
the contract in positions for which they are qualified, if that 
employment is consistent with post-Government employment conflict of 
interest standards.



Sec.  169.4  Policy.

    (a) Ensure DoD Mission Accomplishment. When complying with this part 
and its implementing Instruction, DoD Components shall consider the 
overall DoD mission and the defense objective of maintaining readiness 
and sustainability to ensure a capability for mobilizing the defense and 
support structure.
    (b) Achieve Economy and Quality through Competition. Encourage 
competition with the objective of enhancing quality, economy, and 
performance. When performance by a commercial source is permissible, a 
comparsion of the cost of contracting and the cost of in-house 
performance shall be performed to determine who shall provide the best 
value for the Government, considering price and other factors included 
in the solicitation. The restriction of a solicitation to a preferential 
procurement program does not negate the requirement to perform a cost 
comparison. Performance history will be considered in the source 
selection process, and high quality performance should be rewarded.
    (c) Retain Governmental Functions In-House. Certain functions that 
are inherently governmental in nature, and intimately related to the 
public interest, mandate performance by DoD personnel only. These 
functions are not in competition with commercial sources; therefore, 
these functions shall be performed by DoD personnel.
    (d) Rely on the Commercial Sector. DoD Components shall rely on 
commercially available sources to provide commercial products and 
services except when required for national defense, when no satisfactory 
commercial source is available, or when in the best interest of direct 
patient care. DoD Components shall not consider an in-house new 
requirement, an expansion of an in-house requirement, conversion to in-
house, or otherwise carry on any CAs to provide commercial products or 
services if the products or services can be procured more economically 
from commercial sources.
    (e) Delegate Decision Authority and Responsibility. DoD Components 
shall delegate decision authority and responsibility to lower 
organization levels, giving more authority to the doers, and linking 
responsibility with that authority. This shall facilitate the work that 
installation commanders must perform without limiting their freedom to 
do their jobs. When possible, the installation commanders should have 
the freedom to make intelligent use of their resources, while preserving 
the essential wartime capabilities of U.S. support organizations in 
accordance with DoD Directive 4001.1. \2\
---------------------------------------------------------------------------

    \2\ See footnote 1 to Sec.  169.2(h)
---------------------------------------------------------------------------

    (f) Share Resources Saved. When possible, make available to the 
installation commander a share of any resources saved or earned so that 
the commander can improve operations or working and living conditions on 
the installation.
    (g) Provide Placement Assistance. Provide a variety of placement 
assistance to employees whose Federal jobs are eliminated through CA 
competitions.

[54 FR 13373, Apr. 3, 1989; 54 FR 21726, May 19, 1989]

[[Page 795]]



Sec.  169.5  Responsibilities.

    (a) The Assistant Secretary of Defense (Production and Logistics) 
(ASD (P&L)), or designee, shall:
    (1) Formulate and develop policy consistent with this part for the 
DoD CA program.
    (2) Issue Instructions to implement the policies of this part.
    (3) Maintain an inventory of in-house DoD CAs and the Commercial 
Activities Management Information System (CAMIS).
    (4) Establish criteria for determining whether a CA is required to 
be retained in-house for national defense.
    (5) Approve or disapprove core logistics waiver requests.
    (b) The Comptroller of the Department of Defense (C, DoD) shall 
provide inflation factors and/or price indices and policy guidance to 
the DoD Components on procedures and systems for obtaining cost data for 
use in preparing the in-house cost estimate.
    (c) The Heads of DoD Components shall:
    (1) Comply with this part and DoD Instruction 4100.33.
    (2) Designate an official at the Military Service Assistant 
Secretary level, or equivalent, to implement this part.
    (3) Establish an office as a central point of contact for 
implementing this part.
    (4) Encourage and facilitate CA competitions.
    (5) Delegate, as much as practicable, broad authority to 
installation commanders to decide how best to use the CA program to 
accomplish the mission. Minimally, as prescribed by P.L. 100-180, 
section 1111 and E.O. 12615, installation commanders shall have the 
authority and responsibility to carry out the following:
    (i) Prepare an inventory each fiscal year of commercial activities 
carried out by Government personnel on the military installation in 
accordance with DoD Instruction 4100.33.
    (ii) Decide which commercial activities shall be reviewed under the 
procedures and requirements of E.O. 12615, OMB Circular A-76, and DoD 
Instruction 4100.33. This authority shall not be applied retroactively. 
Cost comparisons and direct conversions initiated, as of December 4, 
1987, shall be continued.
    (iii) Conduct a cost comparison of those commercial activities 
selected for conversion to contractor performance under OMB Circular A-
76.
    (iv) To the maximum extent practicable, assist in finding suitable 
employment for any DoD employee displaced because of a contract entered 
into with a contractor for performance of a commercial activity on the 
military installation.
    (6) Develop specific national defense guidance consistent with DoD 
Instruction 4100.33.
    (7) Establish administrative appeal procedures consistent with DoD 
Instruction 4100.33.
    (8) Ensure that contracts resulting from cost comparisons conducted 
under this part are solicited and awarded in accordance with the FAR and 
the DFARS.
    (9) Ensure that all notification and reporting requirements 
established in DoD Instruction 4100.33 are satisfied.
    (10) Ensure that the Freedom of Information Act Program is complied 
with in responding to requests for disclosure of contractor-supplied 
information obtained in the course of procurement.
    (11) Ensure that high standards of objectivity and consistency are 
maintained in compiling and maintaining the CA inventory and conducting 
the reviews and cost comparisons.
    (12) Provide, when requested, assistance to installation commanders 
to ensure effective CA program implementation and technical competence 
in management and implementation of the CA program.
    (13) Ensure that maximum efforts are exerted to assist displaced DoD 
employees in finding suitable employment, to include, as appropriate:
    (i) Providing priority placement assistance for other Federal jobs.
    (ii) Training and relocation when these shall contribute directly to 
placement.
    (iii) Providing outplacement assistance for employment in other 
sectors of the economy with particular attention to assisting eligible 
employees to exercise their right of first refusal with the successful 
contractor.

[[Page 796]]

    (14) Maintain the technical competence necessary to ensure effective 
and efficient management of the CA program.
    (15) Ensure, once the cost comparison is initiated, that the 
milestones are met, and completion of the cost comparison is without 
unreasonable delay.



PART 169a_COMMERCIAL ACTIVITIES PROGRAM PROCEDURES--Table of Contents



                            Subpart A_General

Sec.
169a.1 Purpose.
169a.2 Applicability and scope.
169a.3 Definitions.
169a.4 Policy.

                          Subpart B_Procedures

169a.8 Inventory and review schedule (Reports Control Symbol DD-P&L(A)).
169a.9 Reviews: Existing in-house commercial activities.
169a.10 Contracts.
169a.11 Expansions.
169a.12 New requirements.
169a.13 CAs involving forty-five or fewer DoD civilian employees.
169a.14 Military personnel commercial activity.
169a.15 Special considerations.
169a.16 Independent review.
169a.17 Solicitation considerations.
169a.18 Administrative appeal procedures.
169a.19 Study limits.

                    Subpart C_Reporting Requirements

169a.21 Reporting requirements.
169a.22 Responsibilities.

Appendix A to Part 169a--Codes and Definitions of Functional Areas
Appendix B to Part 169a--Commercial Activities Inventory Report and 
          Five-year Review Schedule
Appendix C to Part 169a--Simplified Cost Comparisons for Direct 
          Conversion of CAs
Appendix D to Part 169a--Commercial Activities Management Information 
          System (CAMIS)

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

    Source: 50 FR 40805, Oct. 7, 1985, unless otherwise noted.



                            Subpart A_General



Sec.  169a.1  Purpose.

    This part:
    (a) Reissues DoD Instruction 4100.33 \1\ to update policy, 
procedures, and responsibilities required by DoD Directive 4100.15 \2\ 
and OMB Circular A-76 \3\ for use by the Department of Defense (DoD) to 
determine whether needed commercial activities (CAs) should be 
accomplished by DoD personnel or by contract with a commercial source.
---------------------------------------------------------------------------

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161
    \2\ See footnote 1 to Sec.  169a.1(a).
    \3\ Copies may be obtained if needed, from the Office of Management 
and Budget, Executive Office Building, Washington, DC 20503.
---------------------------------------------------------------------------

    (b) Cancels DoD 4100.33-H, \4\ ``DoD In-House vs. Contract 
Commercial and Industrial Activities Cost Comparison Handbook.''
---------------------------------------------------------------------------

    \4\ See footnote 1 to Sec.  169a.1(a).
---------------------------------------------------------------------------



Sec.  169a.2  Applicability and scope.

    This part:
    (a) Applies to the Office of the Secretary of Defense (OSD), the 
Military Departments, the Defense Agencies and DoD Field Activities 
(hereafter referred to collectively as the ``DoD Components'').
    (b) Contains DoD procedures for CAs in the United States, its 
territories and possessions, the District of Columbia, and the 
Commonwealth of Puerto Rico.
    (c) Is not mandatory for CAs staffed solely with DoD civilian 
personnel paid by nonappropriated funds, such as military exchanges. 
However, this part is mandatory for CAs when they are staffed partially 
with DoD civilian personnel paid by or reimbursed from appropriated 
funds, such as libraries, open messes, and other morale, welfare, and 
recreation (MWR) activities. When related installation support functions 
are being cost-compared under a single solicitation, a DoD Component may 
decide that it is practical to include activities staffed solely with 
DoD civilian personnel paid by nonappropriated funds.
    (d) Does not apply to DoD governmental functions are defined in 
Sec.  169a.3.
    (e) Does not apply when contrary to law, Executive orders, or any 
treaty or international agreement.
    (f) Does not apply in times of a declared war or military 
mobilization.

[[Page 797]]

    (g) Does not provide authority to enter into contracts.
    (h) Does not apply to the conduct of research and development, 
except for severable in-house CAs that support research and development, 
such as those listed in appendix A to this part.
    (i) Does not justify conversion to contract solely to avoid 
personnel ceilings or salary limitations.
    (j) Doe not authorize contracts that establish employer-employee 
relations between the Department of Defense and contractor employees as 
described in the Federal Acquisition Regulation (FAR), 48 CFR 37.104.
    (k) Does not establish and shall not be construed to create any 
substantive or procedural basis for anyone to challenge any DoD action 
or inaction on the basis that such action or inaction was not in 
accordance with this part except as specifically set forth in Sec.  
169a.15(d).

[57 FR 29207, July 1, 1992]



Sec.  169a.3  Definitions.

    Commercial activity review. The process of evaluating CAs for the 
purpose of determining whether or not a cost comparison will be 
conducted.
    Commercial source. A business or other non-Federal activity located 
in the United States, its territories and possessions, the District of 
Columbia, or the Commonwealth of Puerto Rico that provides a commercial 
product or service.
    Conversion to contract. The changeover of a CA from performance by 
DoD personnel to performance under contract by a commercial source.
    Conversion to in-house. The changeover of a CA from performance 
under contract by a commercial source to performance by DoD personnel.
    Cost comparison. The process of developing an estimate of the cost 
of performance of a CA by DoD employees and comparing it, in accordance 
with the requirements in this part, to the cost to the Government for 
contract performance of the CA.
    Directly affected parties. DoD employees and their representative 
organizations and bidders or offerers on the solicitation.
    Displaced DoD employee. Any DoD employee affected by conversion to 
contract operation (including such actions as job elimination, grade 
reduction, or reduction in rank). It includes both employees in the 
function converted to contract and to employees outside the function who 
are affected adversely by conversion through reassignment or the 
exercise of bumping or retreat rights.
    DoD Commercial Activity (CA). An activity that provides a product or 
service obtainable (or obtained) from a commercial source. A DoD CA is 
not a Governmental function. A DoD CA may be an organization or part of 
another organization. It must be a type of work that is separable from 
other functions or activities so that it is suitable for performance by 
contract. A representative list of the functions performed by such 
activities is provided in Enclosure 1. A DoD CA falls into one of two 
categories:
    (a) In-house CA. A DoD CA operated by a DoD Component with DoD 
personnel.
    (b) Contract CA. A DoD CA managed by a DoD Component operated with 
contractor personnel.
    DoD Employee. Refers to only civilian personnel of the Department of 
Defense.
    DoD governmental function. A function that is related so intimately 
to the public interest as to mandate performance by DoD personnel. These 
functions require either the exercise of discretion in applying 
Government authority or the use of value judgement in making the 
decision for the Department of Defense.
    Services or products in support of Governmental functions such as 
those listed in enclosure 3 of DoD Instruction 4100.33 are normally 
subject to this part and its implementing instructions. Governmental 
functions normally fall into two categories:
    (a) The act of governing; that is, the discretionary exercise of 
Governmental authority. Examples include criminal investigations, 
prosecutions, and other judicial functions; management of Governmental 
programs requiring value judgments, as in direction of the national 
defense; management and direction of the Armed Services; activities 
performed exclusively by military personnel who are subject to 
deployment

[[Page 798]]

in a combat, combat support, or combat service support role; conduct of 
foreign relations; selection of program priorities; direction of Federal 
employees; regulation of the use of space, oceans, navigable rivers, and 
other natural resources; direction of intelligence and 
counterintelligence operations; and regulation of industry and commerce, 
including food and drugs.
    (b) Monetary transactions and entitlements, such as tax collection 
and revenue disbursements; control of the money supply treasury 
accounts; and the administration of public trusts.
    DoD personnel. Refers to both military and civilian personnel of the 
Department of Defense.
    Expansion. The modernization, replacement, upgrading, or enlargement 
of a DoD CA involving a cost increase exceeding either 30 percent of the 
total capital investment or 30 percent of the annual personnel and 
material costs. A consolidation of two or more CAs is not an expansion 
unless the proposed total capital investment or annual personnel and 
material costs of the consolidation exceeds the total of the individual 
CAs by 30 percent or more.
    New requirement. A recently established need for a commercial 
product or service. A new requirement does not include interim in-house 
operation of essential services pending reacquisition of the services 
prompted by such action as the termination of an existing contract 
operation.
    Preferential procurement programs. Mandatory source programs such as 
Federal Prison Industries (FPI) and the workshops administered by the 
Committee for Purchase from the Blind and Other Severely Handicapped 
under the Javits-Wagner-O'Day Act. Also included are small, minority and 
disadvantaged businesses, and labor surplus area set-asides and awards 
made under 15 U.S.C. section 637.

[50 FR 40805, Oct. 7, 1985, as amended at 57 FR 29207, July 1, 1992]



Sec.  169a.4  Policy.

    (a) Ensure DoD mission accomplishment. The implementation of this 
part shall consider the overall DoD mission and the defense objective of 
maintaining readiness and sustainability to ensure a capability for 
mobilizing the defense and support structure.
    (b) Retain governmental functions in-house. Certain functions that 
are inherently governmental in nature, and intimately related to the 
public interest, mandate performance by DoD personnel only. These 
functions are not in competition with commercial sources; therefore, 
these functions shall be performed by DoD personnel.
    (c) Rely on the commercial sector. DoD Components shall rely on 
commercially available sources to provide commercial products and 
services, except when required for national defense, when no 
satisfactory commercial source is available, or when in the best 
interest of direct patient care. DoD Components shall not consider an 
in-house new requirement, an expansion of an in-house requirement, 
conversion to in-house, or otherwise carry on any CAs to provide 
commercial products or services if the products or services can be 
procured more economically from commercial sources.
    (d) Achieve economy and enhance productivity. Encourage competition 
with the objective of enhancing quality, economy, and performance.

When performance by a commercial source is permissible, a comparison of 
the cost of contracting and the cost of in-house performance shall be 
performed to determine who shall provide the best value for the 
Government, considering price and other factors included in the 
solicitation. If the installation commander has reason to believe that 
it may not be cost effective to make an award under mandatory source 
programs, section 8(a) of the Small Business Act or any other 
noncompetitive preferential procurement program, a cost comparison, or 
any other cost analysis, although not required by OMB Circular A-76, may 
be performed. Performance history will be considered in the source 
selection process, and high quality performance should be rewarded.
    (e) Delegate decision authority and responsibility. DoD Components 
shall delegate decision authority and responsibility to lower 
organization levels, giving more authority to the doers, and linking 
responsibility with that authority. This shall facilitate the work

[[Page 799]]

that installation commanders must perform without limiting their freedom 
to do their jobs. When possible, the installation commanders should have 
the freedom to make intelligent use of their resources, while preserving 
the essential wartime capabilities of U.S. support organizations in 
accordance with DoD Directive 4001.15. \5\
---------------------------------------------------------------------------

    \5\ See footnote 1 to Sec.  169a.1(a).
---------------------------------------------------------------------------

    (f) Share resources saved. When possible, make available to the 
installation commander a share of any resources saved or earned so that 
the commander can improve operations or working and living conditions on 
the installation.
    (g) Provide Placement Assistance. Provide a variety of placement 
assistance to employees whose Federal jobs are eliminated through CA 
competitions.
    (h) Permit interim-in-house operation. A DoD in-house CA may be 
established on a temporary basis if a contractor defaults. Action shall 
be taken to resolicit bids or proposals in accordance with this part.

[57 FR 29207, July 1, 1992]



                          Subpart B_Procedures



Sec.  169a.8  Inventory and review schedule (Report Control Symbol DD-P&L(A)).

    (a) Information in each DoD Component's inventory shall be used to 
assess DoD implementation of OMB Circular A-76 and for other purposes. 
Each Component's inventory shall be updated at least annually to reflect 
changes to their review schedule and the results of reviews, cost 
comparisons, and direct conversions. Updated inventories for all DoD 
Components except National Security Agency/Central Security Service 
(NSA/CSS) and the Defense Intelligence Agency (DIA) Shall be submitted 
to the Assistant Secretary of Defense Production and Logistics) 
(ASD(P&L)) within 90 days after the end of each fiscal year. Inventory 
data pertaining to NSA/CSS and DIA shall be held at the specific Agency 
concerned for subsequent review by properly cleared personnel. Appendix 
A to this part provides the codes and explanations for functional areas 
and Appendix B to this part provides procedures for submitting the 
inventory.
    (b) DoD component's review schedules should be coordinated with the 
DoD Component's Efficiency Review Program and the Defense Regional 
Interservice Support (DRIS) Program to preclude duplication of efforts 
and to make use of information already available.
    (c) Review of CAs that provide interservice support shall be 
scheduled by the supplying DoD Component. Subsequent cost comparisons, 
when appropriate, shall be executed by the same DoD Component. All 
affected DoD Components shall be notified of the intent to perform a 
review.

[50 FR 40805, Oct. 7, 1985, as amended at 57 FR 29208, July 1, 1992]



Sec.  169a.9  Reviews: Existing in-house commercial activities.

    (a) DoD components shall conduct reviews of in-house CAs in 
accordance with their established review schedules. Existing in-house 
CAs, once reviewed shall be retained in-house without a cost comparison 
only when certain conditions are satisfied. (Detailed documentation will 
be maintained to support the decision to continue in-house performance). 
These conditions are as follows:
    (1) National Defense. In most cases, application of this criteria 
shall be made considering the wartime and peacetime duties of the 
specific positions involved rather than in terms of broad functions.
    (i) A CA, staffed with military personnel who are assigned to the 
activity, may be retained in-house for national defense reason when the 
following apply.
    (A) The CA is essential for training or experience in required 
military skills;
    (B) The CA is needed to provide appropriate work assignments for a 
rotation base for overseas or sea-to-shore assignments; or
    (C) The CA is necessary to provide career progression to needed 
military skill levels.
    (ii) Core logistics activities. The core logistics capability 
reported to Congress, March 29, 1984, under the provisions of 10 U.S.C. 
2646 is comprised of

[[Page 800]]

the facilities, equipment, and management personnel at the activities 
listed in the report. The work at those activities may be performed by 
either government or contractor personnel, whichever is more cost 
effective. Core logistics activities reported to Congress under the 
provisions of 10 U.S.C. 2646, shall be retained in-house unless the 
Secretary of Defense grants a waiver as provided for in 10 U.S.C. 2464. 
Requests for waivers shall be submitted to the ASD (P&L). DoD Components 
may propose to the ASD (P&L) additional core logistics capability for 
inclusion in the list of core logistics activities. Core logistics 
activities reported to Congress as additions to the original list shall 
be retained in-house unless subsequently waived by the Secretary of 
Defense.
    (iii) If the DoD Component has a larger number of similar CAs with a 
small number of essential military personnel in each CA, action shall be 
taken, when appropriate, to consolidate the military positions 
consistent with military requirements so that economical performance by 
either DoD civilian employees or by contract can be explored for 
accomplishing a portion of the work.
    (iv) The DoD Components may propose to the ASD (P&L) other criteria 
for exempting CAs for national defense reasons.
    (2) No satisfactory commercial source available. A DoD commercial 
activity may be performed by DoD personnel when it can be demonstrated 
that:
    (i) There is no satisfactory commercial source capable of providing 
the product or service that is needed. Before concluding that there is 
no satisfactory commercial source available, the DoD Component shall 
make all reasonable efforts to identify available sources.
    (A) DoD Components' efforts to find satisfactory commercial sources 
shall be carried out in accordance with the FAR and Defense FAR 
Supplement (DFAS) including review of bidders lists and inventories of 
contractors, consideration of preferential procurement programs, and 
requests for help from Government agencies such as the Small Business 
Administration.
    (B) Where the availability of commercial sources is uncertain, the 
DoD Component will place up to three notices of the requirement in the 
Commerce Business Daily (CBD) over a 90-day period. (Notices will be in 
the format specified in FAR, 48 CFR part 5 and part 7, subpart 7.3) When 
a bona fide urgent requirement occurs, the publication period in the CBD 
may be reduced to two notices, 15 days apart. Specifications and 
requirements in the notice will not be unduly restrictive and will not 
exceed those required of Government personnel or operations.
    (ii) Use of a commercial source would cause an unacceptable delay or 
disruption of an essential program. In-house operation of a commercial 
activity on the basis that use of a commercial source would cause an 
unacceptable delay or disrupt an essential DoD program requires a 
specific documented explanation.
    (A) The delay or disruption must be specific as to cost, time, and 
performance measures.
    (B) The disruption must be shown to be a lasting or unacceptable 
nature. Temporary disruption caused by conversion to contract is not 
sufficient support for the use of this criteria.
    (C) The fact that a DoD commercial activity involves a classified 
program, or is part of a DoD Component's basic mission, or that there is 
the possibility of a strike by contract employees is not adequate reason 
for Government performance of that activity. Further, urgency alone is 
not an adequate reason to continue Government operation of a commercial 
activity. It must be shown that commercial sources are not able, and the 
Government is able, to provide the product or service when needed.
    (D) Use of an exemption due to an unacceptable delay or disruption 
of an essential program shall be approved by the DoD Component's central 
point of contact office. This authority may be redelegated.
    (3) Patient Care. Commercial activities at DoD hospitals may be 
performed by DoD personnel when it is determined by the head of the DoD 
Component or his designee, in consultation with the DoD Component's 
chief medical director, that performance by DoD

[[Page 801]]

personnel would be in the best interest of direct patient care.

[50 FR 40805, Oct. 7, 1985, as amended at 57 FR 29208, July 1, 1992]



Sec.  169a.10  Contracts.

    When contract cost becomes unreasonable or performance becomes 
unsatisfactory, the requirement must be resolicited. If the DoD 
Component competes in the resolicitation, then a cost comparison of a 
contracted CA shall be performed in accordance with part III of the 
Supplement to OMB Circular A-76 (Office of Federal Procurement Policy 
pamphlet No. 4) \6\, part II of the Supplement to OMB Circular A-76 
(Management Study Guide) \7\, part IV of the Supplement to OMB Circular 
A-76 (Cost Comparison Handbook) \8\, if in-house performance is 
feasible. When contracted CAs are justified for conversion to in-house 
performance, the contract will be allowed to expire (options will not be 
exercised) once in-house capability is established.
---------------------------------------------------------------------------

    \6\ See footnote 3 to Sec.  169a.1(a).
    \7\ See footnote 3 to Sec.  169a.1(a).
    \8\ See footnote 3 to Sec.  169a.1(a).

[57 FR 29208, July 1, 1992]



Sec.  169a.11  Expansions.

    In cases where expansion of an in-house commercial activity is 
anticipated, a review of the entire commercial activity, including the 
proposed expansion, shall be conducted to determine if performance by 
DoD personnel is authorized for national defense reasons, because no 
commercial source is available, or because it is in the best interest of 
direct patient care. If performance by DoD personnel is not justified 
under these criteria, a cost comparison of the entire activity shall be 
performed. Government facilities and equipment normally will not be 
expanded to accommodate expansions if adequate and cost effective 
contractor facilities and equipment are available.

[50 FR 40805, Oct. 7, 1985, as amended at 57 FR 29208, July 1, 1992]



Sec.  169a.12  New requirements.

    (a) In cases where a new requirement for a commercial product or 
service is anticipated, a review shall be conducted to determine if 
performance by DoD personnel is authorized for national defense reasons, 
because no commercial source is available, or because it is in the best 
interest of direct patient care. If performance by DoD personnel is not 
justified under these criteria, then the new requirement normally shall 
be performed by contract.
    (b) If there is reason to believe that commercial prices may be 
unreasonable, a preliminary cost analysis shall be conducted to 
determine whether it is likely that the work can be performed in-house 
at a cost that is less than anticipated for contract performance. If in-
house performance appears to be more economical, a cost comparison shall 
be scheduled. The appropriate conversion differentials will be added to 
the preliminary in-house cost before it is determined that in-house 
performance is likely to be more economical.
    (c) Government facilities and equipment normally will not be 
expanded to accommodate new requirements if adequate and cost-effective 
contractor facilities are available. The requirement for Government 
ownership of facilities does not obviate the possibility of contract 
operation. If justification for in-house operation is dependent on 
relative cost, the cost comparison may be delayed to accommodate the 
lead time necessary for acquiring the facilities.
    (d) Approval or disapproval of in-house performance of new 
requirements involving a capital investment of $500,000 or more will not 
be redelegated below the level of DAS or equivalent.
    (e) Approval to budget for a major capital investment associated 
with a new requirement will not constitute OSD approval to perform the 
new requirement with DoD personnel. Government performance shall be 
determined in accordance with this part.



Sec.  169a.13  CAs involving forty-five or fewer DoD civilian employees.

    (a) When adequately justified under the criteria required in 
Appendix C to this part, CAs involving 11 to 45 DoD civilian employees 
may be competed based on simplified cost comparison procedures and 10 or 
fewer DoD civilian employees may be directly converted

[[Page 802]]

to contract without the use of a simplified cost comparison. Such 
conversion shall be approved by the DoD Component's central point of 
contact office having the responsibility for implementation of this 
part. Part IV of the Supplement to OMB Circular A-76 and Appendix C to 
this part shall be utilized to define the specific elements of costs to 
be estimated in the simplified cost comparison.
    (b) In no case shall any CA involving more than forty-five employees 
be modified, reorganized, divided, or in any way changed for the purpose 
of circumventing the requirement to perform a full cost comparison.
    (c) The decision to perform a simplified cost comparison on a CA 
involving military personnel and 11 to 45 DoD Civilian employees 
reflects a management decision that the work need not be performed in-
house. Therefore, all direct military personnel costs will be estimated 
in the simplified cost comparison (see Appendix C to this part) on the 
basis of civilian performance.
    (d) A most efficient and cost-effective organization analysis 
certification is required for studies involving 11 to 45 DoD civilian 
employees (see Appendix C to this part).

[57 FR 29208, July 1, 1992]



Sec.  169a.14  Military personnel commercial activity.

    Commercial activities performed exclusively by military personnel 
not subject to deployment in a combat, combat support, or combat service 
support role may be converted to contract without a cost comparison, 
when adequate competition is available and reasonable prices can be 
obtained from qualified commercial sources.



Sec.  169a.15  Special considerations.

    (a) Signals Intelligence, Telecommunications (SIGINT) and Automated 
Information System (AIS) security.
    (1) Before making a determination that an activity involving SIGINT 
as prescribed in Executive Order 12333, and AIS, security should be 
subjected to a cost comparison, the DoD Component shall specifically 
identify the risk to national security and complete a risk assessment to 
determine if the use of commercial resources poses a potential threat to 
national security. Information copies of the risk assessment and a 
decision memorandum containing data on the acceptable and/or 
unacceptable risk will be maintained within the requesting DoD 
Component's contracting office.
    (2) The National Security Agency (NSA) considers the polygraph 
program an effective means to enhance security protection for special 
access type information. The risk to national security is of an 
acceptable level if contractor personnel assigned to the maintenance and 
operation of SIGINT, Computer Security (COMPUSEC) and Communications 
Security (COMSEC) equipment agree to an aperiodic counter-intelligence 
scope polygraph examination. The following clause should be included in 
every potential contract involving SIGINT, Telecommunications, and AIS 
systems:

Contract personnel engaged in operation or maintaining SIGINT, COMSEC or 
COMPUSEC equipment or having access to classified documents or key 
material must consent to an aperiodic counter-intelligence scope 
polygraph examination administered by the Government. Contract personnel 
who refuse to take the polygraph examination shall not be considered for 
selection.
    (b) National intelligence. Before making a determination that an 
activity involving the collection/processing/production/dissemination of 
national intelligence as prescribed in Executive Order 12333 should be 
subjected to a cost comparison, the DoD Component must specifically 
identify the risk to national intelligence of using commercial sources. 
Except as noted in paragraph (a) of this section, the DoD Component 
shall provide its assessment of the risk to national intelligence of 
using commercial sources to the Director, DIA, who shall make the 
determination if the risk to national intelligence is unacceptable. DIA 
shall consult with other organizations as deemed necessary and shall 
provide the decision to the DoD Component. (Detailed documentation shall 
be maintained to support the decision).

[[Page 803]]

    (c) Accountable Officer. (1) The functions and responsibilities of 
the Accountable Officer are defined by DoD 7200.10-M. \9\ Those 
functions of the Accountable Officer that involve the exercise of 
substantive discretionary authority in determining the Government's 
requirements and controlling Government assets cannot be performed by a 
contractor and must be retained in-house. The responsibilities of the 
Accountable Officer as an individual and the position of the Accountable 
Officer are not contractable.
---------------------------------------------------------------------------

    \9\ See footnote 1 to Sec.  169a.1(a).
---------------------------------------------------------------------------

    (2) Contractors can perform functions in support of the Accountable 
Officer and functions where they are performing in accordance with 
criteria defined by the Government. For instance, contractors can 
process requisitions, maintain stock control records, perform storage 
and warehousing, and make local procurements of items specified as 
deliverables in the contract.
    (3) The responsibility for administrative fund control must be 
retained in-house. The contractor can process all required paperwork up 
to funds obligation which must be done by the Government employee 
designated as responsible for funds control. The contractor can also 
process such documents as reports of survey and adjustments to stockage 
levels, but approval must rest with the Accountable Officer. In all 
cases, the administrative control of funds must be retained by the 
Government since contractors or their employees cannot be held 
responsible for violations of the United States Code.
    (d) Cost Comparison Process. If performance of a commercial activity 
by DoD personnel cannot be justified under national defense, non-
availability of commercial source, or patient care criteria, than a full 
cost comparison shall be conducted in accordance with part II of the 
Supplement to OMB Circular No. A-76, part III of the Supplement to OMB 
Circular No. A-76, and part IV of the Supplement to OMB Circular A-76, 
to determine if performance by DoD employees is justified on the basis 
of lower cost (unless the criteria of Sec.  169a. and Sec.  169a. are 
met). The conclusion that a commercial activity will be cost compared 
reflects a management decision that the work need not be accomplished by 
military personnel. Therefore, all direct personnel costs shall be 
estimated on the basis of civilian performance. Funds shall be budgeted 
to cover either the cost of the appropriate in-house operation required 
to accomplish the work or the estimated cost of the contract. Neither 
funds nor manpower authorizations shall be removed from the activity's 
budget in anticipation of the outcome of a study.
    (1) Notification--(i) Congressional notification. DoD Components 
shall notify Congress of the intention to do a cost comparison involving 
46 or more DoD civilian personnel. DoD Components shall annotate the 
notification when a cost comparison is planned at an activity listed in 
the report to Congress on core logistics (see section 169a.9(a)(1)(ii)). 
The DoD Component shall notify the ADS(P&L) of any such intent at least 
5 working days before the Congressional notification. The cost 
comparison process begins on the date of Congressional notification.
    (ii) DoD employee notification. DoD Components shall, in accordance 
with 10 U.S.C. 2467(b), at least monthly during the development and 
preparation of the performance work statement (PWS) and management 
study, consult with DoD civilian employees who will be affected by the 
cost comparison and consider the views of such employees on the 
development and preparation of the PWS and management study. DoD 
Components may consult with such employees more frequently and on other 
matters relating to the cost comparison. In the case of DoD employees 
represented by a labor organization accorded exclusive recognition under 
5 U.S.C. 7111, consultation with representatives of the labor 
organization satisfies the consultation requirement. Consultation with 
nonunion DoD civilian employees may be through such means as group 
meetings. Alternatively, DoD civilian employees may be invited to 
designate one or more representatives to speak for them. Other methods 
may be implemented if adequate notice is provided to the nonunion DOD 
civilian employees and the

[[Page 804]]

right to be represented during the consultations is ensured.
    (iii) Local notification. It is suggested that upon starting the 
cost comparison process, the installation make an announcement of the 
cost comparison, including a brief explanation of the cost-comparison 
process to the employees of the activity and the community. The 
installations' labor relations specialist also should be apprised to 
ensure appropriate notification to employees and their representatives 
in accordance with applicable collective bargaining agreements. Local 
Interservice Support Coordinators (ISCs) and the Chair of the 
appropriate Joint Interservice Regional Support Group (JIRSG) also 
should be notified of a pending cost comparison.
    (2) Performance Work Statement (PWS). (i) The PWS and its Quality 
Assurance Plan shall be prepared in accordance with part II of the 
Supplement to OMB Circular No. A-76 5 for full cost comparison, 
simplified cost comparisons, and direct conversions of DoD personnel 
commercial activities. The PWS shall include reasonable performance 
standards that can be used to ensure a comparable level of performance 
for both Government and contractor and a common basis for evaluation. 
Employees and/or their bargaining unit representatives should be 
encouraged to participate in preparing or reviewing the PWS.
    (ii) Each DoD Component shall:
    (A) Prepare PWSs that are based on accurate and timely historical or 
projected workload data and that provide measurable and verifiable 
performance standards.
    (B) Monitor the development and use of prototype PWSs.
    (C) Review and initiate action to correct disagreements on PWS 
discrepancies.
    (D) Approve prototype PWSs for Component-wide use.
    (E) Coordinate these efforts with the other DoD Components to avoid 
duplication and to provide mutual assistance.
    (iii) Guidance on Government Property:
    (A) For the purposes of this instruction, Government property is 
defined in accordance with the 48 CFR part 45.
    (B) The decision to offer or not to offer Government property to a 
contractor shall be determined by a cost-benefit analysis justifying 
that the decision is in the government's best interest. The 
determination on Government property must be supported by current, 
accurate, complete information and be readily available for the 
independent reviewing activity. The design of this analysis shall not 
give a decided advantage or disadvantage to either in-house or contract 
competitors. The management of Government property offered to the 
contractor shall also be in compliance with 48 CFR part 45.
    (iv) If a commercial activity provides critical or sensitive 
services, the PWS shall include sufficient data for the in-house 
organization and commercial sources to prepare a plan for expansion in 
emergency situations.
    (v) DoD Components that provide interservice support to other DoD 
Components or Federal agencies through interservice support agreements 
or other arrangements shall ensure that the PWS includes this work load 
and is coordinated with all affected Dod Components and Federal 
Agencies.
    (vi) If there is a requirement for the commercial source to have 
access to classified information in order to provide the product or 
service, the commercial source shall be processed for a facility 
security clearance under the Defense Industrial Security Program in 
accordance with DoD Directive 5220.22 \10\ and DoD Regulation 5220.22-R. 
\11\ However, if no bona fide requirement for access to classified 
information exists, no action shall be taken to obtain security 
clearance for the commercial source.
---------------------------------------------------------------------------

    \10\ See footnote 1 to Sec.  169a.1(a).
    \11\ See footnote 1 to Sec.  169a.1(a).
---------------------------------------------------------------------------

    (vii) Employees of commercial sources who do not require access to 
classified information for work performance, but require entry into 
restricted areas of the installation, may be authorized unescorted entry 
only when the provisions of DoD Regulation 5200.2-R \12\ apply.
---------------------------------------------------------------------------

    \12\ See footnote 1 to Sec.  169a.1(a).
---------------------------------------------------------------------------

    (3) Management Study. A management study shall be performed to 
analyze

[[Page 805]]

completely the method of operation necessary to establish the most 
efficient and cost-effective in-house organization (MEO) needed to 
accomplish the requirements in the PWS. The MEO must reflect only 
approved resources for which the commercial activity has been 
authorized. As a part of the management study, installations should 
determine if specific requirements can be met through an Inter/
Intraservice Support Agreement (ISA) with other activities or Government 
Agencies which have excess capacity or capability.
    (i) The commercial activity management study is mandatory. Part III 
of the Supplement to OMB Circular No. A-76 provides guidance on how to 
conduct the management study. The study shall identify essential 
functions to be performed, determine performance factors, organization 
structure, staffing, and operating procedures for the most efficient and 
cost effective in-house performance of the commercial activity. The MEO 
becomes the basis of the Government estimate for the cost comparison 
with potential contractors. In this context, ``efficient'' (or cost-
effective) means that the required level of workload (output, as 
described in the performance work statement) is accomplished with as 
little resource consumption (input) as possible without degradation in 
the required quality level of products or services.
    (ii) DoD Components have formal programs and training for the 
performance of management studies, and those programs are appropriate 
for teaching how to conduct commercial activity management studies. Part 
III of the Supplement to OMB Circular No. A-76 does not purport to 
replace the DoD Component's own management techniques, but merely to 
establish the basic criteria and the interrelationship between the 
management study and the PWS.
    (iii) If a commercial activity provides critical or sensitive 
services, the management study shall include a plan for expansion in 
emergency situations.
    (iv) Early in the management study, management will solicit the 
views of the employees in the commercial activity under review, and/or 
their representatives for their recommendations as to the MEO or ways to 
improve the method of operation.
    (v) The management study will be the basis on which the DoD 
Component certifies that the Government cost estimate is based on the 
most efficient and cost effective organization practicable.
    (vi) Implementation of the MEO shall be initiated no later than 1 
month after cancellation of the soliciation and completed within 6 
months. DoD Components shall take action, within 1 month, to schedule 
and conduct a subsequent cost comparison when the MEO is not initiated 
and completed as prescribed above. Subsequent cost comparisons may be 
delayed by the DoD Component's central point of contact office, when 
situations outside the control of the DoD Component prevent timely or 
full implementation of the MEO. This authority may not be redelegated.
    (vii) DoD Components shall establish procedures to ensure that the 
in-house operation, as specified in the MEO, is capable of performing in 
accordance with the requirements of the PWS. The procedures also shall 
ensure that the resources (facilities, equipment, and personnel) 
specified in the MEO are available to the in-house operation and that 
in-house performance remains within the requirements and resources 
specified in the PWS and MEO for the period of the cost comparison, 
unless documentation to support changes in workload/scope is available.
    (viii) A management study is not required for simplified cost 
comparisons however, a MEO analysis and certification is required.
    (4) Cost Comparisons. Cost comparisons shall include all significant 
costs of both Government and contract performance. Common costs; that 
is, costs that would be the same for either in-house or contract 
operation, need not be computed, but the basis of those common costs 
must be identified and included in the cost comparison documentation. 
Part IV of the Supplement to OMB Circular A-76 (Cost Comparison 
Handbook) provides the basic guidance for conducting full cost 
comparisons. Appendix D provides guidance for

[[Page 806]]

conducting simplified cost comparisons. The supplemental guidance 
contained below is intended to establish uniformity and to ensure all 
factors are considered when making cost comparisons. Deviation from the 
guidance contained in part IV of the Supplement to OMB Circular A-76, 
will not be allowed, except as provided in the following subparagraphs.
    (i) In-house Cost Estimate. (A) The in-house cost estimate shall be 
based on the most efficient and cost-effective in-house organization 
needed to accomplish the requirements in the PWS.
    (B) Heads of DoD Components or their designees shall certify that 
the in-house cost estimate is based on the most efficient and cost-
effective operation practicable. Such certification shall be made before 
the bid opening or the date for receipt of initial proposals.
    (C) The ASD(P&L) shall provide inflation factors for adjusting costs 
for the first and subsequent performance periods. These factors shall be 
the only acceptable factors for use in cost comparisons. Inflation 
factors for outyear (second and subsequent) performance periods will not 
be applied to portions of the in-house estimate that are comparable with 
those portions of the contract estimate subject to economic price 
adjustment clauses.
    (D) Military positions in the organization under cost comparison 
shall be converted to civilian positions for costing purposes. Civilian 
grades and series shall be based on the work described in the PWS and 
the MEO, determined by the management study rather than on the current 
organization structure.
    (E) DoD Components shall not use the DLA Wholesale Stock Fund Rate 
and/or the DLA Direct Delivery rate for supplies and materials as 
reflected in paragraph 3.a. (1) and (2) of part IV of the Supplement to 
OMB Circular No. A-76. The current standard and pricing formula includes 
full cost under the Defense Business Operations Fund (DBOF). No further 
mark-up is required.
    (F) DoD Components shall assume for the purpose of depreciation 
computations that residual value is equal to the disposal values listed 
in Appendix C of part IV of the Supplemental to OMB Circular No. 76 
(Cost Comparison Handbook) if more precise figures are not available 
from the official accounting records or other knowledgeable authority. 
Therefore, the basis for depreciation shall be the original cost plus 
the cost of capital improvements (if any) less the residual value. The 
original cost plus the cost of capital improvements less the residual 
value shall be divided by the useful life (as projected for the 
commercial activity cost comparison) to determine the annual 
depreciation.
    (G) Purchased services which augment the current in-house work 
effort and that are included in the PWS should be included in line 3 
(other specifically attributable costs). When these purchased services 
are long-term and contain labor costs subject to economic price 
adjustment clauses, then the applicable labor portion will not be 
escalated by outyear inflation factors. In addition, purchased services 
shall be offset for potential Federal income tax revenue by applying the 
appropriate rate in Appendix D of part IV of the Supplement to OMB 
Circular A-76 (Cost Comparison Handbook) to total cost of purchased 
services.
    (H) Overhead costs shall be computed only when such costs will not 
continue in the event of contract performance. This includes the cost of 
any position (full time, part time, or intermittent) that is dedicated 
to providing support to the activity(ies) under cost comparison 
regardless of the support organization's location. Military positions 
provided overhead support shall be costed using current military 
composite standard rates that include PCS costs multiplied by the 
appropriate support factor.
    (ii) Cost of Contract Performance. (A) The contract cost estimate 
shall be based on firm bids or negotiated proposals solicited in 
accordance with the FAR and the DoD FAR Supplement (DFARS) for full cost 
comparisons. Existing contract prices (such as those from GSA Supply 
Schedules) will not be used in a cost comparison. For simplified cost 
comparisons, the guidance in Appendix C of this part applies.
    (B) Standby costs are costs incurred for the upkeep of property in 
standby status. Such costs neither add to the value of the property nor 
prolong its

[[Page 807]]

life, but keep it in efficient operating condition or available for use. 
When an in-house activity is terminated in favor of contract performance 
and an agency elects to hold Government equipment and facilities on 
standby solely to maintain performance capability, this is a management 
decision, and such standby costs will not be charged to the cost of 
contracting.
    (C) A specific waiver is required to use contract administration 
factors that exceed the limits established in Table 3-1 of part IV of 
the Supplement to OMB Circular No. A-76 (Cost Comparison Handbook). The 
reason for the deviation from the limits, the supporting alternative 
computation, and documentation supporting the alternative method, shall 
be provided to the DoD Component's central point of contact office for 
advance approval on a case-by-case basis. The authority may not be 
redelegated. ASD(A&L) shall be notified within 30 days of any such 
decisions.
    (D) The following guidance pertains to one-time conversion costs:
    (1) Material Related Costs. The cost factors below shall be used, if 
more precise costs are not known, to estimate the cost associated with 
disposal/transfer of excess government material which result from a 
conversion to contract performance:

------------------------------------------------------------------------
                                                  Percentage of current
                                                     replacement cost
------------------------------------------------------------------------
Packing, crating , and handling (PCH)..........                      3.5
Transportation.................................                     3.75
------------------------------------------------------------------------

    (2) Labor-Related Costs. If unique circumstances prevail when a 
strict application of the 2 percent factor for computation of severance 
pay results in a substantial overstatement or understatement of this 
cost, an alternative methodology may be employed. The reason for the 
deviation from this standard, the alternative computation, and 
documentation supporting the alternative method shall be provided to the 
appropriate DoD Component's central point of contact office for advance 
approval on a case-by-case basis. This authority may not be redelegated.
    (3) Other Transition Costs. Normally, government personnel 
assistance after the contract start date (to assist in transition from 
in-house performance to contract performance) should not be necessary. 
When transition assistance will not be made available, this condition 
should be stated clearly in the solicitation so that contractors will be 
informed that they will be expected to meet full performance 
requirements from the first date of the contract. Also, when 
circumstances require full performance on the contract start date, the 
solicitation shall state that time will be made available for contractor 
indoctrination prior to the start date of the contract. The inclusion of 
personnel transition costs in a cost comparison requires advance 
approval of the DoD Component's central point of contact office. This 
authority may not be redelegated.
    (E) Gain or Loss on Disposal/Transfer of Assets. If more precise 
costs are not available from the Defense Reutilization and Marketing 
Office or appropriate authority, then:
    (1) The same factors for PCH and transportation costs as prescribed 
in Sec.  169a.12E(ii)(D)(1) for the costs associated with disposal/
transfer of materials may be used.
    (2) The estimated disposal value may be calculated from the net book 
value as derived from the table in Appendix C of part IV of the 
Supplement to OMB Circular No. A-76 (Cost Comparison Handbook), minus 
the disposal/transfer costs. This figure shall be entered as a gain or 
loss on line 11 or line 13 of the cost comparison form as appropriate.

    Note: If a cost-benefit analysis, as prescribed in Sec.  
169a.12(B)(iii), indicates that the retention of Government-owned 
facilities, equipment, or real property for use elsewhere in the 
Government is cost advantageous to the Government, then the cost 
comparison form shall reflect a gain to the Government and therefore a 
decrease to the cost of contracting on line 11 or line 13 of the cost 
comparison form as appropriate.

[50 FR 40805, Oct. 7, 1985, as amended at 57 FR 29209, July 1, 1992]



Sec.  169a.16  Independent review.

    (a) The estimates of in-house and contracting costs that can be 
computed before the cost comparison shall be reviewed by a qualified 
activity, independent of the Task Group preparing the cost comparison. 
This review shall

[[Page 808]]

be completed far enough in advance of the bid or initial proposal 
opening date to allow the DoD Component to correct any discrepancies 
found before sealing the in-house cost estimate.
    (b) The independent review shall substantiate the currency, 
reasonableness, accuracy, and completeness of the inhouse estimate. The 
review shall ensure that the in-house cost estimate is based on the same 
required services, performance standards, and workload contained in the 
solicitation. The reviewer shall scrutinize and attest to the adequacy 
and authenticity of the supporting documentation. Supporting 
documentation shall be sufficient to require no additional 
interpretation.
    (c) The purpose of the independent review is to ensure costs have 
been estimated and supported in accordance with provisions of this 
Instruction. If no (or only minor) discrepancies are noted during this 
review, the reviewer indicates the minor discrepancies, signs, dates, 
and returns the CCF to the preparer. If significant discrepancies are 
noted during the review, the discrepancies shall be reported to the 
preparer for recommended correction and resubmission.
    (d) The independent review is not required for simplified cost 
comparisons.

[50 FR 40805, Oct. 7, 1985, as amended at 57 FR 29210, July 1, 1992]



Sec.  169a.17  Solicitation considerations.

    (a) Every effort must be made to avoid postponement or cancellation 
of CA solicitations even if there are significant changes, omissions, or 
defects in the Government's in-house cost estimate. Such corrections 
shall be made before the expiration of bids or proposals and may require 
the extensions of bids or proposals. When there is no alternative, 
contracting officers must clearly document the reason(s).
    (b) Bidders or offerers shall be informed that an in-house cost 
estimate is being developed and that a contract may or may not result.
    (c) Bids or proposals shall be on at least a 3-year multi-year basis 
(when appropriate) or shall include prepriced renewal options to cover 2 
fiscal years after the initial period.
    (d) All contracts awarded as a result of a conversion (whether or 
not a cost comparison was performed) shall comply with all requirements 
of the FAR and DFARS.
    (e) Solicitations shall be restricted for preferential procurement 
when the requirements applicable to such programs (such as, small 
business set-asides or other required sources of supplies and services) 
are met, in accordance with the FAR.
    (f) Solicitations will not be restricted for preferential 
procurement unless the contracting officer determines that there is a 
reasonable expectation that the commercial prices will be fair and 
reasonable, in accordance with the FAR.
    (g) Contract defaults may result in temporary performance by 
Government personnel or other suitable means; such as, an interim 
contract source. Personnel detailed to such a temporary assignment 
should be clearly informed that they will return to their permanent 
assignment when a new contract is awarded. If the default occurs within 
the first year of contract performance, the following procedures apply:
    (1) If the Government was the next lowest bidder/offerer, and in-
house performance is still feasible, the function may be returned to in-
house performance. If in-house performance is no longer feasible, the 
contracting officer shall obtain the requirement by contract in 
accordance with the requirements of the FAR, 48 CFR part 49. A return to 
in-house performance under the above criteria shall be approved by the 
DoD Component's central point of contact office. This authority may not 
be redelegated.
    (2) If the contract wage rates are no longer valid or if the 
contracting officer, after a review of the availability of the next 
lowest responsible and responsive bidders/offerers, determines that 
resolicitation is appropriate, the Government may submit a bid for 
comparison with other bids/offers from the private sector. Submission of 
a Government bid requires a determination by the DoD Component that 
performance by DoD employees is still feasible and that a likelihood 
exists that such performance may be more economical than performance by 
contract. In such cost comparisons, the conversion differentials will 
not be applied to the

[[Page 809]]

costs of either in-house or contract performance.
    (h) If contract default occurs during the second or subsequent year 
of contract performance, the procedures of Sec.  169a.8(b)(2)(i) of this 
part apply.
    (1) Grouping of Commercial Activities. (i) The installation 
commander shall determine carefully which CAs should be grouped in a 
single solicitation. The installation commander should keep in mind that 
the grouping of commercial activities can influence the amount of 
competition (number of commercial firms that will bid or submit 
proposals) and the eventual cost to the Government.
    (ii) [Reserved]
    (2) The installation commander shall consider the adverse impacts 
that the grouping of commercial activities into a single solicitation 
may have on small and small disadvantaged business concerns. Commercial 
activities being performed wholly by small or small disadvantaged 
businesses will not be incorporated into a cost comparison unless 
consolidation is necessary to meet mission requirements. Actions must be 
taken to ensure that such contractors are not displaced merely to 
accomplish consolidation. Similarly, care must be taken so that 
nonincumbent small and small disadvantaged business contractors are not 
handicapped or prejudiced unduly from competing effectively at the prime 
contractor level.
    (3) In developing solicitations for commercial activities, the 
procurement plan should reflect an analysis of the advantages and 
disadvantages to the Government that might result from making more than 
one award. The decision to group commercial activities should reflect an 
analysis of all relevant factors including the following:
    (A) The effect on competition.
    (B) The duplicative management functions and costs to be eliminated 
through grouping.
    (C) The economies of administering multifunction vs. single function 
contracts, including cost risks associated with the pricing structure of 
each.
    (D) The feasibility of separating unrelated functional tasks or 
groupings.
    (E) The effect grouping will have on the performance of the 
functions.
    (4) When the solicitation package includes totally independent 
functions which are clearly divisible, severable, limited in number, and 
not price interrelated, they shall be solicited on the basis of an ``any 
or all'' bid or offer. commercial bidders or offerors shall be permitted 
to submit bids or offers on one or any combination of the functions 
being solicited. These bids or offers shall be evaluated to determine 
the lowest aggregate contract cost to the Government. This lowest 
aggregate contract cost then will be compared to the in-house cost 
estimate based on the MEO for performance of the functions in the single 
solicitation. The procedures in part IV of the Supplement to OMB 
Circular No. A-76 (Cost Comparison Handbook) apply.
    (5) There are instances when this approach to contracting for CAs 
may not apply; such as, situations when physical limitations of site 
(where the activities are to be performed) preclude allowing more than 
one contractor to perform, when the function cannot be divided for 
purposes of performance accountability, or for other national security 
considerations. However, if an ``all or none'' solicitation is issued, 
the decision to do so must include a cost analysis to reflect that the 
``all or none'' solicitation is less costly to the Government or an 
analysis indicating it is otherwise in the best interest of the 
Government, all factors considered.
    (6) It is recognized that in some cases, decisions will result in 
the elimination of prime contracting opportunities for small business. 
In such cases special measures shall be taken. At a minimum, small and 
small disadvantaged business concerns shall be given preferential 
consideration by all competing prime contractors in the award of 
subcontracts. For negotiated procurements the degree to which this is 
accomplished will be a weighted factor in the evaluation and source 
selection process leading to contract award.
    (7) The contract files shall be documented fully to demonstrate 
compliance with these procedures.
    (i) If no bids or proposals, or no responsive or responsible bids or 
proposals are received in response to a solicitation, the in-house cost 
estimate

[[Page 810]]

shall remain unopened. The contracting officer shall examine the 
solicitation to ascertain why no responses were received. Depending on 
the results of this review, the contracting officer shall consider 
restructuring the requirement, if feasible and reissue it under 
restricted or unrestricted solicitation procedures, as appropriate.
    (j) Continuation of an in-house CA for lack of a satisfactory 
commercial source will not be based upon lack of response to a 
restricted solicitation.
    (k) The guidance of subparagraph E.3.f. applies to sumplified cost 
comparisons and direct conversions of military personnel CAs.
    (l) To ensure that bonds and/or insurance requirements are being 
used in the best interest of the Government, as a general rule, 
requirements (for other than construction related services) above the 
levels established in the FAR and DFARS should not be included in 
acquisitions.

[50 FR 40805, Oct. 7, 1985, as amended at 56 FR 27901, June 18, 1991; 57 
FR 29210, July 1, 1992]



Sec.  169a.18  Administrative appeal procedures.

    (a) Appeals of Cost Comparison Decisions. (1) Each DoD Component 
shall establish an administrative appeals procedure to resolve questions 
from directly affected parties relating to determinations resulting from 
cost comparisons performed in compliance with this part. The appeal 
procedure will not apply to questions concerning the following:
    (i) Award to one contractor in preference to another;
    (ii) DoD management decisions.
    (2) The appeals procedure is to provide an administrative safeguard 
to ensure that DoD Component decisions are fair, equitable, and in 
accordance with procedures in this part. The procedure does not 
authorize an appeal outside the DoD Component or a judicial review.
    (3) The appeals procedure shall be independent and objective and 
provide for a decision on the appeal within 30 calendar days of receipt 
of the appeal. The decision shall be made by an impartial official at a 
level organizationally higher than the official who approved the cost 
comparison decision. The appeal decision shall be final, unless the DoD 
Component procedures provide for further discretionary review within the 
DoD Component.
    (4) All detailed documentation supporting the initial cost 
comparison decision shall be made available to directly affected parties 
upon request when the initial decision is announced. The detailed 
documentation shall include, at a minimum, the following: the in-house 
cost estimate with detailed supporting documentation (see Sec.  
169a.5(c)(ii) of this part), the completed CCF, name of the tentative 
winning contractor (if the decision is to contract), or the price of the 
bidder whose bid or proposal would have been most advantageous to the 
Government (if the decision is to perform in-house). If the 
documentation is not available when the initial decision is announced, 
the time alloted for submission of appeals shall be extended the number 
of days equal to the delay.
    (5) To be considered eligible for review under the DoD Component 
appeals procedures, appeals shall:
    (i) Be received by the DoD Component in writing within 15 working 
days after the date the supporting documentation is made available to 
directly affected parties.
    (ii) Address specific line items on the CCF and the rationale for 
questioning those items.
    (iii) Demonstrate that the result of the appeal may change the 
decision.
    (b) Appeals of Simplified Cost Comparisons and Direct Conversions. 
(1) Directly affected parties may appeal decision to convert to contract 
based on a simplified cost comparison involving 11-45 DoD civilian 
employees or a direct conversion involving 10 or fewer DoD civilian 
employees. The appeal must address reasons why fair and reasonable 
prices will not be obtainable.
    (2) Each DoD Component shall establish an administrative appeal 
procedure that is independent and objective; Installation Commanders 
must make available, upon request, the documentation supporting the 
decision to directly convert activities; appeals of direct conversions 
must be filed within 30 calendar days after the decision is announced in 
the Commerce Business

[[Page 811]]

Daily and/or Federal Register, and the supporting documentation is made 
available; an impartial official one level organizationally higher than 
the official who approved the direct conversion decision shall hear the 
appeal; officials shall provide an appeal decision within 30 calendar 
days of receipt of the appeal.
    (c) Since the appeal procedure is intended to protect the rights of 
all directly affected parties, the DoD Component's procedures, as well 
as the decision upon appeal, will not be subject to negotiation, 
arbitration, or agreement.
    (d) DoD Components shall include administrative appeal procedures as 
part of their implementing documents.

[50 FR 40805, Oct. 7, 1985, as amended at 57 FR 29210, July 1, 1992]



Sec.  169a.19  Study limits.

    No DoD funds shall be available to perform any cost study pursuant 
to the provisions of OMB Circular A-76 if the study being performed 
exceeds a period of 24 months after initiation of such study with 
respect to a single function activity or 48 months after initiation of 
such study for a multi-function activity.

[60 FR 67328, Dec. 29, 1995]



                    Subpart C_Reporting Requirements



Sec.  169a.21  Reporting requirements.

    (a) Inventory and Review Schedule (Report Control Symbol DD-A&T(A) 
1540). See Sec.  169a.8(a) of this part.
    (b) Commercial Activities Management Information System (CAMIS) 
(Report Control Symbol DD-A&T(Q) 1542). (1) The purpose of CAMIS is to 
maintain an accurate DoD data base of commercial activities that undergo 
an OMB Circular A-76 cost comparison and CAs that are converted directly 
to contract without a cost comparison. The CAMIS is used to provide 
information to the Congress, Office of Management Budget (OMB), General 
Accounting Office (GAO), OSD, and others. The CAMIS is divided into two 
parts. Part I contains data on CAs that undergo cost comparison. Part II 
contains data on commercial activities converted to contract without a 
full cost comparison.
    (2) The CAMIS report shall be submitted in accordance with the 
procedures in Appendix C.
    (c) Congressional Data Reports on CA (Report Control Symbol DD-
A&T(A&AR) 1949) and Reports on savings on Costs from Increased Use of 
DoD Civilian Personnel (Report Control Symbol DD-A&T(AR) 1950). To 
insure consistent application of the requirements stated in 10 U.S.C. 
2461 and 2463, the following guidance is provided:
    (1) The geographic scope of section 10 U.S.C. 2461 applies to the 
United States, its territories and possessions, the District of 
Columbia, and the Commonwealth of Puerto Rico.
    (2) Section 10 U.S.C. 2461 applies to proposed conversions of DoD 
CAs that on October 1, 1980, were being performed by more than forty-
five DoD civilian employees. 10 U.S.C. 2463 applies to conversions from 
contract to in-house involving 50 or more contractor employees.
    (3) DoD Components must not proceed with a CA study until 
notification to Congress, as required by 10 U.S.C. 2461. DoD Components 
shall notify the ASD(ES) of any such intent at least 5 working days 
before congressional notification.
    (4) DoD Components shall annotate announcements to Congress when a 
cost comparison is planned at an activity listed in the report to 
Congress on Core Logistics (see Sec.  169a.8(b)(1)(i)(2) of this part).
    (5) The DoD Components shall notify Congress, at least 5 working 
days before sending the detailed summary report required by 10 U.S.C. 
2461 to Congress. The detailed summary of the cost shall include: the 
amount of the offer accepted for the performance of the activity by the 
private contractor; the costs and expenditures that the Government will 
incur because of the contract; the estimated cost of performance of the 
activity by the most efficient Government organization; a statement 
indicating the life of the contract; and certifications that the entire 
cost comparison is available, and that the Government calculation for 
the cost of performance of such

[[Page 812]]

function by DoD employees is based on an estimate of the most efficient 
and cost-effective organization for performance of such function by DoD 
employees.
    (6) The potential economic effect on the employees affected, the 
local community, and the Federal Government of contracting for 
performance of the function shall be included in the report to accompany 
the above certifications, if more than 75 total employees (including 
military and civilian, both permanent and temporary) are potentially 
affected. It is suggested that the Army Corps of Engineers' model (or 
equivalent) be used to generate this information. The potential impact 
on affected employees shall be included in the report, regardless of the 
number of employees involved. Also include in the report a statement 
that the decision was made to convert to contractor performance, the 
projected date of contract award, the projected contract start date, and 
the effect of contracting the function on the military mission of that 
function.
    (7) By December 15th of each year, each DoD Component shall submit 
to the ASD(P&L) the data required by 10 U.S.C. 2461(c). In describing 
the extent to which CA functions were performed by DoD contractors 
during the preceding fiscal year, include the estimated number of work 
years for the in-house operation as well as for contract operation 
(including percentages) by major OSD functional areas in Appendix A to 
this part; such as, Social Services, Health Services, Installation 
Services, etc. For the estimate of the percentage of CA functions that 
will be performed in-house and those that will be performed by contract 
during the fiscal year during which the report is submitted, include the 
estimated work years for in-house CAs as well as for contracted CAs and 
the rationale for significant changes when compared to the previous 
year's data. Also, include the number of studies you expect to complete 
in the next fiscal year showing total civilian and military FTEs.

[50 FR 40805, Oct. 7, 1985, as amended at 57 FR 29210, July 1, 1992; 60 
FR 67329, Dec. 29, 1995]



Sec.  169a.22  Responsibilities.

    The responsibilities for implementing the policies and procedures of 
the DoD CA Program are prescribed in DoD Directive 4100.15 (32 CFR part 
169) and appropriate paragraphs of this part.

[57 FR 29210, July 1, 1992]





 Sec. Appendix A to Part 169a--Codes and Definitions of Functional Areas

    This list of functional codes and their definitions does not 
restrict the applicability or scope of the commercial activity Program 
within DoD. Section B. of DoD Directive 4100.15 defines the 
applicability and scope of the program. The commercial activity program 
still applies to CAs not defined in this listing. These codes and 
definitions are a guide to assist reporting. As new functions are 
identified, codes will be added or existing definitions will be 
expanded.

                             Social Services

    G001 Care of Remains of Deceased Personnel and/or Funeral Services. 
Includes CAs that provide mortuary services, including transportation 
from aerial port of embarkation (APOE) to mortuary of human remains 
received from overseas mortuaries, inpection, restoration, provision of 
uniform and insignia, dressing, flag, placement in casket, and 
preparation for onward shipment.
    G008 Commissary Store Operation. Includes CAs that provide all 
ordering, receipt, storage, stockage, and retailing for commissaries. 
Excludes procurement of goods for issue or resale.
    G008A: Shelf Stocking.
    G008B: Check Out.
    G008C: Meat Processing.
    G008D: Produce Processing.
    G008E: Storage and Issue.
    G008F: Other.
    G008G: Troop Subsistance Issue Point.
    G009 Clothing Sales Store Operation. Includes commercial activities 
that provide ordering, receipt, storage, stockage, and retailing of 
clothing. Stores operated by the Army and Air Force Exchange Services, 
Navy Exchange Services, and Marine Corps Exchange Services are excluded.
    G010 Recreational Library Services. Includes operation of libraries 
maintained primarily for off-duty use by military personnel and their 
dependents.
    G011 Other Morale, Welfare, and Recreation Services. Operation of 
commercial activities maintained primarily for the off-duty use of

[[Page 813]]

military personnel and their dependents, including both appropriated and 
partially nonappropriated fund activities. The operation of clubs and 
messes, and morale support activities are included in code G011. 
Examples of activities performing G011 functions are arts and crafts, 
entertainment, sports and athletics, swimming, bowling, marina and 
boating, stables, youth activities, centers, and golf. DoD Directive 
1015.1 \1\ contains amplification of the categories reflected below. 
(NOTE: commercial activities procedures are not mandatory for functions 
staffed solely by civilian personnel paid by nonappropriated funds.)
---------------------------------------------------------------------------

    \1\ See footnote 1 to Sec.  169.1(a).
---------------------------------------------------------------------------

    G011A: All Category II Nonappropriated Fund Instrumentalities 
(NAFIs), except Package Beverage Branch.
    G011B: Package Beverage Branch.
    G011C: All Category IIIa NAFIs.
    G011D: All Category IIIb1, except Libraries.
    G011E: Category IIIb2 Arts and Crafts.
    G011F: Category IIIb2 Music & Theatre.
    G011G: Category IIIb2 Outdoor Recreation.
    G011H: Category IIIb2 Youth Activities.
    G011I: Category IIIb2 Child Development Service.
    G011J: Category IIIb2 Sports--Competitive.
    G011K: All Category IIIb3 except Armed Forces Recreation Center 
(AFRC) Golf Bowling, and membership associations converted from Category 
VI.
    G011L: Category IIIb3 AFRC.
    G011M: Category IIIb3 Golf.
    G011N: Category IIIb3 Bowling.
    G011O: Category IIIb3 membership associations converted from 
Category VI.
    G011P: Category III Information Tour and Travel (ITT).
    G011Q: All Category IV.
    G011R: All Category V.
    G011S: All Category VI, except those converted to Category IIIb3.
    G011T: All Category VII.
    G011U: All Category VIII, except billeting and hotels.
    G011V: Category VIII Billeting.
    G011W: Category VIII Hotels.
    G012 Community Services. DoD Directive 1015.1 contains further 
amplification of the categories.
    G012A: Information and Referral.
    G012B: Relocation Assistance.
    G012C: Exceptionl Family Member.
    G012D: Family Advocacy (Domestic Violence).
    G012E: Foster Care.
    G012F: Family Member Employment.
    G012G: Installation Volunteer Coordination.
    G012H: Outreach.
    G012I: Volunteer Management.
    G012J: Office Management.
    G012K: Consumer Affairs/Financial Assistance.
    G012L: General and Emergency Family Assistance.
    G900 Chaplain Activities and Support Services. Includes commercial 
activities that provide non-military unique support services that 
supplement the command religious program such as non-pastoral 
counseling, organists, choir directors, and directions of religious 
education. The command religious program, which includes chaplains and 
enlisted support personnel, is a Governmental function and is excluded 
from this category.
    G901 Berthing BOQ/BEQ. Includes commercial activities that provide 
temporary or permanent accommodations for officer or enlisted personnel. 
Management of the facility, room service, and daily cleaning are 
included.
    G904 Family Services. Includes commercial activities that perform 
various social services for families, such as family counseling, 
financial counseling and planning, the operation of an abuse center, 
child care center, or family aid center.
    G999 Other Social Services. This code will only be used for unusual 
circumstances and will not be used to report organizations or work that 
can be accommodated under a specifically defined code.

                             Health Services

    H101 Hospital Care. Includes commercial activities that provide 
outpatient and inpatient care and consultative evaluation in the medical 
specialties, including pediatrics and psychiatry; the coordination of 
health care delivery relative to the examination, diagnosis, treatment, 
and disposition of medical inpatients.
    H102 Surgical Care. Includes commercial activities that provide 
outpatient and inpatient care and consultative evaluation in the 
surgical specialties, including obstetrics, gynecology, ophthalmology 
and otorhinolaryngology; the coordination of health care delivery 
relative to the examination, treatment, diagnosis, and disposition of 
surgical patients.
    H105 Nutritional Care. Includes commercial activities that provide 
hospital food services for inpatients and outpatients, dietetic 
treatment, counseling of patients, and nutritional education.
    H106 Pathology Services. Includes commercial activities involved in 
the operation of laboratories providing comprehensive clinical and 
anatomical pathology services; DoD military blood program and blood bank 
activities; and area reference laboratories.
    H107 Radiology Services. Includes commercial activities that provide 
diagnostic and therapeutic radiologic service to inpatients and 
outpatients, including the processing, examining, interpreting, and 
storage and retrieval of radiographs, fluorographs, and radiotherapy.

[[Page 814]]

    H108 Pharmacy Services. Includes commercial activities that produce, 
preserve, store, compound, manufacture, package, control, assay, 
dispense, and distribute medications (including intravenous solutions) 
for inpatients and outpatients.
    H109 Physical Therapy. Includes commercial activities that provide 
care and treatment to patients whose ability to function is impaired or 
threatened by disease or injury; primarily serve patients whose actual 
impairment is related to neuromusculoskeletal, pulmonary, and 
cardiovascular systems; evaluate the function and impairment of these 
systems, and select and apply therapeutic procedures to maintain, 
improve, or restore these functions.
    H110 Materiel Services. Includes commercial activities that provide 
or arrange for the supplies, equipment, and certain services necessary 
to support the mission of the medical facility; responsibilities include 
procurement, inventory control, receipt, storage, quality assurance, 
issue, turn-in, disposition, property accounting, and reporting actions 
for designated medical and nonmedical supplies and equipment.
    H111 Orthopedic Services. Includes commercial activities that 
construct orthopedic appliances such as braces, casts, splints, 
supports, and shoes from impressions, forms, molds, and other 
specifications.
    H112 Ambulance Service. Includes commercial activities that provide 
transportation for personnel who are injured, sick, or otherwise require 
medical treatment, including standby duty in support of military 
activities and ambulance bus services.
    H113 Dental Care. Includes commercial activities that provide oral 
examinations, patient education, diagnosis, treatment, and care 
including all phases of restorative dentistry, oral surgery, 
prosthodontics, oral pathology, periodontics, orthodontics, endodontics, 
oral hygiene, preventive dentistry, and radiodontics.
    H114 Dental Laboratories. Includes commercial activities that 
operate dental prosthetic laboratories required to support the provision 
of comprehensive dental care; services may include preparing casts and 
models, repairing dentures, fabricating transitional, temporary, or 
orthodontic appliances, and finishing dentures.
    H115 Clinics and Dispensaries. Includes commercial activities that 
operate freestanding clinics and dispensaries that provide health care 
services. Operations are relatively independent of a medical treatment 
facility and are separable for in-house or contract performance. Health 
clinics, occupational health clinics, and occupational health nursing 
offices.
    H116 Veterinary Services. Includes commercial activities that 
provide a complete wholesomeness and quality assurance food inspection 
program, including sanitation, inspection of food received, surveillance 
inspections, and laboratory examination and analysis; a complete 
zoonosis control program; complete medical care for Government-owned 
animals; veterinary medical support for biomedical research and 
development; support to other Federal agencies when requested and 
authorized; assistance in a comprehensive preventive medicine program; 
and determination of fitness of all foods that may have been 
contaminated by chemical, bacteriological, or radioactive materials.
    H117 Medical Records Transcription. Includes commercial activities 
that transcribe, file, and maintain medical records.
    H118 Nursing Services. Includes commercial activities that provide 
care and treatment for inpatients and outpatients not required to be 
performed by a doctor.
    H119 Preventive Medicine. Includes commercial activities that 
operate wellness or holistic clinics (preventive medicine), information 
centers, and research laboratories.
    H120 Occupational Health. Includes commercial activities that 
develop, monitor, and inspect installation safety conditions.
    H121 Drug Rehabilitation. Includes commercial activities that 
operate alcohol treatment facilities, urine testing for drug content, 
and drug/alcohol counseling centers.
    H999 Other Health Services. This code will only be used for unusual 
circumstances and will not be used to report organizations or work that 
can be accommodated under a specifically defined code.

  Intermediate, Direct, or General Repair and Maintenance of Equipment

    Definition. Maintenance authorized and performed by designated 
maintenance commercial activities in support of using activities. 
Normally, it is limited to replacement and overhaul of unserviceable 
parts, subassemblies, or assemblies. It includes (1) intermediate/
direct/general maintenance performed by fixed activities that are not 
designed for deployment to combat areas and that provide direct support 
of organizations performing or designed to perform combat missions from 
bases in the United States, and (2) any testing conducted to check the 
repair procedure. Commercial activities engaged in intermediate/direct/
general maintenance and/or repair of equipment are to be grouped 
according to the equipment predominantly handled, as follows:
    J501 Aircraft. Aircraft and associated equipment. Includes armament, 
electronic and communications equipment, engines, and any other 
equipment that is an integral part of an aircraft.
    J502 Aircraft Engines. Aircraft engines that are not repaired while 
an integral part of the aircraft.

[[Page 815]]

    J503 Missiles. Missile systems and associated equipment. Includes 
mechanical, electronics, and communication equipment that is an integral 
part of missile systems.
    J504 Vessels. All vessels, including armament, electronics, 
communications and any other equipment that is an integral part of the 
vessel.
    J505 Combat Vehicles. Tanks, armored personnel carriers, self-
propelled artillery, and other combat vehicles. Includes armament, fire 
control, electronic, and communications equipment that is an integral 
part of a combat vehicle.
    J506 Noncombat Vehicles. Automotive equipment, such as tactical, 
support, and administrative vehicles. Includes electronic and 
communications equipment that is an integral part of the noncombat 
vehicle.
    J507 Electronic and Communications Equipment. Stationary, mobile, 
portable, and other electronic and communications equipment. Excludes 
electronic and communications equipment that is an integral part of 
another weapon/support system. Maintenance of Automatic Data Processing 
Equipment (ADPE) not an integral part of a communications system shall 
be reported under functional code W825; maintenance of tactical ADPE 
shall be reported under function code J999.
    J510 Railway Equipment. Locomotives of any type or gauge, including 
steam, compressed air, straight electric, storage battery, diesel 
electric, gasoline, electric, diesel mechanical locomotives, railway 
cars, and cabooses. Includes electrical equipment for locomotives and 
cars, motors, generators, wiring supplies for railway tracks for both 
propulsion and signal circuits, and on-board communications and control 
equipment.
    J511 Special Equipment. Construction equipment, weight lifting, 
power, and materiel handling equipment (MHE).
    J512 Armament. Small arms, artillery and guns, nuclear munitions, 
chemical, biological, and radiological (CBR) items, conventional 
ammunition, and all other ordnance items. Excludes armament that is an 
integral part of another weapon or support system.
    J513 Dining Facility Equipment. Dining facility kitchen appliances 
and equipment.
    J514 Medical and Dental Equipment. Medical and dental equipment.
    J515 Containers, Textiles, Tents, and Tarpaulins. Containers, tents, 
tarpaulins, other textiles, and organizational clothing.
    J516 Metal Containers. Container Express (CONEX) containers, 
gasoline containers, and other metal containers.
    J517 Training Devices and Audiovisual Equipment. Training devices 
and audiovisual equipment. Excludes maintenance of locally fabricated 
devices and functions reported under codes T807 and T900.
    J519 Industrial Plant Equipment. That part of plant equipment with 
an acquisition cost of $3,000 or more, used to cut, abrade, grind, 
shape, form, join, test, measure, heat, or otherwise alter the physical, 
electrical, or chemical properties of materiels, components, or end 
items entailed in manufacturing, maintenance, supply processing, 
assembly, or research and development operations.
    J520 Test, Measurement, and Diagnostic Equipment. Test, measurement, 
and diagnostic equipment (TMDE) that has resident in it a programmable 
computer. Included is equipment referred to as automated test equipment 
(ATE).
    J521 Other Test, Measurement, and Diagnostic Equipment. Test, 
measurement, and diagnostic equipment not classified as ATE or that does 
not contain a resident programmable computer. Includes such items as 
electronic meters, armament circuit testers, and other specialized 
testers.
    J522 Aeronautical Support Equipment. Aeronautical support equipment 
excluding TMDE (and ATE). Includes such items as ground electrical power 
carts, aircraft tow tractors, ground air conditioners, engine stands, 
and trailers. Excludes aeronautical equipment reported under J501.
    J999 Other Intermediate, Direct, or General Repair and Maintenance 
of Equipment. This code will only be used for unusual circumstances and 
will not be used to report organizations or work that can be 
accommodated under a specifically defined code.

  Depot Repair, Maintenance, Modification, Conversion, or Overhaul of 
                                Equipment

    Definition. The maintenance performed on materiel that requires 
major overhaul or a complete rebuild of parts, assemblies, 
subassemblies, and end items, including the manufacture of parts, 
modifications, testing, and reclamation, as required. Depot maintenance 
serves to support lower categories of maintenance. Depot maintenance 
provides stocks of serviceable equipment by using more extensive 
facilities for repair than are available in lower level maintenance 
activities. (See DoD Instruction 4151.15 \2\ for further amplification 
of the category definitions reflected below.) Depot or indirect 
maintenance functions are identified by the type of equipment maintained 
or repaired.
---------------------------------------------------------------------------

    \2\ See footnote 1 to Sec.  169a.1(a).
---------------------------------------------------------------------------

    K531 Aircraft. Aircraft and associated equipment. Includes armament, 
electronics and communications equipment, engines, and any other 
equipment that is an integral part of an aircraft. Aeronautical support 
equipment not reported separately under code K548.

[[Page 816]]

    K532 Aircraft Engines. Aircraft engines that are not repaired while 
an integral part of the aircraft.
    K533 Missiles. Missile systems and associated equipment. Includes 
mechanical, electronic, and communications equipment that is an integral 
part of missile systems.
    K534 Vessels. All vessels, including armament, electronics, and 
communications equipment, and any other equipment that is an integral 
part of a vessel.
    K535 Combat Vehicles. Tanks, armored personnel carriers, self-
propelled artillery, and other combat vehicles. Includes armament, fire 
control, electronics, and communications equipment that is an integral 
part of a combat vehicle.
    K536 Noncombat Vehicles. Automotive equipment, such as tactical 
support and administrative vehicles. Includes electronic and 
communications equipment that is an integral part of the vehicle.
    K537 Electronic and Communications Equipment. Stationary, mobile, 
portable, and other electronics and communications equipment. Excludes 
electronic and communications equipment that is an integral part of 
another weapon/support system. Maintenance of ADPE, not an integral part 
of a communications system, is reported under functional code W825.
    K538 Railway Equipment. Locomotives of any type or gauge, including 
steam, compressed air, straight electric, storage battery, diesel 
electric, gasoline, electric, diesel mechanical locomotives, railway 
cars, and cabooses. Includes electrical equipments for locomotives and 
cars, motors, generators, wiring supplies for railway tracks for both 
propulsion and signal circuits, and on-board communication and control 
equipment.
    K539 Special Equipment. Construction equipment, weight lifting, 
power, and materiel-handling equipment.
    K540 Armament. Small arms; artillery and guns; nuclear munitions, 
CBR items; conventional ammunition; and all other ordnance items. 
Excludes armament that is an integral part of another weapon or support 
system.
    K541 Industrial Plant Equipment. That part of plant equipment with 
an acquisition cost of $3,000 or more, used to cut, abrade, grind, 
shape, form, join, test, measure, heat, or otherwise alter the physical, 
electrical, or chemical properties of materials, components, or end 
items entailed in manufacturing, maintenance, supply, processing, 
assembly, or research and development operations.
    K542 Dining Facility Equipment. Dining facility kitchen appliances 
and equipment. This includes field feeding equipment.
    K543 Medical and Dental Equipment. Medical and dental equipment.
    K544 Containers, Textiles, Tents and Tarpaulins. Containers, tents, 
tarpaulins, and other textiles.
    K545 Metal Containers.  CONEX containers, gasoline containers, and 
other metal containers.
    K546 Test Measurement and Diagnostic Equipment. Test measurement and 
diagnostic equipment (TMDE) that has resident in it a programmable 
computer. Included is equipment referred to as automated test equipment 
(ATE).
    K547 Other Test Measurement and Diagnostic Equipment. Test 
measurement and diagnostic equipment not classfied as ATE or that does 
not contain a resident programmable computer. Includes such items as 
electronic meters, armament circuit testers, and other specialized 
testers.
    K548 Aeronautical Support Equipment. Aeronautical support equipment 
excluding TMDE (and ATE). Includes such items as ground electrical power 
carts, aircraft tow tractors, ground air conditioners, engine stands, 
and trailers. Excludes aeronautical support equipment reported under 
code K531.
    K999 Other Depot Repair, Maintenance, Modification, Conversion, or 
Overhaul of Equipment. This code will only be used for unusual 
circumstances and will not be used to report organizations or work that 
can be accommodated under a specifically defined code.

                Base Maintenance/Multifunction Contracts

    P100 Base Maintenance/Multifunction Contracts. Includes all 
umbrella-type contracts where the contractor performs more than one 
function at one or more installations. (Identify specific functions as 
nonadd entries.)

       Research, Development, Test, and Evaluation (RDT&E) Support

    R660 RDT&E Support. Includes all effort not reported elsewhere 
directed toward support of installation or operations required for 
research, development, test, and evaluation use. Included are 
maintenance support of laboratories, operation and maintenance of test 
ranges, and maintenance of test aircraft and ships.

                          Installation Services

    S700 Natural Resource Services. Includes those commercial activities 
that provide products or services that implement natural resource 
management plans in the areas of fish, game, wildlife, forestry, 
watershed areas or ground water table, erosion control, and mineral 
deposit management. Natural resources planning and management is a 
governmental function and will not be reported.

[[Page 817]]

    S701 Advertising and Public Relations Services. Includes commercial 
activities responsible for advertising and public relations in support 
of public affairs offices, installation newspapers and publications, and 
information offices.
    S702 Financial and Payroll Services. Includes commercial activities 
that prepare payroll, print checks, escrow, or change payroll accounts 
for personnel. Includes other services normally associated with banking 
operations.
    S703 Debt Collection. Includes commercial activities that monitor, 
record, and collect debts incurred by overdrafts, bad checks, or 
delinquent accounts.
    S706 Installation Bus Services. Includes commercial activities that 
operate local, intrapost, and interpost scheduled bus services. Includes 
scheduled movement of personnel over regular routes by administrative 
motor vehicles to include taxi and dependent school bus services.
    S706A Scheduled Bus Services.
    S706B  Unscheduled Bus Services
    S706C  Dependent School Bus Services.
    S706D  Other Bus Services.
    S708 Laundry and Dry Cleaning Services. Including commercial 
activities that operate and maintain laundry and dry cleaning 
facilities.
    S709 Custodial Services. Includes commercial activities that provide 
janitorial and housekeeping services to maintain safe and sanitary 
conditions and preserve property.
    S710 Pest Management. Includes commercial activities that provide 
control measures directed against fungi, insects, rodents, and other 
pests.
    S712 Refuse Collection and Disposal Services. Includes commercial 
activities that operate incinerators, sanitary fills, and regulated 
dumps, and perform all other approved refuse collection and disposal 
services.
    S713 Food Services. Includes commercial activities engaged in the 
operation and administration of food preparation and serving facilities. 
Excludes operation of central bakeries, pastry kitchens, and central 
meat processing facilities that produce a product and are reported under 
functional area X934. Excludes hospital food service operations (under 
code H105).
    S713A: Food Preparation and Administration.
    S713B: Mess Attendants and Housekeeping Services.
    S714 Furniture. Includes commercial activities that repair and 
refurbish furniture.
    S715 Office Equipment. Includes commercial activities that maintain 
and repair typewriters, calculators, and adding machines.
    S716 Motor Vehicle Operation. Includes commercial activities that 
operate local administrative motor transportation services. Excludes 
installation bus services reported in functional area S706.
    S716A: Taxi Service.
    S716B: Bus Service (unless in S706).
    S716C: Motor Pool Operations.
    S716D: Crane Operation (includes rigging, excludes those listed in 
T800G).
    S716E: Heavy Truck Operation.
    S716F: Construction Equipment Operation.
    S716I: Driver/Operator Licensing & Test.
    S716J: Other Vehicle Operations (Light Truck/Auto).
    S716K: Fuel Truck Operations.
    S716M: Tow Truck Operations.
    S717 Motor Vehicle Maintenance. Includes commercial activities that 
perform maintenance on automotive equipment, such as support and 
administrative vehicles. Includes electronic and communications 
equipment that are an integral part of the vehicle.
    S717A: Upholstery Maintenance and Repair.
    S717B: Glass Replacement and Window Repair.
    S717C: Body Repair and Painting.
    S717D: Accessory Overhaul.
    S717E: General Repairs/Minor Maintenance.
    S717F: Battery Maintenance and Repair.
    S717G: Tire Maintenance and Repair.
    S717H: Major Component Overhaul.
    S717I: Material Handling Equipment Maintenance.
    S717J: Crane Maintenance.
    S717K: Construction Equipment Maintenance.
    S717L: Frame and Wheel Alignment.
    S717M: Other Motor Vehicle Maintenance.
    S718 Fire Prevention and Protection. Includes commercial activities 
that operate and maintain fire protection and preventive services. 
Includes routine maintenance and repair of fire equipment and the 
installation of fire prevention equipment.
    S718A: Fire Protection Engineering.
    S718B: Fire Station Administration.
    S718C: Fire Prevention.
    S718D: Fire Station Operations.
    S718E: Crash and Rescue.
    S718F: Structural Fire Suppression.
    S718G: Fire & Crash/Rescue Equipment Major Maintenance.
    S718H: Other Fire Prevention and Protection.
    S719: Military Clothing. Includes commercial activities that order, 
receive, store, issue, and alter military clothing and repair military 
shoes. Excludes repair of organizational clothing reported under code 
J515.
    S724: Guard Service. Includes commercial activities engaged in 
physical security operations that provide for installation security and 
intransit protection of military property from loss or damage.
    S724A: Ingress and egress control. Regulation of persons, material, 
and vehicles entering or exiting a designated area to provide

[[Page 818]]

protection of the installation and Government property.
    S724B: Physical security patrols and posts. Mobile and static 
physical security guard activities that provide protection of 
installation or Government property.
    S724C: Conventional arms, ammunition, and explosives (CAAE) 
security. Dedicated security guards for CAAE.
    S724D: Animal control. Patrolling for, capture of, and response to 
complaints about uncontrolled, dangerous, and disabled animals on 
military installations.
    S724E: Visitor information services. Providing information to 
installation resident and visitors about street, agency, unit, and 
activity locations.
    S724F: Vehicle impoundment. Removal, accountability, security, and 
processing of vehicles impounded on military installations.
    S724G: Registration functions. Administration, filing, processing, 
and retrieval information about privately owned items that must be 
registered on military installations.
    S724S: Other guard service.
    S725 Electrical Plants and Systems. Includes commercial activities 
that operate, maintain, and repair Government-owned electrical plants 
and systems.
    S726 Heating Plants and Systems. Includes commercial activities that 
operate, maintain, and repair Government-owned heating plants and 
systems over 750,000 British Thermal Unit (BTU) capacity. Codes Z991 or 
Z992 will be used for systems under 750,000 BTU capacity, as applicable.
    S727 Water Plants and Systems. Includes commercial activities that 
operate, maintain, and repair Government-owned water plants and systems.
    S728 Sewage and Waste Plants and Systems. Includes commercial 
activities that operate, maintain, and repair Government-owned sewage 
and waste plants and systems.
    S729 Air Conditioning and Refrigeration Plants. Includes commercial 
activities that operate, maintain, and repair Government-owned air 
conditioning and refrigeration plants over 5-ton capacity. Codes Z991 or 
Z992 shall be used for plants under 5-ton capacity as applicable.
    S730 Other Services or Utilities. Includes commercial activities 
that operate, maintain, and repair other Government-owned services or 
utilities.
    S731 Base Supply Operations. Includes commercial activities that 
operate centralized installation supply functions providing supplies and 
equipment to all assigned or attached units. Performs all basic supply 
functions to determine requirements for all requisition, receipt, 
storage, issuance, and accountability for materiel.
    S732 Warehousing and Distribution of Publications. Includes 
commercial activities that receive, store, and distribute publications 
and blank forms.
    S740 Installation Transportation Office. Includes technical, 
clerical, and administrative commercial activities that support traffic 
management services related to the procurement of freight and passenger 
service from commercial ``for hire'' transportation companies. Excludes 
restricted functions that must be performed by Government employees such 
as the review, approval, and signing of documents related to the 
obligation of funds; selection of mode or carrier; evaluation of carrier 
performance; and carrier suspension. Excludes installation 
transportation functions described under codes S706, S716, S717, T810, 
T811, T812, and T814.
    S740A: Installation Transportation Management and Administration.
    S740B: Materiel Movements.
    S740C: Personnel Movements.
    S740D: Personal Property Activities.
    S740E: Quality Control and Inspection.
    S740F: Unit Movements.
    S750 Museum Operations.
    S760 Contractor-Operated Parts Stores and Contractor-Operated Civil 
Engineering Supply Stores.
    S999 Other Installation Services. This code will only be used for 
unusual circumstances and will not be used to report organizations or 
work that can be accommodated under a specifically defined code.

                    Other Nonmanufacturing Operations

    T800 Ocean Terminal Operations. Includes commercial activities that 
operate terminals transferring cargo between overland and sealift 
transportation. Includes handling of Government cargo through commercial 
water terminals.
    T800A: Pier Operations. Includes commercial activities that provide 
stevedore and shipwright carpentry operations supporting the loading, 
stowage, and discharge of cargo and containers on and off ships, and 
supervision of operations at commercial piers and military ocean 
terminals.
    T800B: Cargo Handling Equipment. Includes commercial activities that 
operate and maintain barge derricks, gantries, cranes, forklifts, and 
other materiel handling equipment used to handle cargo within the 
terminal area.
    T800C: Port Cargo Operations. Includes commercial activities that 
load and unload railcars and trucks, pack, repack, crate, warehouse, and 
store cargo moving through the terminal, and stuff and unstuff 
containers.
    T800D: Vehicle Preparation. Includes commercial activites that 
prepare Government and privately owned vehicles (POVs) for ocean 
shipment, inspection, stowage in containers, transportation to pier, 
processing, and issue of import vehicles to owners.
    T800E: Lumber Operations. Includes commercial activities that 
segregate reclaimable lumber from dunnage removed from ships,

[[Page 819]]

railcars, and trucks; remove nails; even lengths; inspect; and return 
the lumber to inventory for reuse. Includes receipt, storage, and issue 
of new lumber.
    T800F: Materiel Handling Equipment (MHE) Operations. Includes 
commercial activities that deliver MHE to user agencies, perform onsite 
fueling, and operate special purpose and heavy capacity equipment.
    T800G: Crane Operations. Includes commercial activities that operate 
and perform first-echelon maintenance of barge derricks, gantries, and 
truck-mounted cranes in support of vessels and terminal cargo 
activities.
    T800H: Breakbulk Cargo Operations. Includes commercial activities 
that provide stevedoring, shipwright carpentry, stevedore 
transportation, and the loading and unloading of noncontainerized cargo.
    T800I: Other Ocean Terminal Operations.
    T801 Storage and Warehousing. Includes commercial activities that 
receive materiel into depots and other storage and warehousing 
facilities, provide care for supplies, and issue and ship materiel. 
Excludes installation supply in support of unit and tenet activities 
described in S731.
    T801A: Receipt. Includes commercial activities that receive supplies 
and related documents and information. This includes materiel handling 
and related actions, such as materials segregation and checking, and 
tallying incident to receipt.
    T801B: Packing and Crating of Household Goods. Includes commercial 
activities performing packing and crating operations described in T801H, 
incident to the movement or storage of household goods.
    T801C: Shipping. Includes commercial activities that deliver stocks 
withdrawn from storage to shipping. Includes onloading and offloading of 
stocks from transportation carriers, blocking, bracing, dunnage, 
checking, tallying, and materiel handling in central shipping area and 
related documentation and information operations.
    T801D: Care, Rewarehousing, and Support of Materiel. Includes 
commercial activities that provide for actions that must be taken to 
protect stocks in storage, including physical handling, temperature 
control, assembly placement and preventive maintenance of storage aids, 
and realigning stock configuration; provide for movement of stocks from 
one storage location to another and related checking, tallying, and 
handling; and provide for any work being performed within general 
storage support that cannot be identified clearly as one of the 
subfunctions described above.
    T801E: Preservation and Packaging. Includes commercial activities 
that preserve, represerve, and pack materiel to be placed in storage or 
to be shipped. Excludes application of final (exterior) shipping 
containers.
    T801F: Unit and Set Assembly and Disassembly. Includes commercial 
activities that gather or bring together items of various nomenclature 
(parts, components, and basic issue items) and group, assemble, or 
restore them to or with an item of another nomenclature (such as parent 
end item or assemblage) to permit shipment under a single document. This 
also includes blocking, bracing, and packing preparations within the 
inner shipping container; physical handling and loading; and reverse 
operation of assembling such units.
    T801G: Special Processing of Non Stock Fund-Owned Materiel. Includes 
commercial activities performing special processing actions described 
below that must be performed on Inventory Control Point (ICP)-
controlled, nonstock fund-owned materiel by technically qualified depot 
maintenance personnel, using regular or special maintenance tools or 
equipment. Includes disassembly or reassembly or reserviceable ICP-
controlled materiel being readied for movement, in-house storage, or 
out-of-house location such as a port to a commercial or DoD-operated 
maintenance or storage facility, property disposal or demilitarization 
activity, including blocking, bracing, cushioning, and packing.
    T801H: Packing and Crating. Includes commercial activities that 
place supplies in their final, exterior containers ready for shipment. 
Includes the nailing, strapping, sealing, stapling, masking, marking, 
and weighing of the exterior container. Also, includes all physical 
handling, unloading, and loading of materiel, within the packing and 
shipping area; checking and tallying material in and out; all operations 
incident to packing, repacking, or recrating for shipment, including on-
line fabrication of tailored boxes, crates, bit inserts, blocking, 
bracing and cushioning shrouding, overpacking, containerization, and the 
packing of materiel in transportation containers. Excludes packing of 
household goods and personnel effects reported under code T801B.
    T801I: Other Storage and Warehousing.
    T802 Cataloging. Includes commercial activity that prepare supply 
catalogs and furnish cataloging data on all items of supply for 
distribution to all echelons worldwide. Includes catalog files, 
preparation, and revision of all item identifications for all logistics 
functions; compilation of Federal catalog sections and allied 
publication; development of Federal item identification guides, and 
procurement identification descriptions. Includes printing and 
publication of Federal supply catalogs and related allied publications.
    T803 Acceptance Testing. Includes commercial activities that inspect 
and test supplies and materiel to ensure that products meet minimum 
requirements of applicable specifications, standards, and similar 
technical criteria; laboratories and other facilities

[[Page 820]]

with inspection and test capabilities; and activities engaged in 
production acceptance testing of ammunition, aircraft armament, mobility 
material, and other military equipment.
    T803A: Inspection and Testing of Oil and Fuel.
    T803B: Other Acceptance Testing.
    T804 Architect-Engineering Services. Includes commercial activities 
that provide Architect/Engineer (A/E) services. Excludes Engineering 
Technical Services (ETS) reported in functional area T813, and those 
required under 40 U.S.C. 541-554.
    T805 Operation of Bulk Liquid Storage. Includes commercial 
activities that operate bulk petroleum storage facilities. Includes 
operation of off-vessel discharging and loading facilities, fixed and 
portable bulk storage facilities, pipelines, pumps, and other related 
equipment within or between storage facilities or extended to using 
agencies (excludes aircraft fueling services); handling of drums within 
bulk fuel activities. Excludes aircraft fueling services reported under 
code T814.
    T806 Printing and Reproduction. Includes commercial activities that 
print, duplicate, and copy. Excludes user-operated office copying 
equipment.
    T807 Audiovisual and Visual Information Services. Includes 
commercial activities that provide base audiovisual (AV) and visual 
information (VI) support, production, depositories, technical 
documentation, and broadcasting.
    T807A: Base VI Support. Includes commercial activities that provide 
production activities that provide general support to all installation, 
base, facility or site, organizations or activities. Typically, they 
supply motion picture, still photography, television, and audio 
recording for nonproduction documentary purposes, their laboratory 
support, graphic arts, VI libraries, and presentation services.
    T807B: AV Production. Includes commercial activities that provide a 
self-contained, complete presentation, developed according to a plan or 
script, combining sound with motion media (film, tape or disc) for the 
purpose of conveying information to, or communicating with, an audience. 
(An AV production is distinguished from a VI production by the absence 
of combined sound and motion media in the latter.)
    T807C: VI Depositories. Includes commercial activities that are 
especially designed and constructed for the low-cost and efficient 
storage and furnishing of reference service on semicurrent records 
pending their ultimate disposition. Includes records centers.
    T807D: VI Technical Documentation. Includes commercial activities 
that provide a technical documentation (TECDOC) which is a continuous 
visual recording (with or without sound as an integral documentation 
component) of an actual event made for purposes of evaluation. 
Typically, TECDOC contributes to the study of human or mechanical 
factors, procedures and processes in the context of medicine, science 
logistics, research, development, test and evaluation, intelligence, 
investigations and armament delivery.
    T807E: Electronic Media Transmission. Includes commercial activities 
that transmit and receive audio and video signals for closed circuit 
local and long distance multi-station networking and broadcast 
operations.
    T807F: VI Documentation. Includes commercial activities that provide 
motion media (film or tape) still photography and audio recording of 
technical and nontechnical events, as they occur, usually not controlled 
by the recording crew. VI documentation (VIDOC) encompasses Operational 
Documentation (OPDOC) and TECDOC. OPDOC is VI (photographic or 
electronic) recording of activities, or multiple perspectives of the 
same activity, to convey information about people, places and things.
    T807G: AV Central Library (Inventory Control Point). Includes 
commercial activities that receive, store, issue, and maintain AV 
products at the central library level. May or may not include records 
center operations for AV products.
    T807K: AV or VI Design Service. Includes commercial activities that 
provide professional consultation services involving the selection, 
design, and development of AV or VI equipment or facilities.
    T808 Mapping and Charting. Includes commercial activities that 
design, compile, print, and disseminate cartographic and geodetic 
products.
    T809 Administrative Telephone Service. Includes commercial 
activities that operate and maintain the common-user, administrative 
telephone systems at DoD installations and activities. Includes 
telephone operator services; range communications; emergency action 
consoles; and the cable distribution portion of a fire alarm, intrusion 
detection, emergency monitoring and control data, and similar systems 
that require use of a telephone system.
    T810 Air Transportation Services. Includes commercial activities 
that operate and maintain nontactical aircraft that are assigned to 
commands and installations and used for administrative movement of 
personnel and supplies.
    T811 Water Transportation Services. Includes commercial activities 
that operate and maintain nontactical watercraft that are assigned to 
commands and installations and are used for administrative movement of 
personnel and supplies.
    T811A: Water Transportation Services (except tug operations).
    T811B: Tug Operations.

[[Page 821]]

    T812 Rail Transportation Services. Includes commercial activities 
that operate and maintain nontactical rail equipment assigned to 
commands and installation and used for administrative movement of 
personnel and supplies.
    T813 Engineering and Technical Services. Includes commercial 
activities that advise, instruct, and train DoD personnel in the 
installation, operation, and maintenance of DoD weapons, equipment, and 
systems.
    These services include transmitting the technical skill capability 
to DoD personnel in order for them to install, maintain, and operate 
such equipment and keep it in a high state of military readiness.
    T813A: Contractor Plant Services. Includes commercial manufacturers 
of military equipment contracted to provide technical and engineering 
services to DoD personnel. Qualified employees of the manufacturer 
furnish these services in the manufacturer plants and facilities. 
Through this program, the special skills, knowledge, experience, and 
technical data of the manufacturer are provided for use in training, 
training aid programs, and other essential services directly related to 
the development of the technical capability required to install, 
operate, maintain, supply, and store such equipment.
    T813B: Contract Field Services (CFS). Includes commercial activities 
that provide services of qualified contractor personnel who provide 
onsite technical and engineering services to DoD personnel.
    T813C: In-house Engineering and Technical Services. Includes 
commercial activities that provide technical and engineering services 
described in codes T813A and T813B above that are provided by Government 
employees.
    T813D: Other Engineering and Technical Services.
    T814 Fueling Service (Aircraft). Includes commercial activities that 
distribute aviation petroleum/oil/lubricant products. Includes operation 
of trucks and hydrants.
    T815 Scrap Metal Operation. Includes commercial activities that bale 
or shear metal scrap and melt or sweat aluminum scrap.
    T816 Telecommunication Centers. Includes commercial activities that 
operate and maintain telecommunication centers, nontactical radios, 
automatic message distribution systems, technical control facilities, 
and other systems integral to the communication center. Includes 
operations and maintenance of air traffic control equipment and 
facilities.
    T817 Other Communications and Electronics Systems. Includes 
commercial activities that operate and maintain communications and 
electronics systems not included in T809 and T816.
    T818 Systems Engineering and Installation of Communications Systems. 
Includes commercial activities that provide engineering and installation 
services, including design and drafting services associated with 
functions specified in T809, T816, and T817.
    T819 Preparation and Disposal of Excess and Surplus Property. 
Includes commercial activities that accept, classify, and dispose of 
surplus Government property, including scrap metal.
    T820 Administrative Support Services. Includes commercial activities 
that provide centralized administrative support services not included 
specifically in another functional category. These activities render 
services to multiple activities throughout an organization or to 
multiple organizations; such as, a steno or typing pool rather than a 
secretary assigned to an individual. Typical activities included are 
word processing centers, reference and technical libraries, 
microfilming, messenger service, translation services, publication 
distribution centers, etc.
    T820A: Word Processing Centers.
    T820B: Reference and Technical Libraries.
    T820C: Microfilming.
    T820D: Internal Mail and Messenger Services.
    T820E: Translation Services.
    T820F: Publication Distribution Centers.
    T820G: Field Printing and Publication. Includes those activities 
that print or reproduce official publications, regulations, and orders. 
Includes management and operation of the printing facility.
    T820H: Compliance Auditing.
    T820I: Court Reporting.
    T821 Special Studies and Analyses. Includes commercial activities 
that perform research, collect data, conduct time-motion studies, or 
pursue some other planned methodology in order to analyze a specific 
issue, system, device, boat, plane, or vehicle for management.
    Such activities may be temporary or permanent in nature.
    T821A: Cost Benefit Analyses.
    T821B: Statistical Analyses.
    T821C: Scientific Data Studies.
    T821D: Regulatory Studies.
    T821E: Defense, Education, Energy Studies.
    T821F: Legal/Litigation Studies.
    T821G: Management Studies.
    T900 Training Devices and Simulators. Includes commercial activities 
that provide training aids, devices, simulator design, fabrication, 
issue, operation, maintenance, support, and services.
    T900A: Training Aids, Devices, and Simulator Support. Includes 
commercial activities that design, fabricate, stock, store, issue, 
receive, and account for and maintain training aids, devices, and 
simulators (does not include audiovisual production and associated 
services or audiovisual support).
    T900B: Training Device and Simulator Operation. Includes commercial 
activities that operate and maintain training device and simulator 
systems.
    T999 Other Nonmanufacturing Operations.

[[Page 822]]

                         Education and Training

    Includes commercial activities that conduct courses of instruction 
attended by civilian or military personnel of the Department of Defense. 
Terminology of categories and subcategories primarily for military 
personnel (marked by an asterisk) follows the definitions of the 
statutory Military Manpower Training Report submitted annually to the 
Congress. This series includes only the conduct of courses of 
instruction; it does not include education and training support 
functions (that is, Base Operations Functions in the S series and 
Nonmanufacturing Operations in the T series). A course is any separately 
identified instructional entity or unit appearing in a formal school or 
course catalog.
    U100 Recruit Training.* The instruction of recruits.
    U200 Officer Acquisition Training.* Programs concerned with officer 
acquisition training.
    U300 Specialized Skill Training.* Includes Army One-Station Unit 
Training, Naval Apprenticeship Training, and health care training.
    U400 Flight Training.* Includes flight familiarization training.
    U500 Professional Development Education*
    U510 Professional Military Education.* Generally, the conduct of 
instruction at basic, intermediate, and senior Military Service schools 
and colleges and enlisted leadership training does not satisfy the 
requirements of the definition of a DoD CA and is excluded from the 
provision of this Instruction.
    U520 Graduate Education, Fully Funded, Full-Time*
    U530 Other Full-Time Education Programs*
    U540 Off-Duty (Voluntary) and On-Duty Education Programs.* Includes 
the conduct of Basic Skills Education Program (BSEP), English as a 
Second Language (ESL), skill development courses, graduate, 
undergraduate, vocational/technical, and high school completion programs 
for personnel without a diploma.
    U600 Civilian Education and Training. Includes the conduct of 
courses intended primarily for civilian personnel.
    U700 Dependent Education. Includes the conduct of elementary and 
secondary school courses of instruction for the dependents of DoD 
overseas personnel.
    U800 Training Development and Support (not reported elsewhere)
    U999 Other Training. This code will only be used for unusual 
circumstances and will not be used to report organizations or work that 
can be accommodated under a specifically defined code.

                        Automatic Data Processing

    W824 Data Processing Services. Includes commercial activities that 
provide ADP processing services by using Government-owned or -leased ADP 
equipment; or participating in Government-wide ADP sharing program; or 
procuring of time-sharing processing services (machine time) from 
commercial sources. Includes all types of data processing services 
performed by general purpose ADP and peripheral equipment.
    W824A: Operation of ADP Equipment.
    W824B: Production Control and Customer Services.
    W824C: ADP Magnetic Media Library.
    W824D: Data Transcription/Data Entry Services.
    W824E: Transmission and Teleprocessing Equipment Services.
    W824F: Acceptance Testing and Recovery Systems.
    W824G: Punch Card Processing Services.
    W824H: Other ADP Operations and Support.
    W825 Maintenance of ADP Equipment. Includes commercial activities 
that maintain and repair all Government-owned ADP equipment and 
peripheral equipment.
    W826 Systems Design, Development, and Programing Services. Includes 
commercial activities that provide software services associated with 
nontactical ADP operation.
    W826A: Development and Maintenance of Applications Software.
    W826B: Development and Maintenance of Systems Software.
    W827 Software Services for Tactical Computers and Automated Test 
Equipment. Includes commercial activities that provide software services 
associated with tactical computers and TMDE and ATE hardware.
    W999 Other Automatic Data Processing. This code will only be used 
for unusual circumstances and will not be used to report organizations 
or work that can be accommodated under a specifically defined code.

              Products Manufactured and Fabricated In-House

    Commercial activities that manufacture and/or fabricate products in-
house are grouped according to the products predominantly handled as 
follows:
    X931 Ordnance Equipment. Ammunition and related products.
    X932 Products Made from Fabric or Similar Materials. Including the 
assembly and manufacture of clothing, accessories, and canvas products.
    X933 Container Products and Related Items. Including the design, 
engineering, and manufacture of wooden boxes, crates, and other 
containers; includes the fabrication of fiberboard boxes, and assembly 
of paperboard boxes with metal straps. Excludes on-line fabrication of 
boxes and crates reported in functional area T801.
    X934 Food and Bakery Products. Including the operation of central 
meat processing

[[Page 823]]

plants, pastry kitchens, and bakery facilities. Excludes food services 
reported in functional areas S713 and H105.
    X935 Liquid, Gaseous, and Chemical Products. Including the providing 
of liquid oxygen and liquid nitrogen.
    X936 Rope, Cordage, and Twine Products; Chains and Metal Cable 
Products
    X937 Logging and Lumber Products. Logging and sawmill operations.
    X938 Communications and Electronic Products.
    X939 Construction Products. The operation of quarries and pits, 
including crushing, mixing, and concrete and asphalt batching plants.
    X940 Rubber and Plastic Products.
    X941 Optical and Related Products.
    X942 Sheet Metal Products.
    X943 Foundry Products.
    X944 Machined Parts.
    X999 Other Products Manufactured and Fabricated In-House. This code 
will only be used for unusual circumstances and will not be used to 
report organizations or work that can be accommodated under a 
specifically defined code.

    Maintenance, Repair, Alteration, and Minor Construction of Real 
                                Property.

    Z991 Buildings and Structures--Family Housing. Includes commercial 
activities that are engaged in exterior and interior painting and 
glazing; roofing, interior plumbing; interior electric; interior heating 
equipment, including heat sources under 750,000 BTU capacity; installed 
food service and related equipment, air conditioning and refrigeration 
under a 5-ton capacity; elevators; and other equipment affixed as part 
of the building and not included in other activities. Includes fencing, 
flagpoles, and other miscellaneous structures associated with family 
housing.
    Z991A: Rehabilitation--Tenant Change.
    Z991B: Roofing.
    Z991C: Glazing.
    Z991D: Tiling.
    Z991E: Exterior Painting.
    Z991F: Interior Painting
    Z991G: Flooring.
    Z991H: Screens, Blinds, etc.
    Z991I: Appliance Repair.
    Z991J: Electrical Repair. Includes elevators, escalators, and moving 
walks.
    Z991K: Plumbing.
    Z991L: Heating Maintenance.
    Z991M: Air Conditioning Maintenance.
    Z991N: Emergency/Service Work.
    Z991T: Other Work.
    Z992 Buildings and Structures (Other Than Family Housing). Includes 
commercial activities that are engaged in exterior and interior painting 
and glazing; roofing, interior plumbing; interior electric; interior 
heating equipment, including heat sources under 750,000 BTU capacity; 
installed foor service and related equipment; air conditioning and 
refrigeration under a 5-ton capacity; elevators; and other equipment 
affixed as part of the building and not reported under other functional 
codes. Includes fencing, flagpoles, guard and watchtowers, grease racks, 
unattached loading ramps, training facilities other than buildings, 
monuments, grandstands and bleachers, elevated garbage racks, and other 
miscellaneous structures.
    Z992A: Rehabilitation--Tenant Change.
    Z992B: Roofing.
    Z992C: Glazing.
    Z992D: Tiling.
    Z992E: Exterior Painting.
    Z992F: Interior Painting.
    Z992G: Flooring.
    Z992H: Screens, Blinds, etc.
    Z992I: Appliance Repair.
    Z992J: Electrical Repair. Includes elevators, escalators, and moving 
walkways.
    Z992K: Plumbing.
    Z992L: Heating Maintenance.
    Z992M: Air Conditioning Maintenance.
    Z992N: Emergency/Service Work.
    Z992T: Other Work.
    Z993 Grounds and Surfaced Areas. Commercial activities that 
maintain, repair, and alter grounds and surfaced areas defined in codes 
Z993A, B, and C, below.
    Z993A: Grounds (Improved). Includes improved grounds, including 
lawns, drill fields, parade grounds, athletic and recreational 
facilities, cemeteries, other ground areas, landscape and windbreak 
plants, and accessory drainage systems.
    Z993B: Grounds (Other than Improved). Small arms ranges, antenna 
fields, drop zones, and firebreaks. Also grounds such as wildlife 
conservation areas, maneuver areas, artillery ranges, safety and 
security zones, desert, swamps, and similar areas.
    Z993C: Surfaced Areas. Includes airfield pavement, roads, walks, 
parking and open storage areas, traffic signs and markings, storm 
sewers, culverts, ditches, and bridges. Includes sweeping and snow 
removal from streets and airfields.
    Z997 Railroad Facilities. Includes commercial activities that 
maintain, repair, and alter narrow and standard gauge two-rail tracks, 
including spurs, sidings, yard, turnouts, frogs, switches, ties, 
ballast, and roadbeds, with accessories and appurtenances, drainage 
facilities, and trestles.
    Z998 Waterways and Waterfront Facilities. Includes commercial 
activities that maintain, repair, and alter approaches, turning basin, 
berth areas and maintenance dredging, wharves, piers, docks, ferry 
racks, transfer bridges, quays, bulkheads, marine railway dolphins, 
mooring, buoys, seawalls, breakwaters, causeways, jetties, revetments, 
etc. Excludes waterways maintained by the Army Corps of Engineers (COE) 
rivers and harbors programs. Also excludes buildings,

[[Page 824]]

grounds, railroads, and surfaced areas located on waterfront facilities.
    Z999 Other Maintenance, Repair, Alteration, and Minor Construction 
of Real Property. This code will only be used for unusual circumstances 
and will not be used to report organizations or work that can be 
accommodated under a specifically defined code.

[50 FR 40805, Oct. 7, 1985, as amended at 57 FR 29210, July 1, 1992]



Sec. Appendix B to Part 169a--Commercial Activities Inventory Report and 
                        Five-Year Review Schedule

                         A. General Instructions

    1. Forward your inventory report before January 1 to the Director, 
Installations Management, 400 Army Navy Drive, Room 206, Arlington, VA 
22202-2884. Use Report Control Symbol ``DD-A&T(A) 1540'' as your 
authority to collect this data.
    2. Transmit by use of floppy diskette. Data files must be in 
American Standard Code Information Interchange text file format on a 
MicroSoft-Disk Operating System formatted 3.5 inch floppy diskette. 
Provide submissions in the Defense Utility Energy Reporting System 
format as specified below.
    3. Data Format: In-House DoD Commercial Activities

------------------------------------------------------------------------
                                    Tape
          Data element           positions      Field      Type data \1\
------------------------------------------------------------------------
Designator.....................      1      A              A
Installation...................  .........  A1             .............
  --State, territory, or           2-3      A1a            N
   possession.
  --Place......................    4-9      A1b            A/N
 + Function....................  10-14      A2             A/N
In-house civilian workload.....  15-20      A3             N
Military workload..............  21-26      A4             N
 + Reason for in-house              49      A8             A
 operation.
 + Most recent year in-house     50-51      A9             N
 operation approved.
 + Year DoD CA scheduled for     52-53      A10            N
 next review.
Installation name..............  76-132     A11            A
------------------------------------------------------------------------
\1\ A = Alpha; N = Numeric. A and A/N data shall be left justified space
  filled, N data shall be right justified and zero filled. + Items
  marked with a cross (+) have been registered in the DoD Data Element
  Dictionary.

    4. When definite coding instructions are not provided, reference 
must be made to DoD 5000.12-M. \1\ Failure to follow the coding 
instructions contained in this document, or those published in DoD 
5000.12-M makes the DoD Component responsible for noncompliance of 
required concessions in data base communication.
---------------------------------------------------------------------------

    \1\ See Footnote 1 to Sec.  169a.1(a).
---------------------------------------------------------------------------

                          B. Entry Instructions

------------------------------------------------------------------------
              Field                             Instruction
------------------------------------------------------------------------
A                                 Enter an A to designate that the data
                                   to follow on this record pertains to
                                   a particular DoD CA.
A1a                               Enter the two-position numeric code
                                   for State (Data element reference ST-
                                   GA) or U.S. territory or possession,
                                   as shown in attachment 1 to Appendix
                                   B of this part.
A1b                               Enter the unique alpha-numeric code
                                   established by the DoD Component for
                                   military installation, named
                                   populated place, or related entity
                                   where the CA workload was performed
                                   during the fiscal year covered by
                                   this submission. A separate look-up
                                   listing or file should be provided
                                   showing each unique place code and
                                   its corresponding place name.
A2                                Enter the function code from Appendix
                                   A to this part that best describes
                                   the type of CA workload principally
                                   performed by the CA covered by this
                                   submission. Left justify.
A3                                Enter total (full- and part-time) in-
                                   house civilian workyear equivalents
                                   applied to the performance of the
                                   function during fiscal year. Round
                                   off to the nearest whole workyear
                                   equivalent. (If amount is equal to or
                                   greater than .5, round up. If amount
                                   is less than .5, round down. Amounts
                                   between zero and 0.9 should be
                                   entered as one). Right justify. Zero
                                   fill.
A4                                Enter total military workyear
                                   equivalents applied to the
                                   performance of the function in the
                                   fiscal year. Round off to the nearest
                                   whole workyear equivalent. (Amounts
                                   between zero and one should be
                                   entered as one). Right justify. Zero
                                   fill.
A8                                Enter the reason for in-house
                                   operation of the CA, as shown in
                                   attachment 2 to Appendix B of this
                                   part.
A9                                Enter the last two digits of the most
                                   recent fiscal year corresponding to
                                   the reason for in-house operation of
                                   the CA, as stated in Field A8.
A10                               Enter the last two digits of the
                                   fiscal year the function is scheduled
                                   for study or next review. (Data
                                   element reference YE-NA.)
A11                               Enter the named populated place, or
                                   related entity, where the CA workload
                                   was performed.
------------------------------------------------------------------------

  Attachment 1 to Appendix B to Part 169a--Codes For Denoting States, 
           Territories, and Possessions of the United States.

          a. Numeric State Codes (Data element reference ST-GA)

                                  Code

01 Alabama
02 Alaska
04 Arizona
05 Arkansas
06 California
08 Colorado
09 Connecticut
10 Delaware
11 District of Columbia
12 Florida
13 Georgia
15 Hawaii
16 Idaho
17 Illinois
18 Indiana
19 Iowa

[[Page 825]]

20 Kansas
21 Kentucky
22 Louisiana
23 Maine
24 Maryland
25 Massachusetts
26 Michigan
27 Minnesota
28 Mississippi
29 Missouri
30 Montana
31 Nebraska
32 Nevada
33 New Hampshire
34 New Jersey
35 New Mexico
36 New York
37 North Carolina
38 North Dakota
39 Ohio
40 Oklahoma
41 Oregon
42 Pennsylvania
44 Rhode Island
45 South Carolina
46 South Dakota
47 Tennessee
48 Texas
49 Utah
50 Vermont
51 Virginia
53 Washington
54 West Virginia
55 Wisconsin
56 Wyoming

      b. Numeric Codes for Territories and Possessions (FIPS 55-2)

60 American Samoa
66 Guam
69 Northern Marianna Islands
71 Midway Islands
72 Puerto Rico
75 Trust Territory of the Pacific Islands
76 Navassa Islands
78 Virgin Islands
79 Wake Island
81 Baker Island
86 Jarvis Island
89 Kingman Reef
95 Palmyra Atoll

 Attachment 2 to Appendix B to Part 169a--Codes for Denoting Compelling 
    Reasons for In-House Operations of Planned Changes in Method or 
                               Performance

    1. PERFORMANCE (for entry in field A8)

------------------------------------------------------------------------
              Code                              Explanation
------------------------------------------------------------------------
A                                 Indicates that the DoD CA has been
                                   retained in-house for national
                                   defense reasons in accordance with
                                   paragraph E.2.a(1) of DoD Instruction
                                   4100.33, other than CAs reported
                                   under code ``C'' of this attachment.
C                                 Indicates that the DoD CA is retained
                                   in-house because the CA is essential
                                   for training or experience in
                                   required military skills, or the CA
                                   is needed to provide appropriate work
                                   assignments for a rotation base for
                                   overseas or sea-to-shore assignments,
                                   or the CA is necessary to provide
                                   career progression to a needed
                                   military skill level in accordance
                                   with paragraph E.2.a(1)(a) of DoD
                                   Instruction 4100.33.
D                                 Indicates procurement of a product or
                                   service from a commercial source
                                   would cause an unacceptable delay or
                                   disruption of an essential DoD
                                   program.
E                                 Indicates that there is no
                                   satisfactory commercial source
                                   capable of providing the product or
                                   service needed.
F                                 Indicates that a cost comparison has
                                   been conducted and that the
                                   Government is providing the product
                                   or service at a lower total cost as a
                                   result of a cost comparison.
G                                 Indicates that the CA is being
                                   performed by DoD personnel now, but
                                   decision to continue in-house or
                                   convert to contract is pending
                                   results of a scheduled cost
                                   comparison.
H                                 Indicates that the CA is being
                                   performed by DoD employees now, but
                                   will be converted to contract because
                                   of cost comparison results.
J                                 Indicates that the CA is being
                                   performed by DoD hospital and, in the
                                   best interest of direct patient care,
                                   is being retained in-house.
K                                 Indicates that the CA is being
                                   performed by DoD employees now, but a
                                   decision has been made to convert to
                                   contract for reasons other than cost.
N                                 Indicates that the CA is performed by
                                   DoD employees now, but a review is in
                                   progress pending a decision. (i.e.,
                                   base closure, realignment, or
                                   consolidation).
X                                 Indicates that the Installation
                                   commander is not scheduling this CA
                                   for cost study under the provisions
                                   of congressional authority.
Y                                 Indicates that the CA is retained in-
                                   house because the cost study exceeded
                                   the time limit prescribed by law.
Z                                 Indicates that the CA is retained in-
                                   house for reasons not included above.
                                   (i.e., a law, Executive order,
                                   treaty, or international agreement).
------------------------------------------------------------------------

    2. USE OF OTHER CODES. Other codes may be assigned as designated by 
the ODASD (I).

[50 FR 40805, Oct. 7, 1985, as amended at 57 FR 29210, July 1, 1992; 60 
FR 67329, Dec. 29, 1995]



  Sec. Appendix C to Part 169a--Simplified Cost Comparison and Direct 
                            Conversion of CAs

    A. This appendix provides guidance on procedures to be followed in 
order to convert a commercial activity employing 45 or fewer DoD 
civilian employees to contract performance without a full cost 
comparison. DoD Components may directly convert functions with 10 or 
fewer civilian employees without conducting a simplified cost 
comparison. Simplified cost comparisons may only be conducted on 
activities with 45 or fewer DoD civilian employees.

[[Page 826]]

    B. Direct conversions with 10 or fewer DoD civilian employees must 
meet the following criteria:
    1. The activity is currently performed by 10 or fewer civilian 
employees.
    2. The direct conversion makes sense from a management or 
performance standpoint.
    3. The direct conversion is cost effective.
    4. The installation commander should attempt to place or retrain 
displaced DoD civilian employees by
    a. Placing or retraining employees in available permanent vacant 
positions, or
    b. Assigning displaced employees to valid temporary or over-hire 
positions in similar activities for gainful employment until permanent 
vacancies are available. The type of employee appointment (e.g., career, 
career-conditional, etc., or change from competitive to excepted service 
or vice versa) must not change, or
    c. Where no vacancies exist or are projected, offer employees 
retraining opportunities under the Job Training Partnership Act or 
similar retraining programs for transitioning into the private sector.
    5. The function to be directly converted does not include any DoD 
civilian positions that were as a result of DoD Component streamlining 
plans and/or were removed with buyout offers that satisfied Section 5 of 
the Federal Workforce Restructuring Act requirements.
    C. The following provides general guidance for completion of a 
simplified cost comparison:
    1. Estimated contractor costs should be based on either the past 
history of similar contracts at other installations or on the 
contracting officer's best estimate of what would constitute a fair and 
reasonable price.
    2. For activities small in total size (45 or fewer civilian and 
military personnel):
    a. Estimated in-house cost generally should not include overhead 
costs, as it is unlikely that they would be a factor for a small 
activity.
    b. Similarly, estimated contractor costs generally should not 
include contract administration, on-time conversion costs, or other 
contract price add-ons associated with full cost comparisons.
    3. For activities large in total size (including those with a mix of 
civilian and military personnel) all cost elements should be considered 
for both in-house and contractor estimated costs.
    4. In either case, large or small, the 10 percent conversion 
differential contained in part IV of the Supplement to OMB Circular No. 
A-76 should be applied.
    5. Part IV of the Supplement to OMB Circular No. A-76 shall be 
utilized to define the specific elements of cost to be estimated.
    6. Clearance for CA simplified cost comparison decisions are 
required for Agencies without their own Legislative Affairs (LA) and 
Public Affairs (PA) offices. Those Agencies shall submit their draft 
decision brief to the Deputy Assistant Secretary of Defense 
(Installations) room 3E813, the Pentagon, Washington, DC 20301 for 
release to Congress.
    7. Provide CA simplified cost comparison approvals containing a 
certification of the MEO analysis, a copy of the approval to convert, a 
copy of the cost comparison, with back-up data, before conversion to the 
following:
    a. Committee on Appropriations of the House of Representatives and 
the Senate (11-45 civilian employees only).
    b. Copies of the following:
    (1) Assistant Secretary of Defense (LA), room 3D918, the Pentagon, 
Washington, DC 20301.
    (2) Assistant Secretary of Defense (PA), room 2E757, the Pentagon, 
Washington, DC 20301.
    (3) Office of Economic Adjustment, room 4C767, the Pentagon, 
Washington, DC 20301.
    (4) Deputy Assistant Secretary of Defense, (Installations), room 
3E813, the Pentagon, Washington, DC 20301. (exception--no copies 
required from Agencies that do not have legislative and public affairs 
offices).
    8. Most Efficient and Cost-Effective Analysis for Contractor 
Performance of an Activity (Report Control Symbol DD-A&T(AR) 1951. The 
installation commander must certify that the estimated in-house cost for 
activities involving 11 to 45 DoD civilian employees are based on a 
completed most efficient and cost effective organization analysis. 
Certification of this MEO analysis, as required by Public Law 103-139, 
shall be provided to the Committee on Appropriations of the House of 
Representatives and the Senate before conversion to contract 
performance.

[57 FR 29212, July 1, 1992, as amended at 60 FR 67329, Dec. 29, 1995]



     Sec. Appendix D to Part 169a--Commercial Activities Management 
                       Information System (CAMIS)

    Each DoD Component shall create and manage their CAMIS data base. 
The CAMIS data base shall have a comprehensive edit check on all input 
data in the computerized system. All data errors in the CAMIS data base 
shall be corrected as they are found by the established edit check 
program. The data elements described in this appendix represents the DoD 
minimum requirements.
    On approval of a full cost comparison, a simplified cost comparison, 
or a direct conversion CA, the DoD Component shall create the initial 
entry using the data elements in part I for full cost comparisons and 
data elements in part II for all other conversions. Within 30 days of 
the end of each quarter the

[[Page 827]]

DoD Component shall submit a floppy diskette. Data files must be in 
American Standard Code Information Interchange text file format on a 
MicroSoft-Disk Operating System formatted 3.5 inch floppy diskette. 
Provide submissions in the Defense Utility Energy Reporting System 
format. The data shall be submitted in the Director, Installations 
Management (D,IM), 400 Army Navy Drive, Room 206, Arlington, VA 22202-
2884 at least 60 days prior to the end of the quarter. The D,IM shall 
use the automated data to update the CAMIS. If the DoD Component is 
unable to provide data in an automated format, the D,IM shall provide 
quarterly printouts of cost comparison records (CCR) and conversion and/
or comparison records (DCSCCR) that may be annotated and returned within 
30 days of the end of each quarter to the D,IM. The D,IM then shall use 
the annotated printouts to update the CAMIS.

                         Part I--Cost Comparison

    The record for each cost comparison is divided into six sections. 
Each of these sections contains information provided by the DoD 
Components. The first five sections are arranged in a sequence of 
milestone events occurring during a cost comparison. Each section is 
completed immediately following the completion of the milestone event. 
These events are as follows:
    1. Cost comparison is approved by DoD Component.
    2. Solicitation is issued.
    3. In-house and contractor costs are compared.
    4. Contract is awarded/solicitation is canceled.
    5. Contract starts.
    The events are used as milestones because upon their completion some 
elements of significant information concerning the cost comparison 
become known.
    A sixth section is utilized for CCRs that result in award of a 
contract. This section contains data elements on contract cost and 
information on subsequent contract actions during the second and third 
year of contract operation.
    The data elements that comprise these six sections are defined in 
this enclosure.

       Part II--Direct Conversions and Simplified Cost Comparisons

    The record for each direct conversion and simplified cost comparison 
is divided into six sections. Each of the first five sections is 
completed immediately following the completion of the following events:
    1. DoD Component approves CA action.
    2. The solicitation is issued.
    3. In-house and contractor costs are compared.
    4. Contract is awarded or solicitation is canceled.
    5. Contract starts.
    A sixth section is utilized for tracking historical data after the 
direct conversion or simplified cost comparison is completed. This 
section contains data elements on contracts and cost information during 
the second and third performance period. The data elements that comprise 
the six sections in part II, of this Appendix, are defined in the CAMIS 
Entry and Update Instruction, Part II--Direct Conversions and Simplified 
Cost Comparisons.

                   Camis Entry and Update Instructions

                        Part I--Cost Comparisons

    The bracketed number preceding each definition in sections one 
through five is the DoD data element number. All date fields should be 
in the format MMDDYY (such as, June 30, 1983 = 063083).

                               Section One

       Event: DoD Component Approves Conducting a Cost Comparison

    All entries in this section of CCR shall be submitted by DoD 
Components on the first quarter update after approving the start of a 
cost comparison.
    These entries shall be used to establish the CCR and to identify the 
geographical, organizational, political, and functional attributes of 
the activity (or activities) undergoing cost comparison as well as to 
provide an initial estimate of the manpower associated with the activity 
(or activities). The initial estimate of the manpower in this section of 
the CCR will be in all cases those manpower figures identified in the 
correspondence approving the start of the cost comparison.
    DoD Components shall enter the following data elements to establish 
a CCR:
    [1] Cost Comparison Number. The number assigned by the DoD Component 
to uniquely identify a specific cost comparison. The first character of 
the cost comparison number must be a letter designating DoD Component as 
noted in data element [3], below. The cost comparison number may vary in 
length from five to ten characters, of which the second and subsequent 
may be alpha or numeric and assigned under any system desired by the DoD 
Component.
    [2] Announcement and/or approval date. Date Congress is notified 
when required by 10 U.S.C. 2461, of this part or date DoD Component 
approves studies being performed by 45 or fewer DoD civilian employees.
    [3] DOD Component Code. Use the following codes to identify the 
Military Service or Defense Agency conducting the cost comparison:

A--Department of the Army

[[Page 828]]

B--Defense Mapping Agency
C--Strategic Defense Initiatives Organization
D--Civilian Health and Medical Program of the Uniformed Services 
(CHAMPUS) [3D1]
E--Defense Advanced Research Projects Agency
F--Department of the Air Force
G--National Security Agency/Central Security Service
H--Defense Nuclear Agency
J--Joint Chiefs of Staff (including the Joint Staff, Unified and 
Specified Commands, and Joint Service Schools)
K--Defense Information Systems Agency (DISA)
L--Defense Intelligence Agency
M--United States Marine Corps
N--United States Navy
R--Defense Contract Audit Agency
S--Defense Logistics Agency
T--Defense Security Assistance Agency
V--Defense Investigative Service
W--Uniform Services University of the Health Sciences
X--Inspector General, Department of Defense
Y--On Site Inspection Agency (OSIA)
2--Defense Finance & Accounting Service (DFAS)
3--Defense Commissary Agency (DeCA)
4--Defense Technical Information Center (DTIC)
5--U.S. Army Corps of Engineers (USACE) Civil Works

    [4] Command code. The code established by the DoD Component 
headquarters to identify the command responsible for operating the 
commercial activity undergoing cost comparison.
    [5] Installation code. The code established by the DoD Component 
headquarters to identify the installation where the CA(s) under cost 
comparison is and/or are located physically. Two or more codes (for cost 
comparison packages encompassing more than one installation) should be 
separated by commas.
    [6] State code. A two-position numeric code for the State (Data 
element reference ST-GA.) or U.S. Territory (FIPS 55-2), as shown in 
attachment 1 to appendix B to this part, where element [5] is located. 
Two or more codes shall be separated by commas.
    [7] Congressional District (CD). Number of the congressional 
district(s) where [5] is located. If representatives are elected ``at 
large,'' enter ``01'' in this data element; for a delegate or resident 
commissioner (such as, District of Columbia or Puerto Rico) enter 
``98.'' If the installation is located in two or more CDs, all CDs 
should be entered and separated by commas.
    [8] [Reserved]
    [9] Title of Cost Comparison. The title that describes the 
commercial activity(s) under cost comparision (for instance, 
``Facilities Engineering Package,'' ``Installation Bus Service,'' or 
``Motor Pool''). Use a clear title, not acronyms of function codes in 
this data element.
    [10] DOD Functional Area Code(s). The four of five alpha/numeric 
character designators listed in Appendix A of this part that describe 
the type of CA undergoing cost comparison. There would be one code for a 
single CA or possible several codes for a large cost comparison package. 
A series of codes shall be separated by commas.
    [11] Prior Operation Code. A single alpha character that identifies 
the mode of operation for the activity at the time the cost comparison 
is started. Despite the outcome of the cost comparison, this code does 
not change. The coding as as follows:

I--In-house
C--Contract
N--New requirement
E--Expansion

    [12] Cost Comparison Status Code. A single alpha character that 
identifies the current status of the cost comparison. Enter one of the 
following codes:

P--In progress
C--Complete
X--Canceled. The CCR shall be excluded from future updates.
Z--Consolidated. The cost comparison has been consolidated with one or 
more other cost comparisons into a single cost comparison package. The 
CCR for the cost comparison that has been consolidated shall be excluded 
from future updates. (See data element [15].)
B--Broken out. The cost comparison package has been broken into two or 
more separate cost comparisons. The previous CCR shall be excluded from 
future updates. (See data element [15].)

    [13] Announcement--personnel estimate civilian, and [14] 
announcement--personnel estimate military. The number of civilian and 
military personnel allocated to the CAs undergoing cost comparison when 
the cost comparison is approved by the DoD Component or announced to 
Congress. This number in all cases shall be those personnel figures 
identified in the correspondence announcing the start of a cost 
comparison and will include authorized positions, temporaries, and 
borrowed labor. The number is used to give a preliminary estimate of the 
size of the activity.
    [15] Revised and/or original cost comparison number. When a 
consolidation occurs, create a new CCR containing the attributes of the 
consolidated cost comparison. In the CCR of each cost comparison being 
consolidated, enter the cost comparison number of the new CCR in this 
data element and code ``Z'' in data element [12] of this attachment. In 
the new CCR, this data element should be blank and data element [12] of 
this attachment should denote the current status of the

[[Page 829]]

cost comparison. Once the consolidation has occurred, only the new CCR 
requires future updates. When a single cost comparison is being broken 
into multiple cost comparisons, create a new CCR for each cost 
comparison broken out from the original cost comparison. Each new CCR 
shall contain its own unique set of attributes; in data element [15] of 
this attachment enter the cost comparison number of the original cost 
comparison from which each was derived, and in data element [12] of this 
attachment enter the current status of each cost comparison. For the 
original cost comparison, data element [15] of this attachment, should 
be blank and data element [12] of this attachment should have a code 
``B'' entry. Only the derivative record entries require future updates. 
When a consolidation or a breakout occurs, an explanatory remark shall 
be entered in data element [57] of this attachment (such as, ``part of 
SW region cost comparison,'' or, ``separated into three cost 
comparisons'').

                               Section Two

                    Event: The Solicitation is Issued

    The entries in this section of the CCR provide information on the 
personnel authorized to perform the workload in the PWS, the number of 
workyears used to accomplish the workload in the PWS, and the type and 
kind of solicitation.
    The DoD Component shall enter the following data elements at the 
first quarterly update subsequent to the issuance of the solicitation:
    [17] [Reserved]
    [18] Solicitation-Type Code. A one-character alpha designator that 
identifies the type of solicitation used to obtain contract bids or 
offers. Use either the CBD as the source document or information 
received from the contracting officer for this entry. Solicitations 
under section 8(a) of the Small Business Act are negotiated. Enter one 
of the following codes:

S--Sealed Bid
N--Negotiated

    [19] Solicitation Kind Code. A one-character (or two-character, if 
``W'' suffix is used) alpha designator indicating whether the 
competition for the contract has been limited to a specific class of 
bidders or offerors. Use either the CBD as the source document or 
information received from the contracting officer to enter one of the 
following codes:

A--Restrict to small business
B--Small Business Administration 8(a) Set Aside
C--Javits-Wagner-O'Day Act (JWOD)
D--Other mandatory sources
U--Unrestricted
W--(optional suffix) Unrestricted after initial restriction

    [20] Current Authorized Civilians and [21] Current Authorized 
Military. The number of civilian and military authorizations allocated 
on the DoD Component's manpower documents to perform the work described 
in the PWS. This number refines the initial authorization estimate 
(section one, data elements [13] and [14]).
    [22] Baseline Annual Workyears Civilian and [23] Baseline Annual 
Workyears Military. The number of annual workyears it has taken to 
perform the work described by the PWS before the DoD Component conducts 
the MEO study of the in-house organizations; do not include contract 
monitor requirements. Military workyears include assigned, borrowed, 
diverted, and detailed personnel.
    An annual workyear is the use of 2,087 hours (including authorized 
leave and paid time off for training). For example, when full-time 
employees whose work is completely within the PWS are concerned, ``one 
workyear'' normally is comparable to ``one employee'' or two part-time 
employees, each working 1,043 hours in a fiscal year. Also include in 
this total the workyears for full-time employees who do not work on a 
full-time basis on the work described by the PWS. For example, some 
portion of the workload is performed by persons from another work center 
who are used on an ``as needed'' basis. Their total hours performing 
this workload is 4,172 hours. This would be reflected as two workyears. 
Less than one-half year of effort should be rounded down, and one-half 
year or more should be rounded up.
    These workyear figures shall be the baseline for determining the 
manpower savings identified by the management study.

                              Section Three

 Event: The In-House and the Contractor Costs of Operation are Compared

    The entries in this section provide information on the date of the 
cost comparison (initial decision), the preliminary results, the number 
of bids or offers received, and the costing method used in the cost 
comparison.
    The DoD Component shall enter the following data elements in the 
first quarterly update subsequent to the date of the comparison of in-
house and contractor costs (date of initial decision):
    [24] Scheduled Initial Decision Date. Date the initial decision is 
scheduled at the start of a cost comparison.
    [24A] Actual Initial Decision Date. Date the initial decision is 
announced. The initial decision is based on the apparent low bid or 
offer and is subject to preaward surveys and resolution of all appeals 
and protests. In a sealed bid procurement, the initial decision is 
announced at bid opening. In a negotiated procurement, the initial 
decision is announced when the cost comparison is made

[[Page 830]]

between the in-house estimate and the proposal of the selected offeror.
    [25] Cost Comparison Preliminary Results Code. A one-character alpha 
designator indicating the results of the cost comparison as announced by 
the contracting officer at the time the bids or offers are compared. The 
entries are limited to two possibilities:

I--In-house
C--Contract

    [26]-[27] [Reserved]

                              Section Four

Event: The Contracting Officer Either Awards the Contract or Commercial 
                    Activity Cancels the Solicitation

    The entries in this section identify the final result, information 
on the contract, the in-house bid, and costing information from the cost 
comparison record.
    The DoD Component shall enter the following data elements in the 
first quarterly update subsequent to the date the contracting officer 
either awards a contract or cancels the solicitation:
    [28] Contract Award/Solicitation Commercial Activity Cancellation 
Date. For conversions to contract, this is the date a contract was 
awarded in a sealed bid solicitation or the date the contractor was 
authorized to proceed on a conditional award contract in a negotiated 
solicitation. For retentions in-house, this is the date the solicitation 
was canceled (when the contracting officer publishes an amendment to the 
solicitation canceling it).
    [29] Cost Comparison Final Result Code. A one-character alpha 
designator identifying the final result of the comparison between in-
house and contractor costs; the contracting officer either awards the 
contract or cancels the solicitation. Enter one of the following codes:

I--In-house
C--Contract

    [30] Decision Rationale Code. A one-character alpha designator that 
identifies the rationale for awarding a contract or canceling the 
solicitation. The work shall be performed in-house or by contractor, 
based on cost, or the work shall be performed in-house because no 
satisfactory commercial source was available (no bids or offers were 
received or the preaward survey resulted in the determination that no 
commercial sources were responsive or responsible). Enter one of the 
following codes:

C--Cost
N--No satisfactory commercial source
O--Other

    [31] [Reserved]
    [31a] Prime Contractor Size. Enter one of the following

S--Small or small/disadvantaged business
L--Large business

    [32] MEO Workyears. The number of annual workyears it takes to 
perform the work described in the PWS after the MEO study has been 
conducted. Do not include the minimum cost differential (line 14 in CCF 
or line 16 in the ENCR CCF) in the computation of any of these data 
elements.
    For data elements [33] through [36], enter all data after all 
adjustments required by appeals board decisions. Do not include the 
minimum cost differential (line 31 old CCF or line 14 new CCF or line 16 
new ENRC form) in the computation of any of these data elements. If a 
valid cost comparison was not conducted (that is, all bidders or 
offerors disqualified, no bids or offers received, etc.) do not complete 
data elements [33] through [36]. Explain lack of valid cost data in data 
element [57], DOD Component Comments.
    [33] First Performance Period. Expressed in months, the length of 
time covered by the contract. Do not include any option periods.
    [34] Cost Comparison Period. Expressed in months, the total period 
of operation covered by the cost comparison; this is the period used as 
the basis for data elements [35] and [36], below.
    [35] Total in-house Cost ($000). Enter the total cost of in-house 
performance in thousands of dollars, rounded to the nearest thousand. 
This is the total of line 6 of the new CCF or line 8 of the ENCR CCF. An 
entry is required although the activity remains in-house due to absence 
of a satisfactory commercial source.
    [36] Total Contract Cost ($000). Enter the total cost of contract 
performance in thousands of dollars, rounded to the nearest thousand. 
This is the total of line 13 of the CCF or line 15 of the ENCR CCF.
    [37] Scheduled Contract or MEO Start Date. Date the contract and/or 
MEO was scheduled to start at the beginning of a cost comparison.

                              Section Five

                     Event: The Contract/MEO Starts

    The entries in this section identify the contract or MEO start date 
and the personnel actions taken as a result of the cost comparison.
    The DoD Component shall enter the following data elements in the 
first quarterly update subsequent to the start of the contract:
    [38] Contract/MEO Start Date. The actual date the contractor began 
operation of the contract or the Government implements the MEO.
    [39] Permanent Employees Reassigned to Equivalent Positions. The 
number of permanent employees who were reassigned to positions of 
equivalent grade as of the contract start date.

[[Page 831]]

    [40] Permanent Employee Changed To Lower Positions. The number of 
permanent employees who were reassigned to lower grade positions as of 
the contract start date.
    [41] Employees Taking Early Retirement. The number of employees who 
took early retirement as of the contract start date.
    [42] Employees Taking Normal Retirement. The number of employees who 
took normal retirement as of the contract start date.
    [43] Permanent Employees Separated. The number of permanent 
employees who were separated from Federal employment as of the contract 
start date.
    [44] Temporary Employees Separated. The number of temporary 
employees who were separated from Federal employment as of the contract 
start date.
    [45] Employees Entitled to Severance Pay. The estimated number of 
employees entitled to severance pay on their separation from Federal 
employment as of the contract start date.
    [46] Total Amount of Severance Entitlements ($000). The total 
estimated amount of severance to be paid to all employees, in thousands 
of dollars, rounded to the nearest thousand, as of the contract start 
date.
    [47] Number Of Employees Hired by The Contractor. The number of 
estimated DoD civilian employees (full-time or otherwise) that will be 
hired by the contractors, or their subcontractors, at the contract start 
date.

                          Administrative Appeal

    [48] Filed. Were administrative appeals filed?
    N--No
    Y--Yes
    [49] Source. Who filed the appeal?
    B--Both
    C--Contractor
    I--In-house
    [50] Result. Were the appeals finally upheld? (If both appealed, 
explain result in data element [57], of this section).
    N--No
    P--Still in progress
    Y--Yes

                               GAO Protest

    [51] Filed. Was a protest filed with GAO?
    N--No
    Y--Yes
    [52] Source. Who filed the protest?
    B--Both
    C--Contractor
    I--In-house
    [53] Result. Was the protest finally upheld? (Explain result in data 
element [57], below).
    N--No
    P--Still in progress
    Y--Yes

                               Arbitration

    [54] Requested. Was there a request for arbitration?
    N--No
    Y--Yes
    [55] Result. Was the case found arbitrable? (Explain result in data 
element [57], below).
    N--No
    P--Still in progress
    Y--Yes

                           General Information

    + [56] Total Staff-Hours Expended. Enter the estimated number of 
staff-hours expended by the installation for the cost comparison. 
Include direct and indirect hours expended from the time of PWS until a 
final decision is made.
    + [56a] Estimated Cost Of Conducting The Cost Comparison. Enter the 
estimated cost of the total staff-hours identified in data element [56] 
of this section non-labor (travel, reproduction costs, etc.) associated 
with the cost comparision.
    + Data elements [56] and [56A] will only be completed by DoD 
Components that are participating in the pilot test of these data 
elements.
    [57] DoD Component Comments. Enter comments, as required, to explain 
situations that affect the conduct of the cost comparision. Where 
appropriate, precede each comment with the CAMIS data element being 
referenced.
    [58] Effective Date. ``As of'' date of the most current update for 
the cost comparison. This data element will be completed by the DMDC.
    [59] (Leave blank, for DoD computer program use).

                               Section Six

         Event: Quarter Following Contract and/or Option Renewal

    The entries in this section identify original costs, savings, 
information on subsequent performance periods and miscellaneous contract 
data. The DoD Component shall enter the following data elements in the 
first quarterly update annually.
    [60] Original Cost of Function(s) ($000). The estimated total cost 
of functions before to development of an MEO in thousands of dollars, 
rounded to the nearest thousand for the base year and option years. 
(Begin entry when study began for data element [2] after 1 October 
1989).
    [60A] Estimated Dollar Savings ($000). The DoD Component's estimated 
savings from the cost comparison for the base year plus option years, in 
thousands of dollars, rounded to the nearest thousand, for either in-
house or contract performance. Documentation will be available at the 
DoD Component level. (Begin entry after 1 October 1989).

[[Page 832]]

    [61] Contract Or In-House Bid First Performance Period ($000). For 
studies resulting in continued in-house performance, enter the total in-
house cost (Line 6 from the CCF) for the first performance period. For 
studies resulting in conversion to contract performance, enter the 
contract price (Line 7 from the CCF) for the first performance period. 
Figures shall be shown in thousands of dollars, rounded to the nearest 
thousand.
    [61A] Actual Contract or In-House Costs First Performance Period 
($000). Enter the actual first performance period contract cost 
including all change orders (Plus changes in the scope of work) or 
actual in-house performance cost including changes in the scope of work, 
in thousands of dollars, rounded to the nearest thousand. No entry is 
required for actual in-house performance during the second and third 
performance periods.
    [61B] Adjusted Contract Costs First Performance Period ($000). Enter 
an adjusted first performance period contract cost that includes actual 
DoL wage increases and costs for omissions and/or errors in the original 
PWS, but exclude new requirement costs and their associated wage 
increases, in thousands of dollars, rounded to the nearest thousand. 
(Begin entry after 1 October 1989).
    [61C] Adjusted In-House Costs First Performance Period ($000). Enter 
the total first performance period in-house cost of the MEO, including 
civil service pay increases, but excluding increases associated with new 
mission requirements not included in the original scope of work of the 
function. Show costs in thousands of dollars, rounded to the nearest 
thousand. Entry is required even if the function went to contract. 
(Begin entry after 1 October 1989).
    [62] Contract Or In-House Bid Second Performance Period ($000). For 
studies resulting in continued in-house performance, enter the total in-
house cost (Line 6 from the CCF) for the second performance period. For 
studies resulting in conversion to contract performance, enter the 
contract price (Line 7 from the CCF) for the second performance period. 
Figures shall be shown in thousands of dollars, rounded to the nearest 
thousand.
    [62A] Actual Contract Costs Second Performance Period ($000). Enter 
the actual second performance period contract cost including all change 
orders (Plus changes in the scope of work), in thousands of dollars, 
rounded to the nearest thousand. No entry is required when the function 
remained in-house.
    [62B] Adjusted Contract Costs Second Performance Period ($000). 
Enter an adjusted second performance period contract cost that includes 
actual DoL wage increases and costs for omissions and/or errors in the 
original PWS, but exclude new requirement costs and their associated 
wage increases, in thousands of dollars, rounded to the nearest 
thousand. (Begin entry after 1 October 1989).
    [62] Adjusted In-House Costs Second Performance Period ($000). Enter 
the total second performance period in-house cost of the MEO, including 
civil service pay increases, but excluding increases associated with new 
mission requirements not included in the original scope of work of the 
function. Show costs in thousands of dollars, rounded to the nearest 
thousand. Entry is required even if the function went to contract. 
(Begin entry after 1 October 1989).
    [63] Contract Or In-house Bid Third Performance Period ($000). For 
studies resulting in continued in-house performance, enter the total in-
house cost (Line 6 from the CCF) for the third performance period. For 
studies resulting in conversion to contract performance, enter the 
contract price (Line 7 from the CCF) for the third performance period. 
Figures shall be shown in thousands of dollars, rounded to the nearest 
thousand.
    [63A] Actual Contract Costs Third Performance Period ($000). Enter 
the actual third performance period contract cost including all change 
orders (Plus changes in the scope of work), in thousands of dollars, 
rounded to the nearest thousand. No entry is required when the function 
remained in-house.
    [63B] Adjusted Contract Costs Third Performance Period ($000). Enter 
an adjusted third performance period contract cost that includes actual 
DoL wage increases and costs for omissions and/or errors in the original 
PWS, but exclude new requirement costs and their associated wage 
increases, in thousands of dollars, rounded to the nearest thousand 
(Begin entry after 1 October 1989).
    [63C] Adjusted In-House Costs Third Performance Period ($000). Enter 
the total third performance period in-house cost of the MEO, including 
civil service pay increases, but excluding increases associated with new 
mission requirements not included in the original scope of work of the 
function. Show costs in thousands of dollars, rounded to the nearest 
thousand. Entry is required even if the function went to contract (Begin 
entry after 1 October 1989).
    [64] Contractor Change. Enter one of the following alpha designators 
to indicate whether the contract for the second or third performance 
period has changed from the original contractor.
    N--No, the contractor has not changed.
    Y--Yes, the contractor has changed.
    Data elements [65] through [66] of this section are not required if 
the answer to [64] of this section is no (N).
    [65] New Contractor Size (If data element [66] of this section 
contains the alpha designator ``I'' or ``R,'' no entry is required).
    L--New contractor is large business.
    S--New contractor is small and/or small disadvantaged business.
    [66] Reason For Change. DoD Components shall enter one of the 
following designators

[[Page 833]]

listed in this section, followed by the last two digits of the fiscal 
year which the change occurred.
    C--Contract workload consolidated with other existing contract 
workload.
    D--New contractor takes over because original contractor defaults.
    I--Returned in-house because original contractor defaults within 12 
months of start date and in-house bid is the next lowest.
    N--New contractor replaced original contractor because Government 
opted not to renew contract in option years.
    R--Returned in-house temporarily pending resolicitation due to 
contract default, etc.
    U--Contract workload consolidated into a larger (umbrella) cost 
comparison.
    X--Other-function either returned in-house or eliminated because of 
base closure, realignment, budget reduction or other change in 
requirements.
    [67] Contract Administration Staffing. The actual number of contract 
administration personnel hired to administer the contract.

                   Camis Entry and Update Instruction

       Part II--Direct Conversions and Simplified Cost Comparisons

    The bracketed number preceding each definition in sections One 
through six of this section, is the DoD data element number. All date 
fields should be in the format YYMMDD (Data element reference DA-FA).

                               Section One

               Event: DoD Component Approves the CA Action

    All entries in this section of the DCSCCR record shall be submitted 
by DoD Components on the first quarter update after approving the start 
of a cost comparison. These entries shall be used to establish the 
DCSCCR and to identify the geographical, organizational, political, and 
functional attributes of the activity (or activities) undergoing 
conversion and/or comparison as well as to provide an initial estimate 
of the manpower associated with the activity (or activities). The 
initial estimate of the personnel in this section of the DCSCCR will be, 
in all cases, those personnel figures identified in the correspondence 
approving the start of the conversion and/or comparison. DoD Components 
shall enter the following data elements to establish a DCSCCR:
    [1] Direct Conversion/Simplified Cost Comparison Number. The number 
assigned by the DoD Component to uniquely identify a specific conversion 
and/or comparison. The first character of the conversion and/or 
comparison number must be a letter designating the DoD Component as 
noted in data element [3] of this section. The conversion and/or 
comparison number may vary in length from five to ten characters, of 
which the second and subsequent may be alpha or numeric and assigned 
under any system desired by the DoD Component.
    [2] Approval Date. The date has simplified cost comparison or direct 
conversion was approved.
    [3] DoD Component Code. Use the following codes to identify the 
Military Service or Defense Agency and/or Field Activity conducting the 
cost comparison:
    A--Department of the Army
    B--Defense Mapping Agency (DMA)
    D--Civilian Health and Medical Program of the Uniformed Services 
(CHAMPUS) [3D1]
    D--Washington Headquarters Service (WHS) [3D2]
    F--Department of the Air Force
    G--National Security Agency/Central Security Service (NSA/CSS)
    H--Defense Nuclear Agency (DNA)
    J--Joint Chiefs of Staff (JCS) (including the Joint Staff, Unified 
and Specified Commands, and Joint Service Schools)
    K--Defense Information Systems Agency (DISA)
    L--Defense Intelligence Agency (DIA)
    M--United States Marine Corps (USMC)
    N--United States Navy (USN)
    R--Defense Contract Audit Agency (DCAA)
    S--Defense Logistics Agency (DLA)
    T--Defense Security Assistance Agency (DSAA)
    V--Defense Investigative Service (DIS)
    W--Uniformed Services University of the Health Sciences (USUHS)
    Y--On Site Inspection Agency (OSIA)
    2--Defense Finance & Accounting Service (DFAS)
    3--Defense Commissary Agency (DeCA)
    4--Defense Technical Information Center (DTIC)
    5--U.S. Army Corps of Engineers (USACE) Civil Works
    [4] Command code. The code established by the DoD Component 
headquarters to identify the command responsible for operating the 
commercial activity undergoing cost comparison.
    [5] Installation code. The code established by the DoD Component 
headquarters to identify the installation where the CA(s) under cost 
comparison is and/or are located physically. Two or more codes (for cost 
comparison packages encompassing more than one installation) should be 
separated by commas.
    [6] State Code. A two-position numeric code for the State (Data 
element reference ST-GA.) or U.S. Territory (FIPS 55-2), as shown in 
attachment 1 to appendix B of this part, where element [5] is located. 
Two or more codes shall be separated by commas.
    [7] Congressional District (CD). Number of the CDs where [5] of this 
section, is located. If representatives are elected ``at large,''

[[Page 834]]

enter ``01'' in this data element; for a delegate or resident 
commissioner (i.e., District of Columbia or Puerto Rico) enter ``98.'' 
If the installation is located in two or more CDs, all CDs should be 
entered and separated by commas.
    [8] (Leave blank)
    [9] Title of Conversion and/or Comparison. The title that describes 
the CA(s) under conversion/comparison (for instance, ``Facilities 
Engineering Package'', ``Installation Bus Service,'' or ``Motor Pool''). 
Use a clear title, not acronyms or function codes in this data element.
    [10] DoD Functional Area Code(s). The four- or five-alpha and/or 
numeric character designators listed in appendix A of this part that 
describes the type of CA undergoing conversion and/or comparison. This 
would be one code for a single CA or possibly several codes for a large 
cost comparison package. A series of codes shall be separated by commas.
    [11] Prior Operation Code. A single alpha character that identifies 
the mode of operation for the activity at the time the conversion and/or 
comparison is started. Despite the outcome of the conversion and/or 
comparison, this code does not change. The coding is as follows:

C--Contract
E--Expansion
I--In-house
N--New requirement
    [12] Conversion and/or Comparison Status Code. A single alpha 
character that identifies the current status of the conversion and/or 
comparison. Enter one of the following codes:
B--Broken out. The cost comparison package has been broken into two or 
more separate cost comparisons. The previous DCSCCR shall be excluded 
from future updates. (See data element [15] of this section.)
C--Complete
P--In progress
X--Canceled. The DCSCCR shall be excluded from future updates.
Z--Consolidated. The cost comparison has been consolidated with one or 
more other cost comparisons into a single cost comparison package. The 
DCSCCR for the cost comparison that has been consolidated shall be 
excluded from future updates. (See data element [15] of this section.)
    [13] Announcement--personnel estimate civilian, and [14] 
announcement--personnel estimate military. The number of civilian and 
military personnel allocated to the CAs undergoing conversion and/or 
comparison at the time the start of the conversion and/or comparison is 
approved. This number is all cases shall be those personnel figures 
identified when the conversion and/or comparison was approved and will 
include authorized positions, temporaries, and borrowed labor. The 
number is used to give a preliminary estimate of the size of the 
activity.
    [15] Revised and/or original cost comparison number. When a 
consolidation occurs, create a new DCSCCR containing the attributes of 
the consolidated conversion and/or comparison. In the DCSCCR of each 
conversion and/or comparison being consolidated, enter the conversion 
and/or comparison number of the new DCSCCR in this data element and code 
``Z'' in data element [12] of this section. In the new DCSCCR, this data 
element should be blank and data element [12] of this section should 
denote the current status of the conversion and/or comparison. Once the 
consolidation has occurred, only the new DCSCCR requires future updates.
    When a single conversion and/or comparison is being broken into 
multiple conversion and/or comparisons, create a new DCSCCR for each 
conversion and/or comparison broken out from the original conversion 
and/or comparison. Each new DCSCCR shall contain its own unique set of 
attributes; in data element [15] of this section enter the conversion 
and/or comparison number of the original conversion and/or comparison 
from which each was derived, and in data element [12] of this section 
enter the current status of each conversion and/or comparison. For the 
original conversion and/or comparison, data element [15] of this section 
should be blank and data element [12] of this section should have a code 
``B'' entry. Only the derivative record entries require future updates.
    When a consolidation or a breakout occurs, an explanatory remark 
shall be entered in data element [56] of this section (such as, ``part 
of SW region cost comparison,'' or, ``separated into three cost 
comparisons'').
    [16] (Leave blank)

                               Section Two

                    Event: The Solicitation is Issued

    The entries in this section of the DCSCCR provide information on the 
personnel authorized to perform the workload in the PWS, the number of 
workyears used to accomplish the workload in the PWS, and the type and 
kind of solicitation.
    The DoD Component shall enter the following data elements at the 
first quarterly update subsequent to the issuance of the solicitation:
    [17] (Leave blank)
    [18] Solicitation-Type code. A one-character alpha designator that 
identifies the type of solicitation used to obtain contract bids or 
offers. Use either the CBD as the source document or information 
received from the contracting officer for this entry. Solicitations 
under section 8(a) of ``The Small Business Act'' are negotiated. Enter 
one of the following codes:

N--Negotiated
S--Sealed Bid
    [19] Solicitation-Kind code. A one-character (or two-character, if 
``W'' suffix is

[[Page 835]]

used) alpha designator indicating whether the competition for the 
contract has been limited to a specific class of bidders or offerors. 
Use either the CBD as the source document or information received from 
the contracting officer to enter one of the following codes:

A--Restrict to small business
B--Small Business Administration 8(a) Set Aside
C--``Javits-Wagner-O'Day Act'' (JWOD)
D--Other mandatory sources
U--Unrestricted
W--(Optional suffix) Unrestricted after initial restriction
    [20] Current Authorized Civilians, and [21] Current Authorized 
Military. The number of civilian and military authorizations allocated 
on the DoD Component's manpower documents to perform the work described 
in the PWS. This number refines the initial authorization estimate 
(section one, data elements [13] and [14] of this section).
    [22] Baseline Annual Workyears Civilian, and [23] Baseline Annual 
Workyears Military. The number of annual workyears it has taken to 
perform the work described by the PWS before the DoD Component conducts 
the MEO analysis of the in-house organization. Do not include contract 
monitor requirements. Military workyears include assigned, borrowed, 
diverted, and detailed personnel. Less than one-half a year of effort 
should be rounded down, and one-half a year or more should be rounded 
up. These workyear figures shall be the baseline for determining the 
personnel savings identified by the most efficient organization 
analysis.

                              Section Three

 Event: The In-House And The Contractor Costs Of Operations Are Compared

    The entries in this section provide information on the date of the 
conversion and/or comparison (initial decision), the preliminary 
results, the number of bids or offers received, and the costing method 
used in the conversion and/or comparison.
    The DoD Component shall enter the following data elements in the 
first quarterly update subsequent to the date of the comparison of in-
house and contractor costs (date of initial decision):
    [24] Scheduled Initial Decision Date. Date the initial decision is 
scheduled at the start of a conversion and/or comparison
    [24A] Actual Initial Decision Date. Date the initial decision is 
announced. The initial decision is based on the apparent low bid or 
offer and is subject to preaward surveys and resolution of all appeals 
and protests. In a sealed bid procurement, the initial decision is 
announced at bid opening. In a negotiated procurement, the initial 
decision is announced when the cost comparison is made between the in-
house estimate and the proposal of the selected offeror. In a 
conversion, the initial decision is announced when the in-house cost 
estimate is evaluated against proposed contractor proposals.
    [25] Cost Comparison Preliminary Results Code. A one-character alpha 
designator indicating the results of the cost comparison as announced by 
the contracting officer at the time of the comparison (No entry required 
for a direct conversion). The entries are limited to two possibilities:

C--Contract
I--In-house
    [26] (Leave blank)
    [27] (Leave blank)

                              Section Four

Event: The Contracting Officer Either Awards The Contract or Cancels The 
                              Solicitation

    The entries in this section identify the final result, information 
on the contract, the in-house bid, and costing information from the 
direct conversion and/or simplified cost comparison fact sheet.
    The DoD Component shall enter the following data elements in the 
first quarterly update subsequent to the date the contracting officer 
either awards a contract or cancels the solicitation:
    [28] Contract Award or Solicitation Cancellation Date. For 
conversions to contract, this is the date a contract was awarded in a 
sealed bid solicitation or the date the contractor was authorized to 
proceed on a conditional award contract in a negotiated solicitation. 
For retentions in-house, this is the date the solicitation was canceled 
(when the contracting officer publishes an amendment to cancel the 
solicitation).
    [29] Cost Comparison Final Result Code. A one-character alpha 
designator identifying the final result of the comparison between in-
house and contractor costs; the contracting officer either awards the 
contract or cancels the solicitation. Enter one of the following codes:

C--Contract
I--In-house
    [30] Decision Rationale Code. A one-character alpha designator that 
identifies the rationale for awarding a contract or canceling the 
solicitation. The work shall be performed in-house or by contractor 
based on cost, for other than cost, or the work shall be performed in-
house because no satisfactory commercial source was available (no bids 
or offers were received or the pre-award survey resulted in the 
determination that no commercial sources were responsive or 
responsible). Enter one of the following codes:

C--Cost
N--No satisfactory commercial source
O--Other
    [31] (Leave blank)

[[Page 836]]

    [31A] Prime Contractor Size. Enter one of the following:

L--Large business
S--Small or small and/or disadvantaged business
    [32] MEO Workyears. The number of annual workyears it takes to 
perform the work described in the PWS after the MEO analysis has been 
conducted. This entry will be equal to the number of annual workyears in 
the in-house bid (No entry required for a direct conversion).
    For data elements [33] through [36] of this section enter all data 
after all adjustments required by appeal board decisions. Do not include 
minimum cost differential in the computation of any of these data 
elements. If a valid conversion and/or comparison was not conducted 
(i.e., all bidders or offerors disqualified, no bids or offers received, 
etc.) do not complete data elements [33], [34] and [36] of this section. 
Explain lack of valid cost data in data element [56], ``DoD Component 
Comments'' of this section.
    [33] First Performance Period. Expressed in months, the length of 
time covered by the contract. Do not include any option periods.
    [34] Conversion and/or Comparison Period. Expressed in months, the 
total period of operation covered by the conversion or cost comparison; 
this is the period used as the basis for data elements [35] and [36] of 
this section.
    [35] Total In-House Cost ($000). Enter the total estimated cost of 
in-house performance for the base year plus option years, in thousands 
of dollars, rounded to the nearest thousand. An entry is required 
although the activity remains in-house due to absence of a satisfactory 
commercial source (No entry required for a direct conversion).
    [36] Total Contract Cost ($000). Enter the total estimated cost of 
contract performance for the base year plus option years, in thousands 
of dollars, rounded to the nearest thousand.
    [37] Scheduled Contract or MEO Start Date. Date the contract and/or 
MEO was scheduled to start at the beginning of a conversion and/or 
comparison.

                              Section Five

                     Event: The Contract MEO Starts.

    The entries in this section identify the contract or MEO start date 
and the personnel actions taken as a result of the conversion and/or 
comparison.
    The DoD Component shall enter the following data elements in the 
first quarterly update subsequent to the start of the contract:
    [38] Contract and/or MEO Start Date. The actual date the contractor 
began operation of the contract or the Government implements the MEO.
    [39] Permanent Employees Reassigned to Equivalent Positions. The 
number of permanent employees who were reassigned to positions of 
equivalent grade as of the contract start date.
    [40] Permanent Employees Changed to Lower Positions. The number of 
permanent employees who were reassigned to lower grade positions as of 
the contract start date.
    [41] Employees Taking Early Retirement. The number of employees who 
took early retirement as of the contract start date.
    [42] Employees Taking Normal Retirement. The number of employees who 
took normal retirement as of the contract start date.
    [43] Permanent Employees Separated. The number of permanent 
employees who were separated from Federal employment as of the contract 
start date.
    [44] Temporary Employees Separated. The number of temporary 
employees who were separated from Federal employment as of the contract 
start date.
    [45] Employees Entitled to Severance Pay. The estimated number of 
employees entitled to severance pay on their separation from Federal 
employment as of the contract start date.
    [46] Total Amount of Severance Entitlements ($000). The total 
estimated amount of severance to be paid to all employees, in thousands 
of dollars, rounded to the nearest thousand, as of the contract start 
date.
    [47] Number of Employees Hired by the Contractor. The number of 
estimated DoD civilian employees (full-time or otherwise) that will be 
hired by the contractors, or their subcontractors, at the contract start 
date.

                          Administrative Appeal

    [48] Filed. Were administrative appeals filed?

N--No
Y--Yes
    [49] Source. Who filed the appeal?

B--Both
C--Contractor
I--In-House
    [50] Result. Were the appeals finally upheld? (if both appealed, 
explain result in data element [56] of this section).

N--No
P--Still in Progress
Y--Yes

                               GAO Protest

    [51] Filed. Was a protest filed with GAO?

N--No
Y--Yes
    [52] Source. Who filed the protest?

B--Both
C--Contractor
I--In-House

[[Page 837]]

    [53] Result. Was the protest finally upheld? (explain result in data 
element [56], of this section).

N--No
P--Still in Progress
Y--Yes

                               Arbitration

    [54] Requested. Was there a request for arbitration?

N--No
Y--Yes
    [55] Result. Was the case found arbitrable? (explain result in data 
element [56], of this section).

N--No
P--Still in Progress
Y--Yes

                           General Information

    [56] DoD Component Comments. Enter comments, as required, to explain 
situations that affect the conduct of the conversion and/or comparison. 
Where appropriate, precede each comment with the CAMIS data element 
being referenced.
    [57] Effective Date. ``As of'' date of the most current update for 
the conversion and/or comparison. This data element will be completed by 
the DMDC.
    [58] (Leave blank, for DoD computer program use).

                               Section Six

         Event: Quarter Following Contract and/or Option Renewal

    The entries in this section identify information on subsequent 
performance periods and miscellaneous contract data. The DoD Component 
shall enter the following data elements in the first quarterly update 
annually:
    [59] Actual Contract Cost First Performance Period ($000). Enter the 
actual contractor cost for the first performance period, in thousands of 
dollars, rounded to the nearest thousand.
    [60] Actual Contract Cost Second Performance Period ($000). Enter 
the actual contractor cost for the second performance period, in 
thousands of dollars, rounded to the nearest thousand.
    [61] Actual Contract Cost Third Performance Period ($000). Enter the 
actual contractor cost for the third performance period, in thousands of 
dollars, rounded to the nearest thousand.
    [62] Contractor Change. Enter one of the following alpha designators 
to indicate whether the contractor for the second or third performance 
period has changed from the original contractor.

N--No, the contractor has not changed
Y--Yes, the contractor has changed
    Data elements [63] through [64] of this section are not required if 
the answer to [62] of this section is no (N).
    [63] New Contractor Size. (If data element [64] of this section 
contains the alpha designator ``I'' or ``R,'' no entry is required)

L--New contractor is large business
S--New contractor is small and/or small disadvantaged business.
    [64] Reason For Change. DoD Components shall enter one of the 
following designators listed in the following, followed by the last two 
digits of the FY in which the change occurred.

C--Contract workload consolidated with other existing contract workload.
D--New contractor takes over because original contractor defaults.
I--Returned in-house because of original contractor defaults; etc., 
within 6 months of start date and in-house bid is the next lowest.
N--New contractor replaced original contractor because Government opted 
not to renew contract in option years.
R--Returned in-house temporarily pending resolicitation due to contract 
default, etc.
U--Contract workload consolidated with other existing contract workload.
X--Other-Function either returned in-house or eliminated because of base 
closure, realignment, budget reduction or other change in requirements.
    [65] Contract Administration Staffing. The actual number of contract 
administration personnel hired to administer the contract.

[50 FR 40805, Oct. 7, 1985, as amended at 57 FR 29212, July 1, 1992; 60 
FR 67329, Dec. 29, 1995]



PART 173_COMPETITIVE INFORMATION CERTIFICATE AND PROFIT REDUCTION 
CLAUSE--Table of Contents



Sec.
173.1 Scope.
173.2 Competitive Information Certification.
173.3 Profit reduction clause.

Appendix to Part 173--List of Contractors for Whom Certification is 
          Required

    Authority: 10 U.S.C. 2202.

    Source: 53 FR 42948, Oct. 25, 1988, unless otherwise noted.



Sec.  173.1  Scope.

    (a) The purpose of the Competitive Information Certificate is to 
provide the Contracting Officer sufficient information and assurance to 
support award of a contract in those circumstances where certification 
is required.

[[Page 838]]

    (b) Although a Competitive Information Certificate provides 
reasonable assurance to the Government, the possibility remains that 
even a diligent internal review by the contractor may fail to identify 
illegal or improper actions. The purpose of the Profit Reduction Clause 
is to ensure effective protection of the Government's interest in making 
contract awards when a Competitive Information Certification is 
required. The Profit Reduction Clause is required in all competitively 
awarded new contracts over $100,000 when a Competitive Information 
Certificate is required prior to award.



Sec.  173.2  Competitive Information Certification.

    (a) The Competitive Information Certificate is required prior to 
award of all competitively awarded new contracts of a value exceeding 
$100,000 to contractors subject to the requirement.
    (1) Corporate activities required to provide the Certificate are 
corporations or corporate divisions which have been the subject of 
search warrants, or as to which other official information indicates 
such certification should be required, and their subsidiaries and 
affiliates. A list of contractors from whom certification is required is 
maintained and published as required under authority of the Department 
of Defense Procurement Task Force.
    (2) The requirement to provide the Certificate may be further 
limited to certain divisions or subsidiaries, contracts or programs upon 
the basis of official information, furnished by the contractor or 
otherwise, sufficient to establish to the satisfaction of the Department 
of Defense that the investigation is so limited. Such information may 
include copies of search warrants, subpoenas and affidavits from 
corporate officials concerning the scope and conduct of the 
investigation. The sufficiency of such information is solely within the 
discretion of the Department of Defense.
    (3) Contractors from whom certification in certain instances is 
required will be relieved of the certification requirement when the 
Department of Defense determines that information developed in the ``Ill 
Wind'' investigation has been resolved in such a manner that 
certification is no longer required to protect the interests of the 
Government.
    (4) A Certificate will not be required prior to the exercise of 
options or noncompetitive award of contracts. This does not limit in any 
manner the Government's ability to inquire into, or require information 
concerning, the circumstances surrounding an underlying competitive 
award.
    (b) With respect to information disclosed under paragraph (1) of the 
Certificate, the offeror must attach to the Certificate a written 
statement detailing what information was obtained, and how, when, and 
from whom it was obtained. This information shall be evaluated at the 
levels prescribed by the contracting component to determine whether 
award of the contract should be made to the offeror. If during this 
review it is determined that the offeror may have obtained an unfair 
competitive advantage from the information and that there is no other 
reason for denying award to the offeror, the reviewing authority shall 
consider whether action may be taken to neutralize the potential unfair 
competitive advantage. Any decision to deny award to an offeror based 
upon information disclosed in the Certificate shall be reviewed and 
approved by the Service Acquisition Executive.
    (c) This certificate and any accompanying statements required, must 
be executed by the offeror's corporate president or his designee at no 
more than one level below the president's level.
    (d) If a contractor from whom certification is required is uncertain 
as to whether competitive information otherwise required to be disclosed 
was generally available to offerors, the uncertainty should be resolved 
by disclosure.
    (e) Contracting Officers may continue to accept Certificates of 
Business Ethics and Integrity complying with the Interim rule in lieu of 
Competitive Information Certificates.
    (f) The Competitive Information Certificate shall be in the 
following form:

                   Competitive Information Certificate

    (1) (Name of the offeror) certifies, to the best of its knowledge 
and belief, that

[[Page 839]]

    (i) With the exception of any information described in an attachment 
to this certificate, and any information the offeror reasonably believes 
was made generally available to prospective offerors, the offeror has 
not knowingly obtained, directly or indirectly from the Government, any 
written information or oral extract or account thereof relating to this 
solicitation which was
    (A) Submitted to the Government by offerors or potential offerors in 
response to the Government's solicitation for bid or proposal;
    (B) Marked by an offeror or potential offeror to indicate the 
information was submitted to the Government subject to an assertion of 
privilege against disclosure;
    (C) Marked or otherwise identified by the Government pursuant to law 
or regulation as classified, source selection sensitive, or for official 
use only; or
    (D) The disclosure of which to the offeror or potential offeror by a 
Government employee would, under the circumstances, otherwise violate 
law or regulation.
    (ii) The offeror named above
    (A) Determined the prices in its offer independently, without, for 
the purpose of restricting competition, any consultation, 
communications, or agreement, directly or indirectly, with any other 
offeror or competitor relating to (1) those prices, (2) the intention to 
submit an offer, or (3), the methods or factors used to calculate the 
prices offered;
    (B) Has not knowingly disclosed the prices in its offer, directly or 
indirectly, to any other offeror or competitor before bid opening (in 
the case of a sealed bid solicitation) or contract award (in the case of 
a negotiated solicitation) unless otherwise required by law;
    (C) Has not attempted to induce any other concern to submit or not 
to submit an offer for the purpose of restricting competition.
    (iii) The offeror has attached an accurate description of the 
internal review forming the basis for the certifications provided 
herein.

Corporate President or Designee.



Sec.  173.3  Profit reduction clause.

    The following profit reduction clause is required in all 
competitively awarded new contracts over $100,000 when a Competitive 
Information Certificate is required prior to award.
    Profit Reduction for Illegal or Improper Activity
    (a) The government, at its election, may reduce the contract price 
by the amount of any anticipated profit determined as set forth in 
paragraph (b) of this section; if
    (1) A person or business entity is convicted for violating 18 U.S.C. 
201-224 (bribery, graft, and conflicts of interest), 18 U.S.C. 371 
(conspiracy), 18 U.S.C. 641 (theft of public money, property, or 
records), 18 U.S.C. 1001 (false statements), 18 U.S.C. 1341 (fraud), 18 
U.S.C. 1343 (fraud by wire) for any act in connection with or related to 
the obtaining of this contract; or
    (2) The Secretary of Defense, or his designee, determines that the 
Competitive Information Certificate submitted by the offeror in 
connection with award of this contract
    (i) Was materially false at the time it was filed, or
    (ii) Notwithstanding the offeror's best knowledge and belief, was 
materially incomplete or inaccurate.

Prior to making such a determination, the Secretary or his designee, 
shall provide to the contractor a written statement of the action being 
considered and the basis therefor. The contractor shall have not less 
than 30 calendar days after receipt to submit in person, in writing, or 
through a representative, information and argument in opposition to the 
proposed reduction. The Secretary or his designee may, upon good cause 
shown, determine to reduce the contract price by less than the amount of 
any profit determined under paragraph (b) of this section.
    (b) The amount of anticipated profits referred to in Sec.  173.3(a) 
shall be:
    (1) In the case of a cost-plus-fixed-fee contract, the amount of the 
fee specified in the contract at the time of award;
    (2) In the case of fixed-price-incentive-profit or cost-plus-
incentive-fee contract, the amount of the target

[[Page 840]]

profit or fee specified in the contract at the time of award; or
    (3) In the case of a firm-fixed-price contract, the amount of 
anticipated profit determined by the contracting officer, after notice 
to the contractor and opportunity to comment, from records or documents 
in existence prior to the date of the award of the contract.
    (c) The rights and remedies of the government provided in this 
cluase shall not be exclusive and are in addition to any other rights 
and remedies provided by law or under this contract.



Sec. Appendix to Part 173--List of Contractors for Whom Certification Is 
                                Required

Armtec, Incorporated, 410 Highway 19 South, Palatka, FL 32077
Cubic Corporation, 9333 Balboa Avenue, San Diego, CA 92123 as to 
          contracts originating in the following division:
Cubic Defense Systems, Incorporated, San Diego, CA
Executive Resource Associates, 2011 Crystal Drive, suite 813, Arlington, 
VA 22202
Hazeltine Corporation, 500 Commack Road, Commack, NY 11725 and all 
          divisions and subsidiaries as follows:
Hazeltine Corporation, Electro-Acoustic Division, 115 Bay State Drive, 
Braintree, MA 02184
Hazeltine Corporation, Government Systems & Products Division, Cuba Hill 
Road, Greenlawn, NY 11740
Hazeltine Research, Incorporated, 188 Industrial Drive, Elmhurst, IL 
60126
Kane Paper Corporation, 2365 Milburn Avenue, Baldwin, NY 11510
Litton Data Systems, Incorporated, 8000 Woodley Ave., Van Nuys, CA 91408
Loral Defense Systems Akron, 1210 Massillon Rd., Akron, OH 44315
McDonnel Douglas Corporation, Banshee Rd., P.O. Box 516, St. Louis, MO 
          63166 as to contracts originating in the following division:
McDonnell Aircraft Company, St. Louis, MO
Northrop Corporation, Ventura Division, 1515 Rancho Conejo Boulevard, 
Newbury Park, CA 91320
Teledyne Electronics, 649 Lawrence Drive, Newbury Park, CA 91320
Unisys Corporation, One Unisys Place, Detroit, MI 48232, as to contracts 
          originating in the following divisions or subsidiaries:
Unisys Corporation, Defense Systems Division, 3333 Pilot Knob Road, 
Eagan, MN
Unisys Corporation, Defense Systems Division, Neil Armstrong Boulevard, 
Eagan, MN
Unisys Shipboard & Ground Systems Group, Marquis Avenue, Great Neck, NY 
11020
United Technologies Corporation, UT Bldg., Hartford, CT 06101 as to 
          contracts originating in the following divisions or 
          subsidiaries:
Norden Systems, Incorporated
Pratt & Whitney
Varian Associates, Incorporated, 611 Hansen Way, Palo Alto, CA as to 
          contracts originating in the following division:
*Continental Electronics Manufacturing Company, Dallas, TX
---------------------------------------------------------------------------

    *Firm suspended as of July 6, 1988.
---------------------------------------------------------------------------

Whittaker Corporation (Lee Telecommunications Corporation (LTC), Route 
1, Farmington, AR 72730)
Zubier Enterprises, 6201 Pine Street, Harrisburg, PA.

[[Page 841]]



                  SUBCHAPTER H_CLOSURES AND REALIGNMENT





PART 174_REVITALIZING BASE CLOSURE COMMUNITIES AND ADDRESSING IMPACTS
OF REALIGNMENT--Table of Contents



                            Subpart A_General

Sec.
174.1 Purpose.
174.2 Applicability.
174.3 Definitions.

                            Subpart B_Policy

174.4 Policy.
174.5 Responsibilities.

              Subpart C_Working with Communities and States

174.6 LRA and the redevelopment plan.

                         Subpart D_Real Property

174.7 Retention for DoD Component use and transfers to other Federal 
          agencies.
174.8 Screening for properties covered by the Base Closure Community 
          Redevelopment and Homeless Assistance Act of 1994, cross-
          reference.
174.9 Economic development conveyances.
174.10 [Reserved]
174.11 Leasing of real property to non-Federal entities.
174.12 Leasing of transferred real property by Federal agencies.

                       Subpart E_Personal Property

174.13 Personal property.

                    Subpart F_Maintenance and Repair

174.14 Maintenance and repair.

                     Subpart G_Environmental Matters

174.15 Indemnification under Section 330 of the National Defense 
          Authorization Act for Fiscal Year 1993.
174.16 Real property containing explosive or chemical agent hazards.
174.17 NEPA.
174.18 Historic preservation.

    Authority: 10 U.S.C. 113 and 10 U.S.C. 2687 note.

    Source: 71 FR 9919, Feb. 28, 2006, unless otherwise noted.



                            Subpart A_General



Sec.  174.1  Purpose.

    This part:
    (a) Establishes policy, assigns responsibilities, and implements 
base closure laws and associated provisions of law relating to the 
closure and the realignment of installations. It does not address the 
process for selecting installations for closure or realignment.
    (b) Authorizes the publication of DoD 4165.66-M, ``Base 
Redevelopment and Realignment Manual,'' in accordance with DoD 5025.1-M 
\1\, ``DoD Directive System Procedures,'' March 2003.
---------------------------------------------------------------------------

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



Sec.  174.2  Applicability.

    This part applies to:
    (a) The Office of the Secretary of Defense, the Military 
Departments, the Chairman of the Joint Chiefs of Staff and the Joint 
Staff, the Combatant Commands, the Office of the Inspector General of 
the Department of Defense, the Defense Agencies, the DoD Field 
Activities, and all other organizational entities in the Department of 
Defense (hereafter referred to collectively as the ``DoD Components'').
    (b) Installations in the United States selected for closure or 
realignment under a base closure law.
    (c) Federal agencies and non-Federal entities that seek to obtain 
real or personal property on installations selected for closure or 
realignment.



Sec.  174.3  Definitions.

    (a) Base closure law. This term has the same meaning as provided in 
10 U.S.C. Sec.  101(a)(17)(B) and (C).
    (b) Closure. An action that ceases or relocates all current missions 
of an installation and eliminates or relocates all current personnel 
positions (military, civilian, and contractor), except for personnel 
required for caretaking, conducting any ongoing environmental cleanup, 
or property disposal. Retention of a small enclave, not associated

[[Page 842]]

with the main mission of the base, is still a closure.
    (c) Consultation. Explaining and discussing an issue, considering 
objections, modifications, and alternatives; but without a requirement 
to reach agreement.
    (d) Date of approval. This term has the same meaning as provided in 
section 2910(8) of the Defense Base Closure and Realignment Act of 1990, 
Pub. L. 101-510.
    (e) Excess property. This term has the same meaning as provided in 
40 U.S.C. Sec.  102(3).
    (f) Installation. This term has the same meaning as provided in the 
definition for ``military installation'' in section 2910(4) of the 
Defense Base Closure and Realignment Act of 1990, Pub. L. 101-510.
    (g) Local Redevelopment Authority (LRA). This term has the same 
meaning as provided in the definition for ``redevelopment authority'' in 
section 2910(9) of the Defense Base Closure and Realignment Act of 1990, 
Pub. L. 101-510.
    (h) Military Department. This term has the same meaning as provided 
in 10 U.S.C. 101(a)(8).
    (i) National Environmental Policy Act (NEPA). The National 
Environmental Policy Act of 1969, Pub. L. 91-190, 42 U.S.C. 4321 et 
seq., as amended.
    (j) Realignment. This term has the same meaning as provided in 
section 2910(5) of the Defense Base Closure and Realignment Act of 1990, 
Pub. L. 101-510.
    (k) Secretary concerned. This term has the same meaning as provided 
in 10 U.S.C. 101(a)(9)(A), (B), and (C).
    (l) Surplus property. This term has the same meaning as provided in 
40 U.S.C. 102(10).
    (m) Transition coordinator. This term has the same meaning as used 
in section 2915 of the National Defense Authorization Act for Fiscal 
Year 1994, Public Law 103-160.



                            Subpart B_Policy



Sec.  174.4  Policy.

    It is DoD policy to:
    (a) Act expeditiously whether closing or realigning. Relocating 
activities from installations designated for closure will, when 
feasible, be accelerated to facilitate the transfer of real property for 
community reuse. In the case of realignments, the Department will pursue 
aggressive planning and scheduling of related facility improvements at 
the receiving location.
    (b) Fully utilize all appropriate means to transfer property. 
Federal law provides the Department with an array of legal authorities, 
including public benefit transfers, economic development conveyances at 
cost and no cost, negotiated sales to state or local government, 
conservation conveyances, and public sales, by which to transfer 
property on closed or realigned installations. Recognizing that the 
variety of types of facilities available for civilian reuse and the 
unique circumstances of the surrounding communities does not lend itself 
to a single universal solution, the Department will use this array of 
authorities in a way that considers individual circumstances.
    (c) Rely on and leverage market forces. Community redevelopment 
plans and military conveyance plans should be integrated to the extent 
practical and should take account of any anticipated demand for surplus 
military land and facilities.
    (d) Collaborate effectively. Experience suggests that collaboration 
is the linchpin to successful installation redevelopment. Only by 
collaborating with the local community can the Department close and 
transfer property in a timely manner and provide a foundation for solid 
economic redevelopment.
    (e) Speak with one voice. The Department of Defense, acting through 
the DoD Components, will provide clear and timely information and will 
encourage affected communities to do the same.
    (f) Work with communities to address growth. The Department will 
work with the surrounding community so that the public and private 
sectors can provide the services and facilities needed to accommodate 
new personnel and their families. The Department recognizes that 
installation commanders and local officials, as appropriate (e.g., 
State, county, and tribal), need to integrate and coordinate elements of 
their

[[Page 843]]

local and regional growth planning so that appropriate off-base 
facilities and services are available for arriving personnel and their 
families.



Sec.  174.5  Responsibilities.

    (a) The Under Secretary of Defense for Acquisition, Technology, and 
Logistics shall issue DoD Instructions as necessary to further implement 
applicable public laws affecting installation closure and realignment 
implementation and shall monitor compliance with this part. All 
authorities and responsibilities of the Secretary of Defense--
    (1) Vested in the Secretary of Defense by a base closure law, but 
excluding those provisions relating to the process for selecting 
installations for closure or realignment;
    (2) Delegated from the Administrator of General Services relating to 
base closure and realignment matters;
    (3) Vested in the Secretary of Defense by any other provision 
relating to base closure and realignment in a national defense 
authorization act, a Department of Defense appropriations act, or a 
military construction appropriations act, but excluding section 330 of 
the National Defense Authorization Act for Fiscal Year 1993; or
    (4) Vested in the Secretary of Defense by Executive Order or 
regulation and relating to base closure and realignment, are hereby 
delegated to the Under Secretary of Defense for Acquisition, Technology, 
and Logistics.
    (b) The authorities and responsibilities of the Secretary of Defense 
delegated to the Under Secretary of Defense for Acquisition, Technology, 
and Logistics under paragraph (a) of this section are hereby re-
delegated to the Deputy Under Secretary of Defense (Installations and 
Environment).
    (c) The Heads of the DoD Components shall ensure compliance with 
this part and any implementing guidance.
    (d) Subject to the delegations in paragraphs (a) and (b) of this 
section, the Secretaries concerned shall exercise those authorities and 
responsibilities specified in subparts C through G of this part.
    (e) The cost of recording deeds and other transfer documents is the 
responsibility of the transferee.



              Subpart C_Working with Communities and States



Sec.  174.6  LRA and the redevelopment plan.

    (a) The LRA should have broad-based membership, including, but not 
limited to, representatives from those jurisdictions with zoning 
authority over the property. Generally, there will be one recognized LRA 
per installation.
    (b) The LRA should focus primarily on developing a comprehensive 
redevelopment plan based upon local needs. The plan should recommend 
land uses based upon an exploration of feasible reuse alternatives. If 
applicable, the plan should consider notices of interest received under 
a base closure law. This section shall not be construed to require a 
plan that is enforceable under state and local land use laws, nor is it 
intended to create any exemption from such laws.
    (c)(1) The Secretary concerned will develop a disposal plan and, to 
the extent practicable, complete the appropriate environmental 
documentation no later than 12 months after receipt of the redevelopment 
plan. The redevelopment plan will be used as part of the proposed 
Federal action in conducting environmental analyses required under NEPA.
    (2) In the event there is no LRA recognized by DoD or if a 
redevelopment plan is not received from the LRA within 9 months from the 
date referred to in section 2905(b)(7)(F)(iv) of Pub. L. 101-510, 
(unless an extension of time has been granted by the Deputy Under 
Secretary of Defense (Installations and Environment)), the Secretary 
concerned shall, after required consultation with the governor and heads 
of local governments, proceed with the disposal of property under 
applicable property disposal and environmental laws and regulations.



                         Subpart D_Real Property



Sec.  174.7  Retention for DoD Component use and transfer to other
Federal agencies.

    (a) To speed the economic recovery of communities affected by 
closures and

[[Page 844]]

realignments, the Department of Defense will identify DoD and Federal 
interests in real property at closing and realigning installations as 
quickly as possible. The Secretary concerned shall identify such 
interests. The Secretary concerned will keep the LRA informed of these 
interests. This section establishes a uniform process, with specified 
timelines, for identifying real property that is available for use by 
DoD Components (which for purposes of this section includes the United 
States Coast Guard) or is excess to the needs of the Department of 
Defense and available for use by other Federal agencies, and for the 
disposal of surplus property for various purposes.
    (b) The Secretary concerned should consider LRA input, if provided, 
in making determinations on the retention of property (location and size 
of cantonment area).
    (c) Within one week of the date of approval of the closure or 
realignment, the Secretary concerned shall issue a notice of 
availability to the DoD Components and other Federal agencies covering 
closing and realigning installation buildings and property available for 
transfer to the DoD Components and other Federal agencies. The notice of 
availability should describe the property and buildings available for 
transfer. Withdrawn public domain lands which the Secretary of the 
Interior has determined are suitable for return to the jurisdiction of 
the Department of the Interior (DoI) will not be included in the notice 
of availability.
    (d) To obtain consideration of a requirement for such available 
buildings and property, a DoD Component or Federal agency is required to 
provide a written, firm expression of interest for buildings and 
property within 30 days of the date of the notice of availability. An 
expression of interest must explain the intended use and the 
corresponding requirement for the buildings and property.
    (e)(1) Within 60 days of the date of the notice of availability, the 
DoD Component or Federal agency expressing interest in buildings or 
property must submit an application for transfer of such property to a 
Military Department or Federal agency. In the case of a DoD Component 
that would normally, under the circumstances, obtain its real property 
needs from the Military Department disposing of the real property, the 
application should indicate the property would not transfer to another 
Military Department but should be retained by the current Military 
Department for the use of the DoD Component. To the extent a different 
Military Department provides real property support for the requesting 
DoD Component, the application must indicate the concurrence of the 
supporting Military Department.
    (2) Within 90 days of the notice of availability, the Federal 
Aviation Administration (FAA) should survey the air traffic control and 
air navigation equipment at the installation to determine what is needed 
to support the air traffic control, surveillance, and communications 
functions supported by the Military Department, and to identify the 
facilities needed to support the National Airspace System. FAA requests 
for property to manage the National Airspace System will not be governed 
by paragraph (h) of this section. Instead, the FAA shall work directly 
with the Military Department to prepare an agreement to assume custody 
of the property necessary for control of the airspace being relinquished 
by the Military Department.
    (f) The Secretary concerned will keep the LRA informed of the 
progress in identifying interests. At the same time, the LRA is 
encouraged to contact Federal agencies which sponsor public benefit 
conveyances for information and technical assistance. The Secretary 
concerned will provide to the LRA points of contact at the Federal 
agencies.
    (g) DoD Components and Federal agencies are encouraged to discuss 
their plans and needs with the LRA, if an LRA exists. If an LRA does not 
exist, the consultation should be pursued with the governor or the heads 
of the local governments in whose jurisdiction the property is located. 
DoD Components and Federal agencies are encouraged to notify the 
Secretary concerned of the results of this consultation. The Secretary 
concerned, the Transition Coordinator, and the DoD Office of Economic 
Adjustment Project Manager are available to help

[[Page 845]]

facilitate communication between the DoD Components and Federal 
agencies, and the LRA, governor, and heads of local governments.
    (h) An application for property from a DoD Component or Federal 
agency must contain the following information:
    (1) A completed GSA Form 1334, Request for Transfer (for requests 
from DoD Components, a DD Form 1354 will be used). This must be signed 
by the head of the Component or agency requesting the property. If the 
authority to acquire property has been delegated, a copy of the 
delegation must accompany the form;
    (2) A statement from the head of the requesting Component or agency 
that the request does not establish a new program (i.e., one that has 
never been reflected in a previous budget submission or Congressional 
action);
    (3) A statement that the requesting Component or agency has reviewed 
its real property holdings and cannot satisfy its requirement with 
existing property. This review must include all property under the 
requester's accountability, including permits to other Federal agencies 
and outleases to other organizations;
    (4) A statement that the requested property would provide greater 
long-term economic benefits for the program than acquisition of a new 
facility or other property;
    (5) A statement that the program for which the property is requested 
has long-term viability;
    (6) A statement that considerations of design, layout, geographic 
location, age, state of repair, and expected maintenance costs of the 
requested property clearly demonstrate that the transfer will prove more 
economical over a sustained period of time than acquiring a new 
facility;
    (7) A statement that the size of the property requested is 
consistent with the actual requirement;
    (8) A statement that fair market value reimbursement to the Military 
Department will be made at the later of January of 2008, or at the time 
of transfer, unless this obligation is waived by the Office of 
Management and Budget and the Secretary concerned, or a public law 
specifically provides for a non-reimbursable transfer (this requirement 
does not apply to requests from DoD Components);
    (9) A statement that the requesting DoD Component or Federal agency 
agrees to accept the care and custody costs for the property on the date 
the property is available for transfer, as determined by the Secretary 
concerned; and
    (10) A statement that the requesting agency agrees to accept 
transfer of the property in its existing condition, unless this 
obligation is waived by the Secretary concerned.
    (i) The Secretary concerned will make a decision on an application 
from a DoD Component or Federal agency based upon the following factors:
    (1) The requirement must be valid and appropriate;
    (2) The proposed use is consistent with the highest and best use of 
the property;
    (3) The proposed transfer will not have an adverse impact on the 
transfer of any remaining portion of the installation;
    (4) The proposed transfer will not establish a new program or 
substantially increase the level of a Component's or agency's existing 
programs;
    (5) The application offers fair market value for the property, 
unless waived;
    (6) The proposed transfer addresses applicable environmental 
responsibilities to the satisfaction of the Secretary concerned; and
    (7) The proposed transfer is in the best interest of the Government.
    (j) When there is more than one acceptable application for the same 
building or property, the Secretary concerned shall consider, in the 
following order--
    (1) The need to perform the national defense missions of the 
Department of Defense and the Coast Guard;
    (2) The need to support the homeland defense mission; and
    (3) The LRA's comments as well as other factors in the determination 
of highest and best use.
    (k) If the Federal agency does not meet its commitment under 
paragraph (h)(8) of this section to provide the required reimbursement, 
and the requested property has not yet been

[[Page 846]]

transferred to the agency, the requested property will be declared 
surplus and disposed of in accordance with the provisions of this part.
    (l) Closing or realigning installations may contain ``public domain 
lands'' which have been withdrawn by the Secretary of the Interior from 
operation of the public land laws and reserved for use by the Department 
of Defense. Lands deemed suitable for return to the public domain are 
not real property governed by title 40, United States Code, and are not 
governed by the property management and disposal provisions of a base 
closure law. Public domain lands are under the jurisdiction of the 
Secretary of the Interior and administered by the Bureau of Land 
Management (BLM) unless the Secretary of the Interior has withdrawn the 
lands and reserved them for another Federal agency's use.
    (1) The Secretary concerned will provide the BLM with information 
about which, if any, public domain lands will be affected by the 
installation's closure or realignment.
    (2) The BLM will review the information to determine if any 
installations contain withdrawn public domain lands. The BLM will review 
its land records to identify any withdrawn public domain lands at the 
closing installations. Any records discrepancies between the BLM and 
Military Departments should be resolved. The BLM will notify the 
Secretary concerned as to the final agreed upon withdrawn and reserved 
public domain lands at an installation.
    (3) Upon agreement as to what withdrawn and reserved public domain 
lands are affected at closing installations, the BLM will initiate a 
screening of DoI agencies to determine if these lands are suitable for 
programs of the Secretary of the Interior.
    (4) The Secretary concerned will transmit a Notice of Intent to 
Relinquish (see 43 CFR Part 2370) to the BLM as soon as it is known that 
there is no DoD Component interest in reusing the public domain lands. 
The BLM will complete the suitability determination screening process 
within 30 days of receipt of the Secretary's Notice of Intent to 
Relinquish. If a DoD Component is approved to reuse the public domain 
lands, the BLM will be notified and BLM will determine if the current 
authority for military use of these lands needs to be modified or 
amended.
    (5) If BLM determines the land is suitable for return, it shall 
notify the Secretary concerned that the intent of the Secretary of the 
Interior is to accept the relinquishment of the land by the Secretary 
concerned.
    (6) If BLM determines the land is not suitable for return to the 
DoI, the land should be disposed of pursuant to base closure law.
    (m) The Secretary concerned should make a surplus determination 
within six (6) months of the date of approval of closure or realignment, 
and shall inform the LRA of the determination. If requested by the LRA, 
the Secretary may postpone the surplus determination for a period of no 
more than six (6) additional months after the date of approval if the 
Secretary determines that such postponement is in the best interests of 
the communities affected by the closure or realignment.
    (1) In unusual circumstances, extensions beyond six months can be 
granted by the Deputy Under Secretary of Defense (Installations and 
Environment).
    (2) Extensions of the surplus determination should be limited to the 
portions of the installation where there is an outstanding interest, and 
every effort should be made to make decisions on as much of the 
installation as possible, within the specified timeframes.
    (n) Once the surplus determination has been made, the Secretary 
concerned shall follow the procedures in part 176 of this title.
    (o) Following the surplus determination, but prior to the disposal 
of property, the Secretary concerned may, at the Secretary's discretion, 
withdraw the surplus determination and evaluate a Federal agency's late 
request for excess property.
    (1) Transfers under this paragraph shall be limited to special 
cases, as determined by the Secretary concerned.
    (2) Requests shall be made to the Secretary concerned, as specified 
under paragraphs (h) and (i) of this section, and the Secretary shall 
notify the LRA of such late request.

[[Page 847]]

    (3) Comments received from the LRA and the time and effort invested 
by the LRA in the planning process should be considered when the 
Secretary concerned is reviewing a late request.



Sec.  174.8  Screening for properties covered by the Base Closure
Community Redevelopment and Homeless Assistance Act of 1994, cross
-reference.

    The Departments of Defense and Housing and Urban Development have 
promulgated regulations to address state and local screening and 
approval of redevelopment plans for installations covered by the Base 
Closure Community Redevelopment and Homeless Assistance Act of 1994 
(Pub. L. 103-421). The Department of Defense regulations can be found at 
part 176 of this title. The Department of Housing and Urban Development 
regulations can be found at 24 CFR part 586.



Sec.  174.9  Economic development conveyances.

    (a) The Secretary concerned may transfer real property and personal 
property to the LRA for purposes of job generation on the former 
installation. Such a transfer is an Economic Development Conveyance 
(EDC).
    (b) An LRA is the only entity eligible to receive property under an 
EDC.
    (c) The Secretary concerned shall use the completed application, 
along with other relevant information, to decide whether to enter into 
an EDC with an LRA. An LRA may submit an EDC application only after it 
adopts a redevelopment plan. The Secretary concerned shall establish a 
reasonable time period for submission of an EDC application after 
consultation with the LRA.
    (d) The application shall include:
    (1) A copy of the adopted redevelopment plan.
    (2) A project narrative including the following:
    (i) A general description of the property requested.
    (ii) A description of the intended uses.
    (iii) A description of the economic impact of closure or realignment 
on the local community.
    (iv) A description of the economic condition of the community and 
the prospects for redevelopment of the property.
    (v) A statement of how the EDC is consistent with the overall 
redevelopment plan.
    (3) A description of how the EDC will contribute to short- and long-
term job generation on the installation, including the projected number 
and type of new jobs it will assist in generating.
    (4) A business/operational plan for development of the EDC parcel, 
including at least the following elements:
    (i) A development timetable, phasing schedule, and cash flow 
analysis.
    (ii) A market and financial feasibility analysis describing the 
economic viability of the project, including an estimate of net proceeds 
over the planned life of the redevelopment project, but in no event for 
less than fifteen years after the initial transfer of property, and the 
proposed consideration or payment to the Department of Defense. The 
proposed consideration should describe the methodology for payment and 
include draft documents or instruments proposed to secure such payment.
    (iii) A cost estimate and justification for infrastructure and other 
investments needed for redevelopment of the EDC parcel.
    (iv) A proposed local investment and financing plan for the 
development.
    (5) A statement describing why an EDC will more effectively enable 
achievement of the job generation objectives of the redevelopment plan 
regarding the parcel requested for conveyance than other federal real 
property disposal authorities.
    (6) Evidence of the LRA's legal authority to acquire and dispose of 
the property.
    (7) Evidence that:
    (i) The LRA has authority to perform the actions required of it, 
pursuant to the terms of the EDC, and
    (ii) That the officers submitting the application and making the 
representations contained therein on behalf of the LRA have the 
authority to do so.
    (8) A commitment from the LRA that the proceeds from any sale or 
lease of the EDC parcel (or any portion thereof) received by the LRA 
during at least the first seven years after the date of the initial 
transfer of property, except

[[Page 848]]

proceeds that are used to pay consideration to the Secretary concerned 
under paragraph (h) of this section, shall be used to support economic 
redevelopment of, or related to, the installation. In the case of phased 
transfers, the Secretary concerned shall require that this commitment 
apply during at least the first seven years after the date of the last 
transfer of property to the LRA. For the purposes of calculating this 
reinvestment period, a lease in furtherance of conveyance shall 
constitute a transfer. The use of proceeds to pay for, or offset the 
costs of, public investment on or related to the installation for any of 
the following purposes shall be considered a use to support the economic 
redevelopment of, or related to, the installation--
    (i) Road construction;
    (ii) Transportation management facilities;
    (iii) Storm and sanitary sewer construction;
    (iv) Police and fire protection facilities and other public 
facilities;
    (v) Utility construction;
    (vi) Building rehabilitation;
    (vii) Historic property preservation;
    (viii) Pollution prevention equipment or facilities;
    (vix) Demolition;
    (x) Disposal of hazardous materials and hazardous waste generated by 
demolition;
    (xi) Landscaping, grading, and other site or public improvements; 
and
    (xii) Planning for or the marketing of the development and reuse of 
the installation.
    (9) A commitment from the LRA to execute the agreement for transfer 
of the property and accept control of the property within a reasonable 
time, as determined by the Secretary concerned after consultation with 
the LRA, after the date of the property disposal record of decision. The 
determination of reasonable time should take account of the ability of 
the Secretary concerned to provide the deed covenants, or covenant 
deferral, provided for under section 120(h)(3) and (4) of the 
Comprehensive Environmental Response, Compensation, and Liability Act of 
1980 (42 U.S.C. 9620(h)(3) and (4)).
    (e) The Secretary concerned shall review the application and, to the 
extent practicable, provide a preliminary determination within 30 days 
of receipt as to whether the Military Department can accept the 
application for negotiation of terms and conditions, subject to the 
following findings:
    (1) The LRA submitting the application has been duly recognized by 
the DoD Office of Economic Adjustment;
    (2) The application is complete. With respect to the elements of the 
application specified in paragraph (d)(6) and (d)(7)(i) of this section, 
the Secretary concerned may accept the application for negotiation of 
terms and conditions without this element, provided the Secretary 
concerned is satisfied that the LRA has a reasonable plan in place to 
provide the element prior to transfer of the property; and
    (3) The proposed EDC will more effectively enable achievement of the 
job generation objectives of the redevelopment plan regarding the parcel 
requested than the application of other federal real property disposal 
authorities.
    (f) Upon acceptance of an EDC application, the Secretary concerned 
shall determine if the proposed terms and conditions are fair and 
reasonable. The Secretary concerned may propose and negotiate any 
alternative terms or conditions that the Secretary considers necessary. 
The following factors shall be considered, as appropriate, in evaluating 
the terms and conditions of the proposed transfer, including price, time 
of payment, and other relevant methods of compensation to the Federal 
government:
    (1) Local economic conditions and adverse impact of closure or 
realignment on the region and potential for economic recovery through an 
EDC.
    (2) Extent of short- and long-term job generation.
    (3) Consistency with the entire redevelopment plan.
    (4) Financial feasibility of the development and proposed 
consideration, including financial and market analysis and the need and 
extent of proposed infrastructure and other investments.
    (5) Extent of state and local investment, level of risk incurred, 
and the LRA's ability to implement the redevelopment plan. Higher risk 
assumed and investment made by the LRA

[[Page 849]]

should be recognized with more favorable terms and conditions, to 
encourage local investment to support job generation.
    (6) Current local and regional real estate market conditions, 
including market demand for the property.
    (7) Incorporation of other Federal agency interests and concerns, 
including the applicability of other Federal surplus property disposal 
authorities.
    (8) Economic benefit to the Federal Government, including protection 
and maintenance cost savings, environmental clean-up savings, and 
anticipated consideration from the transfer.
    (9) Compliance with applicable Federal, state, interstate, and local 
laws and regulations.
    (g) The Secretary concerned shall negotiate the terms and conditions 
of each transaction with the LRA. The Secretary concerned shall have the 
discretion and flexibility to enter into agreements that specify the 
form of payment and the schedule.
    (h)(1) The Secretary concerned may accept, as consideration, any 
combination of the following:
    (i) Cash, including a share of the revenues that the local 
redevelopment authority receives from third-party buyers or lessees from 
sales and leases of the conveyed property (i.e., a share of the revenues 
generated from the redevelopment project);
    (ii) Goods and services;
    (iii) Real property and improvements; and
    (iv) Such other consideration as the Secretary considers 
appropriate.
    (2) The consideration may be accepted over time.
    (3) All cash consideration for property at a military installation 
where the date of approval of closure or realignment is before January 
1, 2005, shall be deposited in the account established under Section 
2906(a) of the Defense Base Closure and Realignment Act of 1990 (part A 
of title XXIX of Pub. L. 101-510; 10 U.S.C. 2687 note). All cash 
consideration for property at a military installation where the date of 
approval of closure or realignment is after January 1, 2005, shall be 
deposited in the account established under Section 2906A(a) of the 
Defense Base Closure and Realignment Act of 1990 (part A of title XXIX 
of Pub. L. 101-510; 10 U.S.C. 2687 note).
    (4) The Secretary concerned may use in-kind consideration received 
from an LRA at any location under control of the Secretary concerned.
    (i) The LRA and the Secretary concerned may agree on a schedule for 
sale of parcels and payment participation.
    (j) Additional provisions shall be incorporated in the conveyance 
documents to protect the Department's interest in obtaining the agreed 
upon consideration, which may include such items as predetermined 
release prices, accounting standards, or other appropriate clauses 
designed to ensure payment and protect against fraudulent transactions. 
Every agreement for an EDC shall contain provisions allowing the 
Secretary concerned to recoup from the LRA such portion of the proceeds 
from a sale or lease by the LRA as the Secretary concerned determines 
appropriate if the LRA does not use the proceeds to support economic 
redevelopment of or related to the installation during the period 
specified in paragraph (d)(8) of this section. The Secretary concerned 
and an LRA may enter into a mutually agreed participation agreement 
which may include input by the Secretary concerned on the LRA's disposal 
of EDC parcels.
    (k) The Secretary concerned should take account of property value 
but is not required to formally determine the estimated fair market 
value of the property for any EDC. The consideration negotiated should 
be based on a business plan and development pro-forma that assumes the 
uses in the redevelopment plan. The Secretary concerned may determine 
the nature and extent of any additional information needed for purposes 
of an informed negotiation. This may include, but is not limited to, an 
economic and market analysis, construction estimates, a real estate pro 
forrma analysis, or an appraisal. To the extent not prohibited by law, 
information used should be shared with the LRA.
    (l) After evaluating the application based upon the criteria 
specified in

[[Page 850]]

paragraph (f) of this section, and negotiating terms and conditions, the 
Secretary concerned shall present the proposed EDC to the Deputy Under 
Secretary of Defense (Installations and Environment) for formal 
coordination before announcing approval of the application.

[76 FR 70880, Nov. 16, 2011]



Sec.  174.10  [Reserved]



Sec.  174.11  Leasing of real property to non-Federal entities.

    (a) Leasing of real property to non-Federal entities prior to the 
final disposition of closing and realigning installations may facilitate 
state and local economic adjustment efforts and encourage economic 
redevelopment, but the Secretary concerned will always concentrate on 
the final disposition of real and personal property.
    (b) In addition to leasing property at fair market value, to assist 
local redevelopment efforts the Secretary concerned may also lease real 
and personal property, pending final disposition, for less than fair 
market value if the Secretary determines that:
    (1) A public interest will be served as a result of the lease; and,
    (2) The fair market value of the lease is unobtainable or not 
compatible with such public benefit.
    (c) Pending final disposition of an installation, the Secretary 
concerned may grant interim leases which are short-term leases that make 
no commitment for future use or ultimate disposal. When granting an 
interim lease, the Secretary will generally lease to the LRA but can 
lease property directly to other entities. If the interim lease (after 
complying with NEPA) is entered into prior to completion of the final 
disposal decisions, the term may be for up to five years, including 
options to renew, and may contain restrictions on use. Leasing should 
not delay the final disposal of the property. After completion of the 
final disposal decisions, the term of the lease may be longer than five 
years.
    (d) If the property is leased for less than fair market value to the 
LRA and the interim lease permits the property to be subleased, the 
interim lease shall provide that rents from the subleases will be 
applied by the lessee to the protection, maintenance, repair, 
improvement, and costs related to the property at the installation 
consistent with 10 U.S.C. 2667.



Sec.  174.12  Leasing of transferred real property by Federal agencies.

    (a) The Secretary concerned may transfer real property that is still 
needed by a Federal agency (which for purposes of this section includes 
DoD Components) to an LRA provided the LRA agrees to lease the property 
to the Federal agency in accordance with all statutory and regulatory 
guidance.
    (b) The decision whether to transfer property pursuant to such a 
leasing arrangement rests with the Secretary concerned. However, a 
Secretary shall only transfer property subject to such a leasing 
arrangement if the Federal agency that needs the property agrees to the 
leasing arrangement.
    (c) If the subject property cannot be transferred pursuant to such a 
leasing arrangement (e.g., the relevant Federal agency prefers 
ownership, the LRA and the Federal agency cannot agree on terms of the 
lease, or the Secretary concerned determines that such a lease would not 
be in the Federal interest), such property shall remain in Federal 
ownership unless and until the Secretary concerned determines that it is 
surplus.
    (d) If a building or structure is proposed for transfer pursuant to 
this section, that which is leased by the Federal agency may be all or a 
portion of that building or structure.
    (e) Transfers pursuant to this section must be to an LRA.
    (f) Either existing Federal tenants or Federal agencies desiring to 
locate onto the property after operational closure may make use of such 
a leasing arrangement. The Secretary concerned may not enter into such a 
leasing arrangement unless:
    (1) In the case of a Defense Agency, the Secretary concerned is 
acting in an Executive Agent capacity on behalf of the Agency that 
certifies that such a leasing arrangement is in the interest of that 
Agency; or,
    (2) In the case of a Military Department, the Secretary concerned 
certifies that such a leasing arrangement

[[Page 851]]

is in the best interest of the Military Department and that use of the 
property by the Military Department is consistent with the obligation to 
close or realign the installation in accordance with the recommendations 
of the Defense Base Closure and Realignment Commission.
    (g) Property eligible for such a leasing arrangement is not surplus 
because it is still needed by the Federal Government. Even though the 
LRA would not otherwise have to include such property in its 
redevelopment plan, it should include the property in its redevelopment 
plan anyway to take into account the planned Federal use of such 
property.
    (h) The terms of the LRA's lease to the Federal Government should 
afford the Federal agency rights as close to those associated with 
ownership of the property as is practicable. The requirements of the 
General Services Administration (GSA) Federal Acquisition Regulation (48 
CFR part 570) are not applicable to the lease, but provisions in that 
regulation may be used to the extent they are consistent with this part. 
The terms of the lease are negotiable subject to the following:
    (1) The lease shall be for a term of no more than 50 years, but may 
provide for options for renewal or extension of the term at the request 
of the Federal Government. The lease term should be based on the needs 
of the Federal agency.
    (2) The lease, or any renewals or extensions thereof, shall not 
require rental payments.
    (3) Notwithstanding paragraph (h)(2) of this section, if the lease 
involves a substantial portion of the installation, the Secretary 
concerned may obtain facility services for the leased property and 
common area maintenance from the LRA or the LRA's assignee as a 
provision of the lease.
    (A) Such services and common area maintenance shall be provided at a 
rate no higher than the rate charged to non-Federal tenants of the 
transferred property.
    (B) Such services and common area maintenance shall not include--
    (i) Municipal services that a State or local government is required 
by law to provide to all landowners in its jurisdiction without direct 
charge, including police protection; or
    (ii) Firefighting or security-guard functions.
    (C) The Federal agency may be responsible for services such as 
janitorial, grounds keeping, utilities, capital maintenance, and other 
services normally provided by a landlord. Acquisition of such services 
by the Federal agency is to be accomplished through the use of Federal 
Acquisition Regulation procedures or otherwise in accordance with 
applicable statutory and regulatory requirements.
    (4) The lease shall include a provision prohibiting the LRA from 
transferring fee title to another entity during the term of the lease, 
other than one of the political jurisdictions that comprise the LRA, 
without the written consent of the Federal agency occupying the leased 
property.
    (5)(i) The lease shall include an option specifying that if the 
Federal agency no longer needs the property before the expiration of the 
term of the lease, the remainder of the lease term may be satisfied by 
the same or another Federal agency that needs property for a similar 
use. (``Similar use'' is a use that is comparable to or essentially the 
same as the use under the original lease, as determined by the Secretary 
concerned.)
    (ii)(B) If the tenant is a DoD Component, before notifying GSA of 
the availability of the leasehold, it shall determine whether any other 
DoD Component has a requirement for the leasehold; in doing so, it shall 
consult with the LRA. If another DoD Component has a requirement for the 
leasehold, that DoD Component shall be allowed to assume the leasehold 
for the remainder of its term. If no DoD Component has a requirement for 
the leasehold, the tenant shall notify GSA in accordance with paragraph 
(h)(5)(ii)(A) of this section.
    (A) The Federal tenant shall notify the GSA of the availability of 
the leasehold. GSA will then decide whether to exercise this option 
after consulting with the LRA or other property owner. The GSA shall 
have 60 days from the date of notification in which to identify a 
Federal agency to serve out the term of the lease and to notify

[[Page 852]]

the LRA or other property owner of the new tenant. If the GSA does not 
notify the LRA or other property owner of a new tenant within such 60 
days, the leasehold shall terminate on a date agreed to by the Federal 
tenant and the LRA or other property owner.
    (B) If the GSA decides not to exercise this option after consulting 
with the LRA or other property owner, the leasehold shall terminate on a 
date agreed to by the Federal tenant and the LRA or other property 
owner.
    (6) The terms of the lease shall provide that the Federal agency may 
repair and improve the property at its expense after consultation with 
the LRA.
    (i) Property subject to such a leasing arrangement shall be conveyed 
in accordance with the existing EDC procedures. The LRA shall submit the 
following in addition to the application requirements outlined in Sec.  
174.9(e) of this part:
    (1) A description of the parcel or parcels the LRA proposes to have 
transferred to it and then to lease to a Federal agency;
    (2) A written statement signed by an authorized representative of 
the Federal agency that it agrees to accept the lease of the property; 
and,
    (3) A statement explaining why such a leasing arrangement is 
necessary for the long-term economic redevelopment of the installation 
property.
    (j) The exact amount of consideration, or the formula to be used to 
determine that consideration, as well as the schedule for payment of 
consideration must be agreed upon in writing before transfer pursuant to 
this section.



                       Subpart E_Personal Property



Sec.  174.13  Personal property.

    (a) This section outlines procedures to allow transfer of personal 
property to the LRA for the effective implementation of a redevelopment 
plan. Personal property does not include fixtures.
    (b) The Secretary concerned, supported by DoD Components with 
personal property on the installation, will take an inventory of the 
personal property, including its condition, within 6 months after the 
date of approval of closure or realignment. This inventory will be 
limited to the personal property located on the real property to be 
disposed of by the Military Department. The inventory will be taken in 
consultation with LRA officials. If there is no LRA, the Secretary 
concerned shall consult with the local government in whose jurisdiction 
the installation is wholly located, or a local government agency or a 
State government agency designated for that purpose by the Governor of 
the State. Based on these consultations, the installation commander will 
determine the items or category of items that have the potential to 
enhance the reuse of the real property.
    (c) Except for property subject to the exemptions in paragraph (e) 
of this section, personal property with potential to enhance the reuse 
of the real property shall remain at an installation being closed or 
realigned until the earlier of:
    (1) One week after the Secretary concerned receives the 
redevelopment plan;
    (2) The date notified by the LRA that there will be no redevelopment 
plan;
    (3) 24 months after the date of approval of the closure or 
realignment of the installation; or
    (4) 90 days before the date of the closure or realignment of the 
installation.
    (d) National Guard property under the control of the United States 
Property and Fiscal Officer is subject to inventory and may be made 
available for redevelopment planning purposes.
    (e) Personal property may be removed upon approval of the 
installation commander or higher authority, as prescribed by the 
Secretary concerned, after the inventory required in paragraph (b) of 
this section has been sent to the LRA, when:
    (1) The property is required for the operation of a unit, function, 
component, weapon, or weapons system at another installation;
    (2) The property is uniquely military in character and is likely to 
have no civilian use (other than use for its material content or as a 
source of commonly used components). This property consists of 
classified items; nuclear, biological, and chemical items; weapons and 
munitions; museum property or

[[Page 853]]

items of significant historic value that are maintained or displayed on 
loan; and similar military items;
    (3) The property is not required for the reutilization or 
redevelopment of the installation (as jointly determined by the 
Secretary concerned and the LRA);
    (4) The property is stored at the installation for purposes of 
distribution (including spare parts or stock items) or redistribution 
and sale (DoD excess/surplus personal property). This property includes 
materials or parts used in a manufacturing or repair function but does 
not include maintenance spares for equipment to be left in place;
    (5) The property meets known requirements of an authorized program 
of a DoD Component or another Federal agency that would have to purchase 
similar items, and is the subject of a written request by the head of 
the DoD Component or other Federal agency. If the authority to acquire 
personal property has been delegated, a copy of the delegation must 
accompany the request. (For purposes of this paragraph, ``purchase'' 
means the DoD Component or Federal agency intends to obligate funds in 
the current quarter or next six fiscal quarters.) The DoD Component or 
Federal agency must pay packing, crating, handling, and transportation 
charges associated with such transfers of personal property;
    (6) The property belongs to a nonappropriated fund instrumentality 
(NAFI) of the Department of Defense; separate arrangements for 
communities to purchase such property are possible and may be negotiated 
with the Secretary concerned;
    (7) The property is not owned by the Department of Defense, i.e., it 
is owned by a Federal agency outside the Department of Defense or by 
non-Federal persons or entities such as a State, a private corporation, 
or an individual; or,
    (8) The property is needed elsewhere in the national security 
interest of the United States as determined by the Secretary concerned. 
This authority may not be re-delegated below the level of an Assistant 
Secretary. In exercising this authority, the Secretary may transfer the 
property to any DoD Component or other Federal agency.
    (f) Personal property not subject to the exemptions in paragraph (e) 
of this section may be conveyed to the LRA as part of an EDC for the 
real property if the Secretary concerned makes a finding that the 
personal property is necessary for the effective implementation of the 
redevelopment plan.
    (g) Personal property may also be conveyed separately to the LRA 
under an EDC for personal property. This type of EDC can be made if the 
Secretary concerned determines that the transfer is necessary for the 
effective implementation of a redevelopment plan with respect to the 
installation. Such determination shall be based on the LRA's timely 
application for the property, which should be submitted to the Secretary 
upon completion of the redevelopment plan. The application must include 
the LRA's agreement to accept the personal property after a reasonable 
period and will otherwise comply with the requirements of Sec. Sec.  
174.9 and 174.10 of this part. The transfer will be subject to 
reasonable limitations and conditions on use.
    (h) Personal property that is not needed by a DoD Component or a 
tenant Federal agency or conveyed to an LRA (or a state or local 
jurisdiction in lieu of an LRA), or conveyed as related personal 
property together with the real property, will be transferred to the 
Defense Reutilization and Marketing Office for disposal in accordance 
with applicable regulations.
    (i) Useful personal property not needed by the Federal Government 
and not qualifying for transfer to the LRA under an EDC may be donated 
to the community or LRA through the appropriate State Agency for Surplus 
Property (SASP) under 41 CFR part 102-37 surplus program guidelines. 
Personal property donated under this procedure must meet the usage and 
control requirements of the applicable SASP.



                    Subpart F_Maintenance and Repair



Sec.  174.14  Maintenance and repair.

    (a) Facilities and equipment located on installations being closed 
are often important to the eventual reuse of the installation. This 
section provides maintenance procedures to preserve

[[Page 854]]

and protect those facilities and items of equipment needed for reuse in 
an economical manner that facilitates installation redevelopment.
    (b) In order to ensure quick reuse, the Secretary concerned, in 
consultation with the LRA, will establish initial levels of maintenance 
and repair needed to aid redevelopment and to protect the property for 
the time periods set forth in paragraph (c) of this section. Where 
agreement between the Secretary and the LRA cannot be reached, the 
Secretary will determine the required levels of maintenance and repair 
and its duration. In no case will these initial levels of maintenance:
    (1) Exceed the standard of maintenance and repair in effect on the 
date of approval of closure or realignment;
    (2) Be less than maintenance and repair required to be consistent 
with Federal Government standards for excess and surplus properties as 
provided in the Federal Management Regulations of the GSA, 41 CFR part 
102;
    (3) Be less than the minimum levels required to support the use of 
such facilities or equipment for nonmilitary purposes; or,
    (4) Require any property improvements, including construction, 
alteration, or demolition, except when the demolition is required for 
health, safety, or environmental purposes, or is economically justified 
in lieu of continued maintenance expenditures.
    (c) Unless the Secretary concerned determines that it is in the 
national security interest of the United States, the levels of 
maintenance and repair specified in paragraph (b) of this section shall 
not be changed until the earlier of:
    (1) One week after the Secretary concerned receives the 
redevelopment plan;
    (2) The date notified by the LRA that there will be no redevelopment 
plan;
    (3) 24 months after the date of approval of the closure or 
realignment of the installation; or
    (4) 90 days before the date of the closure or realignment of the 
installation.
    (d) The Secretary concerned may extend the time period for the 
initial levels of maintenance and repair for property still under the 
Secretary's control for an additional period, if the Secretary 
determines that the LRA is actively implementing its redevelopment plan, 
and such levels of maintenance are justified.
    (e) Once the time period for the initial or extended levels of 
maintenance and repair expires, the Secretary concerned will reduce the 
levels of maintenance and repair to levels consistent with Federal 
Government standards for excess and surplus properties as provided in 
the Federal Management Regulations of the GSA, except in the case of 
facilities still being used to perform a DoD mission.



                     Subpart G_Environmental Matters



Sec.  174.15  Indemnification under Section 330 of the National
Defense Authorization Act for Fiscal Year 1993.

    Section 330 of the National Defense Authorization Act for Fiscal 
Year 1993, Pub. L. 102-484, as amended, provides for indemnification of 
transferees of closing Department of Defense properties under 
circumstances specified in that statute. The authority to implement this 
provision of law has been delegated by the Secretary of Defense to the 
General Counsel of the Department of Defense; therefore, this provision 
of law shall only be referred to or recited in any deed, sales 
agreement, bill of sale, lease, license, easement, right-of-way, or 
transfer document for real or personal property after obtaining the 
written concurrence of the Deputy General Counsel (Environment and 
Installations), Office of the General Counsel, Department of Defense.



Sec.  174.16  Real property containing explosive or chemical agent
hazards.

    The DoD Component controlling real property known to contain or 
suspected of containing explosive or chemical agent hazards from past 
DoD military munitions-related or chemical warfare-related activities 
shall, prior to transfer of the property out of Department of Defense 
control, obtain the DoD Explosives Safety Board's approval of measures 
planned to ensure protectiveness from such hazards, in accordance with 
DoD Directive 6055.9E, Explosives Safety Management and the DoD 
Explosives Safety Board.

[[Page 855]]



Sec.  174.17  NEPA.

    At installations subject to this part, NEPA analysis shall comply 
with the promulgated NEPA regulations of the Military Department 
exercising real property accountability for the installation, including 
any requirements relating to responsibility for funding the analysis. 
See 32 CFR parts 651 (for the Army), 775 (for the Navy), and 989 (for 
the Air Force). Nothing in this section shall be interpreted as 
releasing a Military Department from complying with its own NEPA 
regulation.



Sec.  174.18  Historic preservation.

    (a) The transfer, lease, or sale of National Register-eligible 
historic property to a non-Federal entity at installations subject to 
this part may constitute an ``adverse effect'' under the regulations 
implementing the National Historic Preservation Act (36 CFR 
800.5(a)(2)(vii)). One way of resolving this adverse effect is to 
restrict the use that may be made of the property subsequent to its 
transfer out of Federal ownership or control through the imposition of 
legally enforceable restrictions or conditions. The Secretary concerned 
may include such restrictions or conditions (typically a real property 
interest in the form of a restrictive covenant or preservation easement) 
in any deed or lease conveying an interest in historic property to a 
non-Federal entity. Before doing so, the Secretary should first consider 
whether the historic character of the property can be protected 
effectively through planning and zoning actions undertaken by units of 
State or local government; if so, working with such units of State or 
local government to protect the property through these means is 
preferable to encumbering the property with such a covenant or easement.
    (b) Before including such a covenant or easement in a deed or lease, 
the Secretary concerned shall consider--
    (1) Whether the jurisdiction that encompasses the property 
authorizes such a covenant or easement; and
    (2) Whether the Secretary can give or assign to a third party the 
responsibility for monitoring and enforcing such a covenant or easement.



PART 175_INDEMNIFICATION OR DEFENSE, OR PROVIDING NOTICE TO 
THE DEPARTMENT OF DEFENSE, RELATING TO A THIRD	PARTY ENVIRONMENTAL
CLAIM--Table of Contents



Sec.
175.1 Purpose.
175.2 Applicability.
175.3 Definitions.
175.4 Responsibilities.
175.5 Notice to DoD relating to a third-party claim.
175.6 Filing a request for indemnification or defense.

    Authority: 10 U.S.C. 113, 5 U.S.C. 301, section 330 of the National 
Defense Authorization Act for Fiscal Year 1993, Public Law 102-484, 
October 23, 1992, 106 Stat. 2371, as amended, and section 1502(e) of the 
Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001, 
Pub. L. 106-398, October 30, 2000, 1014 Stat. 1654A-350, as amended.

    Source: 83 FR 34475, July 20, 2018, unless otherwise noted.



Sec.  175.1  Purpose.

    This part describes the process for filing a request for 
indemnification or defense, or providing proper notice to DoD, of a 
third-party claim pursuant to section 330 of the National Defense 
Authorization Act for Fiscal Year 1993, Public Law 102-484, October 23, 
1992, 106 Stat. 2371, as amended (hereafter ``section 330''), or section 
1502(e) of the Floyd D. Spence National Defense Authorization Act for 
Fiscal Year 2001, Public Law 106-398, October 30, 2000, 1014 Stat. 
1654A-350, as amended (hereafter ``section 1502(e)''). This process 
identifies the minimum information that a request for indemnification or 
defense or notice to DoD of a third-party claim for indemnification must 
include, where that information must be sent, how to make such a request 
or provide such a notice, the time limits that apply to such a request 
or notice, and other requirements.



Sec.  175.2  Applicability.

    (a) This part applies to--
    (1) The Office of the General Counsel of the Department of Defense 
and the Military Departments.
    (2) Any person or entity making a request for indemnification or 
defense, or providing notice to DoD, of a third-

[[Page 856]]

party claim pursuant to section 330 or section 1502(e).
    (b) In the case of a property that is subject to an earlier 
agreement containing different notification requirements, the 
requirement for notice to the Deputy General Counsel in sections 175.5 
and 175.6 are in addition to those notification requirements.
    (c) Nothing in this part alters the provisions of Sec.  174.15 of 
this title.



Sec.  175.3  Definitions.

    Commercial delivery service. Federal Express or United Parcel 
Service, or other similar service that provides for delivery of packages 
directly from the sender to the recipient for a fee, but excluding the 
United States Postal Service (USPS).
    Deputy General Counsel. The Deputy General Counsel (Environment, 
Energy, and Installations), Department of Defense.
    Received. Actual physical receipt by the intended recipient.
    Request. Any request for indemnification or defense made to the 
Department of Defense (DoD) by a requester pursuant to section 330 or 
section 1502(e).
    Requester. A person or entity making a request pursuant to section 
330 or section 1502(e). When the requester is acting by way of 
subrogation, the requester is subject to the same requirements and 
limitations as though it were the subrogor.
    Section 330. Section 330 of the National Defense Authorization Act 
for Fiscal Year 1993, Public Law 102-484, October 23, 1992, 106 Stat. 
2371, as amended.
    Section 1502(e). Section 1502(e) of the Floyd D. Spence National 
Defense Authorization Act for Fiscal Year 2001, Public Law 106-398, 
October 30, 2000, 114 Stat. 1654A-350. (This provision applies only to 
certain portions of the former Naval Ammunition Support Detachment on 
the island of Vieques, Puerto Rico.)
    Third-party claim. A claim from a person or entity (other than the 
requester) to a requester resulting from a suit, claim, demand or 
action, liability, judgment, cost or other fee, demanding, seeking, or 
otherwise requiring that the requester pay an amount, take an action, or 
incur a liability for alleged personal injury or property damage and 
such payment, action, or liability is eligible for indemnification or 
defense pursuant to section 330 or section 1502(e). A third-party claim 
may consist of a notice, letter, order, compliance advisory, compliance 
agreement, or similar direction from a governmental regulatory authority 
exercising its authority to regulate the release or threatened release 
of any hazardous substance, pollutant or contaminant, or petroleum or 
petroleum derivative if the notice, letter, order, compliance advisory, 
compliance agreement, or similar notification imposes, directs, or 
demands requirements for environmental actions or asserts damages 
related thereto that are eligible for indemnification or defense 
pursuant to section 330 or section 1502(e).



Sec.  175.4  Responsibilities.

    (a) The General Counsel of the Department of Defense has been 
delegated the authorities and responsibilities of the Secretary of 
Defense under section 330 and section 1502(e), with certain limitations 
as to re-delegation.
    (b) The General Counsel has re-delegated the authority and 
responsibility to adjudicate requests for indemnification or defense and 
to process notices to DoD of a third-party claim under section 330 and 
section 1502(e) to the Deputy General Counsel or, when the position of 
Deputy General Counsel is vacant, the acting Deputy General Counsel. The 
authority to acknowledge receipt of a request has been delegated to an 
Associate General Counsel under the Deputy General Counsel.



Sec.  175.5  Notice to DoD relating to a third-party claim.

    (a) Where to file a notice to DoD of a third-party claim. (1) Notice 
to DoD of receipt of a third-party claim, or intent to enter into, agree 
to, settle, or solicit such a claim, must be received by the Deputy 
General Counsel at the following address: Deputy General Counsel, 
Environment, Energy, and Installations, 1600 Defense Pentagon, Room 
3B747, Washington, DC 20301-1600, (703-693-4895) or (703-692-2287).

[[Page 857]]

    (2) Delivering or otherwise filing a notice of a third-party claim 
with any other office or location will not constitute proper notice for 
purposes of this part. Requesters should be aware that all delivery 
services, and particularly that of the USPS, to the Pentagon can be 
significantly delayed for security purposes and they should plan 
accordingly in order to meet any required filing deadlines under this 
part; use of a commercial delivery service may reduce the delay.
    (b) Individual notices. A notice to DoD of a third-party claim must 
be filed separately for each person or entity that is filing the notice. 
Notices may not be filed jointly for a group, a class, or for multiple 
persons or entities.
    (c) Means of filing a notice of a third-party claim. A notice of a 
third-party claim must be submitted in writing by mail through the USPS 
or by a commercial delivery service. While the Deputy General Counsel 
will affirmatively acknowledge receipt of a notice of a third-party 
claim, it is recommended that a requester, whether using the USPS or a 
commercial delivery service, mail its notice by registered or certified 
mail, return receipt requested, or equivalent proof of delivery.
    (d) Information to be included in a notice to DoD of a third-party 
claim. A notice to DoD of a third-party claim must include, at a 
minimum, the following information:
    (1) A complete copy of the third-party claim, or, if not presented 
in writing, a complete summary of the claim, with the names of officers, 
employees, or agents with knowledge of any information that may be 
relevant to the claim or any potential defenses. The third-party claim 
may consist of a summons and complaint or, in the case of a third-party 
claim from a governmental regulatory authority, a notice, letter, order, 
compliance advisory, compliance agreement, or similar notification.
    (2) A complete copy of all pertinent records, including any deed, 
sales agreement, bill of sale, lease, license, easement, right-of-way, 
or transfer document for the facility for which the third-party claim is 
made.
    (3) If the requester is not the first transferee from DoD, a 
complete copy of all intervening deeds, sales agreements, bills of sale, 
leases, licenses, easements, rights-of-way, or other transfer documents 
between the original transfer from DoD and the transfer to the current 
owner. If the requester is a lender who has made a loan to a person or 
entity who owns, controls, or leases the facility for which the request 
for indemnification is made that is secured by said facility, complete 
copies of all promissory notes, mortgages, deeds of trust, assignments, 
or other documents evidencing such a loan by the requester.
    (4) A complete copy of any insurance policies related to such 
facility.
    (5) If the notice to DoD of a third-party claim is being made by a 
representative, agent, or attorney in fact or at law, proof of authority 
to make the notice on behalf of the requester.
    (6) Evidence or proof of any claim, loss, or damage alleged to be 
suffered by the third-party claimant which the requester asserts is 
covered by section 330 or by section 1502(e).
    (7) In the case where a requester intends to enter into, agree to, 
settle, or solicit a third-party claim, a description or copy of the 
proposed claim, settlement, or solicitation, as the case may be.
    (8) To the extent that any environmental response action has been 
taken, the documentation supporting such response action and its costs 
included in the request for indemnification.
    (9) To the extent that any environmental response action has been 
taken, a statement as to whether the remedial action is consistent with 
the National Oil and Hazardous Substances Pollution Contingency Plan 
(part 300 of title 42, Code of Federal Regulations) or other applicable 
regulatory requirements.
    (10) A complete copy of any claims made by the requester to any 
other entity related to the conditions on the property which are the 
subject of the claim, and any responses or defenses thereto or made to 
any third-party claims, including correspondence, litigation filings, 
consultant reports, and other information supporting a claim or defense.

[[Page 858]]

    (e) Entry, inspection, and samples. The requester must provide DoD a 
right of entry at reasonable times to any facility, establishment, 
place, or property under the requester's control which is the subject of 
or associated with the requester's notice of third-party claim and must 
allow DoD to inspect or obtain samples from that facility, 
establishment, place, or property.
    (f) Additional information. The Deputy General Counsel will advise a 
requester in writing of any additional information that must be provided 
to defend against a claim. Failure to provide the additional information 
in a timely manner may result in denial of a request for indemnification 
or defense for lack of information to adjudicate the claim.
    (g) When to file a notice to DoD of a third-party claim. (1) A 
requester must, within 15 days of receiving a third-party claim, file 
with DoD a notice of such claim in accordance with this part. Failure to 
timely file such a notice, if it in any way compromises the ability of 
DoD to defend against such a claim pursuant to section 330(c) or section 
1502(e)(3), will result in denial of any subsequent request for 
indemnification or defense resulting from such a claim. Requesters who 
take action in compliance with any such third-party claim, or any part 
of such claim, without first providing DoD with a notice of such claim 
in accordance with this section do so at their own risk.
    (2) A requester must, at least 30 days prior to the earlier of 
entering into, agreeing to, settling, or soliciting a third-party claim, 
file a notice to DoD of such intent in accordance with this part. 
Failure to file such a notice will compromise the ability of DoD to 
defend against such a claim pursuant to section 330(c) or section 
1502(e)(3) and will result in denial of any subsequent request for 
indemnification or defense resulting from such a claim.
    (3) A requester may, if it believes more immediate notice to DoD is 
desirable or less than all the information required by paragraph (d) of 
this section is immediately available, contact the Deputy General 
Counsel using the phone numbers in paragraph (a)(1) of this section. Any 
such contact does not constitute compliance with the requirements of 
paragraph (g)(1) or (2) of this section unless and until the Deputy 
General Counsel subsequently provides written confirmation that the 
notice constitutes such compliance. Such written confirmation may be 
provided by electronic means.
    (h) No implication from DoD action. Any actions taken by DoD related 
to defending a claim do not constitute a decision by DoD that the 
requester is entitled to indemnification or defense.
    (i) Notice also constituting a request for indemnification or 
defense. Notice of receipt of a third-party claim may also constitute a 
request for indemnification or defense if that notice complies with all 
applicable requirements for a request for indemnification or defense.



Sec.  175.6  Filing a request for indemnification or defense.

    (a) Where to file a request for indemnification or defense. (1) In 
order to notify DoD in accordance with section 330(b)(1) or section 
1502(e)(2)(A), a request for indemnification or defense pursuant to 
section 330 or section 1502(e) must be received by the Deputy General 
Counsel at the following address: Deputy General Counsel, Environment, 
Energy, and Installations, 1600 Defense Pentagon, Room 3B747, 
Washington, DC 20301-1600, (703-693-4895) or (703-692-2287).
    (2) Delivering or otherwise filing a request for indemnification or 
defense with any other office or location will not constitute proper 
notice of a request for purposes of section 330(b)(1) or section 
1502(e)(2)(A). Requesters should be aware that all delivery services, 
and particularly that of the USPS, to the Pentagon can be significantly 
delayed for security purposes and they should plan accordingly in order 
to meet any required filing deadlines under this part; use of a 
commercial delivery service may reduce the delay.
    (b) When to file a request for indemnification or defense. A request 
for indemnification must be received by the Deputy General Counsel 
within two years after the claim giving rise to the request accrues. A 
request for defense must be received by the Deputy General Counsel in 
sufficient time to allow

[[Page 859]]

the United States to provide the requested defense.
    (c) Means of filing a request for indemnification or defense. A 
request for indemnification or defense must be submitted in writing by 
mail through the USPS or by a commercial delivery service. While the 
Deputy General Counsel will affirmatively acknowledge receipt of a 
request for indemnification or defense, it is recommended that a 
requester, whether using the USPS or a commercial delivery service, mail 
its request by registered or certified mail, return receipt requested, 
or equivalent proof of delivery.
    (d) Individual requests. A request for indemnification or defense 
must be filed separately for each person or entity that is making the 
request. Requests may not be filed jointly for a group, a class, or for 
multiple persons or entities.
    (e) Information to be included in a request for indemnification or 
defense. A request for indemnification or defense must include, at a 
minimum, the following information:
    (1) A complete copy of the third-party claim, or, if not presented 
in writing, a complete summary of the claim, with the names of officers, 
employees, or agents with knowledge of any information that may be 
relevant to the claim or any potential defenses.
    (2) A complete copy of all pertinent records, including any deed, 
sales agreement, bill of sale, lease, license, easement, right-of-way, 
or transfer document for the facility for which the request for 
indemnification or defense is made.
    (3) If the requester is not the first transferee from DoD, a 
complete copy of all intervening deeds, sales agreements, bills of sale, 
leases, licenses, easements, rights-of-way, or other transfer documents 
between the original transfer from DoD and the transfer to the current 
owner. If the requester is a lender who has made a loan to a person or 
entity who owns, controls, or leases the facility for which the request 
for indemnification is made that is secured by said facility, complete 
copies of all promissory notes, mortgages, deeds of trust, assignments, 
or other documents evidencing such a loan by the requester.
    (4) A complete copy of any insurance policies related to such 
facility.
    (5) If the request for indemnification or defense is being made by a 
representative, agent, or attorney in fact or at law, proof of authority 
to make the request on behalf of the requester.
    (6) Evidence or proof of any claim, loss, or damage covered by 
section 330 or by section 1502(e).
    (7) In the case of a request for defense, a copy of the documents, 
such as a summons and complaint, or enforcement order, representing the 
matter against which the United States is being asked to defend.
    (8) To the extent that any environmental response action has been 
taken, the documentation supporting such response action and its costs 
included in the request for indemnification.
    (9) To the extent that any environmental response action has been 
taken, a statement as to whether the remedial action is consistent with 
the National Oil and Hazardous Substances Pollution Contingency Plan 
(part 300 of title 42, Code of Federal Regulations) or other applicable 
regulatory requirements.
    (10) A complete copy of any claims made by the requester to any 
other entity related to the conditions on the property which are the 
subject of the claim, and any responses or defenses thereto or made to 
any third-party claims, including correspondence, litigation filings, 
consultant reports, and other information supporting a claim or defense.
    (f) Entry, inspection, and samples. The requester must provide DoD a 
right of entry at reasonable times to any facility, establishment, 
place, or property under the requester's control which is the subject of 
or associated with the requester's request for indemnification or 
defense and must allow DoD to inspect or obtain samples from that 
facility, establishment, place, or property.
    (g) Additional information. The Deputy General Counsel will advise a 
requester in writing of any additional information that must be provided 
to adjudicate the request for indemnification or defense. Failure to 
provide the additional information in a timely manner may result in 
denial of the request for indemnification or defense.

[[Page 860]]

    (h) Adjudication. The Deputy General Counsel will adjudicate a 
request for indemnification or defense and provide the requester with 
DoD's determination of the validity of the request. Such determination 
will be in writing and sent to the requester by certified or registered 
mail.
    (i) Reconsideration. Any such determination will provide that the 
requester may ask for reconsideration of the determination. Such 
reconsideration shall be limited to an assertion by the requester of 
substantial new evidence or errors in calculation. The requester may 
seek such reconsideration by filing a request to that effect. A request 
for reconsideration must be received by the Deputy General Counsel 
within 30 days after receipt of the determination by the requester. Such 
a request must be sent to the same address as provided for in paragraph 
(a)(1) of this section and provide the substantial new evidence or 
identify the errors in calculation. Such reconsideration will not extend 
to determinations concerning the law, except as it may have been applied 
to the facts. A request for reconsideration will be acted on within 30 
days from the time it is received. If a request for reconsideration is 
made, the six month period referred to in section 330(b)(1) and section 
1502(e)(2)(A) will commence from the date the requester receives DoD's 
denial of the request for reconsideration.
    (j) Finality of adjudication. An adjudication of a request for 
indemnification constitutes final administrative disposition of such a 
request, except in the case of a request for reconsideration under 
paragraph (i) of this section, in which case a denial of the request for 
reconsideration constitutes final administrative disposition of the 
request.



PART 176_REVITALIZING BASE CLOSURE COMMUNITIES AND COMMUNITY ASSISTANCE
_COMMUNITY REDEVELOPMENT AND HOMELESS ASSISTANCE--Table of Contents



Sec.
176.1 Purpose.
176.5 Definitions.
176.10 Applicability.
176.15 Waivers and extensions of deadlines.
176.20 Overview of the process.
176.25 HUD's negotiations and consultations with the LRA.
176.30 LRA application.
176.35 HUD's review of the application.
176.40 Adverse determinations.
176.45 Disposal of buildings and property.

    Authority: 10 U.S.C. 2687 note.

    Source: 62 FR 35346, July 1, 1997, unless otherwise noted.



Sec.  176.1  Purpose.

    This part implements the Base Closure Community Redevelopment and 
Homeless Assistance Act, as amended (10 U.S.C. 2687 note), which 
instituted a new community-based process for addressing the needs of the 
homeless at base closure and realignment sites. In this process, Local 
Redevelopment Authorities (LRAs) identify interest from homeless 
providers in installation property and develop a redevelopment plan for 
the installation that balances the economic redevelopment and other 
development needs of the communities in the vicinity of the installation 
with the needs of the homeless in those communities. The Department of 
Housing and Urban Development (HUD) reviews the LRA's plan to see that 
an appropriate balance is achieved. This part also implements the 
process for identifying interest from State and local entities for 
property under a public benefit transfer. The LRA is responsible for 
concurrently identifying interest from homeless providers and State and 
local entities interested in property under a public benefit transfer.



Sec.  176.5  Definitions.

    As used in this part:
    CERCLA. Comprehensive Environmental Response, Compensation, and 
Liability Act (42 U.S.C. 9601 et seq.).
    Communities in the vicinity of the installation. The communities 
that constitute the political jurisdictions (other than the State in 
which the installation is located) that comprise the LRA for the 
installation. If no LRA is formed at the local level, and the State is 
serving in that capacity, the communities in the vicinity of the 
installation are deemed to be those political jurisdiction(s) (other 
than the State) in which the installation is located.
    Continuum of care system.

[[Page 861]]

    (1) A comprehensive homeless assistance system that includes:
    (i) A system of outreach and assessment for determining the needs 
and condition of an individual or family who is homeless, or whether 
assistance is necessary to prevent an individual or family from becoming 
homeless;
    (ii) Emergency shelters with appropriate supportive services to help 
ensure that homeless individuals and families receive adequate emergency 
shelter and referral to necessary service providers or housing finders;
    (iii) Transitional housing with appropriate supportive services to 
help those homeless individuals and families who are not prepared to 
make the transition to independent living;
    (iv) Housing with or without supportive services that has no 
established limitation on the amount of time of residence to help meet 
long-term needs of homeless individuals and families; and,
    (v) Any other activity that clearly meets an identified need of the 
homeless and fills a gap in the continuum of care.
    (2) Supportive services are services that enable homeless persons 
and families to move through the continuum of care toward independent 
living. These services include, but are not limited to, case management, 
housing counseling, job training and placement, primary health care, 
mental health services, substance abuse treatment, child care, 
transportation, emergency food and clothing family violence services, 
education services, moving services, assistance in obtaining 
entitlements, and referral to veterans services and legal services.
    Consolidated Plan. The plan prepared in accordance with the 
requirements of 24 CFR part 91.
    Day. One calendar day including weekends and holidays.
    DoD. Department of Defense.
    HHS. Department of Health and Human Services.
    Homeless person.
    (1) An individual or family who lacks a fixed, regular, and adequate 
nighttime residence; and
    (2) An individual or family who has a primary nighttime residence 
that is:
    (i) A supervised publicly or privately operated shelter designed to 
provide temporary living accommodations (including welfare hotels, 
congregate shelters and transitional housing for the mentally ill);
    (ii) An institution that provides a temporary residence for 
individuals intended to be institutionalized; or,
    (iii) A public or private place not designed for, or ordinarily used 
as, a regular sleeping accommodation for human beings.
    (3) This term does not include any individual imprisoned or 
otherwise detained under an Act of the Congress or a State law.
    HUD. Department of Housing and Urban Development.
    Installation. A base, camp, post, station, yard, center, homeport 
facility for any ship or other activity under the jurisdiction of DoD, 
including any leased facility, that is approved for closure or 
realignment under the Base Closure and Realignment Act of 1988 (Pub. L. 
100-526). as amended, or the Defense Base Closure and Realignment Act of 
1990 (Pub. L. 101-510), as amended (both at 10 U.S.C. 2687, note).
    Local redevelopment authority (LRA). Any authority or 
instrumentality established by State or local government and recognized 
by the Secretary of Defense, through the Office of Economic Adjustment, 
as the entity responsible for developing the redevelopment plan with 
respect to the installation or for directing implementation of the plan.
    NEPA. National Environmental Policy Act of 1969 (42 U.S.C. 4320).
    OEA. Office of Economic Adjustment, Department of Defense.
    Private nonprofit organization. An organization, no part of the net 
earnings of which inures to the benefit of any member, founder, 
contributor, or individual; that has a voluntary board; that has an 
accounting system or has designated an entity that will maintain a 
functioning accounting system for the organization in accordance with 
generally accepted accounting procedures; and that practices 
nondiscrimination in the provision of assistance.

[[Page 862]]

    Public benefit transfer. The transfer of surplus military property 
for a specified public purpose at up to a 100-percent discount in 
accordance with 40 U.S.C. 471 et seq. or 49 U.S.C. 47151-47153.
    Redevelopment plan. A plan that is agreed by the LRA with respect to 
the installation and provides for the reuse or redevelopment of the real 
property and personal property of the installation that is available for 
such reuse and redevelopment as a result of the closure of the 
installation.
    Representative(s) of the homeless. A State or local government 
agency or private nonprofit organization, including a homeless 
assistance planning board, that provides or proposes to provide services 
to the homeless.
    Substantially equivalent. Property that is functionally suitable to 
substitute for property referred to in an approved Title V application. 
For example, if the representative of the homeless had an approved Title 
V application for a building that would accommodate 100 homeless persons 
in an emergency shelter, the replacement facility would also have to 
accommodate 100 at a comparable cost for renovation.
    Substantially equivalent funding. Sufficient funding to acquire a 
substantially equivalent facility.
    Surplus property. Any excess property not required for the needs and 
the discharge of the responsibilities of all Federal Agencies. Authority 
to make this determination, after screening with all Federal Agencies, 
rests with the Military Departments.
    Title V. Title V of the Steward B. McKinney Homeless Assistance Act 
of 1987 (42 U.S.C. 11411) as amended by the National Defense 
Authorization Act for Fiscal Year 1994 (Pub. L. 103-160).
    Urban county. A county within a metropolitan area as defined at 24 
CFR 570.3.



Sec.  176.10  Applicability.

    (a) General. This part applies to all installations that are 
approved for closure/realignment by the President and Congress under 
Pub. L. 101-510 after October 25, 1994.
    (b) Request for inclusion under this process. This part also applies 
to installations that were approved for closure/realignment under either 
Public Law 100-526 or Public Law 101-510 prior to October 25, 1994 and 
for which an LRA submitted a request for inclusion under this part to 
DoD by December 24, 1994. A list of such requests was published in the 
Federal Register on May 30, 1995 (60 FR 28089).
    (1) For installations with Title V applications pending but not 
approved before October 25, 1994, the LRA shall consider and 
specifically address any application for use of buildings and property 
to assist the homeless that were received by HHS prior to October 25, 
1994, and were spending with the Secretary of HHS on that date. These 
pending requests shall be addressed in the LRA's homeless assistance 
submission.
    (2) For installations with Title V applications approved before 
October 25, 1994 where there is an approved Title V application, but 
property has not been assigned or otherwise disposed of by the Military 
Department, the LRA must ensure that its homeless assistance submission 
provides the Title V applicant with:
    (i) The property requested;
    (ii) Properties, on or off the installation, that are substantially 
equivalent to those requested;
    (iii) Sufficient funding to acquire such substantially equivalent 
properties;
    (iv) Services and activities that meet the needs identified in the 
application; or,
    (v) A combination of the properties, funding, and services and 
activities described in Sec.  176.10(b)(2)(i)-(iv) of this part.
    (c) Revised Title V process. All other installations approved for 
closure or realignment under either Public Law 100-526 or Public Law 
101-510 prior to October 25, 1994, for which there was no request for 
consideration under this part, are covered by the process stipulated 
under Title V. Buildings or property that were transferred or leased for 
homeless use under Title V prior to October 25, 1994, may not be 
reconsidered under this part.

[[Page 863]]



Sec.  176.15  Waivers and extensions of deadlines.

    (a) After consultation with the LRA and HUD, and upon a finding that 
it is in the interest of the communities affected by the closure/
realignment of the installation, DoD, through the Director of the Office 
of Economic Adjustment, may extend or postpone any deadline contained in 
this part.
    (b) Upon completion of a determination and finding of good cause, 
and except for deadlines and actions required on the part of DoD, HUD 
may waive any provision of Sec. Sec.  176.20 through 176.45 of this part 
in any particular case, subject only to statutory limitations.



Sec.  176.20  Overview of the process.

    (a) Recognition of the LRA. As soon as practicable after the list of 
installations recommended for closure or realignment is approved, DoD, 
through OEA, will recognize an LRA for the installation. Upon 
recognition, OEA shall publish the name, address, and point of contact 
for the LRA in the Federal Register and in a newspaper of general 
circulation in the communities in the vicinity of the installation.
    (b) Responsibilities of the Military Department. The Military 
Department shall make installation properties available to other DoD 
components and Federal agencies in accordance with the procedures set 
out at 32 CFR part 174. The Military Department will keep the LRA 
informed of other Federal interest in the property during this process. 
Upon completion of this process the Military Department will notify HUD 
and either the LRA or the Chief Executive Officer of the State, as 
appropriate, and publish a list of surplus property on the installation 
that will be available for reuse in the Federal Register and a newspaper 
of general circulation in the communities in the vicinity of the 
installation.
    (c) Responsibilities of the LRA. The LRA should begin to conduct 
outreach efforts with respect to the installation as soon as is 
practicable after the date of approval of closure/realignment of the 
installation. The local reuse planning process must begin no later than 
the date of the Military Department's Federal Register publication of 
available property described at Sec.  176.20(b). For those installations 
that began the process described in this part prior to August 17, 1995, 
HUD will, on a case-by-case basis, determine whether the statutory 
requirements have been fulfilled and whether any additional requirements 
listed in this part should be required. Upon the Federal Register 
publication described in Sec.  176.20(b), the LRA shall:
    (1) Publish, within 30 days, in a newspaper of general circulation 
in the communities in the vicinity of the installation, the time period 
during which the LRA will receive notices of interest from State and 
local governments, representatives of the homeless, and other interested 
parties. This publication shall include the name, address, telephone 
number and the point of contact for the LRA who can provide information 
on the prescribed form and contents of the notices of interest. The LRA 
shall notify DoD of the deadline specified for receipt of notices of 
interest. LRAs are strongly encouraged to make this publication as soon 
as possible within the permissible 30 day period in order to expedite 
the closure process.
    (i) In addition, the LRA has the option to conduct an informal 
solicitation of notices of interest from public and non-profit entities 
interested in obtaining property via a public benefit transfer other 
than a homeless assistance conveyance under either 40 U.S.C. 471 et. 
seq. or 49 U.S.C. 47151-47153. As part of such a solicitation, the LRA 
may wish to request that interested entities submit a description of the 
proposed use to the LRA and the sponsoring Federal agency.
    (ii) For all installations selected for closure or realignment prior 
to 1995 that elected to proceed under Public Law 103-421, the LRA shall 
accept notices of interest for not less than 30 days.
    (iii) For installations selected for closure or realignment in 1995 
or thereafter, notices of interest shall be accepted for a minimum of 90 
days and not more than 180 days after the LRA's publication under Sec.  
176.20(c)(1).
    (2) Prescribe the form and contents of notices of interest.
    (i) The LRA may not release to the public any information regarding 
the

[[Page 864]]

capacity of the representative of the homeless to carry out its program, 
a description of the organization, or its financial plan for 
implementing the program, without the consent of the representative of 
the homeless concerned, unless such release is authorized under Federal 
law and under the law of the State and communities in which the 
installation concerned is located. The identity of the representative of 
the homeless may be disclosed.
    (ii) The notices of interest from representatives of the homeless 
must include:
    (A) A description of the homeless assistance program proposed, 
including the purposes to which the property or facility will be put, 
which may include uses such as supportive services, job and skills 
training, employment programs, shelters, transitional housing or housing 
with no established limitation on the amount of time of residence, food 
and clothing banks, treatment facilities, or any other activity which 
clearly meets an identified need of the homeless and fills a gap in the 
continuum of care;
    (B) A description of the need for the program;
    (C) A description of the extent to which the program is or will be 
coordinated with other homeless assistance programs in the communities 
in the vicinity of the installation;
    (D) Information about the physical requirements necessary to carry 
out the program including a description of the buildings and property at 
the installation that are necessary to carry out the program;
    (E) A description of the financial plan, the organization, and the 
organizational capacity of the representative of the homeless to carry 
out the program; and,
    (F) An assessment of the time required to start carrying out the 
program.
    (iii) The notices of interest from entities other than 
representatives of the homeless should specify the name of the entity 
and specific interest in property or facilities along with a description 
of the planned use.
    (3) In addition to the notice required under Sec.  176.20(c)(1), 
undertake outreach efforts to representatives of the homeless by 
contacting local government officials and other persons or entities that 
may be interested in assisting the homeless within the vicinity of the 
installation.
    (i) The LRA may invite persons and organizations identified on the 
HUD list of representatives of the homeless and any other 
representatives of the homeless with which the LRA is familiar, 
operating in the vicinity of the installation, to the workshop described 
in Sec.  176.20(c)(3)(ii).
    (ii) The LRA, in coordination with the Military Department and HUD, 
shall conduct at least one workshop where representatives of the 
homeless have an opportunity to:
    (A) Learn about the closure/realignment and disposal process;
    (B) Tour the buildings and properties available either on or off the 
installation;
    (C) Learn about the LRA's process and schedule for receiving notices 
of interest as guided by Sec.  176.20(c)(2); and,
    (D) Learn about any known land use constraints affecting the 
available property and buildings.
    (iii) The LRA should meet with representatives of the homeless that 
express interest in discussing possible uses for these properties to 
alleviate gaps in the continuum of care.
    (4) Consider various properties in response to the notices of 
interest. The LRA may consider property that is located off the 
installation.
    (5) Develop an application, including the redevelopment plan and 
homeless assistance submission, explaining how the LRA proposes to 
address the needs of the homeless. This application shall consider the 
notices of interest received from State and local governments, 
representatives of the homeless, and other interested parties. This 
shall include, but not be limited to, entities eligible for public 
benefit transfers under either 40 U.S.C. 471 et. seq., or 49 U.S.C. 
47151-47153; representatives of the homeless; commercial, industrial, 
and residential development interests; and other interests. From the 
deadline date for receipt of notices of interest described at Sec.  
176.20(c)(1), the LRA shall have 270 days to complete and submit the LRA 
application to the appropriate

[[Page 865]]

Military Department and HUD. The application requirements are described 
at Sec.  176.30.
    (6) Make the draft application available to the public for review 
and comment periodically during the process of developing the 
application. The LRA must conduct at least one public hearing on the 
application prior to its submission to HUD and the appropriate Military 
Department. A summary of the public comments received during the process 
of developing the application shall be included in the application when 
it is submitted.
    (d) Public benefit transfer screening. The LRA should, while 
conducting its outreach efforts, work with the Federal agencies that 
sponsor public benefit transfers under either 40 U.S.C. 471 et. seq. or 
49 U.S.C. 47151-47153. Those agencies can provide a list of parties in 
the vicinity of the installation that might be interested in and 
eligible for public benefit transfers. The LRA should make a reasonable 
effort to inform such parties of the availability of the property and 
incorporate their interests within the planning process. Actual 
recipients of property are to be determined by sponsoring Federal 
agency. The Military Departments shall notify sponsoring Federal 
agencies about property that is available based on the community 
redevelopment plan and keep the LRA apprised of any expressions of 
interest. Such expressions of interest are not required to be 
incorporated into the redevelopment plan, but must be considered.

[62 FR 35346, July 1, 1997, as amended at 71 FR 9927, Feb. 28, 2006]



Sec.  176.25  HUD's negotiations and consultations with the LRA.

    HUD may negotiate and consult with the LRA before and during the 
course of preparation of the LRA's application and during HUD's review 
thereof with a view toward avoiding any preliminary determination that 
the application does not meet any requirement of this part. LRAs are 
encouraged to contact HUD for a list of persons and organizations that 
are representatives of the homeless operating in the vicinity of the 
installation.



Sec.  176.30  LRA application.

    (a) Redevelopment plan. A copy of the redevelopment plan shall be 
part of the application.
    (b) Homeless assistance submission. This component of the 
application shall include the following:
    (1) Information about homelessness in the communities in the 
vicinity of the installation.
    (i) A list of all the political jurisdictions which comprise the 
LRA.
    (ii) A description of the unmet need in the continuum of care system 
within each political jurisdiction, which should include information 
about any gaps that exist in the continuum of care for particular 
homeless subpopulations. The source for this information shall depend 
upon the size and nature of the political jurisdictions(s) that comprise 
the LRA. LRAs representing:
    (A) Political jurisdictions that are required to submit a 
Consolidated Plan shall include a copy of their Homeless and Special 
Needs Population Table (Table 1), Priority Homeless Needs Assessment 
Table (Table 2), and narrative description thereof from that 
Consolidated Plan, including the inventory of facilities and services 
that assist the homeless in the jurisdiction.
    (B) Political jurisdictions that are part of an urban county that is 
required to submit a Consolidated Plan shall include a copy of their 
Homeless and Special Needs Population Table (Table 1), Priority Homeless 
Needs Assessment Table (Table 2), and narrative description thereof from 
that Consolidated Plan, including the inventory of facilities and 
services that assist the homeless in the jurisdiction. In addition, the 
LRA shall explain what portion of the homeless population and 
subpopulations described in the Consolidated Plan are attributable to 
the political jurisdiction it represents.
    (C) A political jurisdiction not described by Sec.  
176.30(b)(1)(ii)(A) or Sec.  176.30(b)(1)(ii)(B) shall submit a 
narrative description of what it perceives to be the homeless population 
within the jurisdiction and a brief inventory of the facilities and 
services that assist homeless persons and families within the 
jurisdiction. LRAs that represent these jurisdictions are not required 
to

[[Page 866]]

conduct surveys of the homeless population.
    (2) Notices of interest proposing assistance to homeless persons 
and/or families.
    (i) A description of the proposed activities to be carried out on or 
off the installation and a discussion of how these activities meet a 
portion or all of the needs of the homeless by addressing the gaps in 
the continuum of care. The activities need not be limited to expressions 
of interest in property, but may also include discussions of how 
economic redevelopment may benefit the homeless;
    (ii) A copy of each notice of interest from representatives of the 
homeless for use of buildings and property and a description of the 
manner in which the LRA's application addresses the need expressed in 
each notice of interest. If the LRA determines that a particular notice 
of interest should not be awarded property, an explanation of why the 
LRA determined not to support that notice of interest, the reasons for 
which may include the impact of the program contained in the notice of 
interest on the community as described in Sec.  176.30(b)(2)(iii); and,
    (iii) A description of the impact that the implemented redevelopment 
plan will have on the community. This shall include information on how 
the LRA's redevelopment plan might impact the character of existing 
neighborhoods adjacent to the properties proposed to be used to assist 
the homeless and should discuss alternative plans. Impact on schools, 
social services, transportation, infrastructure, and concentration of 
minorities and/or low income persons shall also be discussed.
    (3) Legally binding agreements for buildings, property, funding, 
and/or services.
    (i) A copy of the legally binding agreements that the LRA proposes 
to enter into with the representative(s) of the homeless selected by the 
LRA to implement homeless programs that fill gaps in the existing 
continuum of care. The legally binding agreements shall provide for a 
process for negotiating alternative arrangements in the event that an 
environmental analysis conducted under Sec.  176.45(b) indicates that 
any property identified for transfer in the agreement is not suitable 
for the intended purpose. Where the balance determined in accordance 
with Sec.  176.30(b)(4) provides for the use of installation property as 
a homeless assistance facility, legally binding agreements must provide 
for the reversion or transfer, either to the LRA or to another entity or 
entities, of the buildings and property in the event they cease to be 
used for the homeless. In cases where the balance proposed by the LRA 
does not include the use of buildings or property on the installation, 
the legally binding agreements need not be tied to the use of specific 
real property and need not include a reverter clause. Legally binding 
agreements shall be accompanied by a legal opinion of the chief legal 
advisor of the LRA or political jurisdiction or jurisdictions which will 
be executing the legally binding agreements that the legally binding 
agreements, when executed, will constitute legal, valid, binding, and 
enforceable obligations on the parties thereto;
    (ii) A description of how buildings, property, funding, and/or 
services either on or off the installation will be used to fill some of 
the gaps in the current continuum of care system and an explanation of 
the suitability of the buildings and property for that use; and,
    (iii) Information on the availability of general services such as 
transportation, police, and fire protection, and a discussion of 
infrastructure such as water, sewer, and electricity in the vicinity of 
the proposed homeless activity at the installation.
    (4) An assessment of the balance with economic and other development 
needs.
    (i) An assessment of the manner in which the application balances 
the expressed needs of the homeless and the needs of the communities 
comprising the LRA for economic redevelopment and other development; and
    (ii) An explanation of how the LRA's application is consistent with 
the appropriate Consolidated Plan(s) or any other existing housing, 
social service, community, economic, or other development plans adopted 
by the jurisdictions in the vicinity of the installation.

[[Page 867]]

    (5) A description of the outreach undertaken by the LRA. The LRA 
shall explain how the outreach requirements described at Sec.  
176.20(c)(1) and Sec.  176.20(c)(3) have been fulfilled. This 
explanation shall include a list of the representatives of the homeless 
the LRA contacted during the outreach process.
    (c) Public comments. The LRA application shall include the materials 
described at Sec.  176.20(c)(6). These materials shall be prefaced with 
an overview of the citizen participation process observed in preparing 
the application.



Sec.  176.35  HUD's review of the application.

    (a) Timing. HUD shall complete a review of each application no later 
than 60 days after its receipt of a completed application.
    (b) Standards of review. The purpose of the review is to determine 
whether the application is complete and, with respect to the expressed 
interest and requests of representatives of the homeless, whether the 
application:
    (1) Need. Takes into consideration the size and nature of the 
homeless population in the communities in the vicinity of the 
installation, the availability of existing services in such communities 
to meet the needs of the homeless in such communities, and the 
suitability of the buildings and property covered by the application for 
use and needs of the homeless in such communities. HUD will take into 
consideration the size and nature of the installation in reviewing the 
needs of the homeless population in the communities in the vicinity of 
the installation.
    (2) Impact of notices of interest. Takes into consideration any 
economic impact of the homeless assistance under the plan on the 
communities in the vicinity of the installation, including:
    (i) Whether the plan is feasible in light of demands that would be 
placed on available social services, police and fire protection, and 
infrastructure in the community; and,
    (ii) Whether the selected notices of interest are consistent with 
the Consolidated Plan(s) of any other existing housing, social service, 
community economic, or other development plans adopted by the political 
jurisdictions in the vicinity of the installation.
    (3) Legally binding agreements. Specifies the manner in which the 
buildings, property, funding, and/or services on or off the installation 
will be made available for homeless assistance purposes. HUD will review 
each legally binding agreement to verify that:
    (i) They include all the documents legally required to complete the 
transactions necessary to realize the homeless use(s) described in the 
application;
    (ii) They include all appropriate terms and conditions;
    (iii) They address the full range of contingencies including those 
described at Sec.  176.30(b)(3)(i);
    (iv) They stipulate that the buildings, property, funding, and/or 
services will be made available to the representatives of the homeless 
in a timely fashion; and,
    (v) They are accompanied by a legal opinion of the chief legal 
advisor of the LRA or political jurisdiction or jurisdictions which will 
be executing the legally binding agreements that the legally binding 
agreements will, when executed, constitute legal, valid, binding, and 
enforceable obligations on the parties thereto.
    (4) Balance. Balances in an appropriate manner a portion or all of 
the needs of the communities in the vicinity or the installation for 
economic redevelopment and other development with the needs of the 
homeless in such communities.
    (5) Outreach. Was developed in consultation with representatives of 
the homeless and the homeless assistance planning boards, if any, in the 
communities in the vicinity of the installation and whether the outreach 
requirements described at Sec.  176.20(c)(1) and Sec.  176.20(c)(3) have 
been fulfilled by the LRA.
    (c) Notice of determination. (1) HUD shall, no later than the 60th 
day after its receipt of the application, unless such deadline is 
extended pursuant to Sec.  176.15(a), send written notification

[[Page 868]]

both to DoD and the LRA of its preliminary determination that the 
application meets or fails to meet the requirements of Sec.  176.35(b). 
If the application fails to meet the requirements, HUD will send the 
LRA:
    (i) A summary of the deficiencies in the application;
    (ii) An explanation of the determination; and,
    (iii) A statement of how the LRA must address the determinations.
    (2) In the event that no application is submitted and no extension 
is requested as of the deadline specified in Sec.  176.20(c)(5), and the 
State does not accept within 30 days a DoD written request to become 
recognized as the LRA, the absence of such application will trigger an 
adverse determination by HUD effective on the date of the lapsed 
deadline. Under these conditions, HUD will follow the process described 
at Sec.  176.40.
    (d) Opportunity to cure. (1) The LRA shall have 90 days from its 
receipt of the notice of preliminary determination under Sec.  
176.35(c)(1) within which to submit to HUD and DoD a revised application 
which addresses the determinations listed in the notice. Failure to 
submit a revised application shall result in a final determination, 
effective 90 days from the LRA's receipt of the preliminary 
determination, that the redevelopment plan fails to meet the 
requirements of Sec.  176.35(b).
    (2) HUD shall, within 30 days of its receipt of the LRA's 
resubmission send written notification of its final determination of 
whether the application meets the requirements of Sec.  176.35(b) to 
both DOD and the LRA.



Sec.  176.40  Adverse determinations.

    (a) Review and consultation. If the resubmission fails to meet the 
requirements of Sec.  176.35(b) or if no resubmission is received, HUD 
will review the original application, including the notices of interest 
submitted by representatives of the homeless. In addition, in such 
instances or when no original application has been submitted, HUD:
    (1) Shall consult with the representatives of the homeless, if any, 
for purposes of evaluation the continuing interest of such 
representatives in the use of buildings or property at the installation 
to assist the homeless;
    (2) May consult with the applicable Military Department regarding 
the suitability of the buildings and property at the installation for 
use to assist the homeless; and,
    (3) May consult with representatives of the homeless and other 
parties as necessary.
    (b) Notice of decision. (1) Within 90 days of receipt of an LRA's 
revised application which HUD determines does not meet the requirements 
of Sec.  176.35(b), HUD shall, based upon its reviews and consultations 
under Sec.  176.40(a):
    (i) Notify DoD and the LRA of the buildings and property at the 
installation that HUD determines are suitable for use to assist the 
homeless, and;
    (ii) Notify DoD and the LRA of the extent to which the revised 
redevelopment plan meets the criteria set forth in Sec.  176.35(b).
    (2) In the event that an LRA does not submit a revised redevelopment 
plan under Sec.  176.35(d), HUD shall, based upon its reviews and 
consultations under Sec.  176.40(a), notify DoD and the LRA of the 
buildings and property at the installation that HUD determines are 
suitable for use to assist the homeless, either
    (i) Within 190 days after HUD sends its notice of preliminary 
adverse determination under Sec.  176.35(c)(1), if an LRA has not 
submitted a revised redevelopment plan; or
    (ii) Within 390 days after the Military Department's Federal 
Register publication of available property under Sec.  176.20(b), if no 
redevelopment plan has been received and no extension has been approved.



Sec.  176.45  Disposal of buildings and property.

    (a) Puglic benefit transfer screening. Not later than the LRA's 
submission of its redevelopment plan to DoD and HUD, the Military 
Development will conduct an official public benefit transfer screening 
in accordance with the Federal Property Management Regulations (41 CFR 
101-47.303-2) based upon the uses identified in the redevelopment plan. 
Federal sponsoring agencies shall notify eligible applicants

[[Page 869]]

that any request for property must be consistent with the uses 
identified in the redevelopment plan. At the request of the LRA, the 
Military Department may conduct the official State and local public 
benefit screening at any time after the publication of available 
property described at Sec.  176.20(b).
    (b) Environmental analysis. Prior to disposal of any real property, 
the Military Department shall, consistent with NEPA and section 2905 of 
the Defense Base Closure and Realignment Act of 1990, as amended (10 
U.S.C. 2687 note), complete an environmental impact analysis of all 
reasonable disposal alternatives. The Military Department shall consult 
with the LRA throughout the environmental impact analysis process to 
ensure both that the LRA is provided the most current environmental 
information available concerning the installation, and that the Military 
Department receives the most current information available concerning 
the LRA's redevelopment plans for the installation.
    (c) Disposal. Upon receipt of a notice of approval of an application 
from HUD under Sec.  176.35(c)(1) or Sec.  176.35(d)(2), DoD shall 
dispose of buildings and property in accordance with the record of 
decision or other decision document prepared under Sec.  176.45(b). 
Disposal of buildings and property to be used as homeless assistance 
facilities shall be to either the LRA or directly to the 
representative(s) of the homeless and shall be without consideration. 
Upon receipt of a notice from HUD under Sec.  176.40(b), DoD will 
dispose of the buildings and property at the installation in 
consultation with HUD and the LRA.
    (d) LRA's responsibility. The LRA shall be responsible for the 
implementation of and compliance with legally binding agreements under 
the application.
    (e) Reversions to the LRA. If a building or property reverts to the 
LRA under a legally binding agreement under the application, the LRA 
shall take appropriate actions to secure, to the maximum extent 
practicable, the utilization of the building or property by other 
homeless representatives to assist the homeless. An LRA may not be 
required to utilize the building or property to assist the homeless.



PART 179_MUNITIONS RESPONSE SITE PRIORITIZATION PROTOCOL (MRSPP)-
-Table of Contents



Sec.
179.1 Purpose.
179.2 Applicability and scope.
179.3 Definitions.
179.4 Policy.
179.5 Responsibilities.
179.6 Procedures.
179.7 Sequencing.

Appendix A to Part 179--Tables of the Munitions Response Site 
          Prioritization Protocol (MRSPP).

    Authority: 10 U.S.C. 2710 et seq.

    Source: 70 FR 58028, Oct. 5, 2005, unless otherwise noted.



Sec.  179.1  Purpose.

    The Department of Defense (the Department) is adopting this 
Munitions Response Site Prioritization Protocol (MRSPP) (hereinafter 
referred to as the ``rule'') under the authority of 10 U.S.C. 2710(b). 
Provisions of 10 U.S.C. 2710(b) require that the Department assign to 
each defense site in the inventory required by 10 U.S.C. 2710(a) a 
relative priority for response activities based on the overall 
conditions at each location and taking into consideration various 
factors related to safety and environmental hazards.



Sec.  179.2  Applicability and scope.

    (a) This part applies to the Office of the Secretary of Defense, the 
Military Departments, the Defense Agencies and the Department Field 
Activities, and any other Department organizational entity or 
instrumentality established to perform a government function (hereafter 
referred to collectively as the ``Components'').
    (b) The rule in this part shall be applied at all locations:
    (1) That are, or were, owned by, leased to, or otherwise possessed 
or used by the Department, and
    (2) That are known to, or suspected of, containing unexploded 
ordnance (UXO), discarded military munitions (DMM), or munitions 
constituents (MC), and

[[Page 870]]

    (3) That are included in the inventory established pursuant to 10 
U.S.C. 2710(a).
    (c) The rule in this part shall not be applied at the locations not 
included in the inventory required under 10 U.S.C. 2710(a). The 
locations not included in the inventory are:
    (1) Locations that are not, or were not, owned by, leased to, or 
otherwise possessed or used by the Department,
    (2) Locations neither known to contain, or suspected of containing, 
UXO, DMM, or MC,
    (3) Locations outside the United States,
    (4) Locations where the presence of military munitions results from 
combat operations,
    (5) Currently operating military munitions storage and manufacturing 
facilities,
    (6) Locations that are used for, or were permitted for, the 
treatment or disposal of military munitions, and
    (7) Operational ranges.



Sec.  179.3  Definitions.

    This part includes definitions for many terms that clarify its scope 
and applicability. Many of the terms relevant to this part are already 
defined, either in 10 U.S.C. 101, 10 U.S.C. 2710(e), or the Code of 
Federal Regulations. Where this is the case, the statutory and 
regulatory definitions are repeated here strictly for ease of reference. 
Citations to the U.S. Code or the Code of Federal Regulations are 
provided with the definition, as applicable. Unless used elsewhere in 
the U.S. Code or the Code of Federal Regulations, these terms are 
defined only for purposes of this part.
    Barrier means a natural obstacle or obstacles (e.g., difficult 
terrain, dense vegetation, deep or fast-moving water), a man-made 
obstacle or obstacles (e.g., fencing), and combinations of natural and 
man-made obstacles.
    Chemical agent (CA) means a chemical compound (to include 
experimental compounds) that, through its chemical properties produces 
lethal or other damaging effects on human beings, is intended for use in 
military operations to kill, seriously injure, or incapacitate persons 
through its physiological effects. Excluded are research, development, 
testing and evaluation (RDTE) solutions; riot control agents; chemical 
defoliants and herbicides; smoke and other obscuration materials; flame 
and incendiary materials; and industrial chemicals. (This definition is 
based on the definition of ``chemical agent and munition'' in 50 U.S.C. 
1521(j)(1).)
    Chemical Agent (CA) Hazard is a condition where danger exists 
because CA is present in a concentration high enough to present 
potential unacceptable effects (e.g., death, injury, damage) to people, 
operational capability, or the environment.
    Chemical Warfare Materiel (CWM) means generally configured as a 
munition containing a chemical compound that is intended to kill, 
seriously injure, or incapacitate a person through its physiological 
effects. CWM includes V- and G-series nerve agents or H-series (mustard) 
and L-series (lewisite) blister agents in other-than-munition 
configurations; and certain industrial chemicals (e.g., hydrogen cyanide 
(AC), cyanogen chloride (CK), or carbonyl dichloride (called phosgene or 
CG)) configured as a military munition. Due to their hazards, 
prevalence, and military-unique application, chemical agent 
identification sets (CAIS) are also considered CWM. CWM does not include 
riot control devices; chemical defoliants and herbicides; industrial 
chemicals (e.g., AC, CK, or CG) not configured as a munition; smoke and 
other obscuration-producing items; flame and incendiary-producing items; 
or soil, water, debris, or other media contaminated with low 
concentrations of chemical agents where no CA hazards exist. For the 
purposes of this Protocol, CWM encompasses four subcategories of 
specific materials:
    (1) CWM, explosively configured are all munitions that contain a CA 
fill and any explosive component. Examples are M55 rockets with CA, the 
M23 VX mine, and the M360 105-mm GB artillery cartridge.
    (2) CWM, nonexplosively configured are all munitions that contain a 
CA fill, but that do not contain any explosive components. Examples are 
any chemical munition that does not contain explosive components and VX 
or mustard agent spray canisters.

[[Page 871]]

    (3) CWM, bulk container are all non-munitions-configured containers 
of CA (e.g., a ton container) and CAIS K941, toxic gas set M-1 and K942, 
toxic gas set M-2/E11.
    (4) CAIS are military training aids containing small quantities of 
various CA and other chemicals. All forms of CAIS are scored the same in 
this rule, except CAIS K941, toxic gas set M-1; and CAIS K942, toxic gas 
set M-2/E11, which are considered forms of CWM, bulk container, due to 
the relatively large quantities of agent contained in those types of 
sets.
    Components means the Office of the Secretary of Defense, the 
Military Departments, the Defense Agencies, the Department Field 
Activities, and any other Department organizational entity or 
instrumentality established to perform a government function.
    Defense site means locations that are or were owned by, leased to, 
or otherwise possessed or used by the Department. The term does not 
include any operational range, operating storage or manufacturing 
facility, or facility that is used for or was permitted for the 
treatment or disposal of military munitions. (10 U.S.C. 2710(e)(1))
    Discarded military munitions (DMM) means military munitions that 
have been abandoned without proper disposal or removed from storage in a 
military magazine or other storage area for the purpose of disposal. The 
term does not include UXO, military munitions that are being held for 
future use or planned disposal, or military munitions that have been 
properly disposed of consistent with applicable environmental laws and 
regulations. (10 U.S.C. 2710(e)(2))
    Explosive hazard means a condition where danger exists because 
explosives are present that may react (e.g., detonate, deflagrate) in a 
mishap with potential unacceptable effects (e.g., death, injury, damage) 
to people, property, operational capability, or the environment.
    Military munitions means all ammunition products and components 
produced for or used by the armed forces for national defense and 
security, including ammunition products or components under the control 
of the Department of Defense, the Coast Guard, the Department of Energy, 
and the National Guard. The term includes confined gaseous, liquid, and 
solid propellants; explosives, pyrotechnics, chemical and riot control 
agents, smokes, and incendiaries, including bulk explosives and chemical 
warfare agents; chemical munitions, rockets, guided and ballistic 
missiles, bombs, warheads, mortar rounds, artillery ammunition, small 
arms ammunition, grenades, mines, torpedoes, depth charges, cluster 
munitions and dispensers, and demolition charges; and devices and 
components of any item thereof. The term does not include wholly inert 
items, improvised explosive devices, and nuclear weapons, nuclear 
devices, and nuclear components, other than nonnuclear components of 
nuclear devices that are managed under the nuclear weapons program of 
the Department of Energy after all required sanitization operations 
under the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.) have been 
completed. (10 U.S.C. 101(e)(4))
    Military range means designated land and water areas set aside, 
managed, and used to research, develop, test, and evaluate military 
munitions, other ordnance, or weapon systems, or to train military 
personnel in their use and handling. Ranges include firing lines and 
positions, maneuver areas, firing lanes, test pads, detonation pads, 
impact areas, and buffer zones with restricted access and exclusionary 
areas. (40 CFR 266.201)
    Munitions and explosives of concern distinguishes specific 
categories of military munitions that may pose unique explosives safety 
risks, such as UXO, as defined in 10 U.S.C. 101(e)(5); discarded 
military munitions, as defined in 10 U.S.C. 2710(e)(2); or munitions 
constituents (e.g., TNT, RDX), as defined in 10 U.S.C. 2710(e)(3), 
present in high enough concentrations to pose an explosive hazard.
    Munitions constituents means any materials originating from UXO, 
discarded military munitions, or other military munitions, including 
explosive and nonexplosive materials, and emission, degradation, or 
breakdown elements of such ordnance or munitions. (10 U.S.C. 2710(e)(3))

[[Page 872]]

    Munitions response means response actions, including investigation, 
removal actions, and remedial actions, to address the explosives safety, 
human health, or environmental risks presented by UXO, discarded 
military munitions (DMM), or munitions constituents (MC), or to support 
a determination that no removal or remedial action is required.
    Munitions response area (MRA) means any area on a defense site that 
is known or suspected to contain UXO, DMM, or MC. Examples are former 
ranges and munitions burial areas. An MRA comprises one or more 
munitions response sites.
    Munitions response site (MRS) means a discrete location within an 
MRA that is known to require a munitions response.
    Operational range means a range that is under the jurisdiction, 
custody, or control of the Secretary of Defense and that is used for 
range activities, or although not currently being used for range 
activities, that is still considered by the Secretary to be a range and 
has not been put to a new use that is incompatible with range 
activities. (10 U.S.C. 101(e)(3))
    Range means a designated land or water area that is set aside, 
managed, and used for range activities of the Department of Defense. The 
term includes firing lines and positions, maneuver areas, firing lanes, 
test pads, detonation pads, impact areas, electronic scoring sites, 
buffer zones with restricted access, and exclusionary areas. The term 
also includes airspace areas designated for military use in accordance 
with regulations and procedures prescribed by the Administrator of the 
Federal Aviation Administration. (10 U.S.C. 101(e)(1)(A) and (B))
    Range activities means research, development, testing, and 
evaluation of military munitions, other ordnance, and weapons systems; 
and the training of members of the armed forces in the use and handling 
of military munitions, other ordnance, and weapons systems. (10 U.S.C. 
101(3)(2))
    Unexploded ordnance (UXO) means military munitions that:
    (1) Have been primed, fuzed, armed, or otherwise prepared for 
action;
    (2) Have been fired, dropped, launched, projected, or placed in such 
a manner as to constitute a hazard to operations, installations, 
personnel, or material; and
    (3) Remain unexploded, whether by malfunction, design, or any other 
cause. (10 U.S.C. 101(e)(5))
    United States means, in a geographic sense, the states, territories, 
and possessions and associated navigable waters, contiguous zones, and 
ocean waters of which the natural resources are under the exclusive 
management authority of the United States. (10 U.S.C. 2710(e)(10))



Sec.  179.4  Policy.

    (a) In assigning a relative priority for response activities, the 
Department generally considers those MRSs posing the greatest hazard as 
being the highest priority for action. The priority assigned should be 
based on the overall conditions at each MRS, taking into consideration 
various factors relating to safety and environmental hazard potential.
    (b) In addition to the priority assigned to an MRS, other 
considerations (e.g., availability of specific equipment, intended 
reuse, stakeholder interest) can affect the sequence in which munitions 
response actions at a specific MRS are funded.
    (c) It is Department policy to ensure that U.S. EPA, other federal 
agencies (as appropriate or required), state regulatory agencies, tribal 
governments, local restoration advisory boards or technical review 
committees, and local stakeholders are offered opportunities to 
participate in the application of the rule in this part and making 
sequencing recommendations.



Sec.  179.5  Responsibilities.

    Each Component shall:
    (a) Apply the rule in this part to each MRS under its administrative 
control when sufficient data are available to populate all the data 
elements within any or all of the three hazard evaluation modules that 
comprise the rule. Upon further delineation and characterization of an 
MRA into more than one MRS, Components shall reapply the rule to all 
MRSs within the MRA.

[[Page 873]]

In such cases where data are not sufficient to populate one or two of 
the hazard evaluation modules (e.g., there are no constituent sampling 
data for the Health Hazard Evaluation [HHE] module), Components will 
assign a priority based on the hazard evaluation modules evaluated and 
reapply the rule once sufficient data are available to apply the 
remaining hazard evaluation modules.
    (b) Ensure that the total acreage of each MRA is evaluated using 
this rule (i.e., ensure the all MRSs within the MRA are evaluated).
    (c) Ensure that EPA, other federal agencies (as appropriate or 
required), state regulatory agencies, tribal governments, local 
restoration advisory boards or technical review committees, local 
community stakeholders, and the current landowner (if the land is 
outside Department control) are offered opportunities as early as 
possible and throughout the process to participate in the application of 
the rule and making sequencing recommendations.
    (1) To ensure EPA, other federal agency, state regulatory agencies, 
tribal governments, and local government officials are aware of the 
opportunity to participate in the application of the rule, the Component 
organization responsible for implementing a munitions response at the 
MRS shall notify the heads of these organizations (or their designated 
point of contact), as appropriate, seeking their involvement prior to 
beginning prioritization. Records of the notification will be placed in 
the Administrative Record and Information Repository for the MRS.
    (2) Prior to beginning prioritization, the Component organization 
responsible for implementing a munitions response at the MRS shall 
publish an announcement in local community publications requesting 
information pertinent to prioritization or sequencing decisions to 
ensure the local community is aware of the opportunity to participate in 
the application of the rule.
    (d) Establish a quality assurance panel of Component personnel to 
review, initially, all MRS prioritization decisions. Once the Department 
determines that its Components are applying the rule in a consistent 
manner and the rule's application leads to decisions that are 
representative of site conditions, the Department may establish a 
sampling-based approach for its Components to use for such reviews. This 
panel reviewing the priority assigned to an MRS shall not include any 
participant involved in applying the rule to that MRS. If the panel 
recommends a change that results in a different priority, the Component 
shall report, in the inventory data submitted to the Office of the 
Deputy Under Secretary of Defense (Installations & Environment) 
(ODUSD[I&E]), the rationale for this change. The Component shall also 
provide this rationale to the appropriate regulatory agencies and 
involved stakeholders for comment before finalizing the change.
    (e) Following the panel review, submit the results of applying the 
rule along with the other inventory data that 10 U.S.C. 2710(c) requires 
be made publicly available, to the ODUSD(I&E). The ODUSD(I&E) shall 
publish this information in the report on environmental restoration 
activities for that fiscal year. If sequencing decisions result in 
action at an MRS with a lower MRS priority ahead of an MRS with a higher 
MRS priority, the Component shall provide specific justification to the 
ODUSD(I&E).
    (f) Document in a Management Action Plan (MAP) or its equivalent all 
aspects of the munitions responses required at all MRSs for which that 
MAP is applicable. Department guidance requires that MAP be developed 
and maintained at an installation (or Formerly Used Defense Site [FUDS] 
property) level and address each site at that installation or FUDS. For 
the FUDS program, a statewide MAP may also be developed.
    (g) Develop sequencing decisions at installations and FUDS with 
input from appropriate regulators and stakeholders (e.g., community 
members of an installation's restoration advisory board or technical 
review committee), and document this development in the MAP. Final 
sequencing may be impacted by Component program management 
considerations. If the sequencing of any MRS is changed from the 
sequencing reflected in the current MAP,

[[Page 874]]

the Component shall provide information to the appropriate regulators 
and stakeholders documenting the reasons for the sequencing change, and 
shall request their review and comment on that decision.
    (h) Ensure that information provided by regulators and stakeholders 
that may influence the priority assigned to an MRS or sequencing 
decision concerning an MRS is included in the Administrative Record and 
the Information Repository.
    (i) Review each MRS priority at least annually and update the 
priority as necessary to reflect new information. Reapplication of the 
rule is required under any of the following circumstances:
    (1) Upon completion of a response action that changes site 
conditions in a manner that could affect the evaluation under this rule.
    (2) To update or validate a previous evaluation at an MRS when new 
information is available.
    (3) To update or validate the priority assigned where that priority 
has been previously assigned based on evaluation of only one or two of 
the three hazard evaluation modules.
    (4) Upon further delineation and characterization of an MRA into 
MRSs.
    (5) To categorize any MRS previously classified as ``evaluation 
pending.''



Sec.  179.6  Procedures.

    The rule in this part comprises the following three hazard 
evaluation modules.
    (a) Explosive Hazard Evaluation (EHE) module.
    (1) The EHE module provides a single, consistent, Department-wide 
approach for the evaluation of explosive hazards. This module is used 
when there is a known or suspected presence of an explosive hazard. The 
EHE module is composed of three factors, each of which has two to four 
data elements that are intended to assess the specific conditions at an 
MRS. These factors are:
    (i) Explosive hazard, which has the data elements Munitions Type and 
Source of Hazard and constitutes 40 percent of the EHE module score. 
(See appendix A to this part, tables 1 and 2.)
    (ii) Accessibility, which has the data elements Location of 
Munitions, Ease of Access, and Status of Property and constitutes 40 
percent of the EHE module score. (See appendix A, tables 3, 4, and 5.)
    (iii) Receptors, which has the data elements Population Density, 
Population Near Hazard, Types of Activities/Structures, and Ecological 
and/or Cultural Resources and constitutes 20 percent of the EHE module 
score. (See appendix A, tables 6, 7, 8, and 9.)
    (2) Based on MRS-specific information, each data element is assigned 
a numeric score, and the sum of these score is the EHE module score. The 
EHE module score results in an MRS being placed into one of the 
following ratings. (See appendix A, table 10.)
    (i) EHE Rating A (Highest) is assigned to MRSs with an EHE module 
score from 92 to 100.
    (ii) EHE Rating B is assigned to MRSs with an EHE module score from 
82 to 91.
    (iii) EHE Rating C is assigned to MRSs with an EHE module score from 
71 to 81.
    (iv) EHE Rating D is assigned to MRSs with an EHE module score from 
60 to 70.
    (v) EHE Rating E is assigned to MRSs with an EHE module score from 
48 to 59.
    (vi) EHE Rating F is assigned to MRSs with an EHE module score from 
38 to 47.
    (vii) EHE Rating G (Lowest) is assigned to MRSs with an EHE module 
score less than 38.
    (3) There are also three other possible outcomes for the EHE module:
    (i) Evaluation pending. This category is used when there are known 
or suspected UXO or DMM, but sufficient information is not available to 
populate the nine data elements of the EHE module.
    (ii) No longer required. This category is reserved for MRSs that no 
longer require an assigned priority because the Department has conducted 
a response, all objectives set out in the decision document for the MRS 
have been achieved, and no further action, except for long-term 
management and recurring reviews, is required.

[[Page 875]]

    (iii) No known or suspected explosive hazard. This category is 
reserved for MRSs that do not require evaluation under the EHE module.
    (4) The EHE module rating shall be considered with the CHE and HHE 
module ratings to determine the MRS priority.
    (5) MRSs lacking information for determining an EHE module rating 
shall be programmed for additional study and evaluated as soon as 
sufficient data are available. Until an EHE module rating is assessed, 
MRSs shall be rated as ``evaluation pending'' for the EHE module.
    (b) Chemical Warfare Materiel Hazard Evaluation (CHE) module. (1) 
The CHE module provides an evaluation of the chemical hazards associated 
with the physiological effects of CWM. The CHE module is used only when 
CWM are known or suspected of being present at an MRS. Like the EHE 
module, the CHE module has three factors, each of which has two to four 
data elements that are intended to assess the conditions at an MRS.
    (i) CWM hazard, which has the data elements CWM Configuration and 
Sources of CWM and constitutes 40 percent of the CHE score. (See 
appendix A to this part, tables 11 and 12.)
    (ii) Accessibility, which focuses on the potential for receptors to 
encounter the CWM known or suspected to be present on an MRS. This 
factor consists of three data elements, Location of CWM, Ease of Access, 
and Status of Property, and constitutes 40 percent of the CHE score. 
(See appendix A, tables 13, 14, and 15.)
    (iii) Receptor, which focuses on the human and ecological 
populations that may be impacted by the presence of CWM. It has the data 
elements Population Density, Population Near Hazard, Types of 
Activities/Structures, and Ecological and/or Cultural Resources and 
constitutes 20 percent of the CHE score. (See appendix A, tables 16, 17, 
18, and 19.)
    (2) Similar to the EHE module, each data element is assigned a 
numeric score, and the sum of these scores (i.e., the CHE module score) 
is used to determine the CHE rating. The CHE module score results in an 
MRS being placed into one of the following ratings. (See appendix A, 
table 20.)
    (i) CHE Rating A (Highest) is assigned to MRSs with a CHE score from 
92 to 100.
    (ii) CHE Rating B is assigned to MRSs with a CHE score from 82 to 
91.
    (iii) CHE Rating C is assigned to MRSs with a CHE score from 71 to 
81.
    (iv) CHE Rating D is assigned to MRSs with a CHE score from 60 to 
70.
    (v) CHE Rating E is assigned to MRSs with a CHE score from 48 to 59.
    (vi) CHE Rating F is assigned to MRSs with a CHE score from 38 to 
47.
    (vii) CHE Rating G (Lowest) is assigned to MRSs with a CHE score 
less than 38.
    (3) There are also three other potential outcomes for the CHE 
module:
    (i) Evaluation pending. This category is used when there are known 
or suspected CWM, but sufficient information is not available to 
populate the nine data elements of the CHE module.
    (ii) No longer required. This category is reserved for MRSs that no 
longer require an assigned priority because the Department has conducted 
a response, all objectives set out in the decision document for the MRS 
have been achieved, and no further action, except for long-term 
management and recurring reviews, is required.
    (iii) No known or suspected CWM hazard. This category is reserved 
for MRSs that do not require evaluation under the CHE module.
    (4) The CHE rating shall be considered with the EHE module and HHE 
module ratings to determine the MRS priority.
    (5) MRSs lacking information for assessing a CHE module rating shall 
be programmed for additional study and evaluated as soon as sufficient 
data are available. Until a CHE module rating is assigned, the MRS shall 
be rated as ``evaluation pending'' for the CHE module.
    (c) Health Hazard Evaluation (HHE) module.
    (1) The HHE provides a consistent Department-wide approach for 
evaluating the relative risk to human health and the environment posed 
by MC. The HHE builds on the RRSE framework that is used in the 
Installation Restoration Program (IRP) and has been

[[Page 876]]

modified to address the unique requirements of MRSs. The HHE module 
shall be used for evaluating the potential hazards posed by MC and other 
chemical contaminants. The HHE module is intended to evaluate MC at 
sites. Any incidental nonmunitions-related contaminants may be addressed 
incidental to a munitions response under the MMRP.
    (2) The module has three factors:
    (i) Contamination Hazard Factor (CHF), which indicates MC, and any 
nonmunitions-related incidental contaminants present; this factor 
contributes a level of High (H), Middle (M), or Low (L) based on 
Significant, Moderate, or Minimal contaminants present, respectively. 
(See appendix A to this part, table 21.)
    (ii) Receptor Factor (RF), which indicates the receptors; this 
factor contributes a level of H, M, or L based on Identified, Potential, 
or Limited receptors, respectively. (See appendix A, table 21.)
    (iii) Migration Pathway Factor (MPF), which indicates environmental 
migration pathways, and contributes a level of H, M, or L based on 
Evident, Potential or Confined pathways, respectively. (See appendix A, 
table 21.)
    (3) The H, M, and L levels for the CHF, RF, and MPF are combined in 
a matrix to obtain composite three-letter combination levels that 
integrate considerations of all three factors. (See appendix A, table 
22.)
    (4) The three-letter combination levels are organized by frequency, 
and the resulting frequencies result in seven HHE ratings. (See appendix 
A, table 23.)
    (i) HHE Rating A (Highest) is assigned to MRSs with an HHE 
combination level of high for all three factors.
    (ii) HHE Rating B is assigned to MRSs with a combination level of 
high for CHF and RF and medium for MPF (HHM).
    (iii) HHE Rating C is assigned to MRSs with a combination level of 
high for the CHF and RF and low for MPF (HHL), or high for CHF and 
medium for the RF and MPF (HMM).
    (iv) HHE Rating D is assigned to MRSs with a combination level of 
high for the CHF, medium for the RF, and low for the MPF (HML), or 
medium for all three factors (MMM).
    (v) HHE Rating E is assigned to MRSs with a combination level of 
high for the CHF and low for the RF and MPF (HLL), or medium for the CHF 
and RF and low for the MPF (MML).
    (vi) HHE Rating F is assigned to MRSs with a combination level of 
medium for the CHF and low for the RF and MPF (MLL).
    (vii) HHE Rating G (Lowest) is assigned to MRSs with a combination 
level of low for all three factors (LLL).
    (5) The HHE three-letter combinations are replaced by the seven HHE 
ratings. (See appendix A, table 24.)
    (6) There are also three other potential outcomes for the HHE 
module:
    (i) Evaluation pending. This category is used when there are known 
or suspected MC, and any incidental nonmunitions-related contaminants 
present, but sufficient information is not available to determine the 
HHE module rating.
    (ii) No longer required. This category is reserved for MRSs that no 
longer require an assigned MRS priority because the Department has 
conducted a response, all objectives set out in the decision document 
for the MRS have been achieved, and no further action, except for long-
term management and recurring reviews, is required.
    (iii) No known or suspected munitions constituent hazard. This 
rating is reserved for MRSs that do not require evaluation under the HHE 
module.
    (7) The HHE module rating shall be considered with the EHE and CHE 
module ratings to determine the MRS priority.
    (8) MRSs lacking information sufficient for assessing an HHE module 
rating shall be programmed for additional study and evaluated as soon as 
sufficient data are available. Until an HHR module rating is assigned, 
the MRS shall be classified as ``evaluation pending'' for the HHE 
module.
    (d) Determining the MRS priority. (1) An MRS priority is determined 
based on integrating the ratings from the EHE, CHE, and HHE modules. 
Until all three hazard evaluation modules have been evaluated, the MRS 
priority shall be based on the results of the modules completed.

[[Page 877]]

    (2) Each MRS is assigned to one of eight MRS priorities based on the 
ratings of the three hazard evaluation modules, where Priority 1 
indicates the highest potential hazard and Priority 8 the lowest 
potential hazard. Under the rule in this part, only MRSs with CWM can be 
assigned to Priority 1 and no MRS with CWM can be assigned to Priority 
8. (See appendix A to this part, table 25.)
    (3) An ``evaluation pending'' rating is used to indicate that an MRS 
requires further evaluation. This designation is only used when none of 
the three modules has a numerical rating (i.e., 1 through 8) and at 
least one module is rated ``evaluation pending.'' The Department shall 
develop program metrics focused on reducing the number of MRSs with a 
status of ``evaluating pending'' for any of the three modules. (See 
appendix A, table 25.)
    (4) A ``no longer required'' rating is used to indicate that an MRS 
no longer requires prioritization. The MRS will receive this rating when 
none of the three modules has a numerical (i.e., 1 through 8) or an 
``evaluation pending'' designation, and at least one of the modules is 
rated ``no longer required.''
    (5) A rating of ``no known or suspected hazard'' is used to indicate 
that an MRS has no known or expected hazard. This designation is used 
only when the hazard evaluation modules are rated as ``no known or 
suspected explosive hazard,'' ``no known or suspected CWM hazard,'' and 
``no known or suspected MC hazard.'' (See appendix A, table 25.)



Sec.  179.7  Sequencing.

    (a) Sequencing considerations. The sequencing of MRSs for action 
shall be based primarily on the MRS priority determined through applying 
the rule in this part. Generally, an MRS that presents a greater 
relative risk to human health, safety, or the environment will be 
addressed before an MRS that presents a lesser relative risk. Other 
factors, however, may warrant consideration when determining the 
sequencing for specific MRSs. In evaluating other factors in sequencing 
decisions, the Department will consider a broad range of issues. These 
other, or risk-plus factors, do not influence or change the MRS 
priority, but may influence the sequencing for action. Examples of 
factors that the Department may consider are:
    (1) Concerns expressed by regulators or stakeholders.
    (2) Cultural and social factors.
    (3) Economic factors, including economic considerations pertaining 
to environmental justice issues, economies of scale, evaluation of total 
life cycle costs, and estimated valuations of long-term liabilities.
    (4) Findings of health, safety, or ecological risk assessments or 
evaluations based on MRS-specific data.
    (5) Reasonably anticipated future land use, especially when planning 
response actions, conducting evaluations of response alternatives, or 
establishing specific response action objectives.
    (6) A community's reuse requirements at Base Realignment and Closure 
(BRAC) installations.
    (7) Specialized considerations of tribal trust lands (held in trust 
by the United States for the benefit of any tribe or individual). The 
United States holds the legal title to the land and the tribe holds the 
beneficial interest.
    (8) Implementation and execution considerations (e.g., funding 
availability; the availability of the necessary equipment and people to 
implement a particular action; examination of alternatives to responses 
that entail significant capital investments, a lengthy period of 
operation, or costly maintenance; alternatives to removal or treatment 
of contamination when existing technology cannot achieve established 
standards [e.g., maximum contaminant levels]).
    (9) Mission-driven requirements.
    (10) The availability of appropriate technology (e.g., technology to 
detect, discriminate, recover, and destroy UXO).
    (11) Implementing standing commitments, including those in formal 
agreements with regulatory agencies, requirements for continuation of 
remedial action operations until response objectives are met, other 
long-term management activities, and program administration.
    (12) Established program goals and initiatives.

[[Page 878]]

    (13) Short-term and long-term ecological effects and environmental 
impacts in general, including injuries to natural resources.
    (b) Procedures and documentation for sequencing decisions. (1) Each 
installation or FUDS is required to develop and maintain a Management 
Action Plan (MAP) or its equivalent. Sequencing decisions, which will be 
documented in the MAP at military installations and FUDS, shall be 
developed with input from appropriate regulators and stakeholders (e.g., 
community members of an installation's restoration advisory board or 
technical review committee). If the sequencing of an MRS is changed from 
the sequencing reflected in the current MAP, information documenting the 
reasons for the sequencing change will be provided for inclusion in the 
MAP. Notice of the change in the sequencing shall be provided to those 
regulators and stakeholders that provided input to the sequencing 
process.
    (2) In addition to the information on prioritization, the Components 
shall ensure that information provided by regulators and stakeholders 
that may influence the sequencing of an MRS is included in the 
Administrative Record and the Information Repository.
    (3) Components shall report the results of sequencing to ODUSD(I&E) 
(or successor organizations). ODUSD(I&E) shall compile the sequencing 
results reported by each Component and publish the sequencing in the 
report on environmental restoration activities for that fiscal year. If 
sequencing decisions result in action at an MRS with a lower MRS 
priority ahead of an MRS with a higher priority, specific justification 
shall be provided to the ODUSD(I&E).

[[Page 879]]



   Sec. Appendix A to Part 179--Tables of the Munitions Response Site 
                         Prioritization Protocol

    The tables in this Appendix are solely for use in implementing 32 
CFR part 179.
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                       SUBCHAPTERS I	K [RESERVED]



[[Page 900]]



                        SUBCHAPTER L_ENVIRONMENT





PART 187_ENVIRONMENTAL EFFECTS ABROAD OF MAJOR DEPARTMENT OF DEFENSE
ACTIONS--Table of Contents



Sec.
187.1 Purpose.
187.2 Applicability.
187.3 Definitions.
187.4 Policy.
187.5 Responsibilities.
187.6 Information requirements.

Enclosure 1 to Part 187--Requirements for Environmental Considerations--
          Global Commons
Enclosure 2 to Part 187--Requirements for Environmental Considerations--
          Foreign Nations and Protected Global Resources

    Authority: Title 10 U.S.C. 131.

    Source: 44 FR 21786, Apr. 14, 1979, unless otherwise noted. 
Redesignated at 56 FR 64481, Dec. 10, 1991.



Sec.  187.1  Purpose.

    Executive Order 12114 provides the exclusive and complete 
requirement for taking account of considerations with respect to actions 
that do significant harm to the environment of places outside the United 
States. This part provides policy and procedures to enable Department of 
Defense (DoD) officials to be informed and take account of environmental 
considerations when authorizing or approving certain major Federal 
actions that do significant harm to the environment of places outside 
the United States. Its sole objective is to establish internal 
procedures to achieve this purpose, and nothing in it shall be construed 
to create a cause of action. Guidance for taking account of 
considerations with respect to the environment of places within the 
United States is set out in 32 CFR part 188 (under rev.) That guidance 
is grounded on legal and policy requirements different from those 
applicable to this part.

[44 FR 21786, Apr. 14, 1979. Redesignated and amended at 56 FR 64481, 
Dec. 10, 1991]



Sec.  187.2  Applicability.

    The provisions of this part apply to the Office of the Secretary of 
Defense, the Military Departments, the Organization of the Joint Chiefs 
of Staff, the Unified and Specified Commands, and the Defense Agencies 
(hereafter referred to as ``DoD components'').



Sec.  187.3  Definitions.

    (a) Environment means the natural and physical environment, and it 
excludes social, economic, and other environments. Social and economic 
effects do not give rise to any requirements under this part.
    (b) Federal Action means an action that is implemented or funded 
directly by the United States Government. It does not include actions in 
which the United States participates in an advisory, information-
gathering, representational, or diplomatic capacity but does not 
implement or fund the action; actions taken by a foreign government or 
in a foreign country in which the United States is a beneficiary of the 
action, but does not implement or fund the action; or actions in which 
foreign governments use funds derived indirectly from United States 
funding.
    (c) Foreign Nation means any geographic area (land, water, and 
airspace) that is under the jurisdiction of one or more foreign 
governments; any area under military occupation by the United States 
alone or jointly with any other foreign government; and any area that is 
the responsibility of an international organization of governments. 
``Foreign nation'' includes contiguous zones and fisheries zones of 
foreign nations. ``Foreign government'' in this context includes 
governments regardless of whether recognized by the United States, 
political factions, and organizations that exercise governmental power 
outside the United States.
    (d) Global Commons are geographical areas that are outside the 
jurisdiction of any nation, and include the oceans outside territorial 
limits and Antarctica. Global commons do not include contiguous zones 
and fisheries zones of foreign nations.
    (e) Major Action means an action of considerable importance 
involving substantial expenditures of time, money,

[[Page 901]]

and resources, that affects the environment on a large geographic scale 
or has substantial environmental effects on a more limited geographical 
area, and that is substantially different or a significant departure 
from other actions, previously analyzed with respect to environmental 
considerations and approved, with which the action under consideration 
may be associated. Deployment of ships, aircraft, or other mobile 
military equipment is not a major action for purposes of this part.
    (f) United States means all States, territories, and possessions of 
the United States; and all waters and airspace subject to the 
territorial jurisdiction of the United States. The territories and 
possessions of the United States include the Virgin Islands, American 
Samoa, Wake Island, Midway Island, Guam, Palmyra Island, Johnston Atoll, 
Navassa Island, and Kingman Reef.



Sec.  187.4  Policy.

    (a) Executive Order 12114 is based on the authority vested in the 
President by the Constitution and the laws of the United States. The 
objective of the Order is to further foreign policy and national 
security interests while at the same time taking into consideration 
important environmental concerns.
    (b) The Department of Defense acts with care in the global commons 
because the stewardship of these areas is shared by all the nations of 
the world. The Department of Defense will take account of environmental 
considerations when it acts in the global commons in accordance with 
procedures set out in Enclosure 1 and its attachment.
    (c) The Department of Defense also acts with care within the 
jurisdiction of a foreign nation. Treaty obligations and the sovereignty 
of other nations must be respected, and restraint must be exercised in 
applying United States laws within foreign nations unless Congress has 
expressly provided otherwise. The Department of Defense will take 
account of environmental considerations in accordance with Enclosure 2 
and its attachments when it acts in a foreign nation.
    (d) Foreign policy considerations require coordination with the 
Department of State on communications with foreign governments 
concerning environmental agreements and other formal arrangements with 
foreign governments concerning environmental matters under this part.

Informal working-level communications and arrangements are not included 
in this coordination requirement. Consultation with the Department of 
State also is required in connection with the utilization of additional 
exemptions from this part as specified in paragraph C.3.b. of Enclosure 
2. Coordination and consultation with the Department of State will be 
through the Assistant Secretary of Defense (International Security 
Affairs).
    (e) Executive Order 12114, implemented by this part prescribes the 
exclusive and complete procedural measures and other actions to be taken 
by the Department of Defense to further the purpose of the National 
Environmental Policy Act with respect to the environment outside the 
United States.



Sec.  187.5  Responsibilities.

    (a) The Assistant Secretary of Defense (Manpower, Reserve Affairs, 
and Logistics) shall:
    (1) Serve as the responsible Department of Defense official for 
policy matters under Executive Order 12114 and this part;
    (2) Modify or supplement any of the enclosures to this part in a 
manner consistent with the policies set forth in this part;
    (3) Maintain liaison with the Council on Environmental Quality with 
respect to environmental documents;
    (4) Participate in determining whether a recommendation should be 
made to the President that a natural or ecological resource of global 
importance be designated for protection; and
    (5) Consult with the Assistant Secretary of Defense (International 
Security Affairs) on significant or sensitive actions or decisions 
affecting relations with another nation.
    (b) The Assistant Secretary of Defense (International Security 
Affairs) shall:
    (1) Maintain liaison and conduct consultations with the Department 
of State as required under this part; and
    (2) Serve as the responsible official, in consultation with the 
Assistant Secretary of Defense (Manpower, Reserve

[[Page 902]]

Affairs, and Logistics), for monitoring the continuing cooperation and 
the exchange of information with other nations concerning the 
environment.
    (c) The General Counsel, DoD, shall provide advice and assistance 
concerning the requirements of Executive Order 12114 and this part.
    (d) The Secretaries of the Military Departments, Directors of the 
Defense Agencies, and Commanders of the Unified and Specified Commands, 
for operations under their jurisdiction, shall:
    (1) Prepare and consider environmental documents when required by 
this directive for proposed actions within their respective DoD 
component (this reporting requirement has been assigned Report Control 
Symbol DD-M(AR) 1327 (Sec.  187.6));
    (2) Insure that regulations and other major policy issuances are 
reviewed for consistency with Executive Order 12114 and this part;
    (3) Designate a single point-of-contact for matters pertaining to 
this part; and
    (4) Consult with the Assistant Secretary of Defense (International 
Security Affairs) on significant or sensitive actions or decisions 
affecting relations with another nation.

[44 FR 21786, Apr. 14, 1979. Redesignated and amended at 56 FR 64481, 
Dec. 10, 1991]



Sec.  187.6  Information requirements.

    The documents to be prepared under Sec.  187.5(d) and Enclosures 1 
and 2, ``Requirements for Environmental Considerations--Global 
Commons,'' and ``Requirements for Environmental Considerations--Foreign 
Nations and Protected Global Resources,'' respectively, are assigned 
Report Control Symbol DD-M(AR) 1327.

[44 FR 21786, Apr. 14, 1979. Redesignated and amended at 56 FR 64481, 
Dec. 10, 1991]



      Sec. Enclosure 1 to Part 187--Requirements for Environmental 
                     Considerations--Global Commons

    A. General. This enclosure implements the requirements of Executive 
Order 12114 with respect to major Department of Defense actions that do 
significant harm to the environment of the global commons. The focus is 
not the place of the action, but the location of the environment with 
respect to which there is significant harm. The actions prescribed by 
this enclosure are the exclusive and complete requirement for taking 
account of environmental considerations with respect to Department of 
Defense activities that affect the global commons.
    B. Actions included. The requirements of this enclosure apply only 
to major Federal actions that do significant harm to the environment of 
the global commons.
    C. Environmental Document Requirements--1. General. When an action 
is determined to be a major Federal action that significantly harms the 
environment of the global commons, an environmental impact statement, as 
described below, will be prepared to enable the responsible decision-
making official to be informed of pertinent environmental 
considerations. The statement may be a specific statement for the 
particular action, a generic statement covering the entire class of 
similar actions, or a program statement.
    2. Limitations on Actions. Until the requirements of this enclosure 
have been met with respect to actions involving the global commons, no 
action concerning the proposal may be taken that does significant harm 
to the environment or limits the choice of reasonable alternatives.
    3. Emergencies. Where emergency circumstances make it necessary to 
take an action that does significant harm to the environment without 
meeting the requirements of this enclosure, the DoD component concerned 
shall consult with the Assistant Secretary of Defense (Manpower, Reserve 
Affairs, and Logistics). This includes actions that must be taken to 
promote the national defense or security and that cannot be delayed, and 
actions necessary for the protection of life or property.
    4. Combining Documents. Environmental documents may be combined with 
other agency documents to reduce duplication. If an environmental impact 
statement for a particular action already exists, regardless of what 
Federal agency prepared it, no new statement is required by this part.
    5. Collective Statements. Consideration should be given to the use 
of generic and program statements. Generic statements may include 
actions with relevant similarities such as common timing, environmental 
effects, alternatives, methods of implementation, or subject matter.
    6. Tiering. Consideration should be given to tiering of 
environmental impact statements to eliminate repetitive discussions of 
the same issue and to focus the issues. Tiering refers to the coverage 
of general matters in broader environmental impact statements, with 
succeeding narrower statements or environmental analyses that 
incorporate by reference the general discussion and concentrate only on 
the issues specific to the statement subsequently prepared.

[[Page 903]]

    7. Lead Agency. When one or more other Federal agencies are involved 
with the Department of Defense in an action or program, a lead agency 
may be designated to supervise the preparation of the environmental 
impact statement. In appropriate cases, more than one agency may act as 
joint lead agencies. The following factors should be considered in 
making the lead agency designation:
    a. The magnitude of agency involvement;
    b. Which agency or agencies have project approval and disapproval 
authority;
    c. The expert capabilities concerning the environmental effects of 
the action;
    d. The duration of agency involvement; and
    e. The sequence of agency involvement.
    8. Categorical Exclusions. The Department of Defense may provide 
categorical exclusions for actions that normally do not, individually or 
cumulatively, do significant harm to the environment. If an action is 
covered by a categorical exclusion no environmental assessment or 
environmental impact statement is required. Categorical exclusions will 
be established by the Assistant Secretary of Defense (Manpower, Reserve 
Affairs, and Logistics) and will be identified in Attachment 1 to this 
enclosure, to be entitled, ``Categorical Exclusions--Global commons. 
``DoD components identifying recurring actions that have been 
determined, after analysis, not to do significant harm to the 
environment should submit recommendations for cateorical exclusions and 
accompanying justification to the Assistant Secretary of Defense 
(Manpower, Reserve Affairs, and Logistics).
    9. Environmental Assessments. The purpose of an environmental 
assessment is to assist DoD components in determining whether an 
environmental impact statement is required for a particular action. The 
assessment should be brief and concise but should include sufficient 
information on which a determination can be made whether the proposed 
action is major and Federal, and whether it significantly harms the 
environment of the global commons. As a minimum, the assessment should 
include consideration of the need for the proposed action and the 
environmental effect of the proposed action. The environmental 
assessment will be made available to the public in the United States 
upon request, but there is no requirement that it be distributed for 
public comment.
    D. Environmental Impact Statements. 1. General. Environmental impact 
statements will be concise and no longer than necessary to permit an 
informed consideration of the environmental effects of the proposed 
action on the global commons and the reasonable alternatives. If an 
action requiring an environmental impact statement also has effects on 
the environment of a foreign nation or on a resource designated as one 
of global importance, the statement need not consider or be prepared 
with respect to these effects. The procedures for considering these 
effects are set out in Enclosure 2, of this part.
    2. Draft Statement. Environmental impact statements will be prepared 
in two stages and may be supplemented. The first, or draft statement, 
should be sufficiently complete to permit meaningful analysis and 
comment. The draft statement will be made available to the public, in 
the United States, for comment. The Department of State, the council on 
environmental Quality, and other interested Federal agencies will be 
informed of the availability of the draft statement and will be afforded 
an opportunity to comment. Contacts with foreign governments are 
discussed in Sec.  187.4(d) and subsection D.11. of this enclosure.
    3. Final statement. Final statements will consider, either 
individually or collectively, substantive comments received on the draft 
statement. The final statement will be made available to the public in 
the United States.
    4. Supplemental statement. Supplements to the draft or final 
statement should be used when substantial changes to the proposed action 
are made relative to the environment of the global commons or when 
significant new information or circumstances, relevant to environmental 
concerns, bears on the proposed action or its environmental effects on 
the global commons. Supplemental statements will be circulated for 
comment as in subsection 2. of this enclosure unless alternative 
procedures are approved by the Assistant Secretary of Defense (Manpower, 
Reserve Affairs, and Logistics).
    5. Statement content. The statement will include: A section on 
consideration of the purpose of and need for the proposed action; a 
section on the environmental consequences of the proposed action and 
reasonable alternatives; a section that provides a succinct description 
of the environment of the global commons affected by the proposed action 
and reasonable alternatives; and a section that analyzes, in comparative 
form, the environmental effects on the global commons of the proposed 
action and reasonable alternatives.
    6. Incomplete Information. The statement should indicate when 
relevant information is missing due to unavailability or scientific 
uncertainty.
    7. Hearings. Public hearings are not required. consideration should 
be given in appropriate cases to holding or sponsoring public hearings. 
Factors in this consideration include: Foreign relations sensitivities; 
whether the hearings would be an infringement or create the appearance 
of infringement on the sovereign responsibilities of another government; 
requirements of domestic and foreign governmental confidentiality; 
requirements of national security; whether meaningful information could 
be obtained through hearings; time considerations; and

[[Page 904]]

requirements for commercial confidentiality. There is no requirement 
that all factors listed in this section be considered when one or more 
factors indicate that public hearings would not produce a substantial 
net benefit to those responsible for authorizing or approving the 
proposed action.
    8. Decision. Relevant environmental documents developed in 
accordance with this enclosure will accompany the proposal for action 
through the review process to enable officials responsible for 
authorizing or approving the proposed action to be informed and to take 
account of environmental considerations. One means of making an 
appropriate record with respect to this requirement is for the decision-
maker to sign and date a copy of the environmental impact statement 
indicating that it has been considered in the decision-making process. 
Other means of making an appropriate record are also acceptable.
    9. Timing. No decision on the proposed action may be made until the 
later of 90 days after the draft statement has been made available and 
notice thereof published in the Federal Register, or 30 days after the 
final statement has been made available and notice thereof published in 
the Federal Register. The 90-day period and the 30-day period may run 
concurrently. Not less than 45 days may be allowed for public comment. 
The Assistant Secretary of Defense (Manpower, Reserve Affairs, and 
Logistics) may, upon a showing of probable important adverse effect on 
national security or foreign policy, reduce the 30-day, 45-day, and 90-
day periods.
    10. Classified Information. Environmental assessments and impact 
statements that address classified proposals will be safeguarded and 
classified information will be restricted from public dissemination in 
accordance with Department of Defense procedures (32 CFR part 159) 
established for such information under Executive Order 12065. The 
requirements of that Executive Order take precedence over any 
requirement of disclosure in this part. Only unclassified portions of 
environmental documents may be disseminated to the public.
    11. Foreign Governments. Consideration will be given to whether any 
foreign government should be informed of the availability of 
environmental documents. Communications with foreign governments 
concerning environmental agreements and other formal arrangements with 
foreign governments concerning environmental matters under this part 
will be coordinated with the Department of State. Informal, working-
level communications and arrangements are not included in this 
coordination requirement. Coordination with the Department of State will 
be through the Assistant Secretary of Defense (International Security 
Affairs).

[44 FR 21786, Apr. 14, 1979. Redesignated and amended at 56 FR 64481, 
Dec. 10, 1991]



      Sec. Enclosure 2 to Part 187--Requirements for Environmental 
     Considerations--Foreign Nations and Protected Global Resources

    A. General. This enclosure implements the requirements of Executive 
Order 12114 to provide for procedural and other actions to be taken to 
enable officials to be informed of pertinent environmental 
considerations when authorizing or approving certain major Department of 
Defense actions that do significant harm to the environment of a foreign 
nation or to a protected global resource.
    B. Actions included. 1. The requirements of this enclosure apply 
only to the following actions:
    a. Major Federal actions that significantly harm the environment of 
a foreign nation that is not involved in the action. The involvement of 
the foreign nation may be directly by participation with the United 
States in the action, or it may be in conjunction with another 
participating nation. The focus of this category is on the geographical 
location of the environmental harm and not on the location of the 
action.
    b. Major Federal actions that are determined to do significant harm 
to the environment of a foreign nation because they provide to that 
nation: (1) A product, or involve a physical project that produces a 
principal product, emission, or effluent, that is prohibited or strictly 
regulated by Federal law in the United States because its toxic effects 
on the environment create a serious public health risk; or (2) a 
physical project that is prohibited or strictly regulated in the United 
States by Federal law to protect the environment against radioactive 
substances. Included in the category of ``prohibited or strictly 
regulated'' are the following: asbestos, vinyl chloride, acrylonitrile, 
isocyanates, polychlorinated biphenyls, mercury, beryllium, arsenic, 
cadmium, and benzene.
    c. Major Federal actions outside the United States that 
significantly harm natural or ecological resources of global importance 
designated for protection by the President or, in the case of such a 
resource protected by international agreement binding on the United 
States, designated for protection by the Secretary of State. Such 
determinations by the President or the Secretary of State to be listed 
in Attachment 1 to this enclosure, entitled, ``Protected Global 
Resources''.
    2. The actions prescribed by this enclosure are the exclusive and 
complete requirement

[[Page 905]]

for taking account of environmental considerations with respect to 
Federal actions that do significant harm to the environment of foreign 
nations and protected global resources as described in subsection B.1., 
of this enclosure. No action is required under this enclosure with 
respect to Federal actions that affect only the environment of a 
participating or otherwise involved foreign nation and that do not 
involve providing products or physical projects producing principal 
products, emissions, or effluents that are prohibited or strictly 
regulated by Federal law in the United States, or resources of global 
importance that have been designated for protection.
    C. Environmental Document Requirements.
    1. General. a. There are two types of environmental documents 
officials shall use in taking account of environmental considerations 
for actions covered by this enclosure:
    (1) Environmental studies--bilateral or multilateral environmental 
studies, relevant or related to the proposed action, by the United 
States and one or more foreign nations or by an international body or 
organization in which the United States is a member or participant; and
    (2) Environmental reviews--concise reviews of the environmental 
issues involved that are prepared unilaterally by the United States.
    b. This section identifies the procedures for the preparation of 
environmental studies or reviews when required by this enclosure and the 
exceptions from the requirement to prepare environmental studies or 
reviews. If an environmental document already exists for a particular 
action, regardless of what Federal agency prepared it, no new document 
is required by this enclosure.
    2. Lead Agency. When one or more other Federal agencies are involved 
with the Department of Defense in an action or program, a lead agency 
may be designated to supervise the preparation of environmental 
documentation. In appropriate cases, more than one agency may act as 
joint lead agencies. The following factors should be considered in 
making the lead agency designation:
    a. The magnitude of agency involvement;
    b. Which agency or agencies have project approval and disapproval 
authority;
    c. The expert capabilities concerning the environmental effects of 
the action;
    d. The duration of agency involvement; and
    e. The sequence of agency involvement.
    3. Exemptions. There are general exemptions from the requirements of 
this enclosure provided by Executive Order 12114, and the Secretary of 
Defense has the authority to approve additional exemptions.
    a. General Exemptions. The following actions are exempt from the 
procedural and other requirements of this enclosure under general 
exemptions established for all agencies by Executive Order 12114:
    (1) Actions that the DoD component concerned determines do not do 
significant harm to the environment outside the United States or to a 
designated resource of global importance.
    (2) Actions taken by the President. These include: Signing bills 
into law; signing treaties and other international agreements; the 
promulgation of Executive Orders; Presidential proclamations; and the 
issuance of Presidental decisions, instructions, and memoranda. This 
includes actions taken within the Department of Defense to prepare or 
assist in preparing recommendations, advice, or information for the 
President in connection with one of these actions by the President. It 
does not include actions taken within the Department of Defense to 
implement or carry out these instruments and issuances after they are 
promulgated by the President.
    (3) Actions taken by or pursuant to the direction of the President 
or a cabinet officer in the course of armed conflict. The term ``armed 
conflict'' refers to: hostilities for which Congress has declared war or 
enacted a specific authorization for the use of armed forces; 
hostilities or situations for which a report is prescribed by section 
4(a)(1) of the War Powers Resolution, 50 U.S.C.A. 1543(a)(1) (Supp. 
1978); and other actions by the armed forces that involve defensive use 
or introduction of weapons in situations where hostilities occur or are 
expected. This exemption applies as long as the armed conflict 
continues.
    (4) Actions taken by or pursuant to the direction of the President 
or a cabinet officer when the national security or national interest is 
involved. The determination that the national security or national 
interest is involved in actions by the Department of Defense must be 
made in writing by the Assistant Secretary of Defense (Manpower, Reserve 
Affairs, and Logistics).
    (5) The activities of the intelligence components utilized by the 
Secretary of Defense under Executive Order 12036, 43 FR 3674 (1978). 
These components include the Defense Intelligence Agency, the National 
Security Agency, the offices for the collection of specialized 
intelligence through reconnaissance programs, the Army Office of the 
Assistant Chief of Staff for Intelligence, the Office of Naval 
Intelligence, and the Air Force Office of the Assistant Chief of Staff 
for Intelligence.
    (6) The decisions and actions of the Office of the Assistant 
Secretary of Defense (International Security Affairs), the Defense 
Security Assistance Agency, and the other responsible offices within DoD 
components with respect to arms transfers to foreign nations. The term 
``arms transfers'' includes the grant, loan, lease, exchange, or sale of

[[Page 906]]

defense articles or defense services to foreign governments or 
international organizations, and the extension or guarantee of credit in 
connection with these transactions.
    (7) Votes and other actions in international conferences and 
organizations. This includes all decisions and actions of the United 
States with respect to representation of its interests at international 
organizations, and at multilateral conferences, negotiations, and 
meetings.
    (8) Disaster and emergency relief actions.
    (9) Actions involving export licenses, export permits, or export 
approvals, other than those relating to nuclear activities. This 
includes: Advice provided by DoD components to the Department of State 
with respect to the issuance of munitions export licenses under section 
38 of the Arms Export Control Act, 22 U.S.C. 2778 (1976); advice 
provided by DoD components to the Department of Commerce with respect to 
the granting of export licenses under the Export Administration Act of 
1969, 50 U.S.C. App. 2401-2413 (1970 & Supp. V 1975); and direct exports 
by the Department of Defense of defense articles and services to foreign 
governments and international organizations that are exempt from 
munitions export licenses under section 38 of the Arms Export Control 
Act, 22 U.S.C. 2778 (1976). The term ``export approvals'' does not mean 
or include direct loans to finance exports.
    (10) Actions relating to nuclear activities and nuclear material, 
except actions providing to a foreign nation a nuclear production or 
utilization facility, as defined in the Atomic Energy Act of 1954, as 
amended, or a nuclear waste management facility.
    b. Additional Exemptions. The Department of Defense is authorized 
under Executive Order 12114 to establish additional exemptions that 
apply only to the Department's operations. There are two types of 
additional exemptions: Case-by-case and class.
    (1) Case-by-Case Exemptions. Exemptions other than those specified 
above may be required because emergencies, national security 
considerations, exceptional foreign policy requirements, or other 
special circumstances preclude or are inconsistent with the preparation 
of environmental documentation and the taking of other actions 
prescribed by this enclosure. The following procedures apply for 
approving these exemptions:
    (a) Emergencies. This category includes actions that must be taken 
to promote the national defense or security and that cannot be delayed, 
and actions necessary for the protection of life or property. The heads 
of the DoD components are authorized to approve emergency exemptions on 
a case-by-case basis. The Department of Defense is required to consult 
as soon as feasible with the Department of State and the Council on 
Environmental Quality with respect to emergency exemptions. The 
requirement to consult as soon as feasible is not a requirement of prior 
consultation. A report of the emergency action will be made by the DoD 
component head to the Assistant Secretary of Defense (Manpower, Reserve 
Affairs, and Logistics), who, with the Assistant Secretary of Defense 
(International Security Affairs), shall undertake the necessary 
consultations.
    (b) Other Circumstances. National security considerations, 
exceptional foreign policy requirements, and other special circumstances 
not identified in paragraph C.3.a. of this enclosure, may preclude or be 
inconsistent with the preparation of environmental documentation. In 
these circumstances, the head of the DoD component concerned is 
authorized to exempt a particular action from the environmental 
documentation requirements of this enclosure after obtaining the prior 
approval of the Assistant Secretary of Defense (Manpower, Reserve 
Affairs, and Logistics), who, with the Assistant Secretary of Defense 
(International Security Affairs), shall consult, before approving the 
exemption, with the Department of State and the Council on Environmental 
Quality. The requirement for prior consultation is not a requirement for 
prior approval.
    (2) Class Exemptions. Circumstances may exist where a class 
exemption for a group of related actions is more appropriate than a 
specific exemption. Class exemptions may be established by the Assistant 
Secretary of Defense (Manpower, Reserve Affairs, and Logistics), who, 
with the Assistant Secretary of Defense (International Security 
Affairs), shall consult, before approving the exemption, with the 
Department of State and the Council on Environmental Quality. The 
requirement for prior consultation is not a requirement for prior 
approval. Requests for class exemptions will be submitted by the head of 
the DoD component concerned to the Assistant Secretary of Defense 
(Manpower, Reserve Affairs, and Logistics) after coordination with other 
interested DoD components. Notice of the establishment of a class 
exemption will be issued as Attachment 2 to this enclosure to be 
entitled, ``Class Exemptions--Foreign Nations and Protected Global 
Resources.''
    4. Categorical Exclusions. The Department of Defense is authorized 
by Executive Order 12114 to provide for categorical exclusions. A 
categorical exclusion is a category of actions that normally do not, 
individually or cumulatively, do significant harm to the environment. If 
an action is covered by a categorical exclusion, no environmental 
document is required. Categorical exclusions will be established by the 
Assistant Secretary of Defense (Manpower, Reserve Affairs, and 
Logistics), and will be identified in Attachment 3 to this enclosure to 
be entitled, ``Categorical Exclusions--Foreign Nations and Protected 
Global

[[Page 907]]

Resources.'' DoD components identifying recurring actions that have been 
determined, after analysis, not to do significant harm to the 
environment should submit requests for categorical exclusions and 
accompanying justification to the Assistant Secretary of Defense 
(Manpower, Reserve Affairs, and Logistics).
    D. Environmental studies. 1. General. Environmental studies are one 
of two alternative types of documents to be used for actions described 
by section B. of this enclosure.
    a. An environmental study is an analysis of the likely environmental 
consequences of the action that is to be considered by DoD components in 
the decision-making process. It includes a review of the affected 
environment, significant actions taken to avoid environmental harm or 
otherwise to better the environment, and significant environmental 
considerations and actions by the other participating nations, bodies, 
or organizations.
    b. An environmental study is a cooperative action and not a 
unilateral action undertaken by the United States. It may be bilateral 
or multilateral, and it is prepared by the United States in conjunction 
with one or more foreign nations, or by an international body or 
organization in which the United States is a member or participant. The 
environmental study, because it is prepared as a cooperative 
undertaking, may be best suited for use with respect to actions that 
provide strictly regulated or prohibited products or projects to a 
foreign nation (B.l.b.) and actions that affect a protected global 
resource (B.l.c.).
    2. Department of State Coordination. Communications with foreign 
governments concerning environmental studies and other formal 
arrangements with foreign governments concerning environmental matters 
under this directive will be coordinated with the Department of State. 
Informal, working-level communications and arrangements are not included 
in this coordination requirement. Coordination with the Department of 
State will be through the Assistant Secretary of Defense (International 
Security Affairs).
    3. Whether to Prepare an Environmental Study. The judgment whether 
the action is one that would do significant harm to one of the 
environments covered by this enclosure normally will be made in 
consultation with concerned foreign governments or organizations. If a 
negative decision is made, the file will be documented with a record of 
that decision and the decision-makers who participated. If a decision is 
made to prepare a study then, except as provided by this enclosure, no 
action concerning the proposal may be taken that would do significant 
harm to the environment until the study has been completed and the 
results considered.
    4. Content of the Study. The document is a study of the 
environmental aspects of the proposed action to be considered in the 
decision-making process. The precise content of each study must be 
flexible because of such considerations as the sensitivity of obtaining 
information from foreign governments, the availability of useful and 
understandable information, and other factors identified under 
``Limitations,'' (subsection D.6., of this enclosure). The study should, 
however, include consideration of the following:
    a. A general review of the affected environment;
    b. The predicted effect of the action on the environment;
    c. Significant known actions taken by governmental entities with 
respect to the proposed action to protect or improve the environment; 
and
    d. If no actions are being taken to protect or enhance the 
environment, whether the decision not to do so was made by the affected 
foreign government or international organization.
    5. Distribution of the Study. Except as provided under 
``Limitations,'' (subsection D.6., of this enclosure), and except where 
classified information is involved, environmental studies will be made 
available to the Department of State, the Council on Environmental 
Quality, other interested Federal agencies, and, on request, to the 
public in the United States. Interested foreign governments also may be 
informed of the studies, subject to the ``Limitations'' (subsection 
D.6., of this enclosure) and controls on classified information, and 
furnished copies of the documents. No distribution is required prior to 
the preparation of the final version of the study or prior to taking the 
action that caused the study to be prepared.
    6. Limitations. The requirements with respect to the preparation, 
content, and distribution of environmental studies in the international 
context must remain flexible. The specific procedures must be determined 
on a case-by-case basis and may be modified where necessary to:
    a. Enable the component to act promptly. Considerations such as 
national security and foreign government involvement may require prompt 
action that must take precedence in the environmental review process;
    b. Avoid adverse impacts on relations between the United States and 
foreign governments and international organizations;
    c. Avoid infringement or the appearance of infringement on the 
sovereign responsibilities of another government. The collection of 
information and the preparation and distribution of environmental 
documentation for actions in which another nation is involved, or with 
respect to the environment and resources of another nation, unless done 
with proper regard to the sovereign authority of that nation, may be 
viewed by that nation as an interference in its internal affairs

[[Page 908]]

and its responsibility to evaluate requirements with respect to the 
environment;
    d. Ensure consideration of:
    (1) Requirements of governmental confidentiality. This refers to the 
need to protect sensitive foreign affairs information and information 
received from another government with the understanding that it will be 
protected from disclosure regardless of its classification;
    (2) National security requirements. This refers to the protection of 
classified information and other national security interests;
    (3) Availability of meaningful information. Information on the 
environment of foreign nations may be unavailable, incomplete, or not 
susceptible to meaningful evaluation, particularly where the affected 
foreign nation is not a participant in the analysis. This may reduce or 
change substantially the normal content of the environmental study;
    (4) The extent of the participation of the DoD component concerned 
and its ability to affect the decision made. The utility of the 
environmental analysis and the need for an in-depth review diminishes as 
DoD's role and control over the decision lessens; and
    (5) International commercial, commercial confidentiality, 
competitive, and export promotion factors. This refers to the 
requirement to protect domestic and foreign trade secrets and 
confidential business information from disclosure. Export promotion 
factors includes the concept of not unnecessarily hindering United 
States exports.
    7. Classified Information. Classified information will be 
safeguarded from disclosure in accordance with the Department of Defense 
procedures (32 CFR 159) established for such information under Executive 
Order 12065. The requirements of that Executive Order take precedence 
over any requirement of disclosure in this directive.
    E. Environmental Reviews. 1. General. Environmental reviews are the 
second of the two alternative types of documents to be used for actions 
covered by section B. of this enclosure.
    a. An environmental review is a survey of the important 
environmental issues involved. It includes identification of these 
issues, and a review of what if any consideration has been or can be 
given to the environmental aspects by the United States and by any 
foreign government involved in taking the action.
    b. An environmental review is prepared by the DoD component 
concerned either unilaterally or in conjunction with another Federal 
agency. While an environmental review may be used for any of the actions 
identified by section B., it may be uniquely suitable, because it is 
prepared unilaterally by the United States, to actions that affect the 
environment of a nation not involved in the undertaking (B.l.a.).
    2. Department of State Coordination. Communications with foreign 
governments concerning environmental agreements and other formal 
arrangements with foreign governments concerning environmental matters 
under this enclosure will be coordinated with the Department of State. 
Informal working-level communications and arrangements are not included 
in this coordination requirement. Coordination with the Department of 
State will be through the Assistant Secretary of Defense (International 
Security Affairs).
    3. Whether to Prepare an Environmental Review. Sufficient 
information will be gathered, to the extent it is reasonably available, 
to permit an informed judgment as to whether the proposed action would 
do significant harm to the environments covered by this enclosure. If a 
negative decision is made, a record will be made of that decision and 
its basis. If a decision is made to prepare a review, then, except as 
provided by this enclosure, no action concerning the proposal may be 
taken that would do significant environmental harm until the review has 
been completed.
    4. Content of the Review. An environmental review is a survey of the 
important environmental issues associated with the proposed action that 
is to be considered by the DoD component concerned in the decision-
making process. It does not include all possible environmental issues 
and it does not include the detailed evaluation required in an 
environmental impact statement under Enclosure 1 of this part. There is 
no foreign government or international organization participation in its 
preparation, and the content therefore may be circumscribed because of 
the availability of information and because of foreign relations 
sensitivities. Other factors affecting the content are identified under 
``Limitations,'' (subsection E.6., of this enclosure). To the extent 
reasonably practical the review should include consideration of the 
following:
    a. A statement of the action to be taken including its timetable, 
physical features, general operating plan, and other similar broad-guage 
descriptive factors;
    b. Identification of the important environmental issues involved;
    c. The aspects of the actions taken or to be taken by the DoD 
component that ameliorate or minimize the impact on the environment; and
    d. The actions known to have been taken or to be planned by the 
government of any participating and affected foreign nations that will 
affect environmental considerations.
    5. Distribution. Except as provided under ``Limitations,'' 
(subsection E.6., of this enclosure), and except where classified 
information is involved, environmental reviews will be made available to 
the Department of

[[Page 909]]

State, the Council on Environmental Quality, other interested Federal 
agencies, and, on request, to the public in the United States. 
Interested foreign governments also may be informed of the reviews and, 
subject to the ``Limitations'' (subsection E.6., of this enclosure) and 
controls on classified information, will be furnished copies of the 
documents on request. This provision for document distribution is not a 
requirement that distribution be made prior to taking the action that is 
the subject of the review.
    6. Limitations. The requirements with respect to the preparation, 
content, and distribution of environmental reviews in the international 
context must remain flexible. The specific procedures must be determined 
on a case-by-case basis and may be modified where necessary to:
    a. Enable the component to act promptly. Considerations such as 
national security and foreign government involvement may require prompt 
action that must take precedence in the environmental review process;
    b. Avoid adverse impacts on relations between the United States and 
foreign governments and international organizations;
    c. Avoid infringement or the appearance of infringement on the 
sovereign responsibilities of another government. The collection of 
information and the preparation and distribution of environmental 
documentation for actions in which another nation is involved or with 
respect to the environment and resources of another nation, unless done 
with proper regard to the sovereign authority of that nation, may be 
viewed by that nation as an interference in its internal affairs and its 
prerogative to evaluate requirements with respect to the environment; 
and
    d. Ensure consideration of:
    (1) Requirements of governmental confidentiality. This refers to the 
need to protect sensitive foreign affairs information and information 
received from another government with the understanding that it will be 
protected from disclosure regardless of its classification;
    (2) National security requirements. This refers to the protection of 
classified information;
    (3) Availability of meaningful information. Information on the 
environment of foreign nations may be unavailable, incomplete, or not 
susceptable to meaningful evaluation, and this may reduce or change 
substantially the normal content of the environmental review;
    (4) The extent of the participation of the DoD component concerned 
and its ability to affect the decision made. The utility of the 
environmental analysis and the need for an in-depth review diminishes as 
the role of the Department of Defense and control over the decision 
lessens; and
    (5) International commercial, commercial confidentiality, 
competitive, and export promotion factors. This refers to the 
requirements to protect domestic and foreign trade secrets and 
confidential business information from disclosure. Export promotion 
factors includes the concept of not unnecessarily hindering United 
States exports.
    7. Classified Information. Classified information will be 
safeguarded from disclosure in accordance with the DoD procedures (32 
CFR 159) established for such information under Executive Order 12065. 
The requirements of that Executive Order take precedence over any 
requirement of disclosure in this part.



PART 188_DOD ENVIRONMENTAL LABORATORY ACCREDITATION PROGRAM (ELAP)-
-Table of Contents



Sec.
188.1 Purpose.
188.2 Applicability.
188.3 Definitions.
188.4 Policy.
188.5 Responsibilities.
188.6 Procedures.

    Authority: 15 U.S.C. 3701; Pub. L. 106-554, 114 Stat. 2763.

    Source: 81 FR 80998, Nov. 17, 2016, unless otherwise noted.



Sec.  188.1  Purpose.

    This part implements policy, assigns responsibilities, and provides 
procedures to be used by DoD personnel for the operation and management 
of the DoD ELAP.



Sec.  188.2  Applicability.

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



Sec.  188.3  Definitions.

    Unless otherwise noted, these terms and their definitions are for 
the purposes of this part.
    Accreditation. Third-party attestation conveying formal 
demonstration of a laboratory's competence to carry out specific tasks.

[[Page 910]]

    Accreditation body (AB). Authoritative organization that performs 
accreditation.
    Assessment. Process undertaken by an AB to evaluate the competence 
of a laboratory, based on requirements contained in the DoD Quality 
Systems Manual for Environmental Laboratories (QSM), for a defined scope 
of accreditation.
    Change. A reissuance of the DoD QSM containing minor changes to 
requirements or clarifications of existing requirements necessary to 
ensure consistent implementation.
    Complaint. Defined in International Organization for 
Standardization/International Electrotechnical Commission (ISO/IEC) 
17025:2005, ``General Requirements for the Competence of Testing and 
Calibration Laboratories'' (available for purchase at http://
www.iso.org/iso/store.htm).
    Contractor project chemist. Defined in Under Secretary of Defense 
for Acquisition, Technology, and Logistics Memorandum, ``Acquisitions 
Involving Environmental Sampling or Testing Services'' (available at 
http://www.acq.osd.mil/ dpap/dars/dfars/changenotice/ 2008/20080303/
223.7.pdf).
    Corrective action response. Description, prepared by the laboratory, 
of specific actions to be taken to correct a deficiency and prevent its 
reoccurrence.
    Deficiency. An unauthorized deviation from requirements.
    Definitive data. Defined in DoD Instruction 4715.15, ``Environmental 
Quality Systems'' (available at http://www.dtic.mil/ whs/directives/
corres/ pdf/471515p.pdf).
    Environmental Data Quality Workgroup (EDQW) component principal. A 
voting member of the DoD EDQW.
    Errata sheet. A document prepared by the EDQW and issued by the EDQW 
chair, defining minor ``pen and ink'' changes that apply to the most 
recently issued version of the DoD QSM. Errata will be corrected in the 
next change or revision of the DoD QSM.
    Government chemist. Defined in USD(AT&L) Memorandum, ``Acquisitions 
Involving Environmental Sampling or Testing Services.''
    Government oversight. The set of activities performed by or on 
behalf of the DoD EDQW to provide assurance that ABs and assessors are 
providing thorough, consistent, objective, and impartial assessments 
within the specified scopes of accreditation and to identify 
opportunities for continual improvement of the DoD QSM and DoD ELAP.
    International Laboratory Accreditation Cooperation (ILAC) mutual 
recognition arrangement (MRA). An arrangement through which ABs are 
evaluated and accepted by their peers for conformance to ILAC rules and 
procedures. To be accepted into the ILAC MRA, the AB must become a 
signatory to its requirements; specifically, it must commit to maintain 
conformance with the current version of Deputy Secretary of Defense 
Memorandum, ``Ensuring Quality of Information Disseminated to the Public 
by the Department of Defense'') and ensure that the laboratories it 
accredits comply with ISO/IEC 17025:2005.
    ILAC MRA peer evaluation. The process through which ABs are assessed 
by other ABs and receive or maintain acceptance into the ILAC MRA.
    Project-specific laboratory approval. The set of activities 
undertaken by the DoD EDQW to assess whether a laboratory is competent 
to perform specific tests, in the case where no DoD-ELAP accredited 
laboratory is able to perform the required tests.
    Quality system. Defined in ISO/IEC 17025:2005.
    Recognition. The acceptance of an AB by the EDQW based on its 
demonstrated commitment to maintain signatory status in the ILAC MRA and 
accept the DoD ELAP conditions and criteria for recognition.
    Revision. A reissuance of the DoD QSM containing significant changes 
in requirements or scope. A significant change is one that could 
reasonably be expected to affect a laboratory's ability to comply with 
the requirement (i.e., the laboratory is likely to have to make a change 
in its quality system or technical procedures in order to maintain 
compliance).
    Scope of accreditation. Specific laboratory services, stated in 
terms of test method, matrix, and analyte, for which accreditation is 
sought or has been granted.

[[Page 911]]



Sec.  188.4  Policy.

    It is DoD policy, in accordance with DoD Instruction 4715.15, to 
implement the DoD ELAP for the collection of definitive data in support 
of the Defense Environmental Restoration Program (DERP) at all DoD 
operations, activities, and installations, including government-owned, 
contractor-operated facilities and formerly used defense sites.



Sec.  188.5  Responsibilities.

    (a) Secretaries of the Military Departments and Director, Defense 
Logistics Agency (DLA). The Director, DLA, is under the authority, 
direction, and control of the USD(AT&L), through the Assistant Secretary 
of Defense for Logistics and Materiel Readiness. The Secretaries of the 
Military Departments and Director, DLA:
    (1) Provide resources to support project-specific government 
oversight for the collection of definitive data in support of the DERP.
    (2) Provide resources to support project-specific laboratory 
approvals, if required.
    (b) Secretary of the Navy. In addition to the responsibilities in 
paragraph (a) of this section, the Secretary of the Navy plans, 
programs, and budgets for DoD EDQW activities necessary to support 
government oversight of the DoD ELAP.



Sec.  188.6  Procedures.

    (a) DoD ELAP Overview--(1) Introduction. (i) DoD ELAP provides a 
unified DoD program through which commercial environmental laboratories 
can voluntarily demonstrate competency and document conformance to the 
international standard established in ISO/IEC 17025:2005 as implemented 
by the Deputy Under Secretary of Defense for Environmental Security 
Memorandum, ``DoD Quality Systems Manual for Environmental 
Laboratories'' (available at http://www.denix.osd.mil/edqw/ upload/QSM-
V4-2-Final-102510.pdf) (referred to in this part as the ``DoD Quality 
Systems Manual for Environmental Laboratories (QSM)''). The DoD QSM 
provides minimum quality systems requirements, based on ISO/IEC 
17025:2005, for environmental laboratories performing testing for DoD.
    (ii) DoD ELAP was developed in compliance with 15 U.S.C. 3701 (also 
known as the ``National Technology Transfer and Advancement Act''). 
Support and guidance was provided by the National Institute of Standards 
and Technology, following procedures used to establish similar programs 
for other areas of testing. The DoD ELAP supports implementation of 
section 515 of Public Law 106-554, ``Treasury and General Government 
Appropriations Act, 2001'' and Office of Management and Budget Guidance, 
``Guidelines for Ensuring and Maximizing the Quality, Objectivity, 
Utility, and Integrity of Information Disseminated by Federal Agencies'' 
(67 FR 8452) as implemented by Deputy Secretary of Defense Memorandum, 
``Ensuring Quality of Information Disseminated to the Public by the 
Department of Defense.''
    (iii) Using third party ABs operating in accordance with the 
international standard ISO/IEC 17011:2004(E), ``Conformity Assessment--
General Requirements for Accreditation Bodies Accrediting Conformity 
Assessment Bodies'' (available for purchase at http://www.iso.org/iso/
store.htm), the DoD ELAP:
    (A) Promotes interoperability among the DoD Components.
    (B) Promotes fair and open competition among commercial 
laboratories.
    (C) Streamlines the process for identifying and procuring competent 
providers of environmental laboratory services.
    (D) Promotes the collection of data of known and documented quality.
    (2) Authority. Operation of the DoD ELAP is authorized by DoD 
Instruction 4715.15.
    (3) Program requirements. (i) Pursuant to DoD Instruction 4715.15, 
laboratories seeking to perform testing in support of the DERP must be 
accredited in accordance with DoD ELAP.
    (ii) The DoD ELAP applies to:
    (A) Environmental programs at DoD operations, activities, and 
installations, including government-owned, contractor-operated 
facilities and formerly used defense sites.
    (B) Permanent, temporary, and mobile laboratories regardless of 
their

[[Page 912]]

size, volume of business, or field of accreditation that generate 
definitive data.
    (iii) Participation in the program is voluntary and open to all 
laboratories that operate under a quality system conforming to ISO/IEC 
17025:2005 and Deputy Under Secretary of Defense for Environmental 
Security Memorandum, ``DoD Quality Systems Manual for Environmental 
Laboratories.'' Laboratories may seek accreditation for any method they 
perform in accordance with documented procedures, including non-standard 
methods. Laboratories are free to select any participating AB for 
accreditation services.
    (iv) To participate in DoD ELAP, ABs must be U.S.-based signatories 
to the ILAC MRA and must operate in accordance with ISO/IEC 
17011:2004(E).
    (4) Program oversight. In accordance with Assistant Deputy Under 
Secretary of Defense for Installations and Environment Memorandum, ``DoD 
Environmental Data Quality Workgroup Charter'' (available at http://
www.denix.osd.mil/ edqw/upload/USA004743-10- Signed-Memo-to-DASs-DLA-
DoD-Envir-Data- Quality-Workgroup-Charter- 1Oct10-1.pdf), the DoD EDQW:
    (i) Provides coordinated responses to legislative and regulatory 
initiatives.
    (ii) Responds to requests for DoD Component information.
    (iii) Develops and recommends department-wide policy related to 
sampling, testing, and quality assurance for environmental programs.
    (iv) Implements and provides oversight for the DoD ELAP.
    (v) Includes technical experts from the Military Services and DLA as 
well as an EDQW component principal (voting) member from each of the 
Military Services.
    (vi) Specifies the EDQW Navy principal, Director of Naval Sea 
Systems Command (NAVSEASYSCOM) 04XQ(LABS), serve as EDQW chair.
    (b) Maintaining the DoD QSM--(1) General. The DoD EDQW will maintain 
and improve the DoD QSM to ensure that:
    (i) The DoD QSM remains current in accordance with ISO/IEC 
17025:2005.
    (ii) Minimum essential requirements are met.
    (iii) Requirements are clear, concise, and auditable.
    (iv) The DoD QSM will efficiently and effectively support the DoD 
ELAP.
    (2) Procedures--(i) Annual review. At a minimum, the DoD EDQW will 
perform an annual review of the DoD QSM, based on feedback received from 
participants in DoD ELAP (e.g., DoD Components, commercial laboratories, 
and ABs). The review will also address any revisions to ISO/IEC 
17025:2005.
    (ii) Ongoing review. As received, the DoD EDQW will respond to 
questions submitted through the Defense Environmental Network 
Information Exchange (DENIX) concerning the interpretation of DoD QSM 
requirements. DoD EDQW participants will forward all questions through 
their EDQW component principal to the DoD EDQW chair.
    (iii) Issuances. The DoD EDQW chair will prepare DoD QSM updates:
    (A) Correspondence. The DoD EDQW chair, in consultation with the 
EDQW component principals, will prepare correspondence (email or 
memorandum) providing responses to all written requests for 
clarification and interpretation of the DoD QSM. Depending on the 
significance of the issue, as determined by the EDQW chair, the response 
may also result in a posting to the frequently asked question (FAQ) 
section of the appropriate Web sites.
    (B) Errata sheets. Minor corrections to the DoD QSM, such as 
typographical errors, may be made by the issuance of an errata sheet 
defining ``pen and ink'' changes that apply to the current version of 
the DoD QSM. Following concurrence by all EDQW component principals, 
errata sheets will be issued as needed by the DoD EDQW chair. Errata 
will be corrected in the next change or revision to the DoD QSM.
    (C) Changes. Changes to the DoD QSM will be issued as necessary to 
reflect minor changes to requirements or clarifications of existing 
requirements that are necessary to ensure consistent implementation. 
Following concurrence by the EDQW component principals, changes will be 
issued by the DoD EDQW chair in the form of a complete DoD QSM.
    (1) The first change to DoD QSM Version 4 will be numbered Version 
4.1,

[[Page 913]]

the second change will be Version 4.2, etc.
    (2) Changes to the DoD QSM will be posted on DENIX in place of the 
previous version or change of the DoD QSM.
    (D) Revisions. A revision will be issued if one or more of the 
proposed changes could reasonably be expected to affect a laboratory's 
ability to comply with the requirement (i.e., the laboratory is likely 
to have to make a change in its quality system or technical procedures).
    (1) Once EDQW component principals have reached consensus on the 
proposed revision, the DoD EDQW chair will forward the proposed revision 
to all participating DoD ELAP-accredited laboratories and ABs for 
review.
    (2) The DoD EDQW will review and respond to comments received from 
the DoD ELAP-accredited laboratories and ABs within the designated 
comment period.
    (3) Following concurrence by the EDQW component principals, 
revisions will be issued by the DoD EDQW chair in the form of a complete 
DoD QSM.
    (4) A revision of Version 4 will be issued as Version 5, a revision 
of Version 5 will be issued as Version 6, etc.
    (5) The final revised version of the DoD QSM will be posted on DENIX 
in place of the previous version including any DoD QSM updates.
    (3) Continual improvement. The DoD EDQW will meet with the ABs on an 
annual basis to review lessons learned and identify additional 
opportunities for continual improvement of the DoD ELAP and the DoD QSM.
    (4) Data and records management. Through NAVSEASYSCOM, the DoD EDQW 
will maintain all DoD QSM updates in accordance with Secretary of the 
Navy Manual M-5210.1, ``Department of the Navy Records Management 
Program: Records Management Manual'' (available at http://
doni.daps.dla.mil/ SECNAV%20Manuals1/5210.1.pdf).
    (c) Recognizing ABs--(1) General. (i) The DoD EDQW will:
    (A) Use the procedures in this paragraph to evaluate and recognize 
third-party ABs in support of the DoD ELAP.
    (B) Develop and maintain the application for recognition, the 
conditions and criteria for recognition and related forms, and review 
submitted AB applications for completeness and compliance with DoD ELAP 
requirements.
    (ii) The DoD EDQW chair, following consultation with and concurrence 
by the EDQW component principals, grants or revokes AB recognition in 
accordance with this paragraph.
    (2) Limitations. Candidate ABs must be U.S.-based signatories in 
good standing to the ILAC MRA. ABs must maintain ILAC recognition to 
maintain DoD ELAP recognition. Because the EDQW continually monitors AB 
performance, no pre-defined limits are placed on the duration of 
recognition; however, the EDQW may revoke recognition at any time, for 
cause, in accordance with paragraph (c)(3)(vii) of this section.
    (3) Procedures. (i) Upon receipt of an application for recognition, 
the DoD EDQW will review the application package for completeness. A 
complete application package must include:
    (A) Application for recognition.
    (B) Signed acceptance of the conditions and criteria for DoD ELAP 
recognition.
    (C) Electronic copy of the AB's quality systems documentation.
    (D) Copy of the most recent ILAC MRA peer evaluation documentation.
    (ii) If necessary to complete the review, the DoD EDQW will request 
additional documentation from the applicant.
    (iii) The EDQW component principals will review the application 
package for compliance with requirements. Prior to granting recognition, 
the EDQW component principals must unanimously concur that all 
application requirements have been met.
    (iv) Once the EDQW component principals have completed review of the 
application package, the DoD EDQW chair will notify the AB, either 
granting recognition or citing specific reasons for not doing so (i.e., 
indicating which areas of the application package are deficient).
    (v) Once recognition has been granted, the DoD EDQW chair will post 
the name and contact information of the AB on DENIX.

[[Page 914]]

    (vi) With unanimous concurrence, the EDQW component principals may 
revoke recognition if the AB:
    (A) Violates any of the conditions or criteria for recognition.
    (B) Fails to operate in accordance with its documented quality 
system.
    (vii) Should it become necessary to revoke an AB's recognition, the 
DoD EDQW chair will notify the AB stating specific reasons for the 
revocation and remove the AB's name from the list of DoD ELAP-recognized 
ABs.
    (viii) If recognition is revoked, the AB must immediately cease to 
perform all DoD ELAP assessments.
    (ix) ABs who have been denied recognition, or ABs whose recognition 
has been revoked, may appeal that decision.
    (A) Within 15 calendar days of its receipt of a notice denying or 
revoking recognition, the AB must submit to the DoD EDQW chair a written 
statement with supporting documentation contesting the denial or 
revocation.
    (B) The submission must demonstrate that:
    (1) Clear, factual errors were made by the DoD EDQW during the 
review of the AB's application for recognition; or
    (2) The decision to revoke recognition was based on clear, factual 
errors, and that the AB would have been determined to meet all 
requirements for recognition if those errors had been corrected.
    (x) The DoD EDQW will have up to 30 calendar days to review the 
appeal and provide written notice to the AB either accepting the appeal 
and granting, or restoring, recognition, or explaining the basis for 
denying the appeal.
    (4) Continual improvement. The DoD EDQW will meet with ABs on an 
annual basis to review lessons learned and identify additional 
opportunities for continual improvement of the DoD ELAP. On a 5-year 
cycle, at minimum, the DoD EDQW will evaluate whether the process for 
evaluating and recognizing ABs is continuing to meet DoD needs.
    (5) Data and records management. Through NAVSEASYSCOM, the DoD EDQW, 
will maintain copies of all application packages and associated 
documentation in accordance with Secretary of the Navy Manual M-5210.1.
    (d) Performing government oversight--(1) General. DoD personnel will 
use the procedures in this paragraph to perform and document government 
oversight of the DoD ELAP. Government oversight will include monitoring 
the performance of AB assessors during laboratory assessments, reviewing 
laboratory assessment reports, observing ILAC MRA peer evaluations, and 
evaluating AB Web sites for content on accredited laboratories.
    (2) Limitations. (i) DoD personnel performing oversight must 
observe, but must not participate in, laboratory assessments or ILAC MRA 
peer evaluations. Specifically, DoD personnel must not:
    (A) Offer specific advice to the laboratory regarding the 
development or implementation of quality systems or technical 
procedures;
    (B) Offer specific advice or direction to assessors or peer 
evaluators regarding accreditation processes, assessment procedures, or 
documentation of findings; or
    (C) Impede assessors, peer reviewers, or laboratory personnel in any 
way during the performance of their work, including technical 
procedures, document reviews, observations, interviews, and meetings.
    (ii) If, during the course of an assessment, questions by laboratory 
personnel or assessors are directed to DoD personnel, personnel must 
limit responses to specific text from the DoD QSM or published FAQs. DoD 
personnel must not render opinions regarding interpretation of the DoD 
QSM. If there are questions about the DoD QSM that require 
interpretation, DoD personnel must advise the assessor to contact the AB 
who may, if necessary, contact the DoD EDQW chair for a coordinated 
response.
    (iii) If DoD personnel observe any evidence of inappropriate 
practices on the part of assessors or laboratory personnel during the 
course of the assessment, they must record the observations and notify 
the DoD EDQW chair immediately (inappropriate practices are identified 
in the DoD QSM). DoD personnel must not call either the laboratory's or 
the assessor's attention to the specific practice in question.

[[Page 915]]

    (3) Personnel qualifications. DoD personnel or contractors 
performing oversight must:
    (i) Meet the government chemist or contractor project chemist 
requirements contained in the USD(AT&L) Memorandum, ``Acquisitions 
Involving Environmental Sampling or Testing Services.''
    (ii) Have a working knowledge of the DoD QSM requirements and be 
familiar with environmental test methods and instrumentation.
    (iii) Obey all laboratory instructions regarding health and safety 
precautions while in the laboratory.
    (4) Procedures. (i) The DoD EDQW will maintain an up-to-date 
calendar of scheduled assessments and peer evaluations based on input 
from the ABs, peer evaluators, and assigned oversight personnel.
    (ii) Once an assessment or peer review has been scheduled, the EDQW 
component principals will determine if DoD oversight of the activity 
will be performed. The goal will be to observe a representative number 
of activities for each AB.
    (iii) The EDQW component principals will provide the DoD EDQW chair 
the names of personnel from their respective DoD Components who will 
participate in the oversight.
    (iv) The DoD EDQW chair will provide the AB with contact information 
for the oversight personnel.
    (v) If two or more DoD personnel are scheduled to monitor the 
assessment, the DoD EDQW chair will designate a lead that will be 
responsible for compiling an oversight report.
    (vi) The lead for the oversight activity will request a copy of the 
assessment plan from the AB's lead assessor and distribute it to other 
oversight personnel.
    (vii) The lead will review the assessment plan to determine the 
scope of accreditation and ensure that oversight personnel are assigned 
to monitor a cross-section of the assessment.
    (viii) Persons performing oversight will review previous oversight 
reports, if available, for the particular AB and assessors performing 
the assessment.
    (ix) Observing all health and safety protective measures, oversight 
personnel must accompany the assessor(s) as they witness procedures and 
conduct interviews, taking care not to interfere with the assessment.
    (5) Reporting. Within 15 calendar days of the onsite assessment, the 
lead for the oversight activity will complete an oversight report and 
forward the completed report through the appropriate EDQW component 
principal to the DoD EDQW chair.
    (i) The DoD EDQW chair will provide copies of the report to the EDQW 
component principals for review.
    (ii) After review by the EDQW component principals, the DoD EDQW 
chair will provide a summary of the oversight report to the AB 
performing the assessment.
    (6) Handling disputes. Laboratories must follow the AB's dispute 
resolution process for all disputes concerning the assessment or 
accreditation of the laboratory, including disagreements involving an 
interpretation of the DoD QSM arising during the accreditation process.
    (i) In the event the laboratory and the AB are unable to resolve a 
disagreement concerning the interpretation of the DoD QSM, either the 
laboratory or the AB may request the DoD EDQW provide an interpretation 
of the DoD QSM. The DoD EDQW chair will provide a written response to 
the laboratory and the AB providing the DoD authoritative interpretation 
of the DoD QSM. No review of this interpretation will be available to 
the laboratory or the AB.
    (ii) The DoD EDQW will not consider or take a position on requests 
by either a laboratory or an AB on a dispute concerning accreditation of 
the laboratory.
    (7) Continual improvement. The DoD EDQW will:
    (i) Review the ABs' assessment reports and the DoD oversight reports 
to evaluate the thoroughness, consistency, objectivity, and impartiality 
of the DoD ELAP assessments.
    (ii) Compare assessment reports across laboratories, ABs, and 
assessors.
    (iii) Compare DoD ELAP findings to findings from previous 
assessments.
    (iv) Identify opportunities for continual improvement of the DoD 
ELAP.
    (v) Meet with ABs on an annual basis to review lessons learned and 
identify

[[Page 916]]

additional opportunities for continual improvement of the DoD ELAP.
    (8) Data and records management. Through NAVSEASYSCOM, the DoD EDQW 
will maintain copies of all oversight reports in accordance with 
Secretary of the Navy Manual M-5210.1.
    (e) Conducting project-specific laboratory approvals--(1) General. 
The DoD EDQW will use the procedures in this paragraph to conduct 
project-specific laboratory approvals for specific tests in the rare 
instances when DoD is unable to identify a DoD ELAP-accredited 
laboratory capable of providing the required services. This will ensure 
that competent laboratories are used to support DoD environmental 
projects. Examples of these rare instances include:
    (i) The required method, matrix, or analyte is not included in the 
scope of accreditation for any existing DoD ELAP-accredited 
laboratories.
    (ii) The required method, matrix, and analyte combination is 
included in the scope of accreditation for an existing accredited 
laboratory; however, the laboratory is unable to meet one or more of the 
project-specific measurement performance criteria.
    (2) Limitations. (i) Project-specific laboratory approvals are not 
to be used as substitutes for the required DoD ELAP-accreditation.
    (ii) The DoD EDQW will not perform project-specific laboratory 
approvals in cases where one or more DoD ELAP-accredited laboratories 
capable of meeting project-specific requirements are available.
    (iii) The project-specific laboratory approval is a one-time 
approval, the specific terms of which will be outlined in the approval 
notice issued by the DoD EDQW.
    (3) Personnel qualifications. DoD personnel and contractors 
assessing laboratories for the purpose of performing project-specific 
laboratory approvals must meet the government chemist or contractor 
project chemist requirements contained in USD(AT&L) Memorandum, 
``Acquisitions Involving Environmental Sampling or Testing Services.'' 
Personnel must have a working knowledge of the DoD QSM requirements and 
be familiar with required environmental test methods and 
instrumentation.
    (4) Procedures. (i) If a project-specific laboratory approval is 
requested, the DoD EDQW will request and review a copy of the project's 
quality assurance project plan (QAPP).
    (ii) If, after review of the QAPP, the DoD EDQW determines that an 
existing DoD ELAP-accredited laboratory is available to provide the 
required services, the laboratory contact information will be provided 
to the project manager requesting assistance.
    (iii) If, after review of the QAPP, the DoD EDQW determines that no 
existing DoD ELAP-accredited laboratory is available to provide the 
required services, the DoD EDQW will:
    (A) Work with the project team to determine whether the use of 
alternative procedures by an existing DoD ELAP-accredited laboratory is 
feasible;
    (B) Determine if the required services can be added to the scope of 
accreditation of an existing DoD ELAP-accredited laboratory; or
    (C) Work with the project team to identify a candidate laboratory 
for project-specific laboratory approval.
    (iv) If a project-specific approval is needed, the DoD EDQW will:
    (A) Determine the type of assessment required (on-site, document 
review, etc.).
    (B) Determine if additional funding is required to support the 
assessment. If additional funding is required, the DoD EDQW will provide 
a cost estimate and work with the project manager to establish funding.
    (v) If the DoD EDQW determines that a project-specific laboratory 
approval is warranted and resources (including funding and technical 
expertise) are available to support the assessment, the DoD EDQW chair 
will coordinate with the EDQW component principals to appoint an 
assessment team with appropriate technical backgrounds.
    (vi) The DoD EDQW chair will designate an assessment team leader. 
The assessment team leader will:
    (A) Request the documentation needed to perform the assessment.
    (B) Assign responsibilities for individual members of the assessment 
team, if appropriate.
    (C) Coordinate the document reviews.

[[Page 917]]

    (D) Lead the assessment team in the performance of the on-site 
assessment, if required.
    (E) Provide a report to the DoD EDQW chair. The report will identify 
whether:
    (1) The laboratory is capable of meeting all project-specific 
requirements.
    (2) Documentation procedures are in place to provide data that are 
scientifically valid, defensible, and reproducible.
    (3) Any deficiencies must be corrected prior to granting the 
project-specific laboratory approval.
    (vii) The DoD EDQW chair, with concurrence by the EDQW component 
principals, will issue a report to the project manager and laboratory 
detailing the results of the assessment and any deficiencies that must 
be corrected prior to granting a project-specific laboratory approval.
    (viii) Upon receipt of the laboratory's corrective action response, 
if required, the assessment team will:
    (A) Review the laboratory's corrective action response for resolving 
the deficiencies.
    (B) Provide the EDQW component principals with a final report 
describing the resolution of findings and containing recommendations on 
whether to grant the project-specific laboratory approval.
    (ix) The DoD EDQW chair, with concurrence by the EDQW component 
principals, will prepare a report for the DoD project manager describing 
the results of the assessment and the status and terms of the project-
specific laboratory approval. Information about project-specific 
laboratory approvals will not be posted on Web sites listing DoD ELAP-
accredited laboratories.
    (5) Continual improvement. The EDQW component principals will review 
project-specific laboratory assessment reports to evaluate the 
thoroughness, consistency, objectivity, and impartiality of project-
specific assessments and make recommendations for continual improvement 
of the DoD QSM and the DoD ELAP.
    (6) Data and records management. Through NAVSEASYSCOM, the DoD EDQW 
will maintain copies of all laboratory records and project-specific 
assessment reports in accordance with Secretary of the Navy Manual M-
5210.1.
    (f) Handling complaints--(1) General. The DoD EDQW will use the 
procedures in this paragraph to handle complaints concerning the 
processes established in the DoD ELAP or the DoD QSM. The DoD EDQW will 
document and resolve complaints promptly through the appropriate 
channels, consistently and objectively, and identify and implement any 
necessary corrective action arising from complaints. Complaints 
generally fall into one of four categories:
    (i) Complaints by any party against an accredited laboratory.
    (ii) Complaints by any party against an AB.
    (iii) Complaints by any party concerning any assessor acting on 
behalf of the AB.
    (iv) Complaints by any party against the DoD ELAP itself.
    (2) Limitations. The procedures in this paragraph:
    (i) Do not address appeals by laboratories regarding accreditation 
decisions by ABs. Appeals to decisions made by ABs regarding the 
accreditation status of any laboratory must be filed directly with the 
AB in accordance with agreements in place between the laboratory and the 
AB.
    (ii) Are not designed to handle allegations of unethical or illegal 
actions as described in paragraph (d)(2)(iii) of this section.
    (iii) Do not address complaints involving contractual requirements 
between a laboratory and its client. All contracting issues must be 
resolved with the contracting officer.
    (3) Procedures. (i) All complaints must be filed in writing to the 
EDQW chair. All complaints must provide the basis for the complaint 
(i.e., the specific process or requirement in the DoD ELAP or the DoD 
QSM that has not been satisfied or is believed to need changing) and 
supporting documentation, including descriptions of attempts to resolve 
the complaint by the laboratory or the AB.
    (ii) Upon receipt of the complaint, the DoD EDQW chair will assign a 
unique identifier to the complaint, send a notice of acknowledgement to 
the complainant, and forward a copy of

[[Page 918]]

the complaint to the EDQW component principals.
    (iii) In consultation with the EDQW component principals, the DoD 
EDQW chair will make a preliminary determination of the validity of the 
complaint. Following preliminary review, the actions available to the 
DoD EDQW chair include:
    (A) If the DoD EDQW chair determines the complaint should be handled 
directly between the complainant and the subject of the complaint, the 
DoD EDQW will refer the complaint to the laboratory, or AB, as 
appropriate. The DoD EDQW will notify the complainant of the referral, 
but will take no further action with respect to investigation of the 
complaint. The subject of the complaint will be expected to respond to 
the complainant in accordance with their established procedures and 
timelines. A copy of the response will be provided to the DoD EDQW.
    (B) If insufficient information has been provided to determine 
whether the complaint has merit, the DoD EDQW will return the complaint 
to the complainant with a request for additional supporting 
documentation.
    (C) If the complaint appears to have merit and the parties to the 
complaint have been unable to resolve it, the DoD EDQW will investigate 
the complaint and recommend actions for its resolution.
    (D) If available information does not support the complaint, the DoD 
EDQW may reject the complaint.
    (E) If the complaint alleges inappropriate laboratory practices or 
other misconduct, the DoD EDQW chair will consult legal counsel to 
determine the recommended course of action.
    (iv) In all cases, the DoD EDQW will notify the complainant and any 
other entity involved in the complaint and explain the response of the 
EDQW to the complaint.
    (4) Continual improvement. The DoD EDQW will look into root causes 
and trends in complaints to help identify actions that should be taken 
by the DoD EDQW, or any parties involved with DoD ELAP, to prevent 
recurrence of problems that led to the complaints.
    (5) Data and records management. Through NAVSEASYSCOM, the DoD EDQW 
will maintain copies of all complaint documentation in accordance with 
Secretary of the Navy Manual M-5210.1.

                        PARTS 189	190 [RESERVED]

[[Page 919]]



                              FINDING AIDS




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

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected

[[Page 921]]



                    Table of CFR Titles and Chapters




                      (Revised as of July 1, 2021)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
       III  Administrative Conference of the United States (Parts 
                300--399)
        IV  Miscellaneous Agencies (Parts 400--599)
        VI  National Capital Planning Commission (Parts 600--699)

                    Title 2--Grants and Agreements

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

[[Page 922]]

     XXVII  Small Business Administration (Parts 2700--2799)
    XXVIII  Department of Justice (Parts 2800--2899)
      XXIX  Department of Labor (Parts 2900--2999)
       XXX  Department of Homeland Security (Parts 3000--3099)
      XXXI  Institute of Museum and Library Services (Parts 3100--
                3199)
     XXXII  National Endowment for the Arts (Parts 3200--3299)
    XXXIII  National Endowment for the Humanities (Parts 3300--
                3399)
     XXXIV  Department of Education (Parts 3400--3499)
      XXXV  Export-Import Bank of the United States (Parts 3500--
                3599)
     XXXVI  Office of National Drug Control Policy, Executive 
                Office of the President (Parts 3600--3699)
    XXXVII  Peace Corps (Parts 3700--3799)
     LVIII  Election Assistance Commission (Parts 5800--5899)
       LIX  Gulf Coast Ecosystem Restoration Council (Parts 5900--
                5999)

                        Title 3--The President

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

                           Title 4--Accounts

         I  Government Accountability Office (Parts 1--199)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
        IV  Office of Personnel Management and Office of the 
                Director of National Intelligence (Parts 1400--
                1499)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Parts 2100--2199)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Parts 3200--
                3299)
     XXIII  Department of Energy (Parts 3300--3399)
      XXIV  Federal Energy Regulatory Commission (Parts 3400--
                3499)
       XXV  Department of the Interior (Parts 3500--3599)
      XXVI  Department of Defense (Parts 3600--3699)

[[Page 923]]

    XXVIII  Department of Justice (Parts 3800--3899)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  U.S. International Development Finance Corporation 
                (Parts 4300--4399)
     XXXIV  Securities and Exchange Commission (Parts 4400--4499)
      XXXV  Office of Personnel Management (Parts 4500--4599)
     XXXVI  Department of Homeland Security (Parts 4600--4699)
    XXXVII  Federal Election Commission (Parts 4700--4799)
        XL  Interstate Commerce Commission (Parts 5000--5099)
       XLI  Commodity Futures Trading Commission (Parts 5100--
                5199)
      XLII  Department of Labor (Parts 5200--5299)
     XLIII  National Science Foundation (Parts 5300--5399)
       XLV  Department of Health and Human Services (Parts 5500--
                5599)
      XLVI  Postal Rate Commission (Parts 5600--5699)
     XLVII  Federal Trade Commission (Parts 5700--5799)
    XLVIII  Nuclear Regulatory Commission (Parts 5800--5899)
      XLIX  Federal Labor Relations Authority (Parts 5900--5999)
         L  Department of Transportation (Parts 6000--6099)
       LII  Export-Import Bank of the United States (Parts 6200--
                6299)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Parts 6400--6499)
        LV  National Endowment for the Arts (Parts 6500--6599)
       LVI  National Endowment for the Humanities (Parts 6600--
                6699)
      LVII  General Services Administration (Parts 6700--6799)
     LVIII  Board of Governors of the Federal Reserve System 
                (Parts 6800--6899)
       LIX  National Aeronautics and Space Administration (Parts 
                6900--6999)
        LX  United States Postal Service (Parts 7000--7099)
       LXI  National Labor Relations Board (Parts 7100--7199)
      LXII  Equal Employment Opportunity Commission (Parts 7200--
                7299)
     LXIII  Inter-American Foundation (Parts 7300--7399)
      LXIV  Merit Systems Protection Board (Parts 7400--7499)
       LXV  Department of Housing and Urban Development (Parts 
                7500--7599)
      LXVI  National Archives and Records Administration (Parts 
                7600--7699)
     LXVII  Institute of Museum and Library Services (Parts 7700--
                7799)
    LXVIII  Commission on Civil Rights (Parts 7800--7899)
      LXIX  Tennessee Valley Authority (Parts 7900--7999)
       LXX  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 8000--8099)
      LXXI  Consumer Product Safety Commission (Parts 8100--8199)
    LXXIII  Department of Agriculture (Parts 8300--8399)

[[Page 924]]

     LXXIV  Federal Mine Safety and Health Review Commission 
                (Parts 8400--8499)
     LXXVI  Federal Retirement Thrift Investment Board (Parts 
                8600--8699)
    LXXVII  Office of Management and Budget (Parts 8700--8799)
      LXXX  Federal Housing Finance Agency (Parts 9000--9099)
   LXXXIII  Special Inspector General for Afghanistan 
                Reconstruction (Parts 9300--9399)
    LXXXIV  Bureau of Consumer Financial Protection (Parts 9400--
                9499)
    LXXXVI  National Credit Union Administration (Parts 9600--
                9699)
     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Parts 
                9700--9799)
    XCVIII  Council of the Inspectors General on Integrity and 
                Efficiency (Parts 9800--9899)
      XCIX  Military Compensation and Retirement Modernization 
                Commission (Parts 9900--9999)
         C  National Council on Disability (Parts 10000--10049)
        CI  National Mediation Board (Parts 10100--10199)
       CII  U.S. Office of Special Counsel (Parts 10200--10299)

                      Title 6--Domestic Security

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

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Agricultural Marketing Service (Federal Grain 
                Inspection Service, Fair Trade Practices Program), 
                Department of Agriculture (Parts 800--899)

[[Page 925]]

        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  (Parts 1600--1699) [Reserved]
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
        XX  (Parts 2200--2299) [Reserved]
       XXV  Office of Advocacy and Outreach, Department of 
                Agriculture (Parts 2500--2599)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy Policy and New Uses, Department of 
                Agriculture (Parts 2900--2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  National Institute of Food and Agriculture (Parts 
                3400--3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)

[[Page 926]]

         L  Rural Business-Cooperative Service, and Rural 
                Utilities Service, Department of Agriculture 
                (Parts 5000--5099)

                    Title 8--Aliens and Nationality

         I  Department of Homeland Security (Parts 1--499)
         V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1399)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Agricultural Marketing Service (Fair Trade Practices 
                Program), Department of Agriculture (Parts 200--
                299)
       III  Food Safety and Inspection Service, Department of 
                Agriculture (Parts 300--599)

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
      XIII  Nuclear Waste Technical Review Board (Parts 1300--
                1399)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Parts 1800--1899)

                      Title 11--Federal Elections

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

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  (Parts 500--599) [Reserved]
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  (Parts 900--999) [Reserved]
         X  Bureau of Consumer Financial Protection (Parts 1000--
                1099)

[[Page 927]]

        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XII  Federal Housing Finance Agency (Parts 1200--1299)
      XIII  Financial Stability Oversight Council (Parts 1300--
                1399)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
       XVI  Office of Financial Research, Department of the 
                Treasury (Parts 1600--1699)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700--1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)
        IV  Emergency Steel Guarantee Loan Board (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board (Parts 
                500--599)

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--1199)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)

[[Page 928]]

      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  National Technical Information Service, Department of 
                Commerce (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
        XV  Office of the Under-Secretary for Economic Affairs, 
                Department of Commerce (Parts 1500--1599)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399) [Reserved]

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  U.S. Customs and Border Protection, Department of 
                Homeland Security; Department of the Treasury 
                (Parts 0--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  U.S. Immigration and Customs Enforcement, Department 
                of Homeland Security (Parts 400--599) [Reserved]

[[Page 929]]

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees' Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  United States Agency for Global Media (Parts 500--599)
       VII  U.S. International Development Finance Corporation 
                (Parts 700--799)
        IX  Foreign Service Grievance Board (Parts 900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
      XIII  Millennium Challenge Corporation (Parts 1300--1399)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

[[Page 930]]

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799) 
                [Reserved]
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XV  Emergency Mortgage Insurance and Loan Programs, 
                Department of Housing and Urban Development (Parts 
                2700--2799) [Reserved]

[[Page 931]]

        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
      XXIV  Board of Directors of the HOPE for Homeowners Program 
                (Parts 4000--4099) [Reserved]
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--899)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900--999)
        VI  Office of the Assistant Secretary, Indian Affairs, 
                Department of the Interior (Parts 1000--1199)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Parts 1200--1299)

                      Title 26--Internal Revenue

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

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of the Treasury (Parts 1--399)
        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--799)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)
      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)

[[Page 932]]

        XI  Department of Justice and Department of State (Parts 
                1100--1199)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Employee Benefits Security Administration, Department 
                of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

                      Title 30--Mineral Resources

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

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance

[[Page 933]]

         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of Investment Security, Department of the 
                Treasury (Parts 800--899)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)
         X  Financial Crimes Enforcement Network, Department of 
                the Treasury (Parts 1000--1099)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Department of Defense, Defense Logistics Agency (Parts 
                1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
      XVII  Office of the Director of National Intelligence (Parts 
                1700--1799)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)
    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Corps of Engineers, Department of the Army, Department 
                of Defense (Parts 200--399)
        IV  Great Lakes St. Lawrence Seaway Development 
                Corporation, Department of Transportation (Parts 
                400--499)

[[Page 934]]

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Career, Technical, and Adult Education, 
                Department of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599) 
                [Reserved]
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
       VII  Office of Educational Research and Improvement, 
                Department of Education (Parts 700--799) 
                [Reserved]
            Subtitle C--Regulations Relating to Education
        XI  (Parts 1100--1199) [Reserved]
       XII  National Council on Disability (Parts 1200--1299)

                          Title 35 [Reserved]

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
        VI  [Reserved]
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Parts 1500--
                1599)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  U.S. Copyright Office, Library of Congress (Parts 
                200--299)

[[Page 935]]

       III  Copyright Royalty Board, Library of Congress (Parts 
                300--399)
        IV  National Institute of Standards and Technology, 
                Department of Commerce (Parts 400--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

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

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Regulatory Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--1099)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)
       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)
      VIII  Gulf Coast Ecosystem Restoration Council (Parts 1800--
                1899)
        IX  Federal Permitting Improvement Steering Council (Part 
                1900)

          Title 41--Public Contracts and Property Management

            Subtitle A--Federal Procurement Regulations System 
                [Note]
            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 61-1--61-999)
   62--100  [Reserved]
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       102  Federal Management Regulation (Parts 102-1--102-299)
  103--104  [Reserved]
       105  General Services Administration (Parts 105-1--105-999)

[[Page 936]]

       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
  129--200  [Reserved]
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-1--303-99)
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
   II--III  [Reserved]
        IV  Centers for Medicare & Medicaid Services, Department 
                of Health and Human Services (Parts 400--699)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1099)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 400--999)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10099)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

[[Page 937]]

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899)
        IX  Denali Commission (Parts 900--999)
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  Corporation for National and Community Service (Parts 
                1200--1299)
      XIII  Administration for Children and Families, Department 
                of Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission of Fine Arts (Parts 2100--2199)
     XXIII  Arctic Research Commission (Parts 2300--2399)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

[[Page 938]]

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)
        IV  National Telecommunications and Information 
                Administration, Department of Commerce, and 
                National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 400--499)
         V  The First Responder Network Authority (Parts 500--599)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Defense Acquisition Regulations System, Department of 
                Defense (Parts 200--299)
         3  Department of Health and Human Services (Parts 300--
                399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  Agency for International Development (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  Broadcasting Board of Governors (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        30  Department of Homeland Security, Homeland Security 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)

[[Page 939]]

        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199) [Reserved]
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399) 
                [Reserved]
        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        57  African Development Foundation (Parts 5700--5799)
        61  Civilian Board of Contract Appeals, General Services 
                Administration (Parts 6100--6199)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Pipeline and Hazardous Materials Safety 
                Administration, Department of Transportation 
                (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Homeland Security (Parts 
                400--499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board (Parts 1000--1399)
        XI  Research and Innovative Technology Administration, 
                Department of Transportation (Parts 1400--1499) 
                [Reserved]
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1699)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)

[[Page 940]]

        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

[[Page 941]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of July 1, 2021)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Conference of the United States    1, III
Advisory Council on Historic Preservation         36, VIII
Advocacy and Outreach, Office of                  7, XXV
Afghanistan Reconstruction, Special Inspector     5, LXXXIII
     General for
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development              2, VII; 22, II
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, VIII, IX, X, XI; 9, 
                                                  II
Agricultural Research Service                     7, V
Agriculture, Department of                        2, IV; 5, LXXIII
  Advocacy and Outreach, Office of                7, XXV
  Agricultural Marketing Service                  7, I, VIII, IX, X, XI; 9, 
                                                  II
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  Commodity Credit Corporation                    7, XIV
  Economic Research Service                       7, XXXVII
  Energy Policy and New Uses, Office of           2, IX; 7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Food and Nutrition Service                      7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  National Institute of Food and Agriculture      7, XXXIV
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Procurement and Property Management, Office of  7, XXXII
  Rural Business-Cooperative Service              7, XVIII, XLII
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV
  Rural Utilities Service                         7, XVII, XVIII, XLII
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force, Department of                          32, VII
  Federal Acquisition Regulation Supplement       48, 53
Air Transportation Stabilization Board            14, VI
Alcohol and Tobacco Tax and Trade Bureau          27, I
Alcohol, Tobacco, Firearms, and Explosives,       27, II
     Bureau of
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII
Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX
Architectural and Transportation Barriers         36, XI
   Compliance Board
[[Page 942]]

Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI; 38, II
Army, Department of                               32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Benefits Review Board                             20, VII
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase from People Who Are
  Federal Acquisition Regulation                  48, 19
Career, Technical, and Adult Education, Office    34, IV
     of
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chemical Safety and Hazard Investigation Board    40, VI
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X, XIII
Civil Rights, Commission on                       5, LXVIII; 45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce, Department of                           2, XIII; 44, IV; 50, VI
  Census Bureau                                   15, I
  Economic Affairs, Office of the Under-          15, XV
       Secretary for
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  Foreign-Trade Zones Board                       15, IV
  Industry and Security, Bureau of                15, VII
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II; 37, IV
  National Marine Fisheries Service               50, II, IV
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Technical Information Service          15, XI
  National Telecommunications and Information     15, XXIII; 47, III, IV
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office, United States      37, I
  Secretary of Commerce, Office of                15, Subtitle A
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Financial Protection Bureau              5, LXXXIV; 12, X
Consumer Product Safety Commission                5, LXXI; 16, II
Copyright Royalty Board                           37, III
Corporation for National and Community Service    2, XXII; 45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Council of the Inspectors General on Integrity    5, XCVIII
     and Efficiency
Court Services and Offender Supervision Agency    5, LXX; 28, VIII
     for the District of Columbia
Customs and Border Protection                     19, I
Defense, Department of                            2, XI; 5, XXVI; 32, 
                                                  Subtitle A; 40, VII
  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III; 
                                                  48, 51
  Defense Acquisition Regulations System          48, 2
  Defense Intelligence Agency                     32, I

[[Page 943]]

  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  National Imagery and Mapping Agency             32, I
  Navy, Department of                             32, VI; 48, 52
  Secretary of Defense, Office of                 2, XI; 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
Denali Commission                                 45, IX
Disability, National Council on                   5, C; 34, XII
District of Columbia, Court Services and          5, LXX; 28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Office of the Under-Secretary   15, XV
     for
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          2, XXXIV; 5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Career, Technical, and Adult Education, Office  34, IV
       of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
Educational Research and Improvement, Office of   34, VII
Election Assistance Commission                    2, LVIII; 11, II
Elementary and Secondary Education, Office of     34, II
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
Employee Benefits Security Administration         29, XXV
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Policy, National Commission for        1, IV
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             2, IX; 5, XXIII; 10, II, 
                                                  III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Environmental Protection Agency                   2, XV; 5, LIV; 40, I, IV, 
                                                  VII
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                2, Subtitle A; 5, III, 
                                                  LXXVII; 14, VI; 48, 99
  National Drug Control Policy, Office of         2, XXXVI; 21, III
  National Security Council                       32, XXI; 47, II
  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
     States
[[Page 944]]

Export-Import Bank of the United States           2, XXXV; 5, LII; 12, IV
Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               31, IX
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       5, XXXVII; 11, I
Federal Emergency Management Agency               44, I
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Agency                    5, LXXX; 12, XII
Federal Labor Relations Authority                 5, XIV, XLIX; 22, XIV
Federal Law Enforcement Training Center           31, VII
Federal Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Permitting Improvement Steering Council   40, IX
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Financial Crimes Enforcement Network              31, X
Financial Research Office                         12, XVI
Financial Stability Oversight Council             12, XIII
Fine Arts, Commission of                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Food and Drug Administration                      21, I
Food and Nutrition Service                        7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Management Regulation                   41, 102

[[Page 945]]

  Federal Property Management Regulations         41, 101
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Accountability Office                  4, I
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Great Lakes St. Lawrence Seaway Development       33, IV
     Corporation
Gulf Coast Ecosystem Restoration Council          2, LIX; 40, VIII
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          2, III; 5, XLV; 45, 
                                                  Subtitle A
  Centers for Medicare & Medicaid Services        42, IV
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X, XIII
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Indian Health Service                           25, V
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  2, XXX; 5, XXXVI; 6, I; 8, 
                                                  I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection                   19, I
  Federal Emergency Management Agency             44, I
  Human Resources Management and Labor Relations  5, XCVII
       Systems
  Immigration and Customs Enforcement Bureau      19, IV
  Transportation Security Administration          49, XII
HOPE for Homeowners Program, Board of Directors   24, XXIV
     of
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Housing and Urban Development, Department of      2, XXIV; 5, LXV; 24, 
                                                  Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Immigration and Customs Enforcement Bureau        19, IV
Immigration Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII
Independent Counsel, Offices of                   28, VI
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
   Secretary
[[Page 946]]

Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V
Industry and Security, Bureau of                  15, VII
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII, XV
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior, Department of                           2, XIV
  American Indians, Office of the Special         25, VII
       Trustee
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Natural Resource Revenue, Office of             30, XII
  Ocean Energy Management, Bureau of              30, V
  Reclamation, Bureau of                          43, I
  Safety and Enforcement Bureau, Bureau of        30, II
  Secretary of the Interior, Office of            2, XIV; 43, Subtitle A
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
International Development Finance Corporation,    5, XXXIII; 22, VII
     U.S.
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
Investment Security, Office of                    31, VIII
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice, Department of                            2, XXVIII; 5, XXVIII; 28, 
                                                  I, XI; 40, IV
  Alcohol, Tobacco, Firearms, and Explosives,     27, II
       Bureau of
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration Review, Executive Office for        8, V
  Independent Counsel, Offices of                 28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor, Department of                              2, XXIX; 5, XLII
  Benefits Review Board                           20, VII
  Employee Benefits Security Administration       29, XXV
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Federal Acquisition Regulation                  48, 29

[[Page 947]]

  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I, VI
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Libraries and Information Science, National       45, XVII
     Commission on
Library of Congress                               36, VII
  Copyright Royalty Board                         37, III
  U.S. Copyright Office                           37, II
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II, LXIV
Micronesian Status Negotiations, Office for       32, XXVII
Military Compensation and Retirement              5, XCIX
     Modernization Commission
Millennium Challenge Corporation                  22, XIII
Mine Safety and Health Administration             30, I
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
Museum and Library Services, Institute of         2, XXXI
National Aeronautics and Space Administration     2, XVIII; 5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National and Community Service, Corporation for   2, XXII; 45, XII, XXV
National Archives and Records Administration      2, XXVI; 5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Capital Planning Commission              1, IV, VI
National Counterintelligence Center               32, XVIII
National Credit Union Administration              5, LXXXVI; 12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           2, XXXVI; 21, III
National Endowment for the Arts                   2, XXXII
National Endowment for the Humanities             2, XXXIII
National Foundation on the Arts and the           45, XI
     Humanities
National Geospatial-Intelligence Agency           32, I
National Highway Traffic Safety Administration    23, II, III; 47, VI; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute of Food and Agriculture        7, XXXIV
National Institute of Standards and Technology    15, II; 37, IV
National Intelligence, Office of Director of      5, IV; 32, XVII
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV
National Mediation Board                          5, CI; 29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       2, XXV; 5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI; 47, II

[[Page 948]]

National Technical Information Service            15, XI
National Telecommunications and Information       15, XXIII; 47, III, IV, V
     Administration
National Transportation Safety Board              49, VIII
Natural Resource Revenue, Office of               30, XII
Natural Resources Conservation Service            7, VI
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy, Department of                               32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
     Commission
Nuclear Regulatory Commission                     2, XX; 5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Ocean Energy Management, Bureau of                30, V
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Patent and Trademark Office, United States        37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       2, XXXVII; 22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, IV, XXXV; 45, VIII
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
  Human Resources Management and Labor Relations  5, XCVII
       Systems, Department of Homeland Security
Pipeline and Hazardous Materials Safety           49, I
     Administration
Postal Regulatory Commission                      5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Privacy and Civil Liberties Oversight Board       6, X
Procurement and Property Management, Office of    7, XXXII
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Contracts, Department of Labor             41, 50
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
Rural Business-Cooperative Service                7, XVIII, XLII
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV
Rural Utilities Service                           7, XVII, XVIII, XLII
Safety and Environmental Enforcement, Bureau of   30, II
Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of, and     32, XXIV; 47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                5, XXXIV; 17, II
Selective Service System                          32, XVI
Small Business Administration                     2, XXVII; 13, I
Smithsonian Institution                           36, V
Social Security Administration                    2, XXIII; 20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII

[[Page 949]]

Special Education and Rehabilitative Services,    34, III
     Office of
State, Department of                              2, VI; 22, I; 28, XI
  Federal Acquisition Regulation                  48, 6
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Tennessee Valley Authority                        5, LXIX; 18, XIII
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     2, XII; 5, L
  Commercial Space Transportation                 14, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II
  Federal Motor Carrier Safety Administration     49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 47, IV; 49, V
  Pipeline and Hazardous Materials Safety         49, I
       Administration
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury, Department of the                       2, X; 5, XXI; 12, XV; 17, 
                                                  IV; 31, IX
  Alcohol and Tobacco Tax and Trade Bureau        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs and Border Protection                   19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Claims Collection Standards             31, IX
  Federal Law Enforcement Training Center         31, VII
  Financial Crimes Enforcement Network            31, X
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  Investment Security, Office of                  31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
Truman, Harry S. Scholarship Foundation           45, XVIII
United States Agency for Global Media             22, V
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
U.S. Copyright Office                             37, II
U.S. Office of Special Counsel                    5, CII
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs, Department of                   2, VIII; 38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I, VII
World Agricultural Outlook Board                  7, XXXVIII

[[Page 951]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations (CFR) that 
were made by documents published in the Federal Register since January 
1, 2016 are enumerated in the following list. Entries indicate the 
nature of the changes effected. Page numbers refer to Federal Register 
pages. The user should consult the entries for chapters, parts and 
subparts as well as sections for revisions.
For changes to this volume of the CFR prior to this listing, consult the 
annual edition of the monthly List of CFR Sections Affected (LSA). The 
LSA is available at www.govinfo.gov. For changes to this volume of the 
CFR prior to 2001, see the ``List of CFR Sections Affected, 1949-1963, 
1964-1972, 1973-1985, and 1986-2000'' published in 11 separate volumes. 
The ``List of CFR Sections Affected 1986-2000'' is available at 
www.govinfo.gov.

                                  2016

32 CFR
                                                                   81 FR
                                                                    Page
Chapter I
64 Removed.........................................................72524
66 Regulation at 80 FR 16270 confirmed.............................64062
66.3 Amended.......................................................64062
66.5 (a) revised; (c) removed; (d) redesignated as new (c).........64063
66.6 (b)(2)(ii), (3)(ii), (8)(iii), (vi)(A) and (9)(ii) amended....64063
66.7 (a) introductory text, (3) and (b)(1) amended.................64063
88.3 Amended; eff. 9-1-16..........................................41808
88.5 (a) introductory text, (c) introductory text, (e) 
        introductory text, (f) introductory text, (j) introductory 
        text and (5) revised; eff. 9-1-16..........................41808
89 Added...........................................................92659
103 Authority citation revised.....................................66187
103.1 (a)(6), (17) and (20) removed; (a)(7) through (16), (18) and 
        (19) redesignated as new (a)(6) through (17); new (a)(14) 
        revised; new (a)(17) amended; new (a)(18) through (23) 
        added; interim.............................................66187
103.2 (b) and (d) introductory text amended; (c) revised; (f) 
        redesignated as (g); new (f) added; interim................66187
103.3 Amended; interim.............................................66187
103.4 (i), (j), (k) introductory text, (1), (2) introductory text, 
        (i), (ii) and (v) amended; (n) added; interim..............66188
103.5 (f)(17), (18), (19), (g), (h) and (i) redesignated as 
        (f)(18), (19), (20), (h), (i) and (j); (a)(1), (6)(i), 
        (iii), (f)(6), (16), new (i)(2) and (5) amended; (a)(6) 
        introductory text, (f)(5) and (12) revised; (a)(6)(vi), 
        new (f)(17), new (g) and (i)(12) added; interim............66188
104 Revised........................................................10494
105 Authority citation revised.....................................66426
105.1 (d) amended; (e) and (f) revised; interim....................66427
105.2 Revised; interim.............................................66428
105.3 Amended; interim.............................................66428
105.4 Revised; interim.............................................66430
105.5 Revised; interim.............................................66432
105.7 (a)(16), (b)(1)(iii), (iv) and (v) redesignated as (a)(20), 
        (b)(1)(iv), (v) and (vi); new (a)(16) through (19), (21), 
        (22) and new (b)(1)(iii) added; (a)(7) and (b)(2)(ii) 
        revised; (a)(8), (10), (12), (13), (14), (15) introductory 
        text, (i), (ii), (b)(1)(ii), new (vi), (2)(iv) and 
        (3)(iii) amended; interim..................................66437

[[Page 952]]

105.8 (a) introductory text, (5)(i), (ii), (c) introductory text, 
        (1), (e)(2)(iv), (v), (3) and (f) amended; footnote 6 
        redesignated as footnote 5; (a)(1), (2) introductory text, 
        (i), (iii), (iv), (v), (3)(ii), (iii), (4), (6) 
        introductory text, (ii), (7), (b), (d), (e)(2) 
        introductory text, (ii), (iii), (4) and (5) revised; 
        (a)(8) and (g) added; footnote 7 removed; interim..........66438
105.9 Revised; interim.............................................66441
105.10 (a)(2), (7)(ii)(A), (iii), (8)(i)(A), (B), (C), (v), (vi), 
        (xxii)(B), (xxv) and (b)(1)(i) revised; (a)(8)(ii)(A), 
        (xiii), (xv), (xx), (b)(1)(iii) and (iv) amended; 
        (a)(8)(ix)(B) removed; (a)(8)(ix)(A) redesignated as new 
        (a)(8)(ix)(B); new (a)(8)(ix)(A), (xxii)(C) and (xxvi) 
        added; interim.............................................66447
105.11 (a)(2) through (11) and (b) through (e) redesignated as 
        (a)(5) through (8), (10) through (15) and (c) through (f); 
        new (a)(2), (3), (4), (9), (16), new (b) and (f)(3) added; 
        (a)(1), new (5), new (11) introductory text, (i), (ii), 
        new (12) introductory text, (i), (ii), new (14)(ii) 
        introductory text, new (15) amended; new (a)(8), new (13), 
        new (e)(2) and new (f)(2)(i) and (ii) revised; interim.....66448
105.12 (a), (c), (e) introductory text, (f) introductory text, (2) 
        introductory text, (ii)(B)(1), (2) and (iii) revised; (d), 
        (f)(2)(i) introductory text, (A) and (ii) introductory 
        text amended; interim......................................66449
105.13 (a)(1) through (6), (b)(2)(ii) through (vii), (8) and (7) 
        redesignated as (a)(2) through (7), (b)(2)(iii) through 
        (viii), (10) and new (8); new (b)(10)(ii) removed; new 
        (b)(10)(iii), (iv) and (v) further redesignated as 
        (b)(10)(A), (B) and new (iii); new (a)(1), new (b)(2)(ii), 
        new (7) and (9) added; new (a)(2), (3), (b)(3)(i), (ii) 
        and (6) amended; new (a)(4), new (b)(2)(iii), new (10) 
        introductory text and new (iii) revised; interim...........66450
105.14 Revised; interim............................................66451
105.15 (a)(1) and (b) revised; interim.............................66459
105.16 (a) introductory text, (b) introductory text, (1), (2), (3) 
        and (d) amended; (a)(4) revised; (a)(6) and (7) added; 
        interim....................................................66459
105.17 Introductory text, (a) introductory text, (1), (b) 
        introductory text, (1)(i), (ii), (2) introductory text, 
        (ii), (c)(4) and (e) introductory text amended; footnote 
        13 redesignated as footnote 10; interim....................66459
105.18 Revised; interim............................................66460
161 Authority citation revised.....................................74875
161.1 (a) amended; (d) added; interim..............................74875
161.3 Amended; interim.............................................74875
161.4 (a), (c) and (e) amended; interim............................74877
161.5 (a)(3), (4), (7), (d), (h), (8) and (i) amended; (d)(7), 
        (8), (h)(12), (13), (i)(3) and (4) added; interim..........74878
161.6 (a), (3), (c), (1)(iii), (iv), (v), (3)(i) and (ii) amended; 
        interim....................................................74878
161.7 (c) introductory text, (1), (d)(1)(ii), (4), (e)(2)(i)(A) 
        and Appendices 1 and 2 amended; (c)(2), (3) introductory 
        text, (d)(1) introductory text and (e)(2)(ii) revised; 
        (e)(2)(i) heading added; interim...........................74878
161.9--161.22 (Subpart C) Revised; interim.........................74879
161.23 (Subpart D) Added; interim..................................74904
188 Added..........................................................80998

[[Page 953]]

                                  2017

32 CFR
                                                                   82 FR
                                                                    Page
Chapter I
9 Removed..........................................................57825
10 Removed.........................................................57825
11 Removed.........................................................57825
12 Removed.........................................................57825
13 Removed.........................................................57825
14 Removed.........................................................57825
15 Removed.........................................................57825
16 Removed.........................................................57825
17 Removed.........................................................57825
19 Removed.........................................................57825
20 Removed.........................................................57825
45 Removed.........................................................58562
154 Removed.........................................................1192

                                  2018

32 CFR
                                                                   83 FR
                                                                    Page
Subtitle A
Chapter I
65 Removed.........................................................26840
80 Removed.........................................................37433
81 Removed.........................................................15065
149 Removed........................................................27704
175 Added..........................................................34475
182 Removed........................................................14589
183 Removed........................................................42589
185 Removed........................................................14589

                                  2019

32 CFR
                                                                   84 FR
                                                                    Page
Subtitle A
Chapter I
48 Removed..........................................................7810
54 Removed.........................................................12933
75 Added............................................................3690
77 Removed..........................................................8809
78 Removed.........................................................55057
88 Removed.........................................................48274
96 Removed.........................................................38552
100 Removed..........................................................968
101 Removed..........................................................969
110 Removed.........................................................6676
111 Added..........................................................49459
117 Removed........................................................47880
151 Revised........................................................18384
162 Removed.........................................................4711
165 Removed........................................................42808
171 Removed........................................................27202

                                  2020

32 CFR
                                                                   85 FR
                                                                    Page
Subtitle A
Chapter I
21.215 Amended.....................................................51240
21.220 Revised.....................................................51240
21.300 (a) amended; (b) revised....................................51240
21.320 (d) removed.................................................51240
21.330 Revised.....................................................51240
21.335 (b) revised.................................................51240
21.340 (a) revised.................................................51240
21.505 Amended.....................................................51240
21.510 Amended; footnote 4 removed.................................51240
21.515 Revised.....................................................51240
21.520 (b) revised.................................................51240
21.525 Amended.....................................................51241
21.530 Revised.....................................................51241
21.535 (d) amended.................................................51241
21.540 (b) and (c) revised.........................................51241
21.555 Revised.....................................................51241
21.565 Footnote 6 redesignated as footnote 2; section amended......51241
21 Appendix A revised..............................................51241
22.100 Revised.....................................................51242
22.220 (a)(2) and (b) amended......................................51242
22.310 (b)(1)(iii) amended.........................................51242
22.315 (a)(3) amended..............................................51242
22.325 Removed.....................................................51242
22.405 (b) amended.................................................51242
22.420 (b)(1), (c)(1) introductory text and (ii) revised...........51242
22.505 Revised.....................................................51242
22.510 (b) revised.................................................51242
22.520 (d)(2), (e)(5) introductory text, (i), and (iii)(A) 
        amended; (e)(1) revised....................................51243
22.605 Footnote 9 redesignated as footnote 6; introductory text, 
        (a), (b), and new footnote 6 revised.......................51243
22.610 Removed.....................................................51243
22.700 Amended.....................................................51243
22.710 Introductory text footnote 10 redesignated as footnote 7 
        and revised; (a)(1), (2), (b) introductory text, (2), and 
        (3) amended; (a)(1) footnote 11 and (2) footnote 12 
        removed; (a)(4) footnotes 13 and 14 redesignated as 
        footnotes 8 and 9; new footnote 9 revised..................51243
22.715 (a)(1), (3) introductory text, (iii), and (4) amended.......51243
22.805 Introductory text and (a) revised...........................51244

[[Page 954]]

22.810 (c)(3)(i) footnote 15 redesignated as footnote 10; (b)(1), 
        (2), and new (c)(3)(i) footnote 10 revised; (c)(1) 
        removed; (c)(3)(iii) amended...............................51244
22.825 (a) revised; (b)(2)(ii) amended.............................51244
22 Appendices B and C removed......................................51244
32 Removed.........................................................51244
33 Removed.........................................................51244
34.1 (b)(2)(ii) amended............................................51244
34.2 Amended.......................................................51244
34.3 (c) amended...................................................51244
34.12 (d) footnote 1 revised.......................................51244
34.15 (c)(3)(i) amended............................................51244
34.16 (a) and (d)(2)(ii) amended...................................51244
34.17 (b) revised..................................................51244
34.41 Introductory text amended....................................51245
34 Appendix A amended..............................................51245
37.130 (c) revised.................................................51245
37.225 Introductory text amended...................................51245
37.620 Revised.....................................................51245
37.635 Revised.....................................................51245
37.645 (b)(1) amended..............................................51246
37.650 (c) amended.................................................51246
37.660 Footnote 4 redesignated as footnote 2.......................51246
37.665 Revised.....................................................51246
37.675 Removed.....................................................51246
37.680 Removed.....................................................51246
37.690 Revised.....................................................51246
37.695 (b) revised; (c) removed....................................51246
37.710 (a) revised.................................................51246
37.875 Footnote 6 redesignated as footnote 3.......................51246
37.880 Revised.....................................................51246
37.890 Footnote 7 redesignated as footnote 4 and revised...........51246
37.895 Footnote 8 redesignated as footnote 5.......................51246
37.920 Revised.....................................................51246
37.1000 (c) amended................................................51246
37.1010 (l) amended................................................51246
37.1030 Removed....................................................51246
37.1035 Removed....................................................51246
37.1040 Removed....................................................51246
37.1100 (g) removed................................................51246
37 Appendix D amended..............................................51247
37 Appendix E revised..............................................51247
44 Revised; interim................................................84241
85 Removed.........................................................11842
103 Revised........................................................42710
104 Removed........................................................34518
105 Removed........................................................57967
112 Removed........................................................27157
114 Added..........................................................23476
117 Added..........................................................83312
143 Removed........................................................56172
144 Removed........................................................27158
172 Removed........................................................19392

                                  2021

   (Regulations published from January 1, 2021, through July 1, 2021)

32 CFR
                                                                   86 FR
                                                                    Page
Subtitle A
Chapter I
45 Added; eff. 7-19-21; interim....................................32208
45.11 Correction: second (g)(5), (6), and (7) redesignated as 
        (g)(6) through (8); eff. 7-19-21; interim..................33885
68 Authority citation revised......................................27976
68.6 (d)(2) removed; (d)(3) through (6) redesignated as new (d)(2) 
        through (5)................................................27976


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