[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


________________________

Part 800 to End

                         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.................................................      vi

  Title 32:
    SUBTITLE A--Department of Defense (Continued)
          Chapter VII--Department of the Air Force                   5
    SUBTITLE B--Other Regulations Relating to National Defense
          Chapter XII--Department of Defense, Defense 
          Logistics Agency                                         175
          Chapter XVI--Selective Service System                    191
          Chapter XVII--Office of the Director of National 
          Intelligence                                             263
          Chapter XVIII--National Counterintelligence Center       295
          Chapter XIX--Central Intelligence Agency                 333
          Chapter XX--Information Security Oversight Office, 
          National Archives and Records Administration             387
          Chapter XXI--National Security Council                   481
          Chapter XXIV--Office of Science and Technology 
          Policy                                                   491
          Chapter XXVII--Office for Micronesian Status 
          Negotiations                                             519
          Chapter XXVIII--Office of the Vice President of the 
          United States                                            529
  Finding Aids:
      Table of CFR Titles and Chapters........................     543

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      Alphabetical List of Agencies Appearing in the CFR......     563
      List of CFR Sections Affected...........................     573

[[Page v]]





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

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 32 CFR 806.1 refers 
                       to title 32, part 806, 
                       section 1.

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

[[Page vi]]



                               EXPLANATION

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

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

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

LEGAL STATUS

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

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, July 1, 2021), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

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

[[Page vii]]

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

PAST PROVISIONS OF THE CODE

    Provisions of the Code that are no longer in force and effect as of 
the revision date stated on the cover of each volume are not carried. 
Code users may find the text of provisions in effect on any given date 
in the past by using the appropriate List of CFR Sections Affected 
(LSA). For the convenience of the reader, a ``List of CFR Sections 
Affected'' is published at the end of each CFR volume. For changes to 
the Code prior to the LSA listings at the end of the volume, consult 
previous annual editions of the LSA. For changes to the Code prior to 
2001, consult the List of CFR Sections Affected compilations, published 
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.

``[RESERVED]'' TERMINOLOGY

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

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
valid, the Director of the Federal Register must approve it. The legal 
effect of incorporation by reference is that the material is treated as 
if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed as 
an approved incorporation by reference, please contact the agency that 
issued the regulation containing that incorporation. If, after 
contacting the agency, you find the material is not available, please 
notify the Director of the Federal Register, National Archives and 
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001, 
or call 202-741-6010.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Authorities 
and Rules. A list of CFR titles, chapters, subchapters, and parts and an 
alphabetical list of agencies publishing in the CFR are also included in 
this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.

[[Page viii]]

    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of material appearing 
in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
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the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-741-6000 
or write to the Director, Office of the Federal Register, National 
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ELECTRONIC SERVICES

    The full text of the Code of Federal Regulations, the LSA (List of 
CFR Sections Affected), The United States Government Manual, the Federal 
Register, Public Laws, Public Papers of the Presidents of the United 
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free). E-mail, [email protected].
    The Office of the Federal Register also offers a free service on the 
National Archives and Records Administration's (NARA) website for public 
law numbers, Federal Register finding aids, and related information. 
Connect to NARA's website at www.archives.gov/federal-register.
    The e-CFR is a regularly updated, unofficial editorial compilation 
of CFR material and Federal Register amendments, produced by the Office 
of the Federal Register and the Government Publishing Office. It is 
available at www.ecfr.gov.

    Oliver A. Potts,
    Director,
    Office of the Federal Register
    July 1, 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, Kenneth R. Payne was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of John 
Hyrum Martinez, assisted by Stephen J. Frattini.

[[Page 1]]



                        TITLE 32-NATIONAL DEFENSE




                  (This book contains part 800 to end)

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

              SUBTITLE A--Department of Defense (Continued)

                                                                    Part

chapter vii--Department of the Air Force.........        809a

       SUBTITLE B--Other Regulations Relating to National Defense

chapter xii--Department of Defense, Defense Logistics Agency        1280

chapter xvi--Selective Service System.......................        1602

chapter xvii--Office of the Director of National 
  Intelligence..............................................        1700

chapter xviii--National Counterintelligence Center..........        1800

chapter xix--Central Intelligence Agency....................        1900

chapter xx--Information Security Oversight Office, National 
  Archives and Records Administration.......................        2001

chapter xxi--National Security Council......................        2102

chapter xxiv--Office of Science and Technology Policy.......        2400

chapter xxvii--Office for Micronesian Status Negotiations...        2700

chapter xxviii--Office of the Vice President of the United 
  States....................................................        2800

[[Page 3]]

              Subtitle A--Department of Defense (Continued)

[[Page 5]]



                CHAPTER VII--DEPARTMENT OF THE AIR FORCE




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

                      SUBCHAPTER A--ADMINISTRATION
Part                                                                Page
800-806

[Reserved]

809a            Installation entry policy, civil disturbance 
                    intervention and disaster assistance....           7
                    SUBCHAPTER B--SALES AND SERVICES
811             Release, dissemination, and sale of visual 
                    information materials...................           9
                SUBCHAPTER C--PUBLIC RELATIONS [RESERVED]
                   SUBCHAPTER D--CLAIMS AND LITIGATION
842             Administrative claims.......................          12
845             Counsel fees and other expenses in foreign 
                    tribunals...............................          51
                    SUBCHAPTER E--SECURITY [RESERVED]
                         SUBCHAPTER F--AIRCRAFT
855             Civil aircraft use of United States Air 
                    Force airfields.........................          55

[[Page 6]]

861             Department of Defense Commercial Air 
                    Transportation Quality and Safety Review 
                    Program.................................          79
             SUBCHAPTER G--ORGANIZATION AND MISSION--GENERAL
865             Personnel review boards.....................          93
                         SUBCHAPTER H [RESERVED]
                    SUBCHAPTER I--MILITARY PERSONNEL
888-888g

 [Reserved]

               SUBCHAPTER J--CIVILIAN PERSONNEL [RESERVED]
               SUBCHAPTER K--MILITARY TRAINING AND SCHOOLS
901             Appointment to the United States Air Force 
                    Academy.................................         121
                       SUBCHAPTERS L-M [RESERVED]
            SUBCHAPTER N--TERRITORIAL AND INSULAR REGULATIONS
935             Wake Island Code............................         131
             SUBCHAPTER O--SPECIAL INVESTIGATION [RESERVED]
                       SUBCHAPTERS P-S [RESERVED]
                 SUBCHAPTER T--ENVIRONMENTAL PROTECTION
989             Environmental impact analysis process (EIAP)         147
900-999

[Reserved]

[[Page 7]]



                       SUBCHAPTER A_ADMINISTRATION



                        PARTS 800	806 [RESERVED]



PART 809a_INSTALLATION ENTRY POLICY, CIVIL DISTURBANCE INTERVENTION AND
DISASTER ASSISTANCE--Table of Contents



Sec.
809a.0 Purpose.

                   Subpart A_Installation Entry Policy

809a.1 Random installation entry point checks.
809a.2 Military responsibility and authority.
809a.3 Unauthorized entry.
809a.4 Use of Government facilities.
809a.5 Barment procedures.

Subpart B [Reserved]

    Authority: 10 U.S.C. 332 and 333.

    Source: 67 FR 13718, Mar. 26, 2002, unless otherwise noted.



Sec.  809a.0  Purpose.

    This part prescribes the commanders' authority for enforcing order 
within or near Air Force installations under their jurisdiction and 
controlling entry to those installations. It provides guidance for use 
of military personnel in controlling civil disturbances and in 
supporting disaster relief operations. This part applies to 
installations in the United States, its territories and possessions, and 
will be used to the maximum extent possible in the overseas commands. 
Instructions issued by the appropriate overseas commander, status of 
forces agreements, and other international agreements provide more 
definitive guidance for the overseas commands. Nothing in this part 
should be construed as authorizing or requiring security forces units to 
collect and maintain information concerning persons or organizations 
having no affiliation with the Air Force other than a list of persons 
barred from the installation.



                   Subpart A_Installation Entry Policy



Sec.  809a.1  Random installation entry point checks.

    The installation commander determines when, where, and how to 
implement random checks of vehicles or pedestrians. The commander 
conducts random checks to protect the security of the command or to 
protect government property.



Sec.  809a.2  Military responsibility and authority.

    (a) Air Force installation commanders are responsible for protecting 
personnel and property under their jurisdiction and for maintaining 
order on installations, to ensure the uninterrupted and successful 
accomplishment of the Air Force mission.
    (b) Each commander is authorized to grant or deny access to their 
installations, and to exclude or remove persons whose presence is 
unauthorized. In excluding or removing persons from the installation, 
the installation commander must not act in an arbitrary or capricious 
manner. Their action must be reasonable in relation to their 
responsibility to protect and to preserve order on the installation and 
to safeguard persons and property thereon. As far as practicable, they 
should prescribe by regulation the rules and conditions governing access 
to their installation.



Sec.  809a.3  Unauthorized entry.

    Under Section 21 of the Internal Security Act of 1950 (50 U.S.C. 
797), any directive issued by the commander of a military installation 
or facility, which includes the parameters for authorized entry to or 
exit from a military installation, is legally enforceable against all 
persons whether or not those persons are subject to the Uniformed Code 
of Military Justice (UCMJ). Military personnel who reenter an 
installation after having been properly ordered not to do so may be 
apprehended. Civilian violators may be detained and either escorted off 
the installation or turned

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over to proper civilian authorities. Civilian violators may be 
prosecuted under 18 U.S.C. 1382.



Sec.  809a.4  Use of Government facilities.

    Commanders are prohibited from authorizing demonstrations for 
partisan political purposes. Demonstrations on any Air Force 
installation for other than political purposes may only occur with the 
prior approval of the installation commander. Demonstrations that could 
result in interference with, or prevention of, the orderly 
accomplishment of the mission of an installation or that present a clear 
danger to loyalty, discipline or morale of members of the Armed Forces 
will not be approved.



Sec.  809a.5  Barment procedures.

    Under the authority of 50 U.S.C. 797, installation commanders may 
deny access to the installation through the use of a barment order. 
Barment orders should be in writing but may also be oral. Security 
forces maintain a list of personnel barred from the installation.

Subpart B [Reserved]

[[Page 9]]



                     SUBCHAPTER B_SALES AND SERVICES





PART 811_RELEASE, DISSEMINATION, AND SALE OF VISUAL INFORMATION MATERIALS-
-Table of Contents



Sec.
811.1 Exceptions.
811.2 Release of visual information materials.
811.3 Official requests for visual information productions or materials.
811.4 Selling visual information materials.
811.5 Customers exempt from fees.
811.6 Visual information product/material loans.
811.7 Collecting and controlling fees.
811.8 Forms prescribed and availability of publications.

    Authority: 10 U.S.C. 8013.

    Source: 65 FR 64619, Oct. 30, 2000, unless otherwise noted.



Sec.  811.1  Exceptions.

    The regulations in this part do not apply to:
    (a) Visual information (VI) materials made for the Air Force Office 
of Special Investigations for use in an investigation or a 
counterintelligence report. (See Air Force Instruction (AFI) 90-301, The 
Inspector General Complaints, which describes who may use these 
materials.)
    (b) VI materials made during Air Force investigations of aircraft or 
missile mishaps according to AFI 91-204, Safety Investigations and 
Reports. (See AFI 90-301.)



Sec.  811.2  Release of visual information materials.

    (a) Only the Secretary of the Air Force for Public Affairs (SAF/PA) 
clears and releases Air Force materials for use outside Department of 
Defense (DoD), according to AFI 35-205, Air Force Security and Policy 
Review Program.
    (b) The Secretary of the Air Force for Legislative Liaison (SAF/LL) 
arranges the release of VI material through SAF/PA when a member of 
Congress asks for them for official use.
    (c) The International Affairs Division (HQ USAF/CVAII) or, in some 
cases, the major command (MAJCOM) Foreign Disclosure Office, must 
authorize release of classified and unclassified materials to foreign 
governments and international organizations or their representatives.



Sec.  811.3  Official requests for visual information productions or
materials.

    (a) Send official Air Force requests for productions or materials 
from the DoD Central Records Centers by letter or message. Include:
    (1) Descriptions of the images needed, including media format, 
dates, etc.
    (2) Visual information record identification number (VIRIN), 
production, or Research, development, test, and evaluation (RDT&E) 
identification numbers, if known.
    (3) Intended use and purpose of the material.
    (4) The date needed and a statement of why products are needed on a 
specific date.
    (b) Send inquiries about motion picture or television materials to 
the Defense Visual Information Center (DVIC), 1363 Z Street, Building 
2730, March ARB, CA 92518-2703.
    (c) Send Air Force customer inquiries about still photographic 
materials to 11 CS/SCUA, Bolling AFB, Washington, DC 20332-0403 (the Air 
Force accessioning point).
    (d) Send non-Air Force customers' inquiries about still photographic 
materials to the DVIC.



Sec.  811.4  Selling visual information materials.

    (a) Air Force VI activities cannot sell materials.
    (b) HQ AFCIC/ITSM may approve the loan of copies of original 
materials for federal government use.
    (c) Send requests to buy:
    (1) Completed, cleared, productions, to the National Archives and 
Records Administration, National Audiovisual Center, Information Office, 
8700 Edgeworth Drive, Capitol Heights, MD 20722-3701.
    (2) Nonproduction VI motion media to the DVIC. The center may sell 
other Air Force VI motion picture and television materials, such as 
historical and stock footage. When it sells VI motion

[[Page 10]]

media, the DVIC assesses charges, unless Sec.  811.5 exempts the 
requesting activity.
    (3) VI still media to the DoD Still Media Records Center (SMRC), 
Attn: SSRC, Washington, DC 20374-1681. When SMRC sells VI still media, 
the SMRC assesses charges, unless Sec.  811.5 exempts the requesting 
activity.



Sec.  811.5  Customers exempt from fees.

    Title III of the 1968 Intergovernmental Cooperation Act (42 U.S.C. 
4201, 4231, and 4233) exempts some customers from paying for products 
and loans. This applies if the supplier has sufficient funds and if the 
exemption does not impair its mission. The requesting agency must 
certify that the materials are not commercially available. When requests 
for VI material do not meet exemption criteria, the requesting agency 
pays the fees. Exempted customers include:
    (a) DoD and other government agencies asking for materials for 
official activities (see DoD Instruction 4000.19, Interservice, and 
Intergovernmental Support, August 9, 1995, and DoD Directive 5040.2, 
Visual Information (VI), December 7, 1987.
    (b) Members of Congress asking for VI materials for official 
activities.
    (c) VI records center materials or services furnished according to 
law or Executive Order.
    (d) Federal, state, territorial, county, municipal governments, or 
their agencies, for activities contributing to an Air Force or DoD 
objective.
    (e) Nonprofit organizations for public health, education, or welfare 
purposes.
    (f) Armed Forces members with a casualty status, their next of kin, 
or authorized representative, if VI material requested relates to the 
member and does not compromise classified information or an accident 
investigation board's work.
    (g) The general public, to help the Armed Forces recruiting program 
or enhance public understanding of the Armed Forces, when SAF/PA 
determines that VI materials or services promote the Air Force's best 
interest.
    (h) Incidental or occasional requests for VI records center 
materials or services, including requests from residents of foreign 
countries, when fees would be inappropriate. AFI 16-101, International 
Affairs and Security Assistance Management, tells how a foreign 
government may obtain Air Force VI materials.
    (i) Legitimate news organizations working on news productions, 
documentaries, or print products that inform the public on Air Force 
activities.



Sec.  811.6  Visual information product/material loans.

    (a) You may request unclassified and classified copies of current 
Air Force productions and loans of DoD and other Federal productions 
from JVISDA, ATTN: ASQV-JVIA-T-AS, Bldg. 3, Bay 3, 11 Hap Arnold Blvd., 
Tobyhanna, PA 18466-5102.
    (1) For unclassified products, use your organization's letterhead, 
identify subject title, PIN, format, and quantity.
    (2) For classified products, use your organization's letterhead, 
identify subject title, personal identification number (PIN), format, 
and quantity. Also, indicate that either your organization commander or 
security officer, and MAJCOM VI manager approve the need.
    (b) You may request other VI materials, such as, still images and 
motion media stock footage, from DVIC/OM-PA, 1363 Z Street, Building 
2730, March ARB, CA 92518-2703.



Sec.  811.7  Collecting and controlling fees.

    (a) The DoD records centers usually collect fees in advance. 
Exceptions are sales where you cannot determine actual cost until work 
is completed (for example, television and motion picture services with 
per minute or per footage charges).
    (b) Customers pay fees, per AFR 177-108, Paying and Collecting 
Transactions at Base Level, with cash, treasury check, certified check, 
cashier's check, bank draft, or postal money order.



Sec.  811.8  Forms prescribed and availability of publications.

    (a) AF Form 833, Visual Information Request, AF Form 1340, Visual 
Information Support Center Workload Report, DD Form 1995, Visual 
Information (VI) Production Request and Report,

[[Page 11]]

DD Form 2054-1, Visual Information (VI) Annual Report, and DD Form 2537, 
Visual Information Caption Sheet are prescribed by this part.
    (b) Air Force publications and forms referenced in this part are 
available from NTIS, 5285 Port Royal Road, Springfield, VA 22161 or 
online at http://www.afpubs.hq.af.mil. DoD publications are available at 
http://www.defenselink.mil/pubs.



                SUBCHAPTER C_PUBLIC RELATIONS [RESERVED]



[[Page 12]]



                   SUBCHAPTER D_CLAIMS AND LITIGATION





PART 842_ADMINISTRATIVE CLAIMS--Table of Contents



Sec.
842.0 Scope.

                      Subpart A_General Information

842.1 Scope of this subpart.
842.2 Definitions.
842.3 Claims authorities.
842.4 Where to file a claim.
842.5 Claims forms.
842.6 Signature on the claim form.
842.7 Who may file a claim.
842.8 Insured claimants.

  Subpart B_Claims Under Article 139, Uniform Code of Military Justice 
                         (UCMJ) (10 U.S.C. 939)

842.9 Scope of this subpart.
842.10 Definitions.
842.11 Claims payable.
842.12 Claims not payable.
842.13 Limiting provisions.
842.14 Filing a claim.

            Subpart C_Personnel Claims (31 U.S.C. 3701, 3721)

842.15 Scope of this subpart.
842.16 Definitions.
842.17 Delegations of authority.
842.18 Filing a claim.
842.19 Partial payments.
842.20 Statute of limitations.
842.21 Who may file a claim.
842.22 Who are proper claimants.
842.23 Who are not proper claimants.
842.24 General provisions.
842.25 Claims payable.
842.26 Claims not payable.
842.27 Reconsideration of a claim.
842.28 Right of subrogation, indemnity, and contribution.
842.29 Depreciation and maximum allowances.

             Subpart D_Military Claims Act (10 U.S.C. 2733)

842.30 Scope of this subpart.
842.31 Definitions.
842.32 Delegations of authority.
842.33 Filing a claim.
842.34 Advance payments.
842.35 Statute of limitations.
842.36 Who may file a claim.
842.37 Who are proper claimants.
842.38 Who are not proper claimants.
842.39 Claims payable.
842.40 Claims not payable.
842.41 Applicable law.
842.42 Appeal of final denials.
842.43 Right of subrogation, indemnity, and contribution.
842.44 Attorney fees.

                Subpart E_Foreign Claims (10 U.S.C. 2734)

842.45 Scope of this subpart.
842.46 Definitions.
842.47 Delegations of authority.
842.48 Filing a claim.
842.49 Advance payments.
842.50 Statute of limitations.
842.51 Who may file a claim.
842.52 Who are proper claimants.
842.53 Who are not proper claimants.
842.54 Payment criteria.
842.55 Claims not payable.
842.56 Applicable law.
842.57 Reconsideration of final denials.
842.58 Right of subrogation, indemnity, and contribution.

  Subpart F_International Agreement Claims (10 U.S.C. 2734a and 2734b)

842.59 Scope of this subpart.
842.60 Definitions.
842.61 Delegations of authority.
842.62 Filing a claim.

      Subpart G_Use of Government Property Claims (10 U.S.C. 2737)

842.63 Scope of this subpart.
842.64 Definitions.
842.65 Delegations of authority.
842.66 Filing a claim.
842.67 Statute of limitations.
842.68 Claims payable.
842.69 Claims not payable.
842.70 Reconsideration of final denial.
842.71 Settlement agreement.

  Subpart H_Admiralty Claims (10 U.S.C. 9801	9804, 9806; 46 U.S.C. 740)

842.72 Scope of this subpart.
842.73 Definitions.
842.74 Delegations of authority.
842.75 Reconsidering claims against the United States.

 Subpart I_Claims Under the Federal Tort Claims Act (28 U.S.C. 1346(b), 
                      2402, 2671, 2672, 2674	2680)

842.76 Scope of this subpart.
842.77 Delegations of authority.
842.78 Settlement agreements.

[[Page 13]]

842.79 Administrative claim; when presented.

Subpart J_Property Damage Tort Claims in Favor of the United States (31 
                         U.S.C. 3701, 3711	3719)

842.80 Scope of this subpart.
842.81 Delegations of authority.
842.82 Assertable claims.
842.83 Non-assertable claims.
842.84 Asserting the claim.
842.85 Referring a claim to the U.S. Attorney or the Department of 
          Justice.
842.86 Statute of limitations.
842.87 Compromise, termination, and suspension of collection.

  Subpart K_Claims Under the National Guard Claims Act (32 U.S.C. 715)

842.88 Scope of this subpart.
842.89 Definitions.
842.90 Delegations of authority.
842.91 Filing a claim.
842.92 Advance payments.
842.93 Statute of limitations.
842.94 Who may file a claim.
842.95 Who are proper claimants.
842.96 Who are not proper claimants.
842.97 Claims payable.
842.98 Claims not payable.
842.99 Applicable law.
842.100 Appeal of final denials.
842.101 Government's right of subrogation, indemnity, and contribution.
842.102 Attorney fees.

        Subpart L_Hospital Recovery Claims (42 U.S.C. 2651	2653)

842.103 Scope of this subpart.
842.104 Definitions.
842.105 Delegations of authority.
842.106 Assertable claims.
842.107 Nonassertable claims.
842.108 Asserting the claim.
842.109 Referring a claim to the U.S. Attorney.
842.110 Statute of limitations.
842.111 Recovery rates in government facilities.
842.112 Waiver and compromise of United States interest.
842.113 Reconsideration of a waiver for undue hardship.

                  Subpart M_Nonappropriated Fund Claims

842.114 Scope of this subpart.
842.115 Definitions.
842.116 Payment of claims against NAFIs.
842.117 Claims by customers, members, participants, or authorized users.

    Subpart N_Civil Air Patrol Claims (5 U.S.C. 8101(1)(B), 8102(a), 
         8116(c), 8141; 10 U.S.C. 9441, 9442; 36 U.S.C. 201	208)

842.118 Scope of this subpart.
842.119 Definitions.
842.120 Improper claimants.
842.121 Claims payable.
842.122 Claims not payable.

               Subpart O_Advance Payments (10 U.S.C. 2736)

842.123 Scope of this subpart.
842.124 Delegation of authority.
842.125 Who may request.
842.126 When authorized.
842.127 When not authorized.
842.128 Separate advance payment claims.
842.129 Liability for repayment.

    Authority: Sec. 8013, 100 Stat. 1053, as amended; 10 U.S.C. 8013, 
except as otherwise noted.

    Source: 55 FR 2809, Jan. 29, 1990, unless otherwise noted.
    Note: Air Force Regulations are available on the e-Publishing Web 
site at http://www.e-publishing.af.mil/ for downloading. This part is 
derived from Air Force Instruction 51-501, Tort Claims, and Air Force 
Instruction 51-502, Personnel and Carrier Recovery Claims.

[81 FR 83688, Nov. 22, 2016]

    Editorial Note: Nomenclature changes to part 842 appear at 81 FR 
83688, Nov. 22, 2016.



Sec.  842.0  Scope.

    This part establishes standard policies and procedures for all 
administrative claims resulting from Air Force activities and for which 
the Air Force has assigned responsibility.

[81 FR 83688, Nov. 22, 2016]



                      Subpart A_General Information



Sec.  842.1  Scope of this subpart.

    This subpart explains terms used in this part. It states basic Air 
Force claims policy and identifies proper claimants.



Sec.  842.2  Definitions.

    (a) Authorized agent. Any person or corporation, including a legal 
representative, empowered to act on a claimant's behalf.
    (b) Civilian personnel. Civilian employees of the Air Force who are 
paid

[[Page 14]]

from appropriated or nonappropriated funds. They include prisoners of 
war, interned enemy aliens performing paid labor, and volunteer workers 
except for claims under the Military Personnel and Civilian Employees' 
Claims Act.
    (c) Claim. Any signed written demand made on or by the Air Force for 
the payment of a sum certain. It does not include any obligations 
incurred in the regular procurement of services, supplies, equipment, or 
real estate. An oral demand made under Article 139, Uniform Code of 
Military Justice (UCMJ) is sufficient.
    (d) Claimant. An individual, partnership, association, corporation, 
country, state, territory, or its political subdivisions, and the 
District of Columbia. The U.S. Government or any of its 
instrumentalities may be a claimant in admiralty, tort, carrier recovery 
and hospital recovery claims in favor of the United States.
    (e) Geographic area of claims responsibility. The base Staff Judge 
Advocate's (SJA's) jurisdiction for claims. CONUS jurisdictional areas 
are designated by AFLOA/JACC on maps distributed to the field. HQ PACAF, 
HQ USAFE, and HQ 9AF SJAs designate these areas within their 
jurisdictions. DOD assigns areas of single service responsibility to 
each military department.
    (f) AFLOA/JACC. Claims and Tort Litigation Division, 1500 West 
Perimeter Road, Suite 1700, Joint Base Andrews, MD 20762.
    (g) Owner. A holder of a legal title or an equitable interest in 
certain property. Specific examples include:
    (1) For real property. The mortgagor, and the mortgagee if that 
individual can maintain a cause of action in the local courts involving 
a tort to that specific property.
    (2) For personal property. A bailee, lessee, mortgagee and a 
conditional vendee. A mortgagor, conditional vendor, title loan company 
or someone else other than the owner, who has the title for purposes of 
security are not owners.
    (h) HQ PACAF. Headquarters, Pacific Air Forces, Hickam AFB, HI 
96853-5001.
    (i) Personal injury. The term ``personal injury'' includes both 
bodily injury and death.
    (j) Property damage. Damage to, loss of, or destruction of real or 
personal property.
    (k) Settle. To consider and pay, or deny a claim in full or in part.
    (l) Single Base General Court-Martial Jurisdiction (GCM). For claims 
purposes, a base legal office serving the commander who exercises GCM 
authority over that base, or that base and other bases.
    (m) Subrogation. The act of assuming the legal rights of another 
after paying a claim or debt, for example, an insurance company 
(subrogee) paying its insured's (subrogor's) claim, thereby assuming the 
insured's right of recovery.
    (n) HQ USAFE. Headquarters, United States Air Forces in Europe, 
Ramstein Air Base, Germany, APO NY 09012-5001.

[55 FR 2809, Jan. 29, 1990, as amended at 56 FR 1574, Jan. 16, 1991; 81 
FR 83688, Nov. 22, 2016]



Sec.  842.3  Claims authorities.

    (a) Appellate authority. The individual authorized to review the 
final decision of a settlement authority upon appeal or reconsideration.
    (b) Settlement authority. The individual or foreign claims 
commission authorized to settle a claim upon its initial presentation.



Sec.  842.4  Where to file a claim.

    File a claim at the base legal office of the unit or installation at 
or nearest to where the accident or incident occurred. If the accident 
or incident occurred in a foreign country where no Air Force unit is 
located, file the claim with the Defense Attache (DATT) or Military 
Assistance Advisory Group (MAAG) personnel authorized to receive claims 
(DIAM 100-1 and AFR 400-45). In a foreign country where a claimant is 
unable to obtain adequate assistance in filing a claim, the claimant may 
contact the nearest Air Force SJA. The SJA then advises AFLOA/JACC 
through claims channels of action taken and states why the DATT or MAAG 
was unable to adequately assist the claimant.

[81 FR 83688, Nov. 22, 2016]

[[Page 15]]



Sec.  842.5  Claims forms.

    Any signed written demand on the Air Force for a sum certain is 
sufficient to file a claim. The claimant should use these forms when 
filing a claim:
    (a) Claim processed under the Military Personnel and Civilian 
Employees' Claims Act. Use AF Form 180, Claim for Loss of or Damage to 
Personal Property Incident to Service, or DD Forms 1842, Claim for 
Personal Property Against the United States, and 1844, Schedule of 
Property and Claim Analysis Chart, to file the claim.
    (b) Claim processed under international agreements. Use any form 
specified by the host country.
    (c) Any other type claim. Use SF 95, Claim for Damage, Injury, or 
Death.



Sec.  842.6  Signature on the claim form.

    The claimant or authorized agent signs the claim form in ink using 
the first name, middle initial, and last name.
    (a) Claim filed by an individual. (1) A married woman signs her 
name, for example, Mary A. Doe, rather than Mrs. John Doe.
    (2) An authorized agent signing for a claimant shows, after the 
signature, the title or capacity and attaches evidence of authority to 
present a claim on behalf of the claimant as agent, executor, 
administrator, parent, guardian, or other representative; for example, 
John Doe by Richard Roe, Attorney in Fact. A copy of a current and valid 
power of attorney, court order, or other legal document is sufficient 
evidence of the agent's authority.
    (b) Claim with joint interest. Where a joint ownership or interest 
in real property exists, all joint owners must sign the claim form. This 
includes a husband and wife signing a claim if the claim is for property 
damage. However, only the military member or civilian employee signs the 
claim form for a claim under the Military Personnel and Civilian 
Employees' Claims Act.
    (c) Claim filed by a corporation. (1) A corporate officer signing 
the form must show title or capacity and affix the corporate seal (if 
any) to the claim form.
    (2) If the person signing the claim is other than the corporate 
officer they must:
    (i) Attach to the claim form a certification by a proper corporate 
officer that the individual is an agent of the corporation duly 
authorized to file and settle the claim;
    (ii) Affix to the claim form the corporate seal (if any) to the 
certification.
    (d) Claim filed by a partnership. A partner must sign the form 
showing his or her title as partner and list the full name of the 
partnership.



Sec.  842.7  Who may file a claim.

    (a) Property damage. The owner or owners of the property or their 
authorized agent may file a claim for property damage.
    (b) Personal injury or death. (1) The injured person or authorized 
agent may file a claim for personal injury.
    (2) The duly appointed guardian of a minor child or any other person 
legally entitled to do so under applicable local law may file a claim 
for a minor's personal injury.
    (3) The executor or administrator of the decedent's estate or any 
other person legally entitled to do so under applicable local law may 
file a claim based on an individual's death.
    (c) Subrogation. The subrogor (insured) and the subrogee (insurer) 
may file a claim jointly or individually. Pay a fully subrogated claim 
only to the subrogee. A joint claim must be asserted in the names of and 
signed by the real parties in interest. Make payment by sending a joint 
check to the subrogee, made payable to the subroger and subrogee. If 
separate claims are filed, make payment by check issued to each claimant 
to the extent of each undisputed interest.



Sec.  842.8  Insured claimants.

    Insured claimants must make a detailed disclosure of their insurance 
coverage by stating:
    (a) Their name and address.
    (b) Kind, amount, and dates of coverage of insurance.
    (c) Insurance policy number.
    (d) Whether a claim was presented to the insurer and, if so, in what 
amount.
    (e) Whether the insurer paid or is expected to pay the claim.

[[Page 16]]

    (f) The amount of any payment made or promised.



  Subpart B_Claims Under Article 139, Uniform Code of Military Justice 
                         (UCMJ) (10 U.S.C. 939)

    Source: 55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83688, Nov. 
22, 2016, unless otherwise noted.



Sec.  842.9  Scope of this subpart.

    It sets out the Air Force procedures for processing Article 139, 
UCMJ claims.

[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83688, Nov. 22, 2016]



Sec.  842.10  Definitions.

    (a) Appointing commander. The commander exercising special court-
martial jurisdiction over the offender.
    (b) Board of officers. One to three commissioned officers appointed 
to investigate a complaint of willful property damage or wrongful taking 
by Air Force personnel.
    (c) Property. Property is an item that is owned or possessed by an 
individual or business. Property includes a tangible item such as 
clothing, household furnishings, motor vehicles, real property, and 
currency. The term does not include intangible property or items having 
no independent monetary worth. Items that should not be considered as 
property for the purpose of this part include a stock, bond, check, 
check book, credit card, telephone service and cable television 
services.
    (d) Willful damage. Damage or destruction caused intentionally, 
knowingly, and purposely, without justifiable excuse.
    (e) Wrongful taking. Any unauthorized taking or withholding of 
property with intent to deprive the owner or person in lawful possession 
either temporarily or permanently.

[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83688, 
Nov. 22, 2016]



Sec.  842.11  Claims payable.

    Claims for property willfully damaged or wrongfully taken by Air 
Force military personnel as a result of riotous, violent, or disorderly 
conduct. If a claim is payable under this part and also under another 
part, it may be paid under this part if authorized by AFLOA/JACC.

[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83688, Nov. 22, 2016]



Sec.  842.12  Claims not payable.

    Claims that are not payable are:
    (a) Claims resulting from simple negligence.
    (b) Claims for personal injury or death.
    (c) Claims resulting from acts or omissions of Air Force military 
personnel while acting within the scope of their duty.
    (d) Claims of subrogees.
    (e) Claims arising from private indebtedness.
    (f) Claims for reimbursement for bad checks.
    (g) Claims involving wrongful taking stemming from larceny, forgery 
or deceit, which are not accompanied by riotous or violent action.
    (h) Claims against Air National Guard members unless they are 
performing duty under Title 10 U.S.C.
    (i) Claims for indirect, consequential or remote damages.

[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83688, 
Nov. 22, 2016]



Sec.  842.13  Limiting provisions.

    (a) A complaint must be submitted within 90 days of the date of the 
incident. The appointing commander may find good cause for the delay and 
accept a late claim. The appointing commander's determination of good 
cause is final and not reviewable.
    (b) Assessment of damages in excess of $5,000 against an offender's 
pay for a single incident requires AFLOA/JACC approval.

[81 FR 83688, Nov. 22, 2016]



Sec.  842.14  Filing a claim.

    Claimant complains (orally or in writing) to the commander of a 
military organization or unit of the alleged offending member or members 
or to the commander of the nearest military installation. If the claim 
is made orally, the individual must assist the commander to reduce the 
complaint to writing within a reasonable time. The

[[Page 17]]

complainant need not request a sum certain in writing at the time the 
complaint is filed, but they must present such value and evidence before 
settlement is made.

[81 FR 83688, Nov. 22, 2016]



            Subpart C_Personnel Claims (31 U.S.C. 3701, 3721)

    Source: 55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83688, Nov. 
22, 2016, unless otherwise noted.



Sec.  842.15  Scope of this subpart.

    It explains how to settle and pay claims under the Military 
Personnel and Civilian Employees' Claims Act for incident to service 
loss and damage of personal property. These claims are paid according to 
this subpart even when another subpart may also apply.

[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83688, Nov. 22, 2016]



Sec.  842.16  Definitions.

    (a) Military installation. A facility used to serve a military 
purpose and used or controlled by the Air Force or any other Department 
of Defense (DOD) element.
    (b) Personal property. Tangible property an individual owns, 
including but not limited to household goods, unaccompanied baggage, 
privately owned vehicles (POV), and mobile homes.
    (c) Reconsideration. The original or a higher settlement authority's 
review of a prior settlement action.
    (d) Unusual Occurrence. Something not expected to happen in the 
normal course of events.

[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83688, 
Nov. 22, 2016]



Sec.  842.17  Delegations of authority.

    (a) Settlement authority. The Secretary of the Air Force has 
delegated the authority to assign areas of responsibility and designate 
functional responsibility for claims under the Military Personnel and 
Civilian Employees' Claims Act to The Judge Advocate General (TJAG).
    (b) Reconsideration authority. A settlement authority has the same 
authority specified in paragraph (a) of this section. However, with the 
exception of TJAG, a settlement authority may not deny a claim on 
reconsideration that it, or its delegate, had previously denied.
    (c) Authority to reduce, withdraw and restore delegated settlement 
authority. Any superior settlement authority may reduce, withdraw, or 
restore delegated authority.

[81 FR 83688, Nov. 22, 2016]



Sec.  842.18  Filing a claim.

    (a) How and when to file a claim. A claim is filed when a federal 
military agency receives from a claimant or duly authorized agent a 
properly completed AF Form 180, DD Form 1842 or other written and signed 
demand for a determinable sum of money.
    (1) A claim is also filed when a federal military agency receives 
from a claimant or duly authorized agent an electronic submission, 
through a Department of Defense claims Web site, indicating that the 
claimant intends for the appropriate military branch to consider a 
digitally signed demand for a determinable sum of money.
    (2) A claim is also filed when the Air Force receives from a 
claimant or duly authorized agent an electronic submission, through the 
Air Force claims Web site, a digitally signed demand for a determinable 
sum of money.
    (b) Amending a claim. A claimant may amend a claim at any time prior 
to the expiration of the statute of limitations by submitting a signed 
amendment. The settlement authority adjudicates and settles or forwards 
the amended claim as appropriate.
    (c) Separate claims. The claimant files a separate claim for each 
incident which caused a loss. For transportation claims, this means a 
separate claim for each shipment.

[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83688, 
Nov. 22, 2016]



Sec.  842.19  Partial payments.

    Upon request of a claimant, a settlement authority may make a 
partial payment in advance of final settlement when a claimant 
experiences personal hardship due to extensive property damage or loss. 
Partial payments are made if a claim for only part of the loss

[[Page 18]]

is submitted and is readily provable, up to the amount of the settlement 
authority. (The claimant may later amend the claim for the remainder of 
the loss.) If the total payable amount of the claim exceeds the payment 
limits of the settlement authority, send it with recommendations to the 
proper settlement authority.
    (a) If a claim for only part of the loss is submitted and is readily 
provable, pay it up to the amount of the settlement authority. (The 
claimant may later amend the claim for the remainder of the loss.) If 
the total payable amount of the claim exceeds the payment limits of the 
settlement authority, send it with recommendations through claims 
channels to the proper settlement authority.
    (b) When the total claim is submitted and the amount payable exceeds 
the settlement authority, pay a partial payment within the limits of 
settlement authority and send the claim, with recommendations, through 
claims channels to the proper settlement authority.

[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83688, 
83689, Nov. 22, 2016]



Sec.  842.20  Statute of limitations.

    (a) The claimant must file the claim in writing within 2 years after 
it accrues. It accrues when the claimant discovered or reasonably should 
have discovered the full extent of the property damage or loss. For 
transportation losses, the claim usually accrues on the date of 
delivery.
    (b) To compute the statutory period, the incident date is excluded 
and the day the claim was filed is included.
    (c) Consider a claim filed after the statute has run if both of the 
following are present:
    (1) The United States is at war or in an armed conflict when the 
claim accrues, or the United States enters a war or armed conflict after 
the claim accrues. Congress or the President establishes the beginning 
and end of war or armed conflict. A claimant may not file a claim more 
than 2 years after the war or armed conflict ends.
    (2) Good cause is shown. A claimant may not file a claim more than 2 
years after the good cause ceases to exist.

[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83688, Nov. 22, 2016]



Sec.  842.21  Who may file a claim.

    A claim may be filed by:
    (a) A proper claimant.
    (b) An authorized agent or legal representative of a proper 
claimant.
    (c) A survivor of a deceased proper claimant in this order:
    (1) Spouse.
    (2) Children.
    (3) Father or mother.
    (4) Brothers or sisters.

[81 FR 83689, Nov. 22, 2016]



Sec.  842.22  Who are proper claimants.

    Proper claimants are:
    (a) Active duty Air Force military personnel.
    (b) Civilian employees of the Air Force who are paid from 
appropriated funds.
    (c) DOD school teachers and school administrative personnel who are 
provided logistic and administrative support by an Air Force 
installation commander.
    (d) Air Force Reserve (AFRES) and Air National Guard (ANG) personnel 
when performing active duty, full-time National Guard duty, or inactive 
duty training, ANG technicians under 32 U.S.C. 709.
    (e) Retired or separated Air Force military personnel who suffer 
damage or loss resulting from the last storage or movement of personal 
property, or for claims accruing before retirement or separation.
    (f) AFROTC cadets while on active duty for summer training.
    (g) United States Air Force Academy cadets.

[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83688, Nov. 22, 2016]



Sec.  842.23  Who are not proper claimants.

    The following individuals are not proper claimants:
    (a) Subrogees and assignees of proper claimants, including insurance 
companies.
    (b) Conditional vendors and lienholders.

[[Page 19]]

    (c) Non-Air Force personnel, including American Red Cross personnel, 
United Services Organization (USO) performers, employees of government 
contractors, and Civil Air Patrol (CAP) members.
    (d) AFROTC cadets who are not on active duty for summer training.
    (e) Active duty military personnel and civilian employees of a 
military service other than the Air Force.
    (f) DOD employees who are not assigned to the Air Force.
    (g) Army and Air Force Exchange Service (AAFES) employees and other 
employees whose salaries are paid from nonappropriated funds (see 
subpart O).
    (h) Military personnel of foreign governments.

[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83688, Nov. 22, 2016]



Sec.  842.24  General provisions.

    Payable claims must be for:
    (a) Personal property which is reasonable or useful under the 
circumstances of military service.
    (b) Loss, damage, destruction, confiscation, or forced abandonment 
which is incident to service.
    (c) Losses that are not collectible from any other source, including 
insurance and carriers.
    (d) Property that is owned by the claimants, or their immediate 
families, or borrowed for their use, or in which the claimants or their 
immediate families has an enforceable ownership interest.
    (e) Losses occurring without the claimants' negligence.

[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83688, 
83689, Nov. 22, 2016]



Sec.  842.25  Claims payable.

    Claims may be payable for loss of or damage to tangible personal 
property when the damage occurs incident to service. For loss of or 
damage to property to be incident to service, it must occur at a place 
and time that is connected to the service of an active duty military 
member or employment of a civilian employee.
    (a) Authorized location. Claims are only payable when the claimed 
property is located in an authorized location. There must be some 
connection between the claimant's service and the location of the 
claimed property. Duty locations where personal property is used, stored 
or held because of official duties are authorized places. Other 
authorized places may include:
    (1) Any location on a military installation not otherwise excluded.
    (2) Any office, building, recreation area, or real estate the Air 
Force or any other DoD element uses or controls.
    (3) Any place a military member is required or ordered to be 
pursuant to their duties and while performing those duties.
    (4) Assigned Government housing or quarters in the United States or 
provided in kind. The Military Personnel and Civilian Employees' Claims 
Act specifically prohibits payment for loss of or damage to property in 
quarters within the U.S. unless the housing or quarters are assigned or 
otherwise provided in kind. Base housing that has not been privatized is 
generally considered assigned or provided in kind wherever it is 
located.
    (i) Privatized housing or quarters within the United States subject 
to the Military Housing Privatization Initiative located within the 
fence line of a military installation or on federal land in which the 
DoD has an interest is considered assigned or otherwise provided in kind 
for the purposes of the Military Personnel and Civilian Employees' 
Claims Act.
    (ii) [Reserved]
    (5) Housing or quarters outside the United States. Outside the US, 
authorized off-base quarters, as well as assigned quarters, including 
quarters in U.S. territories and possessions, are authorized places. The 
residence of a civilian employee is not an authorized location if the 
employee is a local inhabitant.
    (6) Temporary duty (TDY) quarters and locations en route to the TDY 
destination. Significant deviations from the direct travel route are not 
authorized locations.
    (7) Permanent change of station (PCS) temporary quarters and 
locations enroute to the PCS destination. Significant deviations from 
the direct travel route are not authorized locations.

[[Page 20]]

    (8) Entitlement and benefit locations. For these locations to be 
authorized, the claimant must be using them for the intended purpose and 
the property must be reasonably linked to that purpose.
    (9) Locations where personal property shipped or stored at 
government expense are found. Government facilities where property is 
stored at the claimant's expense or for their convenience without an 
entitlement are not authorized places.
    (b) Payable causes of loss incident to service. Because the 
Personnel Claims Act (PCA) is not a substitute for private insurance, 
loss or damage at quarters or other authorized locations may only be 
paid if caused by:
    (1) An unusual occurrence;
    (2) Theft, vandalism or other malfeasance;
    (3) Hostile action;
    (4) A carrier, contractor, warehouseman or other transportation 
service provider storing or moving goods or privately owned vehicles at 
government expense;
    (5) An agent of the US; or
    (6) A permanent seizure of a witness' property by the Air Force.
    (c) Privately owned vehicles (POV). Pay for damage to or loss of 
POVs caused by government negligence under subpart F or K. Pay under 
this subpart for damage or loss incident to:
    (1) Theft of POVs or their contents, or vandalism to parked POVs:
    (i) Anywhere on a military installation.
    (ii) At offbase quarters overseas.
    (iii) At other authorized places.
    (2) Government shipment:
    (i) To or from oversea areas incident to PCS.
    (ii) On a space available reimbursable basis.
    (iii) As a replacement vehicle under the provisions of the Joint 
Travel Regulations (JTR).
    (3) Authorized use for government duty other than PCS moves. The 
owner must have specific advance permission of the appropriate 
supervisor or official. Adequate proof of the permission and of 
nonavailability of official transportation must be provided prior to 
paying such claims. Claims arising while the claimant is deviating from 
the principal route or purpose of the trip should not be paid, but 
claims occurring after the claimant returns to the route or purpose 
should be paid. Travel between quarters and place of duty, including 
parking, is not authorized use for government duty.
    (4) Paint spray, smokestack emission, and other similar operations 
by the Air Force on a military installation caused by a contractor's 
negligence. (Process the claim under subpart F or K, if government 
negligence causes such losses.) If a contractor's operation caused the 
damage:
    (i) Refer the claim first to the contractor for settlement.
    (ii) Settle the claim under this subpart if the contractor does not 
pay it or excessively delays payment, and assert a claim against the 
contractor.
    (d) Damage to mobile or manufactured homes and contents in shipment. 
Pay such claims if there is no evidence of structural or mechanical 
failure for which the manufacturer is responsible.
    (e) Borrowed property. Pay for loss or damage to property claimants 
borrow for their use. Either the borrower or lender, if proper 
claimants, may file a claim. Do not pay for property borrowed to 
accommodate the lender, i.e., such as to avoid weight or baggage 
restrictions in travel.
    (f) Marine or aircraft incident. Pay claims of crewmembers and 
passengers who are in duty or leave status at the time of the incident. 
Payable items include jettisoned baggage, clothing worn at the time of 
an incident, and reasonable amounts of money, jewelry, and other 
personal items.
    (g) Combat losses. Pay for personal property losses, whether or not 
the United States was involved, due to:
    (1) Enemy action.
    (2) Action to prevent capture and confiscation.
    (3) Combat activities.
    (h) Civil activity losses. Pay for losses resulting from a 
claimant's acts to:
    (1) Quell a civil disturbance.
    (2) Assist during a public disaster.
    (3) Save human life.
    (4) Save government property.
    (i) Confiscated property. Pay for losses when:
    (1) A foreign government unjustly confiscates property.

[[Page 21]]

    (2) An unjust change or application of foreign law forces surrender 
or abandonmnet of property.
    (j) Clothing and accessories worn on the person. Pay claims for 
damage to eyeglasses, hearing aids, and dentures the government did not 
supply, when the damage results from actions beyond the normal risks 
associated with daily living and working. Claimants assume the risk of 
normal wear and tear, and their negligence bars payment of the claim.
    (k) Money losses. Pay claims for loss of money when the losses are 
due to theft from quarters, other authorized places, or from the person, 
if the claimant was required to be in the area and could not avoid the 
theft by due care. As a general rule, $200.00 is reasonable to have in 
quarters, and $100.00 is reasonable to have on the person unless:
    (1) The money was in a bona fide coin collection.
    (2) The claimant can justify possession of the money for a PCS move, 
extended TDY, vacation, extensive shopping trip, or similar 
circumstances. The claimant must show a good reason why the money had 
not been deposited in a bank or converted into travelers checks or a 
money order.
    (3) Local commercial facilities are not available or because U.S. 
personnel do not generally use such facilities.

[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83688, 
83689, Nov. 22, 2016]



Sec.  842.26  Claims not payable.

    A claim is not payable if:
    (a) It is not incident to the claimant's service.
    (b) The loss or damage is caused in whole or in part by the 
negligence or wrongful act of the claimant, the claimant's spouse, 
agent, or employee.
    (c) It is a subrogation or assigned claim.
    (d) The loss is recovered or recoverable from an insurer or other 
source unless the settlement authority determines there is good cause 
for not claiming against the insurer.
    (e) It is intangible property including bank books, promissory 
notes, stock certificates, bonds, baggage checks, insurance policies, 
checks, money orders, travelers checks and credit cards.
    (f) It is government property, including issued clothing items 
carried on an individual issue supply account. (Clothing not carried on 
an individual issue supply account which is stolen or clothing lost or 
damaged in transit may be considered as a payable item when claimed.)
    (g) It is enemy property.
    (h) It is a loss within the United States at offbase quarters the 
government did not provide.
    (i) It is damage to real property.
    (j) It is an appraisal fee, unless the settlement authority requires 
one to adjudicate the claim.
    (k) It is property acquired or shipped for persons other than the 
claimant or the claimant's immediate family; however, a claim for 
property acquired for bona fide gifts may be paid.
    (l) It is an article held for sale, resale, or used primarily in a 
private business.
    (m) It is an item acquired, possessed, shipped, or stored in 
violation of any U.S. Armed Force directive or regulation.
    (n) It is an item fraudulently claimed.
    (o) It is for charges for labor performed by the owner or immediate 
family member.
    (p) It is for financial loss due to changed or cancelled orders.
    (q) It is for expenses of enroute repair of a mobile or manufactured 
home.
    (r) It is a loss of use of personal property.
    (s) It is an attorney or agent fee.
    (t) It is the cost of preparing a claim, other than estimate fees.
    (u) It is an inconvenience expense.
    (v) It is a loss of, or damage to POV driven during PCS.
    (w) It is a personal property insurance premium.
    (x) It is a claim for a thesis or other similar papers, except for 
the cost of materials.
    (y) It is damage to, or loss of a rental vehicle which TDY or PCS 
orders authorized.
    (z) It is a cost to relocate a telephone or mobile or manufactured 
home due to a government ordered quarters move.

[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83688, 
83689, Nov. 22, 2016]

[[Page 22]]



Sec.  842.27  Reconsideration of a claim.

    A claimant may request reconsideration of an initial settlement or 
denial of a claim. The claimant sends the request in writing, to the 
settlement authority within a reasonable time following the initial 
settlement or denial. Sixty days is considered a reasonable time, but 
the settlement authority may waive the time limit for good cause.
    (a) The original settlement authority reviews the reconsideration 
request. The settlement authority sends the entire claim file with 
recommendations and supporting rationale to the next higher settlement 
authority if all relief the claimant requests is not granted.
    (b) The decision of the higher settlement authority is the final 
administrative action on the claim.

[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83688, Nov. 22, 2016]



Sec.  842.28  Right of subrogation, indemnity, and contribution.

    The Air Force becomes subrogated to the rights of the claimant upon 
settling a claim. The Air Force has the rights of contribution and 
indemnity permitted by the law of the situs or under contract. The Air 
Force does not seek contribution or indemnity from U.S. military 
personnel or civilian employees whose conduct in scope of employment 
gave rise to government liability.

[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83688, Nov. 22, 2016]



Sec.  842.29  Depreciation and maximum allowances.

    The military services have jointly established the ``Allowance List-
Depreciation Guide'' to determine values for most items and to limit 
payment for some categories of items.

[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83688, Nov. 22, 2016]



             Subpart D_Military Claims Act (10 U.S.C. 2733)

    Source: 55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83690, Nov. 
22, 2016, unless otherwise noted.



Sec.  842.30  Scope of this subpart.

    This subpart establishes policies and procedures for all 
administrative claims under the Military Claims Act for which the Air 
Force has assigned responsibility.

[81 FR 83690, Nov. 22, 2016]



Sec.  842.31  Definitions.

    (a) Appeal. A request by the claimant or claimant's authorized agent 
to reevaluate the final decision. A request for reconsideration and an 
appeal are the same for the purposes of this subpart.
    (b) Final denial. A letter mailed from the settlement authority to 
the claimant or authorized agent advising the claimant that the Air 
Force denies the claim. Final denial letters mailed from within the 
United States shall be sent by U.S. Mail, certified mail, return receipt 
requested.
    (c) Noncombat activity. Activity, other than combat, war or armed 
conflict, that is particularly military in character and has little 
parallel in the civilian community.

[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83690, 
Nov. 22, 2016]



Sec.  842.32  Delegations of authority.

    (a) Settlement authority. (1) The Secretary of the Air Force has 
authority to:
    (i) Settle claims for $100,000 or less.
    (ii) Settle claims for more than $100,000, paying the first $100,000 
and reporting the excess to the General Accounting Office for payment.
    (iii) Deny a claim in any amount.
    (2) The Judge Advocate General has delegated authority to settle 
claims for $100,000 or less and deny claims in any amount.
    (3) The following individuals have delegated authority to settle 
claims for $25,000 or less and to deny claims in any amount:
    (i) The Deputy Judge Advocate General.
    (ii) The Director, Civil Law and Litigation.
    (iii) The Chief, Associate Chief and Branch Chiefs, Claims and Tort 
Litigation Division.
    (4) SJAs of the Air Force component commander of the U.S. geographic

[[Page 23]]

combatant commands for claims arising within their respective combatant 
command areas of responsibility have delegated authority to settle 
claims payable or deny claims filed for $25,000 or less.
    (5) SJAs of GCMs in PACAF and USAFE have delegated authority to 
settle claims payable, or deny claims filed for $15,000 or less.
    (b) Redelegation of authority. The Chief, Claims and Tort Litigation 
Division may redelegate his or her authority to Staff Judge Advocates. A 
settlement authority may redelegate his or her authority for claims not 
exceeding $25,000, to a subordinate judge advocate or civilian attorney 
in writing. The Chief, AFLOA/JACC may redelegate up to $25,000, in 
writing, to paralegals assigned to AFLOA/JACC and, upon request, may 
authorize installation Staff Judge Advocates to redelegate their 
settlement authority to paralegals under their supervision.
    (c) Appellate authority. Upon appeal, a settlement authority has the 
same authority specified above. However, no appellate authority below 
the Office of the Secretary of the Air Force may deny an appeal of a 
claim it had previously denied.
    (d) Authority to reduce, withdraw, and restore settlement authority. 
Any superior settlement authority may reduce, withdraw, or restore 
delegated authority.
    (e) Settlement negotiations. A settlement authority may settle a 
claim in any sum within its delegated settlement authority, regardless 
of the amount claimed. Send uncompromised claims in excess of the 
delegated authority to the level with settlement authority. Unsuccessful 
negotiations at one level do not bind higher authority.
    (f) Special exceptions. Do not settle or deny claims for the 
following reasons without AFLOA/JACC approval:
    (1) Legal malpractice.
    (2) On the job personal injury or death of an employee of a 
government contractor or subcontractor.
    (3) Assault, battery, false imprisonment, false arrest, abuse of 
process, or malicious prosecution committed by an investigative or law 
enforcement officer.
    (4) On-base animal bite cases.
    (5) Personal injury from asbestos or radon.
    (6) Claims based upon an act or omission of an employee of the 
government, exercising due care, in the execution of a statute or 
regulation.
    (7) Claims based upon the exercise or performance or the failure to 
exercise or perform a discretionary function or duty on the part of a 
federal agency or an employee of the government.
    (8) Claims not payable because payment is not in the best interests 
of the United States, is contrary to public policy, or is otherwise 
contrary to the basic intent of the MCA.
    (9) Claims presented by a national, or a corporation controlled by a 
national, of a country at war or engaged in armed conflict with the 
United States, or any country allied with such enemy country.
    (10) Medical malpractice.

[55 FR 2809, Jan. 29, 1990, as amended at 56 FR 1574, Jan. 16, 1991. 
Redesignated and amended at 81 FR 83690, Nov. 22, 2016]



Sec.  842.33  Filing a claim.

    (a) Elements of a proper claim. A claim is must be filed on a 
Standard Form 95 or other written document. It must be signed by the 
Claimant or authorized agent, be for money damages in a sum certain, and 
lay out a basic statement as to the nature of the claim that will allow 
the Air Force to investigate the allegations contained therein.
    (b) Amending a claim. A claimant may amend a claim at any time prior 
to final action. To amend a claim, the claimant or his or her authorized 
agent must submit a written, signed demand.

[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83690, 
Nov. 22, 2016]



Sec.  842.34  Advance payments.

    Subpart P of this part sets forth procedures for advance payments.

[81 FR 83690, Nov. 22, 2016]



Sec.  842.35  Statute of limitations.

    (a) A claim must be filed in writing within 2 years after it 
accrues. It is deemed to be filed upon receipt by The Judge Advocate 
General, AFLOA/JACC, or a Staff Judge Advocate of the Air Force. A claim 
accrues when the

[[Page 24]]

claimant discovers or reasonably should have discovered the existence of 
the act that resulted in the claimed loss. The same rules governing 
accrual pursuant to the Federal Tort Claims Act should be applied with 
respect to the Military Claims Act. Upon receipt of a claim that 
properly belongs with another military department, the claim is promptly 
transferred to that department.
    (b) The statutory time period excludes the day of the incident and 
includes the day the claim was filed.
    (c) A claim filed after the statute of limitations has run is 
considered if the U.S. is at war or in an armed conflict when the claim 
accrues or if the U.S. enters a war or armed conflict after the claim 
accrues, and if good causes shows how the war or armed conflict 
prevented the claimant from diligently filing the claim within the 
statute of limitations. But in no case will a claim be considered if 
filed more than two years after the war or armed conflict ends.

[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83690, 
Nov. 22, 2016]



Sec.  842.36  Who may file a claim.

    (a) Owners of the property or their authorized agents may file 
claims for property damage.
    (b) Injured persons or their duly authorized agents may file claims 
for personal injury.
    (c) Duly appointed guardians of minor children or any other persons 
legally entitled to do so under applicable local law may file claims for 
minors' personal injuries.
    (d) Executors or administrators of a decedent's estate or another 
person legally entitled to do so under applicable local law, may file 
claims based on:
    (1) An individual's death.
    (2) A cause of action surviving an individual's death.
    (e) Insurers with subrogation rights may file claims for losses paid 
in full by them. The parties may file claims jointly or individually, to 
the extent of each party's interest, for losses partially paid by 
insurers with subrogation rights.
    (f) Authorized agents signing claims show their title or legal 
capacity and present evidence of authority to present the claims.

[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83690, Nov. 22, 2016]



Sec.  842.37  Who are proper claimants.

    (a) Citizens and inhabitants of the United States. U.S. inhabitants 
includes dependents of the U.S. military personnel and federal civilian 
employees temporarily outside the U.S. for purposes of U.S. Government 
service.
    (b) U.S. military personnel and civilian employees. Note: These 
personnel are not proper claimants for claims for personal injury or 
death that occurred incident to their service.
    (c) Foreign military personnel when the damage or injury occurs in 
the U.S. Do not pay for claims under the Military Claims Act (MCA) for 
personal injury or death of a foreign military personnel that occurred 
incident to their service.
    (d) States, state agencies, counties, or municipalities, or their 
political subdivisions.
    (e) Subrogees of proper claimants to the extent they have paid for 
the claim in question.

[81 FR 83690, Nov. 22, 2016]



Sec.  842.38  Who are not proper claimants.

    (a) Governments of foreign nations, their agencies, political 
subdivisions, or municipalities.
    (b) Agencies and nonappropriated fund instrumentalities (NAFIs) of 
the U.S. Government.
    (c) Subrogees of Sec.  842.42(a) and (b).
    (d) Inhabitants of foreign countries.

[81 FR 83690, Nov. 22, 2016]



Sec.  842.39  Claims payable.

    (a) Claims arising from negligent or wrongful acts or omissions 
committed by United States military or civilian personnel while acting 
in the scope of their employment, subject to the exceptions listed in 
this subpart.
    (b) Claims arising from noncombat activities of the United States, 
whether or not such injuries of damages arose out of the negligent or 
wrongful acts or omissions by United States military or civilian 
employees acting within the scope of their employment.

[[Page 25]]

    (c) Claims for property damage of U.S. military personnel under 
conditions listed in paragraphs (a) and (b) of this section, where the 
damage occurred on a military installation and is not payable under the 
Military Personnel and Civilian Employees' Claims Act.

[55 FR 2809, Jan. 29, 1990, as amended at 55 FR 32076, Aug. 7, 1990. 
Redesignated and amended at 81 FR 83690, Nov. 22, 2016]



Sec.  842.40  Claims not payable.

    (a) Claims covered by the Federal Tort Claims Act (FTCA), Foreign 
Claims Act (FCA), International Agreements Claims Act (IACA), 10 U.S.C. 
2734a and 2734b, Air Force Admiralty Claims Act (AFACA), 10 U.S.C. 9801-
9804, 9806, National Guard Claims Act (NGCA), 32 U.S.C. 715, or covered 
under the Military Personnel and Civilian Employees' Claims Act 
(MPCECA), 31 U.S.C. 3701, 3721.
    (1) MCA claims arising from noncombat activities in the U.S. are not 
covered by the FTCA because more elements are needed to state an FTCA 
claim than are needed to state a claim under the MCA for noncombat 
activities. All FTCA claims are based on elements of traditional tort 
liability (i.e., duty, breach, causation, and damages); that is, they 
are fault based. Noncombat activity claims under the MCA are based 
solely on causation and damages. Because MCA claims for noncombat 
activities are not fault based, they are not covered by the FTCA.
    (2) Claims for incident-to-service damage to vehicles caused by the 
negligence of a member or employee of the armed forces acting in the 
scope of employment are paid under the MCA, instead of the Military 
Personnel and Civilian Employees' Claims Act.
    (b) Arises with respect to the assessment or collection of any 
customs duty, or the detention of any goods or merchandise by any U.S. 
officer of customs or excise, or any other U.S. law enforcement officer. 
Note: This includes loss or damage to property detained by members of 
the Security Forces or Office of Special Investigation (OSI).
    (c) Is cognizable under U.S. admiralty and maritime law, to include:
    (1) The Suits in Admiralty Act, 46 U.S.C. 30901 and following.
    (2) The Death on the High Seas Act, 46 U.S.C. 30301 and following.
    (3) The Public Vessels Act, 46 U.S.C. 31101 and following.
    (4) Exception: Claims arising from noncombat activities may be paid 
under the MCA, even if they are also cognizable under paragraphs (c)(1) 
through (3) of this section.
    (d) Arises out of assault, battery, false imprisonment, false 
arrest, malicious prosecution, or abuse of process. Exception: Unless 
such actions were committed by an investigative or law enforcement 
officer of the U.S. who is empowered by law to conduct searches, seize 
evidence, or make arrests for violations of federal law.
    (e) Arises out of libel, slander, misrepresentation, or deceit.
    (f) Arises out of an interference with contract rights.
    (g) Arises out of the combat activities of U.S. military forces.
    (h) Is for the personal injury or death of a member of the Armed 
Forces of the U.S. incident to the member's service.
    (i) Is for the personal injury or death of any person for workplace 
injuries covered by the Federal Employees' Compensation Act, 5 U.S.C. 
8101, and following.
    (j) Is for the personal injury or death of any employee of the US, 
including nonappropriated fund employees, for workplace injuries covered 
by the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 901, 
and following.
    (k) Is for a taking of property, e.g., by technical trespass or over 
flight of aircraft.
    (l) Is for patent or copyright infringement.
    (m) Results wholly from the negligent or wrongful act of the 
claimant.
    (n) Is for the reimbursement of medical, hospital, or burial 
expenses furnished at the expense of the US, either directly or through 
contractual payments.
    (o) Arises from contractual transactions, express or implied 
(including rental agreements, sales agreements, leases, and easements), 
that:

[[Page 26]]

    (1) Are payable or enforceable under oral or written contracts; or
    (2) Arise out of an irregular procurement or implied contract.
    (p) Is for the personal injury or death of military or civilian 
personnel of a foreign government incident to their service.
    (q) Is based on an act or omission of an employee of the government, 
exercising due care, in the execution of a statute or regulation, 
whether or not such statute or regulation is valid. Do not deny claims 
solely on this exception without the prior approval of USAF/JACC. Claims 
under the noncombat activities provision of this subpart may be paid 
even if this paragraph (q) applies. Is based on the exercise or 
performance of, or the failure to exercise or perform, a discretionary 
function or duty on the part of a federal agency or a Federal Government 
employee, whether or not the discretion involved is abused. Do not deny 
claims solely on this exception without the prior approval of USAF/JACC. 
Exception: Claims under the noncombat activities provision may be paid 
even if this paragraph (q) applies.
    (r) Is not in the best interests of the US, is contrary to public 
policy, or is otherwise contrary to the basic intent of the MCA. 
Examples include, but are not limited to, when a claimant's criminal 
conduct or failure to comply with a nonpunitive regulation is a 
proximate cause of the loss. Prior approval must be obtained from USAF/
JACC before denying claims solely on this exception.
    (s) Arises out of an act or omission of any employee of the 
government in administering the provisions of the Trading With the Enemy 
Act, 50 U.S.C. app. 1-44.
    (t) Is for damages caused by the imposition or establishment of a 
quarantine by the U.S.
    (u) Arises from the fiscal operations of the Department of the 
Treasury or from the regulation of the monetary system.
    (v) Arises from the activities of the Tennessee Valley Authority.
    (w) Arises from the activities of a federal land bank, a federal 
intermediate credit bank, or a bank for cooperatives.
    (x) Is for the personal injury or death of any government contractor 
employee for whom benefits are available under any worker's compensation 
law, or under any contract or agreement providing employee benefits 
through insurance, local law, or custom when the U.S. pays insurance 
either directly or as part of the consideration under the contract. Only 
USAF/JACC may act on these claims.
    (y) Is for damage, injury or death from or by flood or flood waters 
at any place.
    (z) Is for damage to property or other losses of a state, 
commonwealth, territory, or the District of Columbia caused by Air 
National Guard personnel engaged in training or duty under 32 U.S.C. 
316, 502, 503, 504, or 505 who are assigned to a unit maintained by that 
state, commonwealth, territory, or the District of Columbia.
    (aa) Is for damage to property or for any death or personal injury 
arising out of activities of any federal agency or employee of the 
government in carrying out the provisions of the Disaster Relief Act of 
1974 (42 U.S.C. 5121, et seq.), as amended.
    (bb) Arises from activities that present a political question.
    (cc) Arises from private, as distinguished from government, 
transactions.
    (dd) Is based solely on compassionate grounds.
    (ee) Is for rent, damage, or other expenses or payments involving 
the regular acquisition, use, possession, or disposition of real 
property or interests therein by and for the U.S.
    (ff) Is presented by a national, or a corporation controlled by a 
national, of a country at war or engaged in armed conflict with the 
U.S., or any country allied with such enemy country unless the 
appropriate settlement authority determines that the claimant is, and at 
the time of the incident was, friendly to the U.S. A prisoner of war or 
an interned enemy alien is not excluded as to a claim for damage, loss, 
or destruction of personal property in the custody of the U.S. otherwise 
payable. Forward claims considered not payable under this paragraph 
(ff), with recommendations for disposition, to USAF/JACC.

[[Page 27]]

    (gg) Arises out of the loss, miscarriage, or negligent transmission 
of letters or postal matter by the U.S. Postal Service or its agents or 
employees.
    (hh) Is for damage to or loss of bailed property when the bailor 
specifically assumes such risk.
    (ii) Is for property damage, personal injury, or death occurring in 
a foreign country to an inhabitant of a foreign country.
    (jj) Is for interest incurred prior to the payment of a claim.
    (kk) Arises out of matters which are in litigation against the U.S.
    (ll) Is for attorney fees or costs in connection with pursuing an 
administrative or judicial remedy against the U.S. or any of its 
agencies.
    (mm) Is for bail, interest or inconvenience expenses incurred in 
connection with the preparation and presentation of the claim.
    (nn) Is for a failure to use a duty of care to keep premises owned 
or under the control of the U.S. safe for use for any recreational 
purpose, or for a failure by the U.S. to give any warning of hazardous 
conditions on such premises to persons entering for a recreational 
purpose unless there is a willful or malicious failure to guard or warn 
against a dangerous condition, or unless consideration was paid to the 
U.S. (including a nonappropriated fund instrumentality) to use the 
premises.

[81 FR 83691, Nov. 22, 2016]



Sec.  842.41  Applicable law.

    This section provides the existing law governing liability, 
measurement of liability and the effects of settlement upon awards.
    (a) Federal preemption. Many of the exclusions in this subpart are 
based upon the wording of 28 U.S.C. 2680 or other federal statutes or 
court decisions interpreting the Federal Tort Claims Act. Federal case 
law interpreting the same exclusions under the Federal Tort Claims Act 
is applied to the Military Claims Act. Where state law differs with 
federal law, federal law prevails.
    (b) Extent of liability. Where the claim arises is important in 
determining the extent of liability.
    (1) Applicable law. When a claim arises in the United States, its 
territories or possessions, the same law as if the claim was cognizable 
under the FTCA will be applied.
    (2) Claims in foreign countries. In claims arising in a foreign 
country, where the claim is for personal injury, death, or damage to or 
loss of real or personal property caused by an act or omission alleged 
to be negligent, wrongful, or otherwise involving fault of military 
personnel or civilian officers or employees of the United States acting 
within the scope of their employment, liability or the United States is 
determined according to federal case law interpreting the FTCA. Where 
the FTCA requires application of the law of the place where the act or 
omission occurred, settlement authorities will use the rules set forth 
in the currently adopted edition of the Restatement of the Law, 
published by the American Law Institute, to evaluate the liability of 
the Air Force, subject to the following rules:
    (i) Foreign rules and regulations governing the operation of motor 
vehicles (rules of the road) are applied to the extent those rules are 
not specifically superseded or preempted by United States military 
traffic regulations.
    (ii) Absolute or strict liability will not apply for claims not 
arising from noncombat activities.
    (iii) Hedonic damages are not payable.
    (iv) The collateral source doctrine does not apply.
    (v) Joint and several liability does not apply. Payment will be made 
only upon the portion of loss, damage, injury or death attributable to 
the Armed Forces of the United States.
    (vi) Future economic loss will be discounted to present value after 
deducting for federal income taxes and, in cases of wrongful death, 
personal consumption.
    (c) Claims not payable. Do not approve payment for:
    (i) Punitive damages.
    (ii) Cost of medical or hospital services furnished at the expense 
of the United States.
    (iii) Cost of burial expenses paid by the United States.

[[Page 28]]

    (d) Settlement by insurer or joint tortfeasor. When settlement is 
made by an insurer or joint tortfeasor and an additional award is 
warranted, an award may be made if both of the following are present:
    (1) The United States is not protected by the release executed by 
the claimant.
    (2) The total amount received from such source is first deducted.

[81 FR 83692, Nov. 22, 2016]



Sec.  842.42  Appeal of final denials.

    (a) A claimant may appeal the final denial of the claim. The 
claimant sends the request, in writing, to the settlement authority that 
issued the denial letter within 60 days of the date the denial letter 
was mailed. The settlement authority may waive the 60 day time limit for 
good cause.
    (b) Upon receipt of the appeal, the original settlement authority 
reviews the appeal.
    (c) Where the settlement authority does not reach a final agreement 
on an appealed claim, he or she sends the entire claim file to the next 
higher settlement authority, who is the appellate authority for that 
claim. Any higher settlement authority may act upon an appeal.
    (d) The decision of the appellate authority is the final 
administrative action on the claim.

[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83690, 
83692, Nov. 22, 2016]



Sec.  842.43  Right of subrogation, indemnity, and contribution.

    The Air Force becomes subrogated to the rights of the claimant upon 
settling a claim. The Air Force has the rights of contribution and 
indemnity permitted by the law of the situs, or under contract. Do not 
seek contribution or indemnity from U.S. military personnel or civilian 
employees whose conduct gave rise to government liability.

[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83690, Nov. 22, 2016]



Sec.  842.44  Attorney fees.

    In the settlement of any claim pursuant to 10 U.S.C. 2733 and this 
subpart, attorney fees will not exceed 20 percent of any award provided 
that when a claim involves payment of an award over $1,000,000, attorney 
fees on that part of the award exceeding $1,000,000 may be determined by 
the Secretary of the Air Force. For the purposes of this paragraph, an 
award is deemed to be the cost to the United States of any trust or 
structured settlement, and not its future value.

[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83690, Nov. 22, 2016]



                Subpart E_Foreign Claims (10 U.S.C. 2734)

    Source: 55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83692, Nov. 
22, 2016, unless otherwise noted.



Sec.  842.45  Scope of this subpart.

    This subpart tells how to settle and pay claims against the United 
States presented by inhabitants of foreign countries for property 
damage, personal injury, or death caused by military and civilian 
members of the U.S. Armed Forces in foreign countries.

[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83692, Nov. 22, 2016]



Sec.  842.46  Definitions.

    (a) Foreign country. A national state other than the United States, 
including any place under jurisdiction of the United States in a foreign 
country.
    (b) Inhabitant of a foreign country. A person, corporation, or other 
business association whose usual place of abode is in a foreign country. 
The term ``inhabitant'' has a broader meaning than such terms as 
``citizen'' or ``national'', but does not include persons who are merely 
temporarily present in a foreign country. It does not require foreign 
citizenship or domicile.
    (c) Appointing authority. An Air Force official authorized to 
appoint members to foreign claims commissions (FCC).

[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83692, Nov. 22, 2016]



Sec.  842.47  Delegations of authority.

    (a) Settlement authority. (1) The Secretary of the Air Force has the 
authority to:
    (i) Settle claims for payment of $100,000 or less.

[[Page 29]]

    (ii) Settle claims for more than $100,000, pay the first $100,000, 
and report the excess to the Department of the Treasury for payment.
    (iii) Deny claims in any amount.
    (2) The Judge Advocate General, Deputy Judge Advocate General, 
Director of Civil Law, and the Chief, Deputy Chief and Branch Chiefs, 
Claims and Tort Litigation Staff are FCCs and have delegated authority 
to:
    (i) Settle claims for payment of $100,000 or less.
    (ii) Deny claims in any amount.
    (3) The SJAs of the Air Force component commander of the U.S. 
geographic combatant commands are FCC for claims arising in their 
respective combatant command Areas of Responsibility (AORs) and may deny 
claims of $50,000 or less and will pay claims filed in any amount when 
payment is for $50,000 or less.
    (b) Redelegating settlement authority. A settlement authority 
appointed as a FCC in paragraph (a) of this section may appoint one or 
more subordinate judge advocates or civilian attorneys to act as FCC, 
and redelegate all or part of that settlement authority to such persons.
    (c) Settlement negotiations. A settlement authority may settle a 
claim in any sum within its settlement authority, regardless of the 
amount claimed. Send uncompromised claims in excess of the delegated 
authority through claims channels to the level with settlement 
authority. Unsuccessful negotiations at one level do not bind higher 
authority.
    (d) Special exceptions. Do not settle claims for medical malpractice 
without HQ USAF/JACC approval.

[81 FR 83692, Nov. 22, 2016]



Sec.  842.48  Filing a claim.

    (a) How and when filed. A claim is filed when the Air Force receives 
from a claimant or authorized agent a properly completed SF 95 or other 
signed and written demand for money damages in a sum certain. A claim 
may be presented orally only if oral claims are the custom in the 
country where the incident occurred and the claimant is functionally 
illiterate. In any case where an oral claim is made, claims personnel 
must promptly reduce the claim to writing with all particulars carefully 
noted. A claim belonging to another agency is promptly transferred to 
the appropriate agency.
    (b) Amending a claim. A claimant may amend a claim at any time prior 
to final action. An amendment must be in writing and signed by the 
claimant or authorized agent.

[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83692, 
83693, Nov. 22, 2016]



Sec.  842.49  Advance payments.

    Subpart P of this part outlines procedures for advance payments.

[81 FR 83693, Nov. 22, 2016]



Sec.  842.50  Statute of limitations.

    (a) A claim must be presented to the Air Force within 2 years after 
it accrues. It accrues when the claimant discovers or reasonably should 
have discovered the existence of the act that resulted in the claimed 
loss or injury.
    (b) In computing the statutory time period, the day of the incident 
is excluded and the day the claim was filed is included.
    (c) War or armed conflict does not toll the statute of limitations.

[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83692, 
83693, Nov. 22, 2016]



Sec.  842.51  Who may file a claim.

    (a) Owners of the property or their authorized agents for property 
damage.
    (b) Injured persons or other authorized agents for personal injury.
    (c) Executors or administrators of a decedent's estate, or any other 
person legally entitled to do so under applicable local law, for an 
individual's death.
    (d) Authorized agents (including the claimant's attorney) must show 
their title or legal capacity and present evidence of authority to 
present the claim.

[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83692, Nov. 22, 2016]



Sec.  842.52  Who are proper claimants.

    Claimants include inhabitants of a foreign country who are:
    (a) Foreign nationals. In a wrongful death case, if the decedent is 
an inhabitant of a foreign country, even though

[[Page 30]]

his or her survivors are U.S. inhabitants, the FCA will apply.
    (b) U.S. nationals residing abroad, unless the claim arises from a 
benefit, privilege or service provided to them by the U.S. Government, 
or they reside in the foreign country primarily because they are 
employed directly by the United States, or sponsored by or accompanying 
such a person, or employed by a U.S. civilian contractor in furtherance 
of a contract with the U.S. Government, or sponsored by or accompanying 
such a person.
    (c) U.S. corporations with a place of business in the country in 
which the claim arose.
    (d) Foreign governments and their political subdivisions, including 
a municipal and prefectural government.
    (e) Foreign companies and business entities.

[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83692, 
83693, Nov. 22, 2016]



Sec.  842.53  Who are not proper claimants.

    Persons who are not proper claimants include:
    (a) Insurers and other subrogees.
    (b) Persons determined to be U.S. inhabitants. U.S. inhabitants 
include dependents of U.S. military personnel and U.S. Government 
civilian employees.
    (c) Foreign military personnel suffering personal injury, or death 
arising incident to service or pursuant to combined and/or joint 
military operations. Such operations include, but are not limited to, 
military exercises and United Nations, NATO, and other regional 
peacekeeping and humanitarian missions.
    (d) Civilian employees of the United States, including local 
inhabitants, injured in the scope of their employment.
    (e) National governments and their political subdivisions engaging 
in war or armed conflict with the United States or its allies. This 
includes factions that have not necessarily been recognized by the 
international community as a legitimate nation state.
    (f) A national or nationally controlled corporation of a country 
engaging in war or armed conflict with the United States or its allies, 
unless the FCC or local military commander determines the claimant is 
friendly with the United States.

[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83692, 
83693, Nov. 22, 2016]



Sec.  842.54  Payment criteria.

    The following criteria is considered before determining liability.
    (a) The incident causing the damage or injury must arise in a 
foreign country and be caused by noncombatant activities of the U.S. 
Armed Forces or by the negligent or wrongful acts of civilian employees 
or military members of the Armed Forces.
    (1) It is a prerequisite to U.S. responsibility if the employee 
causing the damage or injury is a local inhabitant, a prisoner of war, 
or an interned enemy alien. These persons are ``employees'' within the 
meaning of the Foreign Claims Act (FCA) only when in the service of the 
United States. Ordinarily, a slight deviation as to time or place does 
not constitute a departure from the scope of employment. The purpose of 
the activity and whether it furthers the general interest of the United 
States is considered. If the claim arose from the operation or use of a 
U.S. Armed Forces vehicle or other equipment by such a person, pay it 
provided local law imposes liability on the owner of the vehicle or 
other equipment in the circumstances involved.
    (2) It is immaterial when the claim arises from the acts or 
omissions of any U.S. Armed Forces member or employee not listed in 
Sec.  842.64(c)(1). The Act imposes responsibility on the United States 
when it places a U.S. citizen or non-US citizen employee in a position 
to cause the injury or damage. If the cause is a criminal act clearly 
outside the scope of employment, ordinarily pay the claim and consider 
disciplinary action against the offender.
    (b) Scope of employment is considered in the following situations.
    (1) It is a prerequisite to U.S. responsibility if the employee 
causing the damage or injury is a local inhabitant, a prisoner of war, 
or an interned enemy alien. These persons are ``employees'' within the 
meaning of the Foreign Claims Act (FCA) only when in the service of the 
United States. Ordinarily, a slight deviation as to time or place does 
not constitute a departure

[[Page 31]]

from the scope of employment. The purpose of the activity and whether it 
furthers the general interest of the United States is considered. If the 
claim arose from the operation or use of a U.S. Armed Forces vehicle or 
other equipment by such a person, pay it provided local law imposes 
liability on the owner of the vehicle or other equipment in the 
circumstances involved.
    (2) It is immaterial when the claim arises from the acts or 
omissions of any U.S. Armed Forces member or employee not listed in 
Sec.  842.64(c)(1) of this part. The Act imposes responsibility on the 
United States when it places a U.S. citizen or non-US citizen employee 
in a position to cause the injury or damage. If the cause is a criminal 
act clearly outside the scope of employment, ordinarily pay the claim 
and consider disciplinary action against the offender.

[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83692, 
83693, Nov. 22, 2016]



Sec.  842.55  Claims not payable.

    A claim is not payable when it:
    (a) Is waived under an applicable international agreement, or 
pursuant to an applicable international agreement, a receiving state 
should adjudicate and pay the claim. However, if a foreign government 
subject to such an international agreement disputes its legal 
responsibilities under the agreement, and the claimant has no other 
means of compensation, USAF/JACC may authorize payment.
    (b) Is purely contractual in nature.
    (c) Is for attorney fees, punitive damages, a judgment or interest 
on a judgment, bail, or court costs. FCC should consider providing early 
notice to claimants that attorney fees are not payable as an item of 
damage under the FCA.
    (d) Accrues from a private contractual relationship between U.S. 
personnel and third parties about property leases, public utilities, 
hiring of domestic servants, and debts of any description. This claim is 
sent for action to the commander of the person concerned (see 32 CFR 
part 818).
    (e) Is based solely on compassionate grounds.

    Note: A Solatium payment is paid from O&M funds as an investigative 
expense.

    (f) Is a paternity claim.
    (g) Is for patent or copyright infringement.
    (h) Results wholly from the negligent or wrongful act of the 
claimant or agent.
    (i) Is for rent, damage, or other payments involving regular 
acquisition, possession, and disposition of real property by or for the 
Air Force.
    (j) Is filed by a Communist country or its inhabitants, unless 
authorized by AFLOA/JACC.
    (k) Is for real property taken by a continuing trespass.
    (l) Is for personal injury or death of a person covered by:
    (1) The Federal Employees' Compensation Act (5 U.S.C. 8101, et 
seq.).
    (2) The Longshore and Harbor Workers' Compensation Act (33 U.S.C. 
901, et seq.).
    (3) A U.S. contract or agreement providing employee benefits through 
insurance, local law, or custom, where the United States pays for them 
either directly or as part of the consideration under the contract. (See 
42 U.S.C. 1651 and 42 U.S.C. 1701.) The Judge Advocate General or Chief, 
Claims and Tort Litigation Staff, AFLOA/JACC, may authorize an award 
where local benefits are not adequate. Local benefits are deducted from 
any award.
    (m) Results from an action by an enemy, or directly or indirectly 
from an act of the U.S. Armed Forces in combat, except that a claim may 
be allowed if it arises from an accident or malfunction incident to the 
operation of an aircraft of the U.S. Armed Forces, including its 
airborne ordnance, indirectly related to combat, and occurring while 
preparing for or going to, or returning from a combat mission.
    (n) Is based on negligence of a concessionaire or other independent 
contractor.
    (o) Arises out of personal activities of family members, guests, 
servants, or activities of the pets of members and employees of the U.S. 
Armed Forces.
    (p) Is the subject of litigation against the United States or its 
employees. This restriction does not apply to joint criminal/civil 
proceedings in a foreign

[[Page 32]]

court. Claims settlement may be authorized by AFLOA/JACC in appropriate 
cases on request.
    (q) Is covered under U.S. admiralty or maritime laws, unless 
authorized by The Judge Advocate General or Chief, Claims and Tort 
Litigation Staff.
    (s) Is not in the best interest of the United States, is contrary to 
public policy, or otherwise contrary to the basic intent of the FCA. 
Claims considered not payable on this basis will be forwarded to USAF/
JACC for final decision.
    (t) Is presented by a national, or a corporation controlled by a 
national, of a country at war or engaged in armed conflict with the 
United States, or any country allied with such enemy country unless the 
settlement authority determines the claimant is, and at the time of the 
incident was, friendly to the United States. Exception: A prisoner of 
war or interned enemy alien is not excluded from filing a claim for 
damage, loss, or destruction of personal property within the U.S. Armed 
Forces' custody if the claim is otherwise payable.

[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83692, 
83693, Nov. 22, 2016]



Sec.  842.56  Applicable law.

    This section provides guidance to determine the applicable law for 
assessment of liability.
    (a) In adjudicating FCA claims, settlement authorities will follow 
the law, customs, and standards of the country where the claim arose, 
except:
    (1) Causation is determined based upon general principles of U.S. 
tort law found in federal case law and standard legal publications.
    (2) Joint and several liability does not apply. Payment is based 
solely on the portion of loss, damage, injury or death attributable to 
the U.S. Armed Forces.
    (3) If lost income or lost profits is recoverable under the law 
where the claim arose, they shall be limited to net lost income or net 
lost profits, taking into account appropriate deductions for taxes, 
regular business expenditures, and in the case of wrongful death, 
personal consumption during the loss period.
    (b) Settlement authorities will not deduct compensation from 
collateral sources except for:
    (1) Direct payments by a member or civilian employee of the U.S. 
Armed Forces for damages (not solatia).
    (2) Any payments recovered or recoverable from an insurance policy 
when premiums were paid, directly or indirectly, by the United States, 
or a member or civilian employee of the U.S. Armed Forces; or when the 
member or employee has the benefit of the insurance (such as when a U.S. 
member or employee borrows a vehicle of a local national, and the 
vehicle carries insurance for the benefit of any driver with permission 
to drive the vehicle).

[81 FR 83694, Nov. 22, 2016]



Sec.  842.57  Reconsideration of final denials.

    This section provides the procedures used to reconsider a final 
denial.
    (a) An FCC has the inherent authority to reconsider a final 
decision. The mere fact that a request for reconsideration is received 
does not obligate the settlement authority to reopen the claim.
    (b) The FCC does not mention a reconsideration right in the original 
denial letter.
    (c) A settlement authority must reconsider the final action when 
there is:
    (1) New and material evidence concerning the claim; or
    (2) Obvious errors in the original decision.
    (d) The FCC must document in the claim file the reason for 
reconsideration.
    (e) A FCC above the original settlement authority may direct a claim 
be forwarded to a higher FCC for reconsideration.

[81 FR 83694, Nov. 22, 2016]



Sec.  842.58  Right of subrogation, indemnity, and contribution.

    The Air Force has all the rights of subrogation, indemnity and 
contribution, as local law permits. However, settlement authorities will 
not seek contribution or indemnity from U.S. military members or 
civilian employees whose conduct gave rise to U.S. Government liability, 
or whenever it

[[Page 33]]

would be harmful to international relations.

[81 FR 83694, Nov. 22, 2016]



  Subpart F_International Agreement Claims (10 U.S.C. 2734a and 2734b)

    Source: 55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83694, Nov. 
22, 2016, unless otherwise noted.



Sec.  842.59  Scope of this subpart.

    This subpart governs Air Force actions in investigating, processing, 
and settling claims under the International Agreement Claims Act.

[81 FR 83694, Nov. 22, 2016]



Sec.  842.60  Definitions.

    The following are general definitions. See the relevant 
international agreement for the specific meaning of a term to use with a 
specific claim.
    (a) Civilian component. Civilian personnel accompanying and employed 
by an international agreement contracting force. Local employees, 
contractor employees, or members of the American Red Cross are not a 
part of the civilian component unless specifically included in the 
agreement.
    (b) Contracting party. A nation signing the governing agreement.
    (c) Force. Personnel belonging to the land, sea, or air armed 
services of one contracting party when in the territory of another 
contracting party in connection with their official duties.
    (d) Legally responsible. A term of art providing for settlement of 
claims under cost sharing international agreements in accordance with 
the law of the receiving state. Often, employees who are local 
inhabitants, not part of the civilian component of the force, could 
cause the sending state to be legally responsible under a respondeat 
superior theory.
    (e) Receiving state. The country where the force or civilian 
component of another contracting party is temporarily located. It is 
often thought of as the ``host nation.''
    (f) Sending state. The country sending the force or civilian 
component to the receiving State. In cases where U.S. personnel are 
stationed in a foreign country, the U.S. is the sending state.
    (g) Third parties. A term of art used in International Agreements. 
Parties other than members of the force and civilian component of the 
sending or receiving States. Dependents, tourists, and other 
noninhabitants of a foreign country are third parties (and therefore can 
generally make a claim under a SOFA) unless the international agreement, 
or an understanding between the countries involved, specifically 
excludes them.

[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83694, 
Nov. 22, 2016]



Sec.  842.61  Delegations of authority.

    (a) Overseas settlement authority. Staff Judge Advocates of the Air 
Force component commands of the U.S. geographic combatant commands will, 
within their combatant command AORs, fulfill U.S. obligations concerning 
claims abroad subject to 10 U.S.C. 2734a for which the Air Force has 
settlement authority. Consistent with 10 U.S.C. 2734a and the 
international agreement, they may reimburse or pay the pro rata share of 
a claim as agreed, or if inconsistent with the IACA or the international 
agreement, they may object to a bill presented,
    (b) Settlement authority. The Secretary of the Air Force, The Judge 
Advocate General, the Deputy Judge Advocate General, The Director of 
Civil Law and Chief of the Claims and Tort Litigation Division may also 
exercise settlement authority under 10 U.S.C. 2734a.
    (c) Redelegation of authority. A settlement authority may redelegate 
his or her authority to a subordinate judge advocate or civilian 
attorney in writing.
    (d) Authority to reduce, withdraw, and restore settlement authority. 
Any superior settlement authority may reduce, withdraw, or restore 
delegated authority.

[81 FR 83694, Nov. 22, 2016]



Sec.  842.62  Filing a claim.

    (a) Claims arising in a foreign country. (1) If a third party 
claimant tries to file an international agreement claim

[[Page 34]]

with Air Force, direct that person to the appropriate receiving State 
office.
    (2) If the Air Force receives a claim, send it to the U.S. sending 
State office for delivery to the receiving State.
    (b) Claims arising in the United States. The claimant files tort 
claims arising from the act or omission of military or civilian 
personnel of another contracting party at any U.S. military 
installation. The Staff Judge Advocate for the installation where such 
military or civilian personnel is assigned or attached will promptly 
notify the Foreign Claims Branch of USAF/JACC as well as the Commander, 
U.S. Army Claims Service. If the claimant files said claim at an 
installation other than the location where said military or civilian 
personnel is assigned, the Staff Judge Advocate for that installation 
will promptly forward the claim to the appropriate installation Staff 
Judge Advocate.

[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83694, 
83695, Nov. 22, 2016]



      Subpart G_Use of Government Property Claims (10 U.S.C. 2737)

    Source: 55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83695, Nov. 
22, 2016, unless otherwise noted.



Sec.  842.63  Scope of this subpart.

    This subpart explains how to settle and pay claims against the 
United States, for property damage, personal injury, or death incident 
to the use of a government vehicle or any other government property on a 
government installation which are not payable under any other statute.

[81 FR 83695, Nov. 22, 2016]



Sec.  842.64  Definitions.

    (a) Government installation. A United States Government facility 
having fixed boundaries and owned or controlled by the government.
    (b) Vehicle. Every mechanical device used as a means of 
transportation on land.

[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83695, Nov. 22, 2016]



Sec.  842.65  Delegations of authority.

    (a) Settlement authority. The following individuals have delegated 
authority to settle claims for $1,000 or less and deny them in any 
amount.
    (1) The Judge Advocate General.
    (2) The Deputy Judge Advocate General.
    (3) Director of Civil Law.
    (4) Chief, Deputy Chief and Branch Chiefs, Claims and Tort 
Litigation staff.
    (5) SJA of the Air Force component commands of the U.S. geographic 
combatant commands.
    (6) SJAs of single base GCMs and GCMs in PACAF and USAFE.
    (7) The SJA of each Air Force base, station and fixed installation.
    (8) Any other judge advocate designated by The Judge Advocate 
General.
    (b) Redelegation of authority. A settlement authority may redelegate 
it to a subordinate judge advocate or civilian attorney in writing.
    (c) Authority to reduce, withdraw, and restore settlement authority. 
Any superior settlement authority may reduce, withdraw, or restore 
delegated authority.

[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83695, 
Nov. 22, 2016]



Sec.  842.66  Filing a claim.

    (a) How and when filed. A claim has been filed when a federal agency 
receives from a claimant or the claimant's duly authorized agent written 
notification of an incident of property damage, personal injury or death 
accompanied by a demand for money damages in a sum certain. A claim 
incorrectly presented to the Air Force will be promptly transferred to 
the appropriate Federal agency.
    (b) Amending a claim. A claimant may amend a claim at any time prior 
to final Air Force action. Amendments will be submitted in writing and 
signed by the claimant or the claimant's duly authorized agent.

[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83695, Nov. 22, 2016]



Sec.  842.67  Statute of limitations.

    (a) A claim must be presented in writing within 2 years after it 
accrues.

[[Page 35]]

It accrues at the time the claimant discovers, or in the exercise of 
reasonable care should have discovered, the existence of the act causing 
property damage, personal injury or death for which the claim is filed.
    (b) In computing time to determine whether the period of limitation 
has expired, exclude the incident date and include the date the claim 
was filed.

[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83695, Nov. 22, 2016]



Sec.  842.68  Claims payable.

    When all of the following are present, payment of a claim in the 
amount of $1,000 or less is authorized if it:
    (a) Is for property damage, personal injury, or death. Payment for a 
personal injury or death claim is limited to costs of reasonable 
medical, hospital, and burial expenses actually incurred and not 
otherwise furnished or paid by the United States.
    (b) Was caused by a military member or civilian employee of the Air 
Force, whether acting within or outside the scope of employment.
    (c) Arose from the use of a government vehicle at any place or from 
the use of other government property on a government installation.
    (d) Is not payable under any other provision of law except Article 
139, UCMJ.

[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83695, 
Nov. 22, 2016]



Sec.  842.69  Claims not payable.

    A claim is not payable if it is:
    (a) Payable under any other provision of the law.
    (b) Caused wholly or partly by a negligent or wrongful act of the 
claimant, the claimant's agent, or employee.
    (c) A subrogated claim.
    (d) Recoverable from other sources such as an insurance policy, or 
recovered from action under Article 139, UCMJ.
    (e) For pain and suffering or other general damages.

[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83695, 
Nov. 22, 2016]



Sec.  842.70  Reconsideration of final denial.

    (a) The statute does not provide for appeals. The original 
settlement authority may, however, reconsider any decision. There is no 
set format for a reconsideration but it should be submitted in writing 
within 60 days of the original decision.
    (b) The settlement authority may either grant all or any portion of 
the requested relief without referral to any other office, or forward 
the entire file with the reasons for the action and recommendations to 
the next higher claims settlement authority for independent review and 
final action.

[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83695, Nov. 22, 2016]



Sec.  842.71  Settlement agreement.

    Do not pay a claim unless the claimant accepts the amount offered in 
full satisfaction of the claim and signs a settlement agreement to that 
effect, in which the claimant agrees to release any and all claims 
against the United States, its employees and agents arising from the 
incident in question. Use the settlement agreement approved for use by 
the Department of Justice for the settlement of FTCA claims, tailored to 
this claim.

[81 FR 83695, Nov. 22, 2016]



  Subpart H_Admiralty Claims (10 U.S.C. 9801	9804, 9806; 46 U.S.C. 740)

    Source: 55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83695, Nov. 
22, 2016, unless otherwise noted.



Sec.  842.72  Scope of this subpart.

    It sets forth the procedure for administrative settlement of 
admiralty and maritime claims in favor of and against the United States.

[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83695, Nov. 22, 2016]



Sec.  842.73  Definitions.

    (a) Admiralty contracts. A contract covering maritime services or a 
maritime transaction such as vessel procurement and space for commercial 
ocean transportation of DOD cargo,

[[Page 36]]

mail, and personnel is an admiralty contract.
    (b) General average. General average is the admiralty rule that when 
someone's property is thrown overbaord to save a ship, the ship owner 
and all owners of the cargo must share the loss.
    (c) Maritime torts. A maritime tort is one committed in navigable 
waters or on land or in the air where a substantial element of the 
damage, personal injury, or death occurred in navigable waters. The 
activity causing the tortious act must bear some significant 
relationship to traditional maritime activity.
    (d) Vessel. Every description of watercraft used or usable as a 
means of transportation on water is a vessel. (1 U.S.C. 3)

[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83695, Nov. 22, 2016]



Sec.  842.74  Delegations of authority.

    (a) The following officials have the authority to settle a claim 
against the Air Force in the amounts provided:
    (1) The Secretary of the Air Force has the authority to:
    (i) Settle or deny a claim in any amount. Settlements for payment of 
more than $500,000 are certified to Congress for payment.
    (ii) [Reserved]
    (2) The following individuals have delegated authority to settle 
claims for $100,000 or less:
    (i) The Judge Advocate General.
    (ii) The Deputy Judge Advocate General.
    (iii) The Director of Civil Law.
    (iv) The Chief and Deputy Chief, Claims and Tort Litigation staff.
    (b) Delegation of settlement authority on claims in favor of the 
United States.
    (1) The Secretary of the Air Force has the authority to settle 
claims for damage to property under the jurisdiction of the Air Force in 
an amount not to exceed $500,000, and to settle claims for salvage 
services performed by the Air Force in any amount.
    (2) AFLOA/JACC refers all claims for damage to property under the 
jurisdiction of the Air Force for more than $500,000 to the Department 
of Justice.
    (3) The following individuals have delegated authority to settle 
claims for $100,000 or less and deny them in any amount:
    (i) The Judge Advocate General.
    (ii) The Deputy Judge Advocate General.
    (iii) The Director of Civil Law.
    (iv) The Chief and Deputy Chief, Claims and Tort Litigation 
Division.

[55 FR 2809, Jan. 29, 1990, as amended at 55 FR 32077, Aug. 7, 1990; 56 
FR 1574, Jan. 16, 1991. Redesignated and amended at 81 FR 83695, Nov. 
22, 2016]



Sec.  842.75  Reconsidering claims against the United States.

    This section provides the policy and procedures to reconsider any 
maritime claim made against the United States.
    (a) The settlement authority may reconsider any claim previously 
disapproved in whole or in part when either:
    (1) The claimant submits new evidence in support of the claim.
    (2) There were errors or irregularities in the submission or 
settlement of the claim.
    (b) There is no right of appeal to higher authority under this 
subpart.
    (c) There is no time limit for submitting a request for 
reconsideration, but it is within the discretion of the settlement 
authority to decline to reconsider a claim based on the amount of time 
passed since the claim was originally denied.

[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83695, 
Nov. 22, 2016]



 Subpart I_Claims Under the Federal Tort Claims Act (28 U.S.C. 1346(b), 
                      2402, 2671, 2672, 2674	2680)

    Source: 81 FR 83695, Nov. 22, 2016, unless otherwise noted.



Sec.  842.76  Scope of this subpart.

    This subpart, promulgated under the authority of 28 CFR 14.11, 
governs claims against the United States for property damage, personal 
injury, or death, from the negligent or wrongful acts or omission of Air 
Force military or civilian personnel while acting within the scope of 
their employment.

[[Page 37]]



Sec.  842.77  Delegations of authority.

    (a) Settlement authority. The following individuals are delegated 
the full authority of the Secretary of the Air Force to settle and deny 
claims:
    (1) The Judge Advocate General.
    (2) The Deputy Judge Advocate General.
    (3) The Director of Civil Law.
    (4) The Division Chief of Claims and Tort Litigation.
    (5) The Division Chief of Environmental Law and Litigation.
    (b) Redelegation of authority. A settlement authority may be 
redelegated, in writing, to a subordinate judge advocate or civilian 
attorney. The Chief, AFLOA/JACC may redelegate up to $25,000, in 
writing, to paralegals assigned to AFLOA/JACC and, upon request, may 
authorize installation Staff Judge Advocates to redelegate their 
settlement authority to paralegals under their supervision.
    (c) Authority to reduce, withdraw, and restore settlement authority. 
Any superior settlement authority may reduce, withdraw, or restore 
delegated authority.
    (d) Settlement negotiations. A settlement authority may settle a 
claim filed in any amount for a sum within the delegated authority. 
Unsettled claims in excess of the delegated authority will be sent to 
the next highest level with settlement authority. Unsuccessful 
negotiations at one level do not bind higher authority.



Sec.  842.78  Settlement agreements.

    The claimant must sign a settlement agreement and general release 
before any payment is made.



Sec.  842.79  Administrative claim; when presented.

    When the Air Force is the proper agency to receive a claim pursuant 
to 28 CFR 14.2(b), for purposes of the provisions of 28 U.S.C. 2401(b), 
2672 and 2675, a claim shall be deemed to have been presented when it is 
received by:
    (a) The office of the Staff Judge Advocate of the Air Force 
installation nearest the location of the incident; or
    (b) The Claims and Tort Litigation Division, 1500 West Perimeter 
Road, Suite 1700, Joint Base Andrews, MD 20762.



Subpart J_Property Damage Tort Claims in Favor of the United States (31 
                         U.S.C. 3701, 3711	3719)

    Source: 55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83696, Nov. 
22, 2016, unless otherwise noted.



Sec.  842.80  Scope of this subpart.

    This subpart describes how to assert, administer, and collect claims 
for damage to or loss or destruction of government property and lost 
wages of Air Force servicemembers through negligent or wrongful acts. It 
does not cover admiralty, hospital recovery, or nonappropriated fund 
claims.

[81 FR 83696, Nov. 22, 2016]



Sec.  842.81  Delegations of authority.

    (a) Settlement authority. (1) The following individuals have 
delegated authority to settle, compromise, suspend, or terminate action 
on claims asserted for $100,000 or less and to accept full payment on 
any claim:
    (i) The Judge Advocate General.
    (ii) The Deputy Judge Advocate General.
    (iii) The Director of Civil Law.
    (iv) Chief, Deputy Chief, and Branch Chiefs, Claims and Tort 
Litigation Staff.
    (2) Installation staff judge advocates have authority to assert 
claims in any amount, accept full payment on any claim and to 
compromise, suspend or terminate action on claims asserted for $25,000 
or less.
    (b) Redelegation of authority. A settlement authority may redelegate 
it to a subordinate judge advocate or civilian attorney, in writing.
    (c) Authority to reduce, withdraw, or restore settlement authority. 
Any superior settlement authority may reduce, withdraw, or restore 
delegated authority.

[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83696, 
Nov. 22, 2016]



Sec.  842.82  Assertable claims.

    A claim may be asserted in writing for loss of or damage to 
government property, against a tort-feasor when:
    (a) Damage results from negligence and the claim is for:

[[Page 38]]

    (1) More than $100.
    (2) Less than $100 but collection is practicable and economical.
    (b) The claim is based on a contract and the contracting officer 
does not intend to assert a claim under the contract. The contracting 
officer's intention not to assert a claim should be recorded in a 
memorandum for the record and placed in the claim file.
    (c) The claim is for property damage arising from the same incident 
as a hospital recovery claim.
    (d) The Tort-feasor or his insurer presents a claim against the 
government arising from the same incident. (Both claims should be 
processed together.)
    (e) The claim is assertable as a counterclaim under an international 
agreement. (The claim should be processed under subpart G of this part).
    (f) The claim is based on product liability. AFLOA/JACC approval 
must be obtained before asserting the claim.

[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83696, 
Nov. 22, 2016]



Sec.  842.83  Non-assertable claims.

    A claim is not assertable under this subpart when it is for:
    (a) Reimbursement for military or civilian employees for their 
negligence claims paid by the United States.
    (b) Loss or damage to government property:
    (1) Caused by a nonappropriated fund employee acting in the scope of 
employment.
    (2) Caused by a person who has accountability and responsibility for 
the damaged property under the Report of Survey system.
    (c) Loss or damage to nonappropriated fund property assertable under 
other provisions.
    (d) Loss or damage caused by an employee of an instrumentality of 
the government in the absence of statutory authority to reimburse.
    (e) Monies recovered against a foreign government or any of its 
political subdivisions. (AFLOA/JACC may authorize this claim as an 
exception to the rule).
    (f) Loss or damage caused by an employee of another federal agency 
while the employee was acting in the scope of his employment.

[55 FR 2809, Jan. 29, 1990, as amended at 55 FR 32077, Aug. 7, 1990. 
Redesignated and amended at 81 FR 83696, Nov. 22, 2016]



Sec.  842.84  Asserting the claim.

    The base SJA asserts the claim against the tort-feasor by mailing, 
certified mail, return receipt requested, the original and one copy of a 
``Notice of Claim'' that includes the following:
    (a) Reference to the statutory right to collect.
    (b) A demand for payment or restoration.
    (c) A description of damage.
    (d) The date and place of incident.
    (e) The name, phone number, and office address of claims personnel 
to contact.

[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83696, Nov. 22, 2016]



Sec.  842.85  Referring a claim to the U.S. Attorney or the Department of
Justice.

    If collection efforts are unsuccessful, AFLOA/JACC may refer a claim 
to the appropriate U.S. Attorney's Office or the Department of Justice 
for initiation of a lawsuit.

[81 FR 83696, Nov. 22, 2016]



Sec.  842.86  Statute of limitations.

    The government must file suit within 3 years after the cause of 
action accrues. It accrues when a responsible U.S. official knew or 
reasonably should have known the material facts that resulted in the 
claimed loss.

[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83696, Nov. 22, 2016]



Sec.  842.87  Compromise, termination, and suspension of collection.

    This section establishes the guidelines for compromise, termination, 
or suspension of a claim.
    (a) Compromise of a claim is allowable when:
    (1) The tort-feasor is unable to pay the full amount within a 
reasonable time. (A sworn statement showing the debtor's assets and 
liabilities, income, expenses, and insurance coverage should be obtained 
and included in the claim file).

[[Page 39]]

    (2) The Government is unable to collect a claim in full within a 
reasonable time even though the enforced collection proceedings are used 
for collection.
    (3) The cost to collect does not justify enforced collection of the 
full amount.
    (4) The government may have difficulty proving its case in court for 
the full amount claimed.
    (b) Compromise is not allowable when there may be fraud, 
misrepresentation, or violation of antitrust laws. The Department of 
Justice must authorize compromise of such claims.
    (c) Termination of collection is allowable when:
    (1) The government is unable to collect the debt after exhausting 
all collection methods.
    (2) The government is unable to locate the tort-feasor.
    (3) The cost to collect will exceed recovery.
    (4) The claim is legally without merit.
    (5) The evidence does not substantiate the claim.
    (d) Suspension of collection is allowable when:
    (1) The government is unable to locate tort-feasor.
    (2) The tort-feasor is presently unable to pay but:
    (i) The statute of limitations is tolled or is running anew.
    (ii) Future collection may be possible.

[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83696, Nov. 22, 2016]



  Subpart K_Claims Under the National Guard Claims Act (32 U.S.C. 715)

    Source: 55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83696, Nov. 
22, 2016, unless otherwise noted.



Sec.  842.88  Scope of this subpart.

    This subpart establishes policies and procedures for all 
administrative claims under the National Guard Claims Act for which the 
Air Force has assigned responsibility. Unless otherwise outlined in this 
subpart, follow procedures as outlined in subpart E of this part for 
claims arising out of noncombat activities.

[81 FR 83696, Nov. 22, 2016]



Sec.  842.89  Definitions.

    (a) Air National Guard (ANG). The federally recognized Air National 
Guard of each state, the District of Columbia, the Commonwealth of 
Puerto Rico, the Virgin Islands, and Guam.
    (b) ANG member. An ANG member is one who is performing duty under 32 
U.S.C., section 316, 502, 503, 504, or 505 for which the member is 
entitled to pay from the United States or for which the member has 
waived pay from the United States.
    (c) ANG duty status--(1) Active federal service. ANG members may 
serve on active Federal duty under 10 U.S.C. to augment the active Air 
Force under certain circumstances or for certain types of duty or 
training (e.g., overseas training exercises and ANG alert duty). Duty 
under 10 U.S.C. does not fall under this subpart.
    (2) Federally funded duty. ANG members perform specified federally 
funded duty or training under 32 U.S.C. such as weekend drills, annual 
training, field exercises, range firing, military schooling, full time 
unit support, or recruiting duties. Duty under 32 U.S.C. falls under 
this subpart for noncombat activities.
    (3) State duty. State duty is duty not authorized by federal law but 
required by the governor of the state and paid for from state funds. 
Such duty includes civil emergencies (natural or other disasters), civil 
disturbances (riots and strikes), and transportation requirements for 
official state functions, public health, or safety. State duty does not 
fall under this subpart.
    (d) ANG technicians. An ANG technician is a Federal employee 
employed under 32 U.S.C. 709. Tort claims arising out of his or her 
activity are settled under the Federal Tort Claims Act (FTCA).

[81 FR 83696, Nov. 22, 2016]



Sec.  842.90  Delegations of authority.

    (a) Settlement authority. (1) The Secretary of the Air Force has 
authority to:
    (i) Settle a claim for $100,000 or less.

[[Page 40]]

    (ii) Settle a claim for more than $100,000, paying the first 
$100,000 and reporting the excess to the General Accounting Office for 
payment.
    (iii) Deny a claim in any amount.
    (2) The Judge Advocate General has delegated authority to settle a 
claim for $100,000 or less, and deny a claim in any amount.
    (3) The following individuals have delegated authority to settle a 
claim for $25,000 or less, and deny a claim in any amount:
    (i) The Deputy Judge Advocate General.
    (ii) The Director of Civil Law.
    (iii) The Chief, Deputy Chief, and Branch Chiefs, Claims and Tort 
Litigation Staff.
    (4) The SJAs of the Air Force component commander of the U.S. 
geographic combatant commands for claims arising within their respective 
combatant command areas of responsibility have delegated authority to 
settle claims payable or to deny claims filed for $25,000 or less.
    (5) SJAs of GCMs in PACAF and USAFE have delegated authority to 
settle claims payable, and deny claims filed, for $15,000 or less.
    (b) Redelegation of authority. A settlement authority may redelegate 
up to $25,000 of settlement authority to a subordinate judge advocate or 
civilian attorney. This redelegation must be in writing and can be for 
all claims or limited to a single claim. The Chief, AFLOA/JACC may 
redelegate up to $25,000, in writing, to paralegals assigned to AFLOA/
JACC and, upon request, may authorize installation Staff Judge Advocates 
to redelegate their settlement authority to paralegals under their 
supervision.
    (c) Appellate authority. Upon appeal a settlement authority has the 
same authority to settle a claim as that specified above. However, no 
appellate authority below the Office of the Secretary of the Air Force 
may deny an appeal of a claim it previously denied.
    (d) Authority to reduce, withdraw, and restore settlement authority. 
Any superior settlement authority may reduce, withdraw, or restore 
delegated settlement authority.
    (e) Settlement negotiations. A settlement authority may settle a 
claim filed in any amount for a sum within the delegated settlement 
authority regardless of the amount claimed. Unsettled claims in excess 
of the delegated settlement authority are sent to the individual with 
higher settlement authority. Unsuccessful negotiations at one level do 
not bind higher authority.
    (f) Special exceptions. No authority below the level of AFLOA/JACC 
may settle claims for:
    (1) On the job personal injury or death of an employee of a 
government contractor or subcontractor.
    (2) Assault, battery, false imprisonment, false arrest, abuse of 
process, or malicious prosecution committed by an investigative or law 
enforcement officer.

[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83696, 
Nov. 22, 2016]



Sec.  842.91  Filing a claim.

    (a) Elements of a proper claim. A claim is must be filed on a 
Standard Form 95 or other written document. It must be signed by the 
Claimant or authorized agent, be for money damages in a sum certain, and 
lay out a basic statement as to the nature of the claim that will allow 
the Air Force to investigate the allegations contained therein.
    (b) Amending a claim. A claimant may amend a claim at any time prior 
to final action. To amend a claim the claimant or his or her authorized 
agent must submit a written, signed demand.

[81 FR 83697, Nov. 22, 2016]



Sec.  842.92  Advance payments.

    Subpart P of this part sets forth procedures for such payments.

[81 FR 83697, Nov. 22, 2016]



Sec.  842.93  Statute of limitations.

    (a) A claim must be filed in writing within 2 years after it 
accrues. It is deemed to be filed upon receipt by The Judge Advocate 
General, USAF/JACC, or a Staff Judge Advocate of the Air Force. A claim 
accrues when the claimant discovers or reasonably should have discovered 
the existence of the act that resulted in the claimed loss. The same 
rules governing accrual pursuant to the Federal Tort Claims Act should 
be applied with respect to the

[[Page 41]]

National Guard Claims Act. Upon receipt of a claim that properly belongs 
with another military department, the claim is promptly transferred to 
that department.
    (b) The statutory time period excludes the day of the incident and 
includes the day the claim was filed.
    (c) A claim filed after the statute of limitations has run is 
considered if the U.S. is at war or in an armed conflict when the claim 
accrues or if the U.S. enters a war or armed conflict after the claim 
accrues, and if good causes shows how the war or armed conflict 
prevented the claimant from diligently filing the claim within the 
statute of limitations. But in no case will a claim be considered if 
filed more than two years after the war or armed conflict ends.

[81 FR 83697, Nov. 22, 2016]



Sec.  842.94  Who may file a claim.

    The following individuals may file a claim under this subpart.
    (a) Owners of the property or their authorized agents may file 
claims for property damage.
    (b) Injured persons or their duly authorized agents may file claims 
for personal injury.
    (c) Duly appointed guardians of minor children or any other persons 
legally entitled to do so under applicable local law may file claims for 
minors' personal injuries.
    (d) Executors or administrators of a decedent's estate or another 
person legally entitled to do so under applicable local law, may file 
claims based on:
    (1) An individual's death.
    (2) A cause of action surviving an individual's death.
    (e) Insurers with subrogation rights may file claims for losses paid 
in full by them. The parties may file claims jointly or individually, to 
the extent of each party's interest, for losses partially paid by 
insurers with subrogation rights.
    (f) Authorized agents signing claims show their title or legal 
capacity and present evidence of authority to present the claims.

[81 FR 83697, Nov. 22, 2016]



Sec.  842.95  Who are proper claimants.

    (a) Citizens and inhabitants of the United States. U.S. inhabitants 
includes dependents of the U.S. military personnel and federal civilian 
employees temporarily outside the U.S. for purposes of U.S. Government 
service.
    (b) U.S. military personnel and civilian employees. Note: These 
personnel are not proper claimants for claims for personal injury or 
death that occurred incident to their service.
    (c) Foreign military personnel when the damage or injury occurs in 
the U.S. Do not pay for claims under the MCA for personal injury or 
death of a foreign military personnel that occurred incident to their 
service.
    (d) States, state agencies, counties, or municipalities, or their 
political subdivisions.
    (e) Subrogees of proper claimants to the extent they have paid for 
the claim in question.

[81 FR 83697, Nov. 22, 2016]



Sec.  842.96  Who are not proper claimants.

    (a) Governments of foreign nations, their agencies, political 
subdivisions, or municipalities.
    (b) Agencies and nonappropriated fund instrumentalities of the U.S. 
Government including the District of Columbia government.
    (c) Inhabitants of foreign countries.
    (d) The state, territory and its political subdivisions whose Air 
National Guard member caused the loss.
    (e) Subrogees of the claimants in paragraphs (a) through (d) of this 
section.

[81 FR 83697, Nov. 22, 2016]



Sec.  842.97  Claims payable.

    Claims arising from noncombat activities of the United States when 
caused by ANG members performing duty under 32 U.S.C. and acting within 
the scope of their employment, whether or not such injuries or damages 
arose out of their negligent or wrongful acts or omissions.

[81 FR 83697, Nov. 22, 2016]



Sec.  842.98  Claims not payable.

    The following are not payable:

[[Page 42]]

    (a) Claims covered by the FTCA, FCA, IACA, 10 U.S.C. 2734a and 
2734b, Air Force Admiralty Claims Act (AFACA), 10 U.S.C. 9801-9804, 
9806, MCA, 10 U.S.C. 2733, or covered under the Military Personnel and 
Civilian Employees' Claims Act (MPCECA), 31 U.S.C. 3701, 3721.
    (b) NGCA claims arising from noncombat activities in the U.S. are 
not covered by the FTCA because more elements are needed to state an 
FTCA claim than are needed to state a claim under the NGCA for noncombat 
activities. All FTCA claims are based on elements of traditional tort 
liability (i.e., duty, breach, causation, and damages); that is, they 
are fault based. Noncombat activity claims under the NGCA are based 
solely on causation and damages. Because NGCA claims for noncombat 
activities are not fault based, they are not covered by the FTCA.
    (c) See subpart E of this part for other claims not payable.
    (d) Claims for damage to or loss of bailed property when the bailor 
specifically assumed such risk.
    (e) Claims for personal injury or death of a person covered by:
    (1) The Federal Employees' Compensation Act.
    (2) The Longshore and Harbor Workers' Compensation Act.
    (3) A United States contract or agreement providing employee 
benefits through insurance, local law, or custom and the United States 
pays for such benefits either directly or as a part of the consideration 
under the contract.
    (f) Claims for property damage, personal injury or death occurring 
in a foreign country to an inhabitant of that country.
    (g) Claims caused by the negligent or wrongful acts or omissions of 
members of the District of Columbia ANG.
    (h) Claims arising from a private rather than a government 
transaction.
    (i) Claims for patent or copyright infringement.
    (j) Claims for damage, use, or other expenses involving the regular 
acquisition, possession, and disposition of real property by or for the 
ANG.
    (k) Claims for the taking of private real property by a continuing 
trespass or by a technical trespass such as overflights of aircraft.
    (l) Claims for loss of rental fee for personal property.
    (m) Claims in litigation against the United States.
    (n) Claims for a maritime occurrence covered under U.S. admiralty 
laws.
    (o) Claims for:
    (1) Any tax or customs duty.
    (2) The detention of any goods or merchandise by any officer of 
customs, excise, or law enforcement officer.
    (p) Claims from an act or omission of any employee of the Government 
while administering the provisions of the Trading With the Enemy Act.
    (q) Claims for damages caused by the United States' imposition or 
establishment of a quarantine.
    (r) Claims for libel, slander, misrepresentation, deceit or 
interference with contract rights.
    (s) Claims that result wholly from the negligent or wrongful act of 
the claimant or the claimant's agent.
    (t) Claims for reimbursement of medical, hospital, or burial 
expenses furnished at the expense of the United States, any state, the 
District of Columbia, or Puerto Rico.
    (u) Claims for damage from floods or flood waters.
    (v) Claims for damages caused by the fiscal operations of the 
Treasury or by regulation of the monetary system.
    (w) Claims caused by the negligent or wrongful acts or omissions of 
ANG members acting within the scope of their employment, while 
performing duty under 32 U.S.C., on or after 29 December 1981.
    (x) Claims caused by the negligent or wrongful acts or omissions of 
ANG technicians employed under 32 U.S.C. 709.

[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83696, 
83697, Nov. 22, 2016]



Sec.  842.99  Applicable law.

    (a) Federal preemption. Many of the exclusions in this subpart are 
based upon the wording of 28 U.S.C. 2680 or other federal statutes or 
court decisions interpreting the Federal Tort Claims Act. Federal case 
law interpreting the same exclusions under the Federal Tort Claims Act 
is applied to the National Guard Claims Act. Where

[[Page 43]]

state law differs with federal law, federal law prevails.
    (b) Extent of liability. Where the claim arises is important in 
determining the extent of liability.
    (1) Applicable law. When a claim arises in the United States, its 
territories or possessions, the same law as if the claim was cognizable 
under the FTCA will be applied.
    (2) Claims in foreign countries. In claims arising in a foreign 
country, where the claim is for personal injury, death, or damage to or 
loss of real or personal property caused by an act or omission alleged 
to be negligent, wrongful, or otherwise involving fault of military 
personnel or civilian officers or employees of the United States acting 
within the scope of their employment, liability or the United States is 
determined according to federal case law interpreting the FTCA. Where 
the FTCA requires application of the law of the place where the act or 
omission occurred, settlement authorities will use the rules set forth 
in the currently adopted edition of the Restatement of the Law, 
published by the American Law Institute, to evaluate the liability of 
the Air Force, subject to the following rules:
    (i) Absolute or strict liability will not apply for claims not 
arising from noncombat activities.
    (ii) Hedonic damages are not payable.
    (iii) The collateral source doctrine will not apply.
    (iv) Joint and several liability does not apply. Payment will be 
made only upon the portion of loss, damage, injury or death attributable 
to the Armed Forces of the United States.
    (v) Future economic loss will be discounted to present value after 
deducting for federal income taxes and, in cases of wrongful death, 
personal consumption.
    (c) Claims not payable. Do not approve payment for:
    (1) Punitive damages.
    (2) Cost of medical or hospital services furnished at U.S. expense.
    (3) Cost of burial expenses paid by the United States.
    (d) Settlement by insurer or joint tortfeasor. When settlement is 
made by an insurer or joint tortfeasor and an additional award is 
warranted, an award may be made if both of the following are present:
    (1) The United States is not protected by the release executed by 
the claimant.
    (2) The total amount received from such source is first deducted.

[81 FR 83698, Nov. 22, 2016]



Sec.  842.100  Appeal of final denials.

    This section explains the steps to take when a denial is appealed.
    (a) A claimant may appeal the final denial of the claim. The 
claimant sends the request, in writing, to the settlement authority that 
issued the denial letter within 60 days of the date the denial letter 
was mailed. The settlement authority may waive the 60 day time limit for 
good cause.
    (b) Upon receipt of the appeal, the original settlement authority 
reviews the appeal.
    (c) Where the settlement authority does not reach a final agreement 
on an appealed claim, he or she sends the entire claim file to the next 
higher settlement authority, who is the appellate authority for that 
claim. Any higher settlement authority may act upon an appeal.
    (d) The decision of the appellate authority is the final 
administrative action on the claim.

[81 FR 83698, Nov. 22, 2016]



Sec.  842.101  Government's right of subrogation, indemnity, and 
contribution.

    The Air Force becomes subrogated to the rights of the claimant upon 
settling a claim. The Air Force has the rights of contribution and 
indemnity permitted by the law of the situs or under contract. Do not 
seek contribution or indemnity from ANG members whose conduct gave rise 
to Government liability.

[81 FR 83698, Nov. 22, 2016]



Sec.  842.102  Attorney fees.

    In the settlement of any claim pursuant to 32 U.S.C. 715 and this 
subpart, attorney fees will not exceed 20 percent of any award provided 
that when a claim involves payment of an award over $1,000,000, attorney 
fees on that part of the award exceeding $1,000,000

[[Page 44]]

may be determined by the Secretary of the Air Force. For the purposes of 
this section, an award is deemed to be the cost to the United States at 
the time of purchase of a structured settlement, and not its future 
value.

[81 FR 83698, Nov. 22, 2016]



        Subpart L_Hospital Recovery Claims (42 U.S.C. 2651	2653)

    Source: 55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83698, Nov. 
22, 2016, unless otherwise noted.



Sec.  842.103  Scope of this subpart.

    This subpart explains how the United States asserts and settles 
claims for costs of medical care, against third parties under the 
Federal Medical Care Recovery Act (FMCRA) (10 U.S.C. 1095) and various 
other laws.

[81 FR 83698, Nov. 22, 2016]



Sec.  842.104  Definitions.

    This section defines terms which are used within this subpart.
    (a) Medical Cost Reimbursement Program Regional Field Offices. The 
Chief of the Medical Cost Reimbursement Program (MCRP) Branch determines 
and assigns geographic responsibility for all regional field offices. 
Each field office is responsible for investigating all potential claims 
and asserting claims within their jurisdiction for the cost of medical 
care provided by either a Medical Treatment Facility or at a civilian 
facility through Tricare.
    (b) Compromise. A mutually binding agreement where payment is made 
and accepted in an amount less than the full amount of the claim.
    (c) Injured party. The person who received medical care for injury 
or disease as a result of the incident on which the claim is based. The 
injured party may be represented by a guardian, personal representative, 
estate, or survivor.
    (d) Medical care. Includes medical and dental treatment, prostheses, 
and medical appliances the U.S. furnished or reimbursed other sources 
for providing.
    (e) Reasonable value of medical care. Either:
    (1) An amount determined by reference to rates set by the Director 
of the Office of Management and Budget for the value of necessary 
medical care in U.S. medical facilities.
    (2) The actual cost of necessary care from other sources which was 
reimbursed by the United States.
    (f) Third party. An individual, partnership, business, corporation 
(including insurance carriers), which is indebted to the United States 
for medical care provided to an injured party. (In some cases, a state 
or foreign government can be the third party.)
    (g) Waiver. The voluntary relinquishment by the United States of the 
right to collect for medical care provided to an injured party.
    (h) Accrued pay. The total of all pay accrued to the account of an 
active duty member during a period when the member is unable to perform 
military duties. It does not include allowances.
    (i) Future care. Medical care reasonably expected to be provided or 
paid for in the future treatment of an injured party as determined 
during the investigative process.

[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83698, 
Nov. 22, 2016]



Sec.  842.105  Delegations of authority.

    (a) Settlement authority. The following individuals have delegated 
authority to settle, compromise, or waive MCRP claims for $300,000 or 
less and to accept full payment on any claim:
    (1) The Judge Advocate General.
    (2) The Deputy Judge Advocate General.
    (3) The Director of Civil Law.
    (4) Chief, Claims and Tort Litigation Staff and the Chief, MCRP.
    (b) Redelegation of authority. The individuals described in 
paragraph (a) of this section may re-delegate a portion or all of their 
authority to subordinates, subject to the following limitations:
    (1) SJAs, when given Medical Cost Reimbursement (MCR) claims 
jurisdiction, are granted authority to waive, compromise, or settle 
claims in amounts of $25,000 or less. This authority may be re-delegated 
in writing with authority to re-delegate to subordinates.
    (2) SJAs of numbered Air Forces, when given MCR claims jurisdiction,

[[Page 45]]

are granted authority to waive, compromise, or settle claims in amounts 
of $40,000 or less. This authority may be re-delegated in writing with 
authority to re-delegate to subordinates.
    (3) SJAs of single base GCMs, the SJAs of GCMs in PACAF and USAFE, 
and the SJAs of each Air Force base, station, or fixed installation have 
delegated authority to compromise or waive claims for $15,000 or less 
and to accept full payment on any claim.
    (c) Authority to assert a claim. Each settlement authority has 
authority to assert a claim in any amount for the reasonable value of 
medical care.
    (d) Authority to reduce, withdraw, and restore settlement authority. 
Any superior settlement authority may reduce, withdraw, or restore 
delegated authority.
    (e) Settlement negotiations. A settlement authority may settle a 
claim filed for an amount within the delegated settlement authority. 
Claims in excess of the delegated authority must be approved by the next 
higher settlement authority. Unsuccessful negotiations at one level do 
not bind higher authority.

    Note to paragraph (e): Telephonic approvals, in the discretion of 
the higher settlement authority, are authorized.

    (f) Special exceptions. Only the Department of Justice (DOJ) may 
approve claims involving:
    (1) Compromise or waiver of a claim for more than $300,000.
    (2) Settlement previously referred to DOJ.
    (3) Settlement where a third party files suit against the U.S. or 
the injured party arising out of the same incident.

[81 FR 83698, Nov. 22, 2016]



Sec.  842.106  Assertable claims.

    A claim should be asserted when the Air Force has furnished or will 
furnish medical care in military health care facilities or when the Air 
Force is responsible for reimbursement to a private care provider and 
either of the following conditions are met:
    (a) Third party liability in tort exists for causing an injury or 
disease.
    (b) Local or foreign law permits the United States to recover or the 
United States is a third party beneficiary under uninsured motorist 
coverage, medical pay insurance coverage, worker's compensation, no-
fault statutes, or other statutes.
    A claim should only be asserted if the base SJA determines it merits 
assertion. Claims for $150 or less need not be asserted; they should be 
asserted only if the base SJA or designee determines the collection will 
not exceed the cost to collect, the third party offers payment and 
demands a release from the United States before paying damages to the 
injured party, or the United States asserts a property damage claim 
under subpart L arising out of the same incident.

[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83698, Nov. 22, 2016]



Sec.  842.107  Nonassertable claims.

    The following are considered nonassertable claims and should not be 
asserted:
    (a) Claims against any department, agency, or instrumentality of the 
United States. ``Agency or instrumentality'' includes any self-insured 
nonappropriated fund activity whether revenue producing, welfare, or 
sundry. The term does not include private associations.
    (b) Claims for care furnished a veteran by the Department of 
Veterans Affairs (VA) for service connected disability. However, claims 
may be asserted for the reasonable value of medical care an Air Force 
member receives prior to his or her discharge and transfer to the VA 
facility or when the Air Force has reimbursed the VA facility for the 
care.
    (c) Claims for care furnished a merchant seaman under 42 U.S.C. 249. 
A claim against the seaman's employer should not be filed.
    (d) Government contractors. In claims in which the United States 
must reimburse the contractor for a claim according to the terms of the 
contract, settlement authorities investigate the circumstances 
surrounding the incident to determine if assertion is appropriate. If 
the U.S. is not required to reimburse the contractor, the MCR authority 
may assert a claim against the contractor.
    (e) Foreign governments. Settlement authorities investigate any 
claims that

[[Page 46]]

might be made against foreign governments, their political subdivisions, 
armed forces members or civilian employees.
    (f) U.S. personnel. Claims are not asserted against members of the 
uniformed services; employees of the US, its agencies or 
instrumentalities; or an individual who is a dependent of a service 
member or employee at the time of assertion unless they have insurance 
to pay the claim, they were required by law or regulation to have 
insurance which would have covered the Air Force, or their actions, 
which necessitated the medical treatment provided at government expense, 
constituted willful misconduct or gross negligence.

[81 FR 83699, Nov. 22, 2016]



Sec.  842.108  Asserting the claim.

    When asserting the claim, the base SJA will:
    (a) MCR personnel assert a claim against a tortfeasor or other third 
party using a formal letter on Air Force stationery. The assertion is 
made against all potential payers, including insurers. The demand letter 
should state the legal basis for recovery and sufficiently describe the 
facts and circumstances surrounding the incident giving rise to medical 
care. Applicable bases of recovery include U.S. status as a third-party 
beneficiary under various types of insurance policies, workers' 
compensation laws, no-fault laws, or other Federal statutes, including 
Coordination of Benefits (COB) or FMCRA.
    (b) The MCR authority must promptly notify the injured parties or 
their legal representatives, in writing, that the United States will 
attempt to recover from the third parties the reasonable value of 
medical care furnished or to be furnished and that they:
    (1) Should seek advice from a legal assistance officer or civilian 
counsel.
    (2) Must cooperate in the prosecution of all actions of the United 
States against third parties.
    (3) Must furnish a complete statement regarding the facts and 
circumstances surrounding the incident which caused the injury.
    (4) Must not execute a release or settle any claim which exists as a 
result of the injury without prior notice to the MCR authority.
    (c) Mail all copies of the SF 96, or claim notice on Air Force 
letterhead:
    (1) By certified mail with return receipt requested in all claims in 
which the amount claimed is $5,000.00 or more or in which there is a 
substantial likelihood that the final amount claimed will be $5,000.00 
or more.
    (2) By regular or certified mail with return receipt requested at 
the SJA's discretion in cases in which the final amount claimed is less 
than $5,000.00, unless there is no response to the initial notice of 
claim within a reasonable period of time and a second notice of claim is 
required to be mailed. All second notices of claim and copies will be 
mailed by certified mail, return receipt requested.
    (d) Notify the injured parties promptly in writing that the United 
States will attempt to recover from the third parties the reasonable 
value of medical care furnished or to be furnished and that they:
    (1) Should seek advice from a legal assistance officer or civilian 
counsel and furnish the civilian counsel's name to the claims officer.
    (2) Must cooperate in the prosecution of all actions of the United 
States against third parties.
    (3) Must furnish a complete statement regarding the facts and 
circumstances surrounding the incident which caused the injury.
    (4) Must not execute a release or settle any claim which exists as a 
result of the injury without prior notice to the SJA.
    (5) Should read the enclosed Privacy Act statement.

[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83698, 
83699, Nov. 22, 2016]



Sec.  842.109  Referring a claim to the U.S. Attorney.

    (a) All cases that require forwarding to the DoJ must be routed 
through the Chief, MCRP. The MCR authority ensures that personnel review 
all claims for possible referral not later than two years after the date 
of the incident for tort based cases.
    (b) The United States or the injured party on behalf of the United 
States must file suit within 3 years after an

[[Page 47]]

action accrues. This is usually 3 years after the initial treatment is 
provided in a federal medical facility or after the initial payment is 
made by Tricare, whichever is first.

[81 FR 83699, Nov. 22, 2016]



Sec.  842.110  Statute of limitations.

    The United States or the injured party on behalf of the United 
States must file suit within 3 years after an action accrues. This is 
usually 3 years after the initial treatment is provided in a federal 
medical facility or after the initial payment is made by CHAMPUS, 
whichever is first.

[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83698, Nov. 22, 2016]



Sec.  842.111  Recovery rates in government facilities.

    The Federal Register contains the rates set by the Office of 
Management and Budget, of which judges take judicial notice. Apply the 
rates in effect at the time of care to claims.

[81 FR 83699, Nov. 22, 2016]



Sec.  842.112  Waiver and compromise of United States interest.

    Waivers and compromises of government claims can be made. This 
section lists the basic guidance for each action. (See this subpart for 
claims involving waiver and compromise of amounts in excess of 
settlement authorities' delegated amounts.)
    (a) Convenience of the Government. When compromising or waiving a 
claim for convenience of the Government, settlement authorities should 
consider the following factors:
    (1) Risks of litigation.
    (2) Questionable liability of the third party.
    (3) Costs of litigation.
    (4) Insurance (Uninsured or Underinsured Motorist and Medical 
Payment Coverage) or other assets of the tortfeasor available to satisfy 
a judgment for the entire claim.
    (5) Potential counterclaim against the U.S.
    (6) Jury verdict expectancy amount.
    (7) Amount of settlement with proposed distribution.
    (8) Cost of any future care.
    (9) Tortfeasor cannot be located.
    (10) Tortfeasor is judgment proof.
    (11) Tortfeasor has refused to pay and the case is too weak for 
litigation.
    (b) Hardship on the injured party. When compromising or waiving a 
claim to avoid undue hardship on the injured party, settlement 
authorities should consider the following factors:
    (1) Permanent disability or disfigurement of the injured party.
    (2) Decreased earning power of the injured party.
    (3) Out of pocket losses to the injured party.
    (4) Financial status of the injured party.
    (5) Pension rights of the injured party.
    (6) Other government benefits available to the injured party.
    (7) An offer of settlement from a third party which includes 
virtually all of the thirty party's assets, although the amount is 
considerably less than the calculation of the injured party's damages.
    (8) Whether the injured party received excessive treatment.
    (9) Amount of settlement with proposed distribution, including 
reductions in fees or damages by other parties, medical providers, or 
attorneys in order to reduce the hardship on the injured party.
    (c) Compromise or waiver. A compromise or waiver can be made upon 
written request from the injured party or the injured party's legal 
representative.

[81 FR 83699, Nov. 22, 2016]



Sec.  842.113  Reconsideration of a waiver for undue hardship.

    A settlement authority may reconsider its previous action on a 
request for waiver or compromise whether requested or not. 
Reconsideration is normally on the basis of new evidence or discovery of 
errors in the waiver submission or settlement, but can be based upon a 
re-evaluation of the claim by the settlement authority.

[81 FR 83700, Nov. 22, 2016]

[[Page 48]]



                  Subpart M_Nonappropriated Fund Claims

    Source: 81 FR 83700, Nov. 22, 2016, unless otherwise noted.



Sec.  842.114  Scope of this subpart.

    This subpart describes how to settle claims for and against the 
United States for property damage, personal injury, or death arising out 
of the operation of nonappropriated fund instrumentalities (NAFIs). 
Unless stated below, such claims will follow procedures outlined in 
other subparts of this part for the substantive law applicable to the 
particular claim. For example, a NAFI claim adjudicated under the 
Federal Tort Claims Act will follow procedures in this subpart as well 
as subpart K of this part.

[81 FR 83700, Nov. 22, 2016]



Sec.  842.115  Definitions.

    (a) Army and Air Force Exchange Service (AAFES). The Army and Air 
Force Exchange Service is a joint command of the Army and Air Force, 
under the jurisdiction of the Chiefs of Staff of the Army and Air Force, 
which provides exchange and motion picture services to authorized 
patrons.
    (b) Morale, welfare, and recreation (MWR) activities. Air Force MWR 
activities are activities operated directly or by contract which provide 
programs to promote morale and well-being of the Air Force's military 
and civilian personnel and their dependents. They may be funded wholly 
with appropriated funds, primarily with nonappropriated funds (NAF), or 
with a combination of appropriated funds and NAFs.
    (c) Nonappropriated funds. Nonappropriated funds are funds generated 
by Department of Defense military and civilian personnel and their 
dependents and used to augment funds appropriated by the Congress to 
provide a comprehensive morale-building, welfare, religious, 
educational, and recreational program, designed to improve the well-
being of military and civilian personnel and their dependents.
    (d) Nonappropriated funds instrumentality. A nonappropriated fund 
instrumentality is a Federal Government instrumentality established to 
generate and administer nonappropriated funds for programs and services 
contributing to the mental and physical well-being of personnel.

[81 FR 83700, Nov. 22, 2016]



Sec.  842.116  Payment of claims against NAFIs.

    Substantiated claims against NAFIs must not be paid solely from 
appropriated funds. Claims are sent for payment as set out in this 
subpart. Do not delay paying a claimant because doubt exists whether to 
use appropriated funds or NAFs. Pay the claim initially from 
appropriated funds and decide the correct funding source later.

[81 FR 83700, Nov. 22, 2016]



Sec.  842.117  Claims by customers, members, participants, or authorized
users.

    (a) Customer complaints. Do not adjudicate claims complaints or 
claims for property loss or damage under this subpart that the local 
NAFI activity can satisfactorily resolve.
    (b) Claims generated by concessionaires. Most concessionaires must 
have commercial insurance. Any unresolved claims or complaints against 
concessionaires or their insurers are sent to the appropriate 
contracting officers.

[81 FR 83700, Nov. 22, 2016]



    Subpart N_Civil Air Patrol Claims (5 U.S.C. 8101(1)(B), 8102(a), 
         8116(c), 8141; 10 U.S.C. 9441, 9442; 36 U.S.C. 201	208)

    Source: 55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83700, Nov. 
22, 2016, unless otherwise noted.



Sec.  842.118  Scope of this subpart.

    (a) This subpart explains how to process certain administrative 
claims:
    (1) Against the United States for property damage, personal injury, 
or death, arising out of Air Force assigned noncombat missions performed 
by the Civil Air Patrol (CAP), as well as certain other Air Force 
authorized missions performed by the CAP in support of the Federal 
Government.

[[Page 49]]

    (2) In favor of the United States for damage to U.S. Government 
property caused by CAP members or third parties.
    (b) Unless stated in this subpart, such claims will follow 
procedures outlined in other subparts of this part for the substantive 
law applicable to the particular claim. For example, a CAP claim 
adjudicated under the Military Claims Act will follow procedures in this 
subpart as well as subpart E of this part.

[81 FR 83700, Nov. 22, 2016]



Sec.  842.119  Definitions.

    (a) Civil Air Patrol (CAP). A federally chartered, non-profit 
corporation which was designated by Congress in 1948 as a volunteer 
civilian auxiliary of the Air Force.
    (b) Air Force noncombat mission. Although not defined in any 
statute, an Air Force noncombat mission is any mission for which the Air 
Force is tasked, by statute, regulation, or higher authority, which does 
not involve actual combat, combat operations or combat training. The Air 
Force, in lieu of using Air Force resources, can use the services of the 
Civil Air Patrol to fulfill these type missions. When performing an Air 
Force noncombat mission, the Civil Air Patrol is deemed to be an 
instrumentality of the United States. In order for a mission to be a 
noncombat mission of the Air Force under this part, it must either:
    (1) Have a special Air Force mission order assigned, and, the Air 
Force must exercise operational control over the mission.
    (2) Involve a peacetime mission the Air Force is tasked to perform 
by higher authority which requires the expenditure of Air Force 
resources to accomplish, and the Air Force specifically approves the 
mission as a noncombat mission, and assigns the mission to the Civil Air 
Patrol to perform.
    (c) CAP members. CAP members are private citizens who volunteer 
their time, services, and resources to accomplish CAP objectives and 
purposes. The two primary categories of members are:
    (1) Cadets. Youths, 13 years (or having satisfactorily completed the 
sixth grade) through 17 years of age, who meet such prerequisites as the 
CAP corporation may establish from time to time. Cadet status may be 
retained until age 21.
    (2) Seniors. Adults, 18 years of age or older (there is no maximum 
age), who meet such prerequisites as the CAP corporation may establish 
from time to time, and who have not retained cadet status.
    (d) Liaison officers. Active duty Air Force officers assigned to 
liaison duty at the national, regional, and wing (state) levels of CAP.

[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83700, Nov. 22, 2016]



Sec.  842.120  Improper claimants.

    CAP members, 18 years of age or older, whose personal injury or 
death claim is subject to the Federal Employees' Compensation Act, are 
improper claimants. FECA is their exclusive remedy.

[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83700, 83701, Nov. 22, 
2016]



Sec.  842.121  Claims payable.

    A claim is payable if all of the following are present:
    (a) It is for property damage, personal injury, or death.
    (b) It is proximately caused by a CAP member.
    (c) It arises from an Air Force noncombat mission performed by the 
CAP, or arises from an authorized mission performed by the CAP for which 
specific coverage under this subpart is granted by AFLOA/JACC.
    (d) It is otherwise payable because it meets the provisions of an 
appropriate subpart of this part.

[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83700, 83701, Nov. 22, 
2016]



Sec.  842.122  Claims not payable.

    A claim is not payable if it:
    (a) Is for use or depreciation of privately owned property, operated 
by CAP or its members on an Air Force noncombat mission, or other 
specified Air Force authorized mission.
    (b) Is for personal services or expenses incurred by CAP or its 
members while engaged in an Air Force noncombat mission, or other 
specified Air Force authorized mission.

[[Page 50]]

    (c) Arises out of a CAP incident based solely on government 
ownership of property on loan to CAP.
    (d) Arises from a CAP activity not performed as a noncombat mission 
of the Air Force or as a specified Air Force authorized mission. These 
claims are sent to HQ CAP-USAF/JA for referral to CAP's private insurer, 
with a copy of the transmittal letter to AFLOA/JACC.

[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83700, 83701, Nov. 22, 
2016]



               Subpart O_Advance Payments (10 U.S.C. 2736)

    Source: 55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83701, Nov. 
22, 2016, unless otherwise noted.



Sec.  842.123  Scope of this subpart.

    This subpart tells how to make an advance payment before a claim is 
filed or finalized under the Military Claims, Foreign Claims and 
National Guard Claims Acts.

[81 FR 83701, Nov. 22, 2016]



Sec.  842.124  Delegation of authority.

    (a) The Secretary of the Air Force has authority to make an advance 
payment of $100,000 or less.
    (b) The Judge Advocate General has delegated authority to make an 
advance payment of $100,000 or less.
    (c) The following individuals have delegated authority to make an 
advance payment of $25,000 or less:
    (1) The Deputy Judge Advocate General.
    (2) The Director of Civil Law.
    (3) The Chief, Deputy Chief, and Branch Chiefs, Claims and Tort 
Litigation Staff.
    (4) SJAs of the Air Force component commander of the U.S. geographic 
combatant commands for claims arising within their respective combatant 
command areas of responsibility.
    (d) This authority may be redelegated either orally or in writing. 
Oral redelegations should be confirmed in writing as soon as practical.

[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83701, 
Nov. 22, 2016]



Sec.  842.125  Who may request.

    A proper claimant or authorized agent may request an advance 
payment.

[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83701, Nov. 22, 2016]



Sec.  842.126  When authorized.

    Make advance payments only where all of the following exist:
    (a) The potential claimant could file a valid claim for property 
damage or personal injury under the Military Claims, Foreign Claims, or 
National Guard Claims Acts.
    (b) The potential claimant has an immediate need amounting to a 
hardship for food, shelter, medical or burial expenses, or other 
necessities. In the case of a commercial enterprise, severe financial 
loss or bankruptcy will result if the Air Force does not make an advance 
payment.
    (c) Other resources for such needs are not reasonably available.
    (d) The potential claim equals or exceeds the amount of the advance 
payment.
    (e) The recipient signs as advance payment agreement.

[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83701, 
Nov. 22, 2016]



Sec.  842.127  When not authorized.

    Do not make an advance payment if the claim is payable under the:
    (a) Federal Tort Claims Act.
    (b) International Agreement Claims Act.
    (c) Military Personnel and Civilian Employees' Claims Act. (Separate 
regulations issued under the Act provide for partial payments.)

[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83701, Nov. 22, 2016]



Sec.  842.128  Separate advance payment claims.

    Every person suffering injury or property loss may submit a separate 
request for an advance payment. For example, where the Air Force 
destroys a house containing a family of four,

[[Page 51]]

each family member may submit a separate request for and receive an 
advance payment of $100,000 or less.

[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83701, Nov. 22, 2016]



Sec.  842.129  Liability for repayment.

    The claimant is liable for repayment. Deduct the advance payment 
from any award or judgment given to a claimant. Reimbursement from the 
claimant will be sought if the claimant does not file a claim or 
lawsuit.

[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83701, Nov. 22, 2016]



PART 845_COUNSEL FEES AND OTHER EXPENSES IN FOREIGN TRIBUNALS-
-Table of Contents



Sec.
845.1 Purpose.
845.2 Statutory authority.
845.3 Responsibility.
845.4 Criteria for the provision of counsel and payment of expenses in 
          criminal cases.
845.5 Provision of bail in criminal cases.
845.6 Criteria for the provision of counsel and payment of expenses in 
          civil cases.
845.7 Procedures for hiring counsel and obligating funds.
845.8 Payment of counsel fees and other expenses.
845.9 Appropriated funds chargeable.
845.10 Reimbursement.
845.11 Correspondence.

    Authority: Sec. 8012, 70A Stat. 488, sec. 1037, 72 Stat. 1445; 10 
U.S.C. 8012, 1037.

    Source: 44 FR 75633, Dec. 21, 1979, unless otherwise noted.
    Note: This part is derived from chapter 2 of Air Force Regulation 
110-12, December 1, 1978.
    Part 806 of this chapter states the basic policies and instructions 
governing the disclosure of records and tells members of the public what 
they must do to inspect or obtain copies of the material referenced 
herein.



Sec.  845.1  Purpose.

    This part establishes criteria and assigns responsibility for the 
provision of counsel, for the provision of bail, and for the payment of 
court costs and other necessary and reasonable expenses incident to 
representation in civil and criminal proceedings, including appellate 
proceedings, before foreign courts and foreign administrative agencies, 
which involve members of the Armed Forces, civilian personnel and 
dependents. Payment of fines is not authorized hereunder.



Sec.  845.2  Statutory authority.

    10 U.S.C. 1037 provides authority for employment of counsel, and 
payment of counsel fees, court costs, bail, and other expenses incident 
to representation of persons subject to the Uniform Code of Military 
Justice before foreign tribunals. For personnel not subject to the 
Uniform Code of Military Justice, funds for similar expenses may be made 
available in cases of exceptional interest to the service concerned, 
upon prior application through the Judge Advocate General of the service 
concerned, to the appropriate service secretary.



Sec.  845.3  Responsibility.

    (a) Requests for provision of counsel, provision of bail, or payment 
of expenses will ordinarily be made by the defendant or accused through 
appropriate channels to the officer exercising general court-martial 
jurisdiction over him. This officer shall determine whether the request 
meets the criteria prescribed herein and, based upon such determination, 
shall take final action approving or disapproving the request. Within 
their geographical areas of responsibility, major commands in the 
interest of obtaining prompt and effective legal service may appoint as 
approval authority, instead of the officer exercising general court-
martial jurisdiction, any subordinate officer having responsibility in a 
particular country for personnel subject to foreign criminal 
jurisdiction.
    (b) Notwithstanding the criteria prescribed below, an officer 
exercising approved authority may, in his discretion, deny a request for 
the provision of counsel, provision of bail or payment of expenses, 
where the otherwise eligible requestor is in an absent without leave or 
deserter status at the time of the request, or otherwise is not then 
subject to United States military control, and there is no reasonable 
basis for the belief that the requestor will return to United States 
military control at the conclusion of the proceedings of service of an 
adjudged sentence, if any.

[[Page 52]]



Sec.  845.4  Criteria for the provision of counsel and payment of expenses
in criminal cases.

    Requests for the provision of counsel and payment of expenses in 
criminal cases may be approved in pretrial, trial, appellate and 
posttrial proceedings in any one of the following criminal cases:
    (a) Where the act complained of occurred in the performance of 
official duty; or
    (b) Where the sentence which is normally imposed includes 
confinement, whether or not such sentence is suspended; or
    (c) Where capital punishment might be imposed; or
    (d) Where an appeal is made from any proceeding in which there 
appears to have been a denial of the substantial rights of the accused; 
or
    (e) Where conviction of the offense alleged could later form the 
basis for administrative discharge proceedings for misconduct as a 
result of civil court disposition; or
    (f) Where the case, although not within the criteria established in 
paragraphs (a), (b), (c), (d), or (e) of this section, is considered to 
have significant impact upon the relations of US forces with the host 
country or is considered to involve any other particular US interest.



Sec.  845.5  Provision of bail in criminal cases.

    Funds for the posting of bail or bond to secure the release of 
personnel from confinement by foreign authorities before, during, or 
after trial may be furnished in all criminal cases. Safeguards should be 
imposed to assure that at the conclusion of the proceedings or on the 
appearance of the defendant in court, the bail or bond will be refunded 
to the military authorities. Bail will be provided only to guarantee the 
presence of the defendant and will not be provided to guarantee the 
payment of fines or civil damages. Local US military authorities are 
expected to provide bail, in any case, only after other reasonable 
efforts have been made to secure release of pretrial custody to the US.



Sec.  845.6  Criteria for the provision of counsel and payment of expenses
in civil cases.

    Requests for provision of counsel and payment of expenses in civil 
cases may be granted in trial and appellate proceedings in either of the 
following civil cases:
    (a) Where the act complained of occurred in the performance of 
official duty; or
    (b) Where the case is considered to have a significant impact upon 
the relations of US forces with the host country or is considered to 
involve any other particular US interest. No funds shall be provided 
under this part in cases where the United States of America is in legal 
effect the defendant, without prior authorization of the Judge Advocate 
General.



Sec.  845.7  Procedures for hiring counsel and obligating funds.

    (a) The selection of individual trial or appellate counsel will be 
made by the defendant. Such counsel shall represent the individual 
defendant and not the US Government. Selection shall be made from 
approved lists of attorneys who are qualified, competent and experienced 
in trial practice, and admitted for full practice, on their own account, 
before the courts of the foreign country involved. Normally, these lists 
will be coordinated with the local court or bar association, if any, and 
the appropriate US Diplomatic or Consular Mission and should include 
only those attorneys who are known or reputed, to comply with local 
attorney fee schedules or guides approved or suggested by local bar 
associations and should not exceed amounts paid under similar 
circumstances by nationals of the country where the trial is held. No 
fee may include any amount in payment for services other than those 
incident to representation before judicial and administrative agencies 
of the foreign country in the particular case for which the contract is 
made, and in no event may any contract include fees for representation 
in habeas corpus or related proceedings before tribunals of the United 
States. When appropriate and reasonable in the case, the payment of 
expenses, in addition to counsel fees, may include court costs, bail 
costs, charges

[[Page 53]]

for obtaining copies of records, printing and filing fees, interpreter 
fees, witness fees, and other necessary and reasonable expenses. 
Expenses will not include the payment of fines or civil damages, 
directly or indirectly.
    (b) Whenever possible, the officer responsible under Sec.  845.3 (or 
his designee), acting on behalf of the United States of America, shall 
enter into a written contract with the selected counsel. The contract 
will cover counsel fees, and, when appropriate, may cover other costs 
arising in defense of the case only in the court of first instance and 
will not include fees for representation on appeal. If the case is 
appealed to higher tribunals, supplemental agreements shall be executed 
for each appeal. A copy of the contractual agreement shall serve as the 
obligating document.
    (c) If, for example, because of unusual circumstances or local 
customs, it is not practicable to enter into a written contract as in 
paragraph (b) of this section, action will be taken to record the 
agreement reached between the officer responsible under Sec.  845.3 (or 
his designee) and the selected counsel. This requirement may be met by a 
letter of commission or letter of understanding, executed between the 
officer responsible under Sec.  845.3 (or his designee) and the selected 
counsel, or by a written request for legal services expressly or 
impliedly accepted by the selected counsel. Any such document shall 
contain, if possible, an agreed estimate of counsel fees and reasonable 
expenses and a statement that both fees and expenses will conform to 
those paid by local nationals under similar circumstances and will not 
exceed local fee schedules, if any. If this document does not include an 
agreed estimate of counsel fees and other reasonable expenses, an 
estimate will be provided by the contracting officer. A copy of the 
document, together with the estimate, will be furnished the accounting 
component and will serve as the commitment document for the reservation 
of funds.
    (d) The provision of counsel and payment of expenses under this part 
is not subject to the provisions of the Defense Acquisition Regulation 
(subchapter A, chapter I of this title). However, the contract clauses 
set forth in part 5, section VII, Defense Acquisition Regulation, may be 
used as a guide in contracting.
    (e) Because of the desirability of timely procedural action, it is 
suggested that there be designated, from among the judge advocates on 
the staffs of officers responsible under Sec.  845.3, contracting 
officers with contracting authority limited to agreements described in 
this section. The effect of this designation would be to combine within 
one office the duties of contracting officer and judge advocate.
    (f) Nothing in this part shall be construed as prohibiting the 
selection of qualified local counsel employed by the United States 
Government, if the serviceman freely selects such counsel.



Sec.  845.8  Payment of counsel fees and other expenses.

    Payment of bills submitted by the selected counsel and other costs 
shall be made in accordance with the general provision of AFM 177-102 
(Commercial Transactions at Base Level), relating to payment of 
contractual obligations and pertinent disbursing regulations. All 
payments under these procedures will be in local currency. Acceptance of 
services procured under these procedures shall be certified to by the 
officer responsible under Sec.  845.3 (or his designee). Payments of 
bail may be made when authorized by such officers. Such authorization 
shall be in the form of a directing letter or message citing 10 U.S.C. 
1037.



Sec.  845.9  Appropriated funds chargeable.

    Authorized expenses incurred incident to implementation of the 
policies set forth in this part, including transportation and per diem 
expenses of trial observers, interpreters, and local counsel employees, 
shall be paid from appropriated funds of the service to which the 
defendant belongs. Payments shall be made from the appropriation current 
at time of payment, unless obligations for authorized costs have 
previously been established. Refunds shall be processed as appropriation 
refund. Such funds are chargeable to the base for operation and 
maintenance purposes (O&M or R&D, as applicable).

[[Page 54]]



Sec.  845.10  Reimbursement.

    No reimbursement will ordinarily be required from individuals with 
respect to payments made in their behalf under this part. However, prior 
to the posting of bail on behalf of a defendant, a signed agreement 
shall be secured from him wherein he agrees to remit the amount of such 
bail or permit the application of so much of his pay as may be necessary 
to reimburse the Government in the event that he willfully causes 
forfeiture of bail. In the event of such forfeiture, bail provided under 
this part shall be recovered from the defendant in accordance with that 
agreement. The agreement should include a statement that it does not 
prejudice the defendant's right to appeal to the Comptroller General of 
the United States and the courts after such payment or deduction has 
been made, if he considers the amount erroneous.



Sec.  845.11  Correspondence.

    Judge advocates who advise officers responsible under Sec.  845.3 
are authorized to correspond directly with each other and with the Judge 
Advocate General of the service concerned for advice with regard to 
payment of counsel fees and other expenses.



                    SUBCHAPTER E_SECURITY [RESERVED]



[[Page 55]]



                          SUBCHAPTER F_AIRCRAFT





PART 855_CIVIL AIRCRAFT USE OF UNITED STATES AIR FORCE AIRFIELDS-
-Table of Contents



                      Subpart A_General Provisions

Sec.
855.1 Policy.
855.2 Responsibilities.
855.3 Applicability.

                Subpart B_Civil Aircraft Landing Permits

855.4 Scope.
855.5 Responsibilities and authorities.
855.6 Aircraft exempt from the requirement for a civil aircraft landing 
          permit.
855.7 Conditions for use of Air Force airfields.
855.8 Application procedures.
855.9 Permit renewal.
855.10 Purpose of use.
855.11 Insurance requirements.
855.12 Processing a permit application.
855.13 Civil fly-ins.
855.14 Unauthorized landings.
855.15 Detaining an aircraft.
855.16 Parking and storage.
855.17 Fees for landing, parking, and storage fees.
855.18 Aviation fuel and oil purchases.
855.19 Supply and service charges.

   Subpart C_Agreements for Civil Aircraft Use of Air Force Airfields

855.20 Joint-use Agreements.
855.21 Procedures for sponsor.
855.22 Air Force procedures.
855.23 Other agreements.

Table 1 to Part 855--Purpose of Use/Verification/Approval Authority/Fees
Table 2 to Part 855--Aircraft Liability Coverage Requirements
Table 3 to Part 855--Landing Fees
Table 4 to Part 855--Parking and Storage Fees
Attachment 1 to Part 855--Glossary of References, Abbreviations, 
          Acronyms, and Terms
Attachment 2 to Part 855--Weather Alternate List
Attachment 3 to Part 855--Landing Permit Application Instructions
Attachment 4 to Part 855--Sample Joint-Use Agreement
Attachment 5 to Part 855--Sample Temporary Agreement

    Authority: 49 U.S.C. 44502 and 47103.

    Source: 60 FR 37349, July 20, 1995, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  855.1  Policy.

    The Air Force establishes and uses its airfields to support the 
scope and level of operations necessary to carry out missions worldwide. 
The Congress funds airfields in response to Air Force requirements, but 
also specifies that civil aviation access is a national priority to be 
accommodated when it does not jeopardize an installation's military 
utility. The Air Force engages in dialogue with the civil aviation 
community and the Federal Aviation Administration to ensure mutual 
understanding of long-term needs for the national air transportation 
system and programmed military force structure requirements. To 
implement the national policy and to respond to requests for access, the 
Air Force must have policies that balance such requests with military 
needs. Civil aircraft access to Air Force airfields on foreign territory 
requires host nation approval.
    (a) The Air Force will manage two programs that are generally used 
to grant civil aircraft access to its airfields: civil aircraft landing 
permits and joint-use agreements. Other arrangements for access will be 
negotiated as required for specific purposes.
    (1) Normally, landing permits will be issued only for civil aircraft 
operating in support of official Government business. Other types of use 
may be authorized if justified by exceptional circumstances. Access will 
be granted on an equitable basis.
    (2) The Air Force will consider only proposals for joint use that do 
not compromise operations, security, readiness, safety, environment, and 
quality of life. Further, only proposals submitted by authorized local 
Government representatives eligible to sponsor a public airport will be 
given the comprehensive evaluation required to conclude a joint-use 
agreement.
    (3) Any aircraft operator with an inflight emergency may land at any 
Air Force airfield without prior authorization. An inflight emergency is

[[Page 56]]

defined as a situation that makes continued flight hazardous.
    (b) Air Force requirements will take precedence on Air Force 
airfields over all civil aircraft operations, whether they were 
previously authorized or not.
    (c) Civil aircraft use of Air Force airfields in the United States 
will be subject to Federal laws and regulations. Civil aircraft use of 
Air Force airfields in foreign countries will be subject to US Federal 
laws and regulations that have extraterritorial effect and to applicable 
international agreements with the country in which the Air Force 
installation is located.



Sec.  855.2  Responsibilities.

    (a) As the program manager for joint use, the Civil Aviation Branch, 
Bases and Units Division, Directorate of Operations (HQ USAF/XOOBC), 
ensures that all impacts have been considered and addressed before 
forwarding a joint-use proposal or agreement to the Deputy Assistant 
Secretary for Installations (SAF/MII), who holds decision authority. All 
decisions are subject to the environmental impact analysis process as 
directed by the Environmental Planning Division, Directorate of 
Environment (HQ USAF/CEVP), and the Deputy Assistant Secretary for 
Environment, Safety, and Occupational Health (SAF/MIQ). The Air Force 
Real Estate Agency (AFREA/MI) handles the leases for Air Force-owned 
land or facilities that may be included in an agreement for joint use.
    (b) HQ USAF/XOOBC determines the level of decision authority for 
landing permits. It delegates decision authority for certain types of 
use to major commands and installation commanders.
    (c) HQ USAF/XOOBC makes the decisions on all requests for exceptions 
or waivers to this part and related Air Force instructions. The decision 
process includes consultation with other affected functional area 
managers when required. Potential impacts on current and future Air 
Force policies and operations strongly influence such decisions.
    (d) Major commands, direct reporting units, and field operating 
agencies may issue supplements to establish command-unique procedures 
permitted by and consistent with this part.



Sec.  855.3  Applicability.

    This part applies to all regular United States Air Force (USAF), Air 
National Guard (ANG), and United States Air Force Reserve (USAFR) 
installations with airfields. This part also applies to civil aircraft 
use of Air Force ramps at civil airports hosting USAF, ANG, and USAFR 
units.



                Subpart B_Civil Aircraft Landing Permits



Sec.  855.4  Scope.

    Air Force airfields are available for use by civil aircraft so far 
as such use does not interfere with military operations or jeopardize 
the military utility of the installation. Access will be granted on an 
equitable basis. Air Force requirements take precedence over authorized 
civil aircraft use. This part carries the force of US law, and 
exceptions are not authorized without prior approval from the Civil 
Aviation Branch, Bases and Units Division, Directorate of Operations, 
(HQ USAF/XOOBC), 1480 Air Force Pentagon, Washington DC 20330-1480. 
Proposed exceptions or waivers are evaluated as to current and future 
impact on Air Force policy and operations.



Sec.  855.5  Responsibilities and authorities.

    (a) The Air Force:
    (1) Determines whether civil aircraft use of Air Force airfields is 
compatible with current and planned military activities.
    (2) Normally authorizes civil aircraft use of Air Force airfields 
only in support of official Government business. If exceptional 
circumstances warrant, use for other purposes may be authorized.
    (3) Acts as clearing authority for civil aircraft use of Air Force 
airfields, subject to the laws and regulations of the US, or to 
applicable international agreements (e.g., status of forces agreements) 
with the country in which the Air Force installation is located.
    (4) Reserves the right to suspend any operation that is inconsistent 
with national defense interests or deemed not in the best interests of 
the Air Force.

[[Page 57]]

    (5) Will terminate authority to use an Air Force airfield if the:
    (i) User's liability insurance is canceled.
    (ii) User lands for other than the approved purpose of use or is 
otherwise in violation of this part or clearances and directives 
hereunder.
    (6) Will not authorize use of Air Force airfields:
    (i) In competition with civil airports by providing services or 
facilities that are already available in the private sector.
    Note: Use to conduct business with or for the US Government is not 
considered as competition with civil airports.
    (ii) Solely for the convenience of passengers or aircraft operator.
    (iii) Solely for transient aircraft servicing.
    (iv) By civil aircraft that do not meet US Department of 
Transportation operating and airworthiness standards.
    (v) That selectively promotes, benefits, or favors a specific 
commercial venture unless equitable consideration is available to all 
potential users in like circumstances.
    (vi) For unsolicited proposals in procuring Government business or 
contracts.
    (vii) Solely for customs-handling purposes.
    (viii) When the air traffic control tower and base operations are 
closed or when a runway is restricted from use by all aircraft.
    Note: Requests for waiver of this provision must address liability 
responsibility, emergency response, and security.
    (7) Will not authorize civil aircraft use of Air Force ramps located 
on civil airfields.
    Note: This section does not apply to use of aero club facilities 
located on Air Force land at civil airports, or civil aircraft chartered 
by US military departments and authorized use of terminal facilities and 
ground handling services on the Air Force ramp. Only the DD Form 2400, 
Civil Aircraft Certificate of Insurance, and DD Form 2402, Civil 
Aircraft Hold Harmless Agreement, are required for use of Air Force 
ramps on civil airfields.
    (b) Civil aircraft operators must:
    (1) Have an approved DD Form 2401, Civil Aircraft Landing Permit, 
before operating at Air Force airfields, except for emergency use and as 
indicated in paragraphs (d)(2) and (d)(2)(iii)(E) of this section, and , 
and Sec.  855.13(b)(1)(ii).
    (2) Ensure that pavement load-bearing capacity will support the 
aircraft to be operated at the Air Force airfield.
    (3) Ensure that aircraft to be operated at Air Force airfields are 
equipped with an operating two-way radio capable of communicating with 
the air traffic control tower.
    (4) Obtain final approval for landing from the installation 
commander or a designated representative (normally base operations) at 
least 24 hours prior to arrival.
    (5) Not assume that the landing clearance granted by an air traffic 
control tower facility is a substitute for either the approved civil 
aircraft landing permit or approval from the installation commander or a 
designated representative (normally base operations).
    (6) Obtain required diplomatic or overflight clearance before 
operating in foreign airspace.
    (7) Pay applicable costs and fees.
    (8) File a flight plan before departing the Air Force airfield.
    (c) The installation commander or a designated representative:
    (1) Exercises administrative and security control over both the 
aircraft and passengers while on the installation.
    (2) May require civil users to delay, reschedule, or reroute 
aircraft arrivals or departures to preclude interference with military 
activities.
    (3) Cooperates with customs, immigration, health, and other public 
authorities in connection with civil aircraft arrival and departure.
    (d) Decision Authority: The authority to grant civil aircraft use of 
Air Force airfields is vested in:
    (1) Directorate of Operations, Bases and Units Division, Civil 
Aviation Branch (HQ USAF/XOOBC). HQ USAF/XOOBC may act on any request 
for civil aircraft use of an Air Force airfield. Decision authority for 
the following will not be delegated below HQ USAF:
    (i) Use of multiple Air Force airfields except as designated in 
paragraph (d)(2) of this section.
    (ii) Those designated as 2 under Approval Authority in Table 1 to 
this part.

[[Page 58]]

    (iii) Any unusual or unique purpose of use not specifically 
addressed in this part.
    (2) Major Command, Field Operating Agency, Direct Reporting Unit, or 
Installation Commander. With the exception of those uses specifically 
delegated to another decision authority, major commands (MAJCOMs), field 
operating agencies (FOAs), direct reporting units (DRUs) and 
installation commanders or designated representatives have the authority 
to approve or disapprove civil aircraft landing permit applications (DD 
Forms 2400, Civil Aircraft Certificate of Insurance; 2401; Civil 
Aircraft Landing Permit, and 2402, Civil Aircraft Hold Harmless 
Agreement) at airfields for which they hold oversight responsibilities. 
Additionally, for expeditious handling of short notice requests, they 
may grant requests for one-time, official Government business flights 
that are in the best interest of the US Government and do not violate 
other provisions of this part. As a minimum, for one-time flights 
authorized under this section, the aircraft owner or operator must 
provide the decision authority with insurance verification and a 
completed DD Form 2402 before the aircraft operates into the Air Force 
airfield. Air Force authority to approve civil aircraft use of Air Force 
airfields on foreign soil may be limited. Commanders outside the US must 
be familiar with base rights agreements or other international 
agreements that may render inapplicable, in part or in whole, provisions 
of this part. Decision authority is delegated for specific purposes of 
use and or locations as follows:
    (i) Commander, 611th Air Operations Group (AOG). The Commander, 
611th AOG or a designated representative may approve commercial 
charters, on a case-by-case basis, at all Air Force airfields in Alaska, 
except Eielson and Elmendorf AFBs, if the purpose of the charter is to 
transport goods and or materials, such as an electric generator or 
construction materials for a community center, for the benefit of remote 
communities that do not have adequate civil airports.
    (ii) Commander, Air Mobility Command (AMC). The Commander, AMC or a 
designated representative may approve permits that grant landing rights 
at Air Force airfields worldwide in support of AMC contracts.
    (iii) US Defense Attache Office (USDAO). The USDAO, acting on behalf 
of HQ USAF/XOOBC, may grant a request for one-time landing rights at an 
Air Force airfield provided:
    (A) The request is for official Government business of either the US 
or the country to which the USDAO is accredited.
    (B) The Air Force airfield is located within the country to which 
the USDAO is accredited.
    (C) Approval will not violate any agreement with the host country.
    (D) The installation commander concurs.
    (E) The USDAO has a properly completed DD Form 2402 on file and has 
verified that the insurance coverage meets the requirements of Table 2 
to this part, before the aircraft operates into the Air Force airfield.



Sec.  855.6  Aircraft exempt from the requirement for a civil aircraft
landing permit.

    (a) Any aircraft owned by:
    (1) Any other US Government agency.
    (2) US Air Force aero clubs established as prescribed in AFI 34-117, 
Air Force Aero Club Program, and AFMAN 3-132, Air Force Aero Club 
Operations \1\.
---------------------------------------------------------------------------

    \1\ Copies of the publications are available, at cost, from the 
National Technical Information Service, U.S. Department of Commerce, 
5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------

    Note: This includes aircraft owned by individuals but leased by an 
Air Force aero club.
    (3) Aero clubs of other US military services.
    Note: This includes aircraft owned by individuals but leased by Army 
or Navy aero clubs.
    (4) A US State, County, Municipality, or other political 
subdivision, when operating to support official business at any level of 
Government.
    (b) Any civil aircraft under:
    (1) Lease or contractual agreement for exclusive US Government use 
on a long-term basis and operated on official business by or for a US 
Government agency; for example, the Federal

[[Page 59]]

Aviation Administration (FAA), Department of the Interior, or Department 
of Energy.
    Note: The Government must hold liability responsibility for all 
damages or injury associated with operation of the aircraft.
    (2) Lease or contractual agreement to the Air Force for Air Force 
Civil Air Patrol (CAP) liaison purposes and operated by an Air Force CAP 
liaison officer on official Air Force business.
    (3) CAP control for a specific mission directed by the Air Force.
    (4) Coast Guard control for a specific mission directed by the Coast 
Guard.
    Note: For identification purposes, the aircraft will be marked with 
a sticker near the port side door identifying it as a Coast Guard 
Auxiliary aircraft. The pilot will always be in uniform and normally 
have a copy of a Coast Guard Auxiliary Patrol Order. If the aircraft is 
operating under ``verbal orders of the commander,'' the pilot can 
provide the telephone number of the cognizant Coast Guard commander.
    (5) Contractual agreement to any US, State, or local Government 
agency in support of operations involving safety of life or property as 
a result of a disaster.
    (6) Government furnished property or bailment contract for use by a 
contractor, provided the Federal, State, or local Government has 
retained liability responsibilities.
    (7) Civil aircraft transporting critically ill or injured 
individuals or transplant organs to or from an Air Force installation.
    (8) Historic aircraft being delivered for Air Force museum exhibits 
under the provisions of AFI 84-103, Museum System. \2\
---------------------------------------------------------------------------

    \2\ See footnote 1 to Sec.  855.6.
---------------------------------------------------------------------------



Sec.  855.7  Conditions for use of Air Force airfields.

    The Air Force authorizes use of its airfields for a specific purpose 
by a named individual or company. The authorization cannot be 
transferred to a second or third party and does not extend to use for 
other purposes. An approved landing permit does not obligate the Air 
Force to provide supplies, equipment, or facilities other than the 
landing, taxiing, and parking areas. The aircraft crew and passengers 
are only authorized activities at the installation directly related to 
the purpose for which use is granted. All users are expected to submit 
their application (DD Forms 2400, 2401, and 2402) at least 30 days 
before intended use and, except for use as a weather alternate, CRAF 
alternate, or emergency landing site, must contact the appropriate 
installation commander or a designated representative for final landing 
approval at least 24 hours before arrival. Failure to comply with either 
time limit may result in denied landing rights.



Sec.  855.8  Application procedures.

    To allow time for processing, the application (DD Forms 2400, 2401, 
and 2402) and a self-addressed, stamped envelope should be submitted at 
least 30 days before the date of the first intended landing. The 
verification required for each purpose of use must be included with the 
application. The name of the user must be the same on all forms. 
Original, hand scribed signatures, not facsimile elements, are required 
on all forms. Landing Permit Application Instructions are at attachment 
3 to this part. The user is responsible for reviewing this part and 
accurately completing the forms before submitting them to the approving 
authority.



Sec.  855.9  Permit renewal.

    When a landing permit expires, DD Forms 2401 and 2400 must be 
resubmitted for continued use of Air Force airfields.
    Note: Corporations must resubmit the DD Form 2402 every five years.



Sec.  855.10  Purpose of use.

    The purposes of use normally associated with civil aircraft 
operations at Air Force airfields are listed in Table 1. Requests for 
use for purposes other than those listed will be considered and may be 
approved if warranted by unique circumstances. A separate DD Form 2401 
is required for each purpose of use. (Users can have multiple DD Forms 
2401 that are covered by a single DD Form 2400 and DD Form 2402.)



Sec.  855.11  Insurance requirements.

    Applicants must provide proof of third-party liability insurance on 
a DD Form 2400, with the amounts stated in

[[Page 60]]

US dollars. The policy number, effective date, and expiration date are 
required. The statement ``until canceled'' may be used in lieu of a 
specific expiration date. The geographic coverage must include the area 
where the Air Force airfield of proposed use is located. If several 
aircraft or aircraft types are included under the same policy, a 
statement such as ``all aircraft owned,'' ``all aircraft owned and or 
operated,'' ``all non-owned aircraft,'' or ``all aircraft operated,'' 
may be used in lieu of aircraft registration numbers. To meet the 
insurance requirements, either split limit coverage for bodily injury 
(individuals outside the aircraft), property damage, and passengers, or 
a single limit coverage is required. The coverage will be at the expense 
of the user with an insurance company acceptable to the Air Force. 
Coverage must be current during the period the Air Force airfield will 
be used. The liability required is computed on the basis of aircraft 
maximum gross takeoff weight (MGTOW) and passenger or cargo 
configuration. Minimum coverage will not be less than the amount 
indicated in Table 2 to this part.
    (a) Any insurance presented as a single limit of liability or a 
combination of primary and excess coverage will be an amount equal to or 
greater than the each accident minimums indicated in Table 2 to this 
part for bodily injury (individuals outside the aircraft), property 
damage, and passengers.
    (b) The policy will specifically provide that:
    (1) The insurer waives any right of subrogation it may have against 
the US by reason of any payment made under the policy for injury, death, 
or property damage that might arise, out of or in connection with the 
insured's use of any Air Force airfield.
    (2) The insurance afforded by the policy applies to the liability 
assumed by the insured under DD Form 2402.
    (3) If the insurer or the insured cancels or reduces the amount of 
insurance afforded under the listed policy before the expiration date 
indicated on DD Form 2400, the insurer will send written notice of 
policy cancellation or coverage reduction to the Air Force approving 
authority at least 30 days before the effective date of the cancellation 
or reduction. The policy must state that any cancellation or reduction 
will not be effective until at least 30 days after such notice is sent.



Sec.  855.12  Processing a permit application.

    Upon receipt of an application (DD Forms 2400, 2401, and 2402) for 
use of an Air Force airfield, the decision authority:
    (a) Determines the availability of the airfield and its capability 
to accommodate the purpose of use requested.
    (b) Determines the validity of the request and ensures all entries 
on DD Forms 2400, 2401, and 2402 are in conformance with this part.
    (c) Approves DD Form 2401 (with conditions or limitations noted) by 
completing all items in Section II--For Use by Approving Authority as 
follows:
    (1) Period of Use (Block 7): The ``From'' date will be either the 
first day of approved use or the first day of insurance coverage. The 
``From'' date cannot precede the first day of insurance coverage shown 
on the DD Form 2400. The ``Thru'' date is determined by the insurance 
expiration date and or the purpose of use. For example, the period of 
use for participants in an Air Force open house will be determined by 
both insurance coverage and open house dates. The permit would be issued 
only for the duration of the open house but must not precede or exceed 
the dates of insurance coverage. Many insurance policies terminate at 
noon on the expiration date. Therefore, if the insurance expiration is 
used to determine the permit expiration date, the landing permit will 
expire one day before the insurance expiration date shown on the DD Form 
2400. If the insurance expiration date either exceeds 2 years or is 
indefinite (for example, ``until canceled''), the landing permit will 
expire 2 years from the issue date or first day of coverage.
    (2) Frequency of Use (Block 8) is normally ``as required'' but may 
be more specific, such as ``one time.''
    (3) Identification Number (Block 9): Installation commanders or a 
designated representative assign a permit number comprised of the last 
three letters of the installation's International

[[Page 61]]

Civil Aviation Organization identifier code, the last two digits of the 
calendar year, a number sequentially assigned, and the letter suffix 
that indicates the purpose of use (Table 1); for example, ADW 95-01C. 
MAJCOMs, FOAs, DRUs, and USDAOs use a three position organization 
abbreviation; such as AMC 95-02K.
    (4) DD Form 2400 (Dated and Filed) (Block 11a): This block should 
contain the date from block 1 (Date Issued) on the DD Form 2400 and the 
identification of the unit or base where the form was approved; i.e., 30 
March 1995, HQ USAF/XOOBC.
    (5) DD Form 2402 (Dated and Filed) (Block 11b): This block should 
contain the date from block 4 (Date Signed) on the DD Form 2402 and the 
identification of the unit or base where the form was approved; i.e., 30 
March 1995, HQ USAF/XOOBC.
    (6) SA-ALC/SFR, 1014 Andrews Road, Building 1621, Kelly AFB TX 
78241-5603 publishes the list of companies authorized to purchase Air 
Force fuel on credit. Block 12 should be marked ``yes'' only if the 
permit holder's name appears on the SA-ALC list.
    (7) Landing Fees, Block 13, should be marked as indicated in Table 1 
to this part.
    (8) Permit Amendments: New entries or revisions to an approved DD 
Form 2401 may be made only by or with the consent of the approving 
authority.
    (d) Provides the applicant with written disapproval if:
    (1) Use will interfere with operations, security, or safety.
    (2) Adequate civil facilities are collocated.
    (3) Purpose of use is not official Government business and adequate 
civil facilities are available in the proximity of the requested Air 
Force airfield.
    (4) Use will constitute competition with civil airports or air 
carriers.
    (5) Applicant has not fully complied with this part.
    (e) Distributes the approved DD Form 2401 before the first intended 
landing, when possible, as follows:
    (1) Retains original.
    (2) Returns two copies to the user.
    (3) Provides a copy to HQ USAF/XOOBC.
    Note: HQ USAF/XOOBC will provide a computer report of current 
landing permits to the MAJCOMs, FOAs, DRUs, and installations.



Sec.  855.13  Civil fly-ins.

    (a) Civil aircraft operators may be invited to a specified Air Force 
airfield for:
    (1) A base open house to perform or provide a static display.
    (2) A flying safety seminar.
    (b) Civil fly-in procedures:
    (1) The installation commander or a designated representative:
    (i) Requests approval from the MAJCOM, FOA, or DRU with an 
information copy to HQ USAF/XOOBC/XOOO and SAF/PAC.
    (ii) Ensures that DD Form 2402 is completed by each user.
    Note: DD Forms 2400 and 2401 are not required for fly-in 
participants if flying activity consists of a single landing and takeoff 
with no spectators other than flightline or other personnel required to 
support the aircraft operations.
    (2) The MAJCOM, FOA, or DRU ensures HQ USAF/XOOBC/XOOO and SAF/PAC 
are advised of the approval or disapproval for the fly-in.
    (3) Aerial performance by civil aircraft at an Air Force open house 
requires MAJCOM or FOA approval and an approved landing permit as 
specified in AFI 35-201, Community Relations \3\. Regardless of the 
aircraft's historic military significance, DD Forms 2400, 2401, and 2402 
must be submitted and approved before the performance. The permit can be 
approved at MAJCOM, FOA, DRU, or installation level. Use will be 
authorized only for the period of the event. Fly-in procedures do not 
apply to aircraft transporting passengers (revenue or non-revenue) for 
the purpose of attending the open house or demonstration flights 
associated with marketing a product.
---------------------------------------------------------------------------

    \3\ See footnote 1 to Sec.  855.6.
---------------------------------------------------------------------------



Sec.  855.14  Unauthorized landings.

    (a) Unauthorized landing procedures. The installation commander or a 
designated representative will identify an unauthorized landing as 
either an emergency landing, an inadvertent landing, or an intentional 
landing. An

[[Page 62]]

unauthorized landing may be designated as inadvertent or intentional 
whether or not the operator has knowledge of the provisions of this 
part, and whether or not the operator filed a flight plan identifying 
the installation as a destination. Aircraft must depart the installation 
as soon as practical. On all unauthorized landings, the installation 
commander or a designated representative:
    (1) Informs the operator of subpart B procedures and the requirement 
for notifying the Federal Aviation Administration (FAA) as specified in 
section 6 of the FAA Airman's Information Manual.
    (2) Notifies the Federal Aviation Flight Standards District Office 
(FSDO) by telephone or telefax, followed by written notification using 
FAA Form 8020-9, 8020-11, or 8020-17, as appropriate. A copy of the 
written notification must be provided to HQ USAF/XOOBC.
    (3) Ensures the operator completes a DD Form 2402, and collects 
applicable charges. (In some instances, it may be necessary to arrange 
to bill the user for the appropriate charges.) DD Form 2402 need not be 
completed for commercial carriers if it is known that the form is 
already on file at HQ USAF/XOOBC.
    (4) In a foreign country, notifies the local US Defense Attache 
Office (USDAO) by telephone or telefax and, where applicable, the 
appropriate USDAO in the country of aircraft registry, followed by 
written notification with an information copy to HQ USAF/XOOBC and the 
civil aviation authority of the country or countries concerned.
    (b) Emergency landings. Any aircraft operator who experiences an 
inflight emergency may land at any Air Force airfield without prior 
authorization (approved DD Form 2401 and 24 hours prior notice). An 
inflight emergency is defined as a situation that makes continued flight 
hazardous.
    (1) The Air Force will use any method or means to clear an aircraft 
or wreckage from the runway to preclude interference with essential 
military operations after coordinating with the FSDO and National 
Transportation Safety Board. Removal efforts will minimize damage to the 
aircraft or wreckage; however, military or other operational factors may 
be overriding.
    (2) An operator making an emergency landing:
    (i) Is not charged a landing fee.
    (ii) Pays all costs for labor, material, parts, use of equipment and 
tools, and so forth, to include, but not limited to:
    (A) Spreading foam on the runway.
    (B) Damage to runway, lighting, and navigation aids.
    (C) Rescue, crash, and fire control services.
    (D) Movement and storage of aircraft.
    (E) Performance of minor maintenance.
    (F) Fuel or oil (AFM 67-1, vol 1, part three, chapter 1, Air Force 
Stock Fund and DPSC Assigned Item Procedures \4\).
---------------------------------------------------------------------------

    \4\ See footnote 1 to Sec.  855.6.
---------------------------------------------------------------------------

    (c) Inadvertent unauthorized landings. (1) The installation 
commander or a designated representative may determine a landing to be 
inadvertent if the aircraft operator:
    (i) Landed due to flight disorientation.
    (ii) Mistook the Air Force airfield for a civil airport.
    (2) Normal landing fees must be charged and an unauthorized landing 
fee may be assessed to compensate the Government for the added time, 
effort, and risk involved in the inadvertent landing. Only the 
unauthorized landing fee may be waived by the installation commander or 
a designated representative if, after interviewing the pilot-in-command 
and appropriate Government personnel, it is determined that flying 
safety was not significantly impaired. The pilot-in-command may appeal 
the imposition of an unauthorized landing fee for an inadvertent landing 
to the MAJCOM, FOA, or DRU whose decision will be final. A subsequent 
inadvertent landing will be processed as an intentional unauthorized 
landing.
    (d) Intentional unauthorized landings. (1) The installation 
commander may categorize an unauthorized landing as intentional when 
there is unequivocal evidence that the pilot deliberately:
    (i) Landed without an approved DD Form 2401 on board the aircraft.

[[Page 63]]

    (ii) Landed for a purpose not approved on the DD Form 2401.
    (iii) Operated an aircraft not of a model or registration number on 
the approved DD Form 2401.
    (iv) Did not request or obtain the required final approval from the 
installation commander or a designated representative at least 24 hours 
before aircraft arrival.
    (v) Did not obtain landing clearance from the air traffic control 
tower.
    (vi) Landed with an expired DD Form 2401.
    (vii) Obtained landing authorization through fraudulent methods, or
    (viii) Landed after having been denied a request to land from any 
Air Force authority, including the control tower.
    (2) Normal landing fees and an unauthorized landing fee must be 
charged. Intentional unauthorized landings increase reporting, 
processing, and staffing costs; therefore, the unauthorized landing fee 
for paragraph (d)(1)(i) through (d)(1)(vi) of this section will be 
increased by 100 percent. The unauthorized landing fee will be increased 
200 percent for paragraph (d)(1)(vii) and (d)(1)(viii) of this section.
    (3) Intentional unauthorized landings may be prosecuted as a 
criminal trespass, especially if a debarment letter has been issued. 
Repeated intentional unauthorized landings prejudice the user's FAA 
operating authority and jeopardize future use of Air Force airfields.



Sec.  855.15  Detaining an aircraft.

    (a) An installation commander in the United States, its territories, 
or its possessions may choose to detain an aircraft for an intentional 
unauthorized landing until:
    (1) The unauthorized landing has been reported to the FAA, HQ USAF/
XOOBC, and the appropriate US Attorney.
    (2) All applicable charges have been paid.
    (b) If the installation commander wishes to release the aircraft 
before the investigation is completed, he or she must obtain bond, 
promissory note, or other security for payment of the highest charge 
that may be assessed.
    (c) The pilot and passengers will not be detained longer than is 
necessary for identification, although they may be permitted to remain 
in a lounge or other waiting area on the base at their request for such 
period as the installation commander may determine (normally not to 
exceed close of business hours at the home office of the entity owning 
the aircraft, if the operator does not own the aircraft). No person, 
solely due to an intentional unauthorized landing, will be detained 
involuntarily after identification is complete without coordination from 
the appropriate US Attorney, the MAJCOM, FOA, or DRU, and HQ USAF/XOOBC.



Sec.  855.16  Parking and storage.

    The time that an aircraft spends on an installation is at the 
discretion of the installation commander or a designated representative 
but should be linked to the purpose of use authorized. Parking and 
storage may be permitted on a nonexclusive, temporary, or intermittent 
basis, when compatible with military requirements. At those locations 
where there are Air Force aero clubs, parking and storage privileges may 
be permitted in the area designated for aero club use without regard for 
the purpose of use authorized, if consistent with aero club policies. 
Any such permission may be revoked upon notice, based on military needs 
and the installation commander's discretion.



Sec.  855.17  Fees for landing, parking, and storage.

    (a) Landing, parking, and storage fees (Tables 3 and 4 to this part) 
are determined by aircraft maximum gross takeoff weight (MGTOW). All 
fees are normally due and collectible at the time of use of the Air 
Force airfield. DD Form 1131, Cash Collection Voucher, is used to 
deposit the fees with the base accounting and finance officer. In some 
instances, it may be necessary to bill the user for charges incurred.
    (b) Landing fees are not charged when the aircraft is operating in 
support of official Government business or for any purpose, the cost of 
which is subject to reimbursement by the US Government. Parking and 
Storage Fees (Table 4 to this part) are charged if an

[[Page 64]]

aircraft must remain beyond the period necessary to conduct official 
Government business and for all non-official Government business 
operations.



Sec.  855.18  Aviation fuel and oil purchases.

    When a user qualifies under the provisions of AFM 67-1, vol. 1, part 
three, chapter 1, Air Force Stock Fund and DPSC Assigned Item 
Procedures, \5\ purchase of Air Force fuel and oil may be made on a cash 
or credit basis. An application for credit authority can be filed by 
submitting an Authorized Credit Letter to SA-ALC/SFRL, 1014 Andrews 
Road, Building 1621, Kelly AFB TX 78241-5603.
---------------------------------------------------------------------------

    \5\ See footnote 1 to Sec.  855.6.
---------------------------------------------------------------------------



Sec.  855.19  Supply and service charges.

    Supplies and services furnished to a user will be charged for as 
prescribed in AFM 67-1, volume 1, part one, chapter 10, section N, Basic 
Air Force Supply Procedures, and AFR 177-102, paragraph 28.24, 
Commercial Transactions at Base Level. \6\ A personal check with 
appropriate identification, cashier's check, money order, or cash are 
acceptable means of payment. Charges for handling foreign military sales 
cargo are prescribed in AFR 170-3, Financial Management and Accounting 
for Security Assistance and International Programs. \7\
---------------------------------------------------------------------------

    \6\ See footnote 1 to Sec.  855.6.
    \7\ See footnote 1 to Sec.  855.6.
---------------------------------------------------------------------------



   Subpart C_Agreements for Civil Aircraft Use of Air Force Airfields



Sec.  855.20  Joint-use agreements.

    An agreement between the Air Force and a local Government agency is 
required before a community can establish a public airport on an Air 
Force airfield.
    (a) Joint use of an Air Force airfield will be considered only if 
there will be no cost to the Air Force and no compromise of mission 
capability, security, readiness, safety, or quality of life. Further, 
only proposals submitted by authorized representatives of local 
Government agencies eligible to sponsor a public airport will be given 
the comprehensive evaluation required to conclude a joint use agreement. 
All reviewing levels will consider and evaluate such requests on an 
individual basis.
    (b) Generally, the Air Force is willing to consider joint use at an 
airfield if it does not have pilot training, nuclear storage, or a 
primary mission that requires a high level of security. Civil operations 
must begin within 5 years of the effective date of an agreement. 
Operational considerations will be based on the premise that military 
aircraft will receive priority handling (except in emergencies), if 
traffic must be adjusted or resequenced. The Air Force normally will not 
consider personnel increases solely to support civil operations but, if 
accommodated, all costs must be fully reimbursed by the joint-use 
sponsor. The Air Force will not provide personnel to install, operate, 
maintain, alter, or relocate navigation equipment or aircraft arresting 
systems for the sole use of civil aviation. Changes in equipment or 
systems to support the civil operations must be funded by the joint-use 
sponsor. The Air Force must approve siting, design, and construction of 
the civil facilities.



Sec.  855.21  Procedures for sponsor.

    To initiate consideration for joint use of an Air Force airfield, a 
formal proposal must be submitted to the installation commander by a 
local Government agency eligible to sponsor a public airport. The 
proposal must include:
    (a) Type of operation.
    (b) Type and number of aircraft to be located on or operating at the 
airfield.
    (c) An estimate of the number of annual operations for the first 5 
years.



Sec.  855.22  Air Force procedures.

    (a) Upon receipt of a joint-use proposal, the installation 
commander, without precommitment or comment, will send the documents to 
the Air Force Representative (AFREP) at the Federal Aviation 
Administration (FAA) Regional Office within the geographical area where 
the installation is located. AFI 13-201, Air Force Airspace Management, 
\8\ lists the AFREPs and

[[Page 65]]

their addresses. The installation commander must provide an information 
copy of the proposal to HQ USAF/XOOBC, 1480 Air Force Pentagon, 
Washington DC 20330-1480.
---------------------------------------------------------------------------

    \8\ See footnote 1 to Sec.  855.6.
---------------------------------------------------------------------------

    (b) The AFREP provides comments to the installation commander on 
airspace, air traffic control, and other related areas, and informs 
local FAA personnel of the proposal for joint use.
    (c) The installation, the numbered Air Force, and the major command 
(MAJCOM) will then evaluate the proposal. The MAJCOM will send the 
comments and recommendations from all reviewing officials to HQ USAF/
XOOBC.
    (d) Factors considered in evaluating joint use include, but are not 
limited to:
    (1) Impact on current and programmed military activities at the 
installation.
    (2) Compatibility of proposed civil aviation operations with present 
and planned military operations.
    (3) Compatibility of communications systems.
    (4) Instrument capability of crew and aircraft.
    (5) Runway and taxiway configuration. (Installations with single 
runways normally will not be considered for joint use.)
    (6) Security. The possibility for sabotage, terrorism, and vandalism 
increases with joint use; therefore, joint use will not be considered:
    (i) If military and civil aircraft would be collocated in hangars or 
on ramps.
    (ii) If access to the civil aviation facilities would require 
routine transit through the base.
    (7) Fire, crash, and rescue requirements.
    (8) Availability of public airports to accommodate the current and 
future air transportation needs of the community through construction or 
expansion.
    (9) Availability of land for civil airport complex.
    Note: The majority of land required for a terminal and other support 
facilities must be located outside the installation perimeter or at a 
site that will allow maximum separation of military and civil 
activities. If the community does not already own the needed land, it 
must be acquired at no expense to the Air Force. The Air Force may make 
real property that is not presently needed, but not excess, available by 
lease under 10 U.S.C 2667. An application for lease of Air Force real 
property must be processed through the chain of command to the Air Force 
Real Estate Agency, 172 Luke Avenue, Suite 104, Building 5683, Bolling 
AFB DC 20332-5113, as prescribed in AFI 32-9003, Granting Temporary Use 
of Air Force Real Property \9\. All real property outleases require 
payment of fair market consideration and normally are processed through 
the Corps of Engineers. The General Services Administration must be 
contacted regarding availability of excess or surplus Federal real 
property and an application submitted through FAA for an airport use 
public benefit transfer under 49 U.S.C. Sec.  47151-47153.
---------------------------------------------------------------------------

    \9\ See footnote 1 to Sec.  855.6.
---------------------------------------------------------------------------

    (10) Sponsor's resources to pay a proportionate share of costs for 
runway operation and maintenance and other jointly used facilities or 
otherwise provide compensation that is of direct benefit to the 
Government.
    (e) When the Air Force determines that joint use may be compatible 
with its defense mission, the environmental impact analysis process must 
be completed before a final decision can be made. The Air Force will act 
as lead agency for the preparation of the environmental analysis (32 CFR 
part 989, Environmental Impact Analysis Process). The local Government 
agency representatives, working in coordination with Air Force personnel 
at the installation and other concerned local or Federal officials, must 
identify the proposed action, develop conceptual alternatives, and 
provide planning, socioeconomic, and environmental information as 
specified by the appropriate MAJCOM and HQ USAF/CEVP. The information 
must be complete and accurate in order to serve as a basis for the 
preparation of the Air Force environmental documents. All costs 
associated with the environmental studies required to complete the 
environmental impact analysis process must be paid by the joint use 
sponsor. Information on environmental analysis requirements is available 
from HQ USAF/CEVP, 1260 Air Force Pentagon, Washington DC 20330-1260.
    (f) HQ USAF/XOOBC can begin negotiating a joint-use agreement after 
the environmental impact analysis process is completed. The agreement 
must be

[[Page 66]]

concluded on behalf of the Air Force by SAF/MII as the approval 
authority for use of Air Force real property for periods exceeding 5 
years. The joint-use agreement will state the extent to which the 
provisions of subpart B of this part, Civil Aircraft Landing Permits, 
apply to civil aircraft operations.
    (1) Joint-use agreements are tailored to accommodate the needs of 
the community and minimize the impact on the defense mission. Although 
each agreement is unique, attachment 4 to this part provides basic terms 
that are frequently included in such agreements.
    (2) Agreements for joint use at Air Force airfields on foreign soil 
are subject to the requirements of AFI 51-701, Negotiating, Concluding, 
Reporting, and Maintaining International Agreements \10\.
---------------------------------------------------------------------------

    \10\ See footnote 1 to Sec.  855.6.
---------------------------------------------------------------------------

    (g) HQ USAF/XOOBC and SAF/MII approval is required to amend existing 
joint use agreements. The evaluation and decision processes followed in 
concluding an initial joint-use proposal must be used to amend existing 
joint-use agreements.



Sec.  855.23  Other agreements.

    (a) Temporary use of Air Force runways occasionally is needed for 
extended periods when a local civil airport is unavailable or to 
accommodate special events or projects. Such use requires agreement 
between the Air Force and the local airport authority or other 
equivalent responsible entity.
    (b) The local proponent and Air Force personnel should draft and 
submit an agreement to the MAJCOM Director for Operations, or equivalent 
level, for review and comment. The agreement must address all 
responsibilities for handling aircraft, cargo, and passengers, and hold 
the Air Force harmless of all liabilities. The agreement will not exceed 
3 years. Although each agreement will be unique, attachment 5 of this 
part provides one example. The draft agreement, with all comments and 
recommendations, must be sent to HQ USAF/XOOBC for final approval.



     Sec. Table 1 to Part 855--Purpose of Use/Verification/Approval 
                             Authority/Fees

----------------------------------------------------------------------------------------------------------------
                                                                               Approval *
              Purpose of use                          Verification             authority            Fees
----------------------------------------------------------------------------------------------------------------
Contractor or subcontractor (A). A US or   Current Government contract                  1  No.
 foreign contractor or subcontractor,       numbers; the Air Force airfields
 operating corporate, personal, or leased   required for each contract; a
 aircraft in conjunction with fulfilling    brief description of the work to
 the terms of a government contract.        be performed; and the name,
                                            telephone number, and address of
                                            the government contracting
                                            officer must be provided on the
                                            DD Form 2401 or a continuation
                                            sheet.
Note: Potential contractors may not land
 at Air Force airfields to pursue or
 present an unsolicited proposal for
 procurement of government business. One
 time authorization can be provided when
 an authorized US Government
 representative verifies that the
 potential contractor has been
 specifically invited for a sales
 presentation or to discuss their
 product.
Demonstration (B). Aircraft, aircraft      Demonstration or display must be             1  No.
 with components installed, or aircraft     a contractual requirement or
 transporting components or equipment       presented at the request of an
 operating to demonstrate or display a      authorized US Government
 product to US Government representatives   representative. The name,
 who have procurement authority or          address, and telephone number of
 certification responsibilities.            the requesting government
 (Authority granted under this paragraph    representative or contracting
 does not include aerobatic                 officer and contract number must
 demonstrations.).                          be included on the DD Form 2401.
Aerial performance (BB). Aircraft          Approval of MAJCOM, FOA, or DRU              1  No.
 performing aerobatics and or fly-bys at    and FAA as specified in AFI 35-
 Air Force airfields.                       201, Community Relations.

[[Page 67]]

 
Active duty US military and other US       Social security number in block 1            1  No.
 uniformed service members with military    on DD Form 2401.
 identification cards (includes members
 of the US Public Health Service, Coast
 Guard, and National Oceanic and
 Atmospheric Administration) (C). Service
 members, operating their own aircraft,
 leased aircraft, or other available
 aircraft for official duty travel
 (temporary duty, permanent change of
 station, etc.) or for private, non
 revenue flights.
Reserve Forces (D). Members of the US      Endorsement from member's                    1  No.
 Reserve Forces (including Reserve          commander that validates
 Officer Training Corps and National        military status and requirement
 Guard) operating their own aircraft,       for use of Air Force airfields
 leased aircraft, or other available        listed on the DD Form 2401. The
 aircraft to fulfill their official duty    endorsement may be included on
 commitment at the installation where       the DD Form 2401 or provided
 their unit is assigned and other           separately by letter. When
 installations for temporary duty           appropriate, travel orders must
 assignments.                               be on board the aircraft.
Dependents of active duty US military      Identification card (DD Form                 1  No.
 personnel, other US uniformed service      1173) number or social security
 personnel, (CC), or US Reserve Forces      number, identification card
 personnel (DD). Dependents operating       expiration date, and a letter of
 their own aircraft, leased aircraft, or    endorsement from sponsor.
 other available aircraft in conjunction
 with activities related to entitlements
 as a dependent of a uniformed service
 member.
US Government civil service employees      Supervisor's endorsement in block            1  No.
 (E). Civilian employees of the US          4 of the DD Form 2401.
 Government operating their own aircraft,   Individual must have a copy of
 leased aircraft, or other available        current travel orders or other
 aircraft for official Government           official travel certification
 business travel.                           available for verification if
                                            requested by an airfield manager
                                            or a designated representative.
Retired US military members and other      Copy of retirement orders on file            1  No.
 retired US uniformed service members       with the approving authority.
 with a military identification card
 authorizing use of the commissary, base
 exchange, and or military medical
 facilities (G). Retired Service members,
 operating their own aircraft, leased
 aircraft, or other available aircraft in
 conjunction with activities related to
 retirement entitlements authorized by
 law or regulation.
Dependents of retired US military          Identification card (DD Form                 1  No.
 personnel and other retired US uniformed   1173) number or social security
 service personnel (GG). Dependents of      number, identification card
 retired Service members operating their    expiration date, sponsor's
 own aircraft, leased aircraft, or other    retirement orders, and letter of
 available aircraft in conjunction with     endorsement from sponsor.
 activities related to entitlements
 authorized by law or regulation as a
 dependent of a retired Service member.
Civil Air Patrol (CAP) (H). CAP members    Endorsement of the application by            1  No.
 operating personal or CAP aircraft for     HQ CAP-USAF/XOO, 105 South
 official CAP activities.                   Hansell Street, Maxwell AFB AL
                                            36112-6332.
Aero club members (I). Individuals         Membership validation by the aero            6  No.
 operating their own aircraft at the Air    club manager on the DD Form 2401.
 Force airfield where they hold active
 aero club membership.
Weather alternate (J). An Air Force        List of the destination civil                1  Yes
 airfield identified on a scheduled air     airports for which the alternate
 carrier's flight plan as an alternate      will be used and certification
 airport as prescribed by Federal           of scheduled air carrier status,
 Aviation Regulations (FARs) or             such as the US Department of
 equivalent foreign Government              Transportation Fitness
 regulations. The airfield can only be      Certificate.
 used if weather conditions develop while
 the aircraft is in flight that preclude
 landing at the original destination.
 Aircraft may not be dispatched from the
 point of departure to an Air Force
 airfield designated as an approved
 weather alternate.

[[Page 68]]

 
Note: Scheduled air carriers are defined
 at Attachment 1. Only those airfields
 identified on the list at Attachment 2
 are available for use as weather
 alternates. Airfields cannot be used as
 alternates for non-scheduled operations.
 Passengers and cargo may not be
 offloaded, except with the approval of
 the installation commander when there is
 no other reasonable alternative.
 Boarding new passengers and or loading
 new cargo is not authorized.
Air Mobility Command (AMC) contractor      International flights must have              3  No.
 charter (K). An air carrier transporting   an AMC Form 8, Civil Aircraft
 passengers or cargo under the terms of     Certificate, on board the
 an AMC contract. (Landing permits for      aircraft. Domestic flights must
 this purpose are processed by HQ AMC/      have either a Certificate of
 DOKA, 402 Scott Drive, Unit 3A1, Scott     QUICK-TRANS (Navy), a
 AFB IL 62225-5302.).                       Certificate of Courier Service
                                            Operations (AMC), or a
                                            Certificate of Intra-Alaska
                                            Operations (AMC) on board the
                                            aircraft.
CRAF alternate (KK). An Air Force          Participant in the CRAF program              2  Yes.
 airfield used as an alternate airport by   and authorized by contract.
 air carriers that have contracted to
 provide aircraft for the Civil Reserve
 Air Fleet (CRAF).
US Government contract or charter          The chartering agency and name,              1  No.
 operator (L). An air carrier               address, and telephone number of
 transporting passengers or cargo for a     the Government official
 US Government department or agency other   procuring the transportation
 than US military departments.              must be listed in block 4 of the
                                            DD Form 2401. An official
                                            government document, such as an
                                            SF 1169, US government
                                            Transportation Request, must be
                                            on board the aircraft to
                                            substantiate that the flight is
                                            operating for a US Government
                                            department or agency.
Contractor or subcontractor charter (M).   The contractor or subcontractor              1  No.
 Aircraft chartered by a US or foreign      must provide written validation
 contractor or subcontractor to transport   to the decision authority that
 personnel or cargo in support of a         the charter operator will be
 current government contract.               operating on their behalf in
                                            fulfilling the terms of a
                                            government contract, to include
                                            current government contract
                                            numbers and contract titles or
                                            brief description of the work to
                                            be performed; the Air Force
                                            airfields required for use, and
                                            the name, telephone number, and
                                            address of the government
                                            contracting officer.
DOD charter (N). Aircraft transporting     Military Air Transportation                  1  No.
 passengers or cargo within the United      Agreement (MATA) approved by the
 States for the military departments to     Military Transportation
 accommodate transportation requirements    Management Command (MTMC) (this
 that do not exceed 90 days.                includes survey and approval by
                                            HQ AMC/DOB, 402 Scott Drive,
                                            Suite 132, Scott AFB IL 62225-
                                            5363). An SF 1169 or SF 1103, US
                                            Government Bill of Lading, must
                                            be on board the aircraft to
                                            validate the operation is for
                                            the military departments as
                                            specified in AFJI 24-211,
                                            Defense Traffic Management
                                            Regulation. (Passenger charters
                                            arranged by the MTMC are
                                            assigned a commercial air
                                            movement (CAM) or civil air
                                            freight movement number each
                                            time a trip is awarded.
                                            Installations will normally be
                                            notified by message at least 24
                                            hours before a pending CAM.)
Media (F). Aircraft transporting           Except for White House Press                 2  Note 1.
 representatives of the media for the       Corps charters, concurrence of
 purpose of gathering information about a   the installation commander, base
 US Government operation or event.          operations officer, and public
 (Except for the White House Press Corps,   affairs officer.
 use will be considered on a case-by-case
 basis. For example, authorization is
 warranted if other forms of
 transportation preclude meeting a
 production deadline or such use is in
 the best interest of the US Government.
 DD Forms 2400 and 2402 should be on file
 with HQ USAF/XOOBC to ensure prompt
 telephone approval for validated
 requests.).
Commercial aircraft certification testing  Application must cite the                    2  Yes.
 required by the FARs that only involves    applicable FAR, describe the
 use of normal flight facilities (P).       test, and include the name and
                                            telephone number of the FAA
                                            certification officer.

[[Page 69]]

 
Commercial development testing at Air      Statement of Capability Number or            1  Yes.
 Force flight test facilities (Q) as        Cooperative Research and
 described in AFI 99-101, Development       Development Agreement Number,
 Test & Evaluation.                         and name and telephone number of
                                            the Air Force official who
                                            approved support of the test
                                            project.
Commercial charter operations (R).         Unavailability of:                           5  Yes.
 Aircraft transporting passengers or       a. a suitable civil airport,.....
 cargo for hire for other than US          b. aircraft that could operate
 military departments.                      into the local civil airport, or.
                                           c. other modes of transportation
                                            that would reasonably satisfy
                                            the transportation requirement..
Note: Federal Aviation Administration
 (FAA) certification is required for
 airfields used by carriers certified
 under FAR, part 121 (passenger aircraft
 that exceed 30 passenger seats). HQ USAF/
 XOOBC will request that FAA issue an
 airport operating certificate under FAR,
 part 139, as necessary. Exceptions to
 the requirement for certification are
 Air Force airfields used for:
  a. Emergencies.
  b. Weather alternates.
  c. Air taxi operations under FAR, part
   135. Note: This is currently under
   review. Anticipate a change that will
   eliminate the air taxi exemption.
  d. Air carrier operations in support of
   contract flights exclusively for the
   US military departments.
Commercial air crew training flights (S).  Memorandum of Understanding                  2  Yes.
 Aircraft operated by commercial air        approved by HQ USAF/XOOBC that
 carrier crews for the purpose of           establishes conditions and
 maintaining required proficiency.          responsibilities in conducting
                                            the training flights.
Private, non revenue producing flights     The verification will vary with              4  Note 2.
 (T). Aircraft operating for a variety of   the purpose for use. For
 reasons, such as transporting              example, when use is requested
 individuals to meet with Government        in conjunction with events such
 representatives or participate in          as meetings or ceremonies, the
 Government sponsored ceremonies and        applicant must provide the name
 similar events. At specified locations,    and telephone number of the
 the purpose of use may be to gain access   Government project officer.
 to collocated private sector facilities
 as authorized by lease, agreement, or
 contract.
Provisional airfield (U). An Air Force     Memorandum of Understanding,                 2  Yes.
 airfield used by civil aircraft when the   Letter of Agreement, or lease
 local civil airport is temporarily         that establishes
 unavailable, or by a commercial air        responsibilities and conditions
 carrier operating at a specific remote     for use.
 location to provide commercial air
 transportation for local military
 members under the provisions of a lease
 or other legal instrument.
Foreign government charter (V). Aircraft   Application must include name and            2  Note 3.
 chartered by a foreign government to       telephone number of the foreign
 transport passengers or cargo.             government representative
                                            responsible for handling the
                                            charter arrangements.
Flights transporting foreign military      FMS case number, requisition                 2  Note 3.
 sales (FMS) material (W). (Hazardous,      numbers, delivery term code and
 oversized, or classified cargo only.)      information as specified below:
                                           a. Description of cargo
                                            (nomenclature and or proper
                                            shipping name). The description
                                            of hazardous cargo must include
                                            the Department of Transportation
                                            exemption number, hazard class,
                                            number of pieces, and net
                                            explosive weight.
                                           b. Name, address, and telephone
                                            number of individual at Air
                                            Force base that is coordinating
                                            cargo handling and or other
                                            required terminal services.

[[Page 70]]

 
                                           c. Cargo to be loaded or off
                                            loaded must be equipped with
                                            sufficient cargo pallets and or
                                            tiedown materials to facilitate
                                            handling. Compatible 463L
                                            pallets and nets will be
                                            exchanged on a one-for-one basis
                                            for serviceable units.
                                            Nonstandard pallets and nets
                                            cannot be exchanged; however,
                                            they will be used to buildup
                                            cargo loads after arrival of the
                                            aircraft. Aircraft arriving
                                            without sufficient cargo loading
                                            and tiedown devices must be
                                            floor loaded and the aircraft
                                            crew will be responsible for
                                            purchasing the necessary ropes,
                                            chains, and so forth.
                                           d. US Government FMS case
                                            management agency to which costs
                                            for services rendered are
                                            chargeable.
                                           e. Name, address, and telephone
                                            number of freight forwarder.
                                           f. Name, address, and telephone
                                            number of shipper.
Certified flight record attempts (X).      Documentation that will validate             2  Yes.
 Aircraft operating to establish a new      National Aeronautic Association
 aviation record.                           or Federation Aeronautique
                                            Internationale sanction of the
                                            record attempt.
Political candidates (Y). (For security    The Secret Service must confirm              2  Yes.
 reasons only) Aircraft either owned or     that use has been requested in
 chartered explicitly for a Presidential    support of its security
 or Vice Presidential candidate,            responsibilities.
 including not more than one accompanying
 overflow aircraft for the candidate's
 staff and press corps. Candidate must be
 a Presidential or Vice Presidential
 candidate who is being furnished
 protection by the US Secret Service.
 Aircraft clearance is predicated on the
 Presidential or Vice Presidential
 candidate being aboard one of the
 aircraft (either on arrival or
 departure). Normal landing fees will be
 charged. To avoid conflict with US
 statutes and Air Force operational
 requirements, and to accommodate
 expeditious handling of aircraft and
 passengers, the installation commander
 will:
  a. Provide minimum official welcoming
   party.
  b. Not provide special facilities.
  c. Not permit political rallies or
   speeches on the installation.
  d. Not provide official transportation
   to unauthorized personnel, such as the
   press or local populace.
Aircraft either owned or personally        Use by other than the President              2  No.
 chartered for transportation of the        or Vice President must be for
 President, Vice President, a past          official government business.
 President of the United States, the head   All requests will be coordinated
 of any US Federal department or agency,    with the Office of Legislative
 or a member of the Congress (Z).           Liaison (SAF/LL) as prescribed
                                            in AFI 90-401, Air Force
                                            Relations with Congress.
----------------------------------------------------------------------------------------------------------------
* Approving Authority:
1 = Can be approved at all levels.
2 = HQ USAF/XOOBC.
3 = HQ AMC/DOKA.
4 = Except as specifically delegated in paragraphs 2.4.2 and 2.4.2.3, must be approved by HQ USAF/XOOBC.
5 = Except as specifically delegated in paragraph 2.4.2.1, must be approved by HQ USAF/XOOBC.
6 = Policy concerning private aircraft use of aero club facilities varies from base to base, primarily due to
  space limitations and military mission requirements. Therefore, applications for use of aero club facilities
  must be processed at base level.
Note 1: Landing fees are charged for White House Press Corps flights. Landing fees are not charged if the Air
  Force has invited media coverage of specific events.
Note 2: Landing fees are charged if flight is not operating in support of official Government business.
Note 3: Landing fees are charged unless US Government charters have reciprocal privileges in the foreign
  country.



   Sec. Table 2 to Part 855--Aircraft Liability Coverage Requirements

----------------------------------------------------------------------------------------------------------------
   Aircraft maximum gross takeoff                                  Bodily      Property
           weight (MGTOW)                   Coverage for           injury       damage           Passenger
----------------------------------------------------------------------------------------------------------------
12,500 Pounds and Under.............  Each Person.............     $100,000  ...........  $100,000.
                                      Each Accident...........      300,000      100,000  100,000 multiplied by
                                                                                           the number of
                                                                                           passenger seats.
More than 12,500 Pounds.............  Each Person.............      100,000  ...........  100,000.

[[Page 71]]

 
                                      Each Accident...........    1,000,000    1,000,000  100,000 multiplied by
                                                                                           75% multiplied by the
                                                                                           number of passenger
                                                                                           seats.
----------------------------------------------------------------------------------------------------------------



                 Sec. Table 3 to Part 855--Landing Fees

----------------------------------------------------------------------------------------------------------------
                                                                                             United
                                                                                             States,
    Aircraft Maximum Gross        Normal fee    Unauthorized  Intentional fee   Minimum   Territories,  Overseas
    Takeoff Weight (MGTOW)                           fee                          fee          and
                                                                                           Possessions
----------------------------------------------------------------------------------------------------------------
                               $1.50 per 1,000  ............  ...............     $20.00  X
                                lbs MGTOW or
                                fraction
                                thereof.
                               $1.70 per 1,000  ............  ...............      25.00  ............  X
                                lbs MGTOW or
                                fraction
                                thereof.
Up to and including 12,500     ...............      $100.00   ...............  .........  X             X
 lbs.
12,501 to 40,000 lbs.........  ...............       300.00   ...............  .........  X             X
Over 40,000 lbs..............  ...............       600.00   ...............  .........  X             X
                               ...............  ............  Increase         .........  X             X
                                                               unauthorized
                                                               fee by 100% or
                                                               200%.
----------------------------------------------------------------------------------------------------------------



           Sec. Table 4 to Part 855--Parking and Storage Fees

----------------------------------------------------------------------------------------------------------------
Fee per aircraft for each 24-hour   Minimum
          period or less              fee                 Charge begins                   Ramp         Hangar
----------------------------------------------------------------------------------------------------------------
$1.00 per 100,000 lbs MGTOW or        $20.00  6 hours after landing................  X              ............
 fraction thereof.
$2.00 per 100,000 lbs MGTOW or         20.00  Immediately..........................  .............  X
 fraction thereof.
----------------------------------------------------------------------------------------------------------------



 Sec. Attachment 1 to Part 855--Glossary of References, Abbreviations, 
                           Acronyms, and Terms

                          Section A--References

AFPD 10-10, Civil Aircraft Use of United States Air Force Airfields
AFI 10-1001, Civil Aircraft Landing Permits
AFI 13-201, Air Force Airspace Management
AFI 32-7061(32 CFR part 989), Environmental Impact Analysis Process
AFI 32-9003, Granting Temporary Use of Air Force Real Property
AFI 34-117, Air Force Aero Club Program
AFI 35-201, Community Relations
AFI 51-701, Negotiating, Concluding, Reporting, and Maintaining 
          International Agreements
AFI 84-103, Museum System
AFI 90-401, Air Force Relations with Congress
AFI 99-101, Development Test and Evaluation
AFJI 24-211, Defense Traffic Management Regulation
AFM
67-1, vol 1, part 1, Basic Air Force Supply Procedures
AFM 67-1, vol 1, part 3, Air Force Stock Fund and DPSC Assigned Item 
          Procedures
AFMAN 3-132, Air Force Aero Club Operations
AFR 170-3, Financial Management and Accounting for Security Assistance 
          and International Programs
AFR 177-102, Commercial Transactions at Base Level
FAR, part 121, Certification and Operation: Domestic, Flag, and 
          Supplemental Air Carriers and Commercial Operations of Large 
          Aircraft
FAR, part 135, Air Taxi Operators and Commercial Operators of Small 
          Aircraft
FAR, part 139, Certification and Operations: Land Airports Serving 
          Certain Air Carriers

                  Section B--Abbreviations and Acronyms

------------------------------------------------------------------------
      Abbreviations and acronyms                  Definitions
------------------------------------------------------------------------
AFI                                    Air Force Instruction.
AFJI                                   Air Force Joint Instruction.
AFM                                    Air Force Manual.
AFMAN                                  Air Force Manual.
AFPD                                   Air Force Policy Directive.
AFR                                    Air Force Regulation.
AFREP                                  Air Force Representative.
AMC                                    Air Mobility Command.
AOG                                    Air Operations Group.
CAM                                    Commercial Air Movement.
CAP                                    Civil Air Patrol.
CRAF                                   Civil Reserve Air Fleet.
DPSC                                   Defense Personnel Support Center.

[[Page 72]]

 
DRU                                    Direct Reporting Unit.
FAA                                    Federal Aviation Administration.
FAR                                    Federal Aviation Regulation.
FMS                                    Foreign Military Sales.
FOA                                    Field Operating Agency.
FSDO                                   Flight Standards District Office.
HQ AMC/DOKA                            Headquarters Air Mobility
                                        Command, Contract Airlift,
                                        Directorate of Operations and
                                        Transportation.
HQ USAF/CEVP                           Headquarters United States Air
                                        Force, Environmental Planning
                                        Division, Directorate of
                                        Environment.
HQ USAF/XOOBC                          Headquarters United States Air
                                        Force, Civil Aviation, Bases and
                                        Units Division, Directorate of
                                        Operations.
HQ USAF/XOOO                           Headquarters United States Air
                                        Force, Operations Group,
                                        Directorate of Operations.
MAJCOM                                 Major Command.
MATA                                   Military Air Transportation
                                        Agreement.
MGTOW                                  Maximum Gross Takeoff Weight.
MTMC                                   Military Traffic Management
                                        Command.
SAF/LL                                 Secretary of the Air Force,
                                        Office of Legislative Liaison.
SAF/MII                                Secretary of the Air Force,
                                        Deputy Assistant Secretary of
                                        the Air Force (Installations).
SAF/PAC                                Secretary of the Air Force,
                                        Office of Public Affairs,
                                        Directorate for Community
                                        Relations.
US                                     United States.
USDAO                                  United States Defense Attache
                                        Office.
------------------------------------------------------------------------

                            Section C--Terms

    Aircraft. Any contrivance now known or hereafter invented, used, or 
designated for navigation of or flight in navigable airspace as defined 
in the Federal Aviation Act.
    Airfield. An area prepared for the accommodation (including any 
buildings, installations, and equipment), landing, and take-off of 
aircraft.
    Authorized Credit Letter. A letter of agreement that qualified 
operators must file with the Air Force to purchase Air Force aviation 
fuel and oil on a credit basis under the provisions of AFM 67-1, vol 1, 
part three, chapter 1, Air Force Stock Fund and DPSC Assigned Item 
Procedures.
    Civil Aircraft. Any United States or foreign-registered aircraft 
owned by non-Governmental entities, and foreign Government-owned 
aircraft that are operated for commercial purposes.
    Civil Aviation. All civil aircraft of any national registry, 
including:
    Commercial Aviation. Civil aircraft that transport passengers or 
cargo for hire.
    General Aviation. Civil aircraft that do not transport passengers or 
cargo for hire.
    Civil Reserve Air Fleet (CRAF). US registered aircraft, certificated 
under FAR part 121, obligated by contract to provide aircraft and crews 
to the Department of Defense during contingencies or war.
    DD Form 2400, Civil Aircraft Certificate of Insurance. A certificate 
that shows the amount of third-party liability insurance carried by the 
user and assures the United States Government of advance notice if 
changes in coverage occur.
    DD Form 2401, Civil Aircraft Landing Permit. A license which, when 
validated by an Air Force approving authority, authorizes the civil 
aircraft owner or operator to use Air Force airfields.
    DD Form 2402, Civil Aircraft Hold Harmless Agreement. An agreement, 
completed by the user, which releases the United States Government from 
all liabilities incurred in connection with civil aircraft use of Air 
Force airfields.
    Government Aircraft. Aircraft owned, operated, or controlled for 
exclusive, long-term use by any department or agency of either the 
United States or a foreign Government; and aircraft owned by any United 
States State, County, Municipality or other political subdivision; or 
any aircraft for which a Government has the liability responsibility. In 
the context of this instruction, it includes foreign registered 
aircraft, which are normally commercially operated, that have been 
wholly chartered for use by foreign Government heads of State for 
official State visits.
    Government Furnished or Bailed Aircraft. US Government-owned 
aircraft provided to a Government contractor for use in conjunction with 
a specific contractual requirement.
    Installation Commander. The individual with ultimate responsibility 
for operating the airfield and for base operations (normally a wing or 
group commander), as determined by the MAJCOM.
    Joint-Use Agreement. An agreement between the Air Force and a local 
Government agency that establishes a public airport on an Air Force 
airfield.
    Loaned Aircraft. US Government-owned aircraft made available for use 
by another US Government agency. This does not include aircraft leased 
or loaned to non-Governmental entities. Such aircraft will be considered 
as civil aircraft for purposes of this instruction.
    Military Aircraft. Aircraft used exclusively in the military 
services of the US or a foreign Government and bearing appropriate 
military and national markings or carrying appropriate identification.
    Official Government Business. Activities that support or serve the 
needs of US Federal agencies located at or in the immediate vicinity of 
an Air Force installation, including nonappropriated fund entities. For 
elected or appointed Federal, State, and local officeholders, official 
business is activity performed in fulfilling duties as a public 
official.
    Other Agreement. An agreement between the Air Force and a local 
Government agency for temporary use of an Air Force runway

[[Page 73]]

when a local civil airport is unavailable, or to accommodate a special 
event or project.
    Scheduled Air Carrier. An air carrier that holds a scheduled air 
carrier certificate and provides scheduled service year round between 
two or more points.
    Unauthorized Landing. A landing at an Air Force airfield by a civil 
aircraft without prior authority (approved DD Form 2401 and 24 hours 
prior notice).
    User. The person, corporation, or other responsible entity operating 
civil aircraft at Air Force airfields.



          Sec. Attachment 2 to Part 855--Weather Alternate List

ALTUS AFB OK
ANDERSEN AFB GUAM
CANNON AFB NM
DOBBINS AFB GA
DYESS AFB TX
EARECKSON AFS AK *
---------------------------------------------------------------------------

    * Formerly Shemya AFB.
---------------------------------------------------------------------------

EGLIN AFB FL
EIELSON AFB AK
ELLSWORTH AFB SD
ELMENDORF AFB AK
FAIRCHILD AFB WA
GRAND FORKS AFB ND
HILL AFB UT
HOWARD AFB PA
KADENA AB OKINAWA
KELLY AFB TX
KUNSAN AB KOREA
LANGLEY AFB VA
LAUGHLIN AFB TX
MALMSTROM AFB MT
McCHORD AFB WA
McCONNELL AFB KS
MINOT AFB ND
MT HOME AFB ID
NELLIS AFB NV
OFFUTT AFB NE
OSAN AB KOREA
PLANT 42, PALMDALE CA
TRAVIS AFB CA
TYNDALL AFB FL
YOKOTA AB JAPAN



 Sec. Attachment 3 to Part 855--Landing Permit Application Instructions

    A3.1. DD Form 2400, Civil Aircraft Certificate of Insurance: The 
insurance company or its authorized agent must complete and sign the DD 
Form 2400. Corrections to the form made using a different typewriter, 
pen, or whiteout must be initialed by the signatory. THE FORM CANNOT BE 
COMPLETED BY THE AIRCRAFT OWNER OR OPERATOR. Upon expiration, the DD 
Form 2400 must be resubmitted along with DD Form 2401 for continued use 
of Air Force airfields. The DD Form 2400 may be submitted to the 
decision authority by either the user or insurer.

(Approved by the Office of Management and Budget under control number 
0701-0050)

    A3.1.1. Block 1, Date Issued. The date the DD Form 2400 is completed 
by the signatory.
    A3.1.2. Block 2a and 2b, Insurer Name, Address. The name and address 
of the insurance company.
    A3.1.3. Block 3a and 3b. Insured Name, Address. The name and address 
of the aircraft owner and or operator. (The name of the user must be the 
same on all the forms.)
    A3.1.4. Block 4a, Policy Number(s). The policy number must be 
provided. Binder numbers or other assigned numbers will not be accepted 
in lieu of the policy number.
    A3.1.5. Block 4b, Effective Date. The first day of current insurance 
coverage.
    A3.1.6. Block 4c, Expiration Date. The last day of current insurance 
coverage. The DD Form 2400 is valid until one day before the insurance 
expiration date. A DD Form 2400 with the statement ``until canceled,'' 
in lieu of a specific expiration date, is valid for two years from the 
issue date.
    A3.1.7. Block 5, Aircraft Liability Coverage. The amount of split 
limit coverage. All boxes in block 5 must be completed to specify the 
coverage for: each person (top line, left to right) outside the aircraft 
(bodily injury) and each passenger; and the total coverage per accident 
(second line, left to right) for: persons outside the aircraft (bodily 
injury), property damage, and passengers. IF BLOCK 5 IS USED, BLOCK 6 
SHOULD NOT BE USED. All coverages must be stated in US dollars. ALL 
SEATS THAT CAN BE USED FOR PASSENGERS MUST BE INSURED. See Table 2 for 
required minimum coverage.
    A3.1.8. Block 6, Single Limit. The maximum amount of coverage per 
accident. IF BLOCK 6 IS USED, BLOCK 5 SHOULD NOT BE USED. The minimum 
coverage required for a combined single limit is determined by adding 
the minimums specified in the ``each accident'' line of Table 2. All 
coverages must be stated in US dollars. ALL SEATS THAT CAN BE USED FOR 
PASSENGERS MUST BE INSURED.
    A3.1.9. Block 7, Excess Liability. The amount of coverage which 
exceeds primary coverage. All coverages must be stated in US dollars.
    A3.1.10. Block 8, Provisions of Amendments or Endorsements of Listed 
Policy(ies). Any modification of this block by the insurer or insured 
invalidates the DD Form 2400.
    A3.1.11. Block 9a, Typed Name of Insurer's Authorized 
Representative. Individual must be an employee of the insurance company, 
an agent of the insurance company, or an employee of an insurance 
broker.
    A3.1.12. Block 9b, Signature. The form must be signed in blue ink so 
that hand

[[Page 74]]

scribed, original signatures are easy to identify. Signature stamps or 
any type of facsimile signature cannot be accepted.
    A3.1.13. Block 9c, Title. Self-explanatory.
    A3.1.14. Block 9d, Telephone Number. Self-explanatory.
    A3.1.15. THE REVERSE OF THE FORM MAY BE USED IF ADDITIONAL SPACE IS 
REQUIRED.
    A3.2. DD Form 2401, Civil Aircraft Landing Permit. A separate DD 
Form 2401 must be submitted for each purpose of use (Table 1).

(Approved by the Office of Management and Budget under control number 
0701-0050)

    A3.2.1. Block 1a. The name of the owner or operator. (The name of 
the user must be the same on all the forms.)
    A3.2.2. Block 1b. This block should only be completed if the 
applicant is a subsidiary, division, etc, of another company.
    A3.2.3. Block 1c. Business or home address, whichever is applicable, 
of applicant.
    A3.2.4. Block 2. List the airfields where the aircraft will be 
operating. The statement ``Any US Air Force Installation Worldwide'' is 
acceptable for users performing AMC and White House Press Corps 
charters. ``All Air Force airfields in the CONUS'' is acceptable, if 
warranted by official Government business, for all users.
    A3.2.5. Block 3. Self-explanatory. (Users will not necessarily be 
denied landing rights if pilots are not instrument rated and current.)
    A3.2.6. Block 4. Provide a brief explanation of purpose for use. The 
purposes normally associated with use of Air Force airfields are listed 
in Table 1. If use for other purposes is requested, it may be approved 
if warranted by unique circumstances. (The verification specified for 
each purpose of use must be included with the application.)
    A3.2.7. Block 5. EXCEPT AS NOTED FOR BLOCK 5C, ALL ITEMS MUST BE 
COMPLETED.
    A3.2.8. Block 5a and Block 5b. Self-explanatory.
    A3.2.9. Block 5c. If the DD Form 2400, Certificate of Insurance, 
indicates coverage for ``any aircraft of the listed model owned and or 
operated,'' the same statement can be used in block 5c in lieu of 
specific registration numbers.
    A3.2.10. Block 5d. The capacity provided must reflect only the 
number of crew required to operate the aircraft. The remaining seats are 
considered passenger seats.
    A3.2.11. Block 5e. Self-explanatory.
    A3.2.12. Block 5d. A two-way radio is required. Landing rights will 
not necessarily be denied for lack of strobe lights, a transponder, or 
IFR capabilities.
    A3.2.13. Block 6a. Self-explanatory.
    A3.2.14. Block 6b. If the applicant is an individual, this block 
should not be completed.
    A3.2.15. Block 6c. This block should contain a daytime telephone 
number.
    A3.2.16. Block 6d. The form must be signed in blue ink so that hand 
scribed, original signatures are easy to identify. Signature stamps or 
any type of facsimile signature cannot be accepted.
    A3.2.17. Block 6e. Self-explanatory.
    A3.2.18. THE REVERSE OF THE FORM MAY BE USED IF ADDITIONAL SPACE IS 
REQUIRED.
    BLOCKS 7A THROUGH 14C ARE NOT COMPLETED BY THE APPLICANT.
    A3.2.19. Blocks 7a and 7b. The expiration date of a permit is 
determined by the insurance expiration date or the purpose of use. For 
example, the dates of an air show will determine the expiration date of 
a permit approved for participation in the air show. If the insurance 
expiration is used to determine the permit expiration date, the landing 
permit will expire one day before the insurance expiration date shown on 
the DD Form 2400, or 2 years from the date the permit is issued when the 
insurance expiration date either exceeds 2 years or is indefinite (for 
example, ``until canceled'').
    A3.2.20. APPROVED PERMITS CANNOT BE CHANGED WITHOUT THE CONSENT OF 
THE APPROVING AUTHORITY.
    A3.2.21. DD FORMS 2400 AND 2401 MUST BE RESUBMITTED TO RENEW A 
LANDING PERMIT. (Corporations must resubmit the DD Form 2402 every five 
years.)
    A3.3. DD Form 2402, Civil Aircraft Hold Harmless Agreement. A form 
submitted and accepted by an approving authority for an individual 
remains valid and need not be resubmitted to the same approving 
authority, unless canceled for cause. Forms submitted by companies, 
organizations, associations, etc, must be resubmitted at least every 
five years.

(Approved by the Office of Management and Budget under control number 
0701-0050)

    A3.3.1. Block 2a(1). This block should contain the user's name if 
the applicant is a company. If the hold harmless agreement is intended 
to cover other entities of a parent company, their names must also be 
included in this block.
    A3.3.2. Block 2a(2). This block should contain the user's address if 
the applicant is a company.
    A3.3.3. Block 2b(1). This block should contain the name of the 
individual applying for a landing permit or the name of a corporate 
officer that is authorized to legally bind the corporation from 
litigation against the Air Force.
    A3.3.4. Block 2b(2). This block should contain the address of the 
individual applying for a landing permit. A company address is only 
required if it is different from the address in block 2a(2).

[[Page 75]]

    A3.3.5. Block 2b(3). The form must be signed in blue ink so that 
hand scribed, original signatures are easy to identify. Signature stamps 
or any type of facsimile signature cannot be accepted.
    A3.3.6. Block 2b(4). This block should only be completed when the 
applicant is a company, organization, association, etc.
    A3.3.7. Block 3a(1). If the applicant is a company, organization, 
association, etc, the form must be completed and signed by the corporate 
secretary or a second corporate officer (other than the officer 
executing DD Form 2402) to certify the signature of the first officer. 
As necessary, the US Air Force also may require that the form be 
authenticated by an appropriately designated third official.
    A3.3.8. Block 3a(2). The form must be signed in blue ink so that 
hand scribed, original signatures are easy to identify. Signature stamps 
or any type of facsimile signature cannot be accepted.
    A3.3.9. Block 3a(3). Self-explanatory.
    A3.3.10. Block 4. Self-explanatory.



        Sec. Attachment 4 to Part 855--Sample Joint-Use Agreement

Joint-Use Agreement Between an Airport Sponsor and the United States Air 
                                  Force

    This Joint Use Agreement is made and entered into this ____ day of 
____ 19__, by and between the Secretary of the Air Force, for and on 
behalf of the United States of America (``Air Force'') and an airport 
sponsor (``Sponsor'') a public body eligible to sponsor a public 
airport.
    WHEREAS, the Air Force owns and operates the runways and associated 
flight facilities (collectively ``flying facilities'') located at 
Warbucks Air Force Base, USA (``WAFB''); and
    WHEREAS, Sponsor desires to use the flying facilities at WAFB to 
permit operations by general aviation aircraft and commercial air 
carriers (scheduled and nonscheduled) jointly with military aircraft; 
and
    WHEREAS, the Air Force considers that this Agreement will be in the 
public interest, and is agreeable to joint use of the flying facilities 
at WAFB; and
    WHEREAS, this Agreement neither addresses nor commits any Air Force 
real property or other facilities that may be required for exclusive use 
by Sponsor to support either present or future civil aviation operations 
and activities in connection with joint use; and
    WHEREAS, the real property and other facilities needed to support 
civil aviation operations are either already available to or will be 
diligently pursued by Sponsor;
    NOW, THEREFORE, it is agreed:

                              1. Joint Use

    a. The Air Force hereby authorizes Sponsor to permit aircraft 
equipped with two-way radios capable of communicating with the WAFB 
Control Tower to use the flying facilities at WAFB, subject to the terms 
and conditions set forth in this Agreement and those Federal Aviation 
Regulations (FAR) applicable to civil aircraft operations. Civil 
aircraft operations are limited to 20,000 per calendar year. An 
operation is a landing or a takeoff. Civil aircraft using the flying 
facilities of WAFB on official Government business as provided in Air 
Force Instruction (AFI) 10-1001, Civil Aircraft Landing Permits, are not 
subject to this Agreement.
    b. Aircraft using the flying facilities of WAFB under the authority 
granted to Sponsor by this Agreement shall be entitled to use those for 
landings, takeoffs, and movement of aircraft and will normally park only 
in the area made available to Sponsor and designated by them for that 
purpose.
    c. Government aircraft taking off and landing at WAFB will have 
priority over all civil aircraft at all times.
    d. All ground and air movements of civil aircraft using the flying 
facilities of WAFB under this Agreement, and movements of all other 
vehicles across Air Force taxiways, will be controlled by the WAFB 
Control Tower. Civil aircraft activity will coincide with the WAFB 
Control Tower hours of operation. Any additional hours of the WAFB 
Control Tower or other essential airfield management, or operational 
requirements beyond those needed by the Air Force, shall be arranged and 
funded (or reimbursed) by Sponsor. These charges, if any, shall be in 
addition to the annual charge in paragraph 2 and payable not less 
frequently than quarterly.
    e. No civil aircraft may use the flying facilities for training.
    f. Air Force-owned airfield pavements made available for use under 
this Agreement shall be for use on an ``as is, where is'' basis. The Air 
Force will be responsible for snow removal only as required for 
Government mission accomplishment.
    g. Dust or any other erosion or nuisance that is created by, or 
arises out of, activities or operations by civil aircraft authorized use 
of the flying facilities under this Agreement will be corrected by 
Sponsor at no expense to the Air Force, using standard engineering 
methods and procedures.
    h. All phases of planning and construction of new runways and 
primary taxiways on Sponsor property must be coordinated with the WAFB 
Base Civil Engineer. Those intended to be jointly used by Air Force 
aircraft will be designed to support the type of military aircraft 
assigned to or commonly transient through WAFB.

[[Page 76]]

    i. Coordination with the WAFB Base Civil Engineer is required for 
planning and construction of new structures or exterior alteration of 
existing structures that are owned or leased by Sponsor.
    j. Sponsor shall comply with the procedural and substantive 
requirements established by the Air Force, and Federal, State, 
interstate, and local laws, for the flying facilities of WAFB and any 
runway and flight facilities on Sponsor property with respect to the 
control of air and water pollution; noise; hazardous and solid waste 
management and disposal; and hazardous materials management.
    k. Sponsor shall implement civil aircraft noise mitigation plans and 
controls at no expense to and as directed by the Air Force, pursuant to 
the requirements of the WAFB Air Installation Compatible Use Zone 
(AICUZ) study; the FAA part 150 study; and environmental impact 
statements and environmental assessments, including supplements, 
applicable to aircraft operations at WAFB.
    l. Sponsor shall comply, at no expense to the Air Force, with all 
applicable FAA security measures and procedures as described in the 
Airport Security Program for WAFB.
    m. Sponsor shall not post any notices or erect any billboards or 
signs, nor authorize the posting of any notices or the erection of any 
billboards or signs at the airfield of any nature whatsoever, other than 
identification signs attached to buildings, without prior written 
approval from the WAFB Base Civil Engineer.
    n. Sponsor shall neither transfer nor assign this Agreement without 
the prior written consent of the Air Force.

                               2. Payment

    a. For the purpose of reimbursing the Air Force for Sponsor's share 
of the cost of maintaining and operating the flying facilities of WAFB 
as provided in this Agreement, Sponsor shall pay, with respect to civil 
aircraft authorized to use those facilities under this Agreement, the 
sum of (specify sum) annually. Payment shall be made quarterly, in equal 
installments.
    b. All payments due pursuant to this Agreement shall be payable to 
the order of the Treasurer of the United States of America, and shall be 
made to the Accounting and Finance Officer, WAFB, within thirty (30) 
days after each quarter. Quarters are deemed to end on December 31, 
March 31, June 30, and September 30. Payment shall be made promptly when 
due, without any deduction or setoff. Interest at the rate prescribed by 
the Secretary of the Treasury of the United States shall be due and 
payable on any payment required to be made under this Agreement that is 
not paid within ten (10) days after the date on which such payment is 
due and end on the day payment is received by the Air Force.

                               3. Services

    Sponsor shall be responsible for providing services, maintenance, 
and emergency repairs for civil aircraft authorized to use the flying 
facilities of WAFB under this Agreement at no cost to the Air Force. If 
Air Force assistance is required to repair an aircraft, Sponsor shall 
reimburse the Air Force for all expenses of such services. Any required 
reimbursement shall be paid not less frequently than quarterly. These 
charges are in addition to the annual charge specified in paragraph 2.

                   4. Fire Protection and Crash Rescue

    a. The Air Force maintains the level of fire fighting, crash, and 
rescue capability required to support the military mission at WAFB. The 
Air Force agrees to respond to fire, crash, and rescue emergencies 
involving civil aircraft outside the hangars or other structures within 
the limits of its existing capabilities, equipment, and available 
personnel, only at the request of Sponsor, and subject to subparagraphs 
b, c, and d below. Air Force fire fighting, crash, and rescue equipment 
and personnel shall not be routinely located in the airfield movement 
area during nonemergency landings by civil aircraft.
    b. Sponsor shall be responsible for installing, operating, and 
maintaining, at no cost to the Air Force, the equipment and safety 
devices required for all aspects of handling and support for aircraft on 
the ground as specified in the FARs and National Fire Protection 
Association procedures and standards.
    c. Sponsor agrees to release, acquit, and forever discharge the Air 
Force, its officers, agents, and employees from all liability arising 
out of or connected with the use of or failure to supply in individual 
cases, Air Force fire fighting and or crash and rescue equipment or 
personnel for fire control and crash and rescue activities pursuant to 
this Agreement. Sponsor further agrees to indemnify, defend, and hold 
harmless the Air Force, its officers, agents, and employees against any 
and all claims, of whatever description, arising out of or connected 
with such use of, or failure to supply Air Force fire fighting and or 
crash and rescue equipment or personnel.
    d. Sponsor will reimburse the Air Force for expenses incurred by the 
Air Force for fire fighting and or crash and rescue materials expended 
in connection with providing such service to civil aircraft. The Air 
Force may, at its option, with concurrence of the National 
Transportation Safety Board, remove crashed civil aircraft from Air 
Force-owned

[[Page 77]]

pavements or property and shall follow existing Air Force directives and 
or instructions in recovering the cost of such removal.
    e. Failure to comply with the above conditions upon reasonable 
notice to cure or termination of this Agreement under the provisions of 
paragraph 7 may result in termination of fire protection and crash and 
rescue response by the Air Force.
    f. The Air Force commitment to assist Sponsor with fire protection 
shall continue only so long as a fire fighting and crash and rescue 
organization is authorized for military operations at WAFB. The Air 
Force shall have no obligation to maintain or provide a fire fighting, 
and crash and rescue organization or fire fighting and crash and rescue 
equipment; or to provide any increase in fire fighting and crash and 
rescue equipment or personnel; or to conduct training or inspections for 
purposes of assisting Sponsor with fire protection.

                       5. Liability and Insurance

    a. Sponsor will assume all risk of loss and or damage to property or 
injury to or death of persons by reason of civil aviation use of the 
flying facilities of WAFB under this Agreement, including, but not 
limited to, risks connected with the provision of services or goods by 
the Air Force to Sponsor or to any user under this Agreement. Sponsor 
further agrees to indemnify and hold harmless the Air Force against, and 
to defend at Sponsor expense, all claims for loss, damage, injury, or 
death sustained by any individual or corporation or other entity and 
arising out of the use of the flying facilities of WAFB and or the 
provision of services or goods by the Air Force to Sponsor or to any 
user, whether the claims be based in whole, or in part, on the 
negligence or fault of the Air Force or its contractors or any of their 
officers, agents, and employees, or based on any concept of strict or 
absolute liability, or otherwise.
    b. Sponsor will carry a policy of liability and indemnity insurance 
satisfactory to the Air Force, naming the United States of America as an 
additional insured party, to protect the Government against any of the 
aforesaid losses and or liability, in the sum of not less than (specify 
sum) bodily injury and property damage combined for any one accident. 
Sponsor shall provide the Air Force with a certificate of insurance 
evidencing such coverage. A new certificate must be provided on the 
occasion of policy renewal or change in coverage. All policies shall 
provide that: (1) No cancellation, reduction in amount, or material 
change in coverage thereof shall be effective until at least thirty (30) 
days after receipt of notice of such cancellation, reduction, or change 
by the installation commander at WAFB, (2) any losses shall be payable 
notwithstanding any act or failure to act or negligence of Sponsor or 
the Air Force or any other person, and (3) the insurer shall have no 
right of subrogation against the United States.

                          6. Term of Agreement

    This Agreement shall become effective immediately and shall remain 
in force and effect for a term of 25 years, unless otherwise 
renegotiated or terminated under the provisions of paragraph 7, but in 
no event shall the Agreement survive the termination or expiration of 
Sponsor's right to use, by license, lease, or transfer of ownership, of 
the land areas used in connection with joint use of the flying 
facilities of WAFB.

                    7. Renegotiation and Termination

    a. If significant change in circumstances or conditions relevant to 
this Agreement should occur, the Air Force and Sponsor may enter into 
negotiations to revise the provisions of this Agreement, including 
financial and insurance provisions, upon sixty (60) days written notice 
to the other party. Any such revision or modification of this Agreement 
shall require the written mutual agreement and signatures of both 
parties. Unless such agreement is reached, the existing agreement shall 
continue in full force and effect, subject to termination or suspension 
under this section.
    b. Notwithstanding any other provision of this Agreement, the Air 
Force may terminate this Agreement: (1) At any time by the Secretary of 
the Air Force, giving ninety (90) days written notice to Sponsor, 
provided that the Secretary of the Air Force determines, in writing, 
that paramount military necessity requires that joint use be terminated, 
or (2) at any time during any national emergency, present or future, 
declared by the President or the Congress of the United States, or (3) 
in the event that Sponsor ceases operation of the civil activities at 
WAFB for a period of one (1) year, or (4) in the event Sponsor violates 
any of the terms and conditions of this Agreement and continues and 
persists therein for thirty (30) days after written notification to cure 
such violation. In addition to the above rights, the Air Force may at 
any time suspend this agreement if violations of its terms and 
conditions by Sponsor create a significant danger to safety, public 
health, or the environment at WAFB.
    c. The failure of either the Air Force or Sponsor to insist, in any 
one or more instances, upon the strict performance of any of the terms, 
conditions, or provisions of this Agreement shall not be construed as a 
waiver or relinquishment of the right to the future performance of any 
such terms, conditions, or provisions. No provision of this Agreement 
shall be deemed to have been waived by either party unless such waiver 
be in writing signed by such party.

[[Page 78]]

                               8. Notices

    a. No notice, order, direction, determination, requirement, consent, 
or approval under this Agreement shall be of any effect unless it is in 
writing and addressed as provided herein.
    b. Written communication to Sponsor shall be delivered or mailed to 
Sponsor addressed: The Sponsor, 9000 Airport Blvd, USA.
    c. Written communication to the Air Force shall be delivered or 
mailed to the Air Force addressed: Commander, WAFB, USA.

                    9. Other Agreements not Affected

    This Agreement does not affect the WAFB-Sponsor Fire Mutual Aid 
Agreement.
    IN WITNESS WHEREOF, the respective duly authorized representatives 
of the parties hereto have executed this Agreement on the date set forth 
below opposite their respective signatures.

UNITED STATES AIR FORCE
Date:___________________________________________________________________

By:_____________________________________________________________________
Deputy Assistant Secretary of the Air Force (Installations)

Date:___________________________________________________________________

By:_____________________________________________________________________
Sponsor Representative



        Sec. Attachment 5 to Part 855--Sample Temporary Agreement

Letter of Agreement for Temporary Civil Aircraft Operations at Warbucks 
                                AFB, USA

    This letter of agreement establishes policies, responsibilities, and 
procedures for commercial air carrier operations at Warbucks AFB, USA, 
(WAFB) for the period (date) through (date) Military requirements will 
take precedence over civil aircraft operations. Should a conflict arise 
between air carrier and Air Force operational procedures, Air Force 
procedures will apply.

                            Authorized Users

    The following air carriers are authorized use, provided they have a 
civil aircraft landing permit approved at HQ USAF/XOOBC for such use:

Flyaway Airlines
Recreation Airlines
Economy Airlines
PacAir Transport

                                Schedules

    The Bunker International Airport (BIA) manager or air carrier 
station managers will ensure that the WAFB Airfield Manager is provided 
current airline schedules during the approved period of use. Every 
effort will be made to avoid disruption of the air carriers' schedules; 
however, it is understood that the installation commander will suspend 
or change flight plans when required to preclude interference with 
military activities or operations.

                     Passenger and Luggage Handling

    The BIA terminal will be used for passenger loading and unloading. 
Security checks will be performed at the terminal before loading 
passengers on buses. Luggage on arriving aircraft will be directly 
offloaded onto vehicles and delivered to the BIA terminal. Each arriving 
and departing bus or vehicle caravan will be accompanied by a 
credentialed representative of the airline or BIA to ensure its 
integrity enroute. Buses or vehicles transporting passengers to board an 
aircraft will not depart WAFB until the passengers are airborne. Unless 
an emergency exists, arriving passengers will not deplane until the 
buses are available for transportation to the BIA terminal. All checked 
luggage will be picked up at BIA and delivered directly to the departing 
aircraft. Buses will proceed directly to the aircraft at WAFB alert 
ramp. Luggage on arriving aircraft will be directly offloaded onto a 
vehicle parked on the WAFB alert ramp. WAFB will be notified, in 
advance, if a local funeral home requires access for pickup or delivery 
of deceased persons.

             Aircraft Handling and Ground Support Equipment

    Air Force-owned fuel will not be provided. The air carriers will 
provide their own ground support equipment. Refueling equipment from BIA 
will be prepositioned at WAFB on the alert ramp. The Air Force shall not 
be responsible for any damage or loss to such equipment, and BIA 
expressly assumes all risks of any such loss or damage and agrees to 
indemnify and hold the United States harmless against any such damage or 
loss. No routine aircraft maintenance will be accomplished at WAFB. 
Emergency repairs and or maintenance are only authorized to avoid 
extended parking and storage of civil aircraft at WAFB.

                          Customs and Security

    The installation commander will exercise administrative and security 
control over both the aircraft and passengers on WAFB. Customs officials 
will be transported to and from the base by air carrier representatives. 
The installation commander will cooperate with customer, health, and 
other public officials to expedite arrival and departure of the 
aircraft. Air carrier representatives will notify the WAFB Airfield 
Manager, in advance, of armed security or law enforcement officers 
arriving or departing on a flight. BIA officials and air carrier 
representatives must provide the WAFB Airfield Manager a list of 
employees, contractors, and vehicles requiring flightline access. 
Temporary passes will

[[Page 79]]

be issued to authorized individuals and vehicles.

                    Fire, Crash, and Rescue Services

    BIA will provide technical information and training for WAFB Fire 
Department personnel prior to (date) . Fire, Crash, and Rescue Services 
will be provided in an emergency, but fire trucks will not routinely 
park on the flightline for aircraft arrivals and departures. BIA will 
reimburse WAFB for all such services.

                      Liability and Indemnification

    The Air Force shall not be responsible for damages to property or 
injuries to persons which may arise from or be incident to the use of 
WAFB by BIA under this Agreement, or for damages to the property of BIA 
or injuries to the person of BIA's officers, agents, servants, 
employees, or invitees. BIA agrees to assume all risks of loss or damage 
to property and injury or death to persons by reason of or incident to 
the use of WAFB under this Agreement and expressly waives any and all 
claims against the United States for any such loss, damage, personal 
injury, or death caused by or occurring as a consequence of such use. 
BIA further agrees to indemnify, save, and hold the United States, its 
officers, agents, and employees harmless from and against all claims, 
demands, or actions, liabilities, judgments, costs, and attorneys fees, 
arising out of, claimed on account of, or in any manner predicated upon 
personal injury, death or property damage resulting from, related to, 
caused by, or arising out of the use of WAFB under this Agreement.

                                  Fees

    Landing and parking fees will be charged in accordance with to AFI 
10-1001, Civil Aircraft Landing Permits. Charges will be made in 
accordance with the appropriate Air Force Instructions for any services 
or supplies required from WAFB. The WAFB Airfield Manager will be 
responsible for consolidating all charges which will be billed to BIA 
not later than (date) by the Accounting and Finance Office.
    IN WITNESS WHEREOF, the respective duly authorized representatives 
of the parties hereto have executed this Agreement on the date set forth 
below opposite their respective signatures.
________________________________________________________________________
BIA Representative (Name and Title)

DATE____________________________________________________________________

________________________________________________________________________
WAFB Representative (Name and Title)

DATE____________________________________________________________________



PART 861_DEPARTMENT OF DEFENSE COMMERCIAL AIR TRANSPORTATION QUALITY AND
SAFETY REVIEW PROGRAM--Table of Contents



Sec.
861.1 References.
861.2 Purpose.
861.3 Definitions.
861.4 DOD air transportation quality and safety requirements.
861.5 DOD Commercial Airlift Review Board procedures.
861.6 DOD review of foreign air carriers.
861.7 Disclosure of voluntarily provided safety-related information.

    Authority: 10 U.S.C. 2640, 8013.

    Source: 67 FR 65698, Oct. 28, 2002, unless otherwise noted.



Sec.  861.1  References.

    The following references apply to this part:
    (a) 10 U.S.C. 2640, Charter Air Transportation of Members of the 
Armed Forces.
    (b) Department of Defense Directive 4500.53, Department of Defense 
Commercial Air Transportation Quality and Safety Review Program.



Sec.  861.2  Purpose.

    Department of Defense Directive 4500.53, Department of Defense 
Commercial Air Transportation Quality and Safety Review Program, charges 
the Commander-in-Chief (CINC), United States Transportation Command 
(USTRANSCOM), with ensuring the establishment of safety requirements and 
criteria for evaluating civil air carriers and operators (hereinafter 
collectively referred to as ``air carriers'') providing air 
transportation and operational support services to the Department of 
Defense (DOD). It also charges the CINC with ensuring the establishment 
of a Commercial Airlift Review Board (CARB) and providing policy 
guidance and direction for its operation. This part establishes DOD 
quality and safety criteria for air carriers providing or seeking to 
provide air transportation and, at the discretion of the CARB or higher 
authority, operational support services to the DOD. This part also 
includes the operating procedures of the CARB. The CARB has the 
authority to suspend air carriers from DOD use or

[[Page 80]]

take other actions when issues of air carrier quality and air safety 
arise.



Sec.  861.3  Definitions.

    (a) Air carrier. Individuals or entities that operate commercial 
fixed and rotary wing aircraft in accordance with the Federal Aviation 
Regulations (14 CFR Chapter I) or equivalent regulations issued by a 
country's Civil Aviation Authority (CAA) and which provide air 
transportation or operational support services. Commercial air carriers 
under contract with, or operating on behalf of the DOD shall have a FAA 
or CAA certificate.
    (b) Air transportation services. The transport of DOD personnel or 
cargo by fixed or rotary wing commercial aircraft, where such services 
are acquired primarily for the transportation of DOD personnel and 
cargo, through donation or any form of contract, tender, blanket 
ordering agreement, Government charge card, Government or commercial 
transportation request (TR), bill of lading, or similar instruments. Air 
transportation services also include medical evacuation services, 
paratrooper drops, and charter airlift and group travel arranged by the 
Military Service Academies, foreign military sales, nonappropriated fund 
instrumentalities by other DOD and non-DOD activities for DOD personnel. 
All air carriers providing air transportation services to DOD must have 
a FAA or CAA certificate. The policy contained in this Directive shall 
not apply to individually procured, discretionary air travel, such as 
that associated with military leave or pass.
    (c) Civil Aviation Authority (CAA). The CAA refers to the 
organization within a country that has the authority and responsibility 
to regulate civil aviation. The term CAA is used throughout this part 
since these requirements are applicable to both U.S. and foreign 
carriers doing business with DOD. The term CAA thus includes the U.S. 
Federal Aviation Administration (FAA).
    (d) Code sharing. Code sharing is a marketing arrangement in which 
an air carrier places its designator code on a flight operated by 
another air carrier and sells tickets for that flight.
    (e) DOD approval. DOD approval in the context of this part refers to 
the process by which air carriers seeking to provide passenger or cargo 
airlift services (hereinafter referred to as air transportation 
services) to the DOD must be screened and evaluated by the DOD Air 
Carrier Survey and Analysis Office or other entity authorized by the 
CARB, and approved for DOD use by the CARB. Once initial approval is 
obtained, a DOD approved air carrier must remain in an approved status 
to be eligible for DOD business. Although not generally required, the 
CARB or higher authority may, on a case-by-case basis, require DOD 
approval of air carriers providing operational support services to DOD.
    (f) DOD air carrier safety and quality review process. Includes four 
possible levels of review with increasing authority. The 
responsibilities of each are described in more detail in the reference 
in Sec.  861.1 (b). These levels consist of the:
    (1) DOD Air Carrier Survey and Analysis Office;
    (2) DOD Commercial Airlift Review Board (CARB);
    (3) Commander-in-Chief, U.S. Transportation Command, or USCINCTRANS; 
and
    (4) Secretary of Defense. (Note: A DOD-level body, the Commercial 
Airlift Review Authority, or CARA, provides advice and recommendations 
to the Secretary of Defense.)
    (g) Federal Aviation Administration (FAA) International Safety 
Assessment (IASA) program and categories. The FAA IASA program assesses 
the ability of a foreign country's CAA to adhere to international 
standards established by the United Nation's technical agency for 
aviation, the International Civil Aviation Organization (ICAO). The FAA 
has established ratings for the status of countries as follows:
    (1) Category 1--Does comply with ICAO standards. A country's CAA has 
been found to license and oversee air carriers in accordance with ICAO 
aviation safety standards.
    (2) Category 2--Does not comply with ICAO standards. A country's CAA 
does not meet ICAO standards for aviation oversight. Operations to the 
U.S. by a carrier from a Category 2 country are limited to those in 
effect at the time a country is classified as Category 2 and

[[Page 81]]

are subjected to heightened FAA surveillance. Expansion or changes in 
services to the U.S. are not permitted while a country is in Category 2 
status unless the carrier arranges to have new services conducted by an 
air carrier from a Category 1 country. Category 2 countries that do not 
have operations to the U.S. at the time of the FAA assessment are not 
permitted to commence such operations unless it arranges to have its 
flights conducted by an air carrier from a Category 1 country.
    (3) Non-rated. A country's CAA is labeled ``non-rated'' if it has 
not been assessed by the FAA.
    (h) GSA City Pair Program. A program managed by the General Services 
Administration in which U.S. air carriers compete for annual contracts 
awarding U.S. Government business for specific domestic and 
international scheduled service city pair routes.
    (i) Group travel. Twenty-one or more passengers on orders from the 
same organization traveling on the same date to the same destination to 
attend the same function.
    (j) Letter of Warning. A notice to a DOD approved air carrier of a 
failure to satisfy safety or airworthiness requirements which, if not 
remedied, may result in temporary nonuse or suspension of the air 
carrier by the DOD. Issuance of a Letter of Warning is not a 
prerequisite to a suspension or other action by the CARB or higher DOD 
authority.
    (k) On-site Capability Survey. The most comprehensive evaluation 
performed by DOD's Air Carrier Survey and Analysis Office. Successful 
completion of this evaluation is required of most air carriers before 
they may be approved to provide air transportation services to DOD. Once 
approved, air carriers are subject to periodic On-site Capability 
Surveys, as specified at Enclosure 3 in the reference in Sec.  861.1(b).
    (l) Operational support services. Missions performed by air carriers 
that use fixed or rotary-winged aircraft to provide services other than 
air transportation services as defined in paragraph (b) of this section. 
Examples include, but are not limited to, range instrumentation and 
services, target-towing, sling loads, and electronic countermeasures 
target flights. Air carriers providing only operational support services 
do not require advance DOD approval and are not subject to the initial 
or periodic on-site survey requirements under this part, unless directed 
by the CARB or higher authority. All air carriers providing operational 
support services to DOD must have a FAA or CAA certificate and are 
required to maintain applicable FAA or CAA standards absent deviation 
authority obtained pursuant to 14 CFR 119.55 or similar CAA rules.
    (m) Performance assessments. Reviews conducted by U.S. air carriers 
when evaluating foreign air carriers with which they have code share 
arrangements, using performance-based factors. Such assessments include 
reviewing a variety of air carrier data including history, safety, 
scope/size, financial condition, equipment, flight operations and 
airworthiness issues.
    (n) Performance evaluations. Reviews conducted by DOD as directed in 
the references in Sec.  861.1(a) and (b). These evaluations include a 
review of air carrier flight operations, maintenance departments, safety 
programs and other air carrier areas as necessary. Performance 
evaluations are not conducted on-site, but rely on information collected 
primarily from the FAA and the National Transportation Safety Board 
(NTSB).
    (o) Preflight safety inspection. A visual safety inspection of the 
interior and exterior of an air carrier's aircraft performed by DOD 
personnel in accordance with the references in Sec.  861.1(a) and (b).
    (p) Suspension. The exclusion of an air carrier from providing 
services to the DOD. The period of suspension will normally:
    (1) Remain in effect until the air carrier furnishes satisfactory 
evidence that the conditions causing the suspension have been remedied 
and has been reinstated by the CARB, or;
    (2) Be for a fixed period of time as determined at the discretion of 
the CARB.
    (q) Temporary nonuse. The immediate exclusion of a DOD approved air 
carrier from providing services to the DOD pending a decision on 
suspension. Normally, temporary nonuse will be for a

[[Page 82]]

period of 30 days or less. However, by mutual agreement of the CARB and 
the air carrier involved, a suspension hearing or decision may be 
delayed and the air carrier continued in a temporary nonuse status for 
an extended period of time.
    (r) Voluntarily provided safety-related information. Information 
which consists of nonfactual safety-related data, reports, statements, 
and other information provided to DOD by an air carrier at any point in 
the evaluation process described in this Part. It does not include 
factual safety-related information, such as statistics, maintenance 
reports, training records, flight planning information, and the like.



Sec.  861.4  DOD air transportation quality and safety requirements.

    (a) General. The DOD, as a customer of air transportation and 
operational support services, expects air carriers used by DOD to employ 
programs and business practices that not only ensure good service but 
also enhance the safety, operational, and maintenance standards 
established by applicable Civil Aviation Authority (CAA) regulations. 
Accordingly, and as required by the references in Sec.  861.1 (a) and 
(b), the DOD has established a set of quality and safety criteria and 
requirements that reflect the type programs and practices DOD seeks from 
air carriers providing services to DOD. Air carriers must meet and 
maintain these requirements in order to be eligible for DOD business. 
Air carriers providing air transportation services to DOD either 
directly by contract or agreement, or indirectly through the General 
Services Administration (GSA) City Pair Program or some other 
arrangement, must be approved by DOD prior to providing such services 
and remain in an approved status throughout the contract, agreement, or 
arrangement performance period. This approval entails successful 
completion of initial and recurring on-site surveys as well as periodic 
performance evaluations in accordance with the reference in Sec.  
861.1(b). The quality and safety criteria and requirements set forth in 
this part complement rather than replace the CAA criteria applicable to 
air carriers. Air carriers normally remain fully subject to applicable 
CAA regulations (CARs) while performing business for the DOD, even when 
the aircraft involved is used exclusively for DOD missions. The 
inspection and oversight criteria set forth in this part do not, as a 
general rule, apply to air carriers providing only operational support 
services to DOD. However, in the event concerns relating to the safety 
of such a carrier arise, the CARB or higher authority may, on a case-by-
case basis, direct an appropriate level of oversight under the authority 
of this part.
    (b) Applicability. (1) The evaluation, quality and safety criteria 
and requirements set forth in this part apply to air carriers providing 
or seeking to provide air transportation services to DOD.
    (2) Foreign air carriers performing portions of GSA City Pair routes 
awarded to U.S. air carriers under a code-sharing arrangement, as well 
as foreign air carriers providing individually-ticketed passenger 
service to DOD personnel traveling on official business, may be subject 
to limited oversight and review pursuant to Sec.  861.6.
    (3) The inspection and oversight requirements, as well as the 
quality and safety criteria of this part may, on a case-by-case basis 
and at the discretion of the CARB or higher authority, be applied to air 
carriers seeking to provide or providing operational support services as 
defined in Sec.  861.3(l).
    (4) The inspection and oversight requirements of this part do not 
apply to aircraft engaged in medical transport services if procured 
under emergency conditions to save life, limb or eyesight. Likewise, the 
inspection and oversight requirements of this part are not applicable 
when DOD is not involved in the procurement of the medical 
transportation services. For example, when specific medical treatment is 
obtained on an individual basis by or for DOD personnel with medical 
transportation provided, as needed, at the direction of the non-DOD 
medical care giver. This includes situations where DOD, through TRICARE 
or otherwise, pays for such transportation as part of the costs of 
medical services provided.
    (c) Scope and nature of the evaluation program--(1) Evaluation 
requirement.

[[Page 83]]

The provision of air transportation services under a contract or 
agreement with or on behalf of DOD, requires the successful completion 
of an initial on-site survey and approval by the CARB under this part in 
order to be eligible for DOD business. In addition, U.S. air carriers 
awarded contracts under the GSA City Pair Program, including those that 
perform part of the contract under a code-sharing arrangement with the 
U.S. air carrier awarded the contract, must successfully complete an 
initial on-site survey and be approved by the CARB for DOD use under 
this part prior to beginning performance of the GSA contract. Once 
approved by DOD, air carriers providing air transportation services are 
subject to recurring on-site surveys and performance evaluations and 
assessments throughout the duration of the relevant contract or 
agreement. The frequency and scope of these surveys and performance 
reviews will be in accordance with Enclosure 3 of the reference in Sec.  
861.1(b).
    (2) Office of primary responsibility. Evaluations are performed by 
the DOD Air Carrier Survey and Analysis Office located at Scott Air 
Force Base, Illinois. The mailing address of this office is HQ AMC/DOB, 
402 Scott Drive Unit 3A1, Scott AFB IL 62225-5302. The website address 
is https://public.scott.af.mil/hqamc/dob/index.htm.
    (3) Items considered in the evaluation process. The specifics of the 
applicable DOD contract or agreement (if any), the applicable CAA 
regulations, and the experienced judgment of DOD personnel will be used 
to evaluate an air carrier's capability to perform services for DOD. The 
survey may also include, with the air carrier's coordination, 
observation of cockpit crew performance, as well as ramp inspections of 
selected company aircraft. In the case of air carriers seeking to 
provide air transportation services, after satisfactory completion of 
the initial survey and approval by the CARB as a DOD air carrier, 
follow-up surveys will be conducted on a recurring basis and when 
otherwise required to validate adherence to DOD quality and safety 
requirements. DOD personnel will also assess these quality and safety 
requirements when conducting periodic air carrier performance 
evaluations. The size of an air carrier, along with the type and scope 
of operations will be considered during the on-site survey. For example, 
while an air taxi operator may not have a formal flight control 
function, such as a 24-hour dispatch organization, that same air taxi 
operator is expected to demonstrate some type of effective flight 
following capability. On the other hand, a major air carrier is expected 
to have a formal flight control or dispatch function. Both, however, 
will be evaluated based on the effectiveness and quality of whatever 
flight following function they do maintain. In the case of air carriers 
seeking to provide operational support services, the type, scope and 
frequency of evaluation, if any, performed by DOD or other entity will 
be as directed by the CARB or higher authority.
    (d) Status of aircraft performing services for DOD. All air carriers 
providing air transportation or operational support services to the DOD 
shall have FAA or CAA air carrier or commercial operator certificates 
and shall remain under FAA and/or CAA regulatory and safety oversight 
during performance of the DOD mission. Aircraft performing services for 
or on behalf of DOD shall be on the air carrier's operating certificate, 
and remain on that certificate while performing the DOD mission. The 
installation of any special equipment needed to perform services for DOD 
shall be FAA or CAA approved or an appropriate FAA or CAA waiver 
obtained.
    (e) Evaluation requirements. The air carrier requirements stated in 
this part provide the criteria against which would-be DOD and GSA City 
Pair Program air carrier contractors, as well as air carriers providing 
services on behalf of DOD, may be subjectively evaluated by DOD. These 
requirements are neither all-inclusive nor inflexible in nature. They 
are not replacements for the certification criteria and other 
regulations established by the CAA. Rather, these requirements 
complement CAA certification criteria and regulations and describe the 
enhanced level of service required by DOD. The relative weight accorded 
these requirements in a given case, as well as the determination of 
whether an air carrier meets or exceeds them, is a matter

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within the sole discretion of the DOD Air Carrier Survey and Analysis 
Office and the CARB, subject to the statutory minimums provided in the 
reference in Sec.  861.1(a).
    (1) Quality and safety requirements--prior experience. U.S. and 
foreign air carriers applying for DOD approval in order to conduct air 
transportation services for or on behalf of DOD under a contract or 
agreement with DOD, the GSA City Pair Program, or by some other 
arrangement are required to possess 12 months of continuous service 
equivalent to the service sought by DOD. In applying this requirement, 
the following guidance will be used by DOD authorities:
    (i) ``12 months'' refers to the 12 calendar months immediately 
preceding the request for DOD approval.
    (ii) ``Continuous'' service means the carrier must have performed 
revenue-generating services of the nature for which DOD approval is 
sought, as an FAA part 121, 125, 127, or 135 (14 CFR 121, 125, 127, or 
135) air carrier (or foreign CAA equivalent if appropriate) on a 
recurring, substantially uninterrupted basis. The services must have 
occurred with such frequency and regularity as to clearly demonstrate 
the carrier's ability to perform and support sustained, safe, reliable, 
and regular services of the type DOD is seeking. Weekly flight activity 
is normally considered continuous, while sporadic or seasonal operations 
(if such operations are the only operations conducted by the carrier) 
may not suffice to establish a carrier's ability to perform and support 
services in the sustained, safe, reliable, and regular manner required 
by DOD. The ability of a carrier to perform services of the type sought 
by DOD may be called into question if there have been lengthy periods of 
time during the qualifying period in which the carrier has not operated 
such services. Consequently, any cessation, or nonperformance of the 
type of service for which approval is sought may, if it exceeds 30 days 
in length during the qualifying period and depending on the underlying 
factual circumstances, necessitate ``restarting'' the 12-month 
continuous service period needed to obtain DOD approval.
    (iii) ``Equivalent to the services sought by DOD'' means service 
offered to qualify for DOD approval must be substantially equivalent to 
the type of service sought by DOD. The prior experience must be 
equivalent in difficulty and complexity with regard to the distances 
flown, weather systems encountered, international and national 
procedures, the same or similar aircraft, schedule demands, aircrew 
experience, number of passengers handled, frequency of operations, and 
management required. There is not a set formula for determining whether 
a particular type of service qualifies. The performance of cargo 
services is not considered to be ``substantially equivalent'' to the 
performance of passenger services, and may not be used to meet the 12 
continuous months requirement for passenger services. However, when a 
carrier already providing cargo services to DOD applies to carry 
passengers, the CARB may consider the carrier's cargo performance and 
experience in assessing whether a carrier is qualified to carry 
passengers on a specific type or category of aircraft, over certain 
routes or stage lengths, or under differing air traffic control, 
weather, or other conditions. The following examples are illustrative 
and not intended to reflect or predict CARB action in any given case:

    Example 1: Coyote Air has operated commercial passenger commuter 
operations in the U.S. for a number of years flying a variety of twin-
engine turboprop aircraft. They have also been a DOD-approved cargo 
carrier, providing international cargo services using DC-10 freighter 
aircraft. Coyote Air purchases a passenger version DC-10, and seeks DOD 
approval to provide international passenger service for DOD. The CARB 
may decide that although Coyote Air has provided passenger services for 
12 continuous months, those services are not substantially equivalent to 
those being sought by DOD. While the carrier may have considerable 
operational experience with the DC-10, its commuter passenger operations 
are not substantially equivalent to the service now proposed--
international passenger services on large jet aircraft.
    Example 2: Acme Air has been a DOD-approved cargo carrier for 
several years, operating domestic and international missions with MD-11 
freighter aircraft. At the same time, Acme has been performing 
commercial international passenger services with B-757

[[Page 85]]

aircraft. Acme Air purchases a MD-11 passenger aircraft and applies to 
perform passenger services for DOD using the MD-11. Assuming Acme has 
performed B-757 passenger service for 12 continuous months immediately 
preceding its application, the CARB may consider these passenger 
services substantially equivalent to those proposed since both involve 
the operation of large multi-engine aircraft in an international 
environment. The CARB may also consider Acme's operational history with 
its MD-11 freighter aircraft in determining whether the carrier is 
competent to provide MD-11 passenger service in the same environment.

    (iv) Once approved by DOD, an air carrier's failure to maintain 
continuous operations of the type for which approval has been granted 
may, at the discretion of the CARB, be grounds for nonuse or suspension 
under this part, rendering the carrier ineligible for DOD business 
during the nonuse or suspension period. Any cessation or nonperformance 
of the type of service for which approval has been obtained may, if it 
exceeds 30 days in length and depending on the circumstances, provide 
the basis for the CARB to take appropriate action.
    (2) Quality and safety requirements--air carrier management. 
Management has clearly defined safety as the number one company 
priority, and safety is never sacrificed to satisfy passenger concern, 
convenience, or cost. Policies, procedures, and goals that enhance the 
CAA's minimum operations and maintenance standards have been established 
and implemented. A cooperative response to CAA inspections, critiques, 
or comments is demonstrated. Proper support infrastructure, including 
facilities, equipment, parts, and qualified personnel, is provided at 
the certificate holder's primary facility and en route stations. 
Personnel with aviation credentials and experience fill key management 
positions. An internal quality audit program or other method capable of 
identifying in-house deficiencies and measuring the company's compliance 
with their stated policies and standards has been implemented. Audit 
results are analyzed in order to determine the cause, not just the 
symptom, of any deficiency. The result of sound fiscal policy is evident 
throughout the company. Foreign code-sharing air carrier partners are 
audited at least every two years using DOD-approved criteria and any 
findings resolved. Comprehensive disaster response plans and, where 
applicable, family support plans, must be in place and exercised on a 
regular basis.
    (3) Quality and safety requirements--operations--(i) Flight safety. 
Established policies that promote flight safety. These policies are 
infused among all aircrew and operational personnel who translate the 
policies into practice. New or revised safety-related data are promptly 
disseminated to affected personnel who understand that deviation from 
any established safety policy is unacceptable. An audit system that 
detects unsafe practices is in place and a feedback structure informs 
management of safety policy results including possible safety problems. 
Management ensures that corrective actions resolve every unsafe 
condition.
    (ii) Flight operations. Established flight operations policies and 
procedures are up-to-date, reflect the current scope of operations, and 
are clearly defined to aviation department employees. These adhered-to 
procedures are further supported by a flow of current, management-
generated safety and operational communications. Managers are in touch 
with mission requirements, supervise crew selection, and ensure the risk 
associated with all flight operations is reduced to the lowest 
acceptable level. Flight crews are free from undue management pressure 
and are comfortable with exercising their professional judgment during 
flight activities, even if such actions do not support the flight 
schedule. Effective lines of communication permit feedback from line 
crews to operations managers. Personnel records are maintained and 
reflect such data as experience, qualifications, and medical status.
    (iii) Flight crew hiring. Established procedures ensure that 
applicants are carefully screened, including a review of the 
individual's health and suitability to perform flight crew duties. 
Consideration is given to the applicant's total aviation background, 
appropriate experience, and the individual's potential to perform 
safely. Freedom from alcohol abuse and illegal drugs is required. If 
new-hire cockpit

[[Page 86]]

crewmembers do not meet industry standards for experience and 
qualification, then increased training and management attention to 
properly qualify these personnel are required.
    (iv) Aircrew training. Training, including recurrent training, which 
develops and refines skills designed to eliminate mishaps and improve 
safety, is essential to a quality operation. Crew coordination training 
that facilitates full cockpit crews training and full crew interaction 
using standardized procedures and including the principles of Crew 
Resource Management (CRM) is required. Programs involving the use of 
simulators or other devices that can provide realistic training 
scenarios are desired. Captain and First Officer training objectives 
cultivate similar levels of proficiency. Appropriate emergency 
procedures training (e.g., evacuation procedures) is provided to flight 
deck and flight attendant personnel as a total crew whenever possible; 
such training focuses on cockpit and cabin crews functioning as a 
coordinated team during emergencies. Crew training--be it pilot, 
engineer, or flight attendant--is appropriate to the level of risk and 
circumstances anticipated for the trainee. Training programs have the 
flexibility to incorporate and resolve recurring problem areas 
associated with day-to-day flight operations. Aeromedical crews must 
also be trained in handling the specific needs of the categories of 
patients normally accepted for transportation on the equipment to be 
used. Trainers are highly skilled in both subject matter and training 
techniques. Training received is documented, and that documentation is 
maintained in a current status.
    (v) Captain upgrade training. A selection and training process that 
considers proven experience, decision making, crew resource management, 
and response to unusual situations, including stress and pressure, is 
required. Also important is emphasis on captain responsibility and 
authority.
    (vi) Aircrew scheduling. A closely monitored system that evaluates 
operational risks, experience levels of crewmembers, and ensures the 
proper pairing of aircrews on all flights is required. New captains are 
scheduled with highly experienced first officers, and new or low-time 
first officers are scheduled with experienced captains. Except for 
aircraft new to the company, captains and first officers assigned to DOD 
charter passenger missions possess at least 250 hours combined 
experience in the type aircraft being operated. The scheduling system 
involves an established flight duty time program for aircrews, including 
flight attendants, carefully managed so as to ensure proper crew rest 
and considers quality-of-life factors. Attention is given to the stress 
on aircrews during strikes, mergers, or periods of labor-management 
difficulties.
    (vii) In-flight performance. Aircrews, including flight attendants 
and flight medical personnel, are fit for flight duties and trained to 
handle normal, abnormal, and emergency situations. They demonstrate crew 
discipline and a knowledge of aviation rules; use company-developed 
standardized procedures; adhere to checklists; and emphasize safety, 
including security considerations, throughout all preflight, in-flight, 
and postflight operations. Qualified company personnel evaluate aircrews 
and analyze results; known performance deficiencies are eliminated. 
Evaluations ensure aircrews demonstrate aircraft proficiency in 
accordance with company established standards. Flight crews are able to 
determine an aircraft's maintenance condition prior to flight and use 
standardized methods to accurately report aircraft deficiencies to the 
maintenance activity.
    (viii) Operational control/support. Effective mission control 
includes communications with aircrews and the capability to respond to 
irregularities or difficulties. Clear written procedures for mission 
preparation and flight following aircraft and aircrews are provided. 
There is access to weather, flight planning, and aircraft maintenance 
data. There are personnel available who are knowledgeable in aircraft 
performance and mission requirements and that can correctly respond to 
emergency situations. There is close interface between operations and 
maintenance, ensuring a mutual awareness of aircraft operational and 
maintenance status. Procedures to notify

[[Page 87]]

DOD in case of an accident or serious incident have been established. 
Flight crews involved in such accidents or incidents report the 
situation to company personnel who, in turn, have procedures to evaluate 
the flight crew's capability to continue the mission. Aircraft involved 
in accidents or incidents are inspected in accordance with Civil 
Aviation Regulations and a determination made as to whether or not the 
aircraft is safe for continued operations.
    (ix) DOD charter procedures. Detailed procedures addressing military 
charter requirements are expected. The level of risk associated with DOD 
charter missions does not exceed the risks inherent in the carrier's 
non-DOD daily flight operations. Complete route planning and airport 
analyses are accomplished, and actual passenger and cargo weights are 
used in computing aircraft weight and balance.
    (4) Quality and safety requirements--maintenance. Maintenance 
supervisors ensure all personnel understand that in spite of scheduling 
pressure, peer pressure, supervisory pressure, or other factors, the 
airplane must be airworthy prior to flight. Passenger and employee 
safety is a paramount management concern. Quality, completeness, and 
integrity of work are trademarks of the maintenance manager and 
maintenance department. Nonconformance to established maintenance 
practices is not tolerated. Management ensures that contracted 
maintenance, including repair and overhaul facilities, is performed by 
maintenance organizations acceptable to the CAA.
    (i) Maintenance personnel. Air carriers are expected to hire and 
train the number of employees required to safely maintain the company 
aircraft and support the scope of the maintenance operations both at 
home station (the company's primary facility) and at en route locations. 
These personnel ensure that all maintenance tasks, including required 
inspections and airworthiness directives, are performed; that 
maintenance actions are properly documented; and that the discrepancies 
identified between inspections are corrected. Mechanics are fit for 
duty, properly certificated, the company verifies certification, and 
these personnel possess the knowledge and the necessary aircraft-
specific experience to accomplish the maintenance tasks. Noncertified 
and inexperienced personnel received proper supervision. Freedom from 
alcohol abuse and illegal drugs is required.
    (ii) Quality assurance. A system that continuously analyzes the 
performance and effectiveness of maintenance activities and maintenance 
inspection programs is required. This system evaluates such functions as 
reliability reports, audits, component tear-down reports, inspection 
procedures and results, tool calibration program, real-time aircraft 
maintenance actions, warranty programs, and other maintenance functions. 
The extent of this program is directly related to the air carrier's size 
and scope of operation. The cause of any recurring discrepancy or 
negative trend is researched and eliminated. Action is taken to prevent 
recurrence of these discrepancies and preventive actions are monitored 
to ensure effectiveness. The results of preventive actions are provided 
to appropriate maintenance technicians.
    (iii) Maintenance inspection activity. A process to ensure required 
aircraft inspections are completed and the results properly documented 
is required. Also required is a system to evaluate contract vendors, 
suppliers, and their products. Inspection personnel are identified, 
trained (initial and recurrent), and provided guidance regarding 
inspector responsibility and authority. The inspection activity is 
normally a separate entity within the maintenance department.
    (iv) Maintenance training. Training is conducted commensurate with 
the size and type of maintenance function being performed. Continuing 
education and progressive experience are provided for all maintenance 
personnel. Orientation, familiarization, on-the-job, and appropriate 
recurrent training for all full and part-time personnel are expected. 
The use of such training aids as mockups, simulators, and computer-based 
training enhances maintenance training efforts and is desired. Training 
documentation is required; it is current, complete, well maintained, and

[[Page 88]]

correctly identifies any special authorization such as inspection and 
airworthiness release. Trainers are fully qualified in the subject 
manner.
    (v) Maintenance control. A method to control maintenance activities 
and track aircraft status is required. Qualified personnel monitor 
maintenance preplanning, ensure completion of maintenance actions, and 
track deferred discrepancies. Deferred maintenance actions are 
identified to supervisory personnel and corrected in accordance with the 
criteria provided by the manufacturer or regulatory agency. Constant and 
effective communications between maintenance and flight operations 
ensure an exchange of critical information.
    (vi) Aircraft maintenance program. Aircraft are properly certified 
and maintained in a manner that ensures they are airworthy and safe. The 
program includes the use of manufacturer's and CAA information, as well 
as company policies and procedures. Airworthiness directives are 
complied with in the prescribed time frame, and service bulletins are 
evaluated for applicable action. Approved reliability programs are 
proactive, providing management with visibly on the effectiveness of the 
maintenance program; attention is given to initial component and older 
aircraft inspection intervals and to deferred maintenance actions. 
Special tools and equipment are calibrated.
    (vii) Maintenance records. Maintenance actions are well documented 
and provide a complete record of maintenance accomplished and, for 
repetitive actions, maintenance required. Such records as aircraft log 
books and maintenance documentation are legible, dated, clean, readily 
identifiable, and maintained in an orderly fashion. Inspection 
compliance, airworthiness release, and maintenance release records, 
etc., are completed and signed by approved personnel.
    (viii) Aircraft appearance. Aircraft exteriors, including all 
visible surfaces and components, are clean and well maintained. 
Interiors are also clean and orderly. Required safety equipment and 
systems are available and operable.
    (ix) Fueling and servicing. Aircraft fuel is free from 
contamination, and company fuel facilities (farms) are inspected and 
results documented. Procedures and instructions pertaining to servicing, 
handling, and storing fuel and oil meet established safety standards. 
Procedures for monitoring and verifying vendor servicing practices are 
included in this program.
    (x) Maintenance manuals. Company policy manuals and manufacturer's 
maintenance manuals are current, available, clear, complete, and adhered 
to by maintenance personnel. These manuals provide maintenance personnel 
with standardized procedures for maintaining company aircraft. 
Management policies, lines of authority, and company maintenance 
procedures are documented in company manuals and kept in a current 
status.
    (xi) Maintenance facilities. Well maintained, clean maintenance 
facilities, adequate for the level of aircraft repair authorized in the 
company's CAA certificate are expected. Safety equipment is available in 
hangars, shops, etc., and is serviceable. Shipping, receiving, and 
stores areas are likewise clean and orderly. Parts are correctly 
packaged, tagged, segregated, and shelf life properly monitored.
    (5) Quality and safety requirements--security. Company personnel 
receive training in security responsibilities and practice applicable 
procedures during ground and in-flight operations. Compliance with 
provisions of the appropriate standard security program, established by 
the Transportation Security Administration or foreign equivalent, is 
required for all DOD missions.
    (6) Quality and safety requirements--specific equipment 
requirements. Air carriers satisfy DOD equipment and other requirements 
as specified in DOD agreements.
    (7) Quality and safety requirements--oversight of commuter or 
foreign air carriers in code-sharing agreements. Air carriers awarded a 
route under the Passenger Standing Route Order (PSRO) program, the GSA 
City Pair Program, or other DOD program, that includes performance of a 
portion of the route by a commuter or foreign air carrier with which it 
has a code-sharing arrangement, must have a formal procedure in place to 
periodically review and assess the code-sharing air carrier's safety, 
operations, and maintenance

[[Page 89]]

programs. The extent of such reviews and assessments must be consistent 
with, and related to, the code-sharing air carrier's safety history. 
These procedures must also provide for actual inspections of the foreign 
code-sharing air carrier if the above reviews and assessments indicate 
questionable safety practices.
    (8) Quality and safety requirements--aeromedical transport 
requirements. (i) The degree of oversight is as determined by the CARB 
or higher authority. When an inspection is conducted, DOD medical 
personnel may also participate to assess the ability to provide the 
patient care and any specialty care required by DOD. The CARB's review 
will be limited solely to issues related to flight safety.
    (ii) Portable Electronic Devices (PEDs) used in the provision of 
medical services or treatment on board aircraft are tested for non-
interference with aircraft systems and the results documented to show 
compliance with 14 CFR 91.21 or other applicable CAA regulations. If 
there are no CAA regulations, actual use/inflight testing of the same or 
similar model PED prior to use with DOD patients is the minimum 
requirement.



Sec.  861.5  DOD Commercial Airlift Review Board procedures.

    (a) This section establishes procedures to be used by the DOD when, 
in accordance with references inSec.  861.1(a) and (b):
    (1) An air carrier is subject to review or other action by the DOD 
Commercial Airlift Review Board, or CARB;
    (2) A warning, suspension, temporary nonuse, or reinstatement action 
is considered or taken against a carrier by the CARB; or
    (3) An issue involving an air carrier is referred by the CARB to 
higher authority for appropriate action.
    (b) These procedures apply to air carriers seeking to provide or 
already providing air transportation services to DOD. It also applies to 
U.S. or foreign air carriers providing operational support services to 
DOD which, on a case-by-case basis and at the discretion of the CARB or 
higher authority, require some level of oversight by DOD.
    (c) An air carrier's sole remedy in the case of a suspension 
decision by the CARB is the appellate process under this part.
    (d) Quality and safety issues relating to air carriers used, or 
proposing to be used, by DOD, per reference (b) must be referred to the 
CARB for appropriate disposition.
    (e) CARB responsibilities. As detailed in the reference in Sec.  
861.1(b), the CARB provides a multifunctional review of the efforts of 
the DOD Air Carrier Survey and Analysis Office and is the first level 
decision authority in DOD on quality and safety issues relating to air 
carriers. Responsibilities include, but are not limited to: the review 
and approval or disapproval of air carriers seeking initial approval to 
provide air transportation service to DOD; the review and approval or 
disapproval of air carriers in the program that do not meet DOD quality 
and safety requirements; the review and approval or disapproval of air 
carriers in the program seeking to provide a class of service different 
from that which they are currently approved; taking action to suspend, 
reinstate, or place into temporary nonuse or extended temporary nonuse, 
DOD approved carriers; taking action, on an as needed basis, to review, 
suspend, reinstate, or place into temporary nonuse or extended temporary 
nonuse, an air carrier providing operational support services to DOD; 
and, referring with recommendations, issues requiring resolution or 
other action by higher authority.
    (f) CARB administrative procedures--(1) Membership. The CARB will 
consist of four voting members appointed by USCINCTRANS from USTRANSCOM 
and its component commands. These members and their alternates will be 
general officers or their civilian equivalent, with experience in the 
operations, maintenance, transportation, or air safety fields. A 
Chairman and alternate will be designated. Nonvoting CARB members will 
be appointed as necessary by USCINCTRANS. A non-voting recorder will 
also be appointed.
    (2) Decisions. Decisions of the CARB will be taken by a majority 
vote of the voting members present, with a minimum of three voting 
members (or their alternates) required to constitute

[[Page 90]]

a quorum. In the event of a tie, the Chair of the CARB will decide the 
issue.
    (3) Meetings of the CARB. The CARB may meet either in person or by 
some electronic means. It will be convened by either USCINCTRANS or the 
Chair of the CARB. The meeting date, time, and site of the CARB will be 
determined at the time of the decision to convene the CARB. Minutes of 
CARB meetings will be taken by the recorder, summarized, and preserved 
with all other records relating to the CARB meeting. The recorder will 
ensure the air carrier and appropriate DOD and federal agencies are 
notified of the CARB's decision(s) and reasons therefore. In the event 
of a fatal accident, the CARB shall convene as soon as possible but not 
later than 72 hours after notification by the Chair.
    (g) CARB operating procedures--(1) Placing an air carrier into 
temporary nonuse. (i) In case of a fatal aircraft accident or for other 
good cause, two or more voting members of the CARB may jointly make an 
immediate determination whether to place the air carrier involved into a 
temporary nonuse status pending suspension proceedings. Prior notice to 
the air carrier is not required.
    (ii) The carrier shall be promptly notified of the temporary nonuse 
determination and the basis therefore.
    (iii) Temporary nonuse status terminates automatically if suspension 
proceedings are not commenced, as set out in paragraph (g)(2) of this 
section, within 30 days of inception unless the CARB and air carrier 
mutually agree to extend the temporary nonuse status.
    (2) Suspension of an air carrier. (i) On a recommendation of the DOD 
Air Carrier Survey and Analysis Office or any individual voting member 
of the CARB, the CARB shall consider whether or not to suspend a DOD 
approved air carrier.
    (ii) If the CARB determines that suspension may be appropriate, it 
shall notify the air carrier that suspension action is under 
consideration and of the basis for such consideration. The air carrier 
will be offered a hearing within 15 days of the date of the notice, or 
other such period as granted by the CARB, at which the air carrier may 
be present and may offer evidence. The hearings shall be as informal as 
practicable, consistent with administrative due process. Formal rules of 
evidence do not apply.
    (iii) The types of evidence which may be considered includes, but is 
not limited to:
    (A) Information and analysis provided by the DOD Air Carrier Survey 
and Analysis Office.
    (B) Information submitted by the air carrier.
    (C) Information relating to action that may have been taken by the 
air carrier to:
    (1) Correct the specific deficiencies that led the CARB to consider 
suspension; and
    (2) Preclude recurring similar deficiencies.
    (D) Other matters the CARB deems relevant.
    (iv) The CARB's decisions on the reception or exclusion of evidence 
shall be final.
    (v) Air carriers shall have the burden of proving their suitability 
to safely perform DOD air transportation and/or operational support 
services by clear and convincing evidence.
    (vi) After the conclusion of such hearing, or if no hearing is 
requested and attended by the air carrier within the time specified by 
the CARB, the CARB shall consider the matter and make a final decision 
whether or not to suspend the air carrier or to impose such lesser 
sanctions as appropriate. The air carrier will be notified of the CARB's 
decision.
    (3) Reinstatement. (i) The CARB may consider reinstating a suspended 
carrier on either CARB motion or carrier motion, unless such carrier has 
become ineligible in the interim.
    (ii) The carrier has the burden of proving by clear and convincing 
evidence that reinstatement is warranted. The air carrier must satisfy 
the CARB that the deficiencies, which led to suspension, have been 
corrected and that action has been implemented to preclude the 
recurrence of similar deficiencies.
    (iii) Air carrier evidence in support of reinstatement will be 
provided in a timely manner to the CARB for its review. The CARB may 
independently

[[Page 91]]

corroborate the carrier-provided evidence and may, at its option, 
convene a hearing and request the participation of the air carrier.
    (4) Appeal of CARB decisions. (i) An air carrier placed in 
suspension by the CARB may administratively appeal this action to 
USCINCTRANS. An appeal, if any, must be filed in writing, with the DOD 
Air Carrier Survey and Analysis Office, and postmarked within 15 
workdays of receipt of notice of the CARB's suspension decision. In the 
sole discretion of USCINCTRANS, and for good cause shown, the suspension 
may be stayed pending action on the appeal.
    (ii) Air carriers shall not be entitled to a de novo hearing or 
personal presentation before the appellate authority.
    (iii) The decision of the appellate authority is final and is not 
subject to further administrative review or appeal.
    (5) Referral of issues to higher authorities. The approval or 
disapproval of an air carrier for use by DOD, the placing of approved 
carriers into temporary nonuse status, and the suspension and 
reinstatement of approved carriers, are all decisions which must be made 
by the CARB. Other matters may be referred by the CARB to USCINCTRANS 
for appropriate action, with or without recommendations by the CARB. The 
CARB will forward for decision, through USCINCTRANS to the Under 
Secretary of Defense (Acquisition, Technology and Logistics) 
(USD(AT&L)), all air carrier use/nonuse recommendations involving 
foreign air carriers other than those providing charter transportation 
or operational support service to the Department of Defense.



Sec.  861.6  DOD review of foreign air carriers.

    Foreign air carriers providing or seeking to provide services to DOD 
shall be subject to review and, if appropriate, approval by DOD. 
Application of the criteria and requirements of this part and the degree 
of oversight to be exercised by DOD, if any, over a foreign air carrier 
depends upon the type of services performed and, in some instances, by 
the quality of oversight exercised by the foreign air carrier's CAA. The 
scope and frequency of the review of any given foreign air carrier under 
this part will be at the discretion of the CARB or higher authority.
    (a) Foreign air carriers seeking to provide or providing air 
transportation services under a contract or Military Air Transportation 
Agreement with DOD, or pursuant to another arrangement entered into by, 
or on behalf of, DOD. Foreign air carriers seeking to provide or 
providing air transportation services under a contract or Military Air 
Transportation Agreement with DOD, must meet all requirements of Sec.  
861.4, and be approved by the CARB in accordance with Sec.  861.5. This 
includes foreign air carriers seeking to provide, or providing, airlift 
services to DOD personnel pursuant to an arrangement entered into by 
another federal agency, state agency, foreign government, international 
organization, or other entity or person on behalf of, or for the benefit 
of, DOD, regardless of whether DOD pays for the airlift services 
provided. For purposes of establishing the degree of oversight and 
review to be conducted under the DOD Commercial Air Transportation 
Quality and Safety Review Program, such foreign air carriers are 
considered the same as U.S. carriers. In addition, they must have an 
operating certificate issued by the appropriate CAA using regulations 
which are the substantial equivalent of those found in the U.S. FARs, 
and must maintain such certification throughout the term of the contract 
or agreement. The CAA responsible for exercising oversight of the 
foreign air carrier must meet ICAO standards as determined by ICAO, or 
the FAA under the FAA's International Aviation Safety Assessment 
Program.
    (b) Foreign air carriers providing passenger services under the GSA 
City Pair Program. Foreign air carriers performing any portion of a 
route awarded to a U.S. air carrier under the GSA City Pair Program 
pursuant to a code-sharing agreement with that U.S. air carrier, are 
generally not subject to DOD survey and approval under Sec. Sec.  861.4 
and 861.5. However, DOD will periodically review the performance of such 
foreign carriers. This review may consist of recurring performance 
evaluations, periodic examination of the U.S.

[[Page 92]]

code-sharing carrier's operational reviews and assessments of the 
foreign carrier and, where appropriate and agreed to by the air carriers 
concerned and DOD, on-site surveys of the foreign air carrier. Such 
carriers must also meet the 12 months prior experience requirement of 
Sec.  861.4(e)(1). The CARB or higher authority may prescribe additional 
review requirements. Should circumstances warrant, use of these air 
carriers by DOD passengers on official business may be restricted or 
prohibited as necessary to assure the highest levels of passenger 
safety.
    (c) Other foreign air carriers carrying individually ticketed DOD 
passengers on official business. Foreign air carriers carrying 
individually ticketed DOD passengers on official business are not 
subject to DOD survey and approval under Sec. Sec.  861.4 and 861.5. 
However, the DOD Air Carrier Survey and Analysis Division may 
periodically review the performance of such carriers. Reviews may 
include voluntary on-site surveys as directed by the CARB or higher 
authority. In the event questions relating to the safety and continued 
use of the carrier arise, the matter may be referred to the CARB for 
appropriate action.
    (d) Foreign air carriers from countries in which the CAA is not in 
compliance with ICAO standards. Unless otherwise authorized, use by DOD 
personnel on official business of foreign air carriers from countries in 
which the CAA is not in compliance with ICAO standards is prohibited 
except for the last leg into and the first leg out of the U.S. on such 
carriers. This includes foreign air carriers performing any portion of a 
route awarded to a U.S. air carrier under the GSA City Pair Program 
pursuant to a code-sharing agreement with that U.S. air carrier.
    (e) On-site surveys. The scope of the on-site survey of a foreign 
air carrier will be at the discretion of the CARB. In the event a 
foreign air carrier denies a request made under this part to conduct an 
on-site survey, the CARB will consider all available information and 
make a use/nonuse recommendation to DOD. If placed in nonuse status by 
DOD, such air carriers will not be used unless, in accordance with the 
reference in Sec.  861.1 (b), in the judgment of the appropriate 
Combatant Commander, no acceptable alternative to using the carrier 
exists and the travel is mission essential.
    (f) Foreign carriers providing operational support services to DOD. 
Such carriers are subject to DOD oversight, on a case-by-case basis, to 
the extent directed by the CARB or higher authority.



Sec.  861.7  Disclosure of voluntarily provided safety-related information.

    (a) General. In accordance with paragraph (h) of the reference in 
Sec.  861.1 (a), DOD may withhold from public disclosure safety-related 
information voluntarily provided to DOD by an air carrier for the 
purposes of this part if DOD determines that--
    (1) The disclosure of the information would, in the future, inhibit 
an air carrier from voluntarily providing such information to DOD or 
another Federal agency for the purposes of this part or for other air 
safety purposes; and
    (2) The receipt of such information generally enhances the 
fulfillment of responsibilities under this part or other air safety 
responsibilities involving DOD or another Federal agency.
    (b) Processing requests for disclosure of voluntarily provided 
safety-related information. Requests for public disclosure will be 
administratively processed in accordance with 32 CFR part 806, Air Force 
Freedom of Information Act Program.
    (c) Disclosure of voluntarily provided safety-related information to 
other agencies. The Department of Defense may, at its discretion, 
disclose voluntarily provided safety-related information submitted under 
this part by an air carrier, to other agencies with safety 
responsibilities. The DOD will provide such information to another 
agency only upon receipt of adequate assurances that it will protect the 
information from public disclosure, and that it will not release such 
information unless specifically authorized.

[[Page 93]]



              SUBCHAPTER G_ORGANIZATION AND MISSION_GENERAL





PART 865_PERSONNEL REVIEW BOARDS--Table of Contents



      Subpart A_Air Force Board for Correction of Military Records

Sec.
865.0 Purpose.
865.1 Setup of the Board.
865.2 Board responsibilities.
865.3 Application procedures.
865.4 Board actions.
865.5 Decision of the Secretary of the Air Force.
865.6 Reconsideration of applications.
856.7 Action after final decision.
865.8 Miscellaneous provisions.

               Subpart B_Air Force Discharge Review Board

865.100 Purpose.
865.101 References.
865.102 Statutory authority.
865.103 Definition of terms.
865.104 Secretarial responsibilities.
865.105 Jurisdiction and authority.
865.106 Application for review.
865.107 DRB composition and meeting location.
865.108 Availability of records and documents.
865.109 Procedures for hearings.
865.110 Decision process.
865.111 Response to items submitted as issues by the applicant.
865.112 Decisional issues.
865.113 Recommendations by the Director of the Personnel Council and 
          Secretarial Review Authority.
865.114 Decisional document.
865.115 Issuance of decisions following discharge review.
865.116 Records of DRB proceeding.
865.117 Final disposition of the record of proceedings.
865.118 Availability of Discharge Review Board documents for public 
          inspection and copying.
865.119 Privacy Act information.
865.120 Discharge review standards.
865.121 Complaints concerning decisional documents and index entries.
865.122 Summary of statistics for Discharge Review Board.
865.123 Approval of exceptions to directive.
865.124 Procedures for regional hearings.
865.125 Report requirement.
865.126 Sample report format.



      Subpart A_Air Force Board for Correction of Military Records

    Source: 75 FR 596132, Sept. 28, 2010, unless otherwise noted.



Sec.  865.0  Purpose.

    This subpart sets up procedures for correction of military records 
to remedy error or injustice. It tells how to apply for correction of 
military records and how the Air Force Board for Correction of Military 
Records (AFBCMR, or the Board) considers applications. It defines the 
Board's authority to act on applications. It directs collecting and 
maintaining information subject to the Privacy Act of 1974 authorized by 
10 U.S.C. 1034 and 1552. System of Records notice F035 SAFCB A, Military 
Records Processed by the Air Force Correction Board, applies.



Sec.  865.1  Setup of the Board.

    The AFBCMR operates within the Office of the Secretary of the Air 
Force according to 10 U.S.C. 1552. The Board consists of civilians in 
the executive part of the Department of the Air Force who are appointed 
and serve at the pleasure of the Secretary of the Air Force. Three 
members constitute a quorum of the Board.



Sec.  865.2  Board responsibilities.

    (a) Considering applications. The Board considers all individual 
applications properly brought before it. In appropriate cases, it 
directs correction of military records to remove an error or injustice, 
or recommends such correction.
    (b) Recommending action. When an applicant alleges reprisal under 
the Military Whistleblowers Protection Act, 10 U.S.C. 1034, the Board 
may recommend to the Secretary of the Air Force that disciplinary or 
administrative action be taken against those responsible for the 
reprisal.
    (c) Deciding cases. The Board normally decides cases on the evidence 
of the record. It is not an investigative body. However, the Board may, 
in its discretion, hold a hearing or call for

[[Page 94]]

additional evidence or opinions in any case.



Sec.  865.3  Application procedures.

    (a) Who may apply:
    (1) In most cases, the applicant is a member or former member of the 
Air Force, since the request is personal to the applicant and relates to 
his or her military records.
    (2) An applicant with a proper interest may request correction of 
another person's military records when that person is incapable of 
acting on his or her own behalf, is missing, or is deceased. Depending 
on the circumstances, a child, spouse, civilian employee or former 
civilian employee, former spouse, parent or other close relative, an 
heir, or a legal representative (such as a guardian or executor) of the 
member or former member may be able to show a proper interest. 
Applicants will send proof of proper interest with the application when 
requesting correction of another person's military records. An 
application may be returned when proper interest has not been shown.
    (3) A member, former member, employee or former employee, dependent, 
and current or former spouse may apply to correct a document or other 
record of any other military matter that affects them (This does not 
include records pertaining to civilian employment matters). Applicants 
will send proof of the effect of the document or record upon them with 
the application when requesting a correction under this provision.
    (b) Getting forms. Applicants may get a DD Form 149, ``Application 
for Correction of Military Record Under the Provisions of Title 10 
U.S.C. 1552,'' and Air Force Pamphlet 36-2607, ``Applicants' Guide to 
the Air Force Board for Correction of Military Records (AFBCMR),'' from:
    (1) Any Air Force Military Personnel Flight (MPF) or publications 
distribution office.
    (2) Most veterans' service organizations.
    (3) The Air Force Review Boards Office, SAF/MRBR, 550 C Street West, 
Suite 40, Randolph AFB TX 78150-4742.
    (4) The AFBCMR, 1535 Command Drive, EE Wing 3rd Floor, Andrews AFB 
MD 20762-7002.
    (5) Thru the Internet at http://www.dtic.mil/whs/directives/infomgt/
forms/eforms/dd0149.pdf (DD Form 149) and http://www.e-
publishing.af.mil/shared/media/epubs/AFPAM36-2607.pdf (Air Force 
Pamphlet 36-2607).
    (c) Preparation. Before applying, applicants should:
    (1) Review Air Force Pamphlet 36-2607.
    (2) Discuss their concerns with MPF, finance office, or other 
appropriate officials. Errors can often be corrected administratively 
without resort to the Board.
    (3) Exhaust other available administrative remedies (otherwise the 
Board may return the request without considering it).
    (d) Submitting the application. Applicants should complete all 
applicable sections of the DD Form 149, including at least:
    (1) The name under which the member served.
    (2) The member's social security number or Air Force service number.
    (3) The applicant's current mailing address.
    (4) The specific records correction being requested.
    (5) Proof of proper interest if requesting correction of another 
person's records.
    (6) The applicant's original signature.
    (e) Applicants should mail the original signed DD Form 149 and any 
supporting documents to the Air Force address on the back of the form.
    (f) Meeting time limits. Ordinarily, applicants must file an 
application within 3 years after the error or injustice was discovered, 
or, with due diligence, should have been discovered. In accordance with 
federal law, time on active duty is not included in the 3 year period. 
An application filed later is untimely and may be denied by the Board on 
that basis.
    (1) The Board may excuse untimely filing in the interest of justice.
    (2) If the application is filed late, applicants should explain why 
it would be in the interest of justice for the Board to waive the time 
limits.

[[Page 95]]

    (g) Stay of other proceedings. Applying to the AFBCMR does not stay 
other proceedings.
    (h) Counsel representation. Applicants may be represented by 
counsel, at their own expense.
    (1) The term ``counsel'' includes members in good standing of the 
bar of any state, accredited representatives of veterans' organizations 
recognized under by the Secretary of Veterans Affairs pursuant to 38 
U.S.C. 5902(a)(1), and other persons determined by the Executive 
Director of the Board to be competent to represent the interests of the 
applicant.
    (2) See DoDD 7050.06, Military Whistleblower Protection \1\ and AFI 
90-301, Inspector General Complaints Resolution, for special provisions 
for counsel in cases processed under 10 U.S.C. 1034.
---------------------------------------------------------------------------

    \1\ Available via the Internet at http://www.dtic.mil/whs/
directives/corres/pdf/705006p.pdf.
---------------------------------------------------------------------------

    (i) Page limitations on briefs. Briefs in support of applications:
    (1) May not exceed 25 double-spaced typewritten pages.
    (2) Must be typed on one side of a page only with not more than 12 
characters per inch.
    (3) Must be assembled in a manner that permits easy reproduction.
    (4) Responses to advisory opinions must not exceed 10 double-spaced 
typewritten pages and meet the other requirements for briefs.
    (5) These limitations do not apply to supporting documentary 
evidence.
    (6) In complex cases and upon request, the Executive Director of the 
Board may waive these limitations.
    (j) Withdrawing applications. Applicants may withdraw an application 
at any time before the Board's decision. Withdrawal does not stay the 3-
year time limit.
    (k) Authority to reject applications. The Executive Director may 
return an application without action, if, after consultation with legal 
counsel, he or she determines that the application is clearly frivolous, 
or the remedy that is requested is beyond the authority of the Board. 
This authority may not be delegated.



Sec.  865.4  Board actions.

    (a) Board information sources. The applicant has the burden of 
providing sufficient evidence of material error or injustice. However, 
the Board:
    (1) May get additional information and advisory opinions on an 
application from any Air Force organization or official.
    (2) May ask the applicant to furnish additional information 
regarding matters before the Board.
    (b) Applicants will be given an opportunity to review and comment on 
advisory opinions and additional information obtained by the Board. They 
will also be provided with a copy of correspondence to or from the Air 
Force Review Boards Agency with an entity outside the Air Force Review 
Boards Agency in accordance with the provisions of 10 U.S.C. 1556.
    (c) Consideration by the Board. A panel consisting of at least three 
board members considers each application. One panel member serves as its 
chair. The panel's actions and decisions constitute the actions and 
decisions of the Board.
    (d) The panel may decide the case in executive session or authorize 
a hearing. When a hearing is authorized, the procedures in Sec.  
865.4(f), of this part, apply.
    (e) Board deliberations. Normally only members of the Board and 
Board staff will be present during deliberations. The panel chair may 
permit observers for training purposes or otherwise in furtherance of 
the functions of the Board.
    (f) Board hearings. The Board in its sole discretion determines 
whether to grant a hearing. Applicants do not have a right to a hearing 
before the Board.
    (1) The Executive Director will notify the applicant or counsel, if 
any, of the time and place of the hearing. Written notice will be mailed 
30 days in advance of the hearing unless the notice period is waived by 
the applicant. The applicant will respond not later than 15 days before 
the hearing date, accepting or declining the offer of a hearing and, if 
accepting, provide information pertaining to counsel and witnesses. The 
Board will decide the case in executive

[[Page 96]]

session if the applicant declines the hearing or fails to appear.
    (2) When granted a hearing, the applicant may appear before the 
Board with or without counsel and may present witnesses. It is the 
applicant's responsibility to notify witnesses, arrange for their 
attendance at the hearing, and pay any associated costs.
    (3) The panel chair conducts the hearing, maintains order, and 
ensures the applicant receives a full and fair opportunity to be heard. 
Formal rules of evidence do not apply, but the panel observes reasonable 
bounds of competency, relevancy, and materiality. Witnesses other than 
the applicant will not be present except when testifying. Witnesses will 
testify under oath or affirmation. A recorder will record the 
proceedings verbatim. The chair will normally limit hearings to 2 hours 
but may allow more time if necessary to ensure a full and fair hearing.
    (4) Additional provisions apply to cases processed under 10 U.S.C. 
1034. See DoDD 7050.06, Military Whistleblower Protection \2\, and AFI 
90-301, Inspector General Complaints Resolution.
---------------------------------------------------------------------------

    \2\ Copies may be obtained via the Internet at http://www.dtic.mil/
whs/directives/corres/pdf/705006p.pdf.
---------------------------------------------------------------------------

    (g) The Board will not deny or recommend denial of an application on 
the sole ground that the issue already has been decided by the Secretary 
of the Air Force or the President of the United States in another 
proceeding.
    (h) Board decisions. The panel's majority vote constitutes the 
action of the Board. The Board will make determinations on the following 
issues in writing:
    (1) Whether the provisions of the Military Whistleblowers Protection 
Act apply to the application. This determination is needed only when the 
applicant invokes the protection of the Act, or when the question of its 
applicability is otherwise raised by the evidence.
    (2) Whether the application was timely filed and, if not, whether 
the applicant has demonstrated that it would be in the interest of 
justice to excuse the untimely filing. When the Board determines that an 
application is not timely, and does not excuse its untimeliness, the 
application will be denied on that basis.
    (3) Whether the applicant has exhausted all available and effective 
administrative remedies. If the applicant has not, the application will 
be denied on that basis.
    (4) Whether the applicant has demonstrated the existence of a 
material error or injustice that can be remedied effectively through 
correction of the applicant's military record and, if so, what 
corrections are needed to provide full and effective relief.
    (5) In Military Whistleblowers Protection Act cases only, whether to 
recommend to the Secretary of the Air Force that disciplinary or 
administrative action be taken against any Air Force official whom the 
Board finds to have committed an act of reprisal against the applicant. 
Any determination on this issue will not be made a part of the Board's 
record of proceedings and will not be given to the applicant, but will 
be provided directly to the Secretary of the Air Force under separate 
cover (Sec 865.2b, of this part).
    (i) Record of proceedings. The Board staff will prepare a record of 
proceedings following deliberations which will include:
    (1) The name and vote of each Board member.
    (2) The application.
    (3) Briefs and written arguments.
    (4) Documentary evidence.
    (5) A hearing transcript if a hearing was held.
    (6) Advisory opinions and the applicant's related comments.
    (7) The findings, conclusions, and recommendations of the Board.
    (8) Minority reports, if any.
    (9) Other information necessary to show a true and complete history 
of the proceedings.
    (j) Minority reports. A dissenting panel member may prepare a 
minority report which may address any aspect of the case.
    (k) Separate communications. The Board may send comments or 
recommendations to the Secretary of the Air Force as to administrative 
or disciplinary action against individuals found to have committed acts 
of reprisal prohibited by the Military Whistleblowers Protection Act and 
on other

[[Page 97]]

matters arising from an application not directly related to the 
requested correction of military records. Such comments and 
recommendations will be separately communicated and will not be included 
in the record of proceedings or given to the applicant or counsel.
    (l) Final action by the Board. The Board acts for the Secretary of 
the Air Force and its decision is final when it:
    (1) Denies any application (except under 10 U.S.C. 1034).
    (2) Grants any application in whole or part when the relief was 
recommended by the official preparing the advisory opinion, was 
unanimously agreed to by the panel, and does not affect an appointment 
or promotion requiring confirmation by the Senate, and does not affect a 
matter for which the Secretary of the Air Force or his or her delegee 
has withheld decision authority or required notification before final 
decision.
    (3) The Board sends the record of proceedings on all other 
applications to the Secretary of the Air Force or his or her designee 
for final decision.
    (m) The Board may identify DoD or Air Force policies, instructions, 
guidance or practices that are leading to, or likely to lead to unsound 
business decisions, unfair results, waste of government funds or public 
criticism. The Board will forward such observations directly to the 
appropriate offices of the Secretariat and/or Air Staff for review and 
evaluation. Such observations will not be included in the record of 
proceedings.



Sec.  865.5  Decision of the Secretary of the Air Force.

    (a) The Secretary may direct such action as he or she deems 
appropriate on each case, including returning the case to the Board for 
further consideration. Cases returned to the Board for further 
reconsideration will be accompanied by a brief statement of the reasons 
for such action. If the Secretary does not accept the Board's 
recommendation, the Secretary's decision will be in writing and will 
include a brief statement of the grounds for his/her final decision.
    (b) Decisions in cases under the Military Whistleblowers Protection 
Act. The Secretary will issue decisions on such cases within 180 days 
after receipt of the case and will, unless the full relief requested is 
granted, inform applicants of their right to request review of the 
decision by the Secretary of Defense (SecDef). Applicants will also be 
informed:
    (1) Of the name and address of the official to whom the request for 
review must be submitted.
    (2) That the request for review must be submitted within 90 days 
after receipt of the decision by the Secretary of the Air Force.
    (3) That the request for review must be in writing and include the 
applicant's name, address, and telephone number; a copy of the 
application to the AFBCMR and the final decision of the Secretary of the 
Air Force; and a statement of the specific reasons the applicant is not 
satisfied with the decision of the Secretary of the Air Force.
    (4) That the request must be based on the Board record; requests for 
review based on factual allegations or evidence not previously presented 
to the Board will not be considered under this paragraph but may be the 
basis for reconsideration by the Board under Sec.  865.6.
    (c) In cases under Sec.  865.5(b) of this part which involve 
additional issues not cognizable under that paragraph, the additional 
issues may be considered separately by the Board under Sec.  865.3 and 
Sec.  865.4 of this part. The special time limit in Sec.  865.5 (b) does 
not apply to the decision concerning these additional issues.
    (d) Decisions in high profile or sensitive cases. Prior to taking 
final action on a BCMR application that has generated, or is likely to 
generate, significant public or Congressional interest, the Secretarial 
designee will provide the case record of proceedings through Secretarial 
channels to OSAF so that the Secretary can determine whether to decide 
the case personally or take other action the Secretary deems 
appropriate.



Sec.  865.6  Reconsideration of applications.

    (a) The Board may reconsider an application if the applicant submits 
newly discovered relevant evidence

[[Page 98]]

that was not reasonably available when the application was previously 
considered. The Executive Director or Team Chiefs will screen each 
request for reconsideration to determine whether it contains new 
evidence. New arguments about, or analysis of, evidence already 
considered, and additional statements which are cumulative to those 
already in the record of proceedings will not be considered new 
evidence.
    (b) If the request contains new evidence, the Executive Director or 
his/her designee will refer it to a panel of the Board for a decision. 
The Board will decide the relevance and weight of any new evidence, 
whether it was reasonably available to the applicant when the 
application was previously considered, and whether it was submitted in a 
timely manner. The Board may deny reconsideration if the request does 
not meet the criteria for reconsideration. Otherwise the Board will 
reconsider the application and decide the case either on timeliness or 
merit as appropriate.
    (c) If the request does not contain new evidence, the Executive 
Director or his/her designee will return it to the applicant without 
referral to the Board.



Sec.  856.7  Action after final decision.

    (a) Action by the Executive Director. The Executive Director or his/
her designee will inform the applicant or counsel, if any, of the final 
decision on the application. If any requested relief was denied, the 
Executive Director will advise the applicant of reconsideration 
procedures and, for cases processed under the Military Whistleblowers 
Protection Act, review by the SecDef. The Executive Director will send 
decisions requiring corrective action to the Chief of Staff, U.S. Air 
Force, for necessary action.
    (b) Settlement of claims. The Air Force is authorized, under 10 
U.S.C. 1552, to pay claims for amounts due to applicants as a result of 
correction of military records.
    (1) The Executive Director will furnish the Defense Finance and 
Accounting Service (DFAS) with AFBCMR decisions potentially affecting 
monetary entitlement or benefits. DFAS will treat such decisions as 
claims for payment by or on behalf of the applicant.
    (2) DFAS settles claims on the basis of the corrected military 
record. Computation of the amount due, if any, is a function of DFAS. 
Applicants may be required to furnish additional information to DFAS to 
establish their status as proper parties to the claim and to aid in 
deciding amounts due.
    (3) Earnings received from civilian employment during any period for 
which active duty pay and allowances are payable will be deducted from 
the settlement. Amounts found due will be offset by the amount of any 
existing indebtedness to the government in compliance with the Debt 
Collection Act of 1982 or successor statutes.
    (c) Public access to decisions. After deletion of personal 
information, AFBCMR decisions will be made available for review and 
copying at an electronic public reading room.



Sec.  865.8  Miscellaneous provisions.

    (a) At the request of the Board, all Air Force activities and 
officials will furnish the Board with:
    (1) All available military records pertinent to an application.
    (2) An advisory opinion concerning an application. The advisory 
opinion will include an analysis of the facts of the case and of the 
applicant's contentions, a statement of whether or not the requested 
relief can be done administratively, and a recommendation on the 
timeliness and merit of the request. Regardless of the recommendation, 
the advisory opinion will include instructions on specific corrective 
action to be taken if the Board grants the application.
    (b) Access to records. Applicants will have access to all records 
considered by the Board, except those classified or privileged. To the 
extent practicable, applicants will be provided unclassified or 
nonprivileged summaries or extracts of such records considered by the 
Board.
    (c) Payment of expenses. The Air Force has no authority to pay 
expenses of any kind incurred by or on behalf of an applicant in 
connection with a correction of military records under 10 U.S.C. 1034 or 
1552.
    (d) Form adopted: DD Form 149.

[[Page 99]]



               Subpart B_Air Force Discharge Review Board

    Authority: Sec. 8012, 70A Stat. 488; sec. 1553, 72 Stat. 1267, 10 
U.S.C. 8012, 1553.

    Source: 48 FR 37384, Aug. 18, 1983, unless otherwise noted.



Sec.  865.100  Purpose.

    This subpart establishes policies for the review of discharges and 
dismissals under 32 CFR part 70, ``Discharge Review Boards Procedures 
and Standards,'' 47 FR 37770, August 26, 1982. 1982, and explains the 
jurisdiction, authority, and actions of the Air Force Discharge Review 
Board. It applies to all Air Force activities. This subpart is affected 
by the Privacy Act of 1974. The system of records cited in this subpart 
is authorized by 10 U.S.C. 1553 and 8012. Each data gathering form or 
format which is required by this subpart contains a Privacy Act 
Statement, either incorporated in the body of the document or in a 
separate statement accompanying each such document.



Sec.  865.101  References.

    (a) Title 10 U.S.C., section 1553.
    (b) Title 38 U.S.C., sections 101 and 3103, as amended by Pub. L. 
95-126, October 8, 1977.
    (c) DOD Directive 5000.19, ``Policies for the Management and Control 
of Information Requirements,'' March 12, 1976.
    (d) DOD Directive 5000.11, ``Data Elements and Data Codes 
Standardization Program,'' December 7, 1964.
    (e) DOD Directive 5000.12-M ``DOD Manual for Standard Data 
Elements,'' December 1981.
    (f) DOD Directive 1332.14, ``Enlisted Administrative Separations,'' 
January 28, 1982.
    (g) DOD Directive 5400.7, ``DOD Freedom of Information Act 
Program,'' March 24, 1980; title 5 U.S.C., section 552.
    (h) DOD Directive 5400.11, ``Department of Defense Privacy 
Program,'' June 9, 1982; title 5 U.S.C., section 552a.
    (i) Title 10 U.S.C., chapter 47, Uniform Code of Military Justice.
    (j) Wood v. Secretary of Defense, Civ. No. 77-0684 (D.D.C.) (Order, 
December 3, 1981).
    (k) Urban Law Institute of Antioch College, Inc. v. Secretary of 
Defense, Civ. No. 76-0530, (D.D.C.) (Stipulation of Dismissal, January 
31, 1977) (Order and Settlement Agreement, July 30, 1982).
    (l) Air Force Regulation 35-41, Vol III, Separation Procedures for 
USAFR Members, dated October 30, 1975.
    (m) Air Force Regulation 36-2, Officer Personnel, Administrative 
Discharge Procedures, August 2, 1976.
    (n) Air Force Regulation 36-3, Officer Personnel, Administrative 
Discharge Procedures, August 2, 1976.
    (o) Air Force Regulation 36-12, Officer Personnel, Administrative 
Separation of Commissioned Officers and Warrant Officers, July 15, 1977.
    (p) Air Force Regulation 39-10, Separation Upon Expiration of Term 
of Service, for Convenience of Government, Minority, Dependency and 
Hardship, January 3, 1977.
    (q) Air Force Manual 39-12, Separation for Unsuitability, 
Misconduct, Resignation, or Request for Discharge for the Good of the 
Service and Procedures for the Rehabilitation Program, September 1, 
1966.
    (r) Air National Guard Regulation 39-10, Enlisted Personnel-
Separation, December 30, 1971.



Sec.  865.102  Statutory authority.

    The Air Force Discharge Review Board (DRB) was established within 
the Department of the Air Force under section 301 of the Serviceman's 
Readjustment Act of 1944, as amended (now 10 U.S.C. 1553) and further 
amended by Pub. L. 95-126 dated October 8, 1977.



Sec.  865.103  Definition of terms.

    (a) Applicant. A former member of the Armed Forces who has been 
dismissed or discharged 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

[[Page 100]]

member. When the term ``applicant'' is used in this subpart, 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 former member.
    (b) Complainant. A former member of the Armed Forces (or the former 
member's counsel) who submits a complaint in accordance with Sec.  
865.121 of this subpart 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 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 subpart 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.
    (e) Discharge review. The process by which the reason for 
separation, the procedures followed in accomplishing separation, and 
characterization of service are evaluated. This includes determinations 
made under the provisions of title 38 U.S.C. 3103(e)(2).
    (f) Discharge Review Board (DRB). An administrative board 
constituted by the Secretary of the Air Force and vested with 
discretionary authority to review discharges and dismissals under the 
provisions of title 10 U.S.C. 1553.
    (g) Regional Discharge Review Board. A DRB that conducts discharge 
reviews in a location outside the National Capital Region (NCR).
    (h) DRB President. The senior line officer of any DRB convened for 
the purpose of conducting discharge reviews.
    (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) Record review. A review of the application, available service 
records, and additional documents (if any) submitted by the applicant.
    (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) Director, Air Force Personnel Council. The person designated by 
the Secretary of the Air Force who is responsible for the supervision of 
the Discharge Review function.



Sec.  865.104  Secretarial responsibilities.

    The Secretary of the Air Force is responsible for the overall 
operation of the Discharge Review program within the Department of the 
Air Force. The following delegation of authority have been made:
    (a) To the Office of the Assistant Secretary of the Air Force 
(Manpower, Reserve Affairs and Installations) to act for the Secretary 
of the Air Force in all discharge review actions subject to review by 
the Secretary as specified in Sec.  865.113 of this subpart.
    (b) To the Director, Air Force Personnel Council, for operation of 
all phases of the discharge review function and authority to take action 
in the name of the Secretary of the Air Force in all discharge review 
actions except those specified in Sec.  865.113 of this subpart.

[[Page 101]]



Sec.  865.105  Jurisdiction and authority.

    The DRB has jurisdiction and authority in cases of former military 
personnel who, at the time of their separation from the Service, were 
members of the US Army Aviation components (Aviation Section, Signal 
Corps; Air Service; Air Corps; or Air Forces) prior to September 17, 
1947, or the US Air Force. The DRB does not have jurisdiction and 
authority concerning personnel of other armed services who at the time 
of their separation, were assigned to duty with the Army Air Forces or 
the US Air Force.
    (a) The DRB's review is based on the former member's available 
military records, issues submitted by the former member, or his counsel 
and on any other evidence that is presented to the DRB. The DRB 
determines whether the type of discharge or dismissal the former member 
received is equitable and proper; if not, the DRB instructs the USAF 
Manpower and Personnel Center (AFMPC) to change the discharge reason or 
to issue a new character of discharge according to the DRB's findings.
    (b) The DRB is not authorized to revoke any discharge, to reinstate 
any person who has been separated from the military service, or to 
recall any person to active duty.
    (c) The DRB, on its own motion, may review a case that appears 
likely to result in a decision favorable to the former military member, 
without the member's knowledge or presence. In this case, if the 
decision is:
    (1) Favorable, the DRB directs AFMPC to notify the former member 
accordingly at the member's last known address.
    (2) Unfavorable, the DRB returns the case to the files without any 
record of formal action; the DRB then reconsiders the case without 
prejudice in accordance with normal procedures.



Sec.  865.106  Application for review.

    (a) General. Applications shall be submitted to the Air Force DRB on 
DD Form 293, Application for Review of Discharge or Dismissal from the 
Armed Forces of the United States (OMB Approval No. 0704-0004) 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.
    (b) Timing. A motion or request for review must be made within 15 
years after the date of discharge or dismissal.
    (c) Applicant's responsibilities. An applicant may request a change 
in the character of or reason for discharge (or both).
    (1) Character of discharge. DD Form 293 provides an applicant an 
opportunity to request a specific change in character of discharge (for 
example, General Discharge to Honorable Discharge; Under Other Than 
Honorable Conditions 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 an honorable discharge to 
Entry Level Separation. A request for review from an applicant who does 
not have an Honorable Discharge will be treated as a request for a 
change to an Honorable Discharge unless the applicant requests a 
specific change to another character of discharge.
    (2) Reason for discharge. 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 will 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 will change the reason for discharge if such a change 
is warranted.
    (3) The applicant must ensure that issues submitted to the DRB are 
consistent with the request for change in discharge set forth in ``Board 
Action Requested'' of the DD Form 293. If an ambiguity is created by a 
difference between an applicant's issue and the requested action, the 
DRB will respond

[[Page 102]]

to the issue in the context of the action requested in ``Board Action 
Requested.'' In the case of a Personal Appearance hearing, the DRB will 
attempt to resolve the ambiguity.
    (d) If the member is deceased or mentally incompetent, the spouse, 
next-of-kin, or legal representative may, as agent for the member, 
submit the application for the review along with proof of the member's 
death or mental incompetency.
    (e) Applicants forward their requests for review to the USAF 
Manpower and Personnel Center-mailing address: AFMPC/MPCDOA1, Randolph 
AFB TX 78150. AFMPC will obtain all available military records of the 
former members from the National Personnel Records Center.
    (f) Withdrawal of application. An applicant shall be permitted to 
withdraw an application without prejudice at any time before the 
scheduled review.
    (g) 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 and should be submitted in accordance with the guidelines 
of this subpart for submission of issues.
    (1) 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.
    (2) 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.
    (3) Use of DD Form 293. DD Form 293 provides applicants with a 
standard format for submitting issues to the DRB, and its use:
    (i) 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;
    (ii) Assists the DRB in focusing on those matters considered to be 
important by an applicant;
    (iii) 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 Sec.  865.112, and those matters submitted simply 
as background or supporting materials;
    (iv) Provides the applicant with greater rights in the event that 
the applicant later submits a complaint under Sec.  865.121 of this 
subpart concerning the decisional document.
    (v) Reduces the potential for disagreement as to the content of an 
applicant's issue.
    (4) 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 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 in accordance with Sec. Sec.  865.111 and 865.112 of 
this subpart.
    (5) Effective date of the new DD Form 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 application will be returned with a copy of the revised DD 
Form 293 for reaccomplishment. The DRB will only respond to the issues 
submitted on the new form in accordance with 32 CFR part 70, 47 FR 
37770, August 26, 1982 and this subpart.
    (h) 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

[[Page 103]]

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.
    (i) 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.  865.120 of 
this subpart. The applicant is encouraged to review those standards 
before submitting any issue upon which the applicant believes a change 
in discharge should be based. The applicant is also encouraged, but not 
required, to identify an issue as pertaining to the propriety or the 
equity of the discharge. This will assist the DRB in assessing the 
relationship of the issue to propriety or equity under Sec.  865.112(d) 
of this subpart.
    (j) Citation of matter from decisions. The primary function of the 
DRB involves the exercise of discretion on a case-by-case basis. 
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.
    (1) The issue must be set forth or expressly incorporated in the 
``Applicant's Issue'' portion of DD Form 293.
    (2) 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.
    (3) To insure timely consideration of principles cited from 
unpublished opinions (including decisions maintained by the Armed Forces 
Discharge Review Board/Correction Board Reading Room), the applicant 
must provide the DRB with copies of such decisions or of the relevant 
portion of treatise, manual, or similar source in which the principles 
were discussed. At the applicant's request, such materials will be 
returned.
    (4) If the applicant fails to comply with the requirements above, 
the decisional document shall note the defect, and shall respond to the 
issue without regard to the citation.
    (k) 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 all materials and information is made.
    (1) 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 this part. 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.
    (2) 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. This provision does not:
    (i) Limit by DRB's authority to question an applicant as to the 
meaning of such matter;
    (ii) Preclude the DRB from developing decisional issues based upon 
such questions:
    (iii) Prevent the applicant from amending or withdrawing such matter 
any time before the DRB closes the review process for deliberation; or
    (iv) Prevent 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.
    (3) Additional Issues Identified During a Hearing. The following 
additional

[[Page 104]]

procedure shall be used during a hearing in order to promote the DRB's 
understanding of an applicant's presentation. If before closing the 
hearing for deliberation, the DRB believes that an applicant has 
presented an issue not listed on DD Form 293, the FRB 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.
    (l) 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 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:
    (1) Such absence must have been included as part of the basis for 
the applicant's discharge under other than honorable conditions.
    (2) Such absence is computed without regard to the applicant's 
normal or adjusted expiration of term of service.



Sec.  865.107  DRB composition and meeting location.

    (a) The DRB consists of five members, with the senior line officer 
acting as the presiding officer. The presiding officer convenes, 
recesses and adjourns the Board.
    (b) In addition to holding hearings in Washington, DC, the DRB, as a 
convenience to applicants, periodically conducts hearings at selected 
locations throughout the Continental United States. Reviews are 
conducted at locations central to those areas with the greatest number 
of applicants. A continuing review and appraisal is conducted to ensure 
the selected hearing locations are responsive to a majority of 
applicants. Administrative details and responsibilities for Regional 
Boards are outlined in Sec.  865.124.



Sec.  865.108  Availability of records and documents.

    (a) Before applying for discharge review, potential applicants or 
their designated resentatives may, and are encouraged to 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 63132; thus avoiding any lengthy delays in the 
processing of the application (DD Form 293) and the scheduling of 
reviews.
    (1) Once the application for discharge review (DD Form 293) is 
submitted, an applicant's military records are forwarded to the DRB 
where they cannot be reproduced. Submission of a request for an 
applicant's military records, including a request under the Freedom of 
Information Act or Privacy Act after the DD Form 293 has been submitted, 
shall result automatically in the termporary suspension of processing of 
the application for discharge review until the requested records are 
sent to an appropriate location for copying, are copied, and 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.
    (2) Applicants and their designated representatives also may examine 
their military personnel records at the site of their scheduled review 
before the hearing. The DRB shall notify applicants and their designated 
representatives of the dates the records are available for examination 
in their standard scheduling information.
    (b) 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.
    (c) If the official records relevant to the discharge review are not 
available at the agency having custody of the

[[Page 105]]

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.
    (d) The 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.
    (1) In any case heard on the 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 (i) of the 
right to examine such documents or to be provided with copies of 
documents upon request; (ii) of the date by which such request must be 
received; and (iii) of the opportunity to respond within a reasonable 
period of time to be set be the DRB.
    (2) 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 reference to source of information and other matters, the 
disclosure of which, in the opinion of the classifying authority, would 
be detrimental to the national security interest of the United States. 
Should preparation of such summary be deemed impracticable by the 
classifying authority, information from the classified source shall not 
be considered by the DRB in its review of the case.
    (e) Current Air Force numbered publications may be obtained from the 
Chief, Central Base Administration at any major Air Force installation 
or by writing:

HQ USAF/DASJL, Washington, DC 20330

 or

DA Military Review Boards Agency, Attention: SPBA (Reading Room), Room 
1E520, Washington, DC 20310



Sec.  865.109  Procedures for hearings.

    (a) The applicant is entitled, by law, to appear in person at his or 
her request before the DRB in open session and to be represented by 
counsel of his or her own selection. The applicant also may present such 
witnesses as he or she may desire.
    (b) There are two types of reviews. They are:
    (1) Record Review. A review of the application, available service 
records, and additional documents (if any) submitted by the applicant.
    (2) Hearing. A personal appearance before the DRB by the applicant 
with or without counsel, or by the counsel only.
    (c) The Government does not compensate or pay the expenses of the 
applicant, applicant's witnesses, or counsel.
    (d) A summary of the available military records of the applicant is 
prepared for use by the DRB in the review process. A copy of the summary 
is available to the applicant and/or his or her counsel, upon request.
    (e) When an applicant has requested a personal appearance and/or 
representation by counsel on the DD Form 293, the DRB sends written 
notice of the hearing time and place to the applicant and designated 
counsel. Evidence of such notification will be placed in the applicant's 
record.
    (f) Personal appearance hearings shall be conducted with recognition 
of the rights of the individual to privacy. Accordingly, presence at 
hearings of individuals other than those whose presence is required will 
be limited to persons authorized by the presiding officer and/or 
expressly requested by the

[[Page 106]]

applicant, subject to reasonable limitations based upon available space.
    (g) Formal rules of evidence shall not be applied in DRB 
proceedings. The presiding officer shall rule on matters of procedure 
and shall ensure that reasonable bounds of relevancy and materiality are 
maintained in the taking of evidence and presentation of witnesses. 
Applicants and witnesses may present evidence to the DRB panel either in 
person or by affidavit or through counsel. If an applicant or witness 
testifies under oath or affirmation, he or she is subject to questioning 
by Board members.
    (h) 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.
    (i) Failure to appear at a hearing or respond to scheduling notice. 
(1) Except as otherwise authorized by the Secretary of the Air Force, 
further opportunity for a personal appearance hearing shall not be made 
available in the following circumstances to an applicant who has 
requested a hearing.
    (i) When the applicant and/or a designated counsel or representative 
has been sent a letter containing the date and location of a proposed 
hearing and fails to make a timely response; or
    (ii) When the applicant and/or a designated representative, 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 postponement or 
withdrawal.
    (2) In such cases, the applicant shall be deemed to have waived his/
her 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.
    (j) Continuance and postponements. (1) A continuance of a discharge 
review hearing may be authorized by the presiding officer of the Board 
concerned, provided that such continuance is of a reasonable duration 
and is essential to achieving a full and fair hearing. Where 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.
    (2) 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.
    (k) Reconsideration. A discharge review shall not be subject to 
reconsideration except:
    (1) Where the only previous consideration of the case was on the 
motion of the DRB;
    (2) When the original discharge review did not involve a personal 
appearance hearing and a personal appearance is now desired, and the 
provisions of Sec.  865.109(j) do not apply;
    (3) Where changes in discharge policy are announced subsequent to an 
earlier review of an applicant's discharge, and the new policy is made 
expressly retroactive;
    (4) Where 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 an applicant in such proceeding;
    (5) Where an individual is to be represented by a counsel/
representative, and was not so represented in any previous consideration 
of the case.
    (6) Where the case was not previously considered under the uniform 
standards published pursuant to Pub. L. 95-126 and application is made 
for such consideration within 15 years after the date of discharge; or
    (7) On the basis of presentation of new, substantial, relevant 
evidence not available to the applicant at the time of the original 
review. The decision as to 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

[[Page 107]]

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.



Sec.  865.110  Decision process.

    (a) The DRB 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 this regulation.
    (b) The presiding officer is responsible for the conduct of the 
discharge review. The presiding officer shall convene, recess, and 
adjourn the DRB as appropriate, and shall maintain an atmosphere of 
dignity and decorum at all times.
    (c) Each board member shall act under oath or affirmation requiring 
careful, objective consideration of the application. They shall consider 
all relevant material and competent information presented to them by the 
applicant. In addition, they shall consider all available military 
records, together with such other records as may be in the files and 
relevant to the issues before the DRB.
    (d) The DRB shall identify and address issues after a review of the 
following material obtained and presented in accordance with this 
subpart and 32 CFR part 70: available official military records, 
documentary evidence submitted by or on behalf of the applicant, 
presentation of testimony by or on behalf of the applicant, oral or 
written arguments presented by or on behalf of the applicant, and any 
other relevant evidence.
    (e) Application of Standards:
    (1) When the DRB determines that an applicant's discharge was 
improper, the DRB will determine which reason for discharge should have 
been assigned based upon the facts and circumstances properly before the 
discharge authority in view of the regulations governing reasons for 
discharge at the time the applicant was discharged.
    (2) When the board determines that an applicant's discharge was 
inequitable, any change will be based on the evaluation of the 
applicant's overall record of service and relevant regulations.
    (f) Voting shall be conducted in closed session, a majority of the 
five members' votes constituting the DRB's decision.
    (g) Details of closed session deliberations of a DRB are privileged 
information and shall not be divulged.
    (h) A formal minority opinion may be submitted in instances of 
disagreement between members of a board. The opinion must cite findings, 
conclusions and reasons which are the basis for the opinion. The 
complete case with the majority and minority recommendations will be 
submitted to the Director, Air Force Personnel Council.
    (i) The DRB may request advisory opinions from staff offices of the 
Air Force. These opinions are advisory in nature and are not binding on 
the DRB in its decision making process.



Sec.  865.111  Response to items submitted as issues by the applicant.

    (a) 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 section as if it had been set forth separately by the 
applicant.
    (b) 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.
    (c) This section does not preclude 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.
    (d) An item submitted as an issue by an applicant in accordance with 
this regulation shall be addressed as a decisional issue under Sec.  
865.112 of this subpart in the following circumstances:
    (1) 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
    (2) When the DRB does not provide the applicant with the full change 
in discharge requested, and the decision is

[[Page 108]]

based in whole or in part on the DRB's disagreement with the merits of 
an issue submitted by the applicant.
    (e) 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 even if that basis is not 
addressed as an issue by the applicant. No further response is required 
to other issues submitted by the applicant.
    (f) 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 unless one of the following responses is applicable:
    (1) 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 respose may be used only when one issue clearly 
duplicates another or the issue clearly requires discussion in 
conjunction with another issue.
    (2) Citations without principles and facts. The DRB may state that 
any issue, which consists of a citation of a previous 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 Sec.  865.106(g)(1) of this part.
    (3) 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 Sec.  865.110(d) of this 
subpart.
    (4) 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 Sec.  865.110(d), 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, the DRB normally 
will set forth the nature of the disagreement under the guidance in 
Sec.  865.112 of this subpart with respect to decisional issues, or it 
will reject the applicant's position on the basis of Sec.  865.111(f)(1) 
or Sec.  865.111(f)(2). 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.



Sec.  865.112  Decisional issues.

    (a) 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.
    (b) 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.
    (c) 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.
    (d) Relationship of an Issue to Propriety or Equity. (1) If an 
applicant identifies an issue as pertaining to both propriety and 
equity, the DRB will consider it under both standards.
    (2) 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 Sec.  865.112(d)(4), the DRB is not 
required to consider such an issue under the equity standards.
    (3) If the applicant's issue contends that the DRB is required as a 
matter of

[[Page 109]]

law to follow a prior decision by setting forth an issue of propriety 
from the prior decision and decribing its relationship to the 
applicant's case, the issue shall be considered under the propriety 
standards and addressed under Sec.  865.112(e) or Sec.  865.112(f).
    (4) 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.  865.120 of this subpart. 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 Sec.  865.112(h) or Sec.  865.112(i).
    (5) 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.
    (e) Change of discharge: Issues of propriety. If a change in the 
discharge is warranted under the propriety standards the decisional 
document shall state that conclusion and list the errors or 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.
    (f) Denial of the full change requested: Issues of propriety. 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. The 
decisional document shall list reasons for its conclusion on each issue 
of propriety under the following guidance:
    (1) If a reason is based in whole or in part upon a part, 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 
particular circumstances in the case.
    (2) 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 Air Force 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.
    (i) 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.
    (ii) 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 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.
    (3) 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 Sec.  842.112(f) (1) and (2).
    (i) 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).

[[Page 110]]

    (ii) 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) are not relevant to the 
applicant's case.
    (iii) 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.
    (iv) 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.
    (v) 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, 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 the Air Force, 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 as 
such.
    (vi) When an applicant's issue contains a general allegation that a 
certain course of action violated his or her constitutional rights, 
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 challenging the application of a 
statute or regulation is 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.
    (g) 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.
    (h) Change of discharge: Issues of equity. If the DRB concludes that 
a change in the discharge is warranted under equity standards 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.
    (i) Denial of the full change requested: Issues of equity. 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. The DRB shall list reasons for its conclusions on each issue 
of equity in accordance with the following:
    (1) If a reason is based in whole or in part upon a part, 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.
    (2) 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 Air Force 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.

[[Page 111]]

    (i) 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.
    (ii) 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 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.
    (3) 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 Sec.  865.112(i) (1) and (2):
    (i) 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).
    (ii) 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) are not relevant to the 
applicant's case.
    (iii) 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 issues.
    (iv) 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.
    (v) 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, the DRB 
shall explain why the applicant's position did not provide a sufficient 
basis for the change in the discharge requested by the applicant.
    (4) 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 
factors are expressly raised as an issue by the applicant.
    (5) 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.



Sec.  865.113  Recommendations by the Director of the Personnel Council 
and Secretarial Review Authority.

    (a) The Director of the Personnel Council may forward cases for 
consideration by the Secretarial Reviewing Authority (SRA) under rules 
established by the Secretary of the Air Force.
    (b) The following categories of dicharge review requests are subject 
to

[[Page 112]]

the review of the Secretary of the Air Force or the Secretary's 
designee.
    (1) Cases in which a minority of the DRB panel requests their 
submitted opinions be forwarded for consideration (refer to Sec.  
865.110(h)).
    (2) Cases when required in order to provide information to the 
Secretary on specific aspects of the discharge review function which are 
of interest to the Secretary.
    (3) Any case which the Director, Air Force Personnel Council 
believes is of significant interest to the Secretary.
    (c) The Secretarial Reviewing Authority is the Secretary of the Air 
Force or the official to whom he has delegated this authority. The SRA 
may review the types of cases described above before issuance of the 
final notification of a decision. Those cases forwarded for review by 
the SRA shall be considered under the standards set forth in Sec.  
865.121 and DOD Directive 1332.28.
    (d) There is no requirement that the Director of the Personnel 
Council submit a recommendation when a case is forwarded to the SRA. If 
a recommendation is submitted, however, it should be in accordance with 
the guidelines described below.
    (e) Format for Recommendation. If a recommendation is provided, it 
shall contain the Director's views whether there should be a change in 
the character of or reason for discharge (or both). If the Director 
recommends such a change, the particular change to be made shall be 
specified. The recommendation shall set forth the Director's position on 
decisional issues submitted by the applicant in accordance with the 
following:
    (1) Adoption of the DRB's Decisional document. The recommendation 
may state that the Director has adopted the decisional document prepared 
by the majority. The Director shall ensure that the decisional document 
meets the requirements of this regulation.
    (2) Adoption of the Specific Statements From the Majority. If the 
Director adopts the views of the majority only in part, the 
recommendation shall cite the specific matter adopted from the majority. 
If the Director modifies a statement submitted by the majority, the 
recommendation shall set forth the modification.
    (3) 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:
    (i) The issues on which the Director's recommendation is based. Each 
such decisional issue shall be addressed by the Director in accordance 
with Sec.  865.112 of this subpart.
    (ii) The Director's response to items submitted as issues by the 
applicant under Sec.  865.111 of this subpart.
    (iii) Reasons for rejecting the conclusions of the majority with 
respect to decisional issues which, if resolved in the applicant's 
favor, would have resulted in greater relief for the applicant than that 
afforded by the Director's recommendation. Each issue shall be addressed 
in accordance with Sec.  865.112 of this subpart.
    (f) Copies of the proposed decisional document on 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) shall be provided to the applicant and counsel or 
representative, if any. The document will include the Director's 
recommendation to the SRA, if any. Classified information shall be 
summarized.
    (g) The applicant shall be provided with a reasonable period of 
time, but not less than 25 days, to submit a rebuttal to the SRA. 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 
Director on decisional issues and other clear and specific issues that 
were submitted by the applicant. The rebuttal shall be based solely on 
matters in the record when the DRB closed the case for deliberation or 
in the Director's recommendation.
    (h) 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 or representative, 
if any, but a further opportunity for rebuttal is not required unless 
the

[[Page 113]]

correction produces a different result or includes a substantial change 
in the discussion by the DRB or Director of the issues raised by the 
majority or the applicant.
    (i) 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.
    (1) 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 Director, the 
decisional document shall contain a reference to the matter adopted.
    (2) Discussion of Issues. In support of the SRA's decision, the 
addendum shall set forth the SRA's position on decisional issues, items 
submitted by an applicant and issues raised by the DRB and the Director. 
The addendum will state that:
    (i) The SRA has adopted the Director's recommendation.
    (ii) The SRA has adopted the proposed decisional document prepared 
by the DRB.
    (iii) If the SRA adopts the views of the DRB or the Director only in 
part, the addendum shall cite the specific statements adopted. If the 
SRA modifies a statement submitted by the DRB or the Director, the 
addendum shall set forth the modification.
    (3) Response to Issues Not Included in Master Adopted From the DRB 
or the Director. The addendum shall set forth the following if not 
adopted in whole or in part from the DRB or the Director:
    (i) A list of the issues on which the SRA's decision is based. Each 
such decisional issue shall be addressed by the SRA. This includes 
reasons for rejecting the conclusion of the DRB or the Director 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.
    (ii) The SRA's response to items submitted as issues by the 
applicant will be in accordance with Sec.  865.111 of this subpart.
    (4) Response to Rebuttal. (i) 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 document shall be addressed 
accordingly, and no further response to the rebuttal is required.
    (ii) 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 and shall 
set forth the response of the SRA under the following:
    (A) If the SRA rejects an issue in rebuttal, the SRA may respond in 
accordance with the principles in Sec.  865.112 of this subpart.
    (B) 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.
    (C) If the matter submitted by the applicant does not meet the 
requirements for rebuttal material in paragraph (g) of this section, 
that fact shall be noted.
    (j) 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.



Sec.  865.114  Decisional document.

    (a) A decisional document shall be prepared for each review 
conducted by the DRB.
    (b) At a minimum, the decisional decument shall contain:
    (1) The date, character of, and reason for discharge or dismissal 
certificate issued to the applicant upon separation from the military 
service, including the specific regulatory authority under which the 
discharge or dismissal certificate was issued.
    (2) The circumstances and character of the applicant's service as 
extracted from military records and information provided by other 
government authority or the applicant, such as, but not limited to:
    (i) Date of enlistment (YYMMDD).
    (ii) Period of enlistment.
    (iii) Age at enlistment.
    (iv) Length of service.
    (v) Periods of unauthorized absence.

[[Page 114]]

    (vi) Conduct and efficiency ratings (numerical or narrative).
    (vii) Highest rank achieved.
    (viii) Awards and decorations.
    (ix) Educational level.
    (x) Aptitude test scores.
    (xi) Incidents of punishment pursuant to Article 15, Uniform Code of 
Military Justice (including nature and date of offense or punishment).
    (xii) Conviction by court-martial.
    (xiii) Prior military service and type of discharge received.
    (3) 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.
    (4) A statement whether the applicant testified, and a list of the 
type of witnesses, if any, who testified on behalf of the applicant.
    (5) A notation whether the application pertained to the character of 
discharge, the reason for discharge, or both.
    (6) The DRB's conclusions on the following:
    (i) Whether the character of or the reason for discharge should be 
changed.
    (ii) The specific changes to be made, if any.
    (7) A list of the items submitted as issues on DD Form 293 or 
expressly incorporated therein and such other items submitted as issues 
by the applicant that are identified as inadvertently omitted under 
Sec.  865.106(g)(4). 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.
    (8) The response to items submitted as issues by the applicant under 
the guidance in Sec.  865.111.
    (9) A list of decisional issues and a discussion of such issues 
under the guidance of Sec.  865.112.
    (10) Minority views, if any, when authorized under the rules of the 
Secretary of the Air Force.
    (11) The recommendation of the Director when required by Sec.  
865.113.
    (12) Any addendum of the SRA when required by Sec.  865.113.
    (13) 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 the opinions incorporated by 
reference shall be appended to the decision and included in the record 
of proceedings.
    (14) A record of the DRB member's names and votes.
    (15) Index entries for each decisional issue under appropriate 
categories listed in the Subject/Category listing.
    (16) An authentication of the document by an appropriate official.



Sec.  865.115  Issuance of decisions following discharge review.

    (a) 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 in accordance with Sec.  
865.121 of this subpart and of the right to appeal to the Board for the 
Correction of Military Records. Final notification of decisions shall be 
issued to the applicant with a copy to the counsel or representative, if 
any.
    (b) 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 the decision, 
together with a copy of the decisional document.
    (c) Notification of HQ AFMPC/MPCDOAl shall be for the purpose of 
appropriate action and inclusion of review matter in the military 
records. Such notification shall bear appropriate certification of 
completeness and accuracy.
    (d) Actions on review by Secretarial Reviewing Authority, when 
occurring, shall be provided to the applicant and counsel or 
representative in the same manner as the notification of the review 
decision.

[[Page 115]]



Sec.  865.116  Records of DRB proceeding.

    (a) When the proceedings in any review have been concluded, a record 
thereof will be prepared. Records may include written records, 
electromagnetic records, or a combination thereof.
    (b) At a minimum, the record will include the following:
    (1) The application for review (DD Form 293).
    (2) A record of the testimony in verbatim, summarized, or recorded 
form at the option of the DRB.
    (3) Documentary evidence or copies thereof considered by the DRB 
other than the military record.
    (4) Brief/arguments submitted by or on behalf of the applicant.
    (5) Advisory opinions considered by the DRB, if any.
    (6) The findings, conclusions, and reasons developed by the DRB.
    (7) Notification of the DRB's decision to the cognizant custodian of 
the applicant's records, or reference to the notification document.
    (8) Minority reports, if any.
    (9) A copy of the decisional document.



Sec.  865.117  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 record of the applicant and 
returned to the custody of the National Personnel Records Center (NPRC), 
St. Louis, Missouri. If a portion of the original record cannot be 
stored with the service record, the service record shall contain a 
notation as to the place where the record is stored.



Sec.  865.118  Availability of Discharge Review Board documents for
public inspection and copying.

    (a) A copy of the decisional document prepared in accordance with 
Sec.  865.114 of this subpart, shall be made available for public 
inspection and copying promptly after a notice of final decision is sent 
to the applicant.
    (b) To the extent required 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. 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.
    (c) The 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 in accordance with Sec.  865.121 of this subpart.
    (d) Any other privileged or classified material contained in or 
appended to any documents required to be furnished the applicant and 
counsel/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/
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.
    (e) DRB documents made available for public inspection and copying 
shall be located in the Armed Forces Discharge Review/Correction Boards 
Reading Room. The documents shall be indexed in usable and concise form 
so as to enable the public and those who represent applicants before the 
DRB 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 and/or reasons for which the DRB or the Secretary of 
the Air Force granted or denied relief.
    (1) The reading file index shall include, in addition to any other 
items determined by the DRB, the case number, the date, character of, 
reason for, and authority for the discharge. It shall further include 
the decisions of the DRB and reviewing authority, if any, and the issues 
addressed in the statement of findings, conclusions and reasons.
    (2) 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 regional board review. The index 
shall also be made

[[Page 116]]

available at sites selected for regional Boards for such periods as the 
DRB is present and in operation. An applicant who has requested a 
regional board review shall be advised in the notice of scheduled 
hearings.
    (3) The Armed Forces Discharge Review/Correction Board Reading Room 
shall publish indexes quarterly for the DRB. The DRB shall be 
responsible for timely submission to the Reading Room of individual case 
information required for update of indexes. These indexes shall be 
available for public inspection or purchase (or both) at the Reading 
Room. This information will be provided to applicants in the notice of 
acceptance of the application.
    (4) Correspondence relating to matters under the cognizance of the 
Reading Room (including request for purchase of indexes) shall be 
addressed to:

DA Military Review Board Agency, Attention: SFBA (Reading Room), Room 
1E520, The Pentagon, Washington DC 20310



Sec.  865.119  Privacy Act information.

    Information protected under the Privacy Act is involved in discharge 
review functions. The provisions of 32 CFR part 286a will be observed 
throughout the processing of a request for review of discharge or 
dismissal.



Sec.  865.120  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 which aid in determining whether the standards are met shall be 
historically consistent with criteria for determining honorable service. 
No factors shall be established which require automatic change or denial 
of a change in a discharge. Neither the DRB nor the Secretary of the Air 
Force shall be bound by any methodology of weighing of the factors in 
reaching a determination. In each case, the DRB or Secretary of the Air 
Force shall give full, fair, and impartial consideration to all 
applicable factors prior to reaching a decision. An applicant may not 
receive a less favorable discharge than that issued at the time of 
separation. This does not preclude correction of clerical errors.
    (b) Propriety. A discharge shall be deemed to be proper unless in 
the course of discharge review, it is determined that:
    (1) There exists an error of fact, law, procedures, 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
    (2) A change in policy by the Air Force made expressly retroactive 
to the type of discharge under consideration, requires a change in the 
discharge.
    (c) 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.
    (d) 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 blind the DRB in its review of subsequent cases 
because no two cases present the same issues of equity.
    (e) 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

[[Page 117]]

than honorable discharge, taking into account that:
    (1) An Under 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;
    (2) 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.
    (f) The following applies to applicants who received less than fully 
honorable administrative discharges (between June 21, 1971 and March 2, 
1982) because evidence developed by or as a direct result of complusory 
urinalysis testing was introduced in the discharge proceedings. 
Applicants who believe they are members of the above category will so 
indicate this by writing ``CATEGORY W'' in block 7 of their DD Form 293. 
AFMPC/MPCDOA1 will expedite processing these applications to the 
designated ``CATEGORY W'' reviewer. For class members the designated 
reviewer shall either recharacterize the discharge to honorable without 
any additional proceedings or complete a review to determine whether 
proper ground exists for the issuance of a less than honorable 
discharge. If the applicant is determined not to be a class member, the 
application is returned to normal review procedure channels. If new 
administrative proceedings are initiated, the former service member must 
be notified of:
    (1) The basis of separation other than drug abuse or use or 
possession of drugs based upon compelled urinalysis that was specified 
in the commander's report and upon which the Air Force now seeks to base 
a less than honorable discharge.
    (2) The full complement of procedural protections that are required 
by current regulations.
    (3) Name, address and telephone number of an Area Defense Counsel 
with whom the former service member has a right to consult, and
    (4) The right to participate in the new proceedings to be conducted 
at the Air Force base nearest the former service member's current 
address, or to elect to maintain his or her present character of 
discharge.
    (g) 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 an applicant 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 Air Force; or
    (3) In the course of a discharge review, it is determined that a 
change is warranted based upon consideration of the applicant's military 
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) Record 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.

[[Page 118]]

    (I) Length of service during the period which is the subject of the 
discharge review.
    (J) Prior military service and type of discharge received or 
outstanding post-service 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) Record of non-judicial punishment.
    (M) Convictions by civil authorities while a member of the Air 
Force, reflected in the discharge proceedings or otherwise noted in 
military records.
    (N) Record of periods of unauthorized absence.
    (O) Records relating to a discharge in lieu 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 to whether the individual met normal military standards of 
acceptability for military service and similar indicators of an 
individual's ability to serve satisfactorily, as well as ability to 
adjust to the military service.
    (B) Family/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 Actions. This includes actions by 
individuals in authority which constitute a clear abuse of such 
authority and which, 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.  865.121  Complaints concerning decisional documents and index 
entries.

    Former members of the Air Force or their counsel or representative 
may submit complaints with respect to the decisional document issued in 
the former member's case.
    (a) All complaints should be processed in accordance with 32 CFR 
part 70 and should be forwarded to:

Assistant Secretary of Defense, Manpower, Reserve Affairs and Logistics, 
The Pentagon, Washington, DC 20331

    (b) The Air Force Discharge Review Board will respond to all 
complaints in accordance with 32 CFR part 70.



Sec.  865.122  Summary of statistics for Discharge Review Board.

    The Air Force Discharge Review Board shall prepare and provide to 
the Deputy Assistant Secretary of Defense (Military Personnel and Force 
Management) DASD(MP&FM), Office of the ASD(MRA&L), a semiannual report 
of discharge review actions in accordance with Sec.  865.125.



Sec.  865.123  Approval of exceptions to directive.

    Only the Secretary of the Air Force may authorize or approve a 
waiver of, or exception to, any part of this subpart.



Sec.  865.124  Procedures for regional hearings.

    Composition of the board for these hearings consists of three 
members from Washington with augmentation by two members from nearby 
local Air Force resources. The nearest Air Force installation or Air 
Force Reserve Unit is tasked to provide two officers to serve as members 
of the DRB. Active duty members will serve on the board as an additional 
duty. Reserve members will be on a temporary tour of active duty (TTAD) 
for the duration of the hearings. Detailed information must be provided 
to the individuals selected to serve before each hearing date. The 
administrative staff in Washington processes all cases for regional 
hearings, establishes hearing dates, and returns the records to the 
Manpower and Personnel Center at Randolph AFB, Texas, when the case is 
finalized.



Sec.  865.125  Report requirement.

    Semi-annual reports will be submitted by the 20th day of April and 
October for the preceding 6-month reporting period (1 October through 31 
March

[[Page 119]]

and 1 April through 30 September). The reporting period will be 
inclusive from the first through the last days of each reporting period. 
The report will contain four parts:
    (a) Part 1--Regular Cases are all those that are not included in 
part 2 below.
    (b) Part 2--Other cases include the following:
    (1) Reconsideration of President Ford's memorandum of 19 January 
1977.
    (2) Special Discharge Review Program cases.
    (3) Statutes of Limitation Cases--those heard under Pub. L. 95-126 
by waiver of 10 U.S.C. 1553.
    (c) Part 3--Total--combine parts 1 and 2.
    (d) Part 4--Cases outstanding include all those eligible cases in 
which a DD Form 293 has been received but has not been heard by the 
Discharge Review Board as the reporting date for this report. Reports 
will be prepared by the Air Force Discharge Review Board and submitted 
to the Army Discharge Review Board (executive agent for DRB matters).



Sec.  865.126  Sample report format.

                           Summary of Statistics for Air Force Discharge Review Board
                                               RCS: DD-M(SA) 1489
                                                    [FY ___ ]
                                                  [ ________ ]
----------------------------------------------------------------------------------------------------------------
                                          Record review                Hearing                    Total
                                   -----------------------------------------------------------------------------
                                                    Number                    Number                    Number
                                      Applied      approved     Applied      approved     Applied      approved
----------------------------------------------------------------------------------------------------------------
                                    ...........  ...........  ...........  ...........  ...........  ...........
                                    ...........  ...........  ...........  ...........  ...........  ...........
----------------------------------------------------------------------------------------------------------------
Part 1 Regular Cases.
Part 2 Other.
Part 3 Total.
Part 4 Cases Outstanding.
Note: Identify numbers separately for regional DRB hearings. Use of additional footnotes to clarify or amplify
  the statistic being reported is encouraged.



                         SUBCHAPTER H [RESERVED]



[[Page 120]]



                     SUBCHAPTER I_MILITARY PERSONNEL



                        PARTS 888	888g [RESERVED]



               SUBCHAPTER J_CIVILIAN PERSONNEL [RESERVED]



[[Page 121]]



               SUBCHAPTER K_MILITARY TRAINING AND SCHOOLS





PART 901_APPOINTMENT TO THE UNITED STATES AIR FORCE ACADEMY-
-Table of Contents



Sec.
901.0 Purpose.

             Subpart A_Appointment Policies and Requirements

901.1 General policy.
901.2 Appointments and nominations.
901.3 Categories of nominations for appointment.
901.4 Basic eligibility requirements.
901.5 Academic examination requirements.
901.6 Candidate fitness test requirement.

            Subpart B_Nomination Procedures and Requirements

901.7 Precandidate evaluation.
901.8 Congressional and U.S. Possessions categories.
901.9 Vice-Presidential category.
901.10 Presidential category.
901.11 Children of deceased or disabled veterans and children of 
          military or civilian personnel in a missing status category.
901.12 Honor military and honor Naval schools--AFROTC and AFJROTC 
          category.
901.13 Children of Medal of Honor recipients category.
901.14 Regular airmen category.
901.15 Reserve airmen category.
901.16 Superintendent category.
901.17 Foreign students category.
901.18 Appointment vacancy selection.
901.19 Qualified alternate selection.
901.20 Notice of nomination.
901.21 Notification of selection or nonselection.
901.22 Notification of change of address or station assignment.
901.23 Filling Presidential and airmen nominating categories.
901.24 Supply of forms.
901.25 Obligation of cadet appointment.
901.26 Cadet's oath of allegiance.
901.27 Charging of appointees.
901.28 OMB approval of information collection requirements.

    Authority: 10 U.S.C., Chapter 903, and 10 U.S.C. 8012, except as 
otherwise noted.

    Source: 51 FR 23221, June 26, 1986, unless otherwise noted.
    Note: This part is derived from Air Force Regulation 53-10, October 
22, 1985.
    Part 806 of this chapter states the basic policies and instructions 
governing the disclosure of records and tells members of the public what 
they must do to inspect or obtain copies of the material referenced 
herein.



Sec.  901.0  Purpose.

    This part tells civilian and enlisted personnel (including Air Force 
Reserve and National Guard) the methods of applying and the requirements 
and procedures for appointing young men and women to the United States 
Air Force Academy.
    Note: This part is affected by the Privacy Act of 1974. The systems 
of records prescribed in this part are authorized by 10 U.S.C., chapter 
903; and 10 U.S.C. 8012. Each form that is subject to the provisions of 
part 806b.5 of this chapter, and is required by this part, contains a 
Privacy Act Statement either incorporated in the body of the document or 
in a separate statement accompanying each such document.



             Subpart A_Appointment Policies and Requirements



Sec.  901.1  General policy.

    Appointments as U.S. Air Force Academy cadets are offered to those 
candidates having the strongest potential to become successful career 
officers. Offers of appointment are made according to the law and 
guidance provided by HQ USAF to most effectively accomplish the 
Academy's mission. All candidates are appointed as cadets under the 
authority of the President; however, an appointment is conditional until 
the candidate is admitted.



Sec.  901.2  Appointments and nominations.

    Appointments and nominations are based on statutory authority 
contained in 10 U.S.C., chapter 903. Specific authorities may nominate 
eligible applicants for appointment vacancies at the Academy. Each 
applicant must obtain a nomination to receive an appointment. Applicants 
may apply for a nomination in each category in which they are eligible.



Sec.  901.3  Categories of nominations for appointment.

    All appointees must have a nomination in at least one of the 
following categories:

[[Page 122]]

    (a) Congressional and U.S. Possessions categories include the 
following nominating authorities:
    (1) U.S. Senators and Representatives.
    (2) Delegates in Congress from the District of Columbia, Guam, 
Virgin Islands, and American Samoa.
    (3) Resident Commissioner of Puerto Rico.
    (4) Governor of Puerto Rico.
    (5) Administrator of the Panama Canal Commission.
    (b) Vice-Presidential category.
    (c) Presidential competitive category.
    (d) Children of deceased or disabled veterans and children of 
military or civilian personnel in missing status competitive category.
    (e) Honor military and honor Naval schools, Air Force Reserve 
Officers' Training Corps (AFROTC), and Air Force Junior Reserve 
Officers' Training Corps (AFJROTC) competitive category.
    (f) Children of Medal of Honor recipients category.
    (g) Air Force enlisted regular competitive category.
    (h) Air Force enlisted reserve competitive category.
    (i) Superintendent competitive category.
    (j) Foreign students competitive category (40 foreign persons 
designated to receive instruction under 10 U.S.C 9344).



Sec.  901.4  Basic eligibility requirements.

    Each applicant must meet the following eligibility requirements:
    (a) Age. Applicants must be at least 17, and not have passed their 
22nd birthday on July 1 of the year of entry into the Academy.
    (b) Citizenship. Except for students sponsored by foreign 
governments under 10 U.S.C. 9344, applicants must be citizens or 
nationals of the United States. All incoming cadets must verify 
citizenship status before admission:
    (1) For American-born citizens, certified birth certificate 
presented to the Director of Admissions (USAFA/RRS), U.S. Air Force 
Academy, Colorado Springs CO 80840-5651 before administration of oath of 
appointment.
    (2) Foreign cadets must present certified copies of certificates of 
arrival and nationalization or citizenship to USAFA/RRS before 
administration of oath of appointment.
    Note: Facsimiles, copies, photographs or otherwise of birth 
certificate or certificate of citizenship will not be accepted unless 
properly certified by the raised seal of the issuing authority.
    (c) Domicile. If nominated by an authority designated in the 
Congressional and U.S. Possessions categories, the applicant must be 
domiciled within the constituency of such authority.
    (d) Exemplary standards. Applicants must be of highest moral 
character, personal conduct, and integrity. The Academy requires 
applicants to explain or clarify any of the circumstances below. For any 
military applicant or nominee whose official records indicate 
questionable background, commanders furnish the applicable information 
to USAFA/RRS.
    (1) Applicant is or has been a conscientious objector. In this case, 
an affidavit is required stating that such beliefs and principles have 
been abandoned so far as they pertain to willingness to bear arms and 
give full and unqualified military service to the United States.
    (2) Any facts that indicate the applicant's appointment may not be 
consistent with the interests of national security.
    (3) Conviction by court-martial of other than a ``minor offense'' 
(MCM, 1984, part V, paragraph 1e, page V-1) or conviction of a felony in 
a civilian court.
    (4) Elimination from any officer training program or any preparatory 
school of the Army, Navy, or Air Force Academies for military 
inaptitude, indifference, or undesirable traits of character. This 
includes any person who resigned in lieu of impending charges or who was 
eliminated by official action.
    (5) Habitual alcohol misuse or drug abuse which exceeds the 
standards of AFR 30-2 is disqualifying.
    (6) Any behavior, activity, or association showing the applicant's 
conduct is incompatible with exemplary standards of personal conduct, 
moral character, and integrity.

[[Page 123]]

    (e) Marital status. Applicant must be unmarried. (Any cadet who 
marries is disenrolled from the Academy.)
    (f) Dependents. Applicant must not have a legal obligation to 
support a child, children, or any other person.
    Note: For the purpose of this regulation, children are defined as 
the natural children of a parent and adopted children whose adoption 
proceedings were initiated before their 15th birthday.
    (g) Medical requirements for admission. Before being admitted to the 
academy, candidates must take a medical examination and meet the medical 
standards outlined in AFRs 160-13 and 160-43. All candidates must meet 
the medical standards specified by the Secretary of the Air Force. 
Waivers may be granted by the Air Force Academy Command Surgeon. As 
specified by HQ USAF, most of the candidates admitted to the Academy 
must meet the eligibility standards for flying training.



Sec.  901.5  Academic examination requirements.

    Before being offered an appointment, candidates must take either the 
College Board Admission Testing Program (ATP) or the American College 
Testing Program (ACT) test.
    (a) ATP. A candidate who elects to use the ATP tests must take the 
Scholastic Aptitude Tests (SAT). The candidate is encouraged but not 
required to take achievement tests of English Composition and Level 1 
(Standard) Mathematics or Level II (Intensive) Mathematics. (Level 1 
recommended for candidates without advanced high school mathematics.)
    (b) ACT. Candidates who elect to use the ACT tests must take the 
complete battery of tests: English, mathematics, social studies, and 
natural sciences.



Sec.  901.6  Candidate fitness test requirement.

    Before being offered an appointment, candidates must take a 
Candidate Fitness Test (CFT) which consists of exercises designed to 
measure muscular strength, coordination, and aerobic power. Waivers to 
the CFT requirement may be granted by the Air Force Academy Director of 
Athletics if a candidate's participation in high school athletics 
conflicts with test administration dates and the candidate clearly 
demonstrates an acceptable level of physical fitness.



            Subpart B_Nomination Procedures and Requirements



Sec.  901.7  Precandidate evaluation.

    The Air Force Academy conducts a precandidate evaluation program as 
an initial step in the admissions process and as an aid to Members of 
Congress in screening their applicants for nomination.
    (a) Applicants normally are sent a precandidate packet, including 
USAFA Form 149, Precandidate Questionnaire, with a request for the 
applicant to provide academic, athletic, leadership, and medical 
information.
    (b) The Academy evaluates the precandidate information and provides 
an analysis to appropriate congressional offices. Such information gives 
the nominating authorities an indication of the applicant's potential to 
qualify for admission and the applicant's self-reported medical status; 
it does not, however, reflect the applicant's final admission status. It 
is intended only to aid in selecting the best-qualified applicants for 
nomination.
    (c) Applicants whose evaluation indicates they are fully qualified 
will be notified and advised to seek a nomination. Individuals whose 
evaluations reflect areas needing improvement are informed and 
encouraged to submit additional test scores or information in an effort 
to meet the qualifying levels.



Sec.  901.8  Congressional and U.S. Possessions categories.

    Individuals who meet the basic eligibility requirements of Sec.  
901.4 may apply for a nomination according to their domicile (permanent 
legal residence).
    (a) U.S. Senators, U.S. Representatives, the District of Columbia 
Delegate to the House of Representatives, and the Resident Commissioner 
of Puerto Rico are each authorized a quota of five cadets attending the 
Academy at any one time. If a vacancy occurs in their quota, each may 
nominate ten candidates to fill each vacancy.
    (b) Delegates in Congress from Guam and from the Virgin Islands are 
each

[[Page 124]]

authorized a quota of two cadets attending the Academy at any one time. 
If a vacancy occurs in their quota, each may make ten nominations. 
Eligible residents may apply for a nomination directly to their 
Delegate.
    (c) The Governor of Puerto Rico, the Delegate from American Samoa, 
and the Panama Canal Commission Administrator may each have one cadet 
attending the Academy and each may nominate ten candidates to fill their 
vacancy.
    (1) Applicants domiciled in and natives of Puerto Rico may apply to 
the Governor of Puero Rico in addition to the Resident Commissioner.
    (2) Applicants domiciled in American Samoa may apply to their 
Delegate.
    (3) Children of civilian personnel of the U.S. Government residing 
in the Republic of Panama who are citizens of the United States may 
apply to the Panama Canal Commission Administrator.
    (d) Nominating authorities in these categories normally submit their 
nominations by January 31 for the class entering the following summer.
    (1) These nominating authorities may nominate only if a vacancy 
occurs from their authorized quota of cadets attending the Academy. 
Vacancies normally occur from graduation or separation of cadets from 
the Academy. Failure of a member of a graduating class to complete the 
Academy program with his class does not delay the admission of his or 
her successor. HQ USAF/DPPA maintains the master records of cadets 
nominated and appointed, determines vacancies in each nominating 
authority's quota, and validates nominations submitted by each 
nominating authority.
    (2) These nominating authorities forward their nominations on DD 
Form 1870, Nomination for Appointment to the U.S. Military Academy, 
Naval Academy, or Air Force Academy, for each Air Force Academy nominee 
through HQ USAF/DPPA, Washington, DC 20330-5060, to USAFA/RRS, USAF 
Academy, Colorado Springs, CO 80840-5651.



Sec.  901.9  Vice-Presidential category.

    The Vice President of the United States nominates from the United 
States at large, and is authorized a quota of five cadets attending the 
Academy at any one time. For each vacancy occurring in the quota, ten 
individuals may be nominated to fill the vacancy. Requests for a 
nomination are submitted directly to the Vice President no later than 
October 31. Any individual who meets the basic eligibility requirements 
of Sec.  901.4 may apply to the Vice President for a nomination. The 
Vice President forwards nominations on DD Form 1870 for each Air Force 
Academy nominee through HQ USAF/DPPA, Washington, DC 20330-5060, to 
USAFA/RRS, USAF Academy, Colorado Springs, CO 80840-5651.



Sec.  901.10  Presidential category.

    Appointments to fill vacancies from this category are made from 
candidates in order of merit. One hundred appointments are authorized 
each year.
    (a) The child of a Regular or Reserve member of the Armed Forces of 
the United States is eligible for nomination if:
    (1) The parent is on active duty and has completed 8 years of 
continuous active duty service (other than for training) by July 1 of 
the year that the candidate would enter the U.S. Air Force Academy; or
    (2) The parent was retired with pay or was granted retired or 
retainer pay (children of reservists retired and receiving pay pursuant 
to 10 U.S.C., chapter 67, are ineligible); or
    (3) The parent died after retiring with pay or died after being 
granted retired or retainer pay (children of such reservists who were 
retired and receiving pay pursuant to 10 U.S.C., chapter 67, are 
ineligible); and
    (4) The applicant does not meet the eligibility requirements for the 
Children of Deceased or Disabled Veterans (CODDV) nomination category. 
(By law, a person eligible for appointment consideration under the DOCCV 
category is not a candidate in the Presidential category.)
    (b) An eligible individual applies to USAFA/RRS, U.S. Air Force 
Academy, Colorado Springs, CO 80840-5651. A suggested letter format is 
included in the precandidate packet. The nominating period opens on May 
1 and closes January 31. Applicants do not write directly

[[Page 125]]

to the President of the United States, since the applications are 
processed by the Air Force Academy.
    Note: For the purpose of this category, children are defined as the 
natural children of a parent and adopted children whose adoption 
proceedings were initiated before their 15th birthday.



Sec.  901.11  Children of deceased or disabled veterans and children of
military or civilian personnel in a missing status category.

    Appointments to fill vacancies from this competitive category are 
made from candidates in order of merit. Appointments authorized in this 
category are limited to 65 cadets at the Academy at any one time.
    (a) The child of a deceased or disabled member of the Armed Forces 
of the United States is eligible for nomination if:
    (1) The parent was killed in action or died of wounds or injuries 
received or diseases contracted while in active service or of 
preexisting injury or disease aggravated by active service; or
    (2) The parent has a permanent service-connected disability rated at 
not less than 100 percent resulting from wounds or injuries received or 
diseases contracted while in active service, or of preexisting injury or 
disease aggravated by active service.
    (b) The child of a parent who is in ``missing status'' is eligible 
if the parent is a member of the Armed Services or a civilian employee 
in active government service who is officially carried or determined to 
be absent in a status of missing; missing in action; interned in a 
foreign country; captured, beleaguered, or beseiged by a hostile force; 
or detained in a foreign country against the person's will.
    (c) To request a nomination in this category, an individual submits 
an application to USAFA/RRS between May 1 and January 31. A suggested 
letter format is included in the precandidate packet.
    Note: For the purpose of this category, children are defined as the 
natural children of a parent and adopted children whose adoption 
proceedings were initiated before the 15th birthday.



Sec.  901.12  Honor military and honor Naval schools--AFROTC and AFJROTC
category.

    Appointments to fill vacancies from this competitive category are 
made from candidates in order of merit. Twenty appointments are 
authorized each year.
    (a) Honor military and honor Naval schools:
    (1) Five honor graduates, or prospective honor graduates, from each 
designated honor military and honor naval school may be nominated to 
fill the vacancies allocated to this category. School authorities must 
certify that each nominee is a prospective honor graduate or an honor 
graduate, and meets the basic eligibility requirements.
    (2) School authorities submit nominees directly to the Academy 
(USAFA/RRS) using specific nomination forms. Such nominations are 
submitted no later than January 31 of the entry year. Nominations are 
not limited to honor graduates of the current year. An individual 
eligible for nomination in this category applies to the administrative 
authority of the school involved.
    (b) AFROTC and AFJROTC:
    (1) Five students from each college or university AFROTC detachment 
may be nominated to compete for the vacancies allocated in this 
category.
    (i) Students must apply for nomination to the Professor of Aerospace 
Studies (PAS) who must certify that the applicants meet the basic 
eligibility requirements and have or will have satisfactorily completed 
at least 1 year of scholastic work at the time the class for which they 
are applying enters the Academy.
    (ii) The PAS uses the forms provided by the Academy to recommend for 
nomination the five best-qualified applicants to the president of the 
educational institution in which the AFROTC detachment is established.
    (iii) Nominations from the president of the institution are 
submitted directly to the Academy (USAFA/RRS) by January 31 of the entry 
year.
    (2) Five students from each high school AFJROTC detachment may be 
nominated to compete for the vacancies allocated to this category.

[[Page 126]]

    (i) Students must apply for nomination to the Aerospace Science 
Instructor, who must certify that the applicants meet the basic 
eligibility requirements and have or will have successfully completed 
the prescribed AFJROTC program by the end of the school year.
    (ii) The Aerospace Science Instructor uses the nomination forms 
provided by the Academy to recommend for nomination the five best-
qualified applicants to the principal of the high school in which the 
AFJROTC detachment is established.
    (iii) Nominations from the principal of the high school are 
submitted directly to the Academy by January 31 of the entry year.



Sec.  901.13  Children of Medal of Honor recipients category.

    (a) The child of any Medal of Honor recipient who served in any 
branch of the Armed Forces may apply for nomination. If applicants meet 
the eligibility criteria and qualify on the entrance examinations, they 
are admitted to the Academy. Appointments from this category are not 
limited.
    (b) The applicant applies directly to the Academy requesting a 
nomination in this category. The nominating period opens on May 1 and 
closes January 31. A suggested letter format is included in the 
precandidate packet.
    Note: For the purpose of this category, children are defined as the 
natural children of a parent and adopted children whose adoption 
proceedings were initiated before their 15th birthday.



Sec.  901.14  Regular airmen category.

    Appointments to fill vacancies from this competitive category are 
made from candidates in order of merit. A total of 85 appointments are 
authorized from this category each year. Applications must be submitted 
no later than January 31 of the entry year.
    (a) Any enlisted member of the Regular component of the Air Force 
may apply for nomination. Selectees must be in active duty enlisted 
status when appointed as cadets.
    (b) Regular category applicants must arrange to have their high 
school transcripts submitted to USAFA/RRS. They must also complete AF 
Form 1786, ``Application for Appointment to the United States Air Force 
Academy Under Quota Allotted to Enlisted Members of the Regular and 
Reserve Components of the Air Force,'' and submit it to their 
organization commander who:
    (1) Determines if the applicant meets the basic eligibility 
requirements shown in Sec.  901.4 of this part. If disqualified, the 
application is returned and the applicant is informed of the reason.
    (2) Advises the Consolidated Base Personnel Office (CBPO) to hold 
any reassignment action of the airman pending selection for an 
appointment. The CBPO places the airman in assignment availability code 
(AAC) 05 and coordinates on AF Form 1786. Applicants not selected are 
reassigned on Academy notification to the CBPO. Applicants to technical 
school follow-on training (if there is any) or PCS to their end 
assignment also are reassigned. The initial application package from the 
technical training center CBPO to USAFA/RRS includes the following 
information on all pipe-line students: name, SSN, AFSC, course 
graduation date, follow-on training, and end assignment.
    (3) Completes an indorsement and forwards AF Form 1786 through the 
CBPO to USAFA/RRS, USAF Academy, Colorado Springs CO 80840-5651. The 
commander's indorsement must include a comprehensive statement of the 
applicant's character, ability, and motivation to become a career 
officer. Statements in the application regarding component, length of 
service, and date of birth must be verified from official records.



Sec.  901.15  Reserve airmen category.

    Appointments to fill vacancies from this competitive category are 
made from candidates in order of merit. A total of 85 appointments are 
authorized from this category each year. Applications must be submitted 
no later than January 31 of the entry year.
    (a) Any enlisted member of the Air Force Reserve or the Air National 
Guard of the United States (ANGUS) may apply for nomination.
    (b) A Reserve commissioned officer who satisfactorily completes 1 
year of

[[Page 127]]

service in an active Reserve assignment by July 1 of the year in which 
admission is sought may apply for vacancies in this category. (Reserve 
commissioned officer on extended active duty (EAD) may apply for 
vacancies in the Regular competitive category.) If selected, such 
candidates must have commissioned officer status terminated and be in 
the enlisted Air Force Reserve before appointment as Air Force Academy 
cadets. Cadets in this category who are separated from the Air Force 
Academy without prejudice and under honorable conditions may apply for 
reappointment as Reserve commissioned officers.
    (c) Reserve category applicants must arrange to have their high 
school transcripts submitted to USAFA/RRS, complete AF Form 1786, and 
submit it to their organization commander. The organization commander 
processes the application as outlined in Sec.  901.14(b). A Reserve 
applicant is not placed on active duty to be processed for nomination or 
appointment to the Air Force Academy.
    (d) Reserve airmen on EAD as a result of an honor suspension from 
the Air Force Academy Cadet Wing must reapply for admission under the 
procedures specified in Sec.  901.14(b). Additionally, the AF Form 1786 
which they submit must be endorsed by their wing commander, as well as 
their squadron commander, and must make specific recommendations about 
their potential to conform to Cadet Honor Code standards.



Sec.  901.16  Superintendent category.

    Fifty eligible applicants who have not secured a nomination to the 
Academy from any other nominating authority may be nominated by the 
Superintendent. Highly qualified applicants are selected for nomination 
from the nationwide precandidate program by the Academy. Appointments 
from this category are made in order of merit from the nationwide pool 
of qualified alternates to fill the class.



Sec.  901.17  Foreign students category.

    (a) The Academy is authorized to provide instruction to as many as 
40 foreign persons at any one time. Foreign citizens must apply to the 
government of their own country. Coordination with the U.S. Embassy is 
necessary to ensure all admission and appointment requirements are met. 
HQ USAF/DPPA effects necessary consultation before nomination 
invitations are forwarded to each country.
    (b) The application must contain complete particulars about the 
applicant's background and must be submitted as early as possible. 
Nominations from this category must be received by the Academy by 
December 31 before their desired summer admission. Applicants in these 
categories must meet the eligibility and admissions requirements 
established for all Academy candidates, except the requirement to be a 
U.S. citizen, and they must be able to read, write, and speak English 
proficiently.



Sec.  901.18  Appointment vacancy selection.

    To fill a vacancy in the Vice-Presidential quota or in the quota of 
a nominating authority in the congressional and U.S. Possessions 
categories, selections for appointment offers are made according to the 
following nomination methods.
    (a) The principal numbered-alternate method. The nominating 
authority indicates his or her personal preference by designating a 
principal nominee and listing nine numbered alternate nominees in order 
of preference, and the appointment is offered to the first fully 
qualified nominee.
    (b) The principal competitive-alternate method. The nominating 
authority designates his or her principal nominee and names up to nine 
other nominees who are evaluated by the Academy and ranked behind the 
principal nominee in order of merit. If the principal nominee is fully 
qualified, that individual is offered the appointment; otherwise, the 
fully qualified nominee ranked the highest by the Academy is offered the 
appointment.
    (c) The competitive method. At the request of the nominating 
authority, the Academy evaluates the records of all the nominees and 
ranks them in order of merit. The fully qualified nominee ranked the 
highest by the Academy is offered the appointment.

[[Page 128]]



Sec.  901.19  Qualified alternate selection.

    Fully qualified candidates not offered appointments in their 
nominating category are placed in a nationwide pool of qualified 
alternates. To bring the Cadet Wing up to full strength, additional 
appointments are selected from this pool in order of merit. The first 
150 additional appointments are of individuals having nominations from 
Members of Congress. Thereafter, three of every four additional 
appointments are of individuals having nominations from the Vice 
President, Members of Congress, Delegates to Congress (from the District 
of Columbia, Virgin Islands, and Guam), Governor of Puerto Rico, 
Resident Commissioner of Puerto Rico, or Administrator of Panama Canal 
Commission.



Sec.  901.20  Notice of nomination.

    The Director of Admissions (USAFA/RRS) acknowledges receipt of all 
applicants' nominations. If not previously received, USAFA/RRS forwards 
a precandidate questionnaire for completion. If the precandidate 
questionnaire indicates the potential to qualify for admission to the 
Academy or the Preparatory School, USAFA/RRS sends the individual a 
candidate kit which includes: USAFA Form 146, AFA Candidate Personal 
Data Record; USAFA Form 147, AFA Candidate Activities Record; and USAFA 
Form 148, AFA Request for Secondary School Transcript; AF Form 2030, 
Drug Abuse Certificate; and complete processing instructions.



Sec.  901.21  Notification of selection or nonselection.

    (a) Notification of candidates selected for appointment are 
furnished by USAFA/RRS to HQ USAF/DPPA. HQ USAF/DPPA notifies Members of 
Congress and the Vice President of offers of appointment. After HQ USAF/
DPPA notifies the nominating sources and advises USAFA/RRS that 
notification has been completed, USAFA/RRS notifies each appointee 
(civilian, Regular or Reserve service member) by letter, enclosing an 
acceptance or declination statement form. On receipt of an acceptance 
statement for each unconditional offer of appointment, USAFA/RRS 
forwards the completed candidate file to Cadet Examinations and Records 
(USAFA/RR). Conditional offers of appointment that have been accepted 
are held by USAFA/RRS until the conditional factor is resolved--medical 
status cleared, satisfactory preparatory school or college transcript 
received, proof of citizenship provided, etc. HQ USAF/DPPA is notified 
of removal of conditional status from offer of appointment in order to 
notify nominating sources as stated above. USAFA/RR completes admissions 
in-processing by:
    (1) Forwarding an appointment kit which includes detailed reporting 
instructions to each appointee.
    (2) Issuing invitation to travel orders.
    (3) Notifying the Directorate of Cadet Personnel (USAFA/DPYC) of 
Regular airmen appointees. Regular airmen in technical school completes 
all phases of training, if time permits, before reporting to the 
Academy. On graduation, the airmen remain at the technical school in 
casual status (unless otherwise directed by HQ AFMPC/MPCRAC1) until 
earliest reporting date for the Academy.
    (b) The Department of Defense Medical Examination Review Board 
(DODMERB) notifies applicants of their medical status. USAFA/RRS informs 
HQ USAF/DPPA of changes in medical status of candidates offered 
conditional appointments.
    (c) USAFA/RRS notifies each unsuccessful candidate by May 1. For 
active duty Air Force personnel, the servicing CBPO also is notified and 
cancels the airman's Assignment Availability Code 05.



Sec.  901.22  Notification of change of address or station assignment.

    The applicant or nominee is personally responsible for notifying 
USAFA/RRS, USAF Academy, Colorado Springs, CO 80840-5651, of every 
change of address or station assignment. Notifications from military 
personnel must include complete name, grade, SSN, and new organization 
or unit to which assigned.

[[Page 129]]



Sec.  901.23  Filling Presidential and airmen nominating categories.

    If any of the annual quotas of cadets authorized in the Regular 
airman, Reserve airman, or Presidential nomination categories are not 
filled, then candidates from the other two categories may fill the 
vacancies on a best-qualified basis.



Sec.  901.24  Supply of forms.

    USAFA Forms 146, 147, 148 and 149 are stocked and issued by USAFA/
RRS, USAF Academy, Colorado Springs, CO 80840-5651. DD Form 1870 is 
stocked and issued by the Air Force Academy Activities Group, HQ USAF/
DPPA, Washington, DC 20330-5060.



Sec.  901.25  Obligation of cadet appointment.

    (a) A cadet who enters the Air Force Academy directly from civilian 
status and takes an oath of allegiance as a cadet normally assumes a 
military service obligation of not less than 6 years nor more than 8 
years under 10 U.S.C. 651.
    (b) A cadet who enters the Air Force Academy from the Regular or 
Reserve component of the Air Force and fails to complete the Academy 
course of instruction reverts to enlisted status to complete any prior 
service obligation under 10 U.S.C. 516.
    (c) If they are minors, cadets are required to sign an agreement 
with the parent's or guardian's consent that they will fulfill the 
following obligations:
    (1) Complete the Academy course of instruction unless disenrolled 
from the Academy by competent authority.
    (2) Accept an appointment and on graduation serve as a commissioned 
officer in a Regular component of one of the armed services for 5 years.
    (3) Serve as a commissioned officer in the Reserve component until 
the 8th anniversary if authorized to resign from the Regular component 
before the 8th anniversary of their graduation.
    (4) Be subject to the separation policies in AFR 53-3 and, perhaps, 
be required to serve on active duty in enlisted status if disenrolled 
from the Academy before graduation.
    (5) Reimburse the U.S. Air Force under regulations prescribed by the 
Secretary of the Air Force for the costs of Academy education if the 
recipient, voluntarily or because of misconduct, fails to complete the 
period of active duty incurred.



Sec.  901.26  Cadet's oath of allegiance.

    On admission, each appointee (except foreign cadets) will be 
required to take the following oath of allegiance:

    I (name), having been appointed an Air Force cadet in the United 
States Air Force, do solemnly swear (or affirm) that I will support and 
defend the Constitution of the United States against all enemies, 
foreign and domestic; that I will bear true faith and allegiance to the 
same; that I take this obligation freely, without any mental reservation 
or purpose of evasion; and that I will well and faithfully discharge the 
duties of the office of which I am about to enter. So Help Me God.


If an appointee refuses to take and subscribe to the oath, the 
appointment is terminated.



Sec.  901.27  Charging of appointees.

    Appointment of candidates is according to Sec.  901.18. Selecting of 
the charged cadets from the nominees for each vacancy is accomplished as 
follows:
    (a) Principal nominee, numbered-alternate method. Principal, if 
meeting the admission criteria, is appointed and charged. Otherwise the 
1st alternate, if meeting the admission criteria, is appointed and 
charged or the next succeeding numbered alternate who meets the 
admission criteria is appointed and charged. In instances where a 
candidate received two principal nominations from two Congressional 
sources, the principal normally is charged to the Member of Congress 
submitting the principal nomination first.
    (b) Principal nominee, competitive-alternate method. Principal, if 
meeting the admission criteria, is appointed and charged. All alternates 
are ranked according to merit. If the principal does not meet admission 
criteria, the highest ranking alternate is appointed and charged.
    (c) Competitive nominee method. The group of competitive nominees 
are evaluated, ranked according to merit, and the highest-ranked 
nominee, if meeting the admission criteria, is appointed and charged.

[[Page 130]]

    (d) Multiple Congressional nominations. For candidates receiving 
numerous nominations, normally the candidate is charged to the 
congressional source. If the candidate is nominated by several 
congressional sources, the candidate normally is charged to the slate of 
the congressional member where the candidate ranks the highest, unless 
the candidate is the principal nominee or a numbered alternate.
    (e) Other sources of nomination. All other candidates not nominated 
by congressional, Vice-Presidential, or U.S. Possessions who are 
appointed are charged to that nominating source (Presidential, AFJROTC, 
AFROTC, CODDV, Medal of Honor, etc.).
    (f) Qualified alternates. To bring the Cadet Wing up to strength, 
the qualified alternate appointed according to Sec.  901.19 is charged 
to the Secretary of the Air Force as a qualified alternate. Those 
candidates having congressional, Vice-Presidential, or U.S. Possessions 
nominations appear as a qualified alternate for that nominating source.
    (g) Multiple congressional and other sources of nominations. For 
appointees who have multiple nominations, USAFA/RRS determines the 
appointment category to which they are assigned. Normally a cadet with 
both congressional and non-congressional nominations is assigned to a 
congressional authority. Designation of ``charged'' cadets (those 
filling a Vice-Presidential, congressional, or U.S. Possessions quota) 
also is accomplished by USAFA/RRS according to Sec.  901.18. USAFA/RRS 
notifies HQ USAF/DPPA of these assignments which are audited and 
verified by HQ USAF/DPPA. The Vice Presidential and nominating 
authorities in Congress and U.S. Possessions are notified of their 
charged appointees and other nominees who win appointments by HQ USAF/
DPPA.



Sec.  901.28  OMB approval of information collection requirements.

    The information collection requirements in this part 901 have been 
approved by the Office of Management and Budget under control numbers 
0701-0026, 0701-0063, 0701-0064, 0701-0066 and 0701-0087.



                       SUBCHAPTERS L	M [RESERVED]



[[Page 131]]



            SUBCHAPTER N_TERRITORIAL AND INSULAR REGULATIONS





PART 935_WAKE ISLAND CODE--Table of Contents



                            Subpart A_General

Sec.
935.1 Applicability.
935.2 Purpose.
935.3 Definitions.
935.4 Effective date.

                Subpart B_Civil Administration Authority

935.10 Designation and delegation of authority.
935.11 Permits.
935.12 Functions, powers, and duties.
935.13 Revocation or suspension of permits and registrations.
935.14 Autopsies.
935.15 Notaries public.
935.16 Emergency authority.

                           Subpart C_Civil Law

935.20 Applicable law.
935.21 Civil rights, powers, and duties.

                         Subpart D_Criminal Law

935.30 General.

                        Subpart E_Petty Offenses

935.40 Criminal offenses.

                           Subpart F_Penalties

935.50 Petty offenses.
935.51 Motor vehicle violations.
935.52 Violations of Subpart O or P of this part.
935.53 Contempt.

                           Subpart G_Judiciary

935.60 Wake Island Judicial Authority
935.61 Wake Island Court.
935.62 Island Attorney.
935.63 Public Defender.
935.64 Clerk of the Court.
935.65 Jurisdiction.
935.66 Court of Appeals.
935.67 Clerk of the Court of Appeals.
935.68 Jurisdiction of the Court of Appeals.
935.69 Qualifications and admission to practice.

                    Subpart H_Statute of Limitations

935.70 Limitation of actions.

                 Subpart I_Subpoenas, Wake Island Court

935.80 Subpoenas.

                         Subpart J_Civil Actions

935.90 General.
935.91 Summons.
935.92 Service of complaint.
935.93 Delivery of summons to plaintiff.
935.94 Answer.
935.95 Proceedings; record; judgment.
935.96 Execution of judgment.
935.97 Garnishment.

                       Subpart K_Criminal Actions

935.100 Bail.
935.101 Seizure of property.
935.102 Information.
935.103 Motions and pleas.
935.104 Sentence after a plea of guilty.
935.105 Trial.

                    Subpart L_Appeals and New Trials

935.110 Appeals.
935.111 New trial.

                        Subpart M_Peace Officers

935.120 Authority.
935.121 Qualifications of peace officers.
935.122 Arrests.
935.123 Warrants.
935.124 Release from custody.
935.125 Citation in place of arrest.

                      Subpart N_Motor Vehicle Code

935.130 Applicability.
935.131 Right-hand side of the road.
935.132 Speed limits.
935.133 Right-of-way.
935.134 Arm signals.
935.135 Turns.
935.136 General operating rules.
935.137 Operating requirements.
935.138 Motor bus operation.
935.139 Motor vehicle operator qualifications.
935.140 Motor vehicle maintenance and equipment.

                Subpart O_Registration and Island Permits

935.150 Registration.
935.151 Island permit for boat or vehicle.
935.152 Activities for which permit is required.

                         Subpart P_Public Safety

935.160 Emergency requirements and restrictions.
935.161 Fire hazards.
935.162 Use of special areas.
935.163 Unexploded ordnance material.
935.164 Boat operations.

[[Page 132]]

935.165 Floating objects.

    Authority: Sec. 48, Pub. L. 86-624, 74 Stat. 424; E.O. 11048, Sept. 
1, 1962, 27 FR 8851, 3 CFR, 1959-1963 Comp., p. 632; agreement between 
the Department of Interior and Department of the Air Force, dated 19 
June 1972, 37 FR 12255; and Secretary of the Air Force Order 111.1, 
dated 26 April 1999.

    Source: 67 FR 16999, Apr. 9, 2002, unless otherwise noted.



                            Subpart A_General



Sec.  935.1  Applicability.

    (a) The local civil and criminal laws of Wake Island consist of this 
part and applicable provisions of the laws of the United States.
    (b) For the purposes of this part, Wake Island includes Wake, Peale, 
and Wilkes Islands, and the appurtenant reefs, shoals, shores, bays, 
lagoons, keys, territorial waters, and superadjacent airspace of them.



Sec.  935.2  Purpose.

    The purpose of this part is to provide--
    (a) For the civil administration of Wake Island;
    (b) Civil laws for Wake Island not otherwise provided for;
    (c) Criminal laws for Wake Island not otherwise provided for; and
    (d) A judicial system for Wake Island not otherwise provided for.



Sec.  935.3  Definitions.

    In this part--
    (a) General Counsel means the General Counsel of the Air Force or 
his successor in office.
    (b) Commander means the Commander, Wake Island.
    (c) Commander, Wake Island means the Commander of Pacific Air Forces 
or such subordinate commissioned officer of the Air Force to whom he may 
delegate his authority under this part.
    (d) He or his includes both the masculine and feminine genders, 
unless the context implies otherwise.
    (e) Judge includes Judges of the Wake Island Court and Court of 
Appeals.



Sec.  935.4  Effective date.

    This part was originally applicable at 0000 June 25, 1972. 
Amendments to this part apply April 10, 2002.



                Subpart B_Civil Administration Authority



Sec.  935.10  Designation and delegation of authority.

    (a) The civil administration authority at Wake Island is vested in 
the Secretary of the Air Force. That authority has been delegated to the 
General Counsel of the Air Force with authority to redelegate all or any 
part of his functions, powers, and duties under this part to such 
officers and employees of the Air Force as he may designate, but 
excluding redelegation of the power to promulgate, amend, or repeal this 
part, or any part thereof. Such redelegation must be in writing and must 
be in accordance with any applicable Secretary of the Air Force Orders. 
Such redelegation may be further redelegated subject to such 
restrictions as the delegating authority may impose. A redelegation may 
also be made to a commissioned officer serving in another United States 
military service who exercises military command, but such redelegation 
must explicitly and specifically list the powers redelegated and shall 
not include the power or authority to issue permits, licenses, or other 
outgrants unless individually approved by the Air Force official who 
made the redelegation. The Commander is the agent of the Secretary, his 
delegate and designee when carrying out any function, power, or duty 
assigned under this part.
    (b) The authority of the General Counsel to appoint Judges shall not 
be delegated.
    (c) Judges and officers of the court may not redelegate their powers 
or authorities except as specifically noted in this part.



Sec.  935.11  Permits.

    (a) Permits in effect on the dates specified in Sec.  935.4 continue 
in effect until revoked or rescinded by the Commander. Permits issued by 
the Commander shall conform to the requirements of Air Force Instruction 
32-9003 (Available from the National Technical Information Service, 5285 
Port Royal Road, Springfield, VA 22161.). No permit or registration 
shall be issued under other authority that is inconsistent with this 
part. The Commander

[[Page 133]]

may issue island permits or registration for--
    (1) Businesses, including any trade, profession, calling, or 
occupation, and any establishment where food or beverages are prepared, 
offered, or sold for human consumption.
    (2) Self-propelled motor vehicles, except aircraft, including 
attached trailers.
    (3) Vehicle operators.
    (4) Boats.
    (5) Food handlers.
    (6) Drugs, narcotics, and poisons.
    (7) Construction.
    (8) Burials.
    (b) To the extent it is not inconsistent with this part, any permit 
or registration issued pursuant to Air Force directives or instructions 
as applicable to Wake Island shall constitute a permit or registration 
under this section, and no other permit or registration shall be 
required.



Sec.  935.12  Functions, powers, and duties.

    The Commander may--
    (a) Appoint Peace Officers;
    (b) Direct the abatement of any public nuisance upon failure of any 
person to comply with a notice of removal;
    (c) Direct sanitation and fire prevention inspections;
    (d) Establish records of vital statistics;
    (e) Direct the registration and inspections of motor vehicles, 
boats, and aircraft;
    (f) Impose quarantines;
    (g) Direct the impoundment and destruction of unsanitary food, fish, 
or beverages;
    (h) Direct the evacuation of any person from a hazardous area;
    (i) Commission notaries public;
    (j) Establish and maintain a facility for the restraint or 
confinement of persons and provide for their care;
    (k) Direct the removal of any person from Wake Island and prohibit 
his future presence on the island;
    (l) Issue traffic regulations that are not inconsistent with this 
part, and post traffic signs;
    (m) Prohibit the posting, distribution, or public display of 
advertisements, signs, circulars, petitions, or similar materials, 
soliciting, picketing, or parading in any public place or area if he 
determines it would interfere with public business or endanger the 
health and safety of persons and property on Wake Island;
    (n) Perform or direct any other acts, not inconsistent with this 
part or applicable laws and regulations, if he considers it necessary 
for protection of the health or safety of persons and property on Wake 
Island; and
    (o) Issue any order or notice necessary to implement this section. 
Any order or notice issued pursuant to Air Force directives and 
instructions as applicable to Wake Island shall constitute an order or 
notice issued pursuant to this section.



Sec.  935.13  Revocation or suspension of permits and registrations.

    (a) The Commander may revoke or suspend any island permit or 
registration for cause, with or without notice.
    (b) The holder of any revoked or suspended permit or registration 
may demand a personal hearing before the Commander within 30 days after 
the effective date of the revocation or suspension.
    (c) If a hearing is demanded, it shall be granted by the Commander 
within 30 days of the date of demand. The applicant may appear in person 
and present such documentary evidence as is pertinent. The Commander 
shall render a decision, in writing, setting forth his reasons, within 
30 days thereafter.
    (d) If a hearing is not granted within 30 days, a written decision 
is not rendered within 30 days after a hearing, or the applicant desires 
to appeal a decision, he may, within 30 days after the latest of any of 
the foregoing dates appeal in writing to the General Counsel, whose 
decision shall be final.



Sec.  935.14  Autopsies.

    The medical officer on Wake Island, or any other qualified person 
under his supervision, may perform autopsies upon authorization of the 
Commander or a Judge of the Wake Island Court.



Sec.  935.15  Notaries public.

    (a) To the extent he considers there to be a need for such services, 
the Commander may commission one or more residents of Wake Island as 
notaries

[[Page 134]]

public. The Commander of Pacific Air Forces may not redelegate this 
authority.
    (b) A person applying for commission as a notary public must be a 
citizen of the United States and shall file an application, together 
with evidence of good character and a proposed seal in such form as the 
Commander requires, with a fee of $50 which shall be deposited in the 
Treasury as a miscellaneous receipt.
    (c) Upon determining there to be a need for such a service and after 
such investigation as he considers necessary, the Commander may 
commission an applicant as a notary public. Commissions shall expire 3 
years after the date thereof, and may be renewed upon application upon 
payment of a fee of $25.
    (d) Judges and the Clerk of the Wake Island Court and the Island 
Attorney shall have the general powers of a notary public.



Sec.  935.16  Emergency authority.

    During the imminence and duration of any emergency declared by him, 
the Commander may perform or direct any acts necessary to protect life 
and property.



                           Subpart C_Civil Law



Sec.  935.20  Applicable law.

    Civil acts and deeds taking place on Wake Island shall be determined 
and adjudicated as provided in this part; and otherwise, as provided in 
the Act of June 15, 1950 (64 Stat. 217) (48 U.S.C. 644a), according to 
the laws of the United States relating to such an act or deed taking 
place on the high seas on board a merchant vessel or other vessel 
belonging to the United States.



Sec.  935.21  Civil rights, powers, and duties.

    In any case in which the civil rights, powers, and duties of any 
person on Wake Island are not otherwise prescribed by the laws of the 
United States or this part, the civil rights, powers, and duties as they 
obtain under the laws of the State of Hawaii will apply to persons on 
Wake Island.



                         Subpart D_Criminal Law



Sec.  935.30  General.

    In addition to any act made criminal in this part, any act committed 
on Wake Island that would be criminal if committed on board a merchant 
vessel or other vessel belonging to the United States is a criminal 
offense and shall be adjudged and punished according to the laws 
applicable on board those vessels on the high seas.



                        Subpart E_Petty Offenses



Sec.  935.40  Criminal offenses.

    No person may on Wake Island--
    (a) Sell or give an alcoholic beverage manufactured for consumption 
(including beer, ale, or wine) to any person who is not at least 21 
years of age;
    (b) Procure for, engage in, aid or abet in, or solicit for 
prostitution;
    (c) Use any building, structure, vehicle, or public lands for the 
purpose of lewdness, assignation, or prostitution;
    (d) Possess or display (publicly or privately) any pornographic 
literature, film, device, or any matter containing obscene language, 
that tends to corrupt morals;
    (e) Make any obscene or indecent exposure of his person;
    (f) Commit any disorderly, obscene, or indecent act;
    (g) Commit any act of voyeurism (Peeping Tom);
    (h) Enter upon any assigned residential quarters or areas 
immediately adjacent thereto, without permission of the assigned 
occupant;
    (i) Discard or place any paper, debris, refuse, garbage, litter, 
bottle, can, human or animal waste, trash, or junk in any public place, 
except into a receptacle or place designated or used for that purpose;
    (j) Commit any act of nuisance;
    (k) With intent to provoke a breach of the peace or under such 
circumstances that a breach of the peace may be occasioned thereby, act 
in such a manner as to annoy, disturb, interfere with, obstruct, or be 
offensive to any other person;
    (l) Be drunk in any public place;
    (m) Use any profane or vulgar language in a public place;

[[Page 135]]

    (n) Loiter or roam about Wake Island, without any lawful purpose, at 
late and unusual hours of the night;
    (o) Lodge or sleep in any place without the consent of the person in 
legal possession of that place;
    (p) Grossly waste any potable water;
    (q) Being a male, knowingly enter any area, building, or quarters 
reserved for women, except in accordance with established visiting 
procedures;
    (r) Smoke or ignite any fire in any designated and posted ``No 
Smoking'' area, or in the immediate proximity of any aircraft or fueling 
pit;
    (s) Enter any airplane parking area or ramp, unless he is on duty 
therein, is a passenger under appropriate supervision, or is authorized 
by the Commander to enter that place;
    (t) Interfere or tamper with any aircraft or servicing equipment or 
facility, or put in motion the engine of any aircraft without the 
permission of its operator;
    (u) Post, distribute, or publicly display advertisements, signs, 
circulars, petitions, or similar materials, or solicit, picket, or 
parade in any public place or area where prohibited by the Commander 
pursuant to Sec.  935.12;
    (v) Import onto or keep on Wake Island any plant or animal not 
indigenous to the island, other than military working dogs or a guide 
dog for the blind or visually-impaired accompanying its owner; or
    (w) Import or bring onto or possess while on Wake Island any 
firearm, whether operated by air, gas, spring, or otherwise, or 
explosive device, including fireworks, unless owned by the United 
States.



                           Subpart F_Penalties



Sec.  935.50  Petty offenses.

    Whoever is found guilty of a violation of any provision of subpart E 
of this part is subject to a fine of not more than $500 or imprisonment 
of not more than 6 months, or both.



Sec.  935.51  Motor vehicle violations.

    Whoever is found guilty of a violation of subpart N of this part is 
subject to a fine of not more than $100, imprisonment of not more than 
30 days, or suspension or revocation of his motor vehicle operator's 
permit, or any combination or all of these punishments.



Sec.  935.52  Violations of Subpart O or P of this part.

    (a) Whoever is found guilty of a violation of subpart O or P of this 
part is subject to a fine of not more than $100, or imprisonment of not 
more than 30 days, or both.
    (b) The penalties prescribed in paragraph (a) of this section are in 
addition to and do not take the place of any criminal penalty otherwise 
applicable and currently provided by the laws of the United States.



Sec.  935.53  Contempt.

    A Judge may, in any civil or criminal case or proceeding, punish any 
person for disobedience of any order of the Court, or for any contempt 
committed in the presence of the Court, by a fine of not more than $100, 
or imprisonment of not more than 30 days, or both.



                           Subpart G_Judiciary



Sec.  935.60  Wake Island Judicial Authority.

    (a) The judicial authority under this part is vested in the Wake 
Island Court and the Wake Island Court of Appeals.
    (b) The Wake Island Court and the Wake Island Court of Appeals shall 
each have a seal approved by the General Counsel.
    (c) Judges and Clerks of the Courts may administer oaths.



Sec.  935.61  Wake Island Court.

    (a) The trial judicial authority for Wake Island is vested in the 
Wake Island Court.
    (b) The Wake Island Court consists of one or more Judges, appointed 
by the General Counsel as needed. The term of a Judge shall be for one 
year, but he may be re-appointed. When the Wake Island Court consists of 
more than one Judge, the General Counsel shall designate one of the 
Judges as the Chief Judge who will assign matters to Judges, determine 
when the Court will sit individually or en banc, and prescribe rules of 
the Court not otherwise provided for in this Code. If there is only one 
Judge appointed, that Judge shall be the Chief Judge.

[[Page 136]]

    (c) Sessions of the Court are held on Wake Island or Hawaii at times 
and places designated by the Chief Judge.



Sec.  935.62  Island Attorney.

    There is an Island Attorney, appointed by the General Counsel as 
needed. The Island Attorney shall serve at the pleasure of the General 
Counsel. The Island Attorney represents the United States in the Wake 
Island Court and in the Wake Island Court of Appeals.



Sec.  935.63  Public Defender.

    There is a Public Defender, appointed by the General Counsel as 
needed. The Public Defender shall serve at the pleasure of the General 
Counsel. The Public Defender represents any person charged with an 
offense under this part who requests representation and who is not able 
to afford his own legal representation.



Sec.  935.64  Clerk of the Court.

    There is a Clerk of the Court, who is appointed by the Chief Judge. 
The Clerk shall serve at the pleasure of the Chief Judge. The Clerk 
maintains a public docket containing such information as the Chief Judge 
may prescribe, administers oaths, and performs such other duties as the 
Court may direct. The Clerk is an officer of the Court.



Sec.  935.65  Jurisdiction.

    (a) The Wake Island Court has jurisdiction over all offenses under 
this part and all actions of a civil nature, cognizable at law or in 
equity, where the amount in issue is not more than $1,000, exclusive of 
interests and costs, but not including changes of name or domestic 
relations matters.
    (b) The United States is not subject to suit in the Court.
    (c) The United States may intervene in any matter in which the 
Island Attorney determines it has an interest.



Sec.  935.66  Court of Appeals.

    (a) The appellate judicial authority for Wake Island is vested in 
the Wake Island Court of Appeals.
    (b) The Wake Island Court of Appeals consists of a Chief Judge and 
two Associate Judges, appointed by the General Counsel as needed. The 
term of a judge shall be for one year, but he may be reappointed. The 
Chief Judge assigns matters to Judges, determines whether the Court sits 
individually or en banc, and prescribes rules of the Court not otherwise 
provided for in this part.
    (c) Sessions of the Court of Appeals are held in the National 
Capital Region at times and places designated by the Chief Judge. The 
Court may also hold sessions at Wake Island or in Hawaii.
    (d) A quorum of the Court of Appeals will consist of one Judge when 
sitting individually and three Judges when sitting en banc.
    (e) The address of the Court of Appeals is--Wake Island Court of 
Appeals, SAF/GC, Room 4E856, 1740 Air Force Pentagon, Washington, DC 
20330-1740.



Sec.  935.67  Clerk of the Court of Appeals.

    There is a Clerk of the Court of Appeals, who is appointed by the 
Chief Judge. The Clerk serves at the pleasure of the Chief Judge. The 
Clerk maintains a public docket containing such information as the Chief 
Judge may prescribe, administers oaths, and performs such other duties 
as the Court directs. The Clerk is an officer of the Court.



Sec.  935.68  Jurisdiction of the Court of Appeals.

    The Court of Appeals has jurisdiction over all appeals from the Wake 
Island Court.



Sec.  935.69  Qualifications and admission to practice.

    (a) No person may be appointed a Judge, Island Attorney, or Public 
Defender under this part who is not a member of the bar of a State, 
Commonwealth, or Territory of the United States or of the District of 
Columbia.
    (b) Any person, other than an officer or employee of the Department 
of the Air Force, appointed as a Judge, Island Attorney, Public 
Defender, or to any other office under this part shall, prior to 
entering upon the duties of that office, take an oath, prescribed by the 
General Counsel, to preserve, protect, and defend the Constitution of 
the United States. Such oath may be administered by any officer or 
employee of the Department of the Air Force.

[[Page 137]]

    (c) Civilian officers and employees of the Department of the Air 
Force may be appointed as a Judge, Island Attorney, Public Defender, or 
Clerk, as an additional duty and to serve without additional 
compensation. Officers and employees of the Department of the Air Force, 
both civilian and military, who serve in positions designated as 
providing legal services to the Department and who are admitted to 
practice law in an active status before the highest court of a State, 
Commonwealth, or territory of the United States, or of the District of 
Columbia, and are in good standing therewith, are admitted to the Bar of 
the Wake Island Court and the Wake Island Court of Appeals.
    (d) No person may practice law before the Wake Island Court or the 
Wake Island Court of Appeals who is not admitted to Bar of those courts. 
Any person admitted to practice law in an active status before the 
highest court of a State, Commonwealth, or territory of the United 
States, or of the District of Columbia, and in good standing therewith, 
may be admitted to the Bar of the Wake Island Court and the Wake Island 
Court of Appeals. Upon request of the applicant, the Court, on its own 
motion, may grant admission. A grant of admission by either court 
constitutes admission to practice before both courts.



                    Subpart H_Statute of Limitations



Sec.  935.70  Limitation of actions.

    (a) No civil action may be filed more than 1 year after the cause of 
action arose.
    (b) No person is liable to be tried under this part for any offense 
if the offense was committed more than 1 year before the date the 
information or citation is filed with the Clerk of the Wake Island 
Court.



                 Subpart I_Subpoenas, Wake Island Court



Sec.  935.80  Subpoenas.

    (a) A Judge or the Clerk of the Court shall issue subpoenas for the 
attendance of witnesses. The subpoena must include the name of the Court 
and the title, if any, of the proceeding; and shall command each person 
to whom it is directed to attend and give testimony at the time and 
place specified therein. The Clerk may issue a subpoena for a party 
requesting it, setting forth the name of the witness subpoenaed.
    (b) A Judge or the Clerk may also issue a subpoena commanding the 
person to whom it is directed to produce the books, papers, documents, 
or other objects designated therein. The Court may direct that books, 
papers, documents, or other objects designated in the subpoena be 
produced before the Court at a time before the trial or before the time 
when they are to be offered into evidence. It may, upon their 
production, allow the books, papers, documents, or objects or portions 
thereof to be inspected by the parties and their representatives.
    (c) Any peace officer or any other person who is not a party and who 
is at least 18 years of age may serve a subpoena. Service of a subpoena 
shall be made by delivering a copy thereof to the person named.
    (d) The Clerk of the Court shall assess and collect a witness fee of 
$40 for each subpoena requested by any party other than the United 
States, which shall be tendered to the witness as his witness fee 
together with service of the subpoena. Witnesses subpoenaed by the 
Island Attorney shall be entitled to a fee of $40 upon presentment of a 
proper claim therefor on the United States. No duly summoned witness may 
refuse, decline, or fail to appear or disobey a subpoena on the ground 
that the witness fee was not tendered or received.
    (e) Upon a showing that the evidence is necessary to meet the ends 
of justice and that the defendant is indigent, the Public Defender may 
request the Court to direct the Island Attorney to obtain the issuance 
of a subpoena on behalf of a defendant in a criminal case. Witnesses so 
called on behalf of the defendant shall be entitled to the same witness 
fees as witnesses requested by the Island Attorney.
    (f) Subpoenas may be credited only to persons or things on Wake 
Island.
    (g) No person who is being held on Wake Island because of 
immigration status shall be entitled to a witness

[[Page 138]]

fee, but shall nevertheless be subject to subpoena like any other 
person.



                         Subpart J_Civil Actions



Sec.  935.90  General.

    (a) The Federal Rules of Civil Procedure (28 U.S.C.) apply to civil 
actions in the Court to the extent the presiding Judge considers them 
applicable under the circumstances.
    (b) There is one form of action called the ``Civil Action.''
    (c) Except as otherwise provided for in this part, there is no trial 
by jury.
    (d) A civil action begins with the filing of a complaint with the 
Court. The form of the complaint is as follows except as it may be 
modified to conform as appropriate to the particular action:

                        In the Wake Island Court

[Civil Action No. ___]
______ (Plaintiff) vs. _______, (Defendant)

                                Complaint

______ plaintiff alleges that the defendant is indebted to plaintiff in 
the sum of $___ that plaintiff has demanded payment of said sum; that 
defendant has refused to pay; that defendant resides at _____ on Wake 
Island; that plaintiff resides at ______.



Sec.  935.91  Summons.

    Upon the filing of a complaint, a Judge or Clerk of the Court shall 
issue a summons in the following form and deliver it for service to a 
peace officer or other person specifically designated by the Court to 
serve it:

                        In the Wake Island Court

[Civil Action No. ___]
________ (Plaintiff), vs. ________ (Defendant)

                                 Summons

    To the above-named defendant:
    You are hereby directed to appear and answer the attached cause at 
______ on ______ day of ___ 20--, at ______ -.M. and to have with you 
all books, papers, and witnesses needed by you to establish any defense 
you have to said claim.
    You are further notified that in case you do not appear, judgment 
will be given against you, for the amount of said claim, together with 
cost of this suit and the service of this order.

    Dated: ______, 20 ______. (Clerk, Wake Island Court) ________



Sec.  935.92  Service of complaint.

    (a) A peace officer or other person designated by the Court to make 
service shall serve the summons and a copy of the complaint at Wake 
Island upon the defendant personally, or by leaving them at his usual 
place of abode with any adult residing or employed there.
    (b) In the case of a corporation, partnership, joint stock company, 
trading association, or other unincorporated association, service may be 
made at Wake Island by delivering a copy of the summons and complaint to 
any of its officers, a managing or general agent, or any other agent 
authorized by appointment or by law to receive service.



Sec.  935.93  Delivery of summons to plaintiff.

    The Clerk of the Court shall promptly provide a copy of the summons 
to the plaintiff, together with notice that if the plaintiff fails to 
appear at the Court at the time set for the trial, the case will be 
dismissed. The trial shall be set at a date that will allow each party 
at least 7 days, after the pleadings are closed, to prepare.



Sec.  935.94  Answer.

    (a) The defendant may, at his election, file an answer to the 
complaint.
    (b) The defendant may file a counterclaim, setoff, or any reasonable 
affirmative defense.
    (c) If the defendant elects to file a counterclaim, setoff, or 
affirmative defense, the Court shall promptly send a copy of it to the 
plaintiff.



Sec.  935.95  Proceedings; record; judgment.

    (a) The presiding Judge is responsible for the making of an 
appropriate record of each civil action.
    (b) All persons shall give their testimony under oath or 
affirmation. The Chief Judge shall prescribe the oath and affirmation 
that may be administered by any Judge or the Clerk of the Court.
    (c) Each party may present witnesses and other forms of evidence. In 
addition, the presiding Judge may informally investigate any 
controversy, in or out of the Court, if the evidence obtained as a 
result is adequately disclosed to all parties. Witnesses, books,

[[Page 139]]

papers, documents, or other objects may be subpoenaed as provided for in 
Sec.  935.80 for criminal cases.
    (d) The Court may issue its judgment in writing or orally from the 
bench. However, if an appeal is taken from the judgment, the presiding 
Judge shall, within 10 days after it is filed, file a memorandum of 
decision as a part of the record. The Judge shall place in the 
memorandum findings of fact, conclusions of law, and any comments that 
he considers will be helpful to a thorough understanding and just 
determination of the case on appeal.



Sec.  935.96  Execution of judgment.

    (a) If, after 60 days after the date of entry of judgment (or such 
other period as the Court may prescribe), the judgment debtor has not 
satisfied the judgment, the judgment creditor may apply to the Court for 
grant of execution on the property of the judgment debtor.
    (b) Upon a writ issued by the Court, any peace officer may levy 
execution on any property of the judgment debtor except--
    (1) His wearing apparel up to a total of $300 in value;
    (2) His beds, bedding, household furniture and furnishings, stove, 
and cooking utensils, up to a total of $300 in value; and
    (3) Mechanics tools and implements of the debtor's trade up to a 
total of $200 in value.
    (c) Within 60 days after levy of execution, a peace officer shall 
sell the seized property at public sale and shall pay the proceeds to 
the Clerk of the Court. The Clerk shall apply the proceeds as follows:
    (1) First, to the reasonable costs of execution and sale and court 
costs.
    (2) Second, to the judgment.
    (3) Third, the residue (if any) to the debtor.
    (d) In any case in which property has been seized under a writ of 
execution, but not yet sold, the property seized shall be released upon 
payment of the judgment, court costs, and the costs of execution.



Sec.  935.97  Garnishment.

    (a) If a judgment debtor fails to satisfy a judgment in full within 
60 days after the entry of judgment (or such other period as the Court 
may prescribe), the Court may, upon the application of the judgment 
creditor issue a writ of garnishment directed to any person having money 
or property in his possession belonging to the judgment debtor or owing 
money to the judgment debtor. The following are exempt from judgment:
    (1) Ninety percent of so much of the gross wages as does not exceed 
$200 due to the judgment debtor from his employer.
    (2) Eighty percent of so much of the gross wages as exceeds $200 but 
does not exceed $500 due to the judgment debtor from his employer.
    (3) Fifty percent of so much of the gross wages as exceeds $500 due 
to the judgment debtor from his employer.
    (b) The writ of garnishment shall be served on the judgment debtor 
and the garnishee and shall direct the garnishee to pay or deliver from 
the money or property owing to the judgment debtor such money or 
property as the Court may prescribe.
    (c) The garnished amount shall be paid to the Clerk of the Court, 
who shall apply it as follows:
    (1) First, to satisfy the costs of garnishment and court costs.
    (2) Second, to satisfy the judgment.
    (3) Third, the residue (if any) to the judgment debtor.
    (d) Funds of the debtor held by the United States are not subject to 
garnishment.



                       Subpart K_Criminal Actions



Sec.  935.100  Bail.

    (a) A person who is arrested on Wake Island for any violation of 
this part is entitled to be released on bail in an amount set by a Judge 
or Clerk of the Court, which may not exceed the maximum fine for the 
offense charged. If the defendant fails to appear for arraignment, trial 
or sentence, or otherwise breaches any condition of bail, the Court may 
direct a forfeiture of the whole or part of the bail and may on motion 
after notice to the surety or sureties, if any, enter a judgment for the 
amount of the forfeiture.
    (b) The Chief Judge of the Wake Island Court may prescribe a 
schedule of bail for any offense under this part

[[Page 140]]

which the defendant may elect to post and forfeit without trial, in 
which case the Court shall enter a verdict of guilty and direct 
forfeiture of the bail.
    (c) Bail will be deposited in cash with the Clerk of the Court.



Sec.  935.101  Seizure of property.

    Any property seized in connection with an alleged offense (unless 
the property is perishable) is retained pending trial in accordance with 
the orders of the Court. The property must be produced in Court, if 
practicable. At the termination of the trial, the Court shall restore 
the property or the funds resulting from the sale of the property to the 
owner, or make such other proper order as may be required and 
incorporate its order in the record of the case. Any item used in the 
commission of the offense, may, upon order of the Court, be forfeited to 
the United States. All contraband, which includes any item that is 
illegal for the owner to possess, shall be forfeited to the United 
States; such forfeiture shall not relieve the owner from whom the item 
was taken from any costs or liability for the proper disposal of such 
item.



Sec.  935.102  Information.

    (a) Any offense may be prosecuted by a written information signed by 
the Island Attorney. However, if the offense is one for which issue of a 
citation is authorized by this part and a citation for the offense has 
been issued, the citation serves as an information.
    (b) A copy of the information shall be delivered to the accused, or 
his counsel, as soon as practicable after it is filed.
    (c) Each count of an information may charge one offense only and 
must be particularized sufficiently to identify the place, the time, and 
the subject matter of the alleged offense. It shall refer to the 
provision of law under which the offense is charged, but any error in 
this reference or its omission may be corrected by leave of Court at any 
time before sentence and is not grounds for reversal of a conviction if 
the error or omission did not mislead the accused to his prejudice.



Sec.  935.103  Motions and pleas.

    (a) Upon motion of the accused at any time after filing of the 
information or copy of citation, the Court may order the prosecutor to 
allow the accused to inspect and copy or photograph designated books, 
papers, documents, or tangible objects obtained from or belonging to the 
accused, or obtained from others by seizure or process, upon a showing 
that the items sought may be material to the preparation of his defense 
and that the request is reasonable.
    (b) When the Court is satisfied that it has jurisdiction to try the 
accused as charged, it shall require the accused to identify himself and 
state whether or not he has counsel. If he has no counsel, but desires 
counsel, the Court shall give him a reasonable opportunity to procure 
counsel.
    (c) When both sides are ready for arraignment, or when the Court 
determines that both sides have had adequate opportunities to prepare 
for arraignment, the Court shall read the charges to the accused, 
explain them (if necessary), and, after the reading or stating of each 
charge in Court, ask the accused whether he pleads ``guilty'' or ``not 
guilty''. The Court shall enter in the record of the case the plea made 
to each charge.
    (d) The accused may plead ``guilty'' to any or all of the charges 
against him, except that the Court may in its discretion refuse to 
accept a plea of guilty, and may not accept a plea without first 
determining that the plea is made voluntarily with understanding of the 
nature of the charge.
    (e) The accused may plead ``not guilty'' to any or all of the 
charges against him. The Court shall enter a plea of not guilty if the 
answer of the accused to any charge is such that it does not clearly 
amount to a plea of guilty or not guilty.
    (f) The accused may, at any stage of the trial, with the consent of 
the Court, change a plea of not guilty to one of guilty. The Court shall 
then proceed as if the accused had originally pleaded guilty.

[[Page 141]]



Sec.  935.104  Sentence after a plea of guilty.

    If the Court accepts a plea of guilty to any charge or charges, it 
shall make a finding of guilty on that charge. Before imposing sentence, 
the Court shall hear such statements for the prosecution and defense, if 
any, as it requires to enable it to determine the sentence to be 
imposed. The accused or his counsel may make any reasonable statement he 
wishes in mitigation or of previous good character. The prosecution may 
introduce evidence in aggravation, or of bad character if the accused 
has introduced evidence of good character. The Court shall then impose 
any lawful sentence that it considers proper.



Sec.  935.105  Trial.

    (a) If the accused pleads not guilty, he is entitled to a trial on 
the charges in accordance with procedures prescribed in the Rules of 
Criminal Procedure for the U.S. District Courts (18 U.S.C.), except as 
otherwise provided for in this part, to the extent the Court considers 
practicable and necessary to the ends of justice. There is no trial by 
jury.
    (b) All persons shall give their testimony under oath or 
affirmation. The Chief Judge shall prescribe the oath and affirmation 
that may be administered by any Judge or the Clerk of the Court.
    (c) Upon completion of the trial, the Court shall enter a judgment 
consisting of a finding or findings and sentence or sentences, or 
discharge of the accused.
    (d) The Court may suspend any sentence imposed, may order the 
revocation of any Island automobile permit in motor vehicle cases, and 
may place the accused on probation. It may delay sentencing pending the 
receipt of any presentencing report ordered by it.



                    Subpart L_Appeals and New Trials



Sec.  935.110  Appeals.

    (a) Any party to an action may, within 15 days after judgment, 
appeal an interlocutory order, issue of law, or judgment, except that an 
acquittal may not be appealed, by filing a notice of appeal with the 
Clerk of the Wake Island Court and serving a copy on the opposing party. 
Judgment is stayed while the appeal is pending.
    (b) Upon receiving a notice of appeal with proof of service on the 
opposing party, the Clerk shall forward the record of the action to the 
Wake Island Court of Appeals.
    (c) The appellant shall serve on the opposing party and file a 
memorandum setting forth his grounds of appeal with the Wake Island 
Court of Appeals within 15 days after the date of the judgment. The 
appellee may serve and file a reply memorandum within 15 days 
thereafter. An appeal and the reply shall be deemed to be filed when 
deposited in the U.S. mail with proper postage affixed, addressed to the 
Clerk, Wake Island Court of Appeals, at his address in Washington, DC. 
The period for filing an appeal may be waived by the Court of Appeals 
when the interests of justice so require.
    (d) The Court of Appeals may proceed to judgment on the record, or, 
if the Court considers that the interests of justice so require, grant a 
hearing.
    (e) The decision of the Court of Appeals shall be in writing and 
based on the record prepared by the Wake Island Court, on the 
proceedings before the Court of Appeals, if any be had, and on any 
memoranda that are filed. If the Court of Appeals considers the record 
incomplete, the case may be remanded to the Wake Island Court for 
further proceedings.
    (f) The decision of the Court of Appeals is final.



Sec.  935.111  New trial.

    A Judge of the Wake Island Court may order a new trial as required 
in the interest of justice, or vacate any judgment and enter a new one, 
on motion made within a reasonable time after discovery by the moving 
party of matters constituting the grounds upon which the motion for new 
trial or vacation of judgment is made.



                        Subpart M_Peace Officers



Sec.  935.120  Authority.

    Peace officers--

[[Page 142]]

    (a) Have the authority of a sheriff at common law;
    (b) May serve any process on Wake Island that is allowed to be 
served under a Federal or State law; the officer serving the process 
shall execute any required affidavit of service;
    (c) May conduct sanitation or fire prevention inspections;
    (d) May inspect motor vehicles, boats, and aircraft;
    (e) May confiscate property used in the commission of a crime;
    (f) May deputize any member of the Air Force serving on active duty 
or civilian employee of the Department of the Air Force to serve as a 
peace officer;
    (g) May investigate accidents and suspected crimes;
    (h) May direct vehicular or pedestrian traffic;
    (i) May remove and impound abandoned or unlawfully parked vehicles, 
boats, or aircraft, or vehicles, boats, or aircraft interfering with 
fire control apparatus or ambulances;
    (j) May take possession of property lost, abandoned, or of unknown 
ownership;
    (k) May enforce quarantines;
    (l) May impound and destroy food, fish, or beverages found 
unsanitary;
    (m) May be armed;
    (n) May exercise custody over persons in arrest or confinement;
    (o) May issue citations for violations of this part; and
    (p) May make arrests, as provided for in Sec.  935.122.



Sec.  935.121  Qualifications of peace officers.

    Any person appointed as a peace officer must be a citizen of the 
United States and have attained the age of 18 years. The following 
persons, while on Wake Island on official business, shall be deemed 
peace officers: special agents of the Air Force Office of Special 
Investigations, members of the Air Force Security Forces, agents of the 
Federal Bureau of Investigation, United States marshals and their 
deputies, officers and agents of the United States Secret Service, 
agents of the United States Bureau of Alcohol, Tobacco, and Firearms, 
agents of the United States Customs Service, and agents of the United 
States Immigration and Naturalization Service.



Sec.  935.122  Arrests.

    (a) Any person may make an arrest on Wake Island, without a warrant, 
for any crime (including a petty offense) that is committed in his 
presence.
    (b) Any peace officer may, without a warrant, arrest any person on 
Wake Island who violates any provision of this part or commits a crime 
that is not a violation of this part, in his presence, or that he 
reasonably believes that person to have committed.
    (c) In making an arrest, a peace officer must display a warrant, if 
he has one, or otherwise clearly advise the person arrested of the 
violation alleged, and thereafter require him to submit and be taken 
before the appropriate official on Wake Island.
    (d) In making an arrest, a peace officer may use only the degree of 
force needed to effect submission, and may remove any weapon in the 
possession of the person arrested.
    (e) A peace officer may, whenever necessary to enter any building, 
vehicle, or aircraft to execute a warrant of arrest, force an entry 
after verbal warning.
    (f) A peace officer may force an entry into any building, vehicle, 
or aircraft whenever--
    (1) It appears necessary to prevent serious injury to persons or 
damage to property and time does not permit the obtaining of a warrant;
    (2) To effect an arrest when in hot pursuit; or
    (3) To prevent the commission of a crime which he reasonably 
believes is being committed or is about to be committed.



Sec.  935.123  Warrants.

    Any Judge may issue or direct the Clerk to issue a warrant for 
arrest if, upon complaint, it appears that there is probable cause to 
believe an offense has been committed and that the person named in the 
warrant has committed it. If a Judge is not available, the warrant may 
be issued by the Clerk and executed, but any such warrant shall be 
thereafter approved or quashed by the first available Judge. The issuing 
officer shall--

[[Page 143]]

    (a) Place the name of the person charged with the offense in the 
warrant, or if his name is not known, any name or description by which 
he can be identified with reasonable certainty;
    (b) Describe in the warrant the offense charged;
    (c) Place in the warrant a command that the person charged with the 
offense be arrested and brought before the Wake Island Court;
    (d) Sign the warrant; and
    (e) Issue the warrant to a peace officer for execution.



Sec.  935.124  Release from custody.

    The Chief Judge may authorize the Clerk to issue pro forma orders of 
the Court discharging any person from custody, with or without bail, 
pending trial, whenever further restraint is not required for protection 
of persons or property on Wake Island. Persons not so discharged shall 
be brought before a Judge or U.S. Magistrate as soon as a Judge or 
Magistrate is available. Judges may discharge defendants from custody, 
with or without bail or upon recognizance, or continue custody pending 
trial as the interests of justice and public safety require.



Sec.  935.125  Citation in place of arrest.

    In any case in which a peace officer may make an arrest without a 
warrant, he may issue and serve a citation if he considers that the 
public interest does not require an arrest. The citation must briefly 
describe the offense charged and direct the accused to appear before the 
Wake Island Court at a designated time and place.



                      Subpart N_Motor Vehicle Code



Sec.  935.130  Applicability.

    This subpart applies to self-propelled motor vehicles (except 
aircraft), including attached trailers.



Sec.  935.131  Right-hand side of the road.

    Each person driving a motor vehicle on Wake Island shall drive on 
the right-hand side of the road, except where necessary to pass or on 
streets where a sign declaring one-way traffic is posted.



Sec.  935.132  Speed limits.

    Each person operating a motor vehicle on Wake Island shall operate 
it at a speed--
    (a) That is reasonable, safe, and proper, considering time of day, 
road and weather conditions, the kind of motor vehicle, and the 
proximity to persons or buildings, or both; and
    (b) That does not exceed 40 miles an hour or such lesser speed limit 
as may be posted.



Sec.  935.133  Right-of-way.

    (a) A pedestrian has the right-of-way over vehicular traffic when in 
the vicinity of a building, school, or residential area.
    (b) In any case in which two motor vehicles have arrived at an 
uncontrolled intersection at the same time, the vehicle on the right has 
the right-of-way.
    (c) If the driver of a motor vehicle enters an intersection with the 
intent of making a left turn, he shall yield the right-of-way to any 
other motor vehicle that has previously entered the intersection or is 
within hazardous proximity.
    (d) When being overtaken by another motor vehicle, the driver of the 
slower vehicle shall move it to the right to allow safe passing.
    (e) The driver of a motor vehicle shall yield the right-of-way to 
emergency vehicles on an emergency run.



Sec.  935.134  Arm signals.

    (a) Any person operating a motor vehicle and making a turn or coming 
to a stop shall signal the turn or stop in accordance with this section.
    (b) A signal for a turn or stop is made by fully extending the left 
arm as follows:
    (1) Left turn--extend left arm horizontally.
    (2) Right turn--extend left arm upward.
    (3) Stop or decrease speed--extend left arm downward.
    (c) A signal light or other device may be used in place of an arm 
signal prescribed in paragraph (b) of this section if it is visible and 
intelligible.

[[Page 144]]



Sec.  935.135  Turns.

    (a) Each person making a right turn in a motor vehicle shall make 
the approach and turn as close as practicable to the right-hand curb or 
road edge.
    (b) Each person making a left turn in a motor vehicle shall make the 
approach and turn immediately to the right of the center of the road, 
except that on multi-lane roads of one-way traffic flow he may make the 
turn only from the left lane.
    (c) No person may make a U-turn in a motor vehicle if he cannot be 
seen by the driver of any approaching vehicle within a distance of 500 
feet.
    (d) No person may place a vehicle in motion from a stopped position, 
or change from or merge into a lane of traffic, until he can safely make 
that movement.



Sec.  935.136  General operating rules.

    No person may, while on Wake Island--
    (a) Operate a motor vehicle in a careless or reckless manner;
    (b) Operate or occupy a motor vehicle while he is under the 
influence of a drug or intoxicant;
    (c) Consume an alcoholic beverage (including beer, ale, or wine) 
while he is in a motor vehicle;
    (d) Operate a motor vehicle that is overloaded or is carrying more 
passengers than it was designed to carry;
    (e) Ride on the running board, step, or outside of the body of a 
moving motor vehicle;
    (f) Ride a moving motor vehicle with his arm or leg protruding, 
except when using the left arm to signal a turn;
    (g) Operate a motor vehicle in a speed contest or drag race;
    (h) Park a motor vehicle for a period longer than the posted time 
limit;
    (i) Stop, park, or operate a motor vehicle in a manner that impedes 
or blocks traffic;
    (j) Park a motor vehicle in an unposted area, except adjacent to the 
right-hand curb or edge of the road;
    (k) Park a motor vehicle in a reserved or restricted parking area 
that is not assigned to him;
    (l) Sound the horn of a motor vehicle, except as a warning signal;
    (m) Operate a tracked or cleated vehicle in a manner that damages a 
paved or compacted surface;
    (n) Operate any motor vehicle contrary to a posted traffic sign;
    (o) Operate a motor vehicle as to follow any other vehicle closer 
than is safe under the circumstances;
    (p) Operate a motor vehicle off of established roads, or in a cross-
country manner, except when necessary in conducting business;
    (q) Operate a motor vehicle at night or when raining on the traveled 
part of a street or road, without using operating headlights; or
    (r) Operate a motor vehicle without each passenger wearing a safety 
belt; this shall not apply to military combat vehicles designed and 
fabricated without safety belts.



Sec.  935.137  Operating requirements.

    Each person operating a motor vehicle on Wake Island shall--
    (a) Turn off the highbeam headlights of his vehicle when approaching 
an oncoming vehicle at night; and
    (b) Comply with any special traffic instructions given by an 
authorized person.



Sec.  935.138  Motor bus operation.

    Each person operating a motor bus on Wake Island shall--
    (a) Keep its doors closed while the bus is moving with passengers on 
board; and
    (b) Refuse to allow any person to board or alight the bus while it 
is moving.



Sec.  935.139  Motor vehicle operator qualifications.

    (a) No person may operate a privately owned motor vehicle on Wake 
Island unless he has an island operator's permit.
    (b) The Commander may issue an operator's permit to any person who 
is at least 18 years of age and satisfactorily demonstrates safe-driving 
knowledge, ability, and physical fitness.
    (c) No person may operate, on Wake Island, a motor vehicle owned by 
the United States unless he holds a current operator's permit issued by 
the United States.

[[Page 145]]

    (d) Each person operating a motor vehicle on Wake Island shall 
present his operator's permit to any peace officer, for inspection, upon 
request.



Sec.  935.140  Motor vehicle maintenance and equipment.

    (a) Each person who has custody of a motor vehicle on Wake Island 
shall present that vehicle for periodic safety inspection, as required 
by the Commander.
    (b) No person may operate a motor vehicle on Wake Island unless it 
is in a condition that the Commander considers to be safe and operable.
    (c) No person may operate a motor vehicle on Wake Island unless it 
is equipped with an adequate and properly functioning--
    (1) Horn;
    (2) Wiper, for any windshield;
    (3) Rear vision mirror;
    (4) Headlights and taillights;
    (5) Brakes;
    (6) Muffler;
    (7) Spark or ignition noise suppressors; and
    (8) Safety belts.
    (d) No person may operate a motor vehicle on Wake Island if that 
vehicle is equipped with a straight exhaust or muffler cutoff.



                Subpart O_Registration and Island Permits



Sec.  935.150  Registration.

    (a) Each person who has custody of any of the following on Wake 
Island shall register it with the Commander.
    (1) A privately owned motor vehicle.
    (2) A privately owned boat.
    (3) An indigenous animal, military working dog, or guide dog for the 
blind or visually-impaired accompanying its owner.
    (4) A narcotic or dangerous drug or any poison.
    (b) Each person who obtains custody of an article described in 
paragraph (a) (4) of this section shall register it immediately upon 
obtaining custody. Each person who obtains custody of any other article 
described in paragraph (a) of this section shall register it within 10 
days after obtaining custody.



Sec.  935.151  Island permit for boat and vehicle.

    (a) No person may use a privately owned motor vehicle or boat on 
Wake Island unless he has an island permit for it.
    (b) The operator of a motor vehicle shall display its registration 
number on the vehicle in a place and manner prescribed by the Commander.



Sec.  935.152  Activities for which permit is required.

    No person may engage in any of the following on Wake Island unless 
he has an island permit:
    (a) Any business, commercial, or recreational activity conducted for 
profit, including a trade, profession, calling, or occupation, or an 
establishment where food or beverage is prepared, offered, or sold for 
human consumption (except for personal or family use).
    (b) The practice of any medical profession, including dentistry, 
surgery, osteopathy, and chiropractic.
    (c) The erection of any structure or sign, including a major 
alteration or enlargement of an existing structure.
    (d) The burial of any human or animal remains, except that fish and 
bait scrap may be buried at beaches where fishing is permitted, without 
obtaining a permit.
    (e) Keeping or maintaining an indigenous animal.
    (f) Importing, storing, generating, or disposing of hazardous 
materials.
    (g) Importing of solid wastes and importing, storing, generating, 
treating, or disposing of hazardous wastes, as they are defined in the 
Solid Waste Disposal Act, as amended, 42 U.S.C. 6901 et seq., and its 
implementing regulations (40 CFR chapter I).



                         Subpart P_Public Safety



Sec.  935.160  Emergency requirements and restrictions.

    In the event of any fire, crash, search and rescue, natural 
disaster, national peril, radiological hazard, or other calamitous 
emergency--
    (a) No person may impede or hamper any officer or employee of the 
United States or any other person who has emergency authority;

[[Page 146]]

    (b) No unauthorized persons may congregate at the scene of the 
emergency; and
    (c) Each person present shall promptly obey the instructions, 
signals, or alarms of any peace officer, fire or crash crew, or other 
authorized person, and any orders of the Commander.



Sec.  935.161  Fire hazards.

    (a) Each person engaged in a business or other activity on Wake 
Island shall, at his expense, provide and maintain (in an accessible 
location) fire extinguishers of the type, capacity, and quantity 
satisfactory for protecting life and property in the areas under that 
person's control.
    (b) To minimize fire hazards, no person may store any waste or 
flammable fluids or materials except in a manner and at a place 
prescribed by the Commander.



Sec.  935.162  Use of special areas.

    The Commander may regulate the use of designated or posted areas on 
Wake Island, as follows:
    (a) Restricted areas--which no person may enter without permission.
    (b) Prohibited activities areas--in which no person may engage in 
any activity that is specifically prohibited.
    (c) Special purpose areas-in which no person may engage in any 
activity other than that for which the area is reserved.



Sec.  935.163  Unexploded ordnance material.

    Any person who discovers any unexploded ordnance material on Wake 
Island shall refrain from tampering with it and shall immediately report 
its site to the Commander.



Sec.  935.164  Boat operations.

    The operator of each boat used at Wake Island shall conform to the 
limitations on its operations as the Commander may prescribe in the 
public interest.



Sec.  935.165  Floating objects.

    No person may anchor, moor, or beach any boat, barge, or other 
floating object on Wake Island in any location or manner other than as 
prescribed by the Commander.



              SUBCHAPTER O_SPECIAL INVESTIGATION [RESERVED]





                       SUBCHAPTERS P	S [RESERVED]



[[Page 147]]



                  SUBCHAPTER T_ENVIRONMENTAL PROTECTION





PART 989_ENVIRONMENTAL IMPACT ANALYSIS PROCESS (EIAP)--Table of Contents



Sec.
989.1 Purpose.
989.2 Concept.
989.3 Responsibilities.
989.4 Initial considerations.
989.5 Organizational relationships.
989.6 Budgeting and funding.
989.7 Requests from Non-Air Force agencies or entities.
989.8 Analysis of alternatives.
989.9 Cooperation and adoption.
989.10 Tiering.
989.11 Combining EIAP with other documentation.
989.12 AF Form 813, Request for Environmental Impact Analysis.
989.13 Categorical exclusion.
989.14 Environmental assessment.
989.15 Finding of no significant impact.
989.16 Environmental impact statement.
989.17 Notice of intent.
989.18 Scoping.
989.19 Draft EIS.
989.20 Final EIS.
989.21 Record of decision (ROD).
989.22 Mitigation.
989.23 Contractor prepared documents.
989.24 Public notification.
989.25 Base closure and realignment.
989.26 Classified actions (40 CFR 1507.3(c)).
989.27 Occupational safety and health.
989.28 Airspace and range proposals.
989.29 Force structure and unit move proposals.
989.30 Air quality.
989.31 Pollution prevention.
989.32 Noise.
989.33 Environmental justice.
989.34 Special and emergency procedures.
989.35 Reporting requirements.
989.36 Waivers.
989.37 Procedures for analysis abroad.
989.38 Requirements for analysis abroad.

Appendix A to Part 989--Glossary of References, Abbreviations, Acronyms, 
          and Terms
Appendix B to Part 989--Categorical Exclusions
Appendix C to Part 989--Procedures for Holding Public Hearings on Draft 
          Environmental Impact Statements (EIS)

    Authority: 10 U.S.C. 8013.

    Source: 64 FR 38129, July 15, 1999, unless otherwise noted.



Sec.  989.1  Purpose.

    (a) This part implements the Air Force Environmental Impact Analysis 
Process (EIAP) and provides procedures for environmental impact analysis 
both within the United States and abroad. Because the authority for, and 
rules governing, each aspect of the EIAP differ depending on whether the 
action takes place in the United States or outside the United States, 
this part provides largely separate procedures for each type of action. 
Consequently, the main body of this part deals primarily with 
environmental impact analysis under the authority of the National 
Environmental Policy Act of 1969 (NEPA) (Public Law 91-190, 42 United 
States Code (U.S.C.) Sections 4321 through 4347), while the primary 
procedures for environmental impact analysis of actions outside the 
United States in accordance with Executive Order (E.O.) 12114, 
Environmental Effects Abroad of Major Federal Actions, are contained in 
Sec. Sec.  989.37 and 989.38.
    (b) The procedures in this part are essential to achieve and 
maintain compliance with NEPA and the Council on Environmental Quality 
(CEQ) Regulations for Implementing the Procedural Provisions of the NEPA 
(40 CFR Parts 1500 through 1508, referred to as the ``CEQ 
Regulations''). Further requirements are contained in Department of 
Defense Directive (DoDD) 4715.1, Environmental Security, Department of 
Defense Instruction (DoDI) 4715.9, Environmental Planning and Analysis, 
DoDD 5000.1, Defense Acquisition, and Department of Defense Regulation 
5000.2-R, Mandatory Procedures for Major Defense Acquisition Programs 
and Major Automated Information System Acquisition Programs. \1\ To 
comply with NEPA and complete the EIAP, the CEQ Regulations and this 
part must be used together.
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    \1\ Copies of the publications are available, at cost, from the 
National Technical Information Service, U.S. Department of Commerce, 
5285 Port Royal Road, Springfield, VA 22161.
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    (c) Air Force activities abroad will comply with this part, E. O. 
12114, and 32 CFR part 187 (DoDD 6050.7, Environmental Effects Abroad of 
Major Department of Defense Actions, March 31,

[[Page 148]]

1979). To comply with E.O. 12114 and complete the EIAP, the Executive 
Order, 32 CFR part 187, and this part must be used together.
    (d) Appendix A is a glossary of references, abbreviations, acronyms, 
and terms. Refer to 40 CFR 1508 for definitions of other terminology 
used in this part.

[64 FR 38129, July 15, 1999, as amended at 66 FR 16868, Mar. 28, 2001]



Sec.  989.2  Concept.

    (a) This part provides a framework on how to comply with NEPA and 
E.O. 12114 according to Air Force Policy Directive (AFPD) 32-70 \2\. The 
Air Force specific procedures and requirements in this part are intended 
to be used by Air Force decision-makers to fully comply with NEPA and 
the EIAP.
---------------------------------------------------------------------------

    \2\ See footnote 1 to Sec.  989.1.
---------------------------------------------------------------------------

    (b) Major commands (MAJCOM) provide additional implementing guidance 
in their supplemental publications to this part. MAJCOM supplements must 
identify the specific offices that have implementation responsibility 
and include any guidance needed to comply with this part. All references 
to MAJCOMs in this part include the Air National Guard Readiness Center 
(ANGRC) and other agencies designated as ``MAJCOM equivalent'' by HQ 
USAF.



Sec.  989.3  Responsibilities.

    (a) Office of the Secretary of the Air Force:
    (1) The Deputy Assistant Secretary of the Air Force for 
Installations (SAF/IEI).
    (i) Develops environmental planning policy and provides oversight of 
the EIAP program.
    (ii) Determines the level of environmental analysis required for 
especially important, visible, or controversial Air Force proposals and 
approves selected Environmental Assessments (EAs) and all Environmental 
Impact Statements (EISs) prepared for Air Force actions, whether 
classified or unclassified, except as specified in paragraph (c)(3) of 
this section.
    (iii) Is the liaison on environmental matters with Federal agencies 
and national level public interest organizations.
    (iv) Ensures appropriate offices in the Office of the Secretary of 
Defense are kept informed on EIAP matters of Defense-wide interest.
    (2) The General Counsel (SAF/GC). Provides final legal advice to 
SAF/IE, HQ USAF, and HQ USAF Environment, Safety and Occupational Health 
Committee (ESOHC) on EIAP issues.
    (3) Office of Legislative Liaison (SAF/LL):
    (i) Assists with narrowing and defining key issues by arranging 
consultations with congressional delegations on potentially sensitive 
actions.
    (ii) Distributes draft and final EISs to congressional delegations.
    (iii) Reviews and provides the Office of the Secretary of Defense 
(OSD) with analyses of the Air Force position on proposed and enrolled 
legislation and executive department testimony dealing with EIAP issues.
    (4) Office of Public Affairs (SAF/PA):
    (i) Reviews and clears environmental documents in accordance with 
Air Force Instruction (AFI) 35-101, Public Affairs Policies and 
Procedures \3\ prior to public release.
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    \3\ See footnote 1 to Sec.  989.1.
---------------------------------------------------------------------------

    (ii) Assists the environmental planning function and the Air Force 
Legal Services Agency, Trial Judiciary Division (AFLOA/JAJT), in 
planning and conducting public scoping meetings and hearings.
    (iii) Ensures that public affairs aspects of all EIAP actions are 
conducted in accordance with this part and AFI 35-101. \4\
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    \4\ See footnote 1 to Sec.  989.1.
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    (iv) The National Guard Bureau, Office of Public Affairs (NGB-PA), 
will assume the responsibilities of SAF/PA for the EIAP involving the 
National Guard Bureau, Air Directorate.
    (b) Headquarters U.S. Air Force (HQ USAF). The Civil Engineer (HQ 
USAF/ILE) is responsible for execution of the EIAP program. The National 
Guard Bureau Air Directorate (NGB-CF) oversees the EIAP for Air National 
Guard actions.
    (c) MAJCOMs, the Air National Guard, Field Operating Agencies 
(FOAs), and Single Manager Programs.

[[Page 149]]

These organizations establish procedures that comply with this part 
wherever they are the host unit for preparing and using required 
environmental documentation in making decisions about proposed actions 
and programs within their commands or areas of responsibility.
    (1) Air Force Center for Engineering and the Environment (AFCEE). 
The AFCEE Technical Directorate, Built Infrastructure Division (AFCEE/
TDB) is available to provide technical assistance and has the capability 
to provide contract support to the proponent, EPF, and MAJCOMs in 
developing EIAP documents.
    (2) Air Force Regional Environmental Offices (REOs). REOs review 
non-Air Force environmental documents that may have an impact on the Air 
Force. Requests for review of such documents should be directed to the 
proper REO (Atlanta, Dallas, or San Francisco) along with any relevant 
comments. The REO:
    (i) Notifies the proponent, after receipt, that the REO is the 
single point of contact for the Air Force review of the document.
    (ii) Requests comments from potentially affected installations, 
MAJCOMs, the ANG, and HQ USAF, as appropriate.
    (iii) Consolidates comments into the Air Force official response and 
submits the final response to the proponent.
    (iv) Provides to HQ USAF/A7CI and the appropriate MAJCOMs and 
installations a copy of the final response and a complete set of all 
review comments.
    (3) Single Manager Acquisition Programs (system-related NEPA). The 
proponent Single Manager (i.e., System Program Director, Materiel Group 
Managers, and Product Group Managers) for all programs, regardless of 
acquisition category, shall comply with DoD Regulation 5000.2-R. SAF/
AQR, as the Air Force Acquisition Executive Office, is the final 
approval authority for all system-related NEPA documents. SAF/AQR is 
responsible for accomplishing appropriate Headquarters EPC/ESOHC review. 
The Single Manager will obtain appropriate Product Center EPC approval 
prior to forwarding necessary EIAP documents (i.e., Notices of Intent 
(NOIs) and preliminary draft and final EAs and EISs) to SAF/AQR. The 
Single Manager will allow for concurrent review of EIAP documents by HQ 
AFMC/CEV and the Operational Command (HQ ACC, HQ AMC, HQ AFSPC, etc.) 
The Single Manager is responsible for budgeting and funding EIAP 
efforts, including EIAP for research, development, testing, and 
evaluation activities.
    (4) Key Air Force environmental participants. The EIAP must be 
approached as an integrated team effort including key participants 
within the Air Force and also involving outside federal agencies, state, 
Tribal, and local governments, interested outside parties, citizens 
groups, and the general public. Key Air Force participants may include 
the following functional areas, as well as others:

Proponent
Civil Engineers/Environmental Planning Function
Staff Judge Advocate
Public Affairs
Medical Service (Bioenvironmental Engineer)
Safety Office
Range and Airspace Managers
Bases and Units
Plans and Programs
Logistics
Personnel
Legislative Liaison

    (d) Proponent. Each office, unit, single manager, or activity at any 
level that initiates Air Force actions is responsible for:
    (1) Complying with the EIAP and shall ensure integration of the EIAP 
during the initial planning stages of proposed actions so that planning 
and decisions reflect environmental values, delays are avoided later in 
the process, and potential conflicts are precluded.
    (2) Notifying the EPF of a pending action and completing Section I 
of AF Form 813, Request for Environmental Impact Analysis. Prepare the 
Description of Proposed Action and Alternatives (DOPAA) through an 
interdisciplinary team approach including the EPF and other key Air 
Force participants.
    (3) Identifying key decision points and coordinating with the EPF on 
EIAP phasing to ensure that environmental documents are available to the

[[Page 150]]

decision-maker before the final decision is made and ensuring that, 
until the EIAP is complete, resources are not committed prejudicing the 
selection of alternatives nor actions taken having an adverse 
environmental impact or limiting the choice of reasonable alternatives.
    (4) Determining, with the EPF, as early as possible whether to 
prepare an EIS. The proponent and the EPF will conduct an early internal 
scoping process as part of the EIAP process. The internal scoping 
process should involve key Air Force environmental participants (see 
Sec.  989.3(c)(4)) and other Air Force offices as needed and conclude 
with preparation of a DOPAA. For complex or detailed EAs or EISs, an 
outside facilitator trained in EIAP may be used to focus and guide the 
discussion. Department of the Air Force personnel, rather than 
contractors, should generally be used to prepare the DOPAA.
    (5) Presenting the DOPAA to the EPC for review and comment.
    (6) Coordinating with the EPF, Public Affairs, and Staff Judge 
Advocate prior to organizing public or interagency meetings which deal 
with EIAP elements of a proposed action and involving persons or 
agencies outside the Air Force.
    (7) Subsequent to the decision to prepare an EIS, assisting the EPF 
and Public Affairs Office in preparing a draft NOI to prepare an EIS. 
All NOIs must be forwarded through the MAJCOM EPF to HQ USAF/A7CI for 
review and publication in the Federal Register. Publication in the 
Federal Register is accomplished in accordance with AFI 37-120, Federal 
Register. \5\ (See Sec.  989.17.)
---------------------------------------------------------------------------

    \5\ See footnote 1 to Sec.  989.1.
---------------------------------------------------------------------------

    (8) Ensuring that proposed actions are implemented as described in 
the final EIAP decision documents.
    (e) Environmental Planning Function (EPF). At every level of 
command, the EPF is one of the key Air Force participants responsible 
for the EIAP. The EPF can be the environmental flight within a civil 
engineer squadron, a separate environmental management office at an 
installation, the CEV at MAJCOMs, or an equivalent environmental 
function located with a program office. The EPF:
    (1) Supports the EIAP by bringing key participants in at the 
beginning of a proposed action and involving them throughout the EIAP. 
Key participants play an important role in defining and focusing key 
issues at the initial stage.
    (2) At the request of the proponent, prepares environmental 
documents using an interdisciplinary approach, or obtains technical 
assistance through Air Force channels or contract support. Assists the 
proponent in obtaining review of environmental documents.
    (3) Assists the proponent in preparing a DOPAA and actively supports 
the proponent during all phases of the EIAP.
    (4) Evaluates proposed actions and completes Sections II and III of 
AF Form 813, subsequent to submission by the proponent and determines 
whether a Categorical Exclusion (CATEX) applies. The responsible EPF 
member signs the AF Form 813 certification.
    (5) Identifies and documents, with technical advice from the 
Bioenvironmental Engineer and other staff members, environmental quality 
standards that relate to the action under evaluation.
    (6) Supports the proponent in preparing environmental documents, or 
obtains technical assistance through Air Force channels or contract 
support and adopts the documents as official Air Force papers when 
completed and approved.
    (7) Ensures the EIAP is conducted on base-level and MAJCOM-level 
plans, including contingency plans for the training, movement, and 
operations of Air Force personnel and equipment.
    (8) Prepares the NOI to prepare an EIS with assistance from the 
proponent and the Public Affairs Office.
    (9) Prepares applicable portions of the Certificate of Compliance 
for each military construction project according to AFI 32-1021, 
Planning and Programming of Facility Construction Projects. \6\
---------------------------------------------------------------------------

    \6\ See footnote 1 to Sec.  989.1.
---------------------------------------------------------------------------

    (10) Submits one hard copy and one electronic copy of the final EA/
Finding of No Significant Impact (FONSI) and

[[Page 151]]

EIS/Record of Decision (ROD) to the Defense Technical Information 
Center.
    (f) Environment, Safety, and Occupational Health Council (ESOHC). 
The ESOHC provides senior leadership involvement and direction at all 
levels of command in accordance with AFI 90-801, Environment, Safety, 
and Occupational Health Councils, 25 March 2005.
    (g) Staff Judge Advocate (SJA). The Staff Judge Advocate:
    (1) Advises the proponent, EPF, and EPC on CATEX determinations and 
the legal sufficiency of environmental documents.
    (2) Advises the EPF during the scoping process of issues that should 
be addressed in EISs and on procedures for the conduct of public 
hearings.
    (3) Coordinates the appointment of the independent hearing officer 
with AFLOA/JAJT and provides support for the hearing officer in cases of 
public hearings on the draft EIS. The proponent pays administrative and 
Temporary Duty (TDY) costs. The hearing officer presides at hearings and 
makes final decisions regarding hearing procedures.
    (4) Promptly refers all matters causing or likely to cause 
substantial public controversy or litigation through channels to AFLOA/
JACE (or NGB-JA).
    (h) Public Affairs Officer. This officer:
    (1) Advises the EPF, the EPC, and the proponent on public affairs 
activities on proposed actions and reviews environmental documents for 
public involvement issues.
    (2) Advises the EPF of issues and competing interests that should be 
addressed in the EIS or EA.
    (3) Assists in preparation of and attends public meetings or media 
sessions on environmental issues.
    (4) Prepares, coordinates, and distributes news releases and other 
public information materials related to the proposal and associated EIAP 
documents.
    (5) Notifies the media (television, radio, newspaper) and purchases 
advertisements when newspapers will not run notices free of charge. The 
EPF will fund the required advertisements.
    (6) Determines and ensures Security Review requirements are met for 
all information proposed for public release.
    (7) For more comprehensive instructions about public affairs 
activities in environmental matters, see AFI 35-101. \8\
---------------------------------------------------------------------------

    \8\ See footnote 1 to Sec.  989.1.
---------------------------------------------------------------------------

    (i) Medical Service. The Medical Service, represented by the 
Bioenvironmental Engineer, provides technical assistance to EPFs in the 
areas of environmental health standards, environmental effects, and 
environmental monitoring capabilities. The Air Force Armstrong 
Laboratory, Occupational and Environmental Health Directorate, provides 
additional technical support.
    (j) Safety Office. The Safety Office provides technical review and 
assistance to EPFs to ensure consideration of safety standards and 
requirements.

[64 FR 38129, July 15, 1999, as amended at 66 FR 16868, Mar. 28, 2001; 
72 FR 37106, July 9, 2007; 79 FR 35286, June 20, 2014]



Sec.  989.4  Initial considerations.

    Air Force personnel will:
    (a) Consider and document environmental effects of proposed Air 
Force actions through AF Forms 813, EAs, FONSIs, EISs, RODs, and 
documents prepared according to E.O. 12114.
    (b) Evaluate proposed actions for possible CATEX from environmental 
impact analysis (appendix B).
    (c) Make environmental documents, comments, and responses, including 
those of other federal agencies, state, Tribal, and local governments, 
and the public, part of the record available for review and use at all 
levels of decisionmaking.
    (d) Review the specific alternatives analyzed in the EIAP when 
evaluating the proposal prior to decisionmaking.
    (e) Ensure that alternatives to be considered by the decisionmaker 
are both reasonable and within the range of alternatives analyzed in the 
environmental documents.
    (f) Pursue the objective of furthering foreign policy and national 
security interests while at the same time considering important 
environmental factors.
    (g) Consider the environmental effects of actions that affect the 
global commons.
    (h) Determine whether any foreign government should be informed of 
the

[[Page 152]]

availability of environmental documents. Formal arrangements with 
foreign governments concerning environmental matters and communications 
with foreign governments concerning environmental agreements will be 
coordinated with the Department of State by the Deputy Assistant 
Secretary of the Air Force for Installations (SAF/IEI) through the 
Deputy Under Secretary of Defense (Installations & Environment). This 
coordination requirement does not apply to informal working-level 
communications and arrangements.

[64 FR 38129, July 15, 1999, as amended at 72 FR 37106, July 9, 2007; 79 
FR 35286, June 20, 2014]



Sec.  989.5  Organizational relationships.

    (a) The host EPF manages the EIAP using an interdisciplinary team 
approach. This is especially important for tenant-proposed actions, 
because the host command is responsible for the EIAP for actions related 
to the host command's installations.
    (b) The host command prepares environmental documents internally or 
directs the host base to prepare the environmental documents. 
Environmental document preparation may be by contract (requiring the 
tenant to fund the EIAP), by the tenant unit, or by the host. Regardless 
of the preparation method, the host command will ensure the required 
environmental analysis is accomplished before a decision is made on the 
proposal and an action is undertaken. Support agreements should provide 
specific procedures to ensure host oversight of tenant compliance, 
tenant funding or reimbursement of host EIAP costs, and tenant 
compliance with the EIAP regardless of the tenant not being an Air Force 
organization.
    (c) For aircraft beddown and unit realignment actions, program 
elements are identified in the Program Objective Memorandum. Subsequent 
Program Change Requests must include AF Form 813.
    (d) To ensure timely initiation of the EIAP, SAF/AQ forwards 
information copies of all Mission Need Statements and System Operational 
Requirements Documents to SAF/IEI, HQ USAF/A7CI (or NGB/A7CV), the Air 
Force Medical Operations Agency, Aerospace Medicine Office (AFMOA/SG), 
and the affected MAJCOM EPFs.
    (e) The MAJCOM of the scheduling unit managing affected airspace is 
responsible for preparing and approving environmental analyses.

[64 FR 38129, July 15, 1999, as amended at 66 FR 16868, Mar. 28, 2001; 
72 FR 37106, July 9, 2007; 79 FR 35286, June 20, 2014]



Sec.  989.6  Budgeting and funding.

    Contract EIAP efforts are proponent MAJCOM responsibilities. Each 
year, the EPF programs for anticipated out-year EIAP workloads based on 
inputs from command proponents. If proponent offices exceed the budget 
in a given year or identify unforeseen requirements, the proponent 
offices must provide the remaining funding.



Sec.  989.7  Requests from Non-Air Force agencies or entities.

    (a) Non-Air Force agencies or entities may request the Air Force to 
undertake an action, such as issuing a permit or outleasing Air Force 
property, that may primarily benefit the requester or an agency other 
than the Air Force. The EPF and other Air Force staff elements must 
identify such requests and coordinate with the proponent of the non-Air 
Force proposal, as well as with concerned state, Tribal, and local 
governments.
    (b) Air Force decisions on such proposals must take into 
consideration the potential environmental impacts of the applicant's 
proposed activity (as described in an Air Force environmental document), 
insofar as the proposed action involves Air Force property or programs, 
or requires Air Force approval.
    (c) The Air Force may require the requester to prepare, at the 
requester's expense, an analysis of environmental impacts (40 CFR 
1506.5), or the requester may be required to pay for an EA or EIS to be 
prepared by a contractor selected and supervised by the Air Force. The 
EPF may permit requesters to submit draft EAs for their proposed 
actions, except for actions described in Sec.  989.16(a) and (b), or for 
actions the EPF has reason to believe will ultimately require an EIS. 
For EISs, the EPF has the responsibility to prepare the environmental 
document,

[[Page 153]]

although responsibility for funding remains with the requester. The fact 
that the requester has prepared environmental documents at its own 
expense does not commit the Air Force to allow or undertake the proposed 
action or its alternatives. The requester is not entitled to any 
preference over other potential parties with whom the Air Force might 
contract or make similar arrangements.
    (d) In no event is the requester who prepares or funds an 
environmental analysis entitled to reimbursement from the Air Force. 
When requesters prepare environmental documents outside the Air Force, 
the Air Force must independently evaluate and approve the scope and 
content of the environmental analyses before using the analyses to 
fulfill EIAP requirements. Any outside environmental analysis must 
evaluate reasonable alternatives as defined in Sec.  989.8.



Sec.  989.8  Analysis of alternatives.

    (a) The Air Force must analyze reasonable alternatives to the 
proposed action and the ``no action'' alternative in all EAs and EISs, 
as fully as the proposed action alternative.
    (b) ``Reasonable'' alternatives are those that meet the underlying 
purpose and need for the proposed action and that would cause a 
reasonable person to inquire further before choosing a particular course 
of action. Reasonable alternatives are not limited to those directly 
within the power of the Air Force to implement. They may involve another 
government agency or military service to assist in the project or even 
to become the lead agency. The Air Force must also consider reasonable 
alternatives raised during the scoping process (see Sec.  989.18) or 
suggested by others, as well as combinations of alternatives. The Air 
Force need not analyze highly speculative alternatives, such as those 
requiring a major, unlikely change in law or governmental policy. If the 
Air Force identifies a large number of reasonable alternatives, it may 
limit alternatives selected for detailed environmental analysis to a 
reasonable range or to a reasonable number of examples covering the full 
spectrum of alternatives.
    (c) The Air Force may expressly eliminate alternatives from detailed 
analysis, based on reasonable selection standards (for example, 
operational, technical, or environmental standards suitable to a 
particular project). In consultation with the EPF, the appropriate Air 
Force organization may develop written selection standards to firmly 
establish what is a ``reasonable'' alternative for a particular project, 
but they must not so narrowly define these standards that they 
unnecessarily limit consideration to the proposal initially favored by 
proponents. This discussion of reasonable alternatives applies equally 
to EAs and EISs.
    (d) Except in those rare instances where excused by law, the Air 
Force must always consider and assess the environmental impacts of the 
``no action'' alternative. ``No action'' may mean either that current 
management practice will not change or that the proposed action will not 
take place. If no action would result in other predictable actions, 
those actions should be discussed within the no action alternative 
section. The discussion of the no action alternative and the other 
alternatives should be comparable in detail to that of the proposed 
action.



Sec.  989.9  Cooperation and adoption.

    (a) Lead and cooperating agency (40 CFR 1501.5 and 1501.6). When the 
Air Force is a cooperating agency in the preparation of an EIS, the Air 
Force reviews and approves principal environmental documents within the 
EIAP as if they were prepared by the Air Force. The Air Force executes a 
ROD for its program decisions that are based on an EIS for which the Air 
Force is a cooperating agency. The Air Force may also be a lead or 
cooperating agency on an EA using similar procedures, but the MAJCOM EPC 
retains approval authority unless otherwise directed by HQ USAF. Before 
invoking provisions of 40 CFR 1501.5(e), the lowest authority level 
possible resolves disputes concerning which agency is the lead agency.
    (b) Adoption of EA or EIS. The Air Force, even though not a 
cooperating agency, may adopt an EA or EIS prepared by another entity 
where the proposed action is substantially the same

[[Page 154]]

as the action described in the EA or EIS. In this case, the EA or EIS 
must be recirculated as a final EA or EIS but the Air Force must 
independently review the EA or EIS and determine that it is current and 
that it satisfies the requirements of this part. The Air Force then 
prepares its own FONSI or ROD, as the case may be. In the situation 
where the proposed action is not substantially the same as that 
described in the EA or the EIS, the Air Force may adopt the EA or EIS, 
or a portion thereof, by circulating the EA or EIS as a draft and then 
preparing the final EA or EIS.



Sec.  989.10  Tiering.

    The Air Force should use tiered (40 CFR 1502.20) environmental 
documents, and environmental documents prepared by other agencies, to 
eliminate repetitive discussions of the same issues and to focus on the 
issues relating to specific actions. If the Air Force adopts another 
Federal agency's environmental document, subsequent Air Force 
environmental documents may also be tiered.



Sec.  989.11  Combining EIAP with other documentation.

    (a) The EPF combines environmental analysis with other related 
documentation when practicable (40 CFR 1506.4) following the procedures 
prescribed by the CEQ regulations and this part.
    (b) The EPF must integrate comprehensive planning (AFI 32-7062, Air 
Force Comprehensive Planning \9\) with the requirements of the EIAP. 
Prior to making a decision to proceed, the EPF must analyze the 
environmental impacts that could result from implementation of a 
proposal identified in the comprehensive plan.
---------------------------------------------------------------------------

    \9\ See footnote 1 to Sec.  989.1.
---------------------------------------------------------------------------



Sec.  989.12  AF Form 813, Request for Environmental Impact Analysis.

    The Air Force uses AF Form 813 to document the need for 
environmental analysis or for certain CATEX determinations for proposed 
actions. The form helps narrow and focus the issues to potential 
environmental impacts. AF Form 813 must be retained with the EA or EIS 
to record the focusing of environmental issues.

[64 FR 38129, July 15, 1999, as amended at 66 FR 16868, Mar. 28, 2001]



Sec.  989.13  Categorical exclusion.

    (a) CATEXs define those categories of actions that do not 
individually or cumulatively have potential for significant effect on 
the environment and do not, therefore, require further environmental 
analysis in an EA or an EIS. The list of Air Force-approved CATEXs is in 
appendix B. Supplements to this part may not add CATEXs or expand the 
scope of the CATEXs in appendix B.
    (b) Characteristics of categories of actions that usually do not 
require either an EIS or an EA (in the absence of extraordinary 
circumstances) include:
    (1) Minimal adverse effect on environmental quality.
    (2) No significant change to existing environmental conditions.
    (3) No significant cumulative environmental impact.
    (4) Socioeconomic effects only.
    (5) Similarity to actions previously assessed and found to have no 
significant environmental impacts.
    (c) CATEXs apply to actions in the United States and abroad. General 
exemptions specific to actions abroad are in 32 CFR part 187. The EPF or 
other decision-maker forwards requests for additional exemption 
determinations for actions abroad to HQ USAF/A7CI with a justification 
letter.
    (d) Normally, any decision-making level may determine the 
applicability of a CATEX and need not formally record the determination 
on AF Form 813 or elsewhere, except as noted in the CATEX list.
    (e) Application of a CATEX to an action does not eliminate the need 
to meet air conformity requirements (see Sec.  989.30).

[64 FR 38129, July 15, 1999, as amended at 66 FR 16868, Mar. 28, 2001; 
72 FR 37106, July 9, 2007]



Sec.  989.14  Environmental assessment.

    (a) When a proposed action is one not usually requiring an EIS but 
is not categorically excluded, the EPF supports the proponent in 
preparing an EA (40

[[Page 155]]

CFR 1508.9). Every EA must lead to either a FONSI, a decision to prepare 
an EIS, or no action on the proposal.
    (b) Whenever a proposed action usually requires an EIS, the EPF 
responsible for the EIAP may prepare an EA to definitively determine if 
an EIS is required based on the analysis of environmental impacts. 
Alternatively, the EPF may choose to bypass the EA and proceed with 
preparation of an EIS.
    (c) An EA is a written analysis that:
    (1) Provides analysis sufficient to determine whether to prepare an 
EIS or a FONSI.
    (2) Aids the Air Force in complying with the NEPA when no EIS is 
required.
    (d) The length of an EA should be as short and concise as possible, 
while matching the magnitude of the proposal. An EA briefly discusses 
the need for the proposed action, reasonable alternatives to the 
proposed action, the affected environment, the environmental impacts of 
the proposed action and alternatives (including the ``no action'' 
alternative), and a listing of agencies and persons consulted during 
preparation. The EA should not contain long descriptions or lengthy, 
detailed data. Rather, incorporate by reference background data to 
support the concise discussion of the proposal and relevant issues.
    (e) The format for the EA may be the same as the EIS. The 
alternatives section of an EA and an EIS are similar and should follow 
the alternatives analysis guidance outlined in Sec.  989.8.
    (f) The EPF should design the EA to facilitate rapidly transforming 
the document into an EIS if the environmental analysis reveals a 
significant impact.
    (g) As a finding contained in the draft FONSI, a Finding of No 
Practicable Alternative (FONPA) must be submitted (five hard copies and 
an electronic version) to the MAJCOM EPF when the alternative selected 
could be located in wetlands or floodplains, and must discuss why no 
other practicable alternative exists to avoid impacts. See AFI 32-7064, 
Integrated Natural Resources Management.
    (h) EAs and accompanying FONSIs that require the Air Force to make 
Clean Air Act General Conformity Determinations shall be submitted (five 
hard copies and an electronic version) through the MAJCOM EPF to HQ 
USAF/A7CI for SAF/IEE coordination. SAF/IEE signs all General Conformity 
Determinations; SAF/IEI will sign the companion FONSIs after 
coordination with SAF/IEE, when requested by the MAJCOM (see Sec.  
989.30).
    (i) In cases potentially involving a high degree of controversy or 
Air Force-wide concern, the MAJCOM, after consultation with HQ USAF/
A7CI, may request HQ USAF ESOHC review and approval of an EA, or HQ USAF 
may direct the MAJCOM to forward an EA (five hard copies and an 
electronic version) for HQ USAF ESOHC review and approval.
    (j) As a minimum, the following EAs require MAJCOM approval because 
they involve topics of special importance or interest. Unless directed 
otherwise by HQ USAF/A7CI, the installation EPF must forward the 
following types of EAs to the MAJCOM EPF, along with an unsigned draft 
FONSI: (MAJCOMs can require other EAs to receive MAJCOM approval in 
addition to those types specified here.)
    (1) All EAs on non-Air Force proposals that require an Air Force 
decision, such as use of Air Force property for highways, space ports, 
and joint-use proposals.
    (2) EAs where mitigation to insignificance is accomplished in lieu 
of initiating an EIS (Sec.  989.22(c)).
    (k) A few examples of actions that normally require preparation of 
an EA (except as indicated in the CATEX list) include:
    (1) Public land withdrawals of less than 5,000 acres.
    (2) Minor mission realignments and aircraft beddowns.
    (3) New building construction on base within developed areas.
    (4) Minor modifications to Military Operating Areas (MOAs), air-to-
ground weapons ranges, and military training routes.
    (l) The Air Force will involve other federal agencies, state, 
Tribal, and local governments, and the public in the preparation of EAs 
(40 CFR 1501.4(b) and 1506.6). The extent of involvement usually 
coincides with the

[[Page 156]]

magnitude and complexity of the proposed action and its potential 
environmental effect on the area. For proposed actions described in 
Sec.  989.15(e)(2), use either the scoping process described in Sec.  
989.18 or the public notice process in Sec.  989.24.

[64 FR 38129, July 15, 1999, as amended at 66 FR 16868, Mar. 28, 2001; 
72 FR 37106, July 9, 2007; 79 FR 35286, June 20, 2014]



Sec.  989.15  Finding of no significant impact.

    (a) The FONSI (40 CFR 1508.13) briefly describes why an action would 
not have a significant effect on the environment and thus will not be 
the subject of an EIS. The FONSI must summarize the EA or, preferably, 
have it attached and incorporated by reference, and must note any other 
environmental documents related to the action.
    (b) If the EA is not incorporated by reference, the FONSI must 
include:
    (1) Name of the action.
    (2) Brief description of the action (including alternatives 
considered and the chosen alternative).
    (3) Brief discussion of anticipated environmental effects.
    (4) Conclusions leading to the FONSI.
    (5) All mitigation actions that will be adopted with implementation 
of the proposal (see Sec.  989.22).
    (c) Keep FONSIs as brief as possible. Only rarely should FONSIs 
exceed two typewritten pages. Stand-alone FONSIs without an attached EA 
may be longer.
    (d) For actions of regional or local interest, disseminate the FONSI 
according to Sec.  989.24. The MAJCOM and NGB are responsible for 
release of FONSIs to regional offices of Federal agencies, the state 
single point of contact (SPOC), and state agencies concurrent with local 
release by the installations.
    (e) The EPF must make the EA and unsigned FONSI available to the 
affected public and provide the EA and unsigned FONSI to organizations 
and individuals requesting them and to whomever the proponent or the EPF 
has reason to believe is interested in the action, unless disclosure is 
precluded for security classification reasons. Draft EAs and unsigned 
draft FONSIs will be clearly identified as drafts and distributed via 
cover letter which will explain their purpose and need. The EPF provides 
a copy of the documents without cost to organizations and individuals 
requesting them. The FONSI transmittal date (date of letter of 
transmittal) to the state SPOC or other equivalent agency is the 
official notification date.
    (1) Before the FONSI is signed and the action is implemented, the 
EPF should allow sufficient time to receive comments from the public. 
The time period will reflect the magnitude of the proposed action and 
its potential for controversy. The greater the magnitude of the proposed 
action or its potential for controversy, the longer the time that must 
be allowed for public review. Mandatory review periods for certain 
defined actions are contained in Sec.  989.15(e)(2). These are not all 
inclusive but merely specific examples. In every case where an EA and 
FONSI are prepared, the proponent and EPF must determine how much time 
will be allowed for public review. In all cases, other than classified 
actions, a public review period should be the norm unless clearly 
unnecessary due to the lack of potential controversy.
    (2) In the following circumstances, the EA and unsigned FONSI are 
made available for public review for at least 30 days before FONSI 
approval and implementing the action (40 CFR 1501.4(e)(2)):
    (i) When the proposed action is, or is closely similar to, one that 
usually requires preparation of an EIS (see Sec.  989.16).
    (ii) If it is an unusual case, a new kind of action, or a precedent-
setting case in terms of its potential environmental impacts.
    (iii) If the proposed action would be located in a floodplain or 
wetland.
    (iv) If the action is mitigated to insignificance in the FONSI, in 
lieu of an EIS (Sec.  989.22(c)).
    (v) If the proposed action is a change to airspace use or 
designation.
    (vi) If the proposed action would have a disproportionately high and 
adverse environmental effect on minority populations and low-income 
populations.
    (f) As a general rule, the same organizational level that prepares 
the EA also reviews and recommends the FONSI for approval by the EPC. 
MAJCOMs may decide the level of EA

[[Page 157]]

approval and FONSI signature, except as provided in Sec.  989.14(g), 
(h), (i), and (j).



Sec.  989.16  Environmental impact statement.

    (a) Certain classes of environmental impacts normally require 
preparation of an EIS (40 CFR 1501.4). These include, but are not 
limited to:
    (1) Potential for significant degradation of the environment.
    (2) Potential for significant threat or hazard to public health or 
safety.
    (3) Substantial environmental controversy concerning the 
significance or nature of the environmental impact of a proposed action.
    (b) Certain other actions normally, but not always, require an EIS. 
These include, but are not limited to:
    (1) Public land withdrawals of over 5,000 acres (Engle Act, 43 
U.S.C. 155 through 158).
    (2) Establishment of new air-to-ground weapons ranges.
    (3) Site selection of new airfields.
    (4) Site selection of major installations.
    (5) Development of major new weapons systems (at decision points 
that involve demonstration, validation, production, deployment, and area 
or site selection for deployment).
    (6) Establishing or expanding supersonic training areas over land 
below 30,000 feet MSL (mean sea level).
    (7) Disposal and reuse of closing installations.



Sec.  989.17  Notice of intent.

    The EPF must furnish, through the MAJCOM, to HQ USAF/A7CI the NOI 
(40 CFR 1508.22) describing the proposed action for congressional 
notification and publication in the Federal Register. The EPF, through 
the host base public affairs office, will also provide the approved NOI 
to newspapers and other media in the area potentially affected by the 
proposed action. The EPF must provide copies of the notice to the SPOC 
and must also distribute it to requesting agencies, organizations, and 
individuals. Along with the draft NOI, the EPF must also forward the 
completed DOPAA, through the MAJCOM, to HQ USAF for information.

[64 FR 38129, July 15, 1999, as amended at 66 FR 16868, Mar. 28, 2001; 
72 FR 37106, July 9, 2007]



Sec.  989.18  Scoping.

    (a) After publication of the NOI for an EIS, the EPF must initiate 
the public scoping process (40 CFR 1501.7) to determine the scope of 
issues to be addressed and to help identify significant environmental 
issues to be analyzed in depth. Methods of scoping range from soliciting 
written comments to conducting public scoping meetings (see 40 CFR 
1501.7 and 1506.6(e)). The scoping process is an iterative, pro-active 
process of communicating with individual citizens, neighborhood, 
community, and local leaders, public interest groups, congressional 
delegations, state, Tribal, and local governments, and federal agencies. 
The scoping process must start prior to official public scoping meetings 
and continue through to preparation of the draft EIS. The purpose of 
this process is to de-emphasize insignificant issues and focus the scope 
of the environmental analysis on significant issues (40 CFR 1500.4(g)). 
Additionally, scoping allows early and more meaningful participation by 
the public. The result of scoping is that the proponent and EPF 
determine the range of actions, alternatives, and impacts to be 
considered in the EIS (40 CFR 1508.25). The EPF must send scripts for 
scoping meetings to HQ USAF/A7CI (or ANGRC/CEV) no later than 30 days 
before the first scoping meeting. Scoping meeting plans are similar in 
content to public hearing plans (see appendix C). Public scoping 
meetings should generally be held at locations not on the installation.
    (b) Where it is anticipated the proposed action and its alternatives 
will have disproportionately high and adverse human health or 
environmental effects on minority populations or low-income populations, 
special efforts

[[Page 158]]

shall be made to reach these populations. This might include special 
informational meetings or notices in minority and low-income areas 
concerning the regular scoping process.

[64 FR 38129, July 15, 1999, as amended at 66 FR 16868, Mar. 28, 2001; 
66 FR 26793, May 15, 2001; 72 FR 37106, July 9, 2007]



Sec.  989.19  Draft EIS.

    (a) Preliminary draft. The EPF supports the proponent in preparation 
of a preliminary draft EIS (PDEIS) (40 CFR 1502.9) based on the scope of 
issues decided on during the scoping process. The format of the EIS must 
be in accordance with the format recommended in the CEQ regulations (40 
CFR 1502.10 and 1502.11). The CEQ regulations indicate that EISs 
normally contain fewer than 150 pages (300 pages for proposals of 
unusual complexity). The EPF provides a sufficient number of copies of 
the PDEIS to HQ USAF/A7CI for HQ USAF ESOHC security and policy review 
in each member's area of responsibility and to AFCEE/TDB for technical 
review.
    (b) Review of draft EIS. After the HQ USAF ESOHC review, the EPF 
assists the appropriate Air Force organization in making any necessary 
revisions to the PDEIS and forwards it to HQ USAF/A7CI as a draft EIS to 
ensure completion of all security and policy reviews and to certify 
releasability. Once the draft EIS is approved, HQ USAF/A7CI notifies the 
EPF to print sufficient copies of the draft EIS for distribution to 
congressional delegations and interested agencies at least 7 calendar 
days prior to publication of the Notice of Availability (NOA) in the 
Federal Register. After congressional distribution, the EPF sends the 
draft EIS to all others on the distribution list. HQ USAF/A7CI then 
files the document with the U.S. Environmental Protection Agency (USEPA) 
and provides a copy to the Deputy Under Secretary of Defense for 
Environmental Security.
    (c) Public review of draft EIS (40 CFR 1502.19 and 1506.6): (1) The 
public comment period for the draft EIS is at least 45 days starting 
from the publication date of the NOA of the draft EIS in the Federal 
Register. USEPA publishes in the Federal Register NOAs of EISs filed 
during the preceding week. This public comment period may be extended by 
the EPF. If the draft EIS is unusually long, the EPF may distribute a 
summary to the public with an attached list of locations (such as public 
libraries) where the entire draft EIS may be reviewed. The EPF must 
distribute the full draft EIS to certain entities, for example, agencies 
with jurisdiction by law or agencies with special expertise in 
evaluating the environmental impacts, and anyone else requesting the 
entire draft EIS (40 CFR 1502.19 and 1506.6).
    (2) The EPF sponsors public hearings on the draft EIS according to 
the procedures in appendix C to this part. Hearings take place no sooner 
than 15 days after the Federal Register publication of the NOA and at 
least 15 days before the end of the comment period. Scheduling hearings 
toward the end of the comment period is encouraged to allow the public 
to obtain and more thoroughly review the draft EIS. The EPF must provide 
hearing scripts to HQ USAF/A7CI (or ANGRC/CEV) no later than 30 days 
prior to the first public hearing. Public hearings should generally be 
held at off-base locations. Submit requests to deviate from procedures 
in appendix C to this part to HQ USAF/A7CI for SAF/IEI approval.
    (3) Where analyses indicate that a proposed action will potentially 
have disproportionately high and adverse human health or environmental 
effects on minority populations or low-income populations, the EPF 
should make special efforts to ensure that these potentially impacted 
populations are brought into the review process.
    (d) Response to comments (40 CFR 1503.4). The EPF must incorporate 
in the Final EIS its responses to comments on the Draft EIS by modifying 
the text and referring in the appendix to where the comment is addressed 
or providing a written explanation in the comments section, or both. The 
EPF may group comments of a similar nature together to allow a common 
response and may also respond to individuals separately.
    (e) Seeking additional comments. The EPF may, at any time during the 
EIS process, seek additional public comments, such as when there has 
been a

[[Page 159]]

significant change in circumstances, development of significant new 
information of a relevant nature, or where there is substantial 
environmental controversy concerning the proposed action. Significant 
new information leading to public controversy regarding the scope after 
the scoping process is such a changed circumstance. An additional public 
comment period may also be necessary after the publication of the draft 
EIS due to public controversy or changes made as the result of previous 
public comments. Such periods when additional public comments are sought 
shall last for at least 30 days.

[64 FR 38129, July 15, 1999, as amended at 66 FR 16868, Mar. 28, 2001; 
72 FR 37106, July 9, 2007; 79 FR 35286, June 20, 2014]



Sec.  989.20  Final EIS.

    (a) If changes in the draft EIS are minor or limited to factual 
corrections and responses to comments, the proponent and EPF may, with 
the prior approval of HQ USAF/A7CI and SAF/IEI, prepare a document 
containing only comments on the Draft EIS, Air Force responses, and 
errata sheets of changes staffed to the HQ USAF ESOHC for coordination. 
However, the EPF must submit the Draft EIS and all of the above 
documents, with a new cover sheet indicating that it is a final EIS (40 
CFR 1503.4(c)), to HQ USAF/A7CI for filing with the EPA (40 CFR 1506.9). 
If more extensive modifications are required, the EPF must prepare a 
preliminary final EIS incorporating these modifications for coordination 
within the Air Force. Regardless of which procedure is followed, the 
final EIS must be processed in the same way as the draft EIS, including 
receipt of copies of the EIS by SAF/LLP, except that the public need not 
be invited to comment during the 30-day post-filing waiting period. The 
Final EIS should be furnished to every person, organization, or agency 
that made substantive comments on the Draft EIS or requested a copy. 
Although the EPF is not required to respond to public comments received 
during this period, comments received must be considered in determining 
final decisions such as identifying the preferred alternative, 
appropriate mitigations, or if a supplemental analysis is required.
    (b) The EPF processes all necessary supplements to EISs (40 CFR 
1502.9) in the same way as the original Draft and Final EIS, except that 
a new scoping process is not required.
    (c) If major steps to advance the proposal have not occurred within 
5 years from the date of the Final EIS approval, reevaluation of the 
documentation should be accomplished to ensure its continued validity.

[64 FR 38129, July 15, 1999, as amended at 66 FR 16868, Mar. 28, 2001; 
72 FR 37106, July 9, 2007; 79 FR 35287, June 20, 2014]



Sec.  989.21  Record of decision (ROD).

    (a) The proponent and the EPF prepare a draft ROD, formally staff it 
through the MAJCOM EPC, to HQ USAF/A7CI for verification of adequacy, 
and forwards it to either SAF/IEI or SAF/AQR, as the case may be, for 
approval and designation of the signator. A ROD (40 CFR 1505.2) is a 
concise public document stating what an agency's decision is on a 
specific action. The ROD may be integrated into any other document 
required to implement the agency's decision. A decision on a course of 
action may not be made until the later of the following dates:
    (1) 90 days after publication of the DEIS; or
    (2) 30 days after publication of the NOA of the Final EIS in the 
Federal Register.
    (b) The Air Force must announce the ROD to the affected public as 
specified in Sec.  989.24, except for classified portions. The ROD 
should be concise and should explain the conclusion, the reason for the 
selection, and the alternatives considered. The ROD must identify the 
course of action, whether it is the proposed action or an alternative, 
that is considered environmentally preferable regardless of whether it 
is the alternative selected for implementation. The ROD should summarize 
all the major factors the agency weighed in making its decision, 
including essential considerations of national policy.
    (c) The ROD must state whether the selected alternative employs all 
practicable means to avoid, minimize, or

[[Page 160]]

mitigate environmental impacts and, if not, explain why not.

[64 FR 38129, July 15, 1999, as amended at 66 FR 16868, Mar. 28, 2001; 
72 FR 37106, July 9, 2007; 79 FR 35287, June 20, 2014]



Sec.  989.22  Mitigation.

    (a) When preparing EIAP documents, indicate clearly whether 
mitigation measures (40 CFR 1508.20) must be implemented for the 
alternative selected. If using Best Management Practices (BMPs), 
identify the specific BMPs being used and include those BMPs in the 
mitigation plan. Discuss mitigation measures in terms of ``will'' and 
``would'' when such measures have already been incorporated into the 
proposal. Use terms like ``may'' and ``could'' when proposing or 
suggesting mitigation measures. Both the public and the Air Force 
community need to know what commitments are being considered and 
selected, and who will be responsible for implementing, funding, and 
monitoring the mitigation measures.
    (b) The proponent funds and implements mitigation measures in the 
mitigation plan that is approved by the decision-maker. Where possible 
and appropriate because of amount, the proponent should include the cost 
of mitigation as a line item in the budget for a proposed project. The 
proponent must ensure compliance with mitigation requirements, 
monitoring their effectiveness, and must keep the EPF informed of the 
mitigation status. The EPF reports its status, through the MAJCOM, to HQ 
USAF/A7CI when requested. Upon request, the EPF must also provide the 
results of relevant mitigation monitoring to the public.
    (c) The proponent may ``mitigate to insignificance'' potentially 
significant environmental impacts found during preparation of an EA, in 
lieu of preparing an EIS. The FONSI for the EA must include these 
mitigation measures. Such mitigations are legally binding and must be 
carried out as the proponent implements the project. If, for any reason, 
the project proponent later abandons or revises in environmentally 
adverse ways the mitigation commitments made in the FONSI, the proponent 
must prepare a supplemental EIAP document before continuing the project. 
If potentially significant environmental impacts would result from any 
project revisions, the proponent must prepare an EIS.
    (d) For each FONSI or ROD containing mitigation measures, the 
proponent prepares a plan specifically identifying each mitigation, 
discussing how the proponent will execute the mitigations, identifying 
who will fund and implement the mitigations, and stating when the 
proponent will complete the mitigation. The mitigation plan will be 
forwarded, through the MAJCOM EPF to HQ USAF/A7CI for review within 90 
days from the date of signature of the FONSI or ROD.

[64 FR 38129, July 15, 1999, as amended at 66 FR 16868, Mar. 28, 2001; 
72 FR 37106, July 9, 2007]



Sec.  989.23  Contractor prepared documents.

    All Air Force EIAP documents belong to and are the responsibility of 
the Air Force. EIAP correspondence and documents distributed outside of 
the Air Force should generally be signed out by Air Force personnel and 
documents should reflect on the cover sheet they are an Air Force 
document. Contractor preparation information should be contained within 
the document's list of preparers.



Sec.  989.24  Public notification.

    (a) Except as provided in Sec.  989.26, public notification is 
required for various aspects of the EIAP.
    (b) Activities that require public notification include:
    (1) An EA and FONSI.
    (2) An EIS NOI.
    (3) Public scoping meetings.
    (4) Availability of the draft EIS.
    (5) Public hearings on the draft EIS (which should be included in 
the NOA for the draft EIS).
    (6) Availability of the final EIS.
    (7) The ROD for an EIS.
    (c) For actions of local concern, the list of possible notification 
methods in 40 CFR 1506.6(b)(3) is only illustrative. The EPF may use 
other equally effective means of notification as a substitute for any of 
the methods listed. Because many Air Force actions are of limited 
interest to persons or organizations outside the Air Force, the EPF

[[Page 161]]

may limit local notification to the SPOC, local government 
representatives, and local news media. For all actions covered under 
Sec.  989.15(e)(2), and for all EIS notices, the public affairs office 
must purchase with EPF funds an advertisement in a prominent section of 
the local newspaper(s) of general circulation (not ``legal'' newspapers 
or ``legal section'' of general newspapers).
    (d) For the purpose of EIAP, the EPF begins the time period of local 
notification when it sends written notification to the state SPOC or 
other equivalent agency (date of letter of notification).



Sec.  989.25  Base closure and realignment.

    Base closure or realignment may entail special requirements for 
environmental analysis. The permanent base closure and realignment law, 
10 U.S.C. 2687, requires a report to the Congress when an installation 
where at least 300 DoD civilian personnel are authorized to be employed 
is closed, or when a realignment reduces such an installation by at 
least 50 percent or 1,000 of such personnel, whichever is less. In 
addition, other base closure laws may be in effect during particular 
periods. Such nonpermanent closure laws frequently contain provisions 
limiting the extent of environmental analysis required for actions taken 
under them. Such provisions may also add requirements for studies not 
necessarily required by NEPA.



Sec.  989.26  Classified actions (40 CFR 1507.3(c)).

    (a) Classification of an action for national defense or foreign 
policy purposes does not relieve the requirement of complying with NEPA. 
In classified matters, the Air Force must prepare and make available 
normal NEPA environmental analysis documents to aid in the decision-
making process; however, Air Force staff must prepare, safeguard, and 
disseminate these documents according to established procedures for 
protecting classified documents. If an EIAP document must be classified, 
the Air Force may modify or eliminate associated requirements for public 
notice (including publication in the Federal Register) or public 
involvement in the EIAP. However, the Air Force should obtain comments 
on classified proposed actions or classified aspects of generally 
unclassified actions, from public agencies having jurisdiction by law or 
special expertise, to the extent that such review and comment is 
consistent with security requirements. Where feasible, the EPF may need 
to help appropriate personnel from those agencies obtain necessary 
security clearances to gain access to documents so they can comment on 
scoping or review the documents.
    (b) Where the proposed action is classified and unavailable to the 
public, the Air Force may keep the entire NEPA process classified and 
protected under the applicable procedures for the classification level 
pertinent to the particular information. At times (for example, during 
weapons system development and base closures and realignments), certain 
but not all aspects of NEPA documents may later be declassified. In 
those cases, the EPF should organize the EIAP documents, to the extent 
practicable, in a way that keeps the most sensitive classified 
information (which is not expected to be released at any early date) in 
a separate annex that can remain classified; the rest of the EIAP 
documents, when declassified, will then be comprehensible as a unit and 
suitable for release to the public. Thus, the documents will reflect, as 
much as possible, the nature of the action and its environmental 
impacts, as well as Air Force compliance with NEPA requirements.
    (c) Where the proposed action is not classified, but certain aspects 
of it need to be protected by security classification, the EPF should 
tailor the EIAP for a proposed action to permit as normal a level of 
public involvement as possible, but also fully protect the classified 
part of the action and environmental analysis. In some instances, the 
EPF can do this by keeping the classified sections of the EIAP documents 
in a separate, classified annex.
    (d) For Sec.  989.26(b) actions, an NOI or NOA will not be published 
in the Federal Register until the proposed action is declassified. For 
Sec.  989.26(c) actions, the Federal Register will run an unclassified 
NOA which will advise

[[Page 162]]

the public that at some time in the future the Air Force may or will 
publicly release a declassified document.
    (e) The EPF similarly protects classified aspects of FONSIs, RODs, 
or other environmental documents that are part of the EIAP for a 
proposed action, such as by preparing separate classified annexes to 
unclassified documents, as necessary.
    (f) Whenever a proponent believes that EIAP documents should be kept 
classified, the EPF must make a report of the matter to SAF/IEI, 
including proposed modifications of the normal EIAP to protect 
classified information. The EPF may make such submissions at whatever 
level of security classification is needed to provide a comprehensive 
understanding of the issues. SAF/IEI, with support from SAF/GC and other 
staff elements as necessary, makes final decisions on EIAP procedures 
for classified actions.

[64 FR 38129, July 15, 1999, as amended at 72 FR 37106, July 9, 2007; 79 
FR 35287, June 20, 2014]



Sec.  989.27  Occupational safety and health.

    Assess direct and indirect impacts of proposed actions on the safety 
and health of Air Force employees and others at a work site. The EIAP 
document does not need to specify compliance procedures. However, the 
EIAP documents should discuss impacts that require a change in work 
practices to achieve an adequate level of health and safety.



Sec.  989.28  Airspace and range proposals.

    (a) EIAP Review. Airspace and range proposals require review by HQ 
USAF/XOO prior to public announcement and preparation of the DOPAA. 
Unless directed otherwise, the airspace proponent will forward the DOPAA 
as an attachment to the proposal sent to HQ USAF/XOO.
    (b) Federal Aviation Administration. The DoD and the Federal 
Aviation Administration (FAA) have entered into a Memorandum of 
Understanding (MOU) that outlines various airspace responsibilities. For 
purposes of compliance with NEPA, the DoD is the ``lead agency'' for all 
proposals initiated by DoD, with the FAA acting as the ``cooperating 
agency.'' Where airspace proposals initiated by the FAA affect military 
use, the roles are reversed. The proponent's action officers (civil 
engineering and local airspace management) must ensure that the FAA is 
fully integrated into the airspace proposal and related EIAP from the 
very beginning and that the action officers review the FAA's 
responsibilities as a cooperating agency. The proponent's airspace 
manager develops the preliminary airspace proposal per appropriate FAA 
handbooks and the FAA-DoD MOU. The preliminary airspace proposal is the 
basis for initial dialogue between DoD and the FAA on the proposed 
action. A close working relationship between DoD and the FAA, through 
the FAA regional Air Force representative, greatly facilitates the 
airspace proposal process and helps resolve many NEPA issues during the 
EIAP.



Sec.  989.29  Force structure and unit move proposals.

    Unless directed otherwise, the MAJCOM plans and programs proponent 
will forward a copy of all EAs for force structure and unit moves to HQ 
USAF/A7CI for information only at the preliminary draft and preliminary 
final stages.

[64 FR 38129, July 15, 1999, as amended at 66 FR 16869, Mar. 28, 2001; 
72 FR 37106, July 9, 2007]



Sec.  989.30  Air quality.

    Section 176(c) of the Clean Air Act Amendments of 1990, 42 U.S.C. 
7506(c), establishes a conformity requirement for Federal agencies which 
has been implemented by regulation, 40 CFR 93, subpart B. All EIAP 
documents must address applicable conformity requirements and the status 
of compliance. Conformity applicability analyses and determinations are 
developed in parallel with EIAP documents, but are separate and distinct 
requirements and should be documented separately. To increase the 
utility of a conformity determination in performing the EIAP, the 
conformity determination should be completed prior to the completion of 
the EIAP so as to allow incorporation of the information from the 
conformity determination into the EIAP.

[[Page 163]]

See AFI 32-7040, Air Quality Compliance. \10\
---------------------------------------------------------------------------

    \10\ See footnote 1 to Sec.  989.1.
---------------------------------------------------------------------------



Sec.  989.31  Pollution prevention.

    The Pollution Prevention Act of 1990, 42 U.S.C. 13101(b), 
established a national policy to prevent or reduce pollution at the 
source, whenever feasible. Pollution prevention approaches should be 
applied to all pollution-generating activities. The environmental 
document should analyze potential pollution that may result from the 
proposed action and alternatives and must discuss potential pollution 
prevention measures when such measures are feasible for incorporation 
into the proposal or alternatives. Where pollution cannot be prevented, 
the environmental analysis and proposed mitigation measures should 
include, wherever possible, recycling, energy recovery, treatment, and 
environmentally safe disposal actions (see AFI 32-7080, Pollution 
Prevention Program \11\).
---------------------------------------------------------------------------

    \11\ See footnote 1 to Sec.  989.1.
---------------------------------------------------------------------------



Sec.  989.32  Noise.

    Aircraft noise data files used for analysis during EIAP will be 
submitted to HQ AFCEE for review and validation prior to public release, 
and upon completion of the EIAP for database entry. Utilize the current 
NOISEMAP computer program for air installations and the Assessment 
System for Aircraft Noise for military training routes and military 
operating areas. Guidance on standardized Air Force noise data 
development and analysis procedures is available from HQ AFCEE/TDB. 
Develop EIAP land use analysis relating to aircraft noise impacts 
originating from air installations following procedures in AFI 32-7063, 
Air Installation Compatible Use Zone (AICUZ) Program. Draft EIAP 
aircraft noise/land use analysis associated with air installations will 
be coordinated with the MAJCOM AICUZ program manager.

[64 FR 38129, July 15, 1999, as amended at 66 FR 16869, Mar. 28, 2001; 
72 FR 37106, July 9, 2007]



Sec.  989.33  Environmental justice.

    During the preparation of environmental analyses under this 
instruction, the EPF should ensure compliance with the provisions of 
E.O. 12898, Federal Actions to Address Environmental Justice in Minority 
Populations and Low-Income Populations, and Executive Memorandum of 
February 11, 1994, regarding E.O. 12898.



Sec.  989.34  Special and emergency procedures.

    (a) Special procedures. During the EIAP, unique situations may arise 
that require EIAP strategies different than those set forth in this 
part. These situations may warrant modification of the procedures in 
this part. EPFs should only consider procedural deviations when the 
resulting process would benefit the Air Force and still comply with NEPA 
and CEQ regulations. EPFs must forward all requests for procedural 
deviations to HQ USAF/A7CI (or ANGRC/CEV) for review and approval by 
SAF/IEI.
    (b) Emergency procedures (40 CFR 1506.11). Emergency situations do 
not exempt the Air Force from complying with NEPA, but do allow 
emergency response while completing the EIAP. Certain emergency 
situations may make it necessary to take immediate action having 
significant environmental impact, without observing all the provisions 
of the CEQ regulations or this part. If possible, promptly notify HQ 
USAF/A7CI, for SAF/IEI coordination and CEQ consultation .The immediate 
notification requirement does not apply where emergency action must be 
taken without delay. Coordination in this instance must take place as 
soon as practicable.

[64 FR 38129, July 15, 1999, as amended at 66 FR 16869, Mar. 28, 2001; 
72 FR 37106, July 9, 2007; 79 FR 35287, June 20, 2014]



Sec.  989.35  Reporting requirements.

    (a) EAs, EISs, and mitigation measures will be tracked at bases and 
MAJCOMs through an appropriate environmental management system.
    (b) Proponents, EPFs, and public affairs offices may utilize the 
World Wide Web, in addition to more traditional means, to notify the 
public of availability of EAs and EISs. When possible, allow 
distribution of documents electronically. Public review comments

[[Page 164]]

should be required in writing, rather than by electronic mail.
    (c) All documentation will be disposed of according to AFMAN 37-139, 
Records Disposition Schedule. \12\
---------------------------------------------------------------------------

    \12\ See footnote 1 to Sec.  989.1.

[64 FR 38129, July 15, 1999; 66 FR 16869, Mar. 28, 2001]



Sec.  989.36  Waivers.

    In order to deal with unusual circumstances and to allow growth in 
the EIAP process, SAF/IEI may grant waivers to those procedures 
contained in this part not required by NEPA or the CEQ Regulations. Such 
waivers shall not be used to limit compliance with NEPA or the CEQ 
Regulations but only to substitute other, more suitable procedures 
relative to the context of the particular action. Such waivers may also 
be granted on occasion to allow experimentation in procedures in order 
to allow growth in the EIAP. This authority may not be delegated.

[64 FR 38129, July 15, 1999, as amended at 66 FR 16869, Mar. 28, 2001; 
72 FR 37107, July 9, 2007; 79 FR 35287, June 20, 2014]



Sec.  989.37  Procedures for analysis abroad.

    Procedures for analysis of environmental actions abroad are 
contained in 32 CFR part 187. That directive provides comprehensive 
policies, definitions, and procedures for implementing E.O. 12114. For 
analysis of Air Force actions abroad, 32 CFR part 187 will be followed.



Sec.  989.38  Requirements for analysis abroad.

    (a) The EPF will generally perform the same functions for analysis 
of actions abroad that it performs in the United States. In addition to 
the requirements of 32 CFR part 187, the following Air Force specific 
rules apply:
    (b) For EAs dealing with global commons (geographic areas beyond the 
jurisdiction of the United States or any foreign nation), HQ USAF/A7CI 
will review actions that are above the MAJCOM approval authority. In 
this instance, approval authority refers to the same approval authority 
that would apply to an EA in the United States. The EPF documents a 
decision not to do an EIS.
    (c) For EISs dealing with the global commons, the EPF provides 
sufficient copies to HQ USAF/A7CI for the HQ USAF ESOHC review and 
AFCEE/TDB technical review. After ESOHC review, the EPF makes a 
recommendation as to whether the proposed draft EIS will be released as 
a draft EIS.
    (d) For environmental studies and environmental reviews, forward, 
when appropriate, environmental studies and reviews to HQ USAF/A7CI for 
coordination among appropriate federal agencies. HQ USAF/A7CI makes 
environmental studies and reviews available to the Department of State 
and other interested federal agencies, and, on request, to the United 
States public, in accordance with 32 CFR part 187. HQ USAF/A7CI also may 
inform interested foreign governments or furnish copies of studies, in 
accordance with 32 CFR part 187.

[64 FR 38129, July 15, 1999, as amended at 66 FR 16869, Mar. 28, 2001; 
72 FR 37107, July 9, 2007]



  Sec. Appendix A to Part 989--Glossary of References, Abbreviations, 
                           Acronyms, and Terms

                               References

                               Legislative

10 U.S.C. 2687, Base Closures and Realignments
42 U.S.C. 4321-4347, National Environmental Policy Act of 1969
42 U.S.C. 7506(c), Clean Air Act Amendments of 1990
42 U.S.C. 13101(b), Pollution Prevention Act of 1990
43 U.S.C. 155-158, Engle Act

                            Executive Orders

Executive Order 11988, Floodplain Management, May 24, 1977
Executive Order 11990, Protection of Wetlands, May 24, 1977
Executive Order 12088, Federal Compliance with Pollution Control 
Standards.
Executive Order 12114, Environmental Effects Abroad of Major Federal 
Actions, January 4, 1979
Executive Order 12372, Intergovernmental Review of Federal Programs, 
July 14, 1982
Executive Order 12898, Federal Actions to Address Environmental Justice 
in Minority Populations and Low-Income Populations, February 11, 1994

[[Page 165]]

                   U.S. Government Agency Publications

Council on Environmental Quality Regulations for Implementing the 
Procedural Provisions of the National Environmental Policy Act, 40 CFR 
parts 1500-1508
Department of Defense Directive DoDD 4715.1E, Environment, Safety, and 
Occupational Health
Department of Defense Directive (DoDD) 6050.7, Environmental Effects 
Abroad of Major Department of Defense Actions, March 31, 1979 (32 CFR 
part 187)
Department of Defense Instruction (DoDI) 4715.9, Environmental Planning 
and Analysis
Department of Defense Directive DoDD 5000.1, The Defense Acquisition 
System
Department of Defense Regulation 5000.2-R, Mandatory Procedures for 
Major Defense Acquisition Programs and Major Automated Information 
System Acquisition Programs

                         Air Force Publications

AFPD 32-70, Environmental Quality
AFI 32-1021, Planning and Programming of Facility Construction Projects
AFI 32-7002, Environmental Information Management System
AFI 32-7005, Environmental Protection Committees
AFI 32-7040, Air Quality Compliance
AFI 32-7062, Air Force Comprehensive Planning
AFI 32-7063, Air Installation Compatible Use Zone Program
AFI 32-7064, Integrated Natural Resources Management
AFI 32-7080, Pollution Prevention Program
AFI 35-101, Public Affairs Policies and Procedures
AFMAN 37-139, Records Disposition Schedule

                       Abbreviations and Acronyms

------------------------------------------------------------------------
   Abbreviation or Acronym                     Definition
------------------------------------------------------------------------
AFCEE........................  Air Force Center for Engineering and the
                                Environment
AFCEE/TDB....................  AFCEE Technical Directorate, Built
                                Infrastructure Division (AFCEE/TDB)
AFI..........................  Air Force Instruction
AFLOA/JACE...................  Air Force Legal Services Agency/
                                Environmental Law and Litigation
                                Division
AFLOA/JAJT...................  Air Force Legal Services Agency/Trial
                                Judiciary Division
AFMAN........................  Air Force Manual
AFMOA/SG.....................  Air Force Medical Operations Agency/
                                Aerospace Medicine Office
AFPD.........................  Air Force Policy Directive
AFRES........................  Air Force Reserve
ANG..........................  Air National Guard
ANGRC........................  Air National Guard Readiness Center
BMP..........................  Best Management Practice
CATEX........................  Categorical Exclusion
CEQ..........................  Council on Environmental Quality
CFR..........................  Code of Federal Regulations
DoD..........................  Department of Defense
DoDD.........................  Department of Defense Directive
DoDI.........................  Department of Defense Instruction
DOPAA........................  Description of Proposed Action and
                                Alternatives
EA...........................  Environmental Assessment
EIAP.........................  Environmental Impact Analysis Process
EIS..........................  Environmental Impact Statement
E.O..........................  Executive Order
EPA..........................  Environmental Protection Agency
EPC..........................  Environmental Protection Committee
EPF..........................  Environmental Planning Function
ESOHC........................  Environmental Safety and Occupational
                                Health Committee
FAA..........................  Federal Aviation Administration
FEIS.........................  Final Environmental Impact Statement
FOA..........................  Field Operating Agency
FONPA........................  Finding of No Practicable Alternative
FONSI........................  Finding of No Significant Impact
GSA..........................  General Services Administration
HQ AFMC......................  Headquarters, Air Force Materiel Command
HQ USAF......................  Headquarters, United States Air Force
HQ USAF/A7C..................  The Air Force Civil Engineer
MAJCOM.......................  Major Command
MGM..........................  Materiel Group Manager
MOA..........................  Military Operating Area
MOU..........................  Memorandum of Understanding
MSL..........................  Mean Sea Level
NEPA.........................  National Environmental Policy Act of 1969
NGB-CF.......................  National Guard Bureau Air Directorate
NGB-JA.......................  National Guard Bureau Office of the Staff
                                Judge Advocate
NGB-PA.......................  National Guard Bureau Office of Public
                                Affairs
NOA..........................  Notice of Availability
NOI..........................  Notice of Intent
OSD..........................  Office of the Secretary of Defense
OSHA.........................  Occupational Safety and Health
                                Administration
PDEIS........................  Preliminary Draft Environmental Impact
                                Statement

[[Page 166]]

 
PGM..........................  Product Group Manager
REO..........................  Air Force Regional Environmental Office
ROD..........................  Record of Decision
SAF/AQR......................  Deputy Assistant Secretary of the Air
                                Force (Science, Technology, and
                                Engineering)
SAF/GC.......................  Air Force General Counsel
SAF/LL.......................  Air Force Office of Legislative Liaison
SAF/IE.......................  Assistant Secretary of the Air Force for
                                Installations, Environment & Logistics
SAF/IEE......................  Deputy Assistant Secretary of the Air
                                Force for Environment, Safety and
                                Occupational Health (ESOH)
SAF/IEI......................  Deputy Assistant Secretary of the Air
                                Force for Installations.
SAF/PA.......................  Air Force Office of Public Affairs
SJA..........................  Staff Judge Advocate
SM...........................  Single Manager
SPD..........................  Single Program Director
SPOC.........................  Single Point of Contact
TDY..........................  Temporary Duty
U.S.C........................  United States Code
------------------------------------------------------------------------

                                  Terms

    Note: All definitions in the CEQ Regulations, 40 CFR part 1508, 
apply to this part. In addition, the following definitions apply:

    Best Management Practices (BMPs)--Under the EIAP, BMPs should be 
applied in furtherance of 32 CFR 989.22, Mitigations or to fulfill 
permit requirements (see also E.O. 12088, ``Federal Compliance with 
Pollution Control Standards).
    Description of Proposed Action and Alternatives (DOPAA)--An Air 
Force document that is the framework for assessing the environmental 
impact of a proposal. It describes the purpose and need for the action, 
the alternatives to be considered, and the rationale used to arrive at 
the proposed action. The DOPAA often unfolds as writing progresses. The 
DOPAA can change during the internal scoping and public scoping process, 
especially as ideas and issues become clearer, and as new information 
makes changes necessary.
    Environmental Impact Analysis Process (EIAP)--The Air Force program 
that implements the requirements of NEPA and requirements for analysis 
of environmental effects abroad under E.O. 12114.
    Finding of No Practicable Alternative (FONPA)--Finding contained in 
a FONSI or ROD, according to Executive Orders 11988 and 11990, that 
explains why there are no practicable alternatives to an action 
affecting a wetland or floodplain, based on appropriate EIAP analysis or 
other documentation.
    Interdisciplinary--An approach to environmental analysis involving 
more than one discipline or branch of learning.
    Pollution Prevention--``Source reduction,'' as defined under the 
Pollution Prevention Act, and other practices that reduce or eliminate 
pollutants through increased efficiency in the use of raw materials, 
energy, water, or other resources, or in the protection of natural 
resources by conservation.
    Proponent--Any office, unit, or activity that proposes to initiate 
an action.
    Scoping--A process for proposing alternatives to be addressed and 
for identifying the significant issues related to a proposed action. 
Scoping includes affirmative efforts to communicate with other federal 
agencies, state, Tribal, and local governments, and the public.
    Single Manager--Any one of the Air Force designated weapon system 
program managers, that include System Program Directors (SPDs), Product 
Group Managers (PGMs), and Materiel Group Managers (MGMs).
    United States--All states, commonwealths, the District of Columbia, 
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 American 
Samoa, Guam, Johnston Atoll, Kingman Reef, Midway Island, Navassa 
Island, Palmyra Island, the Virgin Islands, and Wake Island.

[64 FR 38129, July 15, 1999, as amended at 66 FR 16869, Mar. 28, 2001; 
72 FR 37107, July 9, 2007; 79 FR 35287, June 20, 2014]



           Sec. Appendix B to Part 989--Categorical Exclusions

                   A2.1. Proponent/EPF Responsibility

    Although a proposed action may qualify for a categorical exclusion 
from the requirements for environmental impact analysis under NEPA, this 
exclusion does not relieve the EPF or the proponent of responsibility 
for complying with all other environmental requirements related to the 
proposal, including requirements for permits, and state regulatory 
agency review of plans.

                        A2.2. Additional Analysis

    Circumstances may arise in which usually categorically excluded 
actions may have a

[[Page 167]]

significant environmental impact and, therefore, may generate a 
requirement for further environmental analysis. Examples of situations 
where such unique circumstances may be present include:
    A2.2.1. Actions of greater scope or size than generally experienced 
for a particular category of action.
    A2.2.2. Potential for degradation (even though slight) of already 
marginal or poor environmental conditions.
    A2.2.3. Initiating a degrading influence, activity, or effect in 
areas not already significantly modified from their natural condition.
    A2.2.4. Use of unproved technology.
    A2.2.5. Use of hazardous or toxic substances that may come in 
contact with the surrounding environment.
    A2.2.6. Presence of threatened or endangered species, archaeological 
remains, historical sites, or other protected resources.
    A2.2.7. Proposals adversely affecting areas of critical 
environmental concern, such as prime or unique agricultural lands, 
wetlands, coastal zones, wilderness areas, floodplains, or wild and 
scenic river areas.
    A2.2.8. Proposals with disproportionately high and adverse human 
health or environmental effects on minority populations or low-income 
populations.

                            A2.3. CATEX List

    Actions that are categorically excluded in the absence of unique 
circumstances are:
    A2.3.1. Routine procurement of goods and services.
    A2.3.2. Routine Commissary and Exchange operations.
    A2.3.3. Routine recreational and welfare activities.
    A2.3.4. Normal personnel, fiscal or budgeting, and administrative 
activities and decisions including those involving military and civilian 
personnel (for example, recruiting, processing, paying, and records 
keeping).
    A2.3.5. Preparing, revising, or adopting regulations, instructions, 
directives, or guidance documents that do not, themselves, result in an 
action being taken.
    A2.3.6. Preparing, revising, or adopting regulations, instructions, 
directives, or guidance documents that implement (without substantial 
change) the regulations, instructions, directives, or guidance documents 
from higher headquarters or other Federal agencies with superior subject 
matter jurisdiction.
    A2.3.7. Continuation or resumption of pre-existing actions, where 
there is no substantial change in existing conditions or existing land 
uses and where the actions were originally evaluated in accordance with 
applicable law and regulations, and surrounding circumstances have not 
changed.
    A2.3.8. Performing interior and exterior construction within the 5-
foot line of a building without changing the land use of the existing 
building.
    A2.3.9. Repairing and replacing real property installed equipment.
    A2.3.10. Routine facility maintenance and repair that does not 
involve disturbing significant quantities of hazardous materials such as 
asbestos and lead-based paint.
    A2.3.11. Actions similar to other actions which have been determined 
to have an insignificant impact in a similar setting as established in 
an EIS or an EA resulting in a FONSI. The EPF must document application 
of this CATEX on AF Form 813, specifically identifying the previous Air 
Force approved environmental document which provides the basis for this 
determination.
    A2.3.12. Installing, operating, modifying, and routinely repairing 
and replacing utility and communications systems, data processing cable, 
and similar electronic equipment that use existing rights of way, 
easements, distribution systems, or facilities.
    A2.3.13. Installing or modifying airfield operational equipment 
(such as runway visual range equipment, visual glide path systems, and 
remote transmitter or receiver facilities) on airfield property and 
usually accessible only to maintenance personnel.
    A2.3.14. Installing on previously developed land, equipment that 
does not substantially alter land use (i.e., land use of more than one 
acre). This includes outgrants to private lessees for similar 
construction. The EPF must document application of this CATEX on AF Form 
813.
    A2.3.15. Laying-away or mothballing a production facility or 
adopting a reduced maintenance level at a closing installation when (1) 
agreement on any required historic preservation effort has been reached 
with the state historic preservation officer and the Advisory Council on 
Historic Preservation, and (2) no degradation in the environmental 
restoration program will occur.
    A2.3.16. Acquiring land and ingrants (50 acres or less) for 
activities otherwise subject to CATEX. The EPF must document application 
of this CATEX on AF Form 813.
    A2.3.17. Transferring land, facilities, and personal property for 
which the General Services Administration (GSA) is the action agency. 
Such transfers are excluded only if there is no change in land use and 
GSA complies with its NEPA requirements.
    A2.3.18. Transferring administrative control of real property within 
the Air Force or to another military department or to another Federal 
agency, not including GSA, including returning public domain lands to 
the Department of the Interior.
    A2.3.19. Granting easements, leases, licenses, rights of entry, and 
permits to use Air Force controlled property for activities that, if 
conducted by the Air Force, could be categorically excluded in 
accordance with

[[Page 168]]

this Appendix. The EPF must document application of this CATEX on AF 
Form 813.
    A2.3.20. Converting in-house services to contract services.
    A2.3.21. Routine personnel decreases and increases, including work 
force conversion to either on-base contractor operation or to military 
operation from contractor operation (excluding base closure and 
realignment actions which are subject to congressional reporting under 
10 U.S.C. 2687).
    A2.3.22. Routine, temporary movement of personnel, including 
deployments of personnel on a TDY basis where existing facilities are 
used.
    A2.3.23. Personnel reductions resulting from workload adjustments, 
reduced personnel funding levels, skill imbalances, or other similar 
causes.
    A2.3.24. Study efforts that involve no commitment of resources other 
than personnel and funding allocations.
    A2.3.25. The analysis and assessment of the natural environment 
without altering it (inspections, audits, surveys, investigations). This 
CATEX includes the granting of any permits necessary for such surveys, 
provided that the technology or procedure involved is well understood 
and there are no adverse environmental impacts anticipated from it. The 
EPF must document application of this CATEX on AF Form 813.
    A2.3.26. Undertaking specific investigatory activities to support 
remedial action activities for purposes of cleanup of Environmental 
Restoration Account (ERA)--Air Force and Resource Conservation and 
Recovery Act (RCRA) corrective action sites. These activities include 
soil borings and sampling, installation, and operation of test or 
monitoring wells. This CATEX applies to studies that assist in 
determining final cleanup actions when they are conducted in accordance 
with legal agreements, administrative orders, or work plans previously 
agreed to by EPA or state regulators.
    A2.3.27. Normal or routine basic and applied scientific research 
confined to the laboratory and in compliance with all applicable safety, 
environmental, and natural resource conservation laws.
    A2.3.28. Routine transporting of hazardous materials and wastes in 
accordance with applicable Federal, state, interstate, and local laws.
    A2.3.29. Emergency handling and transporting of small quantities of 
chemical surety material or suspected chemical surety material, whether 
or not classified as hazardous or toxic waste, from a discovery site to 
a permitted storage, treatment, or disposal facility.
    A2.3.30. Immediate responses to the release or discharge of oil or 
hazardous materials in accordance with an approved Spill Prevention and 
Response Plan or Spill Contingency Plan or that are otherwise consistent 
with the requirements of the National Contingency Plan.
    A2.3.31. Relocating a small number of aircraft to an installation 
with similar aircraft that does not result in a significant increase of 
total flying hours or the total number of aircraft operations, a change 
in flight tracks, or an increase in permanent personnel or logistics 
support requirements at the receiving installation. Repetitive use of 
this CATEX at an installation requires further analysis to determine 
there are no cumulative impacts. The EPF must document application of 
this CATEX on AF Form 813.
    A2.3.32. Temporary (for less than 30 days) increases in air 
operations up to 50 percent of the typical installation aircraft 
operation rate or increases of 50 operations a day, whichever is 
greater. Repetitive use of this CATEX at an installation requires 
further analysis to determine there are no cumulative impacts.
    A2.3.33. Flying activities that comply with the Federal aviation 
regulations, that are dispersed over a wide area and that do not 
frequently (more than once a day) pass near the same ground points. This 
CATEX does not cover regular activity on established routes or within 
special use airspace.
    A2.3.34. Supersonic flying operations over land and above 30,000 
feet MSL, or over water and above 10,000 feet MSL and more than 15 
nautical miles from land.
    A2.3.35. Formal requests to the FAA, or host-nation equivalent 
agency, to establish or modify special use airspace (for example, 
restricted areas, warning areas, military operating areas) and military 
training routes for subsonic operations that have a base altitude of 
3,000 feet above ground level or higher. The EPF must document 
application of this CATEX on AF Form 813, which must accompany the 
request to the FAA.
    A2.3.36. Adopting airfield approach, departure, and en route 
procedures that are less than 3,000 feet above ground level, and that 
also do not route air traffic over noise-sensitive areas, including 
residential neighborhoods or cultural, historical, and outdoor 
recreational areas. The EPF may categorically exclude such air traffic 
patterns at or greater than 3,000 feet above ground level regardless of 
underlying land use.
    A2.3.37. Participating in ``air shows'' and fly-overs by Air Force 
aircraft at non-Air Force public events after obtaining FAA coordination 
and approval.
    A2.3.38. Conducting Air Force ``open houses'' and similar events, 
including air shows, golf tournaments, home shows, and the like, where 
crowds gather at an Air

[[Page 169]]

Force installation, so long as crowd and traffic control, etc., have not 
in the past presented significant safety or environmental impacts.

[64 FR 38129, July 15, 1999, as amended at 66 FR 16869, Mar. 28, 2001]

    Editorial Note: At 72 FR 37107, July 9, 2007, appendix B to part 989 
was amended by revising ``AFLSA/JAJT'' to read ``AFLOA/JAJT'' in A3.1.1 
and A3.1.2. However, the amendment could not be made because appendix B 
did not contain such sections.



 Sec. Appendix C to Part 989--Procedures for Holding Public Hearings on 
               Draft Environmental Impact Statements (EIS)

                       A.3.1. General Information

    A3.1.1. The Office of the Judge Advocate General, through the Air 
Force Legal Services Agency/Trial Judiciary Division (AFLSA/JAJT) and 
its field organization, is responsible for conducting public hearings 
and assuring verbatim transcripts are accomplished.
    A3.1.2. The EPF, with proponent, AFLSA/JAJT, and Public Affairs 
support, establishes the date and location, arranges for hiring the 
court reporter, funds temporary duty costs for the hearing officer, 
makes logistical arrangements (for example, publishing notices, 
arranging for press coverage, obtaining tables and chairs, etc.).
    A3.1.3. The procedures outlined below have proven themselves through 
many prior applications. However, there may be rare instances when 
circumstances warrant conducting public hearings under a different 
format, e.g., public/town meeting, information booths, third party 
moderator, etc. In these cases, forward a request with justification to 
deviate from these procedures to HQ USAF/A7CI for SAF/IEE approval.

                 A3.2. Notice of Hearing (40 CFR 1506.6)

    A3.2.1. Public Affairs officers:
    A3.2.1.1. Announce public hearings and assemble a mailing list of 
individuals to be invited.
    A3.2.1.2. Distribute announcements of a hearing to all interested 
individuals and agencies, including the print and electronic media.
    A3.2.1.3. Place a newspaper display advertisement announcing the 
time and place of the hearing as well as other pertinent particulars.
    A3.2.1.4. Distribute the notice in a timely manner so it will reach 
recipients or be published at least 15 days before the hearing date. 
Distribute notices fewer than 15 days before the hearing date when you 
have substantial justification and if the justification for a shortened 
notice period appears in the notice.
    A3.2.1.5. Develop and distribute news release.
    A3.2.2. If an action has effects of national concern, publish 
notices in the Federal Register and mail notices to national 
organizations that have an interest in the matter.
    A3.2.2.1. Because of the longer lead time required by the Federal 
Register, send out notices for publication in the Federal Register to 
arrive at HQ USAF/A7CI no later than 30 days before the hearing date.
    A3.2.3. The notice should include:
    A3.2.3.1. Date, time, place, and subject of the hearing.
    A3.2.3.2. A description of the general format of the hearing.
    A3.2.3.3. The name, address, and telephone number of the Air Force 
point of contact.
    A3.2.3.4. A suggestion that speakers submit (in writing or by return 
call) their intention to participate, with an indication of which 
environmental impact (or impacts) they wish to address.
    A3.2.3.5. Any limitation on the length of oral statements.
    A3.2.3.6. A suggestion that speakers submit statements of 
considerable length in writing.
    A3.2.3.7. A summary of the proposed action.
    A3.2.3.8. The location where the draft EIS and any appendices are 
available for examination.

           A.3.3. Availability of the Draft EIS to the Public

    The EPF makes copies of the Draft EIS available to the public at an 
Air Force installation and other reasonably accessible place in the 
vicinity of the proposed action and public hearing (e.g., public 
library).

                       A3.4. Place of the Hearing

    The EPF arranges to hold the hearing at a time and place and in an 
area readily accessible to military and civilian organizations and 
individuals interested in the proposed action. Generally, the EPF should 
arrange to hold the hearing in an off-base civilian facility, which is 
more accessible to the public.

                          A3.5. Hearing Officer

    A3.5.1. The AFLOA/JAJT selects a hearing officer to preside over 
hearings. The hearing officer does not need to have personal knowledge 
of the project, other than familiarity with the Draft EIS. In no event 
should the hearing officer be a judge advocate from the proponent or 
subordinate command, be assigned to the same installation with which the 
hearing is concerned, or have participated personally in the development 
of the project, or have rendered legal advice or assistance with respect 
to it (or be expected to

[[Page 170]]

do so in the future). The principal qualification of the hearing officer 
should be the ability to conduct a hearing as an impartial participant.
    A3.5.2. The primary duties of the hearing officer are to make sure 
that the hearing is orderly, is recorded, and that interested parties 
have a reasonable opportunity to speak. The presiding officer should 
direct the speakers' attention to the purpose of the hearing, which is 
to consider the environmental impacts of the proposed project. Speakers 
should have a time limit to ensure maximum public input to the decision-
maker.

                       A3.6. Record of the Hearing

    The EIS preparation team must make sure a verbatim transcribed 
record of the hearing is prepared, including all stated positions, all 
questions, and all responses. The EIS preparation team should append all 
written submissions that parties provide to the hearing officer during 
the hearing to the record as attachments. The EIS preparation team 
should also append a list of persons who spoke at the hearing and 
submitted written comments and a list of the organizations or interests 
they represent with addresses. The EIS preparation team must make sure a 
verbatim transcript of the hearing is provided to the EPF for inclusion 
as an appendix to the Final EIS. The officer should also ensure that all 
persons who request a copy of the transcript get a copy when it is 
completed. Copying charges are determined according to 40 CFR 1506.6(f).

                          A3.7. Hearing Format

    Use the format outlined below as a general guideline for conducting 
a hearing. Hearing officers should tailor the format to meet the hearing 
objectives. These objectives provide information to the public, record 
opinions of interested persons on environmental impacts of the proposed 
action, and set out alternatives for improving the EIS and for later 
consideration.
    A3.7.1. Record of Attendees. The hearing officer should make a list 
of all persons who wish to speak at the hearing to help the hearing 
officer in calling on these individuals, to ensure an accurate 
transcript of the hearing, and to enable the officer to send a copy of 
the Final EIS (40 CFR 1502.19) to any person, organization, or agency 
that provided substantive comments at the hearing. The hearing officer 
should assign assistants to the entrance of the hearing room to provide 
cards on which individuals can voluntarily write their names, addresses, 
telephone numbers, organizations they represent, and titles; whether 
they desire to make a statement at the hearing; and what environmental 
area(s) they wish to address. The hearing officer can then use the cards 
to call on individuals who desire to make statements. However, the 
hearing officer will not deny entry to the hearing or the right to speak 
to people who decline to submit this information on cards.
    A3.7.2. Introductory Remarks. The hearing officer should first 
introduce himself or herself and the EIS preparation team. Then the 
hearing officer should make a brief statement on the purpose of the 
hearing and give the general ground rules on how it will be conducted. 
This is the proper time to welcome any dignitaries who are present. The 
hearing officer should explain that he or she does not make any 
recommendation or decision on whether the proposed project should be 
continued, modified, or abandoned or how the EIS should be prepared.
    A3.7.3. Explanation of the Proposed Action. The Air Force EIS 
preparation team representative should next explain the proposed action, 
the alternatives, the potential environmental consequences, and the 
EIAP.
    A3.7.4. Questions by Attendees. After the EIS team representative 
explains the proposed action, alternatives, and consequences, the 
hearing officer should give attendees a chance to ask questions to 
clarify points they may not have understood. The EIS preparation team 
may have to reply in writing, at a later date, to some of the questions. 
While the Air Force EIS preparation team should be as responsive as 
possible in answering questions about the proposal, they should not 
become involved in debate with questioners over the merits of the 
proposed action. Cross-examination of speakers, either those of the Air 
Force or the public, is not the purpose of an informal hearing. If 
necessary, the hearing officer may limit questioning or conduct portions 
of the hearing to ensure proper lines of inquiry. However, the hearing 
officer should include all questions in the hearing record.
    A3.7.5. Statement of Attendees. The hearing officer must give the 
persons attending the hearing a chance to present oral or written 
statements. The hearing officer should be sure the recorder has the name 
and address of each person who submits an oral or written statement. The 
officer should also permit the attendees to submit written statements 
within a reasonable time, usually two weeks, following the hearing. The 
officer should allot a reasonable length of time at the hearing for 
receiving oral statements. The officer may waive any announced time 
limit at his or her discretion. The hearing officer may allow those who 
have not previously indicated a desire to speak to identify themselves 
and be recognized only after those who have previously indicated their 
intentions to speak have spoken.
    A3.7.6. Ending or Extending a Hearing. The hearing officer has the 
power to end the hearing if the hearing becomes disorderly, if the 
speakers become repetitive, or for other

[[Page 171]]

good cause. In any such case, the hearing officer must make a statement 
for the record on the reasons for terminating the hearing. The hearing 
officer may also extend the hearing beyond the originally announced date 
and time. The officer should announce the extension to a later date or 
time during the hearing and prior to the hearing if possible.

                      A3.8. Adjourning the Hearing

    After all persons have had a chance to speak, when the hearing has 
culled a representative view of public opinion, or when the time set for 
the hearing and any reasonable extension of time has ended, the hearing 
officer adjourns the hearing. In certain circumstances (for example, if 
the hearing officer believes it is likely that some participants will 
introduce new and relevant information), the hearing officer may justify 
scheduling an additional, separate hearing session. If the hearing 
officer makes the decision to hold another hearing while presiding over 
the original hearing he or she should announce that another public 
hearing will be scheduled or is under consideration. The officer gives 
notice of a decision to continue these hearings in essentially the same 
way he or she announced the original hearing, time permitting. The 
Public Affairs officer provides the required public notices and directs 
notices to interested parties in coordination with the hearing officer. 
Because of lead-time constraints, SAF/IEE may waive Federal Register 
notice requirements or advertisements in local publications. At the 
conclusion of the hearing, the hearing officer should inform the 
attendees of the deadline (usually 2 weeks) to submit additional written 
remarks in the hearing record. The officer should also notify attendees 
of the deadline for the commenting period of the Draft EIS.

[64 FR 38129, July 15, 1999, as amended at 66 FR 16869, Mar. 28, 2001, 
as amended at 66 FR 31177, June 11, 2001; 72 FR 37107, July 9, 2007]

                        PARTS 900	999 [RESERVED]

[[Page 173]]

       Subtitle B--Other Regulations Relating to National Defense

[[Page 175]]



      CHAPTER XII--DEPARTMENT OF DEFENSE, DEFENSE LOGISTICS AGENCY




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

                         SUBCHAPTER A [RESERVED]
                       SUBCHAPTER B--MISCELLANEOUS
Part                                                                Page
1200-1279

 [Reserved]

1280            Investigating and processing certain 
                    noncontractual claims and reporting 
                    related litigation......................         177
1290            Preparing and processing minor offenses and 
                    violation notices referred to U.S. 
                    District Courts.........................         180
1292            Security of DLA activities and resources....         188
1293-1299

 [Reserved]

[[Page 177]]



                         SUBCHAPTER A [RESERVED]





                       SUBCHAPTER B_MISCELLANEOUS



                       PARTS 1200	1279 [RESERVED]



PART 1280_INVESTIGATING AND PROCESSING CERTAIN NONCONTRACTUAL CLAIMS AND
REPORTING RELATED LITIGATION--Table of Contents



Sec.
1280.1 Purpose and scope.
1280.2 Definitions.
1280.3 Significant changes.
1280.4 Responsibilities.
1280.5 Procedures.

    Authority: 5 U.S.C. 301; 10 U.S.C. 125; 28 U.S.C. 2672; and DoD 
Directive 5105.22 dated December 9, 1965.

    Source: 39 FR 19470, June 3, 1974, unless otherwise noted.



Sec.  1280.1  Purpose and scope.

    (a) This part 1280 provides procedures for investigating and 
processing claims and related litigation:
    (1) By civilian and military personnel of DLA for property lost or 
damaged incident to service (31 U.S.C. 240 through 243).
    (2) Incident to use of Government vehicles and other property of the 
United States not cognizable under other law (10 U.S.C. 2737).
    (3) Based on Negligence of Civilian and Military Employees under the 
Federal Tort Claims Act, 28 U.S.C. 1346(b), 2671 through 2680.
    (4) In favor of the United States, other than contractual, for loss, 
damage, or destruction of real or personal property in the possession, 
custody, or control of DLA.
    (b) This part 1280 is applicable to HQ DLA and DLA field activities, 
except nonappropriated funds and related activities established pursuant 
to DSAR 1330.2, Open Messes and Other Military Sundry Associations and 
Funds, and DSAR 1330.4, Civilian Nonappropriated Funds and Related 
Activities. Claims involving these activities are processed pursuant to 
the regulations referenced therein.



Sec.  1280.2  Definitions.

    (a) Claims Investigating Officer. A military officer or civilian 
employee of DLA, appointed in accordance with this part 1280, to 
investigate and process claims within the purview of this part 1280.
    (b) Member of the Army, member of the Navy, member of the Marine 
Corps, member of the Air Force. Officers and enlisted personnel of these 
Military Services.



Sec.  1280.3  Significant changes.

    This revision provides current citations to the Army regulations 
which have superseded those previously prescribed for the processing of 
some claims. It reflects the new Army claims processing procedures 
effected upon the reorganization of the Army. Finally, it provides 
specific procedures for Air Force processed claims.



Sec.  1280.4  Responsibilities.

    (a) DLA field activities. (1) Heads of DLA Primary Level Field 
Activities are responsible for:
    (i) Designating a qualified individual under their command, 
preferably one experienced in the conduct of investigations, as the 
Claims Investigating Officer for the activity.
    (ii) Authorizing Heads of subordinate activities to appoint Claims 
Investigating Officers where necessary.
    (2) The Commander, DLA Administrative Support Center (DLASC) is 
responsible for designating a qualified individual, preferably one 
experienced in the conduct of investigations, as the Claims 
Investigating Officer for DLASC and HQ DLA.
    (3) Claims Investigating Officers are responsible for the 
expeditious conduct of all investigations and the processing of reports 
in accordance with appropriate Departmental regulations as prescribed by 
this part 1280. To ensure prompt investigation of every incident while 
witnesses are available, and before damage has been repaired, the duties 
of personnel as Claims Investigating Officers will ordinarily have

[[Page 178]]

priority over any other assignments they may have.
    (4) The Counsel, DLA Field Activities are responsible for:
    (i) Receiving claims reports and information about related 
litigation, and processing these reports and information in accordance 
with this part 1280 and appropriate Departmental regulations.
    (ii) Providing directions and guidance to Claims Investigating 
Officers in the investigation and processing of claims.
    (b) The Counsel, DLA (DLAH-G) is responsible for:
    (1) Providing guidance to Counsel at DLA field activities on all 
claims and litigation matters within the purview of this part 1280.
    (2) Receiving claims reports and information on related litigation 
forwarded to HQ DLA, Attention: DLAH-G, and processing these in 
accordance with this part 1280 and appropriate Departmental regulations.
    (3) Maintaining this part 1280 in a current status and reviewing it 
annually.



Sec.  1280.5  Procedures. \1\
---------------------------------------------------------------------------

    \1\ Copies of the Military Department regulations mentioned herein 
may be obtained from the Departments of the Army and Navy, and the 
Superintendent of Documents, U.S. Government Printing Office.
---------------------------------------------------------------------------

    (a) Claims by military and civilian personnel of DLA for property 
lost or damaged incident to service (31 U.S.C. 240 through 243). (1) The 
Claims Investigating Officer will conduct his investigation and prepare 
all necessary forms and reports in accordance with the appropriate 
portions of AR 27-20 where the claimant is a member of the Army or a DLA 
civilian employee; JAGINST 5800.7A where the claimant is a member of the 
Navy or Marine Corps; or AFM 112-1 where the claimant is a member of the 
Air Force.
    (2) The completed report will be forwarded by the Claims 
Investigating Officer to one of the following activities for settlement:
    (i) Where the claimant is a DLA civilian employee or a member of the 
Army; the Staff Judge Advocate designated in AR 27-20, appendix F, as 
the Area Claims Authority where the claim arose.
    (ii) Where the claimant is a member of the Navy or Marine Corps the 
cognizant adjudicating authority as listed in JAGINST 5800.7A, paragraph 
2124.
    (iii) Where the claimant is a member of the Air Force; the Base 
Staff Judge Advocate of the nearest Air Force Base.
    (b) Claims incident to the use of Government property not cognizable 
under any other law (10 U.S.C. 2737). (1) The Claims Investigating 
Officer will conduct his investigation and prepare all necessary forms 
and reports in accordance with the appropriate portions of AR 27-20 
where the claimant is a member of the Army or a DLA civilian employee; 
JAGINST 5800.7A where the claimant is a member of the Navy or Marine 
Corps; or AFM 112-1 where the claimant is a member of the Air Force.
    (2) The completed report will be forwarded by the Claims 
Investigating Officer to the Counsel for his activity or, if the 
activity has no Counsel, to the next higher echelon having such a 
position.
    (3) The activity Counsel receiving the Claims Investigating 
Officer's report will review the report, and take all necessary action 
to assure that it is complete and in accordance with the appropriate 
regulation. He will forward the report together with his comments and 
recommendations to one of the following activities for settlement. Where 
the incident giving rise to the claim was occasioned by an act or 
omission of:
    (i) DLA civilian personnel. Counsel, DLA.
    (ii) A member of the Army. The Staff Judge Advocate designated in AR 
27-20, appendix F, as the Area Claims Authority where the claim arose.
    (iii) A member of the Navy or Marine Corps. The Director of the Navy 
Law Center in the Naval District in which the incident giving rise to 
the claim occurred.
    (iv) A member of the Air Force. The Base Staff Judge Advocate of the 
Air Force Base nearest the place where the incident giving rise to the 
claim occurred.
    (c) Claims under the Federal Tort Claims Act arising from negligence 
of

[[Page 179]]

DLA military or civilian personnel. (1) The Claims Investigating Officer 
will conduct his investigation and prepare all necessary forms and 
reports in accordance with the appropriate portions of AR 27-20 where 
the claim involves a member of the Army or a DLA civilian employee; 
JAGINST 5800.7A where the claim involves a member of the Navy or Marine 
Corps; or AFM 112-1 where the claim involves a member of the Air Force.
    (2) The completed report of investigation will be forwarded by the 
Claims Investigating Officer to one of the following activities for 
settlement. Where the incident giving rise to the claim was occasioned 
by an act or omission of:
    (i) DLA civilian personnel or a member of the Army. The Staff Judge 
Advocate designated in AR 27-20, appendix F, as the Area Claims 
Authority where the incident giving rise to the claim occurred.
    (ii) A member of the Navy or Marine Corps. The Director of the Navy 
Law Center in the Naval District in which the incident giving rise to 
the claim occurred.
    (iii) A member of the Air Force. The Base Staff Judge Advocate of 
the Air Force Base nearest the place where the incident giving rise to 
the claim occurred.
    (d) Tort claims in favor of the United States for damage to or loss 
or destruction of DLA property, or property in its custody or control. 
(1) These claims will be investigated and processed in accordance with 
the provisions of AR 27-40, Chapter 5, except:
    (i) The duties of the claims officer will be performed by the Claims 
Investigating Officer.
    (ii) The duties of the Staff Judge Advocate will be performed by 
Counsel, except where the property is a GSA motor pool system vehicle 
(see paragraph (e) of this section).
    (iii) The reports of the Claims Investigating Officer will be 
furnished direct to Counsel for his activity or, if his activity has no 
Counsel, to the next higher echelon having such a position.
    (iv) With respect to reports referred to them, Counsel are 
authorized to give receipts for any payments received and to execute 
releases where payment in full is received, except where the property is 
a GSA motor pool system vehicle (see paragraph (e) of this section). 
Offers of compromise will be processed pursuant to DSAM 7000.1, chapter 
12, section V, paragraph 120502.
    (v) Where payment in full is not received after reasonable efforts 
have been made to collect the claim administratively, Counsel will refer 
the case directly to the U.S. Attorney unless:
    (a) The amount of the claim exceeds $10,000, in which event the case 
will be referred to Counsel, DLA.
    (b) The amount of the debt is less than $250; or the record clearly 
shows that the debtor is unable to pay; or the debtor cannot be located; 
in which event the file may be closed and the debt treated as an 
uncollectible which does not have to be referred to the General 
Accounting Office.
    (2) If, at any stage of the processing of a claim under this 
paragraph (d), a claim is filed against the Government arising out of 
the same incident, or it becomes apparent that one will be filed, the 
claim under this paragraph (d) will be treated as a counterclaim, and 
included under the report filed in accordance with the applicable 
paragraph of this part 1280.
    (e) Claims involving GSA motor pool system vehicles. (1) Where a 
motor pool system vehicle issued to a DLA activity is involved in an 
accident giving rise to a claim under the Federal Tort Claims Act, the 
claim will be handled pursuant to paragraph (c) of this section.
    (2) In the event of damage to a motor pool system vehicle which is 
not due to the fault of the operator, Counsel receiving the report will 
submit the report to GSA's Regional Counsel for the region that issued 
the vehicle pursuant to the Federal Property Management Regulation, 
Sec.  101-39.805. Damages to motor pool system vehicles caused by the 
negligence of vehicle operator employed by DLA or caused by the 
negligence or misconduct of any other officer or employee of DLA are 
reimbursed to General Services Administration (GSA). Determination 
affixing responsibility will be made by the Counsel to which the report 
is referred, after considering the views of GSA.

[[Page 180]]

    (f) Reporting legal proceedings. (1) All process and pleadings 
served on any personnel or activity of DLA, and related to a claim 
covered by this part 1280 or involving an incident which may give rise 
to a claim covered by this part 1280, together with other immediately 
available data concerning the commencement of legal proceedings, will be 
promptly referred to Counsel for the activity involved, or, if the 
activity has no Counsel, to the next higher echelon having such a 
position.
    (2) Any Military Service member or civilian employee of DLA (or his 
personal representative) against whom a domestic civil action or 
proceeding is brought for damage to property, or for personal injury or 
death, on account of his operation of a motor vehicle (Government- or 
privately-owned) in the scope of his employment (28 U.S.C. 2679) will:
    (i) Upon receipt of process and pleadings or any other information 
regarding the commencement of such action or proceeding, immediately 
inform the Head of his activity and Counsel as specified in paragraph 
(f)(1) of this section.
    (ii) Promptly deliver all process and pleadings served upon him, or 
an attested true copy thereof, to Counsel.
    (3) Upon receipt of information or process and pleadings pursuant to 
paragraph (f)(1) or (2) of this section, Counsel will promptly prepare 
and process reports in accordance with the appropriate portions of AR 
27-40 except that:
    (i) If the incident giving rise to the litigation was occasioned by 
an act or omission of a member of the Navy or Marine Corps, or a member 
of the Air Force, information and reports required to be furnished to 
The Judge Advocate General of the Army will be furnished instead to The 
Judge Advocate General of the Navy and Air Force respectively.
    (ii) If the litigation is under the Federal Tort Claims Act and no 
administrative claim has been filed, Counsel will immediately advise the 
U.S. Attorney and furnish him a report of all information the activity 
has with respect to the claim and an affidavit by the Claims 
Investigating Officer to the effect that no administrative claim has 
been filed. Two copies of the foregoing will be provided to the 
appropriate Military Service Judge Advocate General. If an 
administrative claim has been filed and has been referred to a Military 
Service, a copy of the process and pleadings and any information not 
previously furnished will be sent to the appropriate Military Service 
Judge Advocate General.



PART 1290_PREPARING AND PROCESSING MINOR OFFENSES AND VIOLATION NOTICES
REFERRED TO U.S. DISTRICT COURTS--Table of Contents



Sec.
1290.1 References. \1\
1290.2 Purpose and scope.
1290.3 Policy.
1290.4 Definitions.
1290.5 Background.
1290.6 Significant changes.
1290.7 Responsibilities.
1290.8 Procedures.
1290.9 Forms and reports.

Appendix A to Part 1290--Preparation Guide for DD Form 1805, Violation 
          Notice
Appendix B to Part 1290--Ticket Sample--A Parking Violation
Appendix C to Part 1290--Ticket Sample--A Moving Violation
Appendix D to Part 1290--Ticket Sample--A Nontraffic Violation

    Authority: Department of Defense Instruction 6055.4; 18 U.S.C. 13, 
3401, and 3402.
---------------------------------------------------------------------------

    \1\ Reference (a) may be purchased from the Commander, U.S. Army AG 
Publications Center, 2800 Eastern Blvd., Baltimore, MD 21220; reference 
(b) from the Defense Logistics Agency (DASC-IP), Cameron Station, 
Alexandria, VA 22314; references (c), (d), and (e) from the 
Superintendent of Documents, Government Printing Office, Washington, DC 
20402.

    Source: 44 FR 55859, Sept. 28, 1979, unless otherwise noted.



Sec.  1290.1  References.

    (a) DLAR 5720.1/AR 190-5/OPNAVINST 11200.5B/AFR 125-14/MCO 5110.1B, 
Motor Vehicle Traffic Supervision.
    (b) DLAR 5710.1, Authority of Military Commanders To Issue Security 
Orders and Regulations for the Protection of Property or Places Under 
Their Command.

[[Page 181]]

    (c) Sections 1, 3401 and 3402, title 18, U.S.C.
    (d) Rules of procedures for the Trial of Minor Offenses before 
United States Magistrates.
    (e) Section 13, title 18, U.S.C., Assimilative Crimes Act.



Sec.  1290.2  Purpose and scope.

    (a) This part 1290 implements DoD Instruction 6055.4, Department of 
Defense Traffic Safety Program, and sets forth basic objectives and 
procedures applicable to implementation of the Federal Magistrate System 
by DLA. This part 1290 is applicable to HQ DLA, Defense Supply Centers 
(DSC's), less Defense Fuel Supply Center and Defense Industrial Supply 
Center, and to Defense Depots, less Defense Depot Mechanicsburg. DLA 
activities/personnel tenant on other DoD activities will abide by the 
requirements of the host.
    (b) This part 1290 provides Heads of DLA primary level field 
activities (PLFAs) with a means of exercising effective control over 
violators who are not otherwise under their jurisdiction.



Sec.  1290.3  Policy.

    (a) It is the policy of HQ DLA that the Heads of DLA PLFAs will take 
such steps as are necessary to prevent offenses. Emphasis will be placed 
on prevention rather than apprehension and prosecution of offenders.
    (b) The procedures outlined in this part 1290 may, at the discretion 
of the Head of the activity concerned, be invoked in lieu of the 
provisions of the Uniform Code of Military Justice (UCMJ) to deal with 
minor offenses of a civil nature, other than violations of state traffic 
laws, committed by military personnel. These procedures may also be 
invoked to deal with nontraffic minor offenses committed by civilian 
personnel.



Sec.  1290.4  Definitions.

    For the purpose of this part 1290 the following definitions apply:

This part 1290 supersedes part 1290 April 26, 1972.

    (a) Law Enforcement Personnel. Persons authorized by the Head of the 
PLFA to direct, regulate, control traffic; to make apprehensions or 
arrests for violations of traffic regulations; or to issue citations or 
tickets. Personnel so designated will include the Command Security 
Officer and all other personnel in 080, 083, 085, or 1800 series 
positions.
    (b) Minor Federal Offenses. Those offenses for which the authorized 
penalty does not exceed imprisonment for a period of 1 year, or a fine 
of not more than $1000, or both (18 U.S.C. 3401f).
    (c) Petty Federal Offenses. Those offenses for which the authorized 
penalty does not exceed imprisonment for a period of 6 months or a fine 
of not more than $500, or both (18 U.S.C. 1(3)).

    Note: A petty offense is a type of minor offense.

    (d) Violation Notice. DD Form 1805, Violation Notice, which will be 
used to refer all petty offenses to the U.S. Magistrate/District Courts 
for disposition.

    Note: A complaint, made under oath on forms provided by the 
magistrate, is the prescribed form for charging minor offenses other 
than petty offenses.



Sec.  1290.5  Background.

    (a) DoD Instruction 6055.4 requires that all traffic violations 
occurring on DoD installations be referred to the appropriate United 
States Magistrate, or State or local system magistrate, in the interest 
of impartial judicial determination and effective law enforcement. 
Exceptions will be made only for those rare violations in which military 
discipline is the paramount consideration, or where the Federal court 
system having jurisdiction has notified the PLFA commander it will not 
accept certain offenses for disposition.
    (b) Generally, the Federal Magistrate System applies state traffic 
laws and appropriate Federal laws to all personnel while on Federal 
property (section 13, title 18 U.S.C., Assimilative Crimes Act).



Sec.  1290.6  Significant changes.

    This revision incorporates the DoD requirement for referral of 
traffic violations occurring on military installations to the Federal or 
local magistrate.

[[Page 182]]



Sec.  1290.7  Responsibilities.

    (a) HQ DLA--(1) The Command Security Officer, DLA (DLA-T) will:
    (i) Exercise staff supervision over the Magistrate system within 
DLA.
    (ii) Provide guidance and assistance to DLA activities concerning 
administrative and procedural aspects of this part 1290.
    (2) The Counsel, DLA (DLA-G) will provide guidance and assistance to 
DLA activities concerning legal aspects of this part 1290.
    (b) The Heads of DLA Primary Level Field Activities will:
    (1) Develop and put into effect the necessary regulatory and 
supervisory procedures to implement this part 1290.
    (2) Ensure implementing directives authorize law enforcement/
security force (080, 083, 085 and 1800 series) personnel to issue DD 
Form 1805.
    (3) Periodically publish in the PLFA Daily or Weekly Bulletin, a 
listing of offenses for which mail-in procedures apply, with the amount 
of the fine for each, and a listing of offenses requiring mandatory 
appearance of the violator before the U.S. Magistrate. The listings will 
indicate that they are not necessarily all inclusive and that they are 
subject to change. A copy of the listings will be provided to the local 
Union representatives.



Sec.  1290.8  Procedures.

    (a) The U.S. Magistrate Court Provides DLA with:
    (1) The means to process and dispose of certain categories of minor 
offenses by mail. Under this system, U.S. Magistrate and District Courts 
will, by local court rule, preset fines for the bulk of petty violations 
(Federal or Assimilated) and permit persons charged with such 
violations, who do not contest the charge nor wish to have a court 
hearing, to pay their fines by using mail-in, preaddressed, postage paid 
envelopes furnished to them with the violation notice.
    (2) Efficient, minimal commitment of judicial and clerical time by 
using uniform procedures which centralize the collection of fines, the 
scheduling of mandatory hearings or hearings where violators request 
them, and the keeping of violator records.
    (3) A simple but sure method of accounting for fines collected and 
tickets issued.
    (4) Impartial enforcement of minor offense laws.
    (b) Court Appearances--(1) Mandatory Appearances. (i) As required by 
the Administrative Office of the United States Courts, each District 
Court will determine, by local court rule, those offenses requiring 
mandatory appearance of violators. PLFA Counsels will coordinate with 
local magistrates or district courts and secure a court approved list of 
offenses requiring mandatory appearance of violators before the local 
U.S. Magistrate.
    (ii) Mandatory appearance offense categories normally include:
    (A) Indictable offenses.
    (B) Offenses resulting in accidents.
    (C) Operation of motor vehicle while under the influence of 
intoxicating alcohol or a narcotic or habit producing or other mind 
altering drug, or permitting another person who is under the influence 
of intoxicating alcohol, or a narcotic or habit producing or mind 
altering drug to operate a motor vehicle owned by the defendant or in 
his/her custody or control.
    (D) Reckless driving or speeding.
    (2) Voluntary Appearances--(i) Requested by violators at the time DD 
Form 1805 is issued. (A) Personnel issuing DD Form 1805 will refer 
violator for hearings before U.S. Magistrates in each instance where a 
hearing is requested by the violator.
    (B) Command security officers will provide security force personnel 
with necessary information to facilitate scheduling violators to appear 
before U.S. Magistrates. Box B of the DD Form 1805 will be marked by the 
issuing official for each violator requesting a hearing. Additionally 
procedures set forth in appendix A will be accomplished by the official 
issuing violation notice.
    (ii) Requested by violators by mail. (A) Voluntary appearance 
procedures are also available for violators who are not present at the 
time a DD Form 1805 is issued (i.e., parking violations) or who 
subsequently decide to voluntarily appear before a U.S. Magistrate 
rather than pay the fine indicated in the DD Form 1805.

[[Page 183]]

    (B) Violators who use the mail-in procedure to voluntarily appear 
before a U.S. Magistrate must follow the instructions in Box B of the DD 
Form 1805 (violator copy). The violator will be notified by the clerk of 
the District Court of the time and place to appear for the scheduled 
hearing.



Sec.  1290.9  Forms and reports.

    (a) General information on preparation and issue of DD Form 1805. 
(1) The U.S. Magistrate system is based on use of a four-ply ticket 
designed to provide legal notice to violators and records required by 
the court, law enforcement authorities, and, if appropriate, the state 
motor vehicle departments. The DD Form 1805 is printed on chemically 
carbonized paper and prenumbered in series for accounting control. Heads 
of DLA primary level field activities are responsible for maintaining 
accountability for each ticket issued and stocks on hand.
    (2) DLA field activity Counsels will coordinate with the U.S. 
Magistrate of the judicial district in which the activity is located and 
maintain the information listed below:
    (i) List of petty offenses for which mail-in procedure is authorized 
and the amount of the fine for each specific offense. The District Court 
address will be prestamped on the violator's copy of the DD Form 1805 by 
the applicable issuing authority.
    (ii) List of minor offenses requiring mandatory appearance of the 
violator before the magistrate. The name and location of the magistrate 
before whom violators will appear. Schedule will be coordinated with 
nearest Military Service activity and appearance will be conducted 
jointly whenever possible.
    (b) Issue procedures for DD Form 1805. (1) Information entered on 
the DD Form 1805 is dependent upon two considerations:
    (i) The type of violation, i.e., parking, (such as blocking a fire 
lane) moving traffic violation, or nontraffic offenses.
    (ii) Whether the offense cited requires the mandatory appearance of 
the violator before a U.S. Magistrate.
    (2) Preparation and disposition of DD Form 1805:
    (i) See illustration in appendix B for petty offenses where the 
mail-in fine procedures are authorized.
    (A) The amount of the fine for a specific offense must be recorded 
in the lower right corner of the DD Form 1805. This amount will always 
be predetermined by the U.S. Magistrate and provided to on duty 
enforcement personnel by the activity security officer or equivalent 
authority. When violation notices are issued for an offense (e.g., 
parking violation) and the offender is absent, all entries concerning 
the violator will be left blank.
    (B) Disposition of DD Form 1805 will be as follows:
    (1) The fourth copy (envelope) will be issued to the violator or 
placed on the vehicle of the violator.
    (2) Copies one (white copy), two (yellow copy), and three (pink 
copy) will be returned to the Security Officer's office. The Security 
Officer will forward copies one and two, by letter of transmittal, to 
the appropriate U.S. District Court.
    (3) Copy three will be filed at the Security Office or equivalent 
issuing authority. DLA Form 1454, Vehicle Registration/Driver Record, 
will be annotated with each traffic offense.
    (ii) When DD Form 1805 is used to cite personnel for mail-in type 
violations, the appropriate supervisor will be provided an information 
copy of DLA Form 635, Security/Criminal Incident Report, denoting the 
date, time, place, and type of violation, and the amount of fine 
assessed.
    (iii) Heads of DLA primary level field activities or their 
representative will not accept or otherwise collect any fines or keep 
records of fines paid or not paid. They also will take no action 
concerning nonpayment delinquencies except where warrants are 
subsequently issued for the violator concerned by the appropriate court 
authorities.
    (iv) See illustrations in appendices C and D for minor offenses 
requiring the mandatory appearance of violators before the U.S. 
Magistrate:
    (A) Mail-in fine procedures will not apply in mandatory appearance 
cases. The law enforcement authority issuing

[[Page 184]]

a violation notice for an offense requiring mandatory appearance of the 
violator, will place a check mark in ``Box A'', DD Form 1805. The name 
and location of the U.S. Magistrate before whom the violator must appear 
will be inserted on the line below ``United States District Court'' as 
shown in appendix C. The date and time of the initial appearance will be 
entered in the space provided in ``Box A''. It is the violator's 
responsibility to verify the date, time, and place of required court 
appearances.
    (B) Disposition of DD Form 1805 will be as follows:
    (1) The fourth copy (envelope) will be issued to the violator.
    (2) Copies one (white copy), two (yellow copy), and three (pink 
copy) will be returned to the Security Officer's office. The Security 
Officer will forward copies one and two, by transmittal as soon as 
possible, to the magistrate before whom the violator is scheduled to 
appear.
    (3) Copy three will be filed in the office of the Security Officer 
or equivalent issuing authority.
    (C) When DD Form 1805 is used to cite personnel for mandatory 
appearance type offenses, the individual's supervisor will be provided 
an information copy of DLA Form 635, denoting the date, time, place, and 
type of violation, and the date the violator is scheduled to appear 
before the U.S. Magistrate.
    (v) Additional information governing preparation of DD Form 1805 is 
provided as appendix A.



   Sec. Appendix A to Part 1290--Preparation Guide for DD Form 1805, 
                            Violation Notice

    All violations will require:
    Last four digits of the Social Security Number of the Issuing guard/
police officer (placed in space marked ``Officer No.''). Date of notice 
(is also violation date unless otherwise shown) and time. Description of 
violation, including place noted. Violation code number and issuing 
location code number (as determined by local Magistrate/District Court). 
Examples are shown at appendices B, C, and D.

                       In addition to above items

    Parking offenses require: Vehicle description (make, color, body 
type), licensing state, auto license number; and, if violator is 
present: Driver permit number, driver address, driver's name (all of 
above items and); moving traffic offenses require: Birth date and sex, 
race (if it appears on driver's permit), height and weight.
    Nontraffic offenses require: Statute violated, person's name, 
person's address, birth date, and sex; and, if applicable: Race, height, 
and weight.
    All mailable disposition offenses--amount of fine (collateral).
    All mandatory court offenses--Above data, as appropriate, and the 
place of court (i.e., Magistrate Court Address), the date and time of 
appearance (if known by officer), and check mark in Box ``A''.

[[Page 185]]



    Sec. Appendix B to Part 1290--Ticket Sample--A Parking Violation
[GRAPHIC] [TIFF OMITTED] TC25OC91.006


[[Page 186]]





     Sec. Appendix C to Part 1290--Ticket Sample--A Moving Violation
[GRAPHIC] [TIFF OMITTED] TC25OC91.007


[[Page 187]]





   Sec. Appendix D to Part 1290--Ticket Sample--A Nontraffic Violation
[GRAPHIC] [TIFF OMITTED] TC25OC91.008


[[Page 188]]





PART 1292_SECURITY OF DLA ACTIVITIES AND RESOURCES--Table of Contents



Sec.
1292.1 Purpose and scope.
1292.2 Policy.
1292.3 Background.
1292.4 Responsibilities.
1292.5 Procedures.

Appendix A to Part 1292--Section 21 of the Internal Security Act of 1950

    Authority: DoD Directive 5200.8 and in accordance with Sec. 21 of 
the Internal Security Act of 1950, 50 U.S.C. 797.

    Source: 46 FR 13216, Feb. 20, 1981, unless otherwise noted.



Sec.  1292.1  Purpose and scope.

    ``To establish policy, assign responsibilities, and prescribe 
procedures for the issuance of security regulations and orders by Heads 
of DLA activities. This part 1292 implements DoD Directive 5200.8, 
Security of Military Installations and Resources, and is applicable to 
HQ DLA, DLA field activities and property/places subject to the 
jurisdiction or administration of the Defense Logistics Agency.



Sec.  1292.2  Policy.

    (a) Military Heads of DLA field activities are authorized to issue 
or approve necessary security regulations and orders for the protection 
of property and places under their jurisdiction/administration. 
Regulations and orders for the protection of property and personnel of 
subordinate activities headed by civilians shall be promulgated by the 
military commander in the chain of command immediately above such 
subordinate activity.
    (b) Regulations and orders for the protection of property and 
personnel of primary level field activities (PLFAs) headed by civilians, 
and subordinate activities of such PLFAs which likewise are headed by 
civilians, shall be promulgated by the Director, DLA/Deputy Director/
Deputy Director, CAS.
    (c) Heads of DLA field activities that are tenants on a military 
reservation, post, camp, station, installation, base, or Government-
owned or leased facility administered by another command or agency are 
responsible for protection of property and places under their command 
and may issue security regulations and orders in fulfillment of their 
responsibility to protect property and places under their jurisdiction 
and administration. However, separate security regulations and orders 
should not be issued when the host has issued security regulations and 
orders that afford protection to the DLA activity.
    (d) Detailed physical security and emergency plans developed in 
conjunction with these security regulations and orders will be as 
prescribed by DLAM 5710.1, Physical Security Manual, and DLA War and 
Emergency Support Plan (WESP), part II, Annex A.



Sec.  1292.3  Background.

    Section 21 of the Internal Security Act of 1950 (appendix A) 
authorizes the Secretary of Defense to designate military commanders to 
promulgate or approve regulations and orders for the protection of 
property and places under their command. DoD Directive 5200.8 designates 
military commanders of Army, Navy, Air Force, and Defense Agency 
activities as having authority to promulgate regulations and orders 
pursuant to the Internal Security Act of 1950.



Sec.  1292.4  Responsibilities.

    (a) HQ DLA. (1) The Director, DLA/Deputy Director/Deputy Director, 
CAS will issue necessary security regulations and orders for PLFAs 
headed by civilians.
    (2) The Command Security Officer, DLA (DLA-T) will:
    (i) Provide technical staff guidance on the issuance of security 
regulations and orders.
    (ii) Keep the Director, DLA informed of violations of regulations/
orders as reported.
    (b) Field Activities. (1) The Heads of Primary Level Field 
Activities will:
    (i) Publish a physical security plan which provides proper and 
economical use of personnel and equipment to prevent or minimize loss or 
damage from theft, espionage, sabotage, and other criminal or disruptive 
activities.
    (ii) Report violations of security regulations and orders to HQ DLA, 
ATTN: DLA-T, in accordance with DLAR 5705.1, Reporting of Security and 
Criminal Violations.

[[Page 189]]

    (2) The Military Heads of DLA field activities will issue security 
regulations and orders as necessary for the protection of places and 
property under their jurisdiction pursuant to the provisions of this 
part 1292 and other pertinent directives.



Sec.  1292.5  Procedures.

    (a) Security regulations and orders will be promulgated by any of 
the following means:
    (1) Written directives of the activity Head.
    (2) Signs and similar media.
    (3) Orally, when required by a contingency/emergency.
    (b) Written directives and orders will contain so much of the 
following statement as is pertinent:

    This order (directive, bulletin, etc.) is issued pursuant to section 
21, Internal Security Act of 1950, 50 U.S.C. 797, DoD Directive 5200.8, 
DLAR 5710.1, (directive issued by the Head of a DLA field activity 
subordinate to HQ DLA).

    (c) Signs used as the sole vehicle for issuing a security regulation 
or order must contain a recitation of the authority under which issued 
and the title of the authorized official who issued the regulation or 
order. DLAM 5710.1, chapter 3, contains instructions on the exact 
wording of such signs.
    (d) Oral orders will include a statement which clearly indicates the 
authority for issuance similar to the provisions of paragraph (b) of 
this section.
    (e) Written security orders and regulations will be posted in 
conspicuous and appropriate places to ensure widest dissemination. The 
posting of a general security regulation/order, or a listing of 
applicable directives, will suffice provided it cites the authority to 
issue such directive. The posting of voluminous, individual security 
regulations and orders will be avoided.



Sec. Appendix A to Part 1292--Section 21 of the Internal Security Act of 
                                  1950

797. Security regulations and orders; penalty for violation
    (a) Whoever willfully shall violate any such regulation or order as, 
pursuant to lawful authority, shall be or has been promulgated or 
approved by the Secretary of Defense, or by any military commander 
designated by the Secretary of Defense, or by the Director of the 
National Advisory Committee for Aeronautics, for the protection or 
security of military or naval aircraft, airports, airport facilities, 
vessels, harbors, ports, piers, waterfront facilities, bases, forts, 
posts, laboratories, stations, vehicles, equipment, explosives, or other 
property or places subject to the jurisdiction, administration, or in 
the custody of the Department of Defense, any Department or agency of 
which said Department consists, or any officer or employee of said 
Department or agency, or of the National Advisory Committee for 
Aeronautics or any officer or employee thereof, relating to fire 
hazards, fire protection, lighting, machinery, guard service, disrepair, 
disuse or other unsatisfactory conditions thereon, or the ingress 
thereto or egress or removal of persons therefrom, or otherwise 
providing for safeguarding the same against destruction, loss, or injury 
by accident or by enemy action, sabotage or other subversive actions, 
shall be guilty of a misdemeanor and upon conviction thereof shall be 
liable to a fine of not to exceed $5,000 or to imprisonment for not more 
than one year or both.
    (b) Every such regulation or order shall be posted in conspicuous 
and appropriate places. Sept. 23, 1950, c. 1024, Title I, Par. 21, 64 
Stat. 1005.

                       PARTS 1293	1299 [RESERVED]

[[Page 191]]



                  CHAPTER XVI--SELECTIVE SERVICE SYSTEM




  --------------------------------------------------------------------
Part                                                                Page
1600-1601

 [Reserved]

1602            Definitions.................................         193
1605            Selective Service System organization.......         194
1609            Uncompensated personnel.....................         200
1615            Administration of registration..............         201
1618            Notice to registrants.......................         202
1621            Duty of registrants.........................         203
1624            Inductions..................................         204
1627            Volunteers for induction....................         207
1630            Classification rules........................         208
1633            Administration of classification............         214
1636            Classification of conscientious objectors...         216
1639            Classification of registrants preparing for 
                    the ministry............................         220
1642            Classification of registrants deferred 
                    because of hardship to dependents.......         222
1645            Classification of ministers of religion.....         224
1648            Classification by local board...............         226
1651            Classification by District Appeal Board.....         228
1653            Appeal to the President.....................         230
1656            Alternative service.........................         232
1657            Overseas registrant processing..............         241
1659            Extraordinary expenses of registrants.......         242
1662            Freedom of Information Act (FOIA) procedures         242
1665            Privacy Act procedures......................         246
1690

[Reserved]

1697            Salary offset...............................         252
1698            Advisory opinions...........................         256
1699            Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by Selective 
                    Service System..........................         257

[[Page 193]]

                       PARTS 1600	1601 [RESERVED]



PART 1602_DEFINITIONS--Table of Contents



Sec.
1602.1 Definitions to govern.
1602.2 Administrative classification.
1602.3 Aliens and nationals.
1602.4 Area office.
1602.5 Area office staff.
1602.6 Board.
1602.7 Classification.
1602.8 Classifying authority.
1602.9 Computation of time.
1602.10 County.
1602.11 District appeal board.
1602.12 Governor.
1602.13 Judgmental Classification.
1602.14 Local board.
1602.15 Local board of jurisdiction.
1602.16 MEPS.
1602.17 Military service.
1602.18 National Appeal Board.
1602.19 Numbers.
1602.20 Registrant.
1602.21 Selective Service Law.
1602.22 Singular and plural.
1602.23 State.
1602.24 Claim.
1602.25 Director.

    Authority: Military Selective Service Act, 50 U.S.C. App. 451 et 
seq.; E.O. 11623.

    Source: 42 FR 4643, Feb. 1, 1982, unless otherwise noted.



Sec.  1602.1  Definitions to govern.

    The definitions contained in section 16 of the Military Selective 
Service Act, and the definitions contained in this part shall govern in 
the interpretation of the regulations of this chapter.



Sec.  1602.2  Administrative classification.

    A reclassification action relating to a registrant's claim for Class 
1-C, 1-D-D, 1-D-E, 1-H, 1-O-S, 1-W, 3-A-S, 4-A-A, 4-A, 4-B, 4-C, 4-F, 4-
G, 4-T, or 4-W. These classes shall be identified as administrative 
classes.

[52 FR 24454, July 1, 1987]



Sec.  1602.3  Aliens and nationals.

    (a) The term alien means any person who is not a citizen or national 
of the United States.
    (b) The term national of the United States means:
    (1) A citizen of the United States, or
    (2) A person, though not a citizen of the United States, who owes 
allegiance to the United States.



Sec.  1602.4  Area office.

    The Selective Service Office which is responsible for all 
administrative and operational support for the one or more local boards 
within its jurisdiction.



Sec.  1602.5  Area office staff.

    The compensated employees, civilian and military, of the Selective 
Service System employed in an area office will be referred to as the 
area office staff.



Sec.  1602.6  Board.

    The word board when used alone, unless the context otherwise 
indicates, includes a local board, district appeal board, and the 
National Appeal Board and panels thereof.



Sec.  1602.7  Classification.

    Classification is the exercise of the power to determine claims or 
questions with respect to inclusion for or exemption or deferment from 
training and service under Selective Service Law.



Sec.  1602.8  Classifying authority.

    The term classifying authority refers to any official or board who 
is authorized in Sec.  1633.1 to classify a registrant.



Sec.  1602.9  Computation of time.

    Unless otherwise specified the period of days allowed a registrant 
or other person to perform any act or duty required of him shall be 
counted as beginning on the day following that on which the notice is 
issued.



Sec.  1602.10  County.

    The word county includes, where applicable, counties, independent 
cities, and similar subdivisions, such as the independent cities of 
Virginia and the parishes of Louisiana.



Sec.  1602.11  District appeal board.

    A district appeal board or a panel thereof of the Selective Service 
System is a group of not less than three civilian members appointed by 
the President to act on cases of registrants in

[[Page 194]]

accordance with the provisions of parts 1651 and 1656 of this chapter.

[69 FR 20543, Apr. 16, 2004]



Sec.  1602.12  Governor.

    The word Governor includes, where applicable, the Governor of each 
of the States of the United States, the Mayor of the District of 
Columbia, the Governor of Puerto Rico, the Governor of the Virgin 
Islands, and the Governor of Guam.



Sec.  1602.13  Judgmental Classification.

    A classification action relating to a registrant's claim for Class 
1-A-O, 1-O, 2-D, 3-A, or 4-D.



Sec.  1602.14  Local board.

    A local board or a panel thereof of the Selective Service System is 
a group of not less than three civilian members appointed by the 
President after nomination by a Governor to act on cases of registrants 
in accord with the provisions of part 1648 of this chapter.

[52 FR 24454, July 1, 1987]



Sec.  1602.15  Local board of jurisdiction.

    The local board of jurisdiction is the local board to which a 
registrant is assigned and which has authority, in accord with the 
provisions of this chapter, to determine his claim or to issue to him an 
order. His local board and registrant's local board refer to the local 
board of jurisdiction.

[52 FR 24454, July 1, 1987]



Sec.  1602.16  MEPS.

    A Military Entrance Processing Station is a military installation to 
which registrants are ordered to report for examination or induction.



Sec.  1602.17  Military service.

    The term military service includes service in the Army, the Navy, 
the Air Force, the Marine Corps, and the Coast Guard.



Sec.  1602.18  National Appeal Board.

    The National Appeal Board or a panel thereof of the Selective 
Service System is a group of not less than three civilian members 
appointed by the President to act on cases of registrants in accord with 
the provisions of part 1653 of this chapter.

[52 FR 24454, July 1, 1987]



Sec.  1602.19  Numbers.

    Cardinal numbers may be expressed by Arabic or Roman symbols.



Sec.  1602.20  Registrant.

    A registrant is a person registered under the Selective Service Law.



Sec.  1602.21  Selective Service Law.

    The term Selective Service Law includes the Military Selective 
Service Act, all rules and regulations issued thereunder, and 
Proclamations of the President pertaining to registration under that 
Act.



Sec.  1602.22  Singular and plural.

    Words importing the singular number shall include the plural number, 
and words importing the plural number shall include the singular, except 
where the context clearly indicates otherwise.



Sec.  1602.23  State.

    The word State includes, where applicable, the several States of the 
United States, the City of New York, the District of Columbia, Puerto 
Rico, the Virgin Islands, and Guam.



Sec.  1602.24  Claim.

    A claim is a request for postponement of induction or classification 
into a class other than 1-A.

[52 FR 24454, July 1, 1987]



Sec.  1602.25  Director.

    Director is the Director of Selective Service.

[52 FR 24454, July 1, 1987]



PART 1605_SELECTIVE SERVICE SYSTEM ORGANIZATION--Table of Contents



                         National Administration

Sec.
1605.1 Director of Selective Service.
1605.6 National Appeal Board.

                          Region Administration

1605.7 Region Manager.

[[Page 195]]

1605.8 Staff of Region Headquarters for Selective Service.

                          State Administration

1605.11 Governor.
1605.12 State Director of Selective Service.
1605.13 Staff of State Headquarters for Selective Service.
1605.14 State Director of Selective Service for New York City.

                         District Appeal Boards

1605.21 Area.
1605.22 Composition and appointment of district appeal boards.
1605.23 Designation.
1605.24 Jurisdiction.
1605.25 Disqualification.
1605.26 Organization and meetings.
1605.27 Minutes of meetings.
1605.28 Signing official papers.

                              Local Boards

1605.51 Area.
1605.52 Composition of local boards.
1605.53 Designation.
1605.54 Jurisdiction.
1605.55 Disqualification.
1605.56 Organization and meetings.
1605.58 Minutes of meetings.
1605.59 Signing official papers.

                       Area Office Administration

1605.60 Area.
1605.61 Staff of area offices for selective service.

                              Interpreters

1605.81 Interpreters.

    Authority: Military Selective Service Act, 50 U.S.C. App. 451 et 
seq.; E.O. 11623.

    Source: 47 FR 4644, Feb. 1, 1982, unless otherwise noted.

                         National Administration



Sec.  1605.1  Director of Selective Service.

    The Director of Selective Service shall be responsible directly to 
the President. The Director of Selective Service is hereby authorized 
and directed:
    (a) To prescribe such rules and regulations as he shall deem 
necessary for the administration of the Selective Service System, the 
conduct of its officers and employees, the distribution and performance 
of its business, and the custody, use, and preservation of its records, 
papers, and property.
    (b) To issue such public notices, orders, and instructions, as shall 
be necessary for carrying out the functions of the Selective Service 
System.
    (c) To obligate and authorize expenditures from funds appropriated 
for carrying out the functions of the Selective Service System.
    (d) To appoint and to fix, in accordance with provisions of chapter 
51 and subchapter III of chapter 53 of title 5 U.S.C., relating to 
classification and General Schedule pay rates, the compensation of such 
officers, agents, and employees as shall be necessary for carrying out 
the functions of the Selective Service System.
    (e) To procure such space as he may deem necessary for carrying out 
the functions of the Selective Service System by lease pursuant to 
existing statutes.
    (f) To obtain by purchase, loan, or gift such equipment, supplies, 
printing, binding, and blankbook work for the Selective Service System 
as he may deem necessary to carry out the functions of the Selective 
Service System.
    (g) To perform such other duties as shall be required of him under 
the Selective Service Law or which may be delegated to him by the 
President.
    (h) To delegate any of his authority to such officers, agents, or 
persons as he may designate and to provide for the subdelegation of any 
such authority.



Sec.  1605.6  National Appeal Board.

    (a) There is hereby created and established within the Selective 
Service System a civilian agency of appeal which shall be known as the 
National Appeal Board. The President shall appoint not less than three 
members to the National Appeal Board, and he shall designate one member 
as chairman.
    (b) The President shall appoint members of the National Appeal Board 
from among citizens of the United States who:
    (1) Are not active or retired members of the Armed Forces or any 
reserve component thereof;
    (2) Have not served as a member of the National Appeal Board for a 
period of more than five years;
    (3) Are at least 18 years of age;
    (4) Are able to devote sufficient time to duties of the Board; and

[[Page 196]]

    (5) Are willing to fairly and uniformly apply Selective Service Law.
    (c)(1) A majority of the members of the board shall constitute a 
quorum for the transaction of business, and a majority of the members 
present at any meeting at which a quorum is present, shall decide any 
question.
    (2) The National Appeal Board may sit en banc, or upon the request 
of the Director or as determined by the chairman of the National Appeal 
Board, in panels, each panel to consist of at least three members. The 
Chairman of the National Appeal Board shall designate the members of 
each panel and he shall designate one member of each panel as chairman. 
A majority of the members of a panel shall constitute a quorum for the 
transaction of business, and a majority of the members present at any 
meeting at which a quorum is present, shall decide any question. Each 
panel of the National Appeal Board shall have full authority to act on 
all cases assigned to it.
    (3) The National Appeal Board or a panel thereof shall hold meetings 
in Washington, DC, and upon request of the Director or as determined by 
the Chairman of the National Appeal Board, at any other place.
    (d) The National Appeal Board or panel thereof shall classify each 
registrant whose classification has been appealed to the President under 
part 1653 of this chapter.
    (e) No member of the National Appeal Board shall act on the case of 
a registrant who is the member's first cousin or closer relation either 
by blood, marriage, or adoption, or who is the member's employer, 
employee or fellow employee or stands in the relationship of superior or 
subordinate of the member in connection with any employment, or is a 
partner or close business associate of the member, or is a fellow member 
or employee of the National Appeal Board. A member of the National 
Appeal Board must disqualify himself in any matter in which we would be 
restricted for any reason in making an impartial decision.
    (f) Each member of the National Appeal Board while on the business 
of the National Appeal Board away from his home or regular place of 
business shall receive actual travel expenses and per diem in lieu of 
subsistence in accordance with rates established by Federal Travel 
Regulations.
    (g) The Director shall pay the expenses of the members of the 
National Appeal Board in accord with applicable Federal Travel 
Regulations and shall furnish that Board and its panels necessary 
personnel, suitable office space, necessary facilities and services.

[52 FR 8890, Mar. 20, 1987]

                          Region Administration



Sec.  1605.7  Region Manager.

    (a) Subject to the direction and control of the Director of 
Selective Service, the Region Manager of Selective Service for each 
region shall be in immediate charge of the Region Headquarters and shall 
be responsible for carrying out the region functions of the Selective 
Service System in the various States assigned to the region.
    (b) The Region Manager will perform such duties as are prescribed by 
the Director of Selective Service.



Sec.  1605.8  Staff of Region Headquarters for Selective Service.

    (a) Subject to applicable law, and within the limits of available 
funds, the staff of each region for Selective Service shall consist of 
as many officers, either military or civilian, as shall be authorized by 
the Director of Selective Service.
    (b) In accordance with limitations imposed by the Director of 
Selective Service, the Region Manager is authorized to appoint such 
civilian personnel as he considers are required in the operation of the 
Region Headquarters.

                          State Administration



Sec.  1605.11  Governor.

    The Governor is authorized to recommend a person to be appointed by 
the President as State Director of Selective Service for his State, who 
shall represent the Governor in all Selective Service matters.



Sec.  1605.12  State Director of Selective Service.

    (a) The State Director of Selective Service for each State, subject 
to the direction and control of the Director of

[[Page 197]]

Selective Service, shall be in immediate charge of the State 
Headquarters for Selective Service in his State. The State Headquarters 
for Selective Service shall be an office of record for Selective Service 
operations only, and no records other than Selective Service records 
shall be maintained in such office.
    (b) The State Director of Selective Service will perform such duties 
as are prescribed by the Director of Selective Service.



Sec.  1605.13  Staff of State Headquarters for Selective Service.

    (a) Subject to applicable law and within the limits of available 
funds, the staff of each State Headquarters for Selective Service shall 
consist of as many officers, either military or civilian, as shall be 
authorized by the Director of Selective Service.
    (b) In accordance with limitations imposed by the Director of 
Selective Service, the State Director of Selective Service is authorized 
to appoint such civilian personnel as he considers are required in the 
operation of the State Headquarters for Selective Service.



Sec.  1605.14  State Director of Selective Service for New York City.

    The Governor of the State of New York is authorized to recommend a 
person to be appointed by the President as State Director of Selective 
Service for New York City, who shall represent the Governor in all 
Selective Service matters within the City of New York. Subject to the 
direction and control of the Director of Selective Service, the State 
Director of Selective Service for New York City shall be in immediate 
charge of the State Headquarters for Selective Service for New York City 
and shall perform such duties as are prescribed by the Director of 
Selective Service. The State Director of Selective Service for the State 
of New York shall have no jurisdiction in Selective Service matters 
within the City of New York. The State headquarters of Selective Service 
for New York City shall be an office of record for Selective Service 
operations only, and no records other than Selective Service records 
shall be maintained in such office.

                         District Appeal Boards



Sec.  1605.21  Area.

    The Director of Selective Service shall establish one or more 
district appeal boards in each of the Federal Judicial Districts in the 
several states of the United States, the District of Columbia, Guam, 
Puerto Rico, and the Virgin Islands. The Director of Selective Service 
may establish panels of appeal boards.



Sec.  1605.22  Composition and appointment of district appeal boards.

    The Director of Selective Service will prescribe the number of 
members for the district appeal boards. The President shall appoint 
members of district appeal boards from among citizens of the United 
States who are residents of the area for which the respective boards 
have jurisdiction. The Director of Selective Service shall furnish 
necessary personnel, suitable office space, facilities and services to 
support each district appeal board.



Sec.  1605.23  Designation.

    The Director of Selective Service shall assign each district appeal 
board within a Federal Judicial District a specific identification by 
which it shall be known. If a district appeal board consists of more 
than one panel, each panel shall have a specific identifying number. 
Such numbers shall be assigned in numerical sequence beginning with 
numeral 1.



Sec.  1605.24  Jurisdiction.

    (a) The district appeal board shall have jurisdiction to review and 
to affirm or change any local board decision appealed to it when:
    (1) An appeal is submitted by a registrant from a local board in its 
area; or
    (2) An appeal is submitted to it from a local board not in the 
appeal board area by a registrant whose principal place of employment or 
residence is located within the jurisdiction of the appeal board; or
    (3) An appeal is submitted or transferred to it by the Director of 
Selective Service to assure the fair and equitable administration of the 
Law.

[[Page 198]]

    (b) The district appeal board shall have jurisdiction to review and 
to affirm or change any Alternative Service Office Manager decision 
appealed to it by an Alternative Service Worker pursuant to part 1656 of 
this chapter.

[47 FR 4644, Feb. 1, 1982, as amended at 69 FR 20543, Apr. 16, 2004]



Sec.  1605.25  Disqualification.

    (a) No member of a district appeal board shall act on the case of a 
registrant who is the member's first cousin or closer relation, either 
by blood, marriage, or adoption, or who is the member's employer, 
employee, or fellow employee, or stands in the relationship of superior 
or subordinate of the member in connection with any employment, or is a 
partner or close business associate of the member, or is a fellow member 
or employee of the board.
    (b) A member of a district appeal board must disqualify himself in 
any matter in which he would be restricted for any reason in making an 
impartial decision.
    (c) Whenever a quorum of the district appeal board or a panel 
thereof cannot act on the case of a registrant that it has been 
assigned, and there is no other panel of the district appeal board to 
which the case may be transferred, the district appeal board shall 
transmit such case to the director of Selective Service for transfer to 
another district appeal board.



Sec.  1605.26  Organization and meetings.

    Each district appeal board, or panel thereof, shall elect a chairman 
and a vice-chairman at least every two years. A majority of the members 
of the board when present at any meeting shall constitute a quorum for 
the transaction of business. A majority of the members present at any 
meeting at which a quorum is present shall decide any question. Every 
member, unless disqualified, shall vote on every question or 
classification. In case of a tie vote on a question or classification, 
the board shall postpone action until the next meeting. If the question 
or classification remains unresolved at the next meeting, the file will 
be transferred for classification in accord with Sec.  1605.25(c). If 
any member is absent so long as to hamper the work of the board, the 
chairman, a member of the board or panel concerned, or an area office 
employee shall report that fact to the Director of Selective Service and 
such action as appropriate shall be taken. If, through death, 
resignation, or other causes, the membership of the board falls below 
the prescribed number of members, the board or panel shall continue to 
function, provided a quorum of the prescribed membership is present at 
each official meeting.



Sec.  1605.27  Minutes of meetings.

    A Selective Service compensated employee will keep the minutes of 
each appeal board meeting. In the absence of a compensated employee the 
minutes will be kept by an appeal board member.



Sec.  1605.28  Signing official papers.

    Official documents issued and minutes of meetings maintained by a 
district appeal board may be signed by any member of the board, or by 
any compensated employee of the Selective Service System authorized to 
perform administrative duties for the board, except when otherwise 
prescribed by the Director of Selective Service.

                              Local Boards



Sec.  1605.51  Area.

    (a) The Director of Selective Service shall divide each State into 
local board areas and establish local boards. There shall be at least 
one local board in each county except where the Director of Selective 
Service establishes an intercounty board. When more than one local board 
is established within the same geographical jurisdiction, registrants 
residing in that area will be assigned among the boards as prescribed by 
the Director of Selective Service. The Director of Selective Service may 
establish panels of local boards.
    (b) [Reserved]

[47 FR 4644, Feb. 1, 1982, as amended at 52 FR 24454, July 1, 1987]



Sec.  1605.52  Composition of local boards.

    The Director of Selective Service shall prescribe the number of 
members of local boards.

[[Page 199]]



Sec.  1605.53  Designation.

    The Director of Selective Service shall assign each local board 
within a State a specific identifying number by which it shall be known. 
Such identifying numbers shall be assigned in numerical sequence 
beginning with the numeral 1.



Sec.  1605.54  Jurisdiction.

    The local board shall have full authority to perform all acts within 
its jurisdiction authorized by law, to include the acting on any claim 
presented to it when:
    (a) The claim is submitted by a registrant who is assigned to it; or
    (b) The claim is transferred to it from another board in the manner 
provided in these regulations; or
    (c) The claim is submitted or tranferred to it by the Director of 
Selective Service to assure the fair and equitable administration of the 
Law.



Sec.  1605.55  Disqualification.

    (a) No member of a local board shall act on the case of a registrant 
who is the member's first cousin or closer relation, either by blood, 
marriage, or adoption, or who is the member's employer, employee, or 
fellow employee, or stands in the relationship of superior or 
subordinate of the member in connection with any employment, or is a 
partner or close business associate of the member, or a fellow member or 
employee of the area office.
    (b) A member of the local board must disqualify himself in any 
matter in which he would be restricted, for any reason, in making an 
impartial decision.
    (c) Whenever a quorum of a local board cannot act on the case of a 
registrant, the area office supervisor shall cause such case to be 
transferred to another board within the area office. In those instances 
where only one board exists in an area office, the case should be 
transmitted to the nearest area office for transfer to a board under its 
jurisdiction.



Sec.  1605.56  Organization and meetings.

    Each local board shall elect a chairman and vice-chairman at least 
every two years. A majority of the membership of the board shall 
constitute a quorum for the transaction of business. A majority of the 
members present at any meeting at which a quorum is present shall decide 
any question or classification. Every member present, unless 
disqualified, shall vote on every question or classification. In case of 
a tie vote on any question or classification, the board shall postpone 
action on the question or classification until it can be decided by a 
majority vote at the next meeting. If the question or classification 
remains unresolved at the next meeting, the file will be transferred for 
classification in accord with Sec.  1605.55(c). If any member is absent 
so long as to hamper the work of the board, the chairman, a member of 
the board, or a Selective Service compensated employee shall report that 
fact to the Director of Selective Service and appropriate action shall 
be taken. If through death, resignation, or other cause, the membership 
of a board falls below the prescribed number, it shall continue to 
function provided a quorum of the prescribed membership is present at 
each official meeting.



Sec.  1605.58  Minutes of meetings.

    A compensated employee of the appropriate area office will keep the 
minutes of each meeting of a local board. In the absence of a 
compensated employee the minutes will be kept by a board member.



Sec.  1605.59  Signing official papers.

    Official papers issued by a local board may be signed by any member 
of the board or compensated employee of the area office, or any 
compensated employee of the Selective Service System whose official 
duties require him to perform administrative duties at the area office 
except when otherwise prescribed by the Director of Selective Service.

                       Area Office Administration



Sec.  1605.60  Area.

    (a) The Director of Selective Service shall prescribe the number of 
area offices to be established and shall define the boundaries thereof.

[[Page 200]]

    (b) The area office shall be an office of record and responsible for 
all administrative and operational support of the one or more local 
boards within its jurisdiction.



Sec.  1605.61  Staff of area offices for selective service.

    Subject to applicable law and within the limits of available funds, 
the staff of each area office shall consist of as many compensated 
employees, either military or civilian, as shall be authorized by the 
Director of Selective Service.

                              Interpreters



Sec.  1605.81  Interpreters.

    (a) The local board, district appeal board and the National 
Selective Service Appeal Board are authorized to use interpreters when 
necessary.
    (b) The following oath shall be administered by a member of the 
board or a compensated employee of the System to an interpreter each 
time he or she interprets:

    Do you swear (or affirm) that you will truly interpret in the matter 
now in hearing?

    (c) Any interpreter who fails to respond in the affirmative shall 
not be permitted to function in this capacity.

[47 FR 4644, Feb. 1, 1982, as amended at 52 FR 24454, July 1, 1987]



PART 1609_UNCOMPENSATED PERSONNEL--Table of Contents



Sec.
1609.1 Uncompensated positions.
1609.2 Citizenship.
1609.3 Eligibility.
1609.4 Oath of office.
1609.5 Suspension.
1609.6 Removal.
1609.7 Use of information.

    Authority: Military Selective Service Act, 50 U.S.C. App. 451 et 
seq.; E.O. 11623.

    Source: 47 FR 4647, Feb. 1, 1982, unless otherwise noted.



Sec.  1609.1  Uncompensated positions.

    Members of local boards, district appeal boards, and all other 
persons volunteering their services to assist in the administration of 
the Selective Service Law shall be uncompensated. No person serving 
without compensation shall accept remuneration from any source for 
services rendered in connection with Selective Service matters.

[52 FR 24454, July 1, 1987, as amended at 69 FR 20544, Apr. 16, 2004]



Sec.  1609.2  Citizenship.

    No person shall be appointed to any uncompensated position in the 
Selective Service System who is not a citizen of the United States.



Sec.  1609.3  Eligibility.

    (a) The President, upon the recommendation of the respective 
Governors, will consider for appointment as a member of a local board, 
any person who:
    (1) Is within the age limits prescribed by the Military Selective 
Service Act; and
    (2) Is a citizen of the United States; and
    (3) Is a resident of the county in which the local board has 
jurisdiction; and
    (4) Is not an active or retired member of the Armed Forces or any 
reserve component thereof; and
    (5) Has not served as a member of a Selective Service board for a 
period of more than 20 years; and
    (6) Is able to perform such duties as necessary during standby 
status; and
    (7) Is able to devote sufficient time to board affairs; and
    (8) Is willing to fairly and uniformly apply Selective Service Law.
    (b) The President, upon the recommendation of the Director of 
Selective Service, will consider for appointment as a member of a 
district appeal board any person who:
    (1) Is within the age limits prescribed by the Military Selective 
Service Act; and
    (2) Is a citizen of the United States; and
    (3) Is a resident of the Federal Judicial District in which the 
district appeal board has jurisdiction; and
    (4) Is not an active or retired member of the Armed Forces or any 
reserve component thereof; and
    (5) Has not served as a member of a Selective Service board for a 
period of more than 20 years; and

[[Page 201]]

    (6) Is able to perform such duties as necessary during standby 
status; and
    (7) Is able to devote sufficient time to the district appeal board 
affairs; and
    (8) Is willing to fairly and uniformly apply Selective Service Law.



Sec.  1609.4  Oath of office.

    Every person who undertakes to render voluntary uncompensated 
service in the administration of the Selective Service Law shall execute 
an Oath of Office and Waiver of Pay before he enters upon his duties.



Sec.  1609.5  Suspension.

    The Director of Selective Service may suspend from duty any 
uncompensated person engaged in the administration of the Selective 
Service Law pending his consideration of the advisability of removing 
such person.



Sec.  1609.6  Removal.

    (a) The Director of Selective Service may remove any uncompensated 
person engaged in the administration of the Selective Service Law.
    (b) The Governor may recommend to the Director of Selective Service 
the removal, for cause, of the State Director or any uncompensated 
person engaged in the administration of the Selective Service Law in his 
State. The Director of Selective Service shall make such investigation 
of the Governor's recommendation as he deems necessary, and upon 
completion of his investigation, he shall take such action as he deems 
proper.



Sec.  1609.7  Use of information.

    Any information or records obtained by compensated or uncompensated 
personnel during the performance of their official duties, including 
proceedings before the boards, shall be restricted to official use by 
the personnel of the Selective Service System except as specifically 
authorized by law.



PART 1615_ADMINISTRATION OF REGISTRATION--Table of Contents



Sec.
1615.1 Registration.
1615.2 Responsibility of Director of Selective Service in registration.
1615.3 Registration procedures.
1615.4 Duty of persons required to register.
1615.5 Persons not to be registered.
1615.6 Selective service number.
1615.7 Evidence of registration.
1615.8 Cancellation of registration.
1615.9 Registration card or form.

    Authority: Military Selective Service Act, 50 U.S.C. App. 451 et 
seq.; E.O. 11623, 36 FR 19963, 3 CFR, 1971-1975 Comp., p. 614, as 
amended by E.O. 12608, 52 FR 34617, 3 CFR, 1987 Comp., p. 245.

    Source: 45 FR 48130, July 18, 1980, unless otherwise noted.



Sec.  1615.1  Registration.

    (a) Registration under selective service law consists of:
    (1) Completing a registration card or other method of registration 
prescribed by the Director of Selective Service by a person required to 
register; and
    (2) The recording of the registration information furnished by the 
registrant in the records (master computer file) of the Selective 
Service System. Registration is completed when both of these actions 
have been accomplished.
    (b) The Director of Selective Service will furnish to each 
registrant a verification notice that includes a copy of the information 
pertaining to his registration that has been recorded in the records of 
the Selective Service System together with a correction form. If the 
information is correct, the registrant should take no action. If the 
information is incorrect, the registrant should forthwith furnish the 
correct information to the Director of Selective Service. If the 
registrant does not receive the verification notice within 90 days after 
he completed a method of registration prescribed by the Director, he 
shall advise in writing the Selective Service System, P.O. Box 94638, 
Palatine, IL 60094-4638.
    (c) The methods of registration prescribed by the Director include 
completing a Selective Service Registration Card at a classified Post 
Office, registration on the Selective Service Internet web site (http://
www.sss.gov), telephonic registration, registration on approved Federal 
and State Government forms, registration through high

[[Page 202]]

school and college registrars, and Selective Service remainder mailback 
card.

[45 FR 48130, July 18, 1980, as amended at 65 FR 47670, Aug. 3, 2000; 65 
FR 60101, Oct. 10, 2000]



Sec.  1615.2  Responsibility of Director of Selective Service in 
registration.

    Whenever the President by proclamation or other public notice fixes 
a day or days for registration, the Director of Selective Service shall 
take the necessary steps to prepare for registration and, on the day or 
days fixed, shall supervise the registration of those persons required 
to present themselves for and submit to registration. The Director of 
Selective Service shall also arrange for and supervise the registration 
of those persons who present themselves for registration at times other 
than on the day or days fixed for any registration.



Sec.  1615.3  Registration procedures.

    Persons required by selective service law and the Proclamation of 
the President to register shall be registered in accord with procedures 
prescribed by the Director of Selective Service.



Sec.  1615.4  Duty of persons required to register.

    A person required by selective service law to register has the duty:
    (a) To complete the registration process by a method prescribed by 
the Director of Selective Service and to record thereon his name, date 
of birth, sex, Social Security Account Number (SSAN), current mailing 
address, permanent residence, telephone number, date signed, and 
signature, if requested; and
    (b) To submit for inspection, upon request, evidence of his identity 
to a person authorized to accept the registration information. Evidence 
of identity may be a birth certificate, motor vehicle operator's 
license, student's identification card, United States Passport, or a 
similar document.

[45 FR 48130, July 18, 1980, as amended at 65 FR 60101, Oct. 10, 2000]



Sec.  1615.5  Persons not to be registered.

    No person who is not required by selective service law or the 
Proclamation of the President to register shall be registered.



Sec.  1615.6  Selective service number.

    Every registrant shall be given a selective service number. The 
Social Security Account Number will not be used for this purpose.



Sec.  1615.7  Evidence of registration.

    The Director of Selective Service Shall issue to each registrant 
written evidence of his registration. The Director of Selective Service 
will replace that evidence upon written request of the registrant, but 
such request will not be granted more often than once in any period of 
six months.



Sec.  1615.8  Cancellation of registration.

    The Director of Selective Service may cancel the registration of any 
particular registrant or of a registrant who comes within a specified 
group of registrants.



Sec.  1615.9  Registration card or form.

    For the purposes of these regulations, the terms Registration Card 
and Registration Form are synonomous.



PART 1618_NOTICE TO REGISTRANTS--Table of Contents



Sec.
1618.1 Abandonment of rights or privileges.
1618.2 Filing of documents.
1618.4 Transmission of orders and other official papers to registrants.

    Authority: Military Selective Service Act, 50 U.S.C. App. 451 et 
seq.; E.O. 11623.

    Source: 47 FR 4648, Feb. 1, 1982, unless otherwise noted.



Sec.  1618.1  Abandonment of rights or privileges.

    If a registrant fails to claim and exercise any right or privilege 
within the required time, he shall be deemed to have abandoned the right 
or privilege unless the Director of Selective Service, for good cause, 
waives the time limit.

[[Page 203]]



Sec.  1618.2  Filing of documents.

    A document other than a registration card received by an element of 
the Selective Service System will be considered to have been filed on 
the date that it is received: Provided, That a document that is received 
which was transmitted by the United States Postal Service (USPS) and was 
enclosed in a cover that bears a legible USPS postmark date will be 
deemed to have been received on that date.



Sec.  1618.4  Transmission of orders and other official papers to 
registrants.

    Personnel of the Selective Service System will transmit orders or 
other official papers addressed to a registrant by handing them to him 
personally or mailing them to him to the current mailing address last 
reported by him in writing to the Selective Service System.



PART 1621_DUTY OF REGISTRANTS--Table of Contents



Sec.
1621.1 Reporting by registrants of their current status.
1621.2 Duty to report for and submit to induction.
1621.3 Duty to report for and submit to examination.

    Authority: Military Selective Service Act, 50 U.S.C. App. 451 et 
seq.; E.O. 11623.



Sec.  1621.1  Reporting by registrants of their current status.

    Until otherwise notified by the Director of Selective Service, it is 
the duty of every registrant who registered after July 1, 1980:
    (a) To notify the System within 10 days of any change in the 
following items of information that he provided on his registration 
form: name, current mailing address and permanent residence address; and
    (b) To submit to the classifying authority, all information 
concerning his status within 10 days after the date on which the 
classifying authority mails him a request therefor, or within such 
longer period as may be fixed by the classifying authority; and
    (c) Who has a postponement of induction, or has been deferred or 
exempted from training and service, to notify the System immediately of 
any changes in facts or circumstances relating to the postponement, 
deferment or exemption; and
    (d) Who has a postponement of examination, to notify the System 
immediately of any changes in facts or circumstances relating to the 
postponement.

[52 FR 24454, July 1, 1987]



Sec.  1621.2  Duty to report for and submit to induction.

    When the Director of Selective Service orders a registrant for 
induction, it shall be the duty of the registrant to report for and 
submit to induction at the time and place ordered unless the order has 
been canceled. If the time when the registrant is ordered to report for 
induction is postponed, it shall be the continuing duty of the 
registrant to report for and submit to induction at such time and place 
as he may be reordered. Regardless of the time when or the circumstances 
under which a registrant fails to report for induction when it is his 
duty to do so, it shall thereafter be his continuing duty from day to 
day to report for and submit to induction at the place specified in the 
order to report for induction.

[47 FR 4648, Feb. 1, 1982]



Sec.  1621.3  Duty to report for and submit to examination.

    When the Director orders a registrant for examination, it shall be 
the duty of the registrant to report for and submit to examination at 
the time and place ordered unless the order has been canceled. If the 
time when the registrant is ordered to report for examination is 
postponed, it shall be the continuing duty of the registrant to report 
for and submit to examination at such time and place as he may be 
reordered. Regardless of the time when, or the circumstances under which 
a registrant fails to report for examination when it is his duty to do 
so, it shall thereafter be his continuing duty from day to day to report 
for and submit to examination at the place specified in the order to 
report for examination.

[52 FR 8890, Mar. 20, 1987]

[[Page 204]]



PART 1624_INDUCTIONS--Table of Contents



Sec.
1624.1 Random selection procedures for induction.
1624.2 Issuance of induction orders.
1624.3 Age selection groups.
1624.4 Selection and/or rescheduling of registrants for induction.
1624.5 Order to report for induction.
1624.6 Postponement of induction.
1624.7 Expiration of deferment or exemption.
1624.8 Transfer for induction.
1624.9 Induction into the Armed Forces.
1624.10 Order to report for examination.

    Authority: Military Selective Service Act, 50 U.S.C. App. 451 et 
seq.; E.O. 11623.

    Source: 47 FR 4648, Feb. 1, 1982, unless otherwise noted.



Sec.  1624.1  Random selection procedures for induction.

    (a) The Director of Selective Service shall from time to time 
establish a random selection sequence for induction by a drawing to be 
conducted in the place and on a date the Director shall fix. The random 
selection method shall use 365 days, or when appropriate, 366 days to 
represent the birthdays (month and day only) of all registrants who, 
during the specified calendar year(s) attain their 18th year of birth. 
The drawing, commencing with the first day selected, and continuing 
until all 365 days or, when appropriate 366 days are drawn, shall be 
accomplished impartially. The random sequence number thus determined for 
any registrant shall apply to him so long as he remains subject to 
induction for military training and service by random selection.
    (b) The date of birth of the registrant that appears on his 
Selective Service Registration Record on the day before the lottery is 
conducted to establish his random selection sequence will be conclusive 
as to his date of birth in all matters pertaining to his relations with 
the Selective Service System.



Sec.  1624.2  Issuance of induction orders.

    The Director of Selective Service, upon receipt of a call from the 
Secretary of Defense for persons to be inducted into the Armed Forces in 
accord with Sec.  1624.4, shall issue orders to report for induction to 
registrants whose registration records are in the master computer file 
at the beginning of any day on which orders are issued. Orders shall be 
issued in such numbers and at such times as will assure that such call 
or requisition is filled. The names contained in the Selective Service 
System data base on a given day will constitute the valid list of 
registrants from which induction orders can be issued on that day.



Sec.  1624.3  Age selection groups.

    Age selection groups are established as follows:
    (a) The age 20 selection group for each calendar year consists of 
registrants who have attained or will attain the age of 20 in that year.
    (b) The age 21 selection group for each calendar year consists of 
registrants who have attained or will attain the age of 21 in that year 
and, in like manner, each age selection group will be so designated 
through age group 25.
    (c) The age 26 through 34 selection groups consist of registrants 
who meet the following three criteria:
    (1) They have attained or will attain the age of 26 through 34, 
respectively, during the calendar year; and
    (2) They have been previously ordered to report for induction but 
have not been inducted; and
    (3) They have been classified in one of the following classes:
    (i) Class 1-D-D.
    (ii) Class 2-D.
    (iii) Class 3-A.
    (iv) Class 4-B.
    (v) Class 4-F.
    (d) The age 19 selection group for each calendar year consists of 
registrants who have attained the age of 19 in that year.
    (e) The age 18 selection group shall consist of registrants who have 
attained the age of 18 years and six months and who have not attained 
the age of 19 years in the order of their dates of birth with the oldest 
being selected first.



Sec.  1624.4  Selection and/or rescheduling of registrants for induction.

    A registrant in Class 1-A or a registrant subsequently classified 1-
A-0

[[Page 205]]

shall be selected and ordered or rescheduled to report for induction in 
the following categories and in the order indicated: Provided, That a 
registrant who has been identified in accord with the procedures 
prescribed by the Director of Selective Service as one who will become a 
member of one of the following categories on the next January 1, may, 
prior to January 1, be selected and ordered to report for induction on a 
date after January 1 as a member of such category.
    (a) Volunteers for induction in the order in which they volunteered.
    (b) Registrants whose postponements have expired in the order of 
expiration.
    (c) Registrants who previously have been ordered to report for 
induction and whose exemptions or deferments have expired, in the order 
of their random sequence number (RSN) established by random selection 
procedures in accord with Sec.  1624.1
    (d) Registrants in the age 20 selection group for the current 
calendar year in the order of their random sequence number (RSN) 
established by random selection procedures in accord with Sec.  1624.1.
    (e) Registrants in each succeeding age selection group commencing 
with age 21 selection group and terminating with the age 34 selection 
group, in turn, within the group, in the order of their random sequence 
number (RSN) established by random selection procedures in accord with 
Sec.  1624.1.
    (f) Registrants in the age 19 selection group for the current 
calendar year in the order of their random sequence number (RSN) 
established by random selection procedures in accord with Sec.  1624.1.
    (g) Registrants in the age 18 year and six months selection group 
and who have not attained the age of 19 in the order of their date of 
birth with the oldest being selected first.

[47 FR 4648, Feb. 1, 1982, as amended at 52 FR 24455, July 1, 1987]



Sec.  1624.5  Order to report for induction.

    (a) Immediately upon determining which persons are to be ordered for 
induction, the Director of Selective Service shall issue to each person 
selected an Order to Report for Induction. The order will be sent to the 
current address most recently provided by the registrant to the 
Selective Service System. The date specified to report for induction 
shall be at least 10 days after the date on which the Order to Report 
for Induction is issued. The filing of a claim for reclassification in 
accord with Sec.  1633.2 of this chapter delays the date the registrant 
is required to report for induction until not earlier than the tenth day 
after the claim is determined to have been abandoned or is finally 
determined is finally determined in accord with the provisions of this 
chapter. A claim is finally determined when the registrant does not have 
the right to appeal the last classification action with respect to the 
claim or he fails to exercise his right to appeal.
    (b) Any person who has been ordered for induction who is distant 
from the address to which the order was sent must either report at the 
time and place specified in the order, or voluntarily submit himself for 
induction processing at another MEPS on or before the day that he was 
required to report in accordance with his induction order.
    (c) The Director of Selective Service may direct the cancellation of 
any Order to Report for Induction at any time.
    (d) Any Order to Report for Induction issued by the Director of 
Selective Service to a registrant who is an alien, who has not resided 
in the United States for one year will be void. Such order will be 
deemed only to be an order to produce evidence of his status. When an 
alien registrant has been within the United States for two or more 
periods (including periods before his registration) and the total of 
such periods equals one year, he shall be deemed to have resided in the 
United States for one year. In computing the length of such periods, any 
portion of one day shall be counted as a day. Upon establishing a one 
year residency, the alien registrant will be assigned to the age 
selection group corresponding to his age.

[47 FR 4648, Feb. 1, 1982, as amended at 52 FR 24455, July 1, 1987]



Sec.  1624.6  Postponement of induction.

    (a) [Reserved]

[[Page 206]]

    (b) In the case of the death of a member of the registrant's 
immediate family, extreme emergency involving a member of the 
registrant's immediate family, serious illness or injury of the 
registrant, or other emergency beyond the registrant's control, the 
Director, after the Order to Report for Induction has been issued, may 
postpone for a specific time the date when such registrant shall be 
required to report. The period of postponement shall not exceed 60 days 
from the date of the induction order. When necessary, the Director may 
grant one further postponement, but the total postponement shall not 
exceed 90 days from the reporting date on the induction order.
    (c)(1) Any registrant who is satisfactorily pursuing a full-time 
course of instruction at a high school or similar institution of 
learning and is issued an order to report for induction shall, upon 
presentation of appropriate facts in the manner prescribed by the 
Director of Selective Service, have his induction postponed:
    (i) Until the time of his graduation therefrom; or
    (ii) Until he attains the twentieth anniversary of his birth; or
    (iii) Until the end of his last academic year, even if he has 
attained the twentieth anniversary of his birth; or
    (iv) Until he ceases satisfactorily to pursue such course of 
instruction, whichever is the earliest.
    (2) Any registrant who, while satisfactorily pursuing a full-time 
course of instruction at a college, university, or similar institution 
of learning, is ordered to report for induction shall, upon the 
presentation of appropriate facts in the manner prescribed by the 
Director of Selective Service, have his induction postponed:
    (i) Until the end of the semester or term, or in the case of his 
last academic year, the end of the academic year; or
    (ii) Until he ceases to satisfactorily pursue such course of 
instruction, whichever is the earlier.
    (3) A postponement authorized by this subsection may be terminated 
by the Director of Selective Service for cause upon no less than 10 days 
notice to the registrant.
    (d) The Director of Selective Service may authorize a delay of 
induction for any registrant whose date of induction conflicts with a 
religious holiday historically observed by a recognized church, 
religious sect or religious organization of which he is a member. Any 
registrant so delayed shall report for induction on the next business 
day following the religious holiday.
    (e) [Reserved]
    (f) The Director of Selective Service may authorize a postponement 
of induction to a registrant when:
    (1) The registrant qualifies and is scheduled for a State or 
National examination in a profession or occupation which requires 
certification before being authorized to engage in the practice of that 
profession or occupation; or
    (2) The registrant has been accepted in the next succeeding class as 
a cadet at the U.S. Military Academy, or the U.S. Air Force Academy, or 
the U.S. Coast Guard Academy; or as a midshipman at the U.S. Naval 
Academy, or the U.S. Merchant Marine Academy; or
    (3) The registrant is a ROTC applicant who has been designated to 
participate in the next succeeding ROTC field training program prior to 
enrollment in the ROTC; or
    (4) The registrant has been accepted as a ROTC scholarship student 
in the next succeeding ROTC program at a college or university.
    (g) The Director of Selective Service shall issue to each registrant 
whose induction is postponed a written notice thereof.
    (h) No registrant whose induction has been postponed shall be 
inducted into the Armed Forces during the period of any such 
postponement. A postponement of induction shall not render invalid the 
Order to Report for Induction which has been issued to the registrant, 
but shall operate only to postpone the reporting date, and the 
registrant shall report on the new date scheduled without having issued 
to him a new Order to Report for Induction.
    (i) Any registrant receiving a postponement under the provisions of 
this section, shall, after the expiration of such postponement, be 
rescheduled to report for induction at the place to which he was 
originally ordered.

[[Page 207]]

    (j) The initial determination of claims for all postponements is 
made by area office compensated personnel. After a denial of a claim for 
a student postponement, the registrant may request the local board to 
consider the claim. Such registrant shall be afforded an opportunity to 
appeal before the board in accord with the procedures of Sec. Sec.  
1648.4 and 1648.5.

[47 FR 4648, Feb. 1, 1982, as amended at 52 FR 24455, July 1, 1987]



Sec.  1624.7  Expiration of deferment or exemption.

    The Director shall issue an Order to Report for Induction to a 
registrant who is liable for induction whenever his deferment or 
exemption expires.

[52 FR 24455, July 1, 1987]



Sec.  1624.8  Transfer for induction.

    The Director of Selective Service may direct that a registrant or 
registrants in a specified group of registrants be transferred for 
induction to such MEPS as he may designate.



Sec.  1624.9  Induction into the Armed Forces.

    Registrants in classes 1-A and 1-A-0, who have been ordered for 
induction and found qualified under standards prescribed by the 
Secretary of Defense, will be inducted at the MEPS into the Armed 
Forces.



Sec.  1624.10  Order to report for examination.

    (a) The Director of Selective Service may order any registrant in 
Class 1-A who has filed a claim for classification in a class other than 
Class 1-A or whose induction has been postponed, to report for an Armed 
Forces examination to determine acceptability for military service. The 
date specified to report for examination shall be at least 7 days after 
the date on which the Order to Report for Examination is issued. Such 
registrant will not be inducted until his claim for reclassification has 
been decided or abandoned.
    (b) The reporting date for examination may be postponed for any 
reason a reporting date for induction may be postponed in accord with 
Sec.  1624.6 (b), (d) or (f)(1).
    (c) If a registrant fails to report for or complete an examination, 
the local board will determine that he has abandoned his claim.
    (d) If a registrant is determined not acceptable for military 
service, he will be reclassified in Class 4-F.
    (e) If a registrant is determined acceptable for military service, 
the processing of his claim will be completed.

[52 FR 24455, July 1, 1987]



PART 1627_VOLUNTEERS FOR INDUCTION--Table of Contents



Sec.
1627.1 Who may volunteer.
1627.2 Registration of volunteers.
1627.3 Classification of volunteers.

    Authority: Military Selective Service Act, 50 U.S.C. App 451 et 
seq.; E.O. 11623.

    Source: 47 FR 4650, Feb. 1, 1982, unless otherwise noted.



Sec.  1627.1  Who may volunteer.

    Any registrant who has attained the age of 17 years, who has not 
attained the age of 26 years, and who has not completed his active duty 
obligation under the Military Selective Service Act, when inductions are 
authorized, may volunteer for induction into the Armed Forces unless he;
    (a) Is classified in Class 4-F or is eligible for Class 4-F; or
    (b) Has been found temporarily unacceptable with reexamination 
believed justified (RBJ) and the period of time specified for his return 
for examination has not been terminated and the basis for his temporary 
rejection continues to exist; or
    (c) Is an alien who has not resided in the United States for a 
period of at least one year; or
    (d) Has not attained the age of 18 years and does not have the 
consent of his parent or guardian for his induction.



Sec.  1627.2  Registration of volunteers.

    (a) If a person who is required to be registered but who has failed 
to register volunteers for induction, he shall be registered.
    (b) In registering a volunteer, the area office shall follow the 
procedure set forth in Sec.  1615.3 of this chapter.

[[Page 208]]



Sec.  1627.3  Classification of volunteers.

    When a registrant who is eligible to volunteer files an Application 
for Voluntary Induction, he shall be classified in Class 1-A and 
processed for induction.



PART 1630_CLASSIFICATION RULES--Table of Contents



Sec.
1630.2 Classes.
1630.10 Class 1-A: Available for unrestricted military service.
1630.11 Class 1-A-0: Conscientious objector available for noncombatant 
          military service only.
1630.12 Class 1-C: Member of the Armed Forces of the United States, the 
          National Oceanic and Atmospheric Administration or the Public 
          Health Service.
1630.13 Class 1-D-D: Deferment for certain members of a reserve 
          component or student taking military training.
1630.14 Class 1-D-E: Exemption of certain members of a reserve component 
          or student taking military training.
1630.15 Class 1-H: Registrant not subject to processing for induction.
1630.16 Class 1-O: Conscientious objector to all military service.
1630.17 Class 1-O-S: Conscientious objector to all military service 
          (separated).
1630.18 Class 1-W: Conscientious objector ordered to perform alternative 
          service.
1630.26 Class 2-D: Registrant deferred because of study preparing for 
          the ministry.
1630.30 Class 3-A: Registrant deferred because of hardship to 
          dependents.
1630.31 Class 3-A-S: Registrant deferred because of hardship to 
          dependents (separated).
1630.40 Class 4-A: Registrant who has completed military service.
1630.41 Class 4-B: Official deferred by law.
1630.42 Class 4-C: Alien or dual national.
1630.43 Class 4-D: Minister of religion.
1630.44 Class 4-F: Registrant not acceptable for military service.
1630.45 Class 4-G: Registrant exempted from service because of the death 
          of his parent or sibling while serving in the Armed Forces or 
          whose parent or sibling is in a captured or missing in action 
          status.
1630.46 Class 4-T: Treaty alien.
1630.47 Class 4-W: Registrant who has completed alternative service in 
          lieu of induction.
1630.48 Class 4-A-A: Registrant who has performed military service for a 
          foreign nation.

    Authority: Military Selective Service Act, 50 U.S.C. App. 451 et 
seq., E.O. 11623.

    Source: 47 FR 4651, Feb. 1, 1982, unless otherwise noted.



Sec.  1630.2  Classes.

    Each registrant shall be classified in one of the classes prescribed 
in this part.



Sec.  1630.10  Class 1-A: Available for unrestricted military service.

    (a) All registrants available for unrestricted military service 
shall be in Class 1-A.
    (b) All registrants in the selection groups as determined by the 
Director of Selective Service are available for unrestricted Military 
Service, except those determined by a classifying authority to be 
eligible for exemption or deferment from military service or for 
noncombatant or alternative service, or who have random sequence numbers 
(RSNs) determined by the Director not to be required to fill calls by 
the Secretary of Defense.



Sec.  1630.11  Class 1-A-0: Conscientious objector available for 
noncombatant military service only.

    In accord with part 1636 of this chapter any registrant shall be 
palced in Class 1-A-0 who has been found, by reason of religious, 
ethical, or moral belief, to be conscientiously opposed to participation 
in combatant military tranining and service in the Armed Forces.



Sec.  1630.12  Class 1-C: Member of the Armed Forces of the United States,
the National Oceanic and Atmospheric Administration or the Public Health 
Service.

    In Class 1-C shall be placed:
    (a) Every registrant who is or who becomes by enlistment or 
appointment, a commissioned officer, a warrant officer, a pay clerk, an 
enlisted man or an aviation cadet of the Regular Army, the Navy, the Air 
Force, the Marine Corps, the Coast Guard, the National Oceanic and 
Atmospheric Administration or the Public Health Service.
    (b) Every registrant who is a cadet, United States Military Academy; 
or midshipman, United States Naval Academy; or a cadet, United States 
Air Force Academy; or cadet, United States Coast Guard Academy.

[[Page 209]]

    (c) Every registrant who by induction becomes a member of the Army 
of the United States, the United States Navy, the United States Marine 
Corps, the Air Force of the United States, or the United States Coast 
Guard.
    (d) Exclusive of periods for training only, every registrant who is 
a member of a reserve component of the Armed Forces and is on active 
duty, and every member of the reserve of the Public Health Service on 
active duty and assigned to staff the various offices and bureaus of the 
Public Health Service including the National Institutes of Health, or 
assigned to the Coast Guard, the Bureau of Prisons of the Department of 
Justice, Environmental Protection Agency, or the National Oceanic and 
Atmospheric Administration or who are assigned to assist Indian tribes, 
groups, bands, or communities pursuant to the Act of August 5, 1954 (68 
Stat. 674), as amended.



Sec.  1630.13  Class 1-D-D: Deferment for certain members of a reserve
component or student taking military training.

    In Class 1-D-D shall be placed any registrant who:
    (a)(1) Has been selected for enrollment or continuance in the Senior 
(entire college level) Army Reserve Officer's Training Corps, or the Air 
Force Reserve Officer's Training Corps, or the Naval Reserve Officer's 
Training Corps, or the Naval and Marine Corps officer candidate program 
of the Navy, or the platoon leader's class of the Marine Corps, or the 
officer procurement programs of the Coast Guard and the Coast Guard 
Reserve, or is appointed an ensign, U.S. Naval Reserve while undergoing 
professional training; and
    (2) Has agreed in writing to accept a commission, if tendered, and 
to serve subject to order of the Secretary of the military department 
having jurisdiction over him (or the Secretary of Transportation with 
respect to the U.S. Coast Guard), not less than 2 years on active duty 
after receipt of a commission; and
    (3) Has agreed to remain a member of a regular or reserve component 
until the eighth anniversary of his receipt of a commission. Such 
registrant shall remain eligible for Class 1-D-D until completion or 
termination of the course of instruction and so long thereafter as he 
continues in a reserve status upon being commissioned except during any 
period he is eligible for Class 1-C under the provision of Sec.  
1630.12; or
    (b) Is a fully qualified and accepted aviation cadet applicant of 
the Army, Navy, or Air Force, who has signed an agreement of service and 
is within such numbers as have been designated by the Secretary of 
Defense. Such registrant shall be retained in Class 1-D-D during the 
period covered by such agreement but in no case in excess of four 
months; or
    (c) Is other than a registrant referred to in paragraph (a) or (d) 
of this section who:
    (1) Prior to the issuance of orders for him to report for induction; 
or
    (2) Prior to the date scheduled for his induction and pursuant to a 
proclamation by the Governor of a State to the effect that the 
authorized strength of any unit of the National Guard of that State 
cannot be maintained by the enlistment or appointment of persons who 
have not been issued orders to report for induction; or
    (3) Prior to the date scheduled for his induction and pursuant to a 
determination by the President that the strength of the Ready Reserve of 
the Army Reserve, Naval Reserve, Marine Corps Reserve, Air Force 
Reserve, or Coast Guard Reserve cannot be maintained by the enlistment 
or appointment of persons who have not been issued orders to report for 
induction:

enlists or accepts an appointment before attaining the age of 26 years, 
in the Ready Reserve of any Reserve component of the Armed Forces, the 
Army National Guard, or the Air National Guard. Such registrant shall 
remain eligible for Class 1-D-D so long as he serves satisfactorily as a 
member of an organized unit of such Ready Reserve or National Guard, or 
satisfactorily performs such other Ready Reserve service as may be 
prescribed by the Secretary of Defense, or serves satisfactorily as a 
member of the Ready Reserve of another reserve component, the Army 
National Guard, or the Air National Guard, as the case may be; or

[[Page 210]]

    (d) At any time has enlisted in the Army Reserve, the Naval Reserve, 
the Marine Corps Reserve, the Air Force Reserve, or the Coast Guard 
Reserve and who thereafter has been commissioned therein upon graduation 
from an Officer's Candidate School of such Armed Force and has not has 
been ordered to active duty as a commissioned officer. Such registrant 
shall remain eligible for Class 1-D-D so long as he performs 
satisfactory service as a commissioned officer in an appropriate unit of 
the Ready Reserve, as determined under regulations prescribed by the 
Secretary of the department concerned; or
    (e) Is serving satisfactorily as a member of a reserve component of 
the Armed Forces and is not eligible for Class 1-D-D under the 
provisions of any other paragraph of this section: Provided: That, for 
the purpose of this paragraph, a member of a reserve component who is in 
the Standby Reserve or the Retired Reserve shall be deemed to be serving 
satisfactorily unless the Armed Forces of which he is a member informs 
the Selective Service System that he is not serving satisfactorily.

[52 FR 24455, July 1, 1987]



Sec.  1630.14  Class 1-D-E: Exemption of certain members of a reserve
component or student taking military training.

    In Class 1-D-E shall be placed any registrant who:
    (a) Is a student enrolled in an officer procurement program at a 
military college the curriculum of which is approved by the Secretary of 
Defense; or
    (b) Has been enlisted in the Delayed Entry Program (DEP) at least 
ten days prior to his scheduled induction date; or
    (c) Has been transferred to a reserve component of the Army, Navy, 
Air Force, Marine Corps or Coast Guard after a period of extended active 
duty, which was not for training only.



Sec.  1630.15  Class 1-H: Registrant not subject to processing for
induction.

    In Class 1-H shall be placed any registrant who is not eligible for 
Class 1-A and is not currently subject to processing for induction.



Sec.  1630.16  Class 1-O: Conscientious objector to all military service.

    (a) Any registrant whose acceptability for military service has been 
satisfactorily determined and who, in accord with part 1636 of this 
chapter, has been found, by reason of religious, ethical, or moral 
belief, to be conscientiously opposed to participation in both combatant 
and noncombatant training and service in the Armed Forces shall be 
classified in Class 1-O.
    (b) Upon the written request of the registrant filed with his claim 
for classification in Class 1-O, the local board will consider his claim 
for classification in Class 1-O before he is examined. If the local 
board determines that the registrant would qualify for Class 1-O if he 
were acceptable for military service, it will delay such classification 
until he is found acceptable for military service. Upon the written 
request of such registrant, he will be deemed acceptable for military 
service without examination only for the purpose of paragraph (a) of 
this section.

[52 FR 8891, Mar. 20, 1987; 52 FR 12641, Apr. 17, 1987]



Sec.  1630.17  Class 1-O-S: Conscientious objector to all military
service (separated).

    Any registrant who has been separated from the Armed Forces 
(including their reserve components) by reason of conscientious 
objection to participation in both combatant and noncombatant training 
and service in the Armed Forces shall be classified in Class 1-O-S 
unless his period of military service qualifies him for Class 4-A. A 
registrant in Class 1-O-S will be required to serve the remainder of his 
obligation under the Military Selective Service Act in Alternative 
Service.

[52 FR 8891, Mar. 20, 1987]



Sec.  1630.18  Class 1-W: Conscientious objector ordered to perform
alternative service.

    In Class 1-W shall be placed any registrant who has been ordered to 
perform alternative service contributing to the mainenance of the 
national health, safety, or interest.

[52 FR 24456, July 1, 1987]

[[Page 211]]



Sec.  1630.26  Class 2-D: Registrant deferred because of study preparing
for the ministry.

    In accord with part 1639 of this chapter any registrant shall be 
placed in Class 2-D who has requested such deferment and:
    (a) Who is preparing for the ministry under the direction of a 
recognized church or religious organization; and
    (b) Who is satisfactorily pursuing a full-time course of instruction 
required for entrance into a recognized theological or divinity school 
in which he has been pre-enrolled; or
    (c) Who is satisfactorily pursuing a full-time course of instruction 
in or at the direction of a recognized theological or divinity school; 
or
    (d) Who having completed theological or divinity school is a student 
in a full-time graduate program or is a full-time intern. The 
registrant's studies must be related to and lead to entry into service 
as a regular or duly ordained minister of religion, and satisfactory 
progress in these studies as required by the school in which the 
registrant is enrolled must be maintained for continued eligibility for 
the deferment.



Sec.  1630.30  Class 3-A: Registrant deferred because of hardship to
dependents.

    (a) In accord with part 1642 of this chapter any registrant shall be 
classified in Class 3-A:
    (1) Whose induction would result in extreme hardships to his wife 
when she alone is dependent upon him for support; or
    (2) Whose deferment is advisable because his child(ren), parent(s), 
grrandparent(s), brother(s), or sister(s) is dependent upon him for 
support; or
    (3) Whose deferment is advisable because his wife and his 
child(ren), parent(s), grandparent(s), brother(s), or sister(s) are 
dependent upon him for support.
    (b) The classification of each registrant in Class 3-A will not be 
granted for a period longer than 365 days.

[52 FR 24456, July 1, 1987]



Sec.  1630.31  Class 3-A-S: Registrant deferred because of hardship to
dependents (separated).

    Any registrant who has been separated from active military service 
by reason of dependency or hardship shall be placed in Class 3-A-S 
unless his period of military service qualifies him for Class 4-A or 1-
D-E. No registrant shall be retained in Class 3-A-S for more than six 
months.

[52 FR 24456, July 1, 1987]



Sec.  1630.40  Class 4-A: Registrant who has completed military service.

    (a) In Class 4-A shall be placed any registrant other than a 
registrant eligible for classification in Class 1-C, 1-D-D, or 1-D-E who 
is within any of the following categories:
    (1) A registrant who was discharged or transferred to a reserve 
component of the Armed Forces for the convenience of the Government 
after having served honorably on active duty for a period of not less 
than six months in the Army, the Navy, the Air Force, the Marine Corps, 
or the Coast Guard; or
    (2) A registrant who has served honorably on active duty for a 
period of not less than one year in the Army, the Navy, the Air Force, 
the Marine Corps, or the Coast Guard; or
    (3) A registrant who has served on active duty for a period of not 
less than twenty-four months as a commissioned officer in the National 
Oceanic and Atmospheric Administration or the Public Health Service, 
provided that such period of active duty in the Public Health Service as 
a commissioned Reserve Officer shall have been performed by the 
registrant while assigned to staff any of the various offices and 
bureaus of the Public Health Service including the National Institutes 
of Health, or while assigned to the Coast Guard, or the Bureau of 
Prisons of the Department of Justice, Environmental Protection Agency, 
or the National Oceanic and Atmospheric Administration, or who are 
assigned to assist Indian tribes, groups, bands or communities pursuant 
to the Act of August 5, 1954 (68 Stat. 674), as amended;
    (4) [Reserved]
    (5) A registrant who has completed six years of satisfactory service 
as a member of one or more of the Armed

[[Page 212]]

Forces including the Reserve components thereof.
    (b) For the purpose of computation of periods of active duty 
referred to in paragraphs (a) (1), (2), or (3) of this section, no 
credit shall be allowed for:
    (1) Periods of active duty training performed as a member of a 
reserve component pursuant to an order or call to active duty solely for 
training purposes; or
    (2) Periods of active duty in which the service consisted solely of 
training under the Army specialized training program, the Army Air Force 
college training program, or any similar program under the jurisdiction 
of the Navy, Marine Corps, or Coast Guard; or
    (3) Periods of active duty as a cadet at the United States Military 
Academy, United States Air Force Academy, or United States Coast Guard 
Academy, or as a midshipman at the United States Naval Academy, or in a 
preparatory school after nomination as a principal, alternate, or 
candidate for admission to any such academies; or
    (4) Periods of active duty in any of the Armed Forces while being 
processed for entry into or separation from any educational program or 
institute referred to in paragraph (b) (2) or (3) of this section; or
    (5) Periods of active duty of members of the Reserve of the Public 
Health Service other than when assigned to staff any of the various 
offices and bureaus of the Public Health Service, including the National 
Institute of Health, or the Coast Guard or the Bureau of Prisons of the 
Department of Justice, Environmental Protection Agency, or the 
Environmental Science Services Administration, or who are assigned to 
assist Indian tribes, groups, bands, communities pursuant to the Act of 
August 5, 1954 (68 Stat. 674), as amended.

[47 FR 4651, Feb. 1, 1982, as amended at 52 FR 24456, July 1, 1987]



Sec.  1630.41  Class 4-B: Official deferred by law.

    In Class 4-B shall be placed any registrant who is the Vice 
President of the United States, a governor of a State, Territory or 
possession, or any other official chosen by the voters of the entire 
State, Territory or Possession; a member of a legislative body of the 
United States or of a State, Territory or Possession; a judge of a court 
of record of the United States or of a State, Territory or Possession, 
or the District of Columbia.



Sec.  1630.42  Class 4-C: Alien or dual national.

    In Class 4-C shall be placed any registrant who:
    (a) Establishes that he is a national of the United States and of a 
country with which the United States has a treaty or agreement that 
provides that such person is exempt from liability for military service 
in the United States.
    (b) Is an alien and who has departed from the United States prior to 
being issued an order to report for induction or alternative service 
that has not been canceled. If any registrant who is classified in Class 
4-C pursuant to this paragraph returns to the United States he shall be 
classified anew.
    (c) Is an alien and who has registered at a time when he was 
required by the Selective Service Law to present himself for and submit 
to registration and thereafter has acquired status within one of the 
groups of persons exempt from registration.
    (d) Is an alien lawfully admitted for permanent residence as defined 
in paragraph (2) of section 101(a) of the Immigration and Nationality 
Act, as amended (66 Stat. 163, 8 U.S.C. 1101), and who by reason of 
occupational status is subject to adjustment to nonimmigrant status 
under paragraph (15)(A), (15)(E), or (15)(G) or section 101(a) but who 
executes a waiver in accordance with section 247(b) of that Act of all 
rights, privileges, exemptions, and immunities which would otherwise 
accrue to him as a result of that occupational status. A registrant 
placed in Class 4-C under the authority of this paragraph shall be 
retained in Class 4-C only for so long as such occupational status 
continues.
    (e) Is an alien and who has not resided in the United States for one 
year, including any period of time before his registration. When such a 
registrant has been within the United States for two or more periods and 
the total of such period equals one year, he shall be deemed to have 
resided in the United

[[Page 213]]

States for one year. In computing the length of such periods, any 
portion of one day shall be counted as a day.



Sec.  1630.43  Class 4-D: Minister of religion.

    In accord with part 1645 of this chapter any registrant shall be 
placed in Class 4-D who is a:
    (a) Duly ordained minister of religion; or
    (b) Regular minister of religion.



Sec.  1630.44  Class 4-F: Registrant not acceptable for military service.

    In Class 4-F shall be placed any registrant who is found by the 
Secretary of Defense, under applicable physical, mental or 
administrative standards, to be not acceptable for service in the Armed 
Forces; except that no such registrant whose further examination or re-
examination is determined by the Secretary of Defense to be justified 
shall be placed in Class 4-F until such further examination has been 
accomplished and such registrant continues to be found not acceptable 
for military service.

[52 FR 24456, July 1, 1987]



Sec.  1630.45  Class 4-G: Registrant exempted from service because of
the death of his parent or sibling while serving in the Armed Forces or
whose parent or sibling is in a captured or missing in action status.

    In Class 4-G shall be placed any registrant who, except during a 
period of war or national emergency declared by Congress, is:
    (a) A surviving son or brother:
    (1) Whose parent or sibling of the whole blood was killed in action 
or died in the line of duty while serving in the Armed Forces of the 
United States after December 31, 1959, or died subsequent to such date 
as a result of injuries received or disease incurred in the line of duty 
during such service; or
    (2) Whose parent or sibling of the whole blood is in a captured or 
missing status as a result of such service in the Armed Forces during 
any period of time; or
    (b) The sole surviving son of a family in which the father or one or 
more siblings were killed in action before January 1, 1960 while serving 
in the Armed Forces of the United States, or died after that date due to 
injuries received or disease incurred in the line of duty during such 
service before Janaury 1, 1960.

[47 FR 4651, Feb. 1, 1982, as amended at 52 FR 24456, July 1, 1987]



Sec.  1630.46  Class 4-T: Treaty alien.

    In Class 4-T shall be placed any registrant who is an alien who 
established that he is exempt from military service under the terms of a 
treaty or international agreement between the United States and the 
country of which he is a national, and who has made application to be 
exempted from liability for training and service in the Armed Forces of 
the United States.



Sec.  1630.47  Class 4-W: Registrant who has completed alternative service
in lieu of induction.

    In Class 4-W shall be placed any registrant who subsequent to being 
ordered to perform alternative service in lieu of induction has been 
released from such service after satisfactorily performing the work for 
a period of 24 months, or has been granted an early release by the 
Director of Selective Service after completing at least 6 months of 
satisfactory service.



Sec.  1630.48  Class 4-A-A: Registrant who has performed military service
for a foreign nation.

    In Class 4-A-A shall be placed any registrant who, while an alien, 
has served on active duty for a period of not less than 12 months in the 
armed forces of a nation determined by the Department of State to be a 
nation with which the United States is associated in mutual defense 
activities and which grants exemptions from training and service in its 
armed forces to citizens of the United States who have served on active 
duty in the Armed Forces of the United States for a period of not less 
than 12 months; Provided: That all information which is submitted to the 
Selective Service System concerning the registrant's service in the 
armed forces of a foreign nation shall be written in the English 
language.

[52 FR 24456, July 1, 1987]

[[Page 214]]



PART 1633_ADMINISTRATION OF CLASSIFICATION--Table of Contents



Sec.
1633.1 Classifying authority.
1633.2 Claim for other than Class 1-A.
1633.3 Submission of claims.
1633.4 Information relating to claims for deferment or exemption.
1633.5 Securing information.
1633.6 Consideration of classes.
1633.7 General principles of classification.
1633.8 Basis of classification.
1633.9 Explanation of classification action.
1633.10 Notification to registrant of classification action.
1633.11 Assignment of registrant to a local board.
1633.12 Reconsideration of classification.

    Authority: Military Selective Service Act, 50 U.S.C. App. 451 et 
seq.; E.O. 11623.

    Source: 47 FR 4654, Feb. 1, 1982, unless otherwise noted.



Sec.  1633.1  Classifying authority.

    The following officials are authorized to classify registrants into 
the indicated classes established by part 1630 of this chapter:
    (a) The Director of Selective Service may in accord with the 
provisions of this chapter classify a registrant into any class for 
which he is eligible except Classes 1-A-0, 1-0, 2-D, 3-A, and 4-D: 
Provided, That, the Director may not reclassify a registrant other than 
a volunteer for induction, into Class 1-A out of another class prior to 
the expiration of the registrant's entitlement to such classification. 
The Director may, before issuing an induction order to a registrant, 
appropriately classify him if the Secretary of Defense has certified him 
to be a member of an armed force or reserve component thereof.
    (b) The National Selective Service Appeal Board may in accord with 
part 1653 of this chapter classify a registrant into any class for which 
he is eligible.
    (c) A district appeal board may in accord with part 1651 of this 
chapter classify a registrant into any class for which he is eligible.
    (d) A local board may in accord with part 1648 of this chapter 
classify a registrant into Class 1-A-0, 1-0, 2-D, 3-A, or 4-D for which 
he is eligible.
    (e) A local board may also classify a registrant into Class 1-C, 1-
D-D, 1-D-E, 1-O-S, 1-W, 3-A-S, 4-A, 4-A-A, 4-B, 4-C, 4-F, 4-G, 4-T or 4-
W for which he is eligible upon request by the registrant for a review 
of a classification denial action under Sec.  1633.1(f). No individual 
shall be classified into Class 4-F unless the Secretary of Defense has 
determined that he is unacceptable for military service.
    (f) Compensated employees of an area office may in accord with Sec.  
1633.2 may classify a registrant into an administrative class for which 
he is eligible. No individual shall be classified into Class 4-F unless 
the Secretary of Defense has determined that he is unacceptable for 
military service.

[47 FR 4654, Feb. 1, 1982, as amended at 52 FR 24456, July 1, 1987]



Sec.  1633.2  Claim for other than Class 1-A.

    (a) Any registrant who has received an order to report for induction 
may, prior to the day he is scheduled to report, submit to the Selective 
Service System a claim that he is eligible to be classified into any 
class other than Class 1-A. The registrant may assert a claim that he is 
eligible for more than one class other than Class 1-A. The registrant 
cannot subsequently file a claim with respect to a class for which he 
was eligible prior to the day he was originally scheduled to report. 
Information and documentation in support of claims for reclassification 
and postponement of induction shall be filed in accordance with 
instructions from the Selective Service System.
    (b) Any registrant who has received an order to report for induction 
that has not been canceled may, at any time before his induction, submit 
a claim that he is eligible to be classified into any class other than 
Class 1-A based upon events over which he has no control that occurred 
on or after the day he was originally scheduled to report for induction.
    (c)(1) Claims will be filed with the area office supporting the 
local board of jurisdiction.
    (2) Claims will be considered by the local board identified in 
paragraph (c)(1) or its supporting area office as prescribed in this 
part.

[[Page 215]]

    (d) The initial determination of claims for all administrative 
classifications are made by area office compensated personnel. After a 
denial of a claim for an administrative classification the registrant 
may request the local board to consider the claim.
    (e) The initial determination of a judgmental classification is made 
by a local board.
    (f) A registrant may request and shall be granted a personal 
appearance whenever a local or appeal board considers his claim for 
reclassification. Personal appearances will be held in accord with parts 
1648, 1651 and 1653 of this chapter.
    (g) A registrant who has filed a claim for classification in Class 
1-A-O or Class 1-0 shall be scheduled for a personal appearance in 
accord with Sec.  1648.4 before his claim is considered.
    (h) If granted, a deferment or exemption supersedes the original 
order to report for induction. When a deferment or exemption expires or 
ends, a new order to report for induction will be issued.

[52 FR 24457, July 1, 1987]



Sec.  1633.3  Submission of claims.

    Except as otherwise expressly provided by the Director, no document 
relating to any registrant's claims or potential claims will be retained 
by the Selective Service System and no file relating to a registrant's 
possible classification status will be established prior to that 
registrant being ordered to report for induction.



Sec.  1633.4  Information relating to claims for deferment or exemption.

    The registrant shall be entitled to present all relevant written 
information which he believes to be necessary to assist the classifying 
authority in determining his proper classification; such information may 
include documents, affidavits, and depositions. The affidavits and 
depositions shall be as concise and brief as possible.



Sec.  1633.5  Securing information.

    The classifying authority is authorized to request and receive 
information whenever such information will assist in determining the 
proper classification of a registrant.



Sec.  1633.6  Consideration of classes.

    Claims of a registrant will be considered in inverse order of the 
listing of the classes below. When grounds are established to place a 
registrant in one or more of the classes listed in the following table, 
the registrant shall be classified in the lowest class for which he is 
determined to be eligible, with Class 1-A-O considered the highest class 
and Class 1-H considered the lowest class, according to the following 
table:

    Class 1-A-O: Conscientious Objector Available for Noncombatant 
Military Service Only.
    Class 1-O: Conscientious Objector to all Military Service.
    Class 1-O-S: Conscientious Objector to all Military Service 
(Separated).
    Class 2-D: Registrant Deferred Because of Study Preparing for the 
Ministry.
    Class 3-A: Registrant Deferred Because of Hardship to Dependents.
    Class 3-A-S: Registrant Deferred Because of Hardship to Dependents 
(Separated).
    Class 4-D: Minister of Religion.
    Class 1-D-D: Deferment for Certain Members of a Reserve Component or 
Student Taking Military Training.
    Class 4-B: Official Deferred by Law.
    Class 4-C: Alien or Dual National.
    Class 4-G: Registrant Exempted From Service Because of the Death of 
his Parent or Sibling While Serving in the Armed Forces or Whose Parent 
or Sibling is in a Captured or Missing in Action Status.
    Class 4-A: Registrant Who Has Completed Military Service.
    Class 4-A-A: Registrant Who Has Performed Military Service For a 
Foreign Nation.
    Class 4-W: Registrant Who Has Completed Alternative Service in Lieu 
of Induction.
    Class 1-D-E: Exemption of Certain Members of a Reserve Component or 
Student Taking Military Training.
    Class 1-C: Member of the Armed Forces of the United States, the 
National Oceanic and Atmospheric Administration, or the Public Health 
Service.
    Class 1-W: Conscientious Objector Ordered to Perform Alternative 
Service in Lieu of Induction.
    Class 4-T: Treaty Alien.
    Class 4-F-: Registrant Not Acceptable for Military Service.
    Class 1-H: Registrant Not Subject to Processing for Induction.

[52 FR 24457, July 1, 1987]

[[Page 216]]



Sec.  1633.7  General principles of classification.

    (a) Each classified registrant in a selection group is available for 
unrestricted military service until his eligibility for noncombatant 
service, alternative service, or deferment or exemption from service has 
been determined by a classifying authority.
    (b) The classifying authority in considering a registrant's claim 
for classification shall not discriminate for or against him because of 
his race, creed, color or ethnic background and shall not discriminate 
for or against him because of his membership or activity in any labor, 
political, religious, or other organization.

[47 FR 4654, Feb. 1, 1982, as amended at 52 FR 24457, July 1, 1987]



Sec.  1633.8  Basis of classification.

    The registrant's classification shall be determined on the basis of 
the official forms of the Selective Service System and other written 
information in his file, oral statements, if made by the registrant at 
his personal appearance before the board, and oral statements, if made 
by the registrant's witnesses at his personal appearance. Any 
information in any written summary of the oral information presented at 
a registrant's personal appearance that was prepared by an official of 
the Selective Service System or by the registrant will be placed in the 
registrant's file. The file shall be subject to review by the registrant 
during normal business hours.



Sec.  1633.9  Explanation of classification action.

    Whenever a classifying authority denies the request of a registrant 
for classification into a particular class or classifies a registrant in 
a class other than that which he requested, it shall record the reasons 
therefor in the registrant's file.



Sec.  1633.10  Notification to registrant of classification action.

    The Director will notify the registrant of any classification 
action.

[52 FR 24457, July 1, 1987]



Sec.  1633.11  Assignment of registrant to a local board.

    (a) A registrant is assigned to the local board that has 
jurisdiction over his permanent address that he last furnished the 
Selective Service System prior to the issuance of his induction order.
    (b) The Director may change a registrant's assignment when he deems 
it necessary to assure the fair and equitable administration of the 
Selective Service Law.

[52 FR 24457, July 1, 1987]



Sec.  1633.12  Reconsideration of classification.

    No classification is permanent. The Director of Selective Service 
may order the reconsideration of any classification action when the 
facts, upon which the classification is based, change or when he finds 
that the registrant made a misrepresentation of any material fact 
related to his claim for classification. No action may be taken under 
the preceding sentence of this paragraph unless the registrant is 
notified in writing of the impending action and the reasons thereof, and 
is given an opportunity to respond in writing within 10 days of the 
mailing of the notice. If the Director orders a reconsideration of a 
classification in accord with this paragraph, the claim will be treated 
in all respects as if it were the original claim for that 
classification.



PART 1636_CLASSIFICATION OF CONSCIENTIOUS OBJECTORS--Table of Contents



Sec.
1636.1 Purpose; definitions.
1636.2 The claim of conscientious objection.
1636.3 Basis for classification in Class 1-A-0.
1636.4 Basis for classification in Class 1-0.
1636.5 Exclusion from Class 1-A-0 and Class 1-0.
1636.6 Analysis of belief.
1636.7 Impartiality.
1636.8 Considerations relevant to granting or denying a claim for 
          classification as a conscientious objector.
1636.9 Types of decisions.
1636.10 Statement of reasons for denial.

    Authority: Military Selective Service Act, 50 U.S.C. App. 451 et 
seq.; E.O. 11623.

[[Page 217]]


    Source: 47 FR 4655, Feb. 1, 1982, unless otherwise noted.



Sec.  1636.1  Purpose; definitions.

    (a) The provisions of this part govern the consideration of a claim 
by a registrant for classification in Class 1-A-0 (Sec.  1630.11 of this 
chapter), or Class 1-0 (Sec.  1630.17 of this chapter).
    (b) The definitions of this paragraph shall apply in the 
interpretation of the provisions of this part:
    (1) Crystallization of a Registrant's Beliefs. The registrant's 
becoming conscious of the fact that he is opposed to participation in 
war in any form.
    (2) Noncombatant Service. Service in any unit of the Armed Forces 
which is unarmed at all times; any other military assignment not 
requiring the bearing of arms or the use of arms in combat or training 
in the use of arms.
    (3) Noncombatant Training. Any training which is not concerned with 
the study, use, or handling of arms or other implements of warfare 
designed to destroy human life.



Sec.  1636.2  The claim of conscientious objection.

    A claim to classification in Class 1-A-0 or Class 1-0, must be made 
by the registrant in writing. Claims and documents in support of claims 
may only be submitted after the registrant has received an order to 
report for induction or after the Director has made a specific request 
for submission of such documents. All claims or documents in support of 
claims received prior to a registrant being ordered to report for 
induction or prior to the Director's specific request for such 
documentation will be returned to the registrant and no file or record 
of such submission will be established.



Sec.  1636.3  Basis for classification in Class 1-A-0.

    (a) A registrant must be conscientiously opposed to participation in 
combatant training and service in the Armed Forces.
    (b) A registrant's objection may be founded on religious training 
and belief; it may be based on strictly religious beliefs, or on 
personal beliefs that are purely ethical or moral in source or content 
and occupy in the life of a registrant a place parallel to that filled 
by belief in a Supreme Being for those holding more traditionally 
religious views.
    (c) A registrant's objection must be sincere.

[47 FR 4655, Feb. 1, 1982, as amended at 52 FR 24457, July 1, 1987]



Sec.  1636.4  Basis for classification in Class 1-0.

    (a) A registrant must be conscientiously opposed to participation in 
war in any form and conscientiously opposed to participation in both 
combatant and noncombatant training and service in the Armed Forces.
    (b) A registrant's objection may be founded on religious training 
and belief; it may be based on strictly religious beliefs, or on 
personal beliefs that are purely ethical or moral in source or centent 
and occupy in the life of a registrant a place parallel to that filled 
by belief in a Supreme Being for those holding more traditionally 
religious views.
    (c) A registrant's objection must be sincere.



Sec.  1636.5  Exclusion from Class 1-A-0 and Class 1-0.

    A registrant shall be excluded from Class 1-A-0 or Class 1-0:
    (a) Who asserts beliefs which are of a religious, moral or ethical 
nature, but who is found not to be sincere in his assertions; or
    (b) Whose stated objection to participation in war does not rest at 
all upon moral, ethical, or religious principle, but instead rests 
solely upon considerations of policy, pragmatism, expediency, or his own 
self-interest or well-being; or
    (c) Whose objection to participation in war is directed against a 
particular war rather than against war in any form (a selective 
objection). If a registrant objects to war in any form, but also 
believes in a theocratic, spiritual war between the forces of good and 
evil, he may not by reason of that belief alone be considered a 
selective conscientious objector.



Sec.  1636.6  Analysis of belief.

    (a) A registrant claiming conscientious objection is not required to 
be a

[[Page 218]]

member of a peace church or any other church, religious organization, or 
religious sect to qualify for a 1-A-0 or 1-0 classification; nor is it 
necessary that he be affiliated with any particular group opposed to 
participation in war in any form.
    (b) The registrant who identifies his beliefs with those of a 
traditional church or religious organization must show that he basically 
adheres to beliefs of that church or religious organization whether or 
not he is actually affiliated with the institution whose teachings he 
claims as the basis of his conscientious objection. He need not adhere 
to all beliefs of that church or religious organization.
    (c) A registrant whose beliefs are not religious in the traditional 
sense, but are based primarily on moral or ethical principle should hold 
such beliefs with the same strength or conviction as the belief in a 
Supreme Being is held by a person who is religious in the traditional 
sense. Beliefs may be mixed; they may be a combination of traditional 
religious beliefs and nontraditional religious, moral or ethical 
beliefs. The registrant's beliefs must play a significant role in his 
life but should be evaluated only insofar as they pertain to his stated 
objection to his participation in war.
    (d) Where the registrant is or has been a member of a church, 
religious organization, or religious sect, and where his claim of a 
conscientious objection is related to such membership, the board may 
properly inquire as to the registrant's membership, the religious 
teachings of the church, religious organization, or religious sect, and 
the registrant's religious activity, insofar as each relates to his 
objection to participation in war. The fact that the registrant may 
disagree with or not subscribe to some of the tenets of his church or 
religious sect does not necessarily discredit his claim.
    (e)(1) The history of the process by which the registrant acquired 
his beliefs, whether founded on religious, moral, or ethical principle 
is relevant to the determination whether his stated opposition to 
participation in war in any form is sincere.
    (2) The registrant must demonstrate that his religious, ethical, or 
moral convictions were acquired through training, study, contemplation, 
or other activity comparable to the processes by which traditional 
religious convictions are formulated. He must show that these religious, 
moral, or ethical convictions, once acquired, have directed his life in 
the way traditional religious convictions of equal strength, depth, and 
duration have directed the lives of those whose beliefs are clearly 
founded in traditional religious conviction.
    (f) The registrant need not use formal or traditional language in 
describing the religious, moral, or ethical nature of his beliefs. Board 
members are not free to reject beliefs because they find them 
incomprehensible or inconsistent with their own beliefs.
    (g) Conscientious objection to participation in war in any form, if 
based on moral, ethical, or religious beliefs, may not be deemed 
disqualifying simply because those beliefs may influence the registrant 
concerning the Nation's domestic or foreign policy.

[47 FR 4655, Feb. 1, 1982, as amended at 52 FR 24457, July 1, 1987]



Sec.  1636.7  Impartiality.

    Boards may not give preferential treatment to one religion over 
another, and all beliefs whether of a religious, ethical, or moral 
nature are to be given equal consideration.



Sec.  1636.8  Considerations relevant to granting or denying a claim for
classification as a conscientious objector.

    (a) After the registrant has submitted a claim for classification as 
a conscientious objector and his file is complete, a determination of 
his sincerity will be made based on:
    (1) All documents in the registrant's file folder; and
    (2) The oral statements of the registrant at his personal 
appearance(s) before the local and/or appeal board; and
    (3) The oral statements of the registrant's witnesses, if any, at 
his personal appearance(s) before the local board; and
    (4) The registrant's general demeanor during his personal 
appearance(s).

[[Page 219]]

    (b) The registrant's stated convictions should be a matter of 
conscience.
    (c) The board should be convinced that the registrant's personal 
history since the crystallization of his conscientious objection is not 
inconsistent with his claim and demonstrates that the registrant's 
objection is not solely a matter of expediency. A recent crystallization 
of beliefs does not in itself indicate expediency.
    (d) The information presented by the registrant should reflect a 
pattern of behavior in response to war and weapons which is consistent 
with his stated beliefs. Instances of violent acts or conviction for 
crimes of violence, or employment in the development or manufacturing of 
weapons of war, if the claim is based upon or supported by a life of 
nonviolence, may be indicative of inconsistent conduct.
    (e) The development of a registrant's opposition to war in any form 
may bear on his sincerity. If the registrant claims a recent 
crystallization of beliefs, his claim should be supported by evidence of 
a religious or educational experience, a traumatic event, an historical 
occasion, or some other special situation which explains when and how 
his objection to participation in war crystallized.
    (f) In the event that a registrant has previously worked in the 
development of or manufacturing of weapons of war or has served as a 
member of a military reserve unit, it should be determined whether such 
activity was prior to the stated crystallization of the registrant's 
conscientious objector beliefs. Inconsistent conduct prior to the actual 
crystallization of conscientious objector beliefs is not necessarily 
indicative of insincerity. But, inconsistent conduct subsequent to such 
crystallization may indicate that registrant's stated objection is not 
sincere.
    (g) A registrant's behavior during his personal appearance before a 
board may be relevant to the sincerity of his claim.
    (1) Evasive answers to questions by board members or the use of 
hostile, belligerent, or threatening words or actions, for example, may 
in proper circumstances be deemed inconsistent with a claim in which the 
registrant bases his objection on a belief in nonviolence.
    (2) Care should be exercised that nervous, frightened, or 
apprehensive behavior at the personal appearance is not misconstrued as 
a reflection of insincerity.
    (h) Oral response to questions posed by board members should be 
consistent with the written statements of the registrant and should 
generally substantiate the submitted information in the registrant's 
file folder; any inconsistent material should be explained by the 
registrant. It is important to recognize that the registrant need not be 
eloquent in his answers. But, a clear inconsistency between the 
registrant's oral remarks at his personal appearance and his written 
submission to the board may be adequate grounds, if not satisfactorily 
explained, for concluding that his claim is insincere.
    (i) The registrant may submit letters of reference and other 
supporting statements of friends, relatives and acquaintances to 
corroborate the sincerity of his claim, although such supplemental 
documentation is not essential to approval of his claim. A finding of 
insincerity based on these letters or supporting statements must be 
carefully explained in the board's decision, specific mention being made 
of the particular material relied upon for denial of classification in 
Class 1-A-0 or Class 1-0.

[47 FR 4655, Feb. 1, 1982, as amended at 52 FR 24457, July 1, 1987; 60 
FR 13908, Mar. 15, 1995]



Sec.  1636.9  Types of decisions.

    The following are the types of decisions which may be made by a 
board when a claim for classification in Class 1-A-0 or Class 1-0 has 
been considered.
    (a) Decision to grant a claim for classification in Class 1-A-0 or 
Class 1-0, as requested, based on a determination that the truth or 
sincerity of the registrant's claim is not refuted by any information 
contained in the registrant's file or obtained during his personal 
appearance.
    (b) Decision to deny a claim for classification in Class 1-A-0 or 
Class 1-0 based on all information before the board, and a finding that 
such information fails to meet the tests specified in

[[Page 220]]

Sec.  1636.3 or 1636.4 of this part. If supported by information 
contained in the registrant's file or obtained during his personal 
appearance the board may find that the facts presented by the registrant 
in support of his claim are untrue.

[47 FR 4655, Feb. 1, 1982, as amended at 53 FR 25328, July 6, 1988]



Sec.  1636.10  Statement of reasons for denial.

    (a) Denial of a conscientious objector claim by a board must be 
accompanied by a statement specifying the reason(s) for such denial as 
prescribed in Sec. Sec.  1633.9, 1651.4 and 1653.3 of this chapter. The 
reason(s) must, in turn, be supported by evidence in the registrant's 
file.
    (b) If a board's denial is based on statements by the registrant or 
on a determination that the claim is inconsistent or insincere, this 
should be fully explained in the statement of reasons accompanying the 
denial.



PART 1639_CLASSIFICATION OF REGISTRANTS PREPARING FOR THE MINISTRY-
-Table of Contents



Sec.
1639.1 Purpose; definitions.
1639.2 The claim for Class 2-D.
1639.3 Basis for classification in Class 2-D.
1639.4 Exclusion from Class 2-D.
1639.5 Impartiality.
1639.6 Considerations relevant to granting or denying claims for Class 
          2-D.
1639.7 Types of decisions.
1639.8 Statement of reason for denial.

    Authority: Military Selective Service Act, 50 U.S.C. App. 451 et 
seq.; E.O. 11623.

    Source: 47 FR 4657, Feb. 1, 1982, unless otherwise noted.



Sec.  1639.1  Purpose; definitions.

    (a) The provisions of this part shall govern the consideration of a 
claim by a registrant for classification in Class 2-D (Sec.  1630.26 of 
this chapter).
    (b) The definitions of this paragraph shall apply to the 
interpretation of the provisions of this part:
    (1) The term ministry refers to the vocation of a duly ordained 
minister of religion or regular minister of religion as defined in part 
1645 of this chapter.
    (2) The term recognized church or religious organization refers to a 
church or religious organization established on the basis of a community 
of faith and belief, doctrines and practices of a religious character, 
and which engages primarily in religious activities.
    (3) The term recognized theological or divinity school refers to a 
theological or divinity school whose graduates are acceptable for 
ministerial duties either as an ordained or regular minister by the 
church or religious organization sponsoring a registrant as a 
ministerial student.
    (4) The term graduate program refers to a program in which the 
registrant's studies are officially approved by his church or religious 
organization for entry into service as a regular or duly ordained 
minister of religion.
    (5) The term full-time intern applies to a program that must run 
simultaneous with or immediately follow the completion of the 
theological or divinity training and is required by a recognized church 
or religious organization for entry into the ministry.
    (6) The term satisfactorily pursuing a full-time course of 
instruction means maintaining a satisfactory academic record as 
determined by the institution while receiving full-time instructions in 
a structured learning situation. A full-time course of instruction does 
not include instructions received pursuant to a mail order program.



Sec.  1639.2  The claim for Class 2-D.

    A claim to classification in Class 2-D must be made by the 
registrant in writing, such document being placed in his file folder.



Sec.  1639.3  Basis for classification in Class 2-D.

    (a) In Class 2-D shall be placed any registrant who is preparing for 
the ministry under the direction of a recognized church or religious 
organization; and
    (1) Who is satisfactorily pursuing a full-time course of instruction 
required for entrance into a recognized theological or divinity school 
in which he has been pre-enrolled or accepted for admission; or
    (2) Who is satisfactorily pursuing a full-time course of instruction 
in a recognized theological or divinity school; or

[[Page 221]]

    (3) Who, having completed theological or divinity school, is a 
student in a full-time graduate program or is a full-time intern, and 
whose studies are related to and lead toward entry into service as a 
regular or duly ordained minister of religion. Satisfactory progress in 
these studies as determined by the school in which the registrant is 
enrolled, must be maintained for qualification for the deferment.
    (b) The registrant's classification shall be determined on the basis 
of the written information in his file folder, oral statements, if made 
by the registrant at his personal appearance before a board, and oral 
statements, if made by the registrant's witnesses at his personal 
appearance.

[47 FR 4657, Feb. 1, 1982, as amended at 52 FR 24458, July 1, 1987]



Sec.  1639.4  Exclusion from Class 2-D.

    A registrant shall be excluded from Class 2-D when:
    (a) He fails to establish that the theological or divinity school is 
a recognized school; or
    (b) He fails to establish that the church or religious organization 
which is sponsoring him is so recognized; or
    (c) He ceases to be a full-time student; or
    (d) He fails to maintain satisfactory academic progress.



Sec.  1639.5  Impartiality.

    Boards may not give precedence to any religious organization or 
school over another, and all are to be given equal consideration.



Sec.  1639.6  Considerations relevant to granting or denying claims for
Class 2-D.

    (a) The registrant's claim for Class 2-D must include the following:
    (1) A statement from a church or religious organization that the 
registrant is preparing for the ministry under its direction; and
    (2) Current certification to the effect that the registrant is 
satisfactorily pursuing a full-time course of instruction required for 
entrance into a recognized theological or divinity school in which he 
has been pre-enrolled; or
    (3) Current certification to the effect that the registrant is 
satisfactorily pursuing a full-time course of instruction in a 
recognized theological or divinity school; or
    (4) Current certification to the effect that the registrant, having 
completed theological or divinity school, is satisfactorily pursuing a 
full-time graduate program or is a full-time intern, whose studies are 
related to and lead toward entry into service as a regular or duly 
ordained minister of religion.
    (b) A board may require the registrant to obtain from the church, 
religious organization, or school detailed information in order to 
determine whether or not the theological or divinity school is in fact a 
recognized school or whether or not the church or religious organization 
which is sponsoring the registrant is recognized.

[47 FR 4657, Feb. 1, 1982, as amended at 52 FR 24458, July 1, 1987]



Sec.  1639.7  Types of decisions.

    (a) A board may grant a classification into Class 2-D until the end 
of the academic school year.
    (b) Upon the expiration of a 2-D classification, a board shall 
review any request for extension of the classification in the same 
manner as the first request for Class 2-D. This section does not relieve 
a registrant of his duties under Sec.  1621.1 of this chapter.
    (c) The board may deny a claim for Class 2-D when the evidence fails 
to merit any of the criteria established in this section.

[47 FR 4657, Feb. 1, 1982, as amended at 52 FR 24458, July 1, 1987]



Sec.  1639.8  Statement of reason for denial.

    (a) Denial of a claim for a ministerial student deferment by a board 
must be accompanied by a statement specifying the reason(s) for such 
denial as prescribed in Sec. Sec.  1633.9, 1651.4 and 1653.3 of this 
chapter. The reason(s) must in turn, be supported by evidence in the 
registrant's file.
    (b) If a board's denial is based on statements by the registrant or 
his witnesses at a personal appearance, this must be fully explained in 
the statement of reasons accompanying the denial.

[[Page 222]]



PART 1642_CLASSIFICATION OF REGISTRANTS DEFERRED BECAUSE OF HARDSHIP TO
DEPENDENTS--Table of Contents



Sec.
1642.1 Purpose; definitions.
1642.2 The claim for classification in Class 3-A.
1642.3 Basis for classification in Class 3-A.
1642.4 Ineligibility for Class 3-A.
1642.5 Impartiality.
1642.6 Considerations relevant to granting or denying claims for Class 
          3-A.
1642.7 Types of decisions.
1642.8 Statement of reason for denial.

    Authority: Military Selective Service Act, 50 U.S.C. App. 451 et 
seq. E.O. 11623.

    Source: 47 FR 4658, Feb. 1, 1982, unless otherwise noted.



Sec.  1642.1  Purpose; definitions.

    (a) The provisions of this part govern the consideration of a claim 
by a registrant for classification in Class 3-A (Sec.  1630.30 of this 
chapter).
    (b) The following definitions apply to the interpretation of the 
provisions of this part.
    (1) The term dependent shall apply to the wife, child, parent, 
grandparent, brother or sister of a registrant.
    (2) The term child includes an unborn child, a stepchild, a foster 
child or a legally adopted child, who is legitimate or illegitimate, but 
shall not include any person 18 years of age or older unless he or she 
is physically or mentally handicapped.
    (3) The term parent shall include any person who has stood in the 
place of a parent to the registrant for at least 5 years preceding the 
18th anniversary of the registrant's date of birth and is now supported 
in good faith by the registrant.
    (4) The term brother or sister shall include a person having one or 
both parents in common with the registrant, who is either under 18 years 
of age or is physically or mentally handicapped.
    (5) The term support includes but is not limited to financial 
assistance.
    (6) Hardship is the unreasonable deprivation of a dependent of the 
financial assistance, personal care or companionship furnished by the 
registrant when that deprivation would be caused by the registrant's 
induction.



Sec.  1642.2  The claim for classification in Class 3-A.

    A claim for classification in Class 3-A must be made by the 
registrant in writing. Prior to the consideration of the claim, the 
registrant shall submit supporting documentation, such documents being 
placed in his file folder.



Sec.  1642.3  Basis for classification in Class 3-A.

    (a) In Class 3-A shall be placed any registrant:
    (1) Whose induction would result in extreme hardship to his wife 
when she alone is dependent upon him for support; or
    (2) Whose deferment is advisable because his child(ren), parent(s), 
grandparent(s), brother(s), or sister(s) is dependent upon him for 
support; or
    (3) Whose deferment is advisable because his wife and child(ren), 
parent(s), grandparent(s), brother(s), or sister(s) are dependent upon 
him for support.
    (b) In its consideration of a claim by a registrant for 
classification in Class 3-A, the board will first determine whether the 
registrant's wife, child(ren), parent(s), grandparent(s), brother(s), or 
sister(s) is dependent upon the registrant for support. Support may be 
financial assistance, personal care or companionship. If financial 
assistance is the basis of support, the registrant's contribution must 
be a substantial portion of the necessities of the dependent. Under most 
circumstances 40 to 50% of the cost of the necessities may be considered 
substantial. If that determination is affirmative, the board will 
determine whether the registrant's induction would result in extreme 
hardship to his wife when she is the only dependent, or whether the 
registrant's deferment is advisable because his child(ren), parent(s), 
grandparent(s), brother(s), or sister(s) is dependent upon him for 
support, or because his wife and his child(ren), parent(s), 
grandparent(s), brother(s), or sister(s) are dependent upon him for 
support. A deferment is advisable whenever the registrant's induction 
would result in hardship to his dependents.
    (c) The registrant's classification shall be determined on the basis 
of the written information in his file, oral

[[Page 223]]

statements, if made by the registrant at his personal appearance before 
a board, and oral statements, if made by the registrant's witnesses at 
his personal appearances.

[52 FR 24458, July 1, 1987]



Sec.  1642.4  Ineligibility for Class 3-A.

    (a) A registrant is ineligible for Class 3-A when:
    (1) He assumed an obligation to his dependents specifically for the 
purpose of evading training and service; or
    (2) He acquired excessive financial obligations primarily to 
establish his dependency claim; or
    (3) His dependents would not be deprived of reasonable support if 
the registrant is inducted; or
    (4) There are other persons willing and able to assume the support 
of his dependents; or
    (5) The dependents would suffer only normal anguish of separation 
from the registrant if he is inducted; or
    (6) The hardship to a dependent is based solely on financial 
conditions and can be removed by payment and allowances which are 
payable by the United States to the dependents of persons who are 
serving in the Armed Forces; or
    (7) The hardship to the dependent is based upon considerations that 
can be eliminated by payments and allowances which are payable by the 
United States to the dependents of persons who are serving in the Armed 
Forces.
    (b) [Reserved]

[47 FR 4658, Feb. 1, 1982, as amended at 52 FR 24458, July 1, 1987]



Sec.  1642.5  Impartiality.

    (a) Boards shall consider all questions in a claim for 
classification in Class 3-A with equal consideration of race, creed, 
color, sex or ethnic background.
    (b) Boards may not give precedence to one type of dependency 
hardship over another.

[52 FR 24458, July 1, 1987]



Sec.  1642.6  Considerations relevant to granting or denying claims for
Class 3-A.

    (a) The registrant's claim for Class 3-A must include the following, 
with documentation, as applicable:
    (1) Registrant's and his dependent's marital status;
    (2) Physician's statement concerning any dependent who is physically 
or mentally handicapped;
    (3) Employment status of registrant and his dependents; and
    (b) Each case must be weighed carefully and decided on its own 
merits.



Sec.  1642.7  Types of decisions.

    (a) A board may grant a classification into Class 3-A for such 
period of time it deems appropriate but in no event the period exceed 
one year.
    (b) Upon the expiration of a 3-A classification a board shall review 
any request for an extension of the classification as if it were the 
first request for that classification, and the fact that the registrant 
was placed in Class 3-A under apparently similar circumstances will not 
be a factor in the decision of the board. This section does not relieve 
a registrant from his duties under Sec.  1621.1 of this chapter.
    (c) [Reserved]
    (d) A board shall deny a claim for Class 3-A when the evidence fails 
to meet the criteria established in this part.

[47 FR 4658, Feb. 1, 1982, as amended at 52 FR 24458, July 1, 1987]



Sec.  1642.8  Statement of reason for denial.

    (a) Denial of a claim for Class 3-A by a board must be accompanied 
by a statement specifying the reason(s) for such denial as prescribed in 
Sec. Sec.  1633.9, 1651.4 and 1653.3 of this chapter. The reason must in 
turn, be supported by evidence in the registrant's file.
    (b) If a board's denial is based on statements by the registrant or 
his witnesses at a personal appearance, this must be fully explained in 
the statement of reasons accompanying the denial.

[[Page 224]]



PART 1645_CLASSIFICATION OF MINISTERS OF RELIGION--Table of Contents



Sec.
1645.1 Purpose; definitions.
1645.2 The claim for minister of religion classification.
1645.3 Basis for classification in Class 4-D.
1645.4 Exclusion from Class 4-D.
1645.5 Impartiality.
1645.6 Considerations relevant to granting or denying a claim for Class 
          4-D.
1645.7 Evaluation of claim.
1645.8 Types of decisions.
1645.9 Statement of reason for denial.

    Authority: Military Selective Service Act, 50 U.S.C. App. 451 et 
seq.; E.O. 11623.

    Source: 47 FR 4660, Feb. 1, 1982, unless otherwise noted.



Sec.  1645.1  Purpose; definitions.

    (a) The provisions of this part govern the consideration of a claim 
by a registrant for classification in Class 4-D (Sec.  1630.43 of this 
chapter).
    (b) The definitions of this paragraph shall apply in the 
interpretation of the provisions of this part:
    (1) The term duly ordained minister of religion means a person:
    (i) Who has been ordained in accordance with the ceremonial ritual 
or discipline of a church, religious sect, or organization established 
on the basis of a community of faith and belief, doctrines and practices 
of a religious character; and
    (ii) Who preaches and teaches the doctrines of such church, sect, or 
organization; and
    (iii) Who administers the rites and ceremonies thereof in public 
worship; and
    (iv) Who, as his regular and customary vocation, preaches and 
teaches the principles of religion; and
    (v) Who administers the ordinances of public worship as embodied in 
the creed or principles of such church, sect, or organization.
    (2) The term regular minister of religion means one who as his 
customary vocation preaches and teaches the principles of religion of a 
church, a religious sect, or organization of which he is a member, 
without having been formally ordained as a minister of religion, and who 
is recognized by such church, sect, or organization as a regular 
minister.
    (3) The term regular or duly ordained minister of religion does not 
include:
    (i) A person who irregularly or incidentally preaches and teaches 
the principles of religion of a church, religious sect, or organization; 
or
    (ii) Any person who has been duly ordained a minister in accordance 
with the ceremonial rite or discipline of a church, religious sect or 
organization, but who does not regularly, as a bona fide vocation, teach 
and preach the principles of religion and administer the ordinances of 
public worship, as embodied in the creed or principles of his church, 
sect, or organization.
    (4) The term vocation denotes one's regular calling or full-time 
profession.



Sec.  1645.2  The claim for minister of religion classification.

    A claim to classification in Class 4-D must be made by the 
registrant in writing, such document being placed in his file folder.



Sec.  1645.3  Basis for classification in Class 4-D.

    In accordance with part 1630 of this chapter any registrant shall be 
placed in Class 4-D who is a:
    (a) Duly ordained minister of religion; or
    (b) Regular minister of religion.



Sec.  1645.4  Exclusion from Class 4-D.

    A registrant is excluded from Class 4-D when his claim clearly shows 
that:
    (a) He is not a regular minister or a duly ordained minister; or
    (b) He is a duly ordained minister of religion in accordance with 
the ceremonial rite or discipline of a church, religious sect or 
organization, but who does not regularly as his bona fide vocation, 
teach and preach the principles of religion and administer the 
ordinances of public worship, as embodied in the creed or principles of 
his church, sect, or organization; or
    (c) He is a regular minister of religion, but does not regularly, as 
his bona fide vocation, teach and preach the principles of religion; or
    (d) He is not recognized by the church, sect, or organization as a 
regular minister of religion; or

[[Page 225]]

    (e) He is a duly ordained minister of religion but does not 
administer the ordinances of public worship, as embodied in the creed of 
his church, sect, or organization.



Sec.  1645.5  Impartiality.

    Boards may not give preferential treatment to one religion or sect 
over another and no preferential treatment will be given a duly ordained 
minister over a regular minister.



Sec.  1645.6  Considerations relevant to granting or denying a claim for
Class 4-D.

    (a) The board shall first determine whether the registrant is 
requesting classification in Class 4-D because he is a regular minister 
of religion or because he is a duly ordained minister of religion.
    (b) If the registrant claims to be a duly ordained minister of 
religion, the board will:
    (1) Determine whether the registrant has been ordained, in 
accordance with the ceremonial ritual or discipline of a church, 
religious sect, or organization established on the basis of a community 
of faith and belief, doctrines and practices of religious character, to 
preach and teach the doctrines of such church, sect, or organization and 
to administer the rites and ceremonies thereof in public worship; and
    (2) Determine whether the registrant as his regular, customary, and 
bona fide vocation, preaches and teaches the principles of religion and 
administers the ordinances of public worship, as embodied in the creed 
or principles of the church, sect, or organization by which the 
registrant was ordained.
    (c) If the registrant claims to be a regular minister of religion, 
the board will:
    (1) Determine whether the registrant as his customary and regular 
calling or customary and regular full-time profession, preaches and 
teaches the principles of religion of a church, a religious sect, or 
organization of which he is a member, without having been formally 
ordained as a minister of religion; and
    (2) Determine whether the registrant is recognized by such church, 
sect, or organization as a regular minister.
    (d) If the board determines that the registrant is a regular 
minister of religion or duly ordained minister of religion he shall be 
classified in Class 4-D.



Sec.  1645.7  Evaluation of claim.

    (a) In evaluating a claim for classification in Class 4-D, the board 
will not consider:
    (1) The training or abilities of the registrant for duty as a 
minister; or
    (2) The motive or sincerity of the registrant in serving as a 
minister.
    (b) The board should be careful to ascertain the actual duties and 
functions of registrants seeking classification in Class 4-D, such 
classification being appropriate only for leaders of the various 
religious groups, not granted to members of such groups generally.
    (c) Preaching and teaching the principles of one's sect, if 
performed part-time or half-time, occasionally or irregularly, are 
insufficient to establish eligiblity for Class 4-D. These activities 
must be regularly performed and must comprise the registrant's regular 
calling or full-time profession. The mere fact of some secular 
employment on the part of a registrant requesting classification in 
Class 4-D does not in itself make him ineligible for that class.
    (d) The board should request the registrant to furnish any 
additional information that it believes will be of assistance in the 
consideration of the registrant's claim for classification in Class 4-D.



Sec.  1645.8  Types of decisions.

    (a) If the board determines that the registrant is a regular 
minister of religion or a duly ordained minister of religion, he shall 
be classified in Class 4-D.
    (b) The board will deny a claim for Class 4-D when the evidence 
fails to meet the criteria established in this part.



Sec.  1645.9  Statement of reason for denial.

    (a) Denial of a 4-D claim by a board must be accompanied by a 
statement specifying the reason(s) for such denial as prescribed in 
Sec. Sec.  1633.9, 1651.4 and 1653.3 of this chapter. The reason(s)

[[Page 226]]

must in turn, be supported by evidence in the registrant's file.
    (b) If the board's denial is based on statements by the registrant 
or his witnesses at a personal appearance or on documentation in the 
registrant's file, such basis will be fully explained in the statement 
of reasons accompanying the denial.



PART 1648_CLASSIFICATION BY LOCAL BOARD--Table of Contents



Sec.
1648.1 Authority of local board.
1648.3 Opportunity for personal appearances.
1648.4 Appointment for personal appearances.
1648.5 Procedures during personal appearance before the local board.
1648.6 Registrants transferred for classification.
1648.7 Procedures upon transfer for classification.

    Authority: Military Selective Service Act, 50 U.S.C. App. 451 et 
seq.; E.O. 11623.



Sec.  1648.1  Authority of local board.

    A local board shall consider and determine all claims which it 
receives in accord with Sec.  1633.2 or Sec.  1648.6 of this chapter. No 
action shall be taken by the board in the absence of a quorum of its 
prescribed membership.

[52 FR 24458, July 1, 1987]



Sec.  1648.3  Opportunity for personal appearances.

    (a) A registrant who has filed a claim for classification in Class 
1-A-O or Class 1-O shall be scheduled for a personal appearance in 
accord with Sec.  1648.4 before his claim is considered.
    (b) A registrant who has filed a claim for classification in Class 
2-D, Class 3-A, or Class 4-D, shall, upon his written request, be 
afforded an opportunity to appear in person before the board before his 
claim for classification is considered.
    (c) Any registrant who has filed a claim for classification in an 
administrative class and whose claim has been denied, shall be afforded 
an opportunity to appear before the board if he requests that the denial 
of such claim be reviewed by the board.

[47 FR 4661, Feb. 1, 1982, as amended at 52 FR 24458, July 1, 1987]



Sec.  1648.4  Appointment for personal appearances.

    (a) Not less than 10 days (unless the registrant requests an earlier 
appointment) in advance of the meeting at which he may appear, the 
registrant shall be informed of the time and place of such meeting and 
that he may present evidence, including witnesses, bearing on his 
classification.
    (b) Should the registrant who has filed a claim for classification 
in Class 1-A-O or Class 1-O fail to appear at his scheduled personal 
appearance, the board will not consider his claim for classification in 
Class 1-A-O or Class 1-O. The board shall consider any written 
explanation of such failure that has been filed within 5 days (or 
extension thereof granted by the board) after such failure to appear. It 
the board determines that the registrant's failure to appear was for 
good cause it shall reschedule the registrant's personal appearance. If 
the board does not receive a timely written explanation of the 
registrant's failure to appear for his scheduled personal appearance or 
if the board determines that the registrant's failure to appear was not 
for good cause, the registrant will be deemed to have abandoned his 
claim for Class 1-A-O or 1-O and will be notified that his claim will 
not be considered. The board will notify the registrant in writing of 
its action under this paragraph.
    (c) Whenever a registrant who has filed a claim for a class other 
than Class 1-A-0 or Class 1-0 for whom a personal appearance has been 
scheduled, fails to appear in accord with such schedule, the board shall 
consider any written explanation of such failure that has been filed 
within 5 days (or extension thereof granted by the board) after such 
failure to appear. If the board determines that the registrant's failure 
to appear was for good cause it shall reschedule the registrant's 
personal appearance. If the board does not receive a timely written 
explanation of the registrant's failure to appear for his scheduled 
personal appearance or if

[[Page 227]]

the board determines that the registrant's failure to appear was not for 
good cause, the registrant will be deemed to have abandoned his request 
for personal appearance and the board will proceed to classify him on 
the basis of the material in his file. The board will notify the 
registrant in writing of its action under this paragraph.

[47 FR 4661, Feb. 1, 1982, as amended at 52 FR 24458, July 1, 1987]



Sec.  1648.5  Procedures during personal appearance before the local
board.

    (a) A quorum of the prescribed membership of a board shall be 
present during all personal appearances. Only those members of the board 
before whom the registrant appears shall classify him.
    (b) At any such appearance, the registrant may present evidence, 
including witnesses; discuss his classification; direct attention to any 
information in his file; and present such further information as he 
believes will assist the board in determing his proper classification. 
The information furnished should be as concise as possible.
    (c) The registrant may present the testimony of not more than three 
witnesses unless it is the judgment of the board that the testimony of 
additional witnesses is warranted. The registrant may summarize in 
writing, the oral information that he or his witnesses presented. Such 
summary shall be placed in the registrant's file.
    (d) A summary will be made of all oral testimony given by the 
registrant and his witnesses at his personal appearance and such summary 
shall be placed in the registrant's file.
    (e) If the registrant does not speak English adequately he may 
appear with a person to act as interpreter for him. The interpreter 
shall be sworn in accordance with Sec.  1605.81(b). Such interpreter 
will not be deemed to be a witness unless he testifies in behalf of the 
registrant.
    (f) During the personal appearance only the registrant or his 
witnesses may address the board or respond to questions of the board and 
only the registrant and the board will be allowed to address questions 
to witnesses. A registrant may, however, be accompanied by an advisor of 
his choosing and may confer with the advisor before responding to an 
inquiry or statement by the board: Provided, That, those conferences do 
not substantially interfere with or unreasonably delay the orderly 
process of the personal appearance.
    (g) If, in the opinion of the board, the informal, administrative 
nature of the personal appearance is unduly disrupted by the presence of 
an advisor, the board chairman may require the advisor to leave the 
hearing room. In such case, the board chairman shall put a statement of 
reasons for his action in the registrant's file.
    (h) The making of verbatim transcripts, and the using of cameras or 
other recording devices are prohibited in proceedings before the board. 
This does not prevent the registrant or Selective Service from making a 
written summary of all testimony presented.
    (i) Proceedings before the local boards shall be open to the public 
only upon the request of or with the permission of the registrant. The 
board chairman may limit the number of persons attending the hearing in 
order to maintain order. If during the hearing the presence on 
nonparticipants in the proceeding becomes disruptive, the chairman may 
close the hearing.

[47 FR 4661, Feb. 1, 1982, as amended at 52 FR 24459, July 1, 1987]



Sec.  1648.6  Registrants transferred for classification.

    (a) Before a board of jurisdiction has undertaken the classification 
of a registrant, the file may, at his request, be transferred for 
classification to a local board nearer to his current address than is 
the local board of jurisdiction.
    (b) The Director of Selective Service may transfer a registrant to 
another board for classification at any time when:
    (1) A board cannot act on the registrant's claim because of 
disqualification under the provisions of Sec.  1605.55 of this chapter; 
or
    (2) He deems such transfer to be necessary in order to assure 
equitable administration of the Selective Service Law.

[47 FR 4661, Feb. 1, 1982, as amended at 52 FR 24459, July 1, 1987]

[[Page 228]]



Sec.  1648.7  Procedures upon transfer for classification.

    A board to which a registrant is transferred for classification 
shall classify the registrant in the same manner it would classify a 
registrant assigned to it. When the classification has been decided by 
the transfer board, the file will be returned to the local board of 
jurisdiction in the manner prescribed by the Director.

[47 FR 4661, Feb. 1, 1982]



PART 1651_CLASSIFICATION BY DISTRICT APPEAL BOARD--Table of Contents



Sec.
1651.1 Who may appeal to a district appeal board.
1651.2 Time within which registrants may appeal.
1651.3 Procedures for taking an appeal.
1651.4 Review by district appeal board.
1651.5 File to be returned after appeal to the district appeal board is 
          decided.

    Authority: Military Selective Service Act, 50 U.S.C. App. 451 et 
seq. E.O. 11623.

    Source: 47 FR 4662, Feb. 1, 1982, unless otherwise noted.



Sec.  1651.1  Who may appeal to a district appeal board.

    (a) The Director of Selective Service may appeal from any 
determination of a local board when he deems it necessary to assure the 
fair and equitable administration of the Selective Service Law: 
Provided, That, no such appeal will be taken after the expiration of the 
appeal period prescribed in Sec.  1651.2.
    (b) The registrant may appeal to a district appeal board the denial 
of his claim for a judgmental classification by the local board. The 
registrant may appeal to a district appeal board the denial of his claim 
for an administrative classification by the local board whenever its 
decisions is not unanimous.

[47 FR 4662, Feb. 1, 1982, as amended at 52 FR 24459, July 1, 1987]



Sec.  1651.2  Time within which registrants may appeal.

    The registrant who wishes to appeal must file the appeal with his 
local board within 15 days after the date he is mailed a notice of 
classification action. The registrant who wishes a personal appearance 
before the district appeal board must file the request at the same time 
he files the appeal.



Sec.  1651.3  Procedures for taking an appeal.

    (a) When the Director of Selective Service appeals to a district 
appeal board he shall place in the registrant's file a written statement 
of his reasons for taking such appeal. When an appeal is taken by the 
Director, the registrant will be notified that the appeal has been 
taken, the reason therefor, and that the registrant may appear in person 
before the appeal board in accord with Sec.  1651.4(e).
    (b) The registrant may appeal the classification action of the local 
board by filing with it a written notice of appeal. The registrant's 
notice of appeal need not be in a particular form but must include the 
name of the registrant and his request. Any notice shall be liberally 
construed so as to permit the appeal.
    (c) The registrant may also request an opportunity to appear in 
person before the district appeal board and such appeal will be 
considered by the board having jurisdiction over the local board which 
last classified him.
    (d) The registrant may attach to his appeal a statement specifying 
the reasons he believes the classification action that he is appealing 
is inappropriate, directing attention to any information in his file, 
and setting out any information relevant to his claim.



Sec.  1651.4  Review by district appeal board.

    (a) An appeal to the district appeal board is determined by the 
classification of the registrant in a class other than 1-A or by its 
refusal to take such action. No action shall be taken by the board in 
the absence of a quorum of its prescribed membership.
    (b) Prior to the adjudication of an appeal, the clerk of the appeal 
board or any compensated employee authorized to perform the 
administrative duties of the board shall review the file to insure that 
no procedural errors have occurred during the history of the current 
claim. Files containing procedural errors will be returned to the local

[[Page 229]]

board that classified the registrant for any additional processing 
necessary to correct such errors.
    (c) Files containing procedural errors that were not detected during 
the initial screening but which subsequently surfaced during processing 
by the appeal board, will be acted on and the board will take such 
action necessary to correct the errors and process the appeal to 
completion.
    (d) A board shall consider appeals in the order of their having been 
filed.
    (e) Upon receipt of the registrant's file, a board shall ascertain 
whether the registrant has requested a personal appearance before the 
board. If no such request has been made, the board may classify the 
registrant on the bases of the material in his file.
    (f) Not less than 10 days (unless the registrant requests an earlier 
appointment) in advance of the meeting at which his classification will 
be considered, the board shall inform any registrant with respect to 
whom the Director of Selective Service has appealed or who has requested 
a personal appearance that he may appear at such meeting and present 
written evidence bearing on his classification.
    (g) During the personal appearance, only the registrant may address 
the board or respond to questions of the board. The registrant will not 
be permitted to present witnesses at the personal appearance before the 
district appeal board. A registrant may, however, be accompanied by an 
advisor of his choosing and may confer with the advisor before 
responding to an inquiry or statement by the board: Provided, That, 
those conferences do not substantially interfere with or unreasonably 
delay the orderly process of the personal appearance.
    (h) If, in the opinion of the board, the informal, administrative 
nature of the hearing is unduly disrupted by the presence of an advisor 
during the personal appearance, the board chairman may require the 
advisor to leave the hearing room. In such case, the board chairman 
shall put a statement of reasons for his action in the registrant's 
file.
    (i) Whenever a registrant who has filed a claim for whom a personal 
appearance has been scheduled, fails to appear in accord with such 
schedule, the board shall consider any written explanation of such 
failure that has been filed within 5 days (or extension thereof granted 
by the board) after such failure to appear. If the board determines that 
the registrant's failure to appear was for good cause it shall 
reschedule the registrant's personal appearance. If the board does not 
receive a timely written explanation of the registrant's failure to 
appear for his scheduled personal appearance or if the board determines 
that the registrant's failure to appear was not for good cause, the 
registrant will be deemed to have abandoned his request for personal 
appearance and he will be classified on the basis of the material in his 
file. The board will notify the registrant in writing of its action 
under this paragraph.
    (j) A quorum of the prescribed membership of a board shall be 
present during all personal appearances. Only those members of the board 
before whom the registrant appears shall classify him.
    (k) At any personal appearance, the registrant may: Present his oral 
testimony; point out the class or classes in which he thinks he should 
have been placed; and direct attention to any information in his file. 
The registrant may present any additional written information he 
believes will assist the board in determining his proper classification. 
The information furnished should be as concise as possible.
    (l) The registrant may summarize in writing the oral information 
that he presented. Such summary shall be placed in the registrant's 
file.
    (m) A summary will be made of oral testimony given by the registrant 
at his personal appearance and such summary shall be placed in the 
registrant's file.
    (n) A district appeal board shall classify a registrant who has 
requested a personal appearance after he:
    (1) Has appeared before the board; or
    (2) Has withdrawn his request to appear; or
    (3) Has abandoned his right to an opportunity to appear; or
    (4) Has failed to appear.

[[Page 230]]

    (o) In considering a registrant's appeal, a board shall not receive 
or consider any information other than the following:
    (1) Information contained in the registrant's file; and
    (2) Oral statements by the registrant during the registrant's 
personal appearance; and
    (3) Written evidence submitted by the registrant to the board during 
his personal appearance.
    (p) In the event a board classifies the registrant in a class other 
than that which he requested, it shall record its reasons therefor in 
the file.
    (q) The making of verbatim transcripts, and the using of cameras or 
other recording devices are prohibited in proceedings before the board. 
This does not prevent the registrant or Selective Service from making a 
written summary of his testimony.
    (r) Proceedings before the appeal boards shall be open to the public 
only upon the request of or with the permission of the registrant. The 
board chairman may limit the number of persons attending the hearing in 
order to maintain order. If during the hearing the presence of non-
participants in the proceedings becomes disruptive the chairman may 
close the hearing.

[47 FR 4662, Feb. 1, 1982, as amended at 52 FR 24459, July 1, 1987]



Sec.  1651.5  File to be returned after appeal to the district appeal
board is decided.

    When the appeal to a district appeal board has been decided, the 
file shall be returned as prescribed by the Director of Selective 
Service.



PART 1653_APPEAL TO THE PRESIDENT--Table of Contents



Sec.
1653.1 Who may appeal to the President.
1653.2 Procedures for taking an appeal to the President.
1653.3 Review by the National Appeal Board.
1653.4 File to be returned after appeal to the President is decided.

    Authority: Military Selective Service Act, 50 U.S.C. App. 451 et 
seq.; E.O. 11623.

    Source: 47 FR 4663, Feb. 1, 1982, unless otherwise noted.



Sec.  1653.1  Who may appeal to the President.

    (a) The Director of Selective Service may appeal to the President 
from any non-unanimous determination of a district appeal board when he 
deems it necessary to assure the fair and equitable administration of 
the Selective Service Law: Provided, That, no such appeal will be taken 
after the expiration of the appeal period prescribed in paragraph (b) of 
this section.
    (b) When a registrant has been classified by a district appeal board 
and one or more members of the board dissented from that classification, 
he may within 15 days after a notice thereof has been mailed, appeal to 
the President and may request a personal appearance before the National 
Selective Service Appeal Board.



Sec.  1653.2  Procedures for taking an appeal to the President.

    (a) When the Director of Selective Service appeals to the President 
he shall place in the registrant's file a written statement of his 
reasons for taking such appeal. When an appeal is taken by the Director 
the registrant will be notified that the appeal has been taken, the 
reasons therefor, and that the registrant may appear in person before 
the National Board in accord with Sec.  1653.1(b).
    (b) An appeal to the President by the registrant shall be taken by 
filing a written notice of appeal with the local board that classified 
him. He may at the same time file a written request to appear before the 
National Selective Service Appeal Board. Such notice need not be in any 
particular form but must state the name of the registrant and the fact 
that he wishes the President to review the determination.



Sec.  1653.3  Review by the National Appeal Board.

    (a) An appeal to the President is determined by the National Appeal 
Board by its classification of the registrant in a class other than 1-A 
or by its refusal to take such action. No action shall be taken by the 
board in the absence of a quorum of its prescribed membership.
    (b) Prior to the adjudication of an appeal, the clerk of the appeal 
board or any compensated employee authorized

[[Page 231]]

to perform the administrative duties of the board shall review the file 
to insure that no procedural errors have occurred during the history of 
the current claim. Files containing procedural errors will be returned 
to the board where the errors occurred for any additional processing 
necessary to correct such errors.
    (c) Files containing procedural errors that were not detected during 
the initial screening but which subsequently surfaced during processing 
by the appeal board, will be acted on and the board will take such 
action necessary to correct the errors and process the appeal to 
completion.
    (d) The board shall consider appeals in the order of their having 
been filed.
    (e) Upon receipt of the registrant's file, the board shall ascertain 
whether the registrant has requested a personal appearance before the 
board. If no such request has been made, the board may classify the 
registrant on the basis of the material in his file.
    (f) The board shall proceed to classify any registrant who has not 
requested a personal appearance after the specified time in which to 
request a personal appearance has elapsed.
    (g) Not less than 10 days in advance of the meeting at which his 
claim will be considered, the board shall inform any registrant with 
respect to whom the Director of Selective Service has appealed or who 
has requested a personal appearance that he may appear at such meeting 
and present written evidence bearing on his classification.
    (h) During the personal appearance only the registrant may address 
the board or respond to questions of the board. The registrant will not 
be permitted to present witnesses at the personal appearance before the 
National Appeal Board. A registrant may, however, be accompanied by an 
advisor of his choosing and may confer with the advisor before 
responding to an inquiry or statement by the board: Provided, That, 
those conferences do not substantially interfere with or unreasonably 
delay the orderly process of the personal appearance.
    (i) If, in the opinion of the board, the informal, administrative 
nature of the personal appearance is unduly disrupted by the presence of 
an advisor, the board chairman may require the advisor to leave the 
hearing room. In such a case, the board chairman shall put a statement 
of reasons for his action in the registrant's file.
    (j) Whenever a registrant who has filed a claim for whom a personal 
appearance has been scheduled fails to appear in accord with such 
schedule, the board shall consider any written explanation of such 
failure that has been filed within five days (or extension thereof 
granted by the board) after such failure to appear. If the board 
determines that the registrant's failure to appear was for good cause it 
shall reschedule the registrant's personal appearance. If the board does 
not receive a timely written explanation of the registrant's failure to 
appear for his scheduled personal appearance or if the board determines 
that the registrant's failure to appear was not for good cause, the 
registrant will be deemed to have abandoned his request for personal 
appearance and the board will proceed to classify him on the basis of 
the material in his file. The registrant will be notified in writing of 
its action under this paragraph.
    (k) A quorum of the prescribed membership of a board shall be 
present during all personal appearances. Only those members of the board 
before whom the registrant appears shall classify him.
    (l) At any such appearance, the registrant may: Present oral 
testimony; point out the class or classes in which he thinks he should 
have been placed; and direct attention to any information in his file. 
The registrant may present such further written information as he 
believes will assist the board in determining his proper classification. 
The information furnished should be as concise as possible.
    (m) The registrant may summarize in writing the oral information 
that he presented and any such summary shall be placed in his file.
    (n) A summary will be made of the oral testimony given by the 
registrant at his personal appearance and such summary shall be placed 
in the registrant's file.
    (o) The board shall classify a registrant who has requested a 
personal appearance after he:

[[Page 232]]

    (1) Has appeared before the National Board; or
    (2) Has withdrawn his request to appear; or
    (3) Has waived his right to an opportunity to appear; or
    (4) Has failed to appear.
    (p) Whenever the National Board or the panel thereof to which a case 
has been assigned cannot act on the case of a registrant, and there is 
no other panel of the National Board to which the case may be 
transferred, the decision of the District Appeal Board will be final.
    (q) In considering a registrant's appeal, the board shall not 
receive or consider any information other than the following:
    (1) Information contained in the registrant's file; and
    (2) Oral statements by the registrant at the registrant's personal 
appearance; and
    (3) Written evidence submitted by the registrant to the board during 
his personal appearance.
    (r) In the event that the board classifies the registrant in a class 
other than that which he requested, it shall record its reasons therefor 
in his file.
    (s) The making of verbatim transcripts, and the using of cameras or 
other recording devices are prohibited in proceedings before the board. 
This does not prevent the registrant or Selective Service from making a 
written summary of his testimony.
    (t) Proceedings before the National Appeal Board are closed to the 
public.

[47 FR 4663, Feb. 1, 1982, as amended at 52 FR 24459, July 1, 1987]



Sec.  1653.4  File to be returned after appeal to the President is decided.

    When the appeal to the President has been decided, the file shall be 
returned as prescribed by the Director of Selective Service.



PART 1656_ALTERNATIVE SERVICE--Table of Contents



Sec.
1656.1 Purpose; definitions.
1656.2 Order to perform alternative service.
1656.3 Responsibility for administration.
1656.4 Alternative Service Office: jurisdiction and authority.
1656.5 Eligible employment.
1656.6 Overseas assignments.
1656.7 Employer responsibilities.
1656.8 Employment agreements.
1656.9 Alternative service worker's responsibilities.
1656.10 Job placement.
1656.11 Job performance standards and sanctions.
1656.12 Job reassignment.
1656.13 Review of alternative service job assignments.
1656.14 Postponement of reporting date.
1656.15 Suspension of order to perform alternative service because of 
          hardship to dependents.
1656.16 Early release--grounds and procedures.
1656.17 Administrative complaint process.
1656.18 Computation of creditable time.
1656.19 Completion of alternative service.
1656.20 Expenses for emergency medical care.

    Authority: Sec. 6(j) Military Selective Service Act; 50 U.S.C. App. 
456(j).

    Source: 48 FR 16676, Apr. 19, 1983, unless otherwise noted.



Sec.  1656.1  Purpose; definitions.

    (a) The provisions of this part govern the administration of 
registrants in Class 1-W and the Alternative Service Program.
    (b) The definitions of this paragraph shall apply in the 
interpretation of the provisions of this part:
    (1) Alternative Service (AS). Civilian work performed in lieu of 
military service by a registrant who has been classified in Class 1-W.
    (2) Alternative Service Office (ASO). An office to administer the 
Alternative Service Program in a specified geographical area.
    (3) Alternative Service Office Manager (ASOM). The head of the ASO.
    (4) Alternative Service Work. Civilian work which contributes to the 
maintenance of the national health, safety or interest, as the Director 
may deem appropriate.
    (5) Alternative Service Worker (ASW). A registrant who has been 
found to be qualified for service and has been ordered to perform 
alternative service (Class 1-W).
    (6) Creditable Time. Time that is counted toward an ASWs fulfillment 
of his alternative service obligation.
    (7) Director. The Director of Selective Service, unless used with a 
modifier.

[[Page 233]]

    (8) Employer. Any institution, firm, agency or corporation engaged 
in lawful activity in the United States, its territories or possessions, 
or in the Commonwealth of Puerto Rico, that has been approved by 
Selective Service to employ ASWs.
    (9) Job Assignment. A job with an eligible employer to which an ASW 
is assigned to perform his alternative service.
    (10) Job Bank. A current inventory of alternative service job 
openings.
    (11) Job Matching. A comparison of the ASW's work experience, 
education, training, special skills, and work preferences with the 
requirements of the positions in the job bank.
    (12) Job Placement. Assignment of the ASW to alternative service 
work.
    (13) Open Placement. The assignment of ASWs without employer 
interview to employers who have agreed to employ all ASWs assigned to 
them up to an agreed number.

[48 FR 16676, Apr. 19, 1983, as amended at 69 FR 20544, Apr. 16, 2004]



Sec.  1656.2  Order to perform alternative service.

    (a) The local board of jurisdiction shall order any registrant who 
has been classified in Class 1-O or 1-O-S to perform alternative service 
at a time and place to be specified by the Director.
    (b) When the local board orders a registrant to perform alternative 
service, it shall be the duty of the registrant to report for and 
perform alternative service at the time and place ordered unless the 
order has been canceled. If the time when the registrant is ordered to 
report for alternative service is postponed, it shall be the continuing 
duty of the registrant to report for and perform alternative service at 
such time and place as he may be reordered. Regardless of the time when 
or the circumstances under which a registrant fails to report for and 
perform alternative service when it is his duty to do so, it shall 
thereafter be his continuing duty from day to day to report for and 
perform alternative service at the place specified in the order to 
report for and perform alternative service.
    (c) The Director may authorize a delay of reporting for alternative 
service for any registrant whose date of induction conflicts with a 
religious holiday historically observed by a recognized church, 
religious sect or religious organization of which he is a member. Any 
registrant so delayed shall report for alternative service on the next 
business day following the religious holiday.
    (d)(1) Any registrant who is satisfactorily pursuing a full-time 
course of instruction at a high school or similar institution of 
learning and is issued an order to perform alternative service shall, 
upon presentation of appropriate facts in the manner prescribed by the 
Director of Selective Service, have his date to report to perform 
alternative service postponed:
    (i) Until the time of his graduation therefrom; or
    (ii) Until he attains the twentieth anniversary of his birth; or
    (iii) Until the end of his last academic year, even if he has 
attained the twentieth anniversary of his birth; or
    (iv) Until he ceases satisfactorily to pursue such course of 
instruction, whichever is the earliest.
    (2) Any registrant who, while satisfactorily pursuing a full-time 
course of instruction at a college, university or similar institution of 
learning, is ordered to perform alternative service shall, upon the 
presentation of appropriate facts in the manner prescribed by the 
Director of Selective Service, have his date to report to perform 
alternative service.
    (i) Until the end of the semester or term, or in the case of his 
last academic year, the end of the academic year; or
    (ii) Until he ceases to satisfactorily pursue such course of 
instruction, whichever is the earlier.
    (e) After the order to perform alternative service has been issued, 
the Director may postpone for a specific time the date when such 
registrant is required to report in the following circumstances:
    (1) In the case of the death of a member of the registrant's 
immediate family, extreme emergency involving a member of the 
registrant's immediate family, serious illness or injury of the 
registrant, or other emergency beyond the registrant's control. The 
period of postponement shall not exceed 60 days

[[Page 234]]

from the date of the order to perform alternative service. When 
necessary, the Director may grant one further postponement but the total 
postponement shall not exceed 90 days from the reporting date on the 
order to perform alternative service.
    (2) When the registrant qualifies and is scheduled for a State or 
National examination in a profession or occupation which requires 
certification before being authorized to engage in the practice of that 
profession or occupation.
    (f) The Director shall issue to each registrant whose reporting date 
to perform alternative service is postponed a written notice thereof.
    (g) A postponement of reporting date to perform alternative service 
shall not render invalid the order to report for alternative service 
which has been issued to the registrant, but shall operate only to 
postpone the reporting date, and the registrant shall report on the new 
date scheduled without having issued to him a new order to report for 
alternative service.
    (h) Any registrant receiving a postponement under the provisions of 
this section, shall, after the expiration of such postponement, be 
rescheduled to report for alternative service at the place to which he 
was originally ordered.

[52 FR 8891, Mar. 20, 1987]



Sec.  1656.3  Responsibility for administration.

    (a) The Director in the administration of the Alternative Service 
Program shall establish and implement appropriate procedures to:
    (1) Assure that the program complies with the Selective Service Law;
    (2) Provide information to ASWs about their rights and duties;
    (3) Find civilian work for ASWs;
    (4) Place ASWs in jobs approved for alternative service;
    (5) Monitor the work performance of ASWs placed in the program;
    (6) Order reassignment and authorize job separation;
    (7) Issue certificates of completion;
    (8) Specify the location of Alternative Service Offices;
    (9) Specify the geographical area in which the ASOs shall have 
jurisdiction over ASWs;
    (10) Refer to the Department of Justice, when appropriate, any ASW 
who fails to perform satisfactorily his alternative service;
    (11) Perform all other functions necessary for the administration of 
the Alternative Service Program; and
    (12) Delegate any of his authority to such office, agent or person 
as he may designate and provide as appropriate for the subdelegation of 
such authority.
    (b) The Region Director shall be responsible for the administration 
and operation of the Alternative Service Program in his Region as 
prescribed by the Director.
    (c) The State Director shall perform duties for the administration 
and operation of the Alternative Service Program in his State as 
prescribed by the Director.
    (d) The ASOM shall perform duties for the administration and 
operation of the Alternative Service Program as prescribed by the 
Director.
    (1) The ASO shall be an office of record that is responsible for the 
administration and operation of the Alternative Service Program in its 
assigned geographical area of jurisdiction.
    (2) The staff of each ASO shall consist of as many compensated 
employees as shall be authorized by the Director.
    (3) Appointment of civilians to ASO positions requiring direct 
dealing with ASWs will be made as soon as feasible.
    (e) The manager of an area office shall perform duties for 
Alternative Service as prescribed by the Director.

[48 FR 16676, Apr. 19, 1983, as amended at 69 FR 20544, Apr. 16, 2004]



Sec.  1656.4  Alternative Service Office: jurisdiction and authority.

    (a) Jurisdiction over the ASW will be transferred from the area 
office immediately after his classification in Class 1-W to the ASO that 
administers the Alternative Service Program in the area in which he is 
assigned to perform alternative service.
    (b) The ASO shall:
    (1) Evaluate and approve jobs and employers for Alternative Service;
    (2) Order the ASW to report for alternative service work;

[[Page 235]]

    (3) Issue such orders as are required to schedule the ASW for job 
interviews;
    (4) Issue such orders as are required to schedule the ASW for job 
placement;
    (5) Monitor the ASW's job performance;
    (6) Issue a certificate of satisfactory completion of the ASW's 
Alternative Service obligation;
    (7) Return the ASW to the jurisdiction of the area office from which 
he was directed to perform Alternative Service; and
    (8) Perform such other actions the Director may authorize as 
necessary to administer the Alternative Service Program.



Sec.  1656.5  Eligible employment.

    (a) The Director will determine in accordance with the Selective 
Service Law which civilian employment programs or activities are 
appropriate for Alternative Service work.
    (1) Employers which are considered appropriate for Alternative 
Service assignments are limited to:
    (i) The U.S. Government or a state, territory or possession of the 
United States or a political subdivision thereof, the District of 
Columbia or the Commonwealth of Puerto Rico;
    (ii) Organizations, associations or corporations primarily engaged 
either in a charitable activity conducted for the benefit of the general 
public or in carrying out a program for the improvement of the public 
health, welfare or environment, including educational and scientific 
activities in support thereof, when such activity or program is not 
principally for the benefit of the members of such organization, 
association or corporation or for increasing the membership thereof.
    (2) Employment programs or activities generally considered to be 
appropriate for Alternative Service work include:
    (i) Health care services, including but not limited to hospitals, 
nursing homes, extended care facilities, clinics, mental health 
programs, hospices, community outreach programs and hotlines;
    (ii) Educational services, including but not limited to teachers, 
teacher's aides, counseling, administrative support, parent counseling, 
recreation, remedial programs and scientific research;
    (iii) Environmental programs, including but not limited to 
conservation and firefighting, park and recreational activities, 
pollution control and monitoring systems, and disaster relief;
    (iv) Social services, including but not limited to sheltered or 
handicapped workshops, vocational training or retraining programs, 
senior citizens activities, crisis intervention and poverty relief;
    (v) Community services, including but not limited to fire 
protection, public works projects, sanitation services, school or public 
building maintenance, correctional facility support programs, juvenile 
rehabilitation programs, and
    (vi) Agricultural work.
    (b) An organization desiring to employ ASWs is encouraged to submit 
a request in writing to the Director or an ASOM for approval. Such 
requests will be considered at any time.
    (c) Selective Service shall negotiate employment agreements with 
prospective employers with the objective of obtaining an adequate number 
of agreements to assure the timely placement of all ASWs. Participating 
employers will provide prospective job listings to Selective Service.
    (d) Selective Service shall also negotiate employment agreements 
with eligible employers wherein the employer will agree to hire a 
specified number of ASWs for open placement positions.
    (e) A registrant classfied in Class 1-O or Class 1-O-S may seek his 
own alternative service work by identifying a job with an employer he 
believes would be appropriate for Alternative Service assignments and by 
having the employer advise the ASO in writing that he desires to employ 
the ASW. The acceptability of the job and employer so identified will be 
evaluated in accordance with Sec.  1656.5(a).

[48 FR 16676, Apr. 19, 1983, as amended at 51 FR 17627, May 14, 1986; 52 
FR 8892, Mar. 20, 1987; 54 FR 27001, June 27, 1989]



Sec.  1656.6  Overseas assignments.

    Alternative Service job assignments outside the United States, its 
territories or possessions or the Commonwealth of Puerto Rico, will be 
allowed when:

[[Page 236]]

    (a) The employer is deemed eligible to employ ASWs and is based in 
the United States, its territories or possessions, or the Commonwealth 
of Puerto Rico;
    (b) The job meets the criteria listed in Sec.  1656.5(a);
    (c) The ASW and the employer submit a joint application to Selective 
Service for the ASW to be employed in a specific job;
    (d) The employer satisfies Selective Service that the employer has 
the capability to supervise and monitor the overseas work of the ASW; 
and
    (e) International travel is provided without expense to Selective 
Service.



Sec.  1656.7  Employer responsibilities.

    Employers participating in the Alternative Service Program are 
responsible for:
    (a) Complying with the employment agreement with Selective Service;
    (b) Providing a clear statement of duties, responsibilities, 
compensation and employee benefits to the ASW;
    (c) Providing full-time employment for ASWs;
    (d) Assuring that wages, hours and working conditions of ASWs 
confrom with Federal, state and local laws;
    (e) Providing adequate supervision of ASWs in their employ; and
    (f) Providing nondiscriminatory treatment of ASWs in their employ.



Sec.  1656.8  Employment agreements.

    (a) Nature of Agreement. Before any ASW is placed with an employer, 
Selective Service and the employer shall enter into an employment 
agreement that specifies their respective duties and responsibilities 
under the Alternative Service Program.
    (b) Restrictions on Selective Service. The Selective Service System 
shall not act in any controversy involving ASW's wages, hours and 
working conditions except to the extent any of these subjects is 
specifically covered in Sec.  1656.7, Sec.  1656.9, or the employment 
agreement between Selective Service and the employer.
    (c) Investigating and Negotiating. Whenever there is evidence that 
an employer appears to be in violation of Sec.  1656.7, Selective 
Service will investigate the matter. If the investigation produces 
substantial evidence of violations of Sec.  1656.7, Selective Service 
will resolve the matter.
    (d) Termination of Employment Agreement. If a resolution of a 
dispute cannot be reached by negotiation within a reasonable time, the 
Selective Service System shall terminate the employment agreement and 
shall reassign the ASW.



Sec.  1656.9  Alternative service worker's responsibilities.

    (a) A registrant classified in Class 1-W is required to comply with 
all orders issued under this part.
    (b) A registrant classified in Class 1-W is liable to perform 24 
months of creditable time toward completion of Alternative Service, 
unless released earlier by the Director.



Sec.  1656.10  Job placement.

    (a) Selective Service will maintain a job bank for the exclusive 
purpose of placing ASWs in alternative service jobs.
    (b) An ASW who has identified his own job in accordance with Sec.  
1656.5(e) of this part may be assigned by the ASO in that job pending 
review of the job by Selective Service. If the job is then approved as 
Alternative Service Work in accordance with Sec.  1656.5(a) the ASW will 
receive creditable time beginning with the date he was placed on the job 
by Selective Service. If the job is not approved he will not receive 
creditable time and will be placed by Selective Service in a position 
approved for Alternative Service Work. Selective Service must review the 
job within 30 calendar days of the time it assigned the ASW to begin 
work. If the elapsed time from date of placement to the date of 
Selective Service review exceeds 30 days, the ASW will receive 
creditable time from the date of placement regardless of the final 
determination of employer eligibility made by Selective Service. If the 
placement is ultimately determined to be inappropriate for Alternative 
Service the ASW will be reassigned in accordance with Sec.  1656.12.
    (c) In making job interview referrals and in making assignments of 
ASWs to jobs, Selective Service will consider the compatibility of the 
ASW's skills,

[[Page 237]]

work experience, and preferences with the qualification criteria for the 
job.
    (d) When An ASW is hired, the ASO will issue a Job Placement Order 
specifying the employer, the time, date and place to report for his 
alternative service work.
    (e) The ASO will normally place the ASW in an alternative service 
job within 30 calendar days after classification in Class 1-W.



Sec.  1656.11  Job performance standards and sanctions.

    (a) Standards of Performance. An ASW is responsible for adhering to 
the standards of conduct, attitude, appearance and performance demanded 
by the employer of his other employees in similar jobs. If there are no 
other employees, the standards shall conform to those that are 
reasonable and customary in a similar job.
    (b) Failure to Perform. An ASW will be deemed to have failed to 
perform satisfactorily whenever:
    (1) He refuses to comply with an order of the Director issued under 
this part;
    (2) He refuses employment by an approved employer who agrees to hire 
him;
    (3) His employer terminates the ASW's employment because his 
conduct, attitude, appearance or performance violates reasonable 
employer standards; or
    (4) He quits or leaves his job without reasonable justification, and 
has not submitted an appeal of his job assignment to the District Appeal 
Board.
    (c) Sanctions for ASW's Failure to Perform. (1) The sanctions for 
failure to meet his Alternative Service obligation are job reassignment, 
loss of creditable time during such period and referral to the 
Department of Justice for failure to comply with the Military Selective 
Service Act.
    (2) Prior to invoking any of the sanctions discussed herein, the ASO 
will conduct a review as prescribed in Sec.  1656.17 of all allegations 
that an ASW has failed to perform pursuant to any of the provisions of 
Sec.  1656.11(b).

[48 FR 16676, Apr. 19, 1983, as amended at 69 FR 20544, Apr. 16, 2004]



Sec.  1656.12  Job reassignment.

    (a) Grounds for Reassignment. The Director may reassign an ASW 
whenever the Director determines that:
    (1) The job assignment violates the ASW's religious, moral or 
ethical beliefs or convictions as to participation in a war that led to 
his classification as a conscientious objector or violates Sec.  
1656.5(a) of this part.
    (2) An ASW experiences a change in his mental or physical condition 
which renders him unfit or unable to continue performing satisfactorily 
in his assigned job;
    (3) An ASW's dependents incur a hardship which is not so severe as 
to justify a suspension of the Order to Perform Alternative Service 
under Sec.  1656.15;
    (4) The ASW's employer ceases to operate an approved program or 
activity;
    (5) The ASW's employer fails to comply with terms and conditions of 
these regulations or;
    (6) Continual and severe differences between the ASW's employer and 
ASW remain unresolved.
    (7) The sanctions authorized in Sec.  1656.11 should be applied.
    (b) Who May Request Reassignment. Any ASW may request reassignment 
to another job. An employer may request job reassignment of an ASW who 
is in his employ.
    (c) Method for Obtaining a Reassignment. All requests for 
reassignment must be in writing with the reasons specified. The request 
may be filed with the ASO of jurisdiction at any time during an ASW's 
alternative service employment. An ASW must continue in his assigned 
job, if available, until the request for assignment is approved.



Sec.  1656.13  Review of alternative service job assignments.

    (a) Review of ASW job assignments will be accomplished in accordance 
with the provisions of this subsection.
    (b) Whenever the ASW believes that his job assignment violates his 
religious, moral or ethical beliefs or convictions as to participation 
in war that led to his classification as a conscientious objector or is 
in violation of the provisions of this part he may request

[[Page 238]]

a reassignment by the ASOM, as provided for in Sec.  1656.12.
    (c) The ASOM shall reassign the ASW if the ASOM concludes that the 
ASW's work assignment violates his religious, moral or ethical beliefs 
or convictions as to participation in war which led to his 
classification as a CO or is in violation of the provisions of this 
part.
    (d) If the ASOM does not reassign the ASW, the ASW may, within 15 
days after the date of mailing of the decision of the ASOM, request a 
review of his job assignment by a District Appeal Board.
    (e) It shall be the function of the District Appeal Board to 
determine whether or not an ASW's job assignment violates the ASW's 
religious, moral, or ethical beliefs of convictions as to participation 
in war which led to his classification as a conscientious objector or is 
in violation of the provisions Sec.  1656.5(a) of this part. In making 
the former determination, the Review Board must be convinced by the ASW 
that if the ASW performed the job, his convictions as to participation 
in war would be violated in a similar way as if the ASW had participated 
in war.
    (f) The District Appeal Board may affirm the assignment or order the 
reassignment of the ASW in any matter considered by it.
    (g) Procedures of the District Appeal Board are:
    (1) Appeals to the Board shall be in writing, stating as clearly as 
possible the ground for the appeal.
    (2) The ASW may appear before the Board at his request. He may not 
be represented by counsel or present witnesses. The ASOM or his 
representative may represent the Selective Service System at the hearing 
and present evidence.
    (3) The Board's determination will be based on all documents in the 
ASW's file folder and statements made at the hearing.
    (4) The decision of the Board will be binding only in the case 
before it. A decision of a Board will not be relied upon by a Board in 
any other case.
    (5) A decision of the Board is not subject to review within the 
Selective Service System.

[48 FR 16676, Apr. 19, 1983, as amended at 69 FR 20544, Apr. 16, 2004]



Sec.  1656.14  Postponement of reporting date.

    (a) General. The reporting date in any of the following orders may 
be postponed in accord with this section.
    (1) Report for Job Placement;
    (2) Report for a Job Interview; or
    (3) Report to an Employer to Commence Employment.
    (b) Requests for Postponement. A request for postponement of a 
reporting date specified in an order listed in paragraph (a) must be 
made in writing and filed prior to the reporting date with the office 
which issued the order. Such requests must include a statement of the 
nature of the emergency and the expected period of its duration.
    (c) Grounds for Postponement. An ASW may, upon presentation of the 
appropriate facts in his request, be granted a postponement based on one 
or more of the following conditions:
    (1) The death of a member of his immediate family;
    (2) An extreme emergency involving a member of his immediate family;
    (3) His serious illness or injury; or
    (4) An emergency condition directly affecting him which is beyond 
his control.
    (d) Basis for Considering Request. The ASW's eligibility for a 
postponement shall be determined by the office of jurisdiction based 
upon official documents and other written information contained in his 
file. Oral statements made by the ASW or made by another person in 
support of the ASW shall be reduced to writing and placed in the ASW's 
file.
    (e) Duration of Postponement. The initial postponement shall not 
exceed 60 days from the reporting date in the order. When necessary, the 
Director may grant one further postponement, but the total postponement 
period shall not exceed 90 days from the reporting date in the order 
invovled.
    (f) Termination of Postponement. (1) A postponement may be 
terminated by the Director for cause upon no less than ten days written 
notice to the ASW.
    (2) Any postponement shall be terminated when the basis for the 
postponement has ceased to exist.
    (3) It is the responsibility of the ASW promptly to notify in 
writing the office

[[Page 239]]

that granted the postponement whenever the basis for which his 
postponement was granted ceases to exist.
    (g) Effect of Postponement. A postponement of the reporting date in 
an order shall not render the order invalid, but shall only serve to 
postpone the date on which the ASW is to report. The ASW shall report at 
the expiration or termination of the postponement.
    (h) Religious Holiday. The Director may authorize a delay of 
reporting under any of the orders specified for an ASW whose date to 
report conflicts with a religious holiday historically observed by a 
recognized church, religious sect or religious organization of which he 
is a member. Any ASW so delayed shall report on the next business day 
following the religious holiday.



Sec.  1656.15  Suspension of order to perform alternative service because
of hardship to dependents.

    (a) Whenever, after an ASW has begun work, a condition develops that 
results in hardship to his dependent as contemplated by Sec.  1630.30(a) 
of this chapter which cannot be alleviated by his reassignment under 
Sec.  1656.12 (a)(3) of this part, the ASW may request a suspension of 
Order to Perform Alternative Service. If the local board that ordered 
the ASW to report for Alternative Service determines he would be 
entitled to classification in Class 3-A, assuming that the ASW were 
eligible to file a claim for that class, further compliance with his 
order shall be suspended for a period not to exceed 365 days, as the 
local board specifies. Extensions of not more than 365 days each may be 
granted by the local board so long as the hardship continues until the 
ASW's liability for training and service under the Military Selective 
Service Act terminates.
    (b) An ASW may file a request for the suspension of his Order to 
Perform Alternative Service with the ASO. This request must be in 
writing, state as clearly as possible the basis for the request, and be 
signed and dated by the ASW. The ASW must continue working in his 
assigned job until his request for the suspension of his Order to 
Perform Alternative Service has been approved.
    (c) Local boards shall follow the procedures established in parts 
1642 and 1648 of this chapter to the extent they are applicable in 
considering a request for the suspension of an Order to Perform 
Alternative Service.



Sec.  1656.16  Early release--grounds and procedures.

    (a) General Rule of Service Completion. An ASW will not be released 
from alternative service prior to completion of 24 months of creditable 
service unless granted an early release.
    (b) Reasons For Early Release. The Director may authorize the early 
release of an ASW whenever the ASO determines that the ASW:
    (1) Has failed to meet the performance standards of available 
alternative service employment because of physical, mental or moral 
reasons;
    (2) No longer meets the physical, mental or moral standards that are 
required for retention in the Armed Forces based on a physical or mental 
examination at a MEPS or other location designated by Selective Service;
    (3) Is planning to return to school and has been accepted by such 
school and scheduled to enter within 30 days prior to the scheduled 
completion of his alternative service obligation;
    (4) Has been accepted for employment and that such employment will 
not be available if he remains in alternative service the full 24 
months. Such early release shall not occur more than 30 days before the 
scheduled completion of his alternative service obligation; or
    (5) Has enlisted in or has been inducted into the Armed Forces of 
the United States.
    (c) Reclassification and Records. Upon granting an early release to 
an ASW, the Director will reclassify the ASW and transfer his records in 
accordance with Sec.  1656.19 of this part.



Sec.  1656.17  Administrative complaint process.

    (a) Whenever the ASOM learns that the ASW may have failed to perform 
satisfactorily his work (see Sec.  1656.11(b)) or he receives a 
complaint by an employer or an ASW involving the ASW's work other than 
matters described in

[[Page 240]]

Sec.  1656.8(b) of this part, he shall take necessary action to:
    (1) Interview, as appropriate, all parties concerned to obtain 
information relevant to the problems or complaints;
    (2) Place a written summary of each interview in the ASW's file and 
employer's file;
    (3) Inform the persons interviewed that they may prepare and submit 
to him within ten days after the interview their personal written 
statements concerning the problem;
    (4) Place such statements in the ASW's file; and
    (5) Resolve the matter.
    (b) The employer or ASW may seek a review of the decision pursuant 
to Sec.  1656.17(a)(5). Such request must be filed in writing with the 
ASO, for action by the State Director of Selective Service, within ten 
days after the date the notice of the decision is transmitted to the ASW 
and employer.



Sec.  1656.18  Computation of creditable time.

    (a) Creditable time starts when the ASW begins work pursuant to an 
Order to Perform Alternative Service or 30 days after the issuance of 
such order, whichever occurs first. Creditable time will accumulate 
except for periods of:
    (1) Work of less than 35 hours a week or an employer's full-time 
work week whichever is greater;
    (2) Leaves of absence in a calendar year of more than 5 days in the 
aggregate granted by the employer to the ASW to attend to his personal 
affairs unless such absence is approved by the ASOM;
    (3) Time during which an ASW fails or neglects to perform 
satisfactorily his assigned Alternative Service;
    (4) Time during which the ASOM determines that work of the ASW is 
unsatisfactory because of his failure to comply with reasonable 
requirements of his employer;
    (5) Time during which the ASW is not employed in an approved job 
because of his own fault; or
    (6) Time during which the ASW is in a postponement period or his 
Order to Perform Alternative Service has been suspended.
    (b) Creditable time will be awarded for periods of travel, job 
placement and job interviews performed under orders issued by Selective 
Service. Creditable time may be awarded for normal employer leave 
periods.
    (c) Creditable time will be awarded to an ASW for the time lost 
after he leaves his job assignment following his request for 
reassignment on the basis of Sec.  1656.13(b) of this part until he is 
reassigned pursuant to Sec.  1656.13 (c) or (f) of this part. Creditable 
time for the corresponding period will be lost if neither the ASOM nor 
the District Appeal Board orders the ASW's reassignment on the basis of 
Sec.  1656.12(a)(1) of this part.

[48 FR 16676, Apr. 19, 1983, as amended at 69 FR 20544, Apr. 16, 2004]



Sec.  1656.19  Completion of alternative service.

    Upon completion of 24 months of creditable time served in 
alternative service or when released early in accordance with Sec.  
1656.16(b) (3) or (4):
    (a) The ASW shall be released from the Alternative Service Program; 
and
    (b) The Director shall issue to the ASW a Certificate of Completion 
and the registrant shall be reclassified in Class 4-W in accordance with 
Sec.  1630.47 of this chapter, and
    (c) The ASW's records shall be returned to the area office of 
jurisdiction after the ASW has completed his obligation or has been 
separated from the Alternative Service Program for any reason.



Sec.  1656.20  Expenses for emergency medical care.

    (a) Claims for payment of actual and reasonable expenses for 
emergency medical care, including hospitalization, of ASWs who suffer 
illness or injury, and the transportation and burial of the remains of 
ASWs who suffer death as a direct result of such illness or injury will 
be paid in accordance with the provisions of this section.
    (b) The term ``emergency medical care, including hospitalization'', 
as used in this section, means such medical care or hospitalization that 
normally must be rendered promptly after occurrence of the illness or 
injury necessitating such treatment. Discharge

[[Page 241]]

by a physician or facility subsequent to such medical care or 
hospitalization shall terminate the period of emergency.
    (c) Claims will be considered only for expenses:
    (1) For which only the ASW is liable and for which there is no legal 
liability for his reimbursement except in accord with the provisions of 
this section; and
    (2) That are incurred as a result of illness or injury that occurs 
while the ASW is acting in accord with orders of Selective Service to 
engage in travel or perform work for his Alternative Service employer.
    (d) No claim shall be allowed in any case in which the Director 
determines that the injury, illness, or death occurred because of the 
negligence or misconduct of the ASW.
    (e) No claim shall be paid unless it is presented to the Director 
within one year after the date on which the expense was incurred.
    (f) Cost of emergency medical care including hospitalization greater 
than usual and customary fees for service established by the Social 
Security Administration, will prima facie be considered unreasonable. 
Payment for burial expenses shall not exceed the maximum that the 
Administrator of Veteran's Affairs may pay under the provisions of 38 
U.S.C. 902(a) in any one case.
    (g) Payment of claims when allowed shall be made only directly to 
the ASW or his estate unless written authorization of the ASW or the 
personal representative of his estate has been received to pay another 
person.



PART 1657_OVERSEAS REGISTRANT PROCESSING--Table of Contents



Sec.
1657.1 Purpose; definition.
1657.2 Local boards.
1657.3 District appeal boards.
1657.4 Consideration of claims.
1657.5 Place of induction.
1657.6 Transportation.

    Authority: Military Selective Service Act, 50 U.S.C. 451 et seq.; 
E.O. 11623.

    Source: 52 FR 24459, July 1, 1987, unless otherwise noted.



Sec.  1657.1  Purpose; definition.

    (a) The provisions of this part apply to the processing of overseas 
registrants, and, where applicable, they supersede inconsistent 
provisions in this chapter.
    (b) An overseas registrant is a registrant whose bona fide current 
address most recently provided by him to the Selective Service System is 
outside the United States, its territories or possessions, Commonwealth 
of Puerto Rico, Canada and Mexico.



Sec.  1657.2  Local boards.

    The Director shall establish local boards with jurisdiction to 
determine claims of overseas registrants. Such boards shall consist of 
three or more members appointed by the President. The Director shall 
prescribe the geographic jurisdiction of each board, and designate or 
establish an area office to support it.



Sec.  1657.3  District appeal boards.

    The Director shall establish district appeal boards with 
jurisdiction to determine appeals of claims of overseas registrants. 
Such boards shall consist of three or more members appointed by the 
President. The Director shall prescribe the geographic jurisdiction of 
each board.



Sec.  1657.4  Consideration of claims.

    An overseas registrant's claim shall be determined by a local board 
(or its supporting area office) or appeal board as may be established in 
accord with this part or, upon the request of the registrant filed no 
later than the filing of his claim for reclassification, by the board 
having geographic jurisdiction over his permanent address within the 
United States last reported by him to the Selective Service System prior 
to issuance of his induction order.



Sec.  1657.5  Place of induction.

    The Director may order an overseas registrant to any place in the 
world for induction.



Sec.  1657.6  Transportation.

    (a) The Director shall furnish transportation for an overseas 
registrant

[[Page 242]]

from the place at which the registrant's order to report for induction 
was sent to the place he is required to report for induction. If such 
registrant is not inducted, the Director shall furnish him 
transportation from the place he reported for induction to the place to 
which his order to report for induction was sent.
    (b) In the event the personal appearance before a local board or 
appeal board of an overseas registrant is required or permitted by 
regulation, travel expenses incurred in personally appearing before the 
board shall be at the registrant's own expense.



PART 1659_EXTRAORDINARY EXPENSES OF REGISTRANTS--Table of Contents



    Authority: Military Selective Service Act, 50 U.S.C. App. 451 et 
seq.; E.O. 11623.



Sec.  1659.1  Claims.

    (a) Claims for payment of actual and reasonable expenses of:
    (1) Emergency medical care, including hospitalization of registrants 
who suffer illness or injury; and
    (2) The transportation and burial of the remains of registrants who 
suffer death while acting under orders issued by or under the authority 
of the Director of Selective Service will be paid in accordance with the 
provisions of this section.
    (b) Claims for payment of expenses incurred for the purposes set 
forth in paragraph (a) of this section shall be presented to the 
Director of Selective Service.
    (c)(1) The term emergency medical care, including hospitalization, 
as used in this section, shall be construed to mean such medical care or 
hospitalization that normally must be rendered promptly after an 
occurrence of illness or injury. Discharge by a physician or facility 
subsequent to such medical care or hospitalization shall be 
justification to terminate the period of emergency.
    (2) The death of a registrant shall be deemed to have occurred while 
acting under orders issued by or under the authority of the Director of 
Selective Service if it results directly from an illness or injury 
suffered by the registrant while so acting and occurs prior to the 
completion of an emergency medical care, including hospitalization, 
occasioned by such illness or injury.
    (d) No such claim shall be paid unless it is presented within the 
period of one year from the date on which the expenses were incurred.
    (e) No such claim shall be allowed in case it is determined that the 
cause of injury, illness, or death was due to negligence or misconduct 
of the registrant.
    (f) Burial expenses shall not exceed the maximum prescribed in 
Section 11 of the Military Selective Service Act in any one case.
    (g) Payment of such claims when allowed shall be made only:
    (1) Directly to the person or facility with which the expenses were 
incurred; or
    (2) By reimbursement to the registrant, a relative of the 
registrant, or the legal representative of the registrant's estate, for 
original payment of such expenses.

[47 FR 4664, Feb. 1, 1982]



PART 1662_FREEDOM OF INFORMATION ACT (FOIA) PROCEDURES--Table of Contents



Sec.
1662.1 Applicability of this part.
1662.2 Procedure for requesting information.
1662.3 Identification of information requested.
1662.4 Consideration of requests for information.
1662.5 Inspection, copying, and obtaining copies.
1662.6 Fee schedule; waiver of fees.

    Authority: 5 U.S.C. 552, as amended.

    Source: 47 FR 7223, Feb. 18, 1982, unless otherwise noted.



Sec.  1662.1  Applicability of this part.

    The provisions of this part prescribe the procedures for requests 
for information under 5 U.S.C. 552, as amended (Freedom of Information 
Act).



Sec.  1662.2  Procedure for requesting information.

    Requests for information under the Freedom of Information Act (FOIA)

[[Page 243]]

shall be in writing and should be addressed to the Director, Selective 
Service System, ATTN: Records Manager, Washington, DC 20435.



Sec.  1662.3  Identification of information requested.

    Any person who requests information under FOIA shall provide a 
reasonably specific description of the information sought so that it may 
be located without undue search. If the description is not sufficient, 
the records manager will notify the requester and, to the extent 
possible, indicate the additional information required. Every reasonable 
effort shall be made to assist a requester in the identification and 
location of the record or records sought.



Sec.  1662.4  Consideration of requests for information.

    (a) Upon receipt of any request for information or records, the 
records manager will determine within 10 days (excepting Saturdays, 
Sundays, and legal federal holidays) whether it is appropriate to grant 
the request and will immediately provide written notification to the 
person making the request. If the request is denied, the written 
notification to the person making the request will include the reasons 
therefor and a notice that an appeal may be lodged with the Director of 
Selective Service.
    (b) Appeals shall be in writing and addressed to the Director of 
Selective Service at the address specified in Sec.  1662.2 of this part. 
The appeal shall include a statement explaining the basis for the 
appeal. Determinations of appeals will be in writing and signed by the 
Director, or his designee, within 20 days (excepting Saturdays, Sundays, 
and legal federal holidays). If, on appeal, the denial is in whole or in 
part upheld, the written determination will include the reasons therefor 
and also contain a notification of the provisions for judicial review.



Sec.  1662.5  Inspection, copying, and obtaining copies.

    When a request for information has been approved in accord with 
Sec.  1662.4, the person making the request may make an appointment to 
inspect or copy the materials requested during regular business hours by 
writing or telephoning the records manager at the address listed in 
Sec.  1662.2. Such materials may be copied manually without charge, and 
reasonable facilities will be made available for that purpose. Also, 
copies of individual pages of such materials will be made available as 
specified in Sec.  1662.6; however, the right is reserved to limit to a 
reasonable quantity the copies of such materials which may be made 
available in this manner.



Sec.  1662.6  Fee schedule; waiver of fees.

    (a) Definitions. For the purposes of this section:
    (1) Direct costs mean those expenditures which the Selective Service 
System (SSS) actually incurs in searching for and duplicating (and in 
the case of commercial requesters, reviewing) documents to respond to a 
FOIA request. Direct costs include, for example, the salary of the 
employee performing work (the basic rate of pay for the employee plus 16 
percent of the rate to cover benefits) and the cost of operating 
duplicating machinery. Not included in direct costs are overhead 
expenses such as costs of space, and heating or lighting the facility in 
which the records are stored.
    (2) The term search includes all time spent looking for material 
that is responsive to a request, including page-by-page or line-by-line 
identification of material within documents. Search should be 
distinguished from review of material in order to determine whether the 
material is exempt from disclosure (see paragraph (a)(4) of this 
section). Searches may be done manually or by computer using existing 
programming.
    (3) Duplication refers to the process of making a copy of a document 
necessary to respond to an FOIA request. Such copies may take the form 
of paper copy, microform, audio-visual materials, or machine readable 
documentation (e.g., magnetic tape or disk), among others.
    (4) Review refers to the process of examining documents located in 
response to a commercial use request to determine whether any portion of 
any document located is permitted to be withheld. It also includes 
processing any documents for disclosure, e.g., doing all that is 
necessary to excise them and

[[Page 244]]

otherwise to prepare them for release. Review does not include time 
spent resolving general legal or policy issues regarding the application 
of exemptions.
    (5) The term `commercial use' request refers to a request from or on 
behalf of one who seeks information for the use or purpose that furthers 
the commercial, trade, or profit interests of the requester or the 
person on whose behalf the request is made. In determining whether a 
request properly belongs in this category the agency must determine the 
use to which a requester will put the documents requested. Moreover 
where there is reasonable cause to doubt the use to which a requester 
will put the records sought, or where that use is not clear from the 
request itself, the agency may seek additional clarification before 
assigning the request to a specific category.
    (6) The term educational institution refers to a preschool, a public 
or private elementary or secondary school, an institution of graduate 
higher education, an institution of undergraduate higher education, an 
institution of professional education, and an institution of vocational 
education, which operates a program or programs of scholarly research.
    (7) The term non-commercial scientific institution refers to an 
institution that is not operated on a commercial basis as that term is 
referenced in paragraph (a)(5) of this section, and which is operated 
solely for the purpose of conducting scientific research the results of 
which are not intended to promote any particular product or industry.
    (8) The term representative of the news media refers to any person 
actively gathering news for an entity that is organized and operated to 
publish or broadcast news to the public. The term news means information 
that is about current events or that would be of current interest to the 
public. Examples of news media entities include television or radio 
stations broadcasting to the public at large, and publishers of 
periodicals (but only in those instances when they can qualify as 
disseminators of news) who make their products available for purchase or 
subscription by the general public. These examples are not intended to 
be all-inclusive. Moreover, as traditional methods of news delivery 
evolve (e.g., electronic dissemination of newspapers through 
telecommunications services), such alternative media would be included 
in this category. In the case of freelance journalists, they may be 
regarded as working for a news organization if they can demonstrate a 
solid basis for expecting publication through that organization, even 
though not actually employed by it. A publication contract would be the 
clearest proof, but the agency may also look to the past publication 
record of a requester in making this determination.
    (b) Fees to be charged--categories of requesters. There are four 
categories of FOIA requesters: Commercial use requesters; education and 
non-commercial scientific institutions; representatives of the news 
media; and other requesters. The FOI Reform Act prescribes specific 
levels of fees for each of these categories:
    (1) Commercial use requesters. A request for documents for 
commercial use will be assessed charges which recover the full direct 
costs of searching for, reviewing for release, and duplicating the 
records sought. Requesters must reasonably describe the record sought. 
Commercial use requesters are not entitled to two hours of free search 
time nor 100 free pages of reproduction of documents. The cost of 
searching for and reviewing records will be recovered even if there is 
ultimately no disclosure of records (see paragraph (c)(5) of this 
section).
    (2) Educational and non-commercial scientific institution 
requesters. Documents to requesters in this category will be provided 
for the cost of reproduction alone, excluding charges for the first 100 
pages. To be eligible for inclusion in this category, a requester must 
show that the request is being made as authorized by and under the 
auspices of a qualifying institution and that the records are not sought 
for a commercial use, but are sought in furtherance of scholarly (if the 
request is from an educational institution) or scientific (if the 
request is from a non-commercial scientific institution) research. 
Requesters must reasonably describe the records sought.

[[Page 245]]

    (3) Requesters who are representatives of the news media. Documents 
will be provided to requesters in this category for the cost of 
reproduction alone, excluding charges for the first 100 pages. To be 
eligible for inclusion in this category, a requester must meet the 
criteria in paragraph (a)(8) of this section, and his or her request 
must not be made for a commercial use. A request for records supporting 
the news dissemination function of the requester shall not be considered 
to be a request that is for a commercial use. Requesters must reasonably 
describe the records sought.
    (4) All other requesters. The agency will charge requesters who do 
not fit into any of the categories above fees which recover the full 
reasonable direct cost of searching for and reproducing records that are 
responsive to the request, except that the first 100 pages of 
reproduction and the first two hours of search time shall be furnished 
without charge. Moreover, requests from record subjects for records 
about themselves filed in the agency's systems of records will continue 
to be treated under the fee provisions of the Privacy Act of 1974 which 
permit fees only for reproduction.
    (c) Assessment and collection of fees--(1) Aggregated requests. If 
the Records Manager reasonably believes that a requester or group of 
requesters is attempting to break a request down into a series of 
requests for the purpose of evading the assessment of fees, the Records 
Manager may aggregate any such requests accordingly.
    (2) Payment procedures--(i) Fee payment. The Records Manager may 
assume that a person requesting records pursuant to this part will pay 
the applicable fees, unless a request includes a limitation on fees to 
be paid or seeks a waiver or reduction of fees pursuant to paragraph 
(c)(4) of this section. Unless applicable fees are paid, the agency may 
use the authorities of the Debt Collection Act (Pub. L. 97-365), 
including disclosure to consumer reporting agencies and use of 
collection agencies, where appropriate, to encourage payment.
    (ii) Advance payment. (A) The Records Manager may require advance 
payment of any fee estimated to exceed $250. The Records Manager may 
also require full payment in advance where a requester has previously 
failed to pay fees in a timely fashion.
    (B) If the Records Manager estimates that the fees will likely 
exceed $25, he will notify the requester of the estimated amount of 
fees, unless the requester has indicated in advance his willingness to 
pay fees as high as those anticipated. Such a notice shall offer a 
requester the opportunity to confer with agency personnel with the 
object of reformulating the request to meet his or her needs at a lower 
cost.
    (3) Late charges. The Records Manager may assess interest charges 
when fee payment is not made within 30 days of the date on which the 
billing was sent. Interest will be at the rate prescribed in section 
3717 of title 31 U.S.C.A.
    (4) Waiver or reduction of fees--(i) Standards for determining 
waiver or reduction. The Records Manager shall grant a waiver or 
reduction of fees chargeable under this section where it is determined 
that disclosure of the information is in the public interest because it 
is likely to contribute significantly to public understanding of the 
operations or activities of the Selective Service System and is not 
primarily in the commercial interest of the requester. The Records 
Manager shall also waive fees that are less than the average cost of 
collecting fees. In determining whether disclosure is in the public 
interest, the following factors may be considered:
    (A) The relation of the records to the operations or activities of 
the System;
    (B) The information value of the information to be disclosed;
    (C) Any contribution to an understanding of the subject by the 
general public likely to result from disclosure;
    (D) The significance of that contribution to the public 
understanding of the subject;
    (E) The nature of the requester's personal interest, if any, in the 
disclosure requested; and
    (F) Whether the disclosure would be primarily in the requester's 
commercial interest.
    (ii) Contents of request for waiver. The Records Manager will 
normally

[[Page 246]]

deny a request for a waiver of fees that does not include:
    (A) A clear statement of the requester's interest in the requested 
documents;
    (B) The use proposed for the documents and whether the requester 
will derive income or other benefit from such use;
    (C) A statement of how the public will benefit from such use and 
from the release of the requested documents; and
    (D) If specialized use of the documents or information is 
contemplated, a statement of the requester's qualifications that are 
relevant to the specialized use.
    (iii) Burden of proof. In all cases the burden shall be on the 
requester to present evidence or information in support of a request for 
a waiver of fees.
    (5) Fees for nonproductive search. Fees for record searches and 
review may be charged even if not responsive documents are located or if 
the request is denied, particularly if the requester insists upon a 
search after being informed that it is likely to be nonproductive or 
that any records found are likely to be exempt from disclosure. The 
Records Manager shall apply the standards set out in paragraph (c)(4) of 
this section in determining whether to waive or reduce fees.

     Appendix A to Sec.  1662.6--Freedom of Information Fee Schedule

                              Duplication:

Photocopy, per standard page........................................$.10
Paper Copies of microfiche, per frame...............................$.10

                           Search and review:

    Salary of the employee (the basic rate of pay of the employee plus 
16 percent of that rate to cover benefits), performing the work of 
manual search and review.

                     Computer search and production:

    For each request the Records Manager will separately determine the 
actual direct costs of providing the service, including computer search 
time, tape or printout production, and operator salary.

                            Special services:

    The Records Manager may agree to provide and set fees to recover the 
costs of special services not covered by the Freedom of Information Act, 
such as certifying records or information, packaging and mailing 
records, and sending records by special methods such as express mail. 
The Records Manager may provide self-service photocopy machines and 
microfiche printers as a convenience to requesters and set separate 
perpage fees reflecting the cost of operation and maintenance of those 
machines.

                              Fee waivers:

    For qualifying educational and noncommercial scientific institution 
requesters and representatives of the news media the Records Manager 
will not assess fees for review time, for the first 100 pages of 
reproduction, or, when the records sought are reasonably described, for 
search time. For other noncommercial use requests no fees will be 
assessed for review time, for the first 100 pages of reproduction, or 
for the first two hours of search time.
    The Records Manager will waive in full fees that total less than 
$1.00 or that are less than the average cost of collecting fees.
    The Records Manager will also waive or reduce fees, upon proper 
request, if disclosure of the information is in the public interest 
because it is likely to contribute significantly to public understanding 
of the operations or activities of the System and is not primarily in 
the commercial interest of the requester.

[52 FR 13665, Apr. 24, 1987]



PART 1665_PRIVACY ACT PROCEDURES--Table of Contents



Sec.
1665.1 Rules for determining if an individual is the subject of a 
          record.
1665.2 Requests for access.
1665.3 Access to the accounting of disclosures from records.
1665.4 Requests to amend records.
1665.5 Request for review.
1665.6 Schedule of fees.
1665.7 Information available to the public or to former employers of 
          registrants.
1665.8 Systems of records exempted from certain provisions of this act.

    Authority: 5 U.S.C. 552a.

    Source: 47 FR 7224, Feb. 18, 1982, unless otherwise noted.



Sec.  1665.1  Rules for determining if an individual is the subject of
a record.

    (a) Individuals desiring to know if a specific system of records 
maintained by the Selective Service System (SSS) contains a record 
pertaining to them should address their inquiries to the Selective 
Service System, ATTN:

[[Page 247]]

Records Manager, Public & Intergovernmental Affairs, Arlington, VA 
22209-2425. The written inquiry should contain a specific reference to 
the system of records maintained by Selective Service listed in the SSS 
Notices of Systems of Records or it should describe the type of record 
in sufficient detail to reasonably identify the system of records. 
Notice of SSS Systems of Records subject to the Privacy Act is in the 
Federal Register and copies of the notices will be available upon 
request to the records manager. A compilation of such notices will also 
be made and published by the Office of Federal Register, in accord with 
section 5 U.S.C. 552a(f).
    (b) At a minimum, the request should also contain sufficient 
information to identify the requester in order to allow SSS to determine 
if there is a record pertaining to that individual in a particular 
system of records. In instances when the information is insufficient to 
insure that disclosure will be to the individual to whom the information 
pertains, in view of the sensitivity of the information, SSS reserves 
the right to ask the requester for additional identifying information.
    (c) Ordinarily the requester will be informed whether the named 
system of records contains a record pertaining to the requester within 
10 days of receipt of such a request (excluding Saturdays, Sundays, and 
legal federal holidays). Such a response will also contain or reference 
the procedures which must be followed by the individual making the 
request in order to gain access to the record.
    (d) Whenever a response cannot be made within the 10 days, the 
records manager will inform the requester of the reason for the delay 
and the date by which a response may be anticipated.

[47 FR 7224, Feb. 18, 1982; 69 FR 1525, Jan. 9, 2004]



Sec.  1665.2  Requests for access.

    (a) Requirement for written requests. Individuals desiring to gain 
access to a record pertaining to them in a system of records maintained 
by SSS must submit their request in writing in accord with the 
procedures set forth in paragraph (b) below.
    (b) Procedures--(1) Content of the request. (i) The request for 
access to a record in a system of records shall be addressed to the 
records manager, at the address cited above, and shall name the system 
of records or contain a description of such system of records. The 
request should state that the request is pursuant to the Privacy Act of 
1974. In the absence of specifying solely the Privacy Act of 1974 and, 
if the request may be processed under both the Freedom of Information 
Act and the Privacy Act and the request specifies both or neither act, 
the procedures under the Privacy Act of 1974 will be employed. The 
individual will be advised that the procedures of the Privacy Act will 
be utilized, of the existence and the general effect of the Freedom of 
Information Act, and the difference between procedures under the two 
acts (e.g. fees, time limits, access). The request should contain 
necessary information to verify the identity of the requester (see Sec.  
1665.2(b)(2)(vi)). In addition, the requester should include any other 
information which may assist in the rapid identification of the record 
for which access is being requested (e.g., maiden name, dates of 
employment, etc.) as well as any other identifying information contained 
in and required by SSS Notice of Systems of Records.
    (ii) If the request for access follows a prior request under Sec.  
1665.1, the same identifying information need not be included in the 
request for access if a reference is made to that prior correspondence, 
or a copy of the SSS response to that request is attached.
    (iii) If the individual specifically desires a copy of the record, 
the request should so specify.
    (2) SSS action on request. A request for access will ordinarily be 
answered within 10 days, except when the records manager determines that 
access cannot be afforded in that time, in which case the requester will 
be informed of the reason for the delay and an estimated date by which 
the request will be answered. Normally access will be granted within 30 
days from the date the request was received by the Selective Service 
System. At a minimum, the answer to the request for access shall include 
the following:

[[Page 248]]

    (i) A statement that there is a record as requested or a statement 
that there is not a record in the system of records maintained by SSS;
    (ii) A statement as to whether access will be granted only by 
providing copy of the record through the mail; or the address of the 
location and the date and time at which the record may be examined. In 
the event the requester is unable to meet the specified date and time, 
alternative arrangements may be made with the official specified in 
Sec.  1665.2(b)(1);
    (iii) A statement, when appropriate, that examination in person will 
be the sole means of granting access only when the records manager has 
determined that it would not unduly impede the requester's right of 
access;
    (iv) The amount of fees charged, if any (see Sec.  1665.6) (Fees are 
applicable only to requests for copies);
    (v) The name, title, and telephone number of the SSS official having 
operational control over the record; and
    (vi) The documentation required by SSS to verify the identity of the 
requester. At a minimum, SSS's verification standards include the 
following:
    (A) Current or former SSS employees. Current or former SSS employees 
requesting access to a record pertaining to them in a system of records 
maintained by SSS may, in addition to the other requirements of this 
section, and at the sole discretion of the official having operational 
control over the record, have his or her identity verified by visual 
observation. If the current or former SSS employee cannot be so 
identified by the official having operational control over the records, 
identification documentation will be required. Employee identification 
cards, annuitant identification, drivers licenses, or the employee copy 
of any official personnel document in the record are examples of 
acceptable identification validation.
    (B) Other than current or former SSS employees. Individuals other 
than current or former SSS employees requesting access to a record 
pertaining to them in a system of records maintained by SSS must produce 
identification documentation of the type described herein, prior to 
being granted access. The extent of the identification documentation 
required will depend on the type of record to be accessed. In most 
cases, identification verification will be accomplished by the 
presentation of two forms of identification. Any additional requirements 
are specified in the system notices published pursuant to 5 U.S.C. 
552a(e)(4).
    (C) Access granted by mail. For records to be accessed by mail, the 
records manager shall, to the extent possible, establish identity by a 
comparison of signatures in situations where the data in the record is 
not so sensitive that unauthorized access could cause harm or 
embarrassment to the individual to whom they pertain. No identification 
documentation will be required for the disclosure to the requester of 
information required to be made available to the public by 5 U.S.C. 552. 
When in the opinion of the records manager the granting of access 
through the mail could reasonably be expected to result in harm or 
embarrassment if disclosed to a person other than the individual to whom 
the record pertains, a notarized statement of identity or some similar 
assurance of identity will be required.
    (D) Unavailability of identification documentation. If an individual 
is unable to produce adequate identification documentation the 
individual will be required to sign a statement asserting identity and 
acknowledging that knowingly or willfully seeking or obtaining access to 
a record about another person under false pretenses may result in a fine 
of up to $5,000. In addition, depending upon the sensitivity of the 
records sought to be accessed, the official having operational control 
over the records may require such further reasonable assurances as may 
be considered appropriate e.g., statements of other individuals who can 
attest to the identity of the requester. No verification of identity 
will be required of individuals seeking access to records which are 
otherwise available to any person under 5 U.S.C. 552, Freedom of 
Information Act.
    (E) Access by the parent of a minor, or legal guardian. A parent of 
a minor, upon presenting suitable personal identification, may access on 
behalf of the minor any record pertaining to the minor

[[Page 249]]

maintained by SSS in a system of records. A legal guardian may similarly 
act on behalf of an individual declared to be incompetent due to 
physical or mental incapacity or age by a court of competent 
jurisdiction. Absent a court order or consent, a parent or legal 
guardian has no absolute right to have access to a record about a child. 
Minors are not precluded from exercising on their own behalf rights 
given to them by the Privacy Act.
    (F) Granting access when accompanied by another individual. When an 
individual requesting access to his or her record in a system of records 
maintained by SSS wishes to be accompanied by another individual during 
the course of the examination of the record, the individual making the 
request shall submit to the official having operational control of the 
record, a signed statement authorizing that person access to the record.
    (G) Denial of access for inadequate identification documentation. If 
the official having operational control over the records in a system of 
records maintained by SSS determines that an individual seeking access 
has not provided sufficient identification documentation to permit 
access, the official shall consult with the records manager prior to 
finally denying the individual access.
    (H) Review of decision to deny access. Whenever the records manager 
determines, in accordance with the procedures herein, that access cannot 
be granted the response will also include a statement of the procedures 
to obtain a review of the decision to deny in accord with Sec.  1665.5.
    (vii) Exceptions. (A) Nothing in these regulations shall be 
construed to entitle an individual the right to access to any 
information compiled in reasonable anticipation of a civil action or 
proceeding. The mere fact that records in a system of records are 
frequently the subject of litigation does not bring those systems of 
records within the scope of this provision. This provision is not 
intended to preclude access by an individual to the records which are 
available to that individual under the other processes such as the 
Freedom of Information Act or the rules of civil procedure.
    (B) Within any system of records pertaining to possible violations 
of the Military Selective Service Act, the identity of or any 
information pertaining to any individual who provides information 
relating to a suspected violator will not be revealed to the suspected 
violator. This exemption is made under the provision of 5 U.S.C. 
552a(k)(2).



Sec.  1665.3  Access to the accounting of disclosures from records.

    Rules governing the granting of access to the accounting of 
disclosure are the same as those for granting accesses to the records 
(including verification of identity) outlined in Sec.  1665.2.



Sec.  1665.4  Requests to amend records.

    (a) Requirement for written requests. Individuals desiring to amend 
a record that pertains to them in a system of records maintained by SSS 
must submit their request in writing in accord with the procedures set 
forth herein. Records not subject to the Privacy Act of 1974 will not be 
amended in accord with these provisions. However, individuals who 
believe that such records are inaccurate may bring this to the attention 
of SSS.
    (b) Procedures. (1)(i) The requests to amend a record in a system of 
records shall be addressed to the records manager. Included in the 
request shall be the name of the system and a brief description of the 
record proposed for amendment. In the event the request to amend the 
record is the result of the individual's having gained access to the 
record in accordance with the provisions concerning access to records as 
set forth above, copies of previous correspondence between the requester 
and SSS will serve in lieu of a separate description of the record.
    (ii) When the individual's identity has been previously verified 
pursuant to Sec.  1665.2(b)(2)(vi), further verification of identity is 
not required as long as the communication does not suggest that a need 
for verification is present. If the individual's identity has not been 
previously verified, SSS may require identification validation as 
described in Sec.  1665.2(b)(2)(vi). Individuals desiring assistance in 
the preparation of a request to amend a record should

[[Page 250]]

contact the records manager at the address cited above.
    (iii) The exact portion of the record the individual seeks to have 
amended should be clearly indicated. If possible, the proposed 
alternative language should also be set forth, or at a minimum, the 
facts which the individual believes are not accurate, relevant, timely, 
or complete should be set forth with such particularity as to permit SSS 
not only to understand the individual's basis for the request, but also 
to make an appropriate amendment to the record.
    (iv) The request must also set forth the reasons why the individual 
believes his record is not accurate, relevant, timely, or complete. In 
order to avoid the retention by SSS of personal information merely to 
permit verification of records, the burden of persuading SSS to amend a 
record will be upon the individual. The individual must furnish 
sufficient facts to persuade the official in charge of the system of the 
inaccuracy, irrelevancy, timeliness or incompleteness of the record.
    (v) Incomplete or inaccurate requests will not be rejected 
categorically. The individual will be asked to clarify the request as 
needed.
    (2) SSS action on the request. To the extent possible, a decision, 
upon a request to amend a record will be made within 10 days, (excluding 
Saturdays, Sundays, and legal Federal holidays). The response reflecting 
the decisions upon a request for amendment will include the following:
    (i) The decision of the Selective Service System whether to grant in 
whole, or deny any part of the request to amend the record.
    (ii) The reasons for determination for any portion of the request 
which is denied.
    (iii) The name and address of the official with whom an appeal of 
the denial may be lodged.
    (iv) The name and address of the official designated to assist, as 
necessary and upon request of, the individual making the request in 
preparation of the appeal.
    (v) A description of the review of the appeal with SSS (see Sec.  
1665.5).
    (vi) A description of any other procedures which may be required of 
the individual in order to process the appeal.
    (3) If the nature of the request for the correction of the system of 
records precludes a decision within 10 days, the individual making the 
request will be informed within 10 days of the extended date for a 
decision. Such a decision will be issued as soon as it is reasonably 
possible, normally within 30 days from the receipt of the request 
(excluding Saturdays, Sundays, and legal Federal holidays) unless 
unusual circumstances preclude completing action within that time. If 
the expected completion date for the decision indicated cannot be met, 
the individual will be advised of the delay of a revised date when the 
decision may be expected to be completed.



Sec.  1665.5  Request for review.

    (a) Individuals wishing to request a review of the decision by SSS 
with regard to any initial request to access or amend a record in accord 
with the provisions of Sec. Sec.  1665.2 and 1665.4, should submit the 
request for review in writing and, to the extent possible, include the 
information specified in Sec.  1665.5(b). Individuals desiring 
assistance in the preparation of their request for review should contact 
the records manager at the address provided herein.
    (b) The request for review should contain a brief description of the 
record involved or in lieu thereof, copies of the correspondence from 
SSS in which the request to access or to amend was denied and also the 
reasons why the requester believes that access should be granted or the 
disputed information amended. The request for review should make 
reference to the information furnished by the individual in support of 
his claim and the reasons as required by Sec. Sec.  1665.2 and 1665.4 
set forth by SSS in its decision denying access or amendment. Appeals 
filed without a complete statement by the requester setting forth the 
reasons for review will, of course, be processed. However, in order to 
make the appellate process as meaningful as possible, the requester's 
disagreement should be set forth in an understandable manner. In order 
to avoid the unnecessary retention of personal information, SSS reserves 
the

[[Page 251]]

right to dispose of the material concerning the request to access or 
amend a record if no request for review in accord with this section is 
received by SSS within 180 days of the mailing by SSS of its decision 
upon an initial request. A request for review received after the 180 day 
period may, at the discretion of the records manager, be treated as an 
initial request to access or amend a record.
    (c) The request for review should be addressed to the Director of 
Selective Service.
    (d) The Director of Selective Service will inform the requester in 
writing of the decision on the request for review within 20 days 
(excluding Saturdays, Sundays, and legal federal holidays) from the date 
of receipt by SSS of the individual's request for review unless the 
Director extends the 20 days period for good cause. The extension and 
the reasons therefor will be sent by SSS to the requester within the 
initial 20 day period. Such extensions should not be routine and should 
not normally exceed an additional thirty days. If the decision does not 
grant in full the request for amendment, the notice of the decision will 
provide a description of the steps the individual may take to obtain 
judicial review of such a decision, a statement that the individual may 
file a concise statement with SSS setting forth the individual's reasons 
for his disagreement with the decision and the procedures for filing 
such a statement of disagreement. The Director of Selective Service has 
the authority to determine the conciseness of the statement, taking into 
account the scope of the disagreement and the complexity of the issues. 
Upon the filing of a proper, concise statement by the individual, any 
subsequent disclosure of the information in dispute will be clearly 
noted so that the fact that the record is disputed is apparent, a copy 
of the concise statement furnished and a concise statement by SSS 
setting forth its reasons for not making the requested changes, if SSS 
chooses to file such a statement. A notation of a dispute is required to 
be made only if an individual informs the agency of his disagreement 
with SSS's determination in accord with Sec.  1665.5(a), (b) and (c). A 
copy of the individual's statement, and if it chooses, SSS's statement 
will be sent to any prior transferee of the disputed information who is 
listed on the accounting required by 5 U.S.C. 552a(c). If the reviewing 
official determines that the record should be amended in accord with the 
individual's request, SSS will promptly correct the record, advise the 
individual, and inform previous recipients if an accounting of the 
disclosure was made pursuant to 5 U.S.C. 552a(c). The notification of 
correction pertains to information actually disclosed.



Sec.  1665.6  Schedule of fees.

    (a) Prohibitions against charging fees. Individuals will not be 
charged for:
    (1) The search and review of the record.
    (2) Any copies of the record produced as a necessary part of the 
process of making the record available for access, or
    (3) Any copies of the requested record when it has been determined 
that access can only be accomplished by providing a copy of the record 
through the mail.
    (4) Where a registrant has been charged under the Military Selective 
Service Act and must defend himself in a criminal prosecution, or where 
a registrant submits to induction and thereafter brings habeas corpus 
proceedings to test the validity of his induction, the Selective Service 
System will furnish to him, or to any person he may designate, one copy 
of his Selective Service file free of charge.
    (b) Waiver. The Director of Selective Service may at no charge, 
provide copies of a record if it is determined the production of the 
copies is in the interest of the Government.
    (c) Fee schedule and method of payment. Fees will be charged as 
provided below except as provided in paragraphs (a) and (b) of this 
section.
    (1) Duplication of records. Records will be duplicated at a rate of 
$.25 per page.
    (2) Fees should be paid in full prior to issuance of requested 
copies. In the event the requester is in arrears for previous requests, 
copies will not be provided for any subsequent request until the arrears 
have been paid in full.
    (3) Remittance shall be in the form of cash, a personal check or 
bank draft

[[Page 252]]

drawn on a bank in the United States, or postal money order. Remittances 
shall be made payable to the order of the Selective Service System and 
mailed or delivered to the records manager, Selective Service System, 
Arlington, VA 22209-2425.
    (4) A receipt of fees paid will be given upon request.

[47 FR 7224, Feb. 18, 1982; 69 FR 1525, Jan. 9, 2004]



Sec.  1665.7  Information available to the public or to former employers
of registrants.

    (a) Each area office maintains a classification record which 
contains the name, Selective Service number, and the current and past 
classifications for each person assigned to that board. Information in 
this record may be inspected at the area office at which it is 
maintained.
    (b) Any compensated employee of the Selective Service System may 
disclose to the former employer of a registrant who is serving in or who 
has been discharged from the Armed Forces whether the registrant has or 
has not been discharged and, if discharged, the date thereof, upon 
reasonable proof that the registrant left a position in the employ of 
the person requesting such information in order to serve in the Armed 
Forces.
    (c) Whenever an office referred to in this section is closed, the 
request for information that otherwise would be submitted to it should 
be submitted to the National Headquarters, Selective Service System, 
Arlington, VA 22209-2425.

[47 FR 7224, Feb. 18, 1982; 69 FR 1525, Jan. 9, 2004]



Sec.  1665.8  Systems of records exempted from certain provisions of
this act.

    Pursuant to 5 U.S.C. 552a(k)(2), the Selective Service System will 
not reveal to the suspected violator the informant's name or other 
identifying information relating to the informant.

[47 FR 24543, June 7, 1982]

                          PART 1690 [RESERVED]



PART 1697_SALARY OFFSET--Table of Contents



Sec.
1697.1 Purpose and scope.
1697.2 Definitions.
1697.3 Applicability.
1697.4 Notice requirements.
1697.5 Hearing.
1697.6 Written decision.
1697.7 Coordinating offset with another Federal agency.
1697.8 Procedures for salary offset.
1697.9 Refunds.
1697.10 Statute of Limitations.
1697.11 Non-waiver of rights.
1697.12 Interest, penalties, and administrative costs.

    Authority: 5 U.S.C. 5514, and 5 CFR part 550, subpart K.

    Source: 54 FR 48098, Nov. 21, 1989, unless otherwise noted.



Sec.  1697.1  Purpose and scope.

    (a) This regulation provides procedures for the collection by 
administrative offset of a federal employee's salary without his/her 
consent to satisfy certain debts owed to the federal government. These 
regulations apply to all federal employees who owe debts to the 
Selective Service System and to current employees of the Selective 
Service System who owe debts to other federal agencies. This regulation 
does not apply when the employee consents to recovery from his/her 
current pay account.
    (b) This regulation does not apply to debts or claims arising under:
    (1) The Internal Revenue Code of 1954, as amended, 26 U.S.C. 1 et 
seq.;
    (2) The Social Security Act, 42 U.S.C. 301 et seq.:
    (3) The tariff laws of the United States; or
    (4) Any case where a collection of a debt by salary offset is 
explicitly provided for or prohibited by another statute (e.g., travel 
advances in 5 U.S.C. 5705 and employee training expenses in 5 U.S.C. 
4108).
    (c) This regulation does not apply to any adjustment to pay arising 
out of an employee's selection of coverage or a change in coverage under 
a federal benefits program requiring periodic deductions from pay if the 
amount to be recovered was accumulated over four pay periods or less.

[[Page 253]]

    (d) This regulation does not preclude the compromise, suspension, or 
termination of collection action where appropriate under the standards 
implementing the Federal Claims Collection Act 31 U.S.C. 3711 et seq. 4 
CFR parts 101 through 105 and 45 CFR part 1177.
    (e) This regulation does not preclude an employee from requesting 
waiver of an overpayment under 5 U.S.C. 5584, 10 U.S.C. 2774 or 32 
U.S.C. 716 or in any way questioning the amount or validity of the debt 
by submitting a subsequent claim to the General Accounting Office. This 
regulation does not preclude an employee from requesting a waiver 
pursuant to other statutory provisions applicable to the particular debt 
being collected.
    (f) Matters not addressed in these regulations should be reviewed in 
accordance with the Federal Claims Collection Standards at 4 CFR 101.1 
et seq.



Sec.  1697.2  Definitions.

    For the purposes of the part the following definitions will apply:
    Agency means an executive agency as is defined at 5 U.S.C. 105 
including the U.S. Postal Service and the U.S. Postal Rate Commission; a 
military department as defined in 5 U.S.C. 102; an agency or court in 
the judicial branch, including a court as defined in section 610 of 
title 28 U.S.C., the District Court for the Northern Mariana Islands, 
and the Judicial Panel on Multidistrict Litigation; an agency of the 
legislative branch including the U.S. Senate and House of 
Representatives; and other independent establishments that are entities 
of the federal government.
    Creditor agency means the agency to which the debt is owed.
    Debt means an amount owed to the United States from sources which 
include loans insured or guaranteed by the United States and all other 
amounts due the United States from fees, leases, rents, royalties, 
services, sales of real or personal property, overpayments, penalties, 
damages, interests, fines, forfeitures (except those arising under the 
Uniform Code of Military Justice) and all other similar sources.
    Director means the Director of Selective Service or his designee.
    Disposable pay means the amount that remains from an employee's 
federal pay after required deductions for social security, federal, 
state or local income tax, health insurance premiums, retirement 
contributions, life insurance premiums, federal employment taxes, and 
any other deductions that are required to be withheld by law.
    Employee means a current employee of an agency, including a current 
member of the Armed Forces or a Reserve of the Armed Forces (Reserves).
    Hearing official means an individual responsible for conducting any 
hearing with respect to the existence or amount of a debt claimed, and 
who renders a decision on the basis of such hearing. A hearing official 
may not be under the supervision or control of the Director of Selective 
Service.
    Paying Agency means the agency that employs the individual who owes 
the debt and authorizes the payment of his/her current pay.
    Salary offset means an administrative offset to collect a debt 
pursuant to 5 U.S.C. 5514 by deduction(s) at one or more officially 
established pay intervals from the current pay account of an employee 
without his/her consent.
    Waiver means the cancellation, remission, forgiveness, or non-
recovery of a debt allegedly owed by an employee to an agency as 
permitted or required by 5 U.S.C. 5584, 10 U.S.C. 2774., 32 U.S.C. 716, 
5 U.S.C. 8346(b), or any other law.



Sec.  1697.3  Applicability.

    (a) These regulations are to be followed when:
    (1) The Selective Service System is owed a debt by an individual 
currently employed by another federal agency;
    (2) The Selective Service System is owed a debt by an individual who 
is a current employee of the Selective Service System; or
    (3) The Selective Service System employs an individual who owes a 
debt to another federal agency.



Sec.  1697.4  Notice requirements.

    (a) Deductions shall not be made unless the employee is provided 
with written notice signed by the Director

[[Page 254]]

of the debt at least 30 days before salary offset commences.
    (b) The written notice shall contain:
    (1) A statement that the debt is owed and an explanation of its 
nature and amount;
    (2) The agency's intention to collect the debt by deducting from the 
employee's current disposable pay account;
    (3) The amount, frequency, proposed beginning date, and duration of 
the intended deduction(s);
    (4) An explanation of interest, penalties, and administrative 
charges, including a statement that such charges will be assessed unless 
excused in accordance with the Federal Claims Collection Standards at 4 
CFR 101.1 et seq.;
    (5) The employee's right to inspect or request and receive a copy of 
government records relating to the debt;
    (6) The opportunity to establish a written schedule for the 
voluntary repayment of the debt;
    (7) The right to a hearing conducted by an impartial hearing 
official;
    (8) The methods and time period for petitioning for hearings;
    (9) A statement that the timely filing of a petition for a hearing 
will stay the commencement of collection proceedings;
    (10) A statement that a final decision on the hearing will be issued 
not later than 60 days after the filing of the petition requesting the 
hearing unless the employee requests and the hearing official grants a 
delay in the proceedings;
    (11) A statement that any knowingly false or frivolous statements, 
representations, or evidence may subject the employee to:
    (i) Disciplinary procedures appropriate under chapter 75 of title 5 
U.S.C., part 752 of title 5, Code of Federal Regulations, or any other 
applicable statutes or regulations;
    (ii) Penalties under the False Claims Act, sections 3729 through 
3731 of title 31 U.S.C., or any other applicable statutory authority; or
    (iii) Criminal penalties under sections 286, 287, 1001, and 1002 of 
title 18 U.S.C., or any other applicable statutory authority.
    (12) A statement of other rights and remedies available to the 
employee under statutes or regulations governing the program for which 
the collection is being made; and
    (13) Unless there are contractual or statutory provisions to the 
contrary, a statement that amounts paid on or deducted for the debt 
which are later waived or found not owed to the United States will be 
promptly refunded to the employee.



Sec.  1697.5  Hearing.

    (a) Request for hearing. (1) An employee must file a petition for a 
hearing in accordance with the instructions outlined in the agency's 
notice to offset.
    (2) A hearing may be requested by filing a written petition 
addressed to the Director of Selective Service stating why the employee 
disputes the existence or amount of the debt. The petition for a hearing 
must be received by the Director no later than fifteen (15) calendar 
days after the date of the notice to offset unless the employee can show 
good cause for failing to meet the deadline date.
    (b) Hearing procedures. (1) The hearing will be presided over by an 
impartial hearing official.
    (2) The hearing shall conform to procedures contained in the Federal 
Claims Collection Standards 4 CFR 102.3(c). The burden shall be on the 
employee to demonstrate that the existence or the amount of the debt is 
in error.



Sec.  1697.6  Written decision.

    (a) The hearing official shall issue a written opinion no later than 
60 days after the hearing.
    (b) The written opinion will include: a statement of the facts 
presented to demonstrate the nature and origin of the alleged debt; the 
hearing official's analysis, findings and conclusions; the amount and 
validity of the debt, and the repayment schedule, if applicable.



Sec.  1697.7  Coordinating offset with another federal agency.

    (a) The Selective Service System as the creditor agency. (1) When 
the Director determines that an employee of a federal agency owes a 
delinquent debt to the Selective Service System, the Director shall as 
appropriate:

[[Page 255]]

    (i) Arrange for a hearing upon the proper petitioning by the 
employee;
    (ii) Certify in writing to the paying agency that the employee owes 
the debt, the amount and basis of the debt, the date on which payment is 
due, the date the government's right to collect the debt accrued, and 
that Selective Service System regulations for salary offset have been 
approved by the Office of Personnel Management;
    (iii) If collection must be made in installments, the Director must 
advise the paying agency of the amount or percentage of disposable pay 
to be collected in each installment;
    (iv) Advise the paying agency of the actions taken under 5 U.S.C. 
5514(b) and provide the dates on which action was taken unless the 
employee has consented to salary offset in writing or signed a statement 
acknowledging receipt of procedures required by law. The written consent 
or acknowledgement must be sent to the paying agency;
    (v) If the employee is in the process of separating, the Selective 
Service System must submit its debt claim to the paying agency as 
provided in this part. The paying agency must certify any amounts 
already collected, notify the employee and send a copy of the 
certification and notice of the employee's separation to the creditor 
agency. If the creditor agency is aware that the employee is entitled to 
Civil Service Retirement and Disability Fund or similar payments, it 
must certify to the agency responsible for making such payments the 
amount of the debt and that the provisions of this part have been 
followed; and
    (vi) If the employee has already separated and all payments due from 
the paying agency have been paid, the Director may request, unless 
otherwise prohibited, that money payable to the employee from the Civil 
Service Retirement and Disability Fund or other similar funds be 
collected by administrative offset as provided under 5 CFR 831.1801 or 
other provisions of law or regulation.
    (b) The Selective Service System as the paying agency. (1) Upon 
receipt of a properly certified debt claim from another agency, 
deductions will be scheduled to begin at the next established pay 
interval. The employee must receive written notice that the Selective 
Service System has received a certified debt claim from the creditor 
agency, the amount of the debt, the date salary offset will begin, and 
the amount of the deduction(s). The Selective Service System shall not 
review the merits of the creditor agency's determination of the validity 
or the amount of the certified claim.
    (2) If the employee transfers to another agency after the creditor 
agency has submitted its debt claim to the Selective Service System and 
before the debt is collected completely, the Selective Service System 
must certify the total amount collected. One copy of the certification 
must be furnished to the employee. A copy must be furnished the creditor 
agency with notice of the employee's transfer.



Sec.  1697.8  Procedures for salary offset.

    (a) Deductions to liquidate an employee's debt will be by the method 
and in the amount stated in the Director's notice of intention to offset 
as provided in Sec.  1697.4. Debts will be collected in one lump sum 
where possible. If the employee is financially unable to pay in one lum 
sum, collection must be made in installments.
    (b) Debts will be collected by deduction at officially established 
pay intervals from an employee's current pay account unless alternative 
arrangements for repayment are made with the approval of the Director.
    (c) Installment deductions will be made over a period not greater 
than the anticipated period of employment. The size of installment 
deductions must bear a reasonable relationship to the size of the debt 
and the employee's ability to pay. The deduction for the pay intervals 
for any period must not exceed 15% of disposable pay unless the employee 
has agreed in writing to a deduction of a greater amount.
    (d) Unliquidated debts may be offset against any financial payment 
due to a separated employee including but not limited to final salary or 
leave payment in accordance with 31 U.S.C. 3716.



Sec.  1697.9  Refunds.

    (a) The Selective Service System will refund promptly any amounts 
deducted

[[Page 256]]

to satisfy debts owed to the Selective Service System when the debt is 
waived, found not owed to the Selective Service System, or when directed 
by an administrative or judicial order.
    (b) The creditor agency will promptly return any amounts deducted by 
the Selective Service System to satisfy debts owed to the creditor 
agency when the debt is waived, found not owed, or when directed by an 
administrative or judicial order.
    (c) Unless required by law, refunds under this subsection shall not 
bear interest.



Sec.  1697.10  Statute of Limitations.

    If a debt has been outstanding for more than 10 years after the 
agency's right to collect the debt first accrued, the agency may not 
collect by salary offset unless facts material to the government's right 
to collect were not known and could not reasonably have been known by 
the official or officials who were charged with the responsibility for 
discovery and collection of such debts.



Sec.  1697.11  Non-waiver of rights.

    An employee's involuntary payment of all or any part of a debt 
collected under these regulations will not be construed as a waiver of 
any rights that employee may have under 5 U.S.C. 5514 or any other 
provision of contract or law unless there are statutes or contract(s) to 
the contrary.



Sec.  1697.12  Interest, penalties, and administrative costs.

    Charges may be assessed for interest, penalties, and administrative 
costs in accordance with the Federal Claims Collection Standards, 4 CFR 
102.13



PART 1698_ADVISORY OPINIONS--Table of Contents



Sec.
1698.1 Purpose.
1698.2 Requests for advisory opinions.
1698.3 Requests for additional information.
1698.4 Confidentiality of advisory opinions and requests for advisory 
          opinions.
1698.5 Basis for advisory opinions.
1698.6 Issuance of advisory opinions.
1698.7 Reconsideration of advisory opinion.
1698.8 Effect of advisory opinions.

    Authority: Military Selective Service Act, 50 U.S.C. 451 et seq.; 
E.O. 11623.

    Source: 52 FR 24460, July 1, 1987, unless otherwise noted.



Sec.  1698.1  Purpose.

    The provisions of this part prescribe the procedures for requesting 
and processing requests for advisory opinions relative to a named 
individual's liability for registration under the Military Selective 
Service Act (MSSA), 50 U.S.C. App. 451 et seq.



Sec.  1698.2  Requests for advisory opinions.

    (a) Any male born after December 31, 1959 who has attained 18 years 
of age may request an advisory opinion as to his liability to register 
under MSSA. A parent or guardian of such person who is unable to make a 
request for an advisory opinion may request an advisory opinion for him. 
Any Federal, state or municipal governmental agency may request an 
advisory opinion as to the liability of any male person born after 
December 31, 1959 who has attained 18 years of age to register under 
MSSA.
    (b) Requests for advisory opinions shall be in writing and addressed 
to Director of Selective Service, ATTN: SIL, P.O. Box 94638, Palatine, 
IL 60094-4638. With respect to the person concerning whom an advisory 
opinion is requested, the following should be furnished: full name, 
address, date of birth, Social Security Account Number, basis for the 
opinion that the registration requirement is inapplicable to him, and, 
if applicable, basis for his assertion that his failure to register ``. 
. . was not a knowing and willful failure to register.''

[52 FR 24460, July 1, 1987, as amended at 65 FR 47670, Aug. 3, 2000]



Sec.  1698.3  Requests for additional information.

    (a) The Director may request additional appropriate information from 
the requester for an advisory opinion.
    (b) The Director will forward a copy of the request by a Federal, 
state or municipal governmental agency for an advisory opinion to the 
person to whom the request pertains and invite his comments on it.

[[Page 257]]



Sec.  1698.4  Confidentiality of advisory opinions and requests for
advisory opinions.

    Advisory opinions will be confidential except as provided in Sec.  
1698.6. Requests for advisory opinions will be confidential except as 
provided in Sec.  1698.3.



Sec.  1698.5  Basis of advisory opinions.

    Advisory opinions will be based on the request therefor, responses 
to requests for information, and matters of which the Director can take 
official notice.



Sec.  1698.6  Issuance of advisory opinions.

    A copy of the advisory opinion will be furnished, without charge, to 
the requester therefor and to the individual to whom it pertains. A copy 
of an advisory opinion will be furnished, without charge, to any 
Federal, state, or municipal governmental agency upon request.



Sec.  1698.7  Reconsideration of advisory opinions.

    Whenever the Director has reason to believe that there is 
substantial error in the information on which an advisory opinion is 
based, he may reconsider it and issue an appropriate revised opinion.



Sec.  1698.8  Effect of advisory opinion.

    The Selective Service System will not take action with respect to 
any person concerning whom the Director has issued an advisory opinion 
insonsistent with that advisory opinion.



PART 1699_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN
PROGRAMS OR ACTIVITIES CONDUCTED BY SELECTIVE SERVICE SYSTEM-
-Table of Contents



Sec.
1699.101 Purpose.
1699.102 Application.
1699.103 Definitions.
1699.104-1699.109 [Reserved]
1699.110 Self-evaluation.
1699.111 Notice.
1699.112-1699.129 [Reserved]
1699.130 General prohibitions against discrimination.
1699.131-1699.139 [Reserved]
1699.140 Employment.
1699.141-1699.148 [Reserved]
1699.149 Program accessibility: discrimination prohibited.
1699.150 Program accessibility: existing facilities.
1699.151 Program accessibility: new construction and alterations.
1699.152-1699.159 [Reserved]
1699.160 Communications.
1699.161-1699.169 [Reserved]
1699.170 Compliance procedure.
1699.171-1699.999 [Reserved]

    Authority: 9 U.S.C. 794.

    Source: 50 FR 35219, Aug. 30, 1985, unless otherwise noted.



Sec.  1699.101  Purpose.

    The purpose of this part is to effectuate section 119 of the 
Rehabilitation, Comprehensive Services, and Developmental Disabilities 
Amendments of 1978, which amended section 504 of the Rehabilitation Act 
of 1973 to prohibit discrimination on the basis of handicap in programs 
or activities conducted by Executive agencies or the United States 
Postal Service.



Sec.  1699.102  Application.

    This part applies to all programs or activities conducted by the 
agency.



Sec.  1699.103  Definitions.

    For purposes of this part, the term--
    Agency means the Selective Service System.
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the agency. For example, auxiliary aids useful 
for persons with impaired vision include readers, Brailled materials, 
audio recordings, telecommunications devices and other similar services 
and devices. Auxiliary aids useful for persons with impaired hearing 
include telephone handset amplifiers, telephones compatible with hearing 
aids, telecommunication devices for deaf

[[Page 258]]

persons (TDD's), interpreters, notetakers, written materials, and other 
similar services and devices.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the agency's alleged 
discriminatory action in sufficient detail to inform the agency of the 
nature and date of the alleged violation of section 504. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf. Complaints filed on behalf of classes or third parties shall 
describe or identify (by name, if possible) the alleged victims of 
discrimination.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    Handicapped person means 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.
    As used in this definition, the phrase:
    (1) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term physical or mental impairment 
includes, but is not limited to, such disease and conditions as 
orthopedic, visual, speech, and hearing impairments, cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, 
diabetes, mental retardation, emotional illness, and drug addition and 
alcoholism.
    (2) Major life activities includes 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 means 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 means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the agency as constituting 
such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (l) of this 
definition but is treated by the agency as having such an impairment.
    Qualified handicapped person means--
    (1) With respect to any agency program or activity under which a 
person is required to perform services or to achieve a level of 
accomplishment, a handicapped person who meets the essential eligibility 
requirements and who can achieve the purpose of the program or activity 
without modifications in the program or activity that the agency can 
demonstrate would result in a fundamental alteration in its nature; or
    (2) With respect to any other program or activity, a handicapped 
person who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617), 
and the Rehabilitation, Comprehensive Services, and Development 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used 
in this part, section 504 applies only to programs or activities 
conducted by Executive agencies and not to federally assisted programs.



Sec. Sec.  1699.104-1699.109  [Reserved]



Sec.  1699.110  Self-evaluation.

    (a) The agency shall, within one year of the effective date of this 
part, evaluate its current policies and practices,

[[Page 259]]

and the effects thereof, that do not or may not meet the requirements of 
this part, and, to the extent modification of any such policies and 
practices is required, the agency shall proceed to make the necessary 
modifications.
    (b) The agency shall provide an opportunity to interested persons, 
including handicapped persons or organizations representing handicapped 
persons, to participate in the self-evaluation process by submitting 
comments (both oral and written).
    (c) The agency shall, for at least three years following completion 
of the evaluation required under paragraph (a) of this section, maintain 
on file and make available for public inspection--
    (1) A description of areas examined and any problems identified; and
    (2) A description of any modifications made.



Sec.  1699.111  Notice.

    The agency shall make available to employees, applicants, 
participants, beneficiaries, and other interested persons such 
information regarding the provisions of this part and its applicability 
to the programs or activities conducted by the agency, and make such 
information available to them in such manner as the agency head finds 
necessary to apprise such persons of the protections against 
discrimination assured them by section 504 and its regulation.



Sec. Sec.  1699.112-1699.129  [Reserved]



Sec.  1699.130  General prohibitions against discrimination.

    (a) No qualified handicapped person shall, on the basis of handicap, 
be excluded from participation in, be denied the benefits of, or 
otherwise be subjected to discrimination under any program or activity 
conducted by the agency.
    (b)(1) The agency, in providing any aid, benefit or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of handicap--
    (i) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) 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;
    (iii) Provide a qualified handicapped person with an aid, benefit, 
or service that is not as effective in affording equal opportunity to 
obtain the same result, to gain the same benefit, or to reach the same 
level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
handicapped persons or to any class of handicapped persons than is 
provided to others unless such action is necessary to provide qualified 
handicapped persons with aids, benefits, or services that are as 
effective as those provided to others;
    (v) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified handicapped person in the enjoyment 
of any right, privilege, advantage, or opportunity enjoyed by others 
receiving the aid, benefit, or service.
    (2) The agency may not deny a qualified handicapped person the 
opportunity to participate in programs or activities that are not 
separate or different, despite the existence of permissibly separate or 
different programs or activities.
    (3) The agency may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified handicapped persons to discrimination on the 
basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to handicapped persons.
    (4) The agency may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude handicapped persons from, deny them the benefits of, or 
otherwise subject them to discrimination under, any program or activity 
conducted by the agency; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives

[[Page 260]]

of a program or activity with respect to handicapped persons.
    (5) The agency, in the selection of procurement contractors, may not 
use criteria that subject qualified handicapped persons to 
discrimination on the basis of handicap.
    (6) The agency may not administer a licensing or certification 
program in a manner that subjects qualified handicapped persons to 
discrimination on the basis of handicap, nor may the agency establish 
requirements for the programs or activities of licensees or certified 
entities that subject qualified handicapped persons to discrimination on 
the basis of handicap. However, the programs or activities of entities 
that are licensed or certified by the agency are not, themselves, 
covered by this part.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by Federal statute or Executive order to handicapped 
persons or the exclusion of a specific class of handicapped persons from 
a program limited by Federal statute or Executive order to a different 
class of handicapped person is not prohibited by this part.
    (d) The agency shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified handicapped 
persons.



Sec. Sec.  1699.131-1699.139  [Reserved]



Sec.  1699.140  Employment.

    No qualified handicapped person shall, on the basis of handicap, be 
subjected to discrimination in employment under any program or activity 
conducted by the agency. The definitions, requirements and procedures of 
section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as 
established in 29 CFR part 1613, shall apply to employment in federally 
conducted programs or activities.



Sec. Sec.  1699.141-1699.148  [Reserved]



Sec.  1699.149  Program accessibility: discrimination prohibited.

    Except as otherwise provided in Sec.  1699.150, no qualified 
handicapped persons shall, because the agency's facilities are 
inaccessible to or unusable by handicapped persons, be denied the 
benefits of, be excluded from participation in, or otherwise be subject 
to discrimination under any program or activity conducted by the agency.



Sec.  1699.150  Program accessibility: existing facilities.

    (a) General. The agency 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 paragraph does 
not--
    (1) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by handicapped persons;
    (2) Require the agency to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where agency personnel believe that the proposed action 
would fundamentally alter the program or activity or would result in 
undue financial and administrative burdens, the agency has the burden of 
proving that compliance with Sec.  1699.150(a) would result in such 
alterations or burdens. The decision that compliance would result in 
such alteration or burdens must be made by the agency head after 
considering all agency resources available for use in the funding and 
operation of the conducted program or activity, and must be accompanied 
by a written statement of the reasons for reaching that conclusion. If 
an action would result in such an alteration or such burdens, the agency 
shall take any other action that would not result in such an alteration 
or such burdens but would nevertheless ensure that handicapped persons 
receive the benefits and services of the program or activity.
    (b) Methods. The agency may comply with the requirements of this 
section through such means as redesign of equipment, reassignment of 
services to accessible buildings, assignment of aides to beneficiaries, 
home visits, delivery of services at alternate accessible sites, 
alteration of existing facilities and construction of new facilities, 
use of accessible rolling stock, or any other methods that result in 
making

[[Page 261]]

its programs or activities readily accessible to and usable by 
handicapped persons. The agency is not required to make structural 
changes in existing facilities where other methods are effective in 
achieving compliance with this section. The agency, in making 
alterations to existing buildings, shall meet accessibility requirements 
to the extent compelled by the Architectural Barriers Act of 1968, as 
amended (42 U.S.C. 4141 through 4157), and any regulations implementing 
it. In choosing among available methods for meeting the requirements of 
this section, the agency shall give priority to those methods that offer 
programs and activities to qualified handicapped persons in the most 
integrated setting appropriate.
    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section within sixty days of the 
effective date of this part except that where structural changes in 
facilities are undertaken, such changes shall be made within three years 
of the effective date of this part, but in any event as expeditiously as 
possible.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
agency shall develop, within six months of the effective date of this 
part, a transition plan setting forth the steps necessary to complete 
such changes. The agency shall provide an opportunity to interested 
persons, including handicapped persons or organizations representing 
handicapped persons, to participate in the development of the transition 
by submitting comments (both oral and written). A copy of the transition 
plan shall be made available for public inspection. The plan shall, at a 
minimum--
    (1) Identify physical obstacles in the agency's facilities that 
limit the accessibility of its programs or activities 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 
compliance with this section and, at the time, identify steps that will 
be taken during each year of the transition period; and
    (4) Indicate the officials responsible for implementation of the 
plan.



Sec.  1699.151  Program accessibility: new construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the agency shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
handcapped persons. The definitions, requirements, and standards of the 
Architectural Barriers Act (42 U.S.C. 4151 through 4157), as established 
in 41 CFR 101-19.600 to 14-19.607, apply to buildings covered by this 
section.



Sec. Sec.  1699.152-1699.159  [Reserved]



Sec.  1699.160  Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aid where 
necessary to afford a handicapped person an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the 
agency shall give primary consideration to the requests of the 
handicapped person.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the agency communicates with applicants and beneficiaries 
by telephone, telecommunications devices for deaf persons (TDD's), or 
equally effective telecommunication systems shall be used.
    (b) The agency shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The agency shall provide signs at a primary entrance to each of 
its inaccessible facilities, directing users to a location at which they 
can obtain information about accessible facilities.

[[Page 262]]

The international symbol for accessibility shall be used at each primary 
entrance of an accessible facility.
    (d) This section does not require the agency to take any action that 
it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and administrative 
burdens. In those circumstances where agency personnel believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the agency 
has the burden of proving that compliance with Sec.  1699.160 would 
result in such alteration or burdens. The decision that compliance would 
result in such alteration or burdens must be made by the agency head 
after considering all agency resources available for use in the funding 
and operation of the conducted program or activity, and must be 
accompanied by a written statement of the reasons for reaching that 
conclusion. If an action required to comply with this section would 
result in such burdens, the agency shall take any other action that 
would not result in such an alteration or such burdens but would 
nevertheless ensure that, to the maximum extent possible, handicapped 
persons receive the benefits and services of the program or activity.



Sec. Sec.  1699.161-1699.169  [Reserved]



Sec.  1699.170  Compliance procedure.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
handicap in programs or activities conducted by the agency.
    (b) The agency shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established in 29 CFR part 1613 pursuant to section 501 of the 
Rehabilitation Act of 1973 (29 U.S.C. 791).
    (c) Responsibility for implementation and operation of this section 
shall be vested in the Associate Director for Administration.
    (d) The agency shall accept and investigate all complete complaints 
for which it has jurisdiction. All complete complaints must be filed 
within 180 days of the alleged act of discrimination. The agency may 
extend this time period for good cause.
    (e) If the agency receives a complaint over which it does not have 
jurisdiction, it shall promptly notify the complainant and shall make 
reasonable efforts to refer the complaint to the appropriate government 
entity.
    (f) The agency shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151 through 4157), or section 502 of the 
Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily 
accessible and usable to handicapped persons.
    (g) Within 180 days of the receipt of a complete complaint for which 
it has jurisdiction, the agency shall notify the complainant of the 
results of the investigation in a letter containing--
    (1) Findings of fact and conclusion of law;
    (2) A description of a remedy of each violation found; and
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within 90 days of receipt from 
the agency of the letter required by Sec.  1699.170(g). The agency may 
extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the Director 
of Selective Service.
    (j) The agency shall notify the complainant of the results of the 
appeal within 60 days of the receipt of the request. If the agency 
determines that it needs additional information from the complainant, it 
shall have 60 days from the date it receives the additional information 
to make its determination on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section 
may be extended with the permission of the Assistant Attorney General.
    (l) The agency may delegate its authority for conducting complaint 
investigations to other Federal agencies, except that the authority for 
making the final determination may not be delegated.



Sec. Sec.  1699.171-1699.999  [Reserved]

[[Page 263]]



      CHAPTER XVII--OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE




  --------------------------------------------------------------------
Part                                                                Page
1700            Procedures for disclosure of records 
                    pursuant to the Freedom of Information 
                    Act.....................................         265
1701            Administration of records under the Privacy 
                    Act of 1974.............................         272
1702            Procedures governing the acceptance of 
                    service of process......................         287
1703            Production of ODNI information or material 
                    in proceedings before Federal, State, 
                    local or other government entity of 
                    competent jurisdiction..................         288
1704            Mandatory declassification review program...         290
1705-1799

 [Reserved]

[[Page 265]]



PART 1700_PROCEDURES FOR DISCLOSURE OF RECORDS PURSUANT TO THE FREEDOM OF
INFORMATION ACT--Table of Contents



Sec.
1700.1 Authority and purpose.
1700.2 Definitions.
1700.3 Contact for general information and requests.
1700.4 Preliminary information.
1700.5 Requirements as to form and content.
1700.6 Fees for records services.
1700.7 Processing of requests for records.
1700.8 Action on the request.
1700.9 Payment of fees, notification of decision, and right of appeal.
1700.10 Procedures for business information.
1700.11 Procedures for information concerning other persons.
1700.12 Requests for expedited processing.
1700.13 Right to appeal and appeal procedures.
1700.14 Action by appeals authority.

    Authority: 5 U.S.C. 552, 50 U.S.C. 401-442; Pub. L. 108-458, 118 
Stat. 3638.

    Source: 72 FR 45894, Aug. 16, 2007, unless otherwise noted.



Sec.  1700.1  Authority and purpose.

    (a) Authority. This part is issued under the authority of and in 
order to implement the Freedom of Information Act, as amended, 5 U.S.C. 
552; the National Security Act of 1947, as amended, 50 U.S.C. 401-442; 
and the Intelligence Reform and Terrorism Prevention Act of 2004, Pub. 
L. 108-458, 118 Stat. 3638.
    (b) Purpose in general. This part prescribes procedures for:
    (1) ODNI administration of the FOIA;
    (2) Requesting records pursuant to the FOIA; and
    (3) Filing an administrative appeal of an initial adverse decision 
under the FOIA.



Sec.  1700.2  Definitions.

    For purposes of this Part, the following terms have the meanings 
indicated:
    (a) Days means calendar days when ODNI is operating and specifically 
excludes Saturdays, Sundays, and legal public holidays;
    (b) Direct costs means those expenditures which ODNI actually incurs 
in the processing of a FOIA request; it does not include overhead 
factors such as space;
    (c) Pages means paper copies of standard office size or the dollar 
value equivalent in other media;
    (d) Reproduction means generation of a copy of a requested record in 
a form appropriate for release;
    (e) Review means all time expended in examining a record to 
determine whether any portion must be withheld pursuant to law and in 
effecting any required deletions but excludes personnel hours expended 
in resolving general legal or policy issues; it also means personnel 
hours of professional time;
    (f) Search means all time expended in looking for and retrieving 
material that may be responsive to a request utilizing available paper 
and electronic indices and finding aids; it also means personnel hours 
of professional time or the dollar value equivalent in computer 
searches;
    (g) Expression of interest means a written or electronic 
communication submitted by any person requesting information on or 
concerning the FOIA program, the availability of documents from ODNI, or 
both;
    (h) Fees means those direct costs which may be assessed a requester 
considering the categories established by the FOIA; requesters should 
submit information to assist the ODNI in determining the proper fee 
category and the ODNI may draw reasonable inferences from the identity 
and activities of the requester in making such determinations; the fee 
categories include:
    (1) Commercial use request: A request in which the disclosure sought 
is primarily in the commercial interest of the requester and which 
furthers such commercial, trade, income or profit interests;
    (2) Educational institution: A preschool, a public or private 
elementary or secondary school, an institution of undergraduate higher 
education, an institution of graduate higher education, an institution 
of professional education, or an institution of vocational education, 
that operates a program of scholarly research. To be in this category, a 
requester must show that the request is authorized by and is made

[[Page 266]]

under the auspices of a qualifying institution and that the records are 
not sought for a commercial use but are sought to further scholarly 
research.
    (3) Noncommercial scientific institution: An institution that is not 
operated on a commercial basis, as that term is defined in paragraph 
(h)(1) of this section, and that is operated solely for the purpose of 
conducting scientific research the results of which are not intended to 
promote any particular product or industry. To be in this category, a 
requester must show that the request is authorized by and is made under 
the auspices of a qualifying institution and that the records are not 
sought for a commercial use but are sought to further scientific 
research.
    (4) Representative of the news media: An individual actively 
gathering news for an entity that is organized and operated to publish 
and broadcast news to the public and pursuant to the entity's news 
dissemination function and not its commercial interests; the term 
``news'' means information which concerns current events, would be of 
current interest to the general public, would enhance the public 
understanding of the operations or activities of the U.S. Government, 
and is in fact disseminated to a significant element of the public at 
minimal cost; freelance journalists are included in this definition if 
they provide sufficient evidence to justify an expectation of 
publication through such an organization, even though not actually 
employed by it; a publication contract or prior publication record is 
relevant to such status;
    (5) All other: A request from an individual not within paragraphs 
(h)(1), (2), (3), or (4) of this section;
    (i) Freedom of Information Act, ``FOIA,'' or ``the Act'' means the 
statute as codified at 5 U.S.C. 552;
    (j) ODNI means the Office of the Director of National Intelligence 
and its component organizations. It does not include other members of 
the Intelligence Community as defined in 50 U.S.C. 401a, or other 
federal entities subsequently designated in accordance with this 
authority, unless specifically designated as included in this part or in 
the notice of a system of records;
    (k) Potential requester means a person, organization, or other 
entity who submits an expression of interest.



Sec.  1700.3  Contact for general information and requests.

    For general information on this Part, to inquire about the FOIA 
program at ODNI, or to file a FOIA request (or expression of interest), 
please direct communication in writing to the Office of the Director of 
National Intelligence, Chief FOIA Officer c/o Director, Information 
Management Office, Washington, DC 20511 by mail or by facsimile at (703) 
482-2144. FOIA requests can also be submitted by electronic mail to FOIA 
@ dni.gov. For general information or status information on pending 
cases only, call the ODNI FOIA Customer Service Center at (571) 204-
4774.



Sec.  1700.4  Preliminary information.

    Members of the public shall address all communications to the point 
of contact specified in Sec.  1700.3 and clearly delineate the 
communication as a request under the FOIA. ODNI staff who receive a FOIA 
request shall expeditiously forward the request to the Director, 
Information Management Office (IMO). Requests and appeals (as well as 
referrals and consultations) received from FOIA requesters who owe 
outstanding fees for information services at this or other federal 
agencies will not be accepted and action on all pending requests shall 
be terminated in such circumstances.



Sec.  1700.5  Requirements as to form and content.

    (a) Required information. No particular form is required. A request 
must reasonably describe the record or records being sought and be 
submitted in accordance with this regulation. Documents must be 
described sufficiently to enable a staff member familiar with the 
subject to locate the documents with a reasonable amount of effort. 
Whenever possible, your request should include specific information 
about each record sought, such as the date, title or name, author, 
recipient, and the subject matter of the record. As a general rule, the 
more specific you are about the records or type of records

[[Page 267]]

that you want, the more likely it will be that the IMO will be able to 
locate records responsive to your request. The IMO will provide you an 
opportunity to discuss your request with it so that you may modify your 
request to meet the requirements of this section. If after having been 
asked to do so you do not provide the IMO with information sufficient to 
enable it to locate responsive records your request will be closed.
    (b) Additional information for fee determination. A requester must 
provide sufficient personally identifying information to allow staff to 
determine the appropriate fee category and to contact the requester 
easily.



Sec.  1700.6  Fees for records services.

    (a) In general. Search, review, and reproduction fees will be 
charged in accordance with the provisions below relating to schedule, 
limitations, and category of requester. Applicable fees will be due even 
if a subsequent search locates no responsive records or some or all of 
the responsive records must be denied under one or more of the 
exemptions of the FOIA.
    (b) Fee waiver requests. Records will be furnished without charge or 
at a reduced rate when ODNI determines:
    (1) As a matter of administrative discretion, the interest of the 
United States Government would be served, or
    (2) It is in the public interest to provide responsive records 
because the disclosure is likely to contribute significantly to the 
public understanding of the operations or activities of the United 
States Government and is not primarily in the commercial interest of the 
requester.
    (c) Fee waiver appeals. Denials of requests for fee waivers or 
reductions may be appealed to the Director of the Intelligence Staff, or 
his functional equivalent, through the ODNI Chief FOIA Officer. A 
requester is encouraged to provide any explanation or argument as to how 
his or her request satisfies the requirements of this regulation and the 
Act. See Sec.  1700.14 for further details on appeals.
    (d) Time for fee waiver requests and appeals. Appeals should be 
resolved prior to the initiation of processing and the incurring of 
costs. However, fee waiver requests will be accepted at any time prior 
to an agency decision regarding the request, except when processing has 
been initiated, in which case the requester must agree to be responsible 
for costs in the event of an adverse administrative or judicial 
decision.
    (e) Agreement to pay fees. If you make a FOIA request, it shall be 
considered a firm commitment by you to pay all applicable fees 
chargeable under this regulation, up to and including the amount of 
$25.00, unless you ask for a waiver of fees. When making a request, you 
may specify a willingness to pay a greater or lesser amount.
    (f) Advance payment. The ODNI may require an advance payment of up 
to 100 percent of the estimated fees when projected fees exceed $250.00, 
not including charges associated with the first 100 pages of production 
and two hours of search (when applicable), or when the requester 
previously failed to pay fees in a timely fashion, for fees of any 
amount. ODNI will hold in abeyance for 45 days those requests where 
advance payment has been requested.
    (g) Schedule of fees--(1) In general. The schedule of fees for 
services performed in responding to requests for records is as follows:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
                       Personnel Search and Review
------------------------------------------------------------------------
Clerical/Technical...............  Quarter hour............        $5.00
Professional/Supervisory.........  Quarter hour............        10.00
Manager/Senior Professional......  Quarter hour............        18.00
------------------------------------------------------------------------
                     Computer Search and Production
------------------------------------------------------------------------
Search (on-line).................  Flat rate...............        10.00
Search (off-line)................  Flat rate...............        30.00
Other activity...................  Per minute..............        10.00
Tapes (mainframe cassette).......  Each....................         9.00

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Tapes (mainframe cartridge)......  Each....................         9.00
Tapes (mainframe reel)...........  Each....................        20.00
Tapes (PC 9mm)...................  Each....................        25.00
Diskette (3.5)........  Each....................         4.00
CD (bulk recorded)...............  Each....................        10.00
CD (recordable)..................  Each....................        20.00
Telecommunications...............  Per minute..............          .50
Paper (mainframe printer)........  Per page................          .10
Paper (PC b&w laser printer).....  Per page................          .10
Paper (PC color printer).........  Per page................         1.00
------------------------------------------------------------------------
                            Paper Production
------------------------------------------------------------------------
Photocopy (standard or legal)....  Per page................          .10
Microfiche.......................  Per frame...............          .20
Pre-printed (if available).......  Per 100 pages...........         5.00
Published (if available).........  Per item................         NTIS
------------------------------------------------------------------------

    (2) Application of schedule. Personnel search time includes time 
expended in manual paper records searches, indices searches, review of 
computer search results for relevance, and personal computer system 
searches. In any event where the actual cost to ODNI of a particular 
item is less than the above schedule (e.g., a large production run of a 
document resulting in a cost less than $5.00 per hundred pages), then 
the actual lesser cost will be charged.
    (3) Other services. For all other types of output, production, or 
reproduction (e.g., photographs, maps, or published reports), ODNI will 
charge actual cost or amounts authorized by statute. Determinations of 
actual cost shall include the commercial cost of the media, the 
personnel time expended in making the item to be released, and an 
allocated cost of the equipment used in making the item, or, if the 
production is effected by a commercial service, then that charge shall 
be deemed the actual cost for purposes of this regulation.
    (h) Limitations on collection of fees--(1) In general. No fees will 
be charged if the cost of collecting the fee is equal to or greater than 
the fee itself. That cost includes the administrative costs to ODNI of 
billing, receiving, recording, and processing the fee for deposit to the 
Treasury Department and, as of the date of these regulations, is deemed 
to be $10.00.
    (i) Fee categories. There are four categories of FOIA requesters for 
fee purposes: Commercial use requesters, educational and non-commercial 
scientific institution requesters, representatives of the news media 
requesters, and all other requesters. The categories are defined in 
Sec.  1700.2 and applicable fees will be assessed as follows:
    (1) Commercial use requesters: Charges which recover the full direct 
costs of searching for, reviewing, and duplicating responsive records 
(if any);
    (2) Educational and non-commercial scientific institution 
requesters, and representatives of the news media requesters: Only 
charges for reproduction beyond the first 100 pages;
    (3) All other requesters: Charges which recover the full direct cost 
of searching for and reproducing responsive records (if any) beyond the 
first 100 pages of reproduction and the first two hours of search time 
which will be furnished without charge.
    (j) Associated requests. If it appears a requester or a group of 
requesters acting in concert have requested portions of an apparently 
unitary request for the purpose of avoiding the assessment of fees, ODNI 
may aggregate any such requests and charge accordingly. Requests from 
multiple requesters will not be aggregated without clear evidence. ODNI 
will not aggregate multiple unrelated requests.



Sec.  1700.7  Processing of requests for records.

    (a) In general. Requests meeting the requirements of Sec.  1700.3 
through Sec.  1700.6 shall be accepted as formal requests and processed 
under the FOIA and this

[[Page 269]]

Part. A request will not be considered received until it reaches the 
IMO. Ordinarily upon its receipt a request will be date-stamped as 
received. It is this date that establishes when your request is received 
for administrative purposes, not any earlier date such as the date of 
the letter or its postmark date. For the quickest possible handling, 
both the request letter and the envelope should be marked ``Freedom of 
Information Act Request.''
    (b) Electronic Reading Room. ODNI maintains an online FOIA Reading 
Room on the ODNI Web site which contains the information that the FOIA 
requires be routinely made available for public inspection and copying 
as well as other information determined to be of general public 
interest.
    (c) Confirming the existence of certain documents. In processing a 
request, ODNI shall decline to confirm or deny the existence of 
responsive records whenever the fact of their existence or nonexistence 
is itself classified under Executive Order 12,958 and its amending 
orders, reveals intelligence sources and methods protected pursuant to 
50 U.S.C. 403-1(i)(1), or would be an invasion of the personal privacy 
of third parties. In such circumstances, ODNI, in its final written 
response, shall so inform the requester and advise of his or her right 
to file an administrative appeal.
    (d) Time for response. Whenever the statutory time limits for 
processing a request cannot be met because of ``unusual circumstances,'' 
as defined in the FOIA, and the component determines to extend the time 
limits on that basis, ODNI will inform the requester in writing and 
advise the requester of the right to narrow the scope of his or her 
request or agree to an alternative timeframe for processing.
    (e) Multitrack processing. ODNI may use two or more processing 
tracks by distinguishing between simple and more complex requests based 
on the amount of work and/or time needed to process the request, 
including through limits based on the number of pages involved. ODNI may 
provide requesters in its slower track with an opportunity to limit the 
scope of their requests in order to qualify for faster processing within 
the specified limits of its faster track.



Sec.  1700.8  Action on the request.

    (a) Initial action for access. ODNI staff identified to search for 
records pursuant to a FOIA request shall search all relevant record 
systems within their cognizance as of the date the search is commenced. 
A staff member tasked to conduct a search shall:
    (1) Determine whether records exist;
    (2) Determine whether and to what extent any FOIA exemptions apply;
    (3) Make recommendations for withholding records or portions of 
records that originated in the staff member's organization and for which 
there is a legal basis for denial or make a recommendation in accordance 
with Sec.  1700.7(c). In making recommendations, ODNI staff shall be 
guided by the procedures specified in Sec.  1700.10 regarding 
confidential commercial information and Sec.  1700.11 regarding third 
party information; and
    (4) Forward to the Director, IMO, all records responsive to the 
request.
    (b) Referrals and consultations. ODNI records containing information 
originated by other ODNI components shall be forwarded to those entities 
for action in accordance with paragraph (a) of this section and 
returned. Records originated by other federal agencies or ODNI records 
containing other federal agency information shall be forwarded to such 
agencies for processing and direct response to the requester or for 
consultation and return to the ODNI. ODNI will notify the requester if 
it makes a referral for direct response.
    (c) Release of information. When the Director, IMO (or Appeals 
Authority) makes a final determination to release records, the records 
will be forwarded to the requester in an appropriate format promptly 
upon compliance with any preliminary procedural requirements, including 
payment of fees. If any portion of a record is withheld initially or 
upon appeal, the Director, IMO (or Appeals Authority) will provide a 
written response that shall include, at a minimum:
    (1) The basis for the withholding, citing the specific statutory 
exemption or exemptions invoked under the FOIA with respect to each 
portion withheld,

[[Page 270]]

unless documents are withheld in accordance with Sec.  1700.7(c);
    (2) When the withholding is based in whole or in part on a security 
classification, the explanation shall include a determination that the 
record meets the cited criteria and rationale of the governing Executive 
Order;
    (3) When the denial is based on 5 U.S.C. 552(b)(3), the statute 
relied upon; and
    (4) Notice to the requester of the right to judicial review.



Sec.  1700.9  Payment of fees, notification of decision, and right of appeal.

    (a) Fees in general. Fees collected under this part do not accrue to 
ODNI and shall be deposited immediately to the general account of the 
United States Treasury.
    (b) Notification of decision. Upon completion of all required review 
and the receipt of accrued fees (or promise to pay such fees), ODNI will 
promptly inform the requester in writing of those records or portions of 
records that will be released and those that will be denied.
    (1) For documents to be released, ODNI will provide paper copies or 
documents on electronic media, if requested and available;
    (2) For documents not released or partially released, ODNI shall 
explain the reasons for any denial and give notice of a right of 
administrative appeal. For partial releases, redactions will be made to 
ensure requesters can see the placement and general length of redactions 
with the applicable exemption or exemptions clearly with respect to each 
redaction.



Sec.  1700.10  Procedures for business information.

    (a) In general. Business information obtained by ODNI from a 
submitter shall not be disclosed pursuant to a FOIA request except in 
accordance with this section. For purposes of this section, the 
following definitions apply:
    (1) Business information means commercial or financial information 
in which a legal entity has a recognized property interest;
    (2) Confidential commercial information means such business 
information provided to the United States Government by a submitter 
which is reasonably believed to contain information exempt from release 
under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4), because disclosure 
could reasonably be expected to cause substantial competitive harm; and
    (3) Submitter means any person or entity who provides confidential 
commercial information to the United States Government; it includes, but 
is not limited to, corporations, businesses (however organized), State 
governments, and foreign governments.
    (b) Designation of confidential commercial information. A submitter 
of business information will use good-faith efforts to designate, by 
appropriate markings, either at the time of submission or at a 
reasonable time thereafter, any portions of its submission that it 
considers to be confidential commercial information and hence protected 
from required disclosure pursuant to Exemption 4 of the FOIA. Such 
designations shall expire 10 years after the date of the submission 
unless the submitter requests, and provides justification for, a longer 
designation period.
    (c) Process in event of FOIA request--(1) Notice to submitters. ODNI 
shall provide a submitter with prompt written notice of receipt of a 
FOIA request encompassing business information whenever:
    (i) The submitter has in good faith designated the information as 
confidential commercial information, or
    (ii) ODNI staff believe that disclosure of the information could 
reasonably be expected to cause substantial competitive harm, and
    (iii) The information was submitted within the last 10 years unless 
the submitter requested and provided acceptable justification for a 
specific notice period of greater duration.
    (2) Form of notice. Communication to a submitter of commercial 
information shall either describe the exact nature of the confidential 
commercial information at issue or provide copies of the responsive 
records containing such information.
    (3) Response by submitter. (i) Within seven days of the notice 
described in

[[Page 271]]

paragraph (c)(1), all claims of confidentiality by a submitter must be 
supported by a detailed statement of any objection to disclosure. Such 
statement shall:
    (A) Affirm that the information has not been disclosed to the 
public;
    (B) Explain why the information is a trade secret or confidential 
commercial information;
    (C) Explain in detail how disclosure of the information will result 
in substantial competitive harm;
    (D) Affirm that the submitter will provide ODNI and the Department 
of Justice with such litigation support as requested; and
    (E) Be certified by an officer authorized to legally bind the 
submitter.
    (ii) It should be noted that information provided by a submitter 
pursuant to this provision may itself be subject to disclosure under the 
FOIA.
    (4) Decision and notice of intent to disclose. (i) ODNI shall 
consider carefully a submitter's objections and specific grounds for 
nondisclosure prior to its final determination. If the Director, IMO, 
decides to disclose a document over the objection of a submitter, ODNI 
shall provide the submitter a written notice that shall include:
    (A) A statement of the reasons for which the submitter's disclosure 
objections were not sustained;
    (B) A description of the information to be disclosed; and
    (C) A specified disclosure date that is seven days after the date of 
the instant notice.
    (ii) When notice is given to a submitter under this section, the 
ODNI shall also notify the requester and, if the ODNI notifies a 
submitter that it intends to disclose information, then the requester 
shall be notified also and given the proposed date for disclosure.
    (5) Notice of FOIA lawsuit. If a requester initiates legal action 
seeking to compel disclosure of information asserted to be within the 
scope of this section, ODNI shall promptly notify the submitter. The 
submitter, as specified above, shall provide such litigation assistance 
as required by ODNI and the Department of Justice.
    (6) Exceptions to notice requirement. The notice requirements of 
this section shall not apply if ODNI determines that:
    (i) The information should not be disclosed, pursuant to Exemption 4 
and/or any other exemption of the FOIA;
    (ii) The information has been published lawfully or has been 
officially made available to the public;
    (iii) The disclosure of the information is otherwise required by law 
or federal regulation; or
    (iv) The designation made by the submitter under this section 
appears frivolous, except that, in such a case, the ODNI will, within a 
reasonable time prior to the specified disclosure date, give the 
submitter written notice of any final decision to disclose the 
information.



Sec.  1700.11  Procedures for information concerning other persons.

    (a) In general. Personal information concerning individuals other 
than the requester shall not be disclosed under the FOIA if the proposed 
release would constitute a clearly unwarranted invasion of personal 
privacy, or, if the information was compiled for law enforcement 
purposes, it could reasonably be expected to constitute an unwarranted 
invasion of personal privacy. See 5 U.S.C. 552 (b)(6) and (b)(7)(C). For 
purposes of this section, the following definitions apply:
    (1) Personal information means any information about an individual 
that is not a matter of public record, or easily discernible to the 
public, or protected from disclosure because of the implications that 
arise from Government possession of such information.
    (2) Public interest means the public interest in understanding the 
operations and activities of the United States Government and not simply 
any matter that might be of general interest to the requester or members 
of the public.
    (b) Determination to be made. In making the required determination 
under this section and pursuant to Exemptions 6 and 7(C) of the FOIA, 
ODNI will balance the privacy interests that would be compromised by 
disclosure against the public interest in release of the requested 
information.

[[Page 272]]

    (c) Otherwise. A requester seeking information on a third party is 
encouraged to provide a signed affidavit or declaration from the third 
party consenting to disclosure of the information. However, any such 
statements shall be narrowly construed and the Director, IMO, in the 
exercise of that officer's discretion and administrative authority, may 
seek clarification from the third party prior to any or all releases.



Sec.  1700.12  Requests for expedited processing.

    (a) In general. All requests will be handled in the order received 
on a strictly ``first-in, first-out'' basis. Exceptions to this rule 
will only be made in accordance with the following procedures.
    (b) Procedure. A requester who seeks expedited processing must 
submit a statement, certified to be true and correct, explaining in 
detail the basis for requesting expedited processing. Within ten 
calendar days of its receipt of a request for expedited processing, the 
IMO shall decide whether to grant it and shall notify the requester of 
the decision. If a request for expedited processing is granted, the 
request shall be given priority and shall be processed as soon as 
practicable.
    (c) Determination to be made: Requests and appeals will be taken out 
of order and given expedited processing treatment whenever it is 
determined that they involve:
    (1) Circumstances in which the lack of expedited treatment could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual; or
    (2) An urgency to inform the public concerning an actual or alleged 
Federal Government activity, if made by a person primarily engaged in 
disseminating information.



Sec.  1700.13  Right to appeal and appeal procedures.

    (a) Right to appeal. Individuals who disagree with a decision not to 
produce a document or parts of a document, to deny a fee category 
request, to deny a request for a fee waiver or fee reduction, to deny 
expedited processing, or a decision regarding a fee estimate or a 
determination that no records exist, should submit a written request for 
review to the Chief FOIA Officer c/o Director, Information Management 
Office, Office of the Director of National Intelligence, Washington, DC 
20511. The words ``FOIA APPEAL'' should be written on the letter and the 
envelope. The appeal must be signed by the individual or his legal 
counsel.
    (b) Requirements as to time and form. Appeals of adverse decisions 
must be received within 45 days of the date of the ODNI's initial 
decision. Requesters should include a statement of the reasons 
supporting the request for reversal of the initial decision.
    (c) Exceptions. No appeal shall be accepted if the requester has 
outstanding fees for information services at this or another federal 
agency. In addition, no appeal shall be accepted if the information in 
question has been the subject of an administrative review within the 
previous two years or is the subject of pending litigation in the 
Federal courts.



Sec.  1700.14  Action by appeals authority.

    (a) The Director of the Intelligence Staff, after consultation with 
any ODNI component organization involved in the initial decision as well 
as with the Office of General Counsel, will make a final determination 
on the appeal. Appeals of denials of requests for expedited processing 
shall be acted on expeditiously.
    (b) The Director, IMO, will ordinarily be the initial deciding 
official on FOIA requests to the ODNI. However, in the event the 
Director of the Intelligence Staff makes an initial decision that is 
later appealed, the Principal Deputy Director for National Intelligence 
will decide the appeal in accordance with the procedures in this 
section.



PART 1701_ADMINISTRATION OF RECORDS UNDER THE PRIVACY ACT OF 1974-
-Table of Contents



 Subpart A_Protection of Privacy and Access to Individual Records Under 
                         the Privacy Act of 1974

Sec.
1701.1 Purpose, scope, applicability.
1701.2 Definitions.

[[Page 273]]

1701.3 Contact for general information and requests.
1701.4 Privacy Act responsibilities/policy.
1701.5 Collection and maintenance of records.
1701.6 Disclosure of records/policy.
1701.7 Requests for notification of and access to records.
1701.8 Requests to amend or correct records.
1701.9 Requests for an accounting of record disclosures.
1701.10 ODNI responsibility for responding to access requests.
1701.11 ODNI responsibility for responding to requests for amendment or 
          correction.
1701.12 ODNI responsibility for responding to requests for accounting.
1701.13 Special procedures for medical/psychiatric/psychological testing 
          records.
1701.14 Appeals.
1701.15 Fees.
1701.16 Contractors.
1701.17 Standards of conduct.

      Subpart B_Exemption of Records Systems Under the Privacy Act

1701.20 Exemption policies.
1701.21 Exemption of the Office of the Director of National Intelligence 
          (ODNI) systems of records.
1701.22 ODNI systems of records subject to exemption.

   Subpart C_Routine Uses Applicable to More Than One ODNI System of 
                                 Records

1701.30 Policy and applicability.
1701.31 General routine uses.

    Authority: 50 U.S.C. 401-442; 5 U.S.C. 552a.

    Source: 73 FR 16532, Mar. 28, 2008, unless otherwise noted.



 Subpart A_Protection of Privacy and Access to Individual Records Under 
                         the Privacy Act of 1974



Sec.  1701.1  Purpose, scope, applicability.

    (a) Purpose. This subpart establishes the policies and procedures 
the Office of the Director of National Intelligence (ODNI) will follow 
in implementing the requirements of the Privacy Act of 1974, 5 U.S.C. 
552a, as amended. This subpart sets forth the procedures ODNI must 
follow in collecting and maintaining personal information from or about 
individuals, as well as procedures by which individuals may request to 
access or amend records about themselves and request an accounting of 
disclosures of those records by the ODNI. In addition, this subpart 
details parameters for disclosing personally identifiable information to 
persons other than the subject of a record.
    (b) Scope. The provisions of this subpart apply to all records in 
systems of records maintained by ODNI directorates, centers, mission 
managers and other sub-organizations [hereinafter called ``components''] 
that are retrieved by an individual's name or personal identifier.
    (c) Applicability. This subpart governs the following individuals 
and entities:
    (1) All ODNI staff and components must comply with this subpart. The 
terms ``staff'' and ``component'' are defined in Sec.  1701.2.
    (2) Unless specifically exempted, this subpart also applies to 
advisory committees and councils within the meaning of the Federal 
Advisory Committee Act (FACA) which provide advice to: Any official or 
component of ODNI; or the President, and for which ODNI has been 
delegated responsibility for providing service.
    (d) Relation to Freedom of Information Act. The ODNI shall provide a 
subject individual under this subpart all records which are otherwise 
accessible to such individual under the provisions of the Freedom of 
Information Act, 5 U.S.C. 552.



Sec.  1701.2  Definitions.

    For purposes of this subpart, the following terms have the meanings 
indicated:
    Access means making a record available to a subject individual.
    Act means the Privacy Act of 1974.
    Agency means the ODNI or any of its components.
    Component means any directorate, mission manager, or other sub-
organization in the ODNI or reporting to the Director, that has been 
designated or established in the ODNI pursuant to Section 103 of the 
National Security Act of 1947, as amended, including the National 
Counterterrorism Center (NCTC), the National Counterproliferation Center 
(NCPC) and the Office of the National Counterintelligence Executive 
(ONCIX), or such other offices and officials as may be established by 
law or as the Director may establish or designate in the ODNI, for 
example, the

[[Page 274]]

Program Manager, Information Sharing Environment (ISE) and the Inspector 
General (IG).
    Disclosure means making a record about an individual available to or 
releasing it to another party.
    FOIA means the Freedom of Information Act.
    Individual, when used in connection with the Privacy Act, means a 
living person who is a citizen of the United States or an alien lawfully 
admitted for permanent residence. It does not include sole 
proprietorships, partnerships, or corporations.
    Information means information about an individual and includes, but 
is not limited to, vital statistics; race, sex, or other physical 
characteristics; earnings information; professional fees paid to an 
individual and other financial information; benefit data or claims 
information; the Social Security number, employer identification number, 
or other individual identifier; address; phone number; medical 
information; and information about marital, family or other personal 
relationships.
    Maintain means to establish, collect, use, or disseminate when used 
in connection with the term record; and, to have control over or 
responsibility for a system of records, when used in connection with the 
term system of records.
    Notification means communication to an individual whether he is a 
subject individual.
    Office of the Director of National Intelligence means any and all of 
the components of the ODNI.
    Record means any item, collection, or grouping of information about 
an individual that is maintained by the ODNI including, but not limited 
to, information such as an individual's education, financial 
transactions, medical history, and criminal or employment history that 
contains the individual's name, or an identifying number, symbol, or any 
other identifier assigned to an individual. When used in this subpart, 
record means only a record that is in a system of records.
    Routine use means the disclosure of a record outside ODNI, without 
the consent of the subject individual, for a purpose which is compatible 
with the purpose for which the record was collected. It does not include 
disclosure which the Privacy Act otherwise permits pursuant to 
subsection (b) of the Act.
    Staff means any current or former regular or special employee, 
detailee, assignee, employee of a contracting organization, or 
independent contractor of the ODNI or any of its components.
    Subject individual means the person to whom a record pertains (or 
``record subject'').
    System of records means a group of records under ODNI's control from 
which information about an individual is retrieved by the name of the 
individual or by an identifying number, symbol, or other particular 
assigned to the individual. Single records or groups of records which 
are not retrieved by a personal identifier are not part of a system of 
records,



Sec.  1701.3  Contact for general information and requests.

    Privacy Act requests and appeals and inquiries regarding this 
subpart or about ODNI's Privacy Act program must be submitted in writing 
to the Director, Information Management Office (D/IMO), Office of the 
Director of National Intelligence, Washington, DC 20511 (by mail or by 
facsimile at 703-482-2144) or to the contact designated in the specific 
Privacy Act System of Records Notice. Privacy Act requests with the 
required identification statement and signature pursuant to paragraphs 
(d) and (e) of Sec.  1701.7 of this subpart must be filed in original 
form.



Sec.  1701.4  Privacy Act responsibilities/policy.

    The ODNI will administer records about individuals consistent with 
statutory, administrative, and program responsibilities. Subject to 
exemptions authorized by the Act, ODNI will collect, maintain and 
disclose records as required and will honor subjects' rights to view and 
amend records and to obtain an accounting of disclosures.



Sec.  1701.5  Collection and maintenance of records.

    (a) ODNI will not maintain a record unless:

[[Page 275]]

    (1) It is relevant and necessary to accomplish an ODNI function 
required by statute or Executive Order;
    (2) It is acquired to the greatest extent practicable from the 
subject individual when ODNI may use the record to make any 
determination about the individual;
    (3) The individual providing the record is informed of the authority 
for providing the record (including whether providing the record is 
mandatory or voluntary), the principal purpose for maintaining the 
record, the routine uses for the record, and what effect refusing to 
provide the record may have;
    (4) It is maintained with such accuracy, relevance, timeliness and 
completeness as is reasonably necessary to ensure fairness to the 
individual in the determination;
    (b) Except as to disclosures made to an agency or made under the 
FOIA, ODNI will make reasonable efforts prior to disseminating a record 
about an individual, to ensure that the record is accurate, relevant, 
timely, and complete;
    (c) ODNI will not maintain or develop a system of records that is 
not the subject of a current or planned public notice;
    (d) ODNI will not adopt a routine use of information in a system 
without notice and invitation to comment published in the Federal 
Register at least 30 days prior to final adoption of the routine use;
    (e) To the extent ODNI participates with a non-Federal agency in 
matching activities covered by section (8) of the Act, ODNI will publish 
notice of the matching program in the Federal Register;
    (f) ODNI will not maintain a record which describes how an 
individual exercises rights guaranteed by the First Amendment unless 
expressly authorized by statute or by the subject individual, or unless 
pertinent to and within the scope of an authorized law enforcement 
activity;
    (g) When required by the Act, ODNI will maintain an accounting of 
all disclosures of records by the ODNI to persons, organizations or 
agencies;
    (h) Each ODNI component shall implement administrative, physical and 
technical controls to prevent unauthorized access to its systems of 
records, to prevent unauthorized disclosure of records, and to prevent 
physical damage to or destruction of records;
    (i) ODNI will establish rules and instructions for complying with 
the requirements of the Privacy Act, including notice of the penalties 
for non-compliance, applicable to all persons involved in the design, 
development, operation or maintenance of any system of records.



Sec.  1701.6  Disclosure of records/policy.

    Consistent with 5 U.S.C. 552a(b), ODNI will not disclose any record 
which is contained in a system of records by any means (written, oral or 
electronic) without the consent of the subject individual unless 
disclosure without consent is made for reasons permitted under 
applicable law, including:
    (a) Internal agency use on a need-to-know basis;
    (b) Release under the Freedom of Information Act (FOIA) if not 
subject to protection under the FOIA exemptions;
    (c) A specific ``routine use'' as described in the ODNI's published 
compilation of Routine Uses Applicable to More Than One ODNI System of 
Records or in specific published Privacy Act Systems of Records Notices 
(available at http://www.dni.gov);
    (d) Release to the Bureau of the Census, the National Archives and 
Records Administration, or the Government Accountability Office, for the 
performance of those entities' statutory duties;
    (e) Release in non-identifiable form to a recipient who has provided 
written assurance that the record will be used solely for statistical 
research or reporting;
    (f) Compelling circumstances in which the health or safety of an 
individual is at risk;
    (g) Release pursuant to the order of a court of competent 
jurisdiction or to a governmental entity for a specifically documented 
civil or criminal law enforcement activity;
    (h) Release to either House of Congress or to any committee, 
subcommittee or joint committee thereof to the extent of matter within 
its jurisdiction;

[[Page 276]]

    (i) Release to a consumer reporting agency in accordance with 
section 3711(e) of Title 31.



Sec.  1701.7  Requests for notification of and access to records.

    (a) How to request. Unless records are not subject to access (see 
paragraph (b) of this section), individuals seeking access to records 
about themselves may submit a request in writing to the D/IMO, as 
directed in Sec. 1701.3 of this subpart, or to the contact designated in 
the specific Privacy Act System of Records Notice. To ensure proper 
routing and tracking, requesters should mark the envelope ``Privacy Act 
Request.''
    (b) Records not subject to access. The following records are not 
subject to review by subject individuals:
    (1) Records in ODNI systems of records that ODNI has exempted from 
access and correction under the Privacy Act, 5 U.S.C. 552a(j) or (k), by 
notice published in the Federal Register, or where those exemptions 
require that ODNI can neither confirm nor deny the existence or 
nonexistence of responsive records (see Sec.  1701.10(c)(iii)).
    (2) Records in ODNI systems of records that another agency has 
exempted from access and correction under the Privacy Act, 5 U.S.C. 
552a(j) or (k), by notice published in the Federal Register, or where 
those exemptions require that ODNI can neither confirm nor deny the 
existence or nonexistence of responsive records (see Sec.  
1701.10(c)(iii)).
    (c) Description of records. Individuals requesting access to records 
about themselves should, to the extent possible, describe the nature of 
the records, why and under what circumstances the requester believes 
ODNI maintains the records, the time period in which they may have been 
compiled and, ideally, the name or identifying number of each Privacy 
Act System of Records in which they might be included. The ODNI 
publishes notices in the Federal Register that describe its systems of 
records. The Federal Register compiles these notices biennially and 
makes them available in hard copy at large reference libraries and in 
electronic form at the Government Printing Office's World Wide Web site, 
http://www.gpoaccess.gov.
    (d) Verification of identity. A written request for access to 
records about oneself must include full (legal) name, current address, 
date and place of birth, and citizenship status. Aliens lawfully 
admitted for permanent residence must provide their Alien Registration 
Number and the date that status was acquired. The D/IMO may request 
additional or clarifying information to ascertain identity. Access 
requests must be signed and the signature either notarized or submitted 
under 28 U.S.C. 1746, authorizing statements made under penalty of 
perjury as a substitute for notarization.
    (e) Verification of guardianship or representational relationship. 
The parent or guardian of a minor, the guardian of an individual under 
judicial disability, or an attorney retained to represent an individual 
shall provide, in addition to establishing the identity of the minor or 
individual represented as required in paragraph (d) of this section, 
evidence of such representation by submitting a certified copy of the 
minor's birth certificate, court order, or representational agreement 
which establishes the relationship and the requester's identity.
    (f) ODNI will permit access to or provide copies of records to 
individuals other than the record subject (or the subject's legal 
representative) only with the requester's written authorization.



Sec.  1701.8  Requests to amend or correct records.

    (a) How to request. Unless the record is not subject to amendment or 
correction (see paragraph (b) of this section), individuals (or 
guardians or representatives acting on their behalf) may make a written 
amendment or correction request to the D/IMO, as directed in Sec.  
1701.3 of this subpart, or to the contact designated in a specific 
Privacy Act System of Records. Requesters seeking amendment or 
correction should identify the particular record or portion subject to 
the request, explain why an amendment or correction is necessary, and 
provide the desired replacement language. Requesters may submit 
documentation supporting the

[[Page 277]]

request to amend or correct. Requests for amendment or correction will 
lapse (but may be re-initiated with a new request) if all necessary 
information is not submitted within forty-five (45) days of the date of 
the original request. The identity verification procedures of paragraphs 
(d) and (e) of Sec.  1701.7 of this subpart apply to amendment requests.
    (b). (1) Records which are determinations of fact or evidence 
received (e.g., transcripts of testimony given under oath or written 
statements made under oath; transcripts of grand jury proceedings, 
judicial proceedings, or quasi-judicial proceedings, which are the 
official record of those proceedings; pre-sentence records that 
originated with the courts) and
    (2) Records in ODNI systems of records that ODNI or another agency 
has exempted from amendment and correction under Privacy Act, 5 U.S.C. 
552a(j) or (k) by notice published in the Federal Register.



Sec.  1701.9  Requests for an accounting of record disclosures.

    (a) How to request. Except where accountings of disclosures are not 
required to be kept (see paragraph (b) of this section), record subjects 
(or their guardians or representatives) may request an accounting of 
disclosures that have been made to another person, organization, or 
agency as permitted by the Privacy Act at 5 U.S.C. 552a(b). This 
accounting contains the date, nature, and purpose of each disclosure, as 
well as the name and address of the person, organization, or agency to 
which the disclosure was made. Requests for accounting should identify 
each record in question and must be made in writing to the D/IMO, as 
indicated in Sec.  1701.3 of this subpart, or to the contact designated 
in a specific Privacy Act System of Records.
    (b) Accounting not required. The ODNI is not required to provide 
accounting of disclosure in the following circumstances:
    (1) Disclosures for which the Privacy Act does not require 
accounting, i.e., disclosures to employees within the agency and 
disclosures made under the FOIA;
    (2) Disclosures made to law enforcement agencies for authorized law 
enforcement activities in response to written requests from the 
respective head of the law enforcement agency specifying the law 
enforcement activities for which the disclosures are sought; or
    (3) Disclosures from systems of records that have been exempted from 
accounting requirements under the Privacy Act, 5 U.S.C. 552a(j) or (k), 
by notice published in the Federal Register.



Sec.  1701.10  ODNI responsibility for responding to access requests.

    (a) Acknowledgement of requests. Upon receipt of a request providing 
all necessary information, the D/IMO shall acknowledge receipt to the 
requester and provide an assigned request number for further reference.
    (b) Tasking to component. Upon receipt of a proper access request, 
the D/IMO shall provide a copy of the request to the point of contact 
(POC) in the ODNI component with which the records sought reside. The 
POC within the component shall determine whether responsive records 
exist and, if so, recommend to the D/IMO:
    (1) Whether access should be denied in whole or part (and the legal 
basis for denial under the Privacy Act); or
    (2) Whether coordination with or referral to another component or 
federal agency is appropriate.
    (c) Coordination and referrals--(1) Examination of records. If a 
component POC receiving a request for access determines that an 
originating agency or other agency that has a substantial interest in 
the record is best able to process the request (e.g., the record is 
governed by another agency's regulation, or another agency originally 
generated or classified the record), the POC shall forward to the D/IMO 
all records necessary for coordination with or referral to the other 
component or agency, as well as specific recommendations with respect to 
any denials.
    (2) Notice of referral. Whenever the D/IMO refers all or any part of 
the responsibility for responding to a request to another agency, the D/
IMO shall notify the requester of the referral.
    (3) Effect of certain exemptions. (i) In processing a request, the 
ODNI shall

[[Page 278]]

decline to confirm or deny the existence or nonexistence of any 
responsive records whenever the fact of their existence or nonexistence:
    (A) May reveal protected intelligence sources and collection methods 
(50 U.S.C. 403-1(i)); or
    (B) Is classified and subject to an exemption appropriately invoked 
by ODNI or another agency under subsections (j) or (k) of the Privacy 
Act.
    (ii) In such event, the ODNI will inform the requester in writing 
and advise the requestor of the right to file an administrative appeal 
of any adverse determination.
    (d) Time for response. The D/IMO shall respond to a request for 
access promptly upon receipt of recommendations from the POC and 
determinations resulting from any necessary coordination with or 
referral to another agency. The D/IMO may determine to update a 
requester on the status of a request that remains outstanding longer 
than reasonably expected.
    (e) ODNI action on requests for access--(1) Grant of access. Once 
the D/IMO determines to grant a request for access in whole or in part, 
the D/IMO shall notify the requester in writing and come to agreement 
with the requester about how to effect access, whether by on-site review 
or duplication of the records. If a requester is accompanied by another 
person, the requester shall be required to authorize in writing any 
discussion of the records in the presence of the other person.
    (2) Denial of access. The D/IMO shall notify the requester in 
writing when an adverse determination is made denying a request for 
access in any respect. Adverse determinations, or denials, consist of a 
determination to withhold any requested record in whole or in part; a 
determination that a requested record does not exist or cannot be 
located; a determination that what has been requested is not a record 
subject to the Privacy Act; or a determination that the existence of a 
record can neither be confirmed nor denied. The notification letter 
shall state:
    (i) The reason(s) for the denial; and
    (ii) The procedure for appeal of the denial under Sec.  1701.14 of 
this subpart.



Sec.  1701.11  ODNI responsibility for responding to requests for 
amendment or correction.

    (a) Acknowledgement of request. The D/IMO shall acknowledge receipt 
of a request for amendment or correction of records in writing and 
provide an assigned request number for further reference.
    (b) Tasking of component. Upon receipt of a proper request to amend 
or correct a record, the D/IMO shall forward the request to the POC in 
the component maintaining the record. The POC shall promptly evaluate 
the proposed amendment or correction in light of any supporting 
justification and recommend that the D/IMO grant or deny the request or, 
if the request involves a record subject to correction by an originating 
agency, refer the request to the other agency.
    (c) Action on request for amendment or correction. (1) If the POC 
determines that the request for amendment or correction is justified, in 
whole or in part, the D/IMO shall promptly:
    (i) Make the amendment, in whole or in part, as requested and 
provide the requester a written description of the amendment or 
correction made; and
    (ii) Provide written notice of the amendment or correction to all 
persons, organizations or agencies to which the record has been 
disclosed (if an accounting of the disclosure was made);
    (2) Where the D/IMO has referred an amendment request to another 
agency, the D/IMO, upon confirmation from that agency that the amendment 
has been effected, shall provide written notice of the amendment or 
correction to all persons, organizations or agencies to which ODNI 
previously disclosed the record.
    (3) If the POC determines that the requester's records are accurate, 
relevant, timely and complete, and that no basis exists for amending or 
correcting the record, either in whole or in part, the D/IMO shall 
inform the requester in writing of:
    (i) The reason(s) for the denial; and
    (ii) The procedure for appeal of the denial under Sec. 1701.15 of 
this subpart.

[[Page 279]]



Sec.  1701.12  ODNI responsibility for responding to requests for
accounting.

    (a) Acknowledgement of request. Upon receipt of a request for 
accounting, the D/IMO shall acknowledge receipt of the request in 
writing and provide an assigned request number for further reference.
    (b) Tasking of component. Upon receipt of a request for accounting, 
the D/IMO shall forward the request to the POC in the component 
maintaining the record. The POC shall work with the component's 
information management officer and the systems administrator to generate 
the requested disclosure history.
    (c) Action on request for accounting. The D/IMO will notify the 
requester when the accounting is available for on-site review or 
transmission in paper or electronic medium.
    (d) Notice of court-ordered disclosures. The D/IMO shall make 
reasonable efforts to notify an individual whose record is disclosed 
pursuant to court order. Notice shall be made within a reasonable time 
after receipt of the order; however, when the order is not a matter of 
public record, the notice shall be made only after the order becomes 
public. Notice shall be sent to the individual's last known address and 
include a copy of the order and a description of the information 
disclosed. No notice shall be made regarding records disclosed from a 
criminal law enforcement system that has been exempted from the notice 
requirement.
    (e) Notice of emergency disclosures. ODNI shall notify an individual 
whose record it discloses under compelling circumstances affecting 
health or safety. This notice shall be mailed to the individual's last 
known address and shall state the nature of the information disclosed; 
the person, organization, or agency to which it was disclosed; the date 
of disclosure; and the compelling circumstances justifying the 
disclosure. This provision shall not apply in circumstances involving 
classified records that have been exempted from disclosure pursuant to 
subsection (j) or (k) of the Privacy Act.



Sec.  1701.13  Special procedures for medical/psychiatric/psychological
records.

    Current and former ODNI employees, including current and former 
employees of ODNI contractors, and unsuccessful applicants for 
employment may seek access to their medical, psychiatric or 
psychological testing records by writing to: Information and Privacy 
Coordinator, Central Intelligence Agency, Washington, DC 20505, and 
provide identifying information as required by paragraphs (d) and (e) of 
Sec.  1701.7 of this subpart. The Central Intelligence Agency's Privacy 
Act Regulations will govern administration of these types of records, 
including appeals from adverse determinations.



Sec.  1701.14  Appeals.

    (a) Individuals may appeal denials of requests for access, 
amendment, or accounting by submitting a written request for review to 
the Director, Information Management Office (D/IMO) at the Office of the 
Director of National Intelligence, Washington, DC 20511. The words 
``PRIVACY ACT APPEAL'' should be written on the letter and the envelope. 
The appeal must be signed by the record subject or legal representative. 
No personal appearance or hearing on appeal will be allowed.
    (b) The D/IMO must receive the appeal letter within 45 calendar days 
of the date the requester received the notice of denial. The postmark is 
conclusive as to timeliness. Copies of correspondence from ODNI denying 
the request to access or amend the record should be included with the 
appeal, if possible. At a minimum, the appeal letter should identify:
    (1) The records involved;
    (2) The date of the initial request for access to or amendment of 
the record;
    (3) The date of ODNI's denial of that request; and
    (4) A statement of the reasons supporting the request for reversal 
of the initial decision. The statement should focus on information not 
previously available or legal arguments demonstrating that the ODNI's 
decision is improper.
    (c) Following receipt of the appeal, the Director of Intelligence 
Staff (DIS) shall, in consultation with the Office of

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General Counsel, make a final determination in writing on the appeal.
    (d) Where ODNI reverses an initial denial, the following procedures 
apply:
    (1) If ODNI reverses an initial denial of access, the procedures in 
paragraph (e)(1) of Sec.  1701.10 of this subpart will apply.
    (2) If ODNI reverses its initial denial of a request to amend a 
record, the POC will ensure that the record is corrected as requested, 
and the D/IMO will inform the individual of the correction, as well as 
all persons, organizations and agencies to which ODNI had disclosed the 
record.
    (3) If ODNI reverses its initial denial of a request for accounting, 
the POC will notify the requester when the accounting is available for 
on-site review or transmission in paper or electronic medium.
    (e) If ODNI upholds its initial denial or reverses in part (i.e., 
only partially granting the request), ODNI's notice of final agency 
action will inform the requester of the following rights:
    (1) Judicial review of the denial under 5 U.S.C. 552a(g)(1), as 
limited by 5 U.S.C. 552a(g)(5).
    (2) Opportunity to file a statement of disagreement with the denial, 
citing the reasons for disagreeing with ODNI's final determination not 
to correct or amend a record. The requester's statement of disagreement 
should explain why he disputes the accuracy of the record.
    (3) Inclusion in one's record of copies of the statement of 
disagreement and the final denial, which ODNI will provide to all 
subsequent recipients of the disputed record, as well as to all previous 
recipients of the record where an accounting was made of prior 
disclosures of the record.



Sec.  1701.15  Fees.

    ODNI shall charge fees for duplication of records under the Privacy 
Act, 5 U.S.C. 552a, in the same way in which it will charge for 
duplication of records under Sec.  1700.7(g), ODNI's regulation 
implementing the fee provision of the Freedom of Information Act, 5 
U.S.C. 552.



Sec.  1701.16  Contractors.

    (a) Any approved contract for the operation of a Privacy Act system 
of records to accomplish a function of the ODNI will contain the Privacy 
Act provisions prescribed by the Federal Acquisition Regulations (FAR) 
at 48 CFR part 24, requiring the contractor to comply with the Privacy 
Act and this subpart. The contracting component will be responsible for 
ensuring that the contractor complies with these contract requirements. 
This section does not apply to systems of records maintained by a 
contractor as a function of management discretion, e.g., the 
contractor's personnel records.
    (b) Where the contract contains a provision requiring the contractor 
to comply with the Privacy Act and this subpart, the contractor and any 
employee of the contractor will be considered employees of the ODNI for 
purposes of the criminal penalties of the Act, 5 U.S.C. 552a(i).



Sec.  1701.17  Standards of conduct.

    (a) General. ODNI will ensure that staff are aware of the provisions 
of the Privacy Act and of their responsibilities for protecting personal 
information that ODNI collects and maintains, consistent with Sec. 
1701.5 and 1701.6 of this subpart.
    (b) Criminal penalties--(1) Unauthorized disclosure. Criminal 
penalties may be imposed against any ODNI staff who, by virtue of 
employment, has possession or access to ODNI records which contain 
information identifiable with an individual, the disclosure of which is 
prohibited by the Privacy Act or by these rules, and who, knowing that 
disclosure of the specific material is prohibited, willfully discloses 
the material in any manner to any person or agency not entitled to 
receive it.
    (2) Unauthorized maintenance. Criminal penalties may be imposed 
against any ODNI staff who willfully maintains a system of records 
without meeting the requirements of subsection (e)(4) of the Privacy 
Act, 5 U.S.C. 552a. The D/IMO, the Civil Liberties Protection Officer, 
the General Counsel, and the Inspector General are authorized 
independently to conduct such surveys and inspect such records as 
necessary from

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time to time to ensure that these requirements are met.
    (3) Unauthorized requests. Criminal penalties may be imposed upon 
any person who knowingly and willfully requests or obtains any record 
concerning an individual from the ODNI under false pretenses.



       Subpart B_Exemption of Record Systems Under the Privacy Act



Sec.  1701.20  Exemption policies.

    (a) General. The DNI has determined that invoking exemptions under 
the Privacy Act and continuing exemptions previously asserted by 
agencies whose records ODNI receives is necessary: to ensure against the 
release of classified information essential to the national defense or 
foreign relations; to protect intelligence sources and methods; and to 
maintain the integrity and effectiveness of intelligence, investigative 
and law enforcement processes. Accordingly, as authorized by the Privacy 
Act, 5 U.S.C. 552a, subsections (j) and (k), and in accordance with the 
rulemaking procedures of the Administrative Procedures Act, 5 U.S.C. 
553, the ODNI shall:
    (1) Exercise its authority pursuant to subsections (j) and (k) of 
the Privacy Act to exempt certain ODNI systems of records or portions of 
systems of records from various provisions of the Privacy Act; and
    (2) Continue in effect and assert all exemptions claimed under 
Privacy Act subsections (j) and (k) by an originating agency from which 
the ODNI obtains records where the purposes underlying the original 
exemption remain valid and necessary to protect the contents of the 
record.
    (b) Related policies. (1) The exemptions asserted apply to records 
only to the extent they meet the criteria of subsections (j) and (k) of 
the Privacy Act, whether claimed by the ODNI or the originator of the 
records.
    (2) Discretion to supersede exemption: Where complying with a 
request for access or amendment would not appear to interfere with or 
adversely affect a counterterrorism or law enforcement interest, and 
unless prohibited by law, the D/IMO may exercise his discretion to waive 
the exemption. Discretionary waiver of an exemption with respect to a 
record will not obligate the ODNI to waive the exemption with respect to 
any other record in an exempted system of records. As a condition of 
such discretionary access, ODNI may impose any restrictions (e.g., 
concerning the location of file reviews) deemed necessary or advisable 
to protect the security of agency operations, information, personnel, or 
facilities.
    (3) Records in ODNI systems also are subject to protection under 50 
U.S.C. 403-1(i), the provision of the National Security Act of 1947 
which requires the DNI to protect intelligence sources and methods from 
unauthorized disclosure.



Sec.  1701.21  Exemption of the Office of the Director of National 
Intelligence (ODNI) systems of records.

    (a) ODNI exempts the systems of records listed in Sec.  1701.22 from 
the requirements of paragraphs (c)(3); (d)(1), (2), (3) and (4); (e)(1) 
and (e)(4)(G), (H), and (I); and (f) of the Privacy Act (5 U.S.C. 552a) 
to the extent that information in the system is subject to exemption 
pursuant to paragraph (k)(1), (k)(2), or (k)(5) of the Act as noted in 
Sec.  1701.22. ODNI also derivatively preserves the exempt status of 
records it receives from source agencies when the reason for the 
exemption remains valid, as set forth in Sec.  1701.20.
    (b) Systems of records utilized by the Office of the Intelligence 
Community Inspector General (ICIG) are additionally exempted from the 
requirements of paragraphs (c)(4); (e)(2); (e)(3); (e)(5); (e)(8); 
(e)(12); and (g) of the Privacy Act (5 U.S.C. 552a) to the extent that 
information in the system is subject to exemption pursuant to paragraph 
(j)(2) of the Privacy Act (5 U.S.C. 552a).
    (c) Exemption of records in these systems from any or all of the 
enumerated requirements may be necessary for the following reasons:
    (1) From paragraph (c)(3) of the Privacy Act (5 U.S.C. 552a) 
(accounting of disclosures) because an accounting of disclosures from 
records concerning the record subject would specifically reveal an 
intelligence or investigative interest on the part of ODNI or the 
recipient agency and could result in release of properly classified 
national security or foreign policy information.

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    (2) From paragraph (c)(4) of the Privacy Act (5 U.S.C. 552a) (notice 
of amendment to record recipients) because the system is exempted from 
the access and amendment provisions of paragraph (d) of the Privacy Act.
    (3) From paragraphs (d)(1) through (4) of the Privacy Act (5 U.S.C. 
552a) (record subject's right to access and amend records) because 
affording access and amendment rights could alert the record subject to 
the investigative interest of intelligence or law enforcement agencies 
or compromise sensitive information classified in the interest of 
national security. In the absence of a national security basis for 
exemption, records in this system may be exempted from access and 
amendment to the extent necessary to honor promises of confidentiality 
to persons providing information concerning a candidate for position. 
Inability to maintain such confidentiality would restrict the free flow 
of information vital to a determination of a candidate's qualifications 
and suitability.
    (4) From paragraph (e)(1) of the Privacy Act (5 U.S.C. 552a) 
(maintain only relevant and necessary records) because it is not always 
possible to establish relevance and necessity before all information is 
considered and evaluated in relation to an intelligence concern. In the 
absence of a national security basis for exemption under paragraph 
(k)(1) of the Privacy Act (5 U.S.C. 552a), records in this system may be 
exempted from the relevance requirement pursuant to paragraphs (k)(2) 
and (5) of the Privacy Act (5 U.S.C. 552a) because it is not possible to 
determine in advance what exact information may assist in determining 
the qualifications and suitability of a candidate for position. 
Seemingly irrelevant details, when combined with other data, can provide 
a useful composite for determining whether a candidate should be 
appointed.
    (5) From paragraph (e)(2) of the Privacy Act (5 U.S.C. 552a) 
(collection directly from the individual) because application of this 
provision would alert the subject of a counterterrorism investigation, 
study, or analysis to that fact, permitting the subject to frustrate or 
impede the activity. Counterterrorism investigations necessarily rely on 
information obtained from third parties rather than information 
furnished by subjects themselves.
    (6) From paragraph (e)(3) of the Privacy Act (5 U.S.C. 552a) 
(provide Privacy Act Statement to subjects furnishing information) 
because the system is exempted from requirements in paragraph (e)(2) of 
the Privacy Act to collect information directly from the subject.
    (7) From paragraphs (e)(4)(G) and (H) of the Privacy Act (5 U.S.C. 
552a) (publication of procedures for notifying subjects of the existence 
of records about them and how they may access records and contest 
contents) because the system is exempted from provisions in paragraph 
(d) of the Privacy Act (5 U.S.C. 552a) regarding access and amendment, 
and from the requirement in paragraph (f) of the Privacy Act to 
promulgate agency rules for notification, access, and amendment. 
Nevertheless, ODNI has published notice concerning notification, access, 
and contest procedures because it may in certain circumstances determine 
it appropriate to provide subjects access to all or a portion of the 
records about them in a system of records.
    (8) From paragraph (e)(4)(I) of the Privacy Act (5 U.S.C. 552a) 
(identifying sources of records in the system of records) because 
identifying sources could result in disclosure of properly classified 
national defense or foreign policy information, intelligence sources and 
methods, and investigatory techniques and procedures. Notwithstanding 
its exemption from this requirement, ODNI identifies record sources in 
broad categories sufficient to provide general notice of the origins of 
the information it maintains in its systems of records.
    (9) From paragraph (e)(5) of the Privacy Act (5 U.S.C. 552a) 
(maintain timely, accurate, complete and up-to-date records) because 
many of the records in the system are derived from other domestic and 
foreign agency record systems over which ODNI exercises no control. In 
addition, in collecting information for counterterrorism, intelligence, 
and law enforcement purposes, it is not possible to determine in advance 
what information

[[Page 283]]

is accurate, relevant, timely, and complete. With the passage of time 
and the development of additional facts and circumstances, seemingly 
irrelevant or dated information may acquire significance. The 
restrictions imposed by paragraph (e)(5) of the Privacy Act (5 U.S.C. 
552a) would limit the ability of intelligence analysts to exercise 
judgment in conducting investigations and impede development of 
intelligence necessary for effective counterterrorism and law 
enforcement efforts.
    (10) From paragraph (e)(8) of the Privacy Act (5 U.S.C. 552a) 
(notice of compelled disclosures) because requiring individual notice of 
legally compelled disclosure poses an impossible administrative burden 
and could alert subjects of counterterrorism, law enforcement, or 
intelligence investigations to the previously unknown fact of those 
investigations.
    (11) From paragraph (e)(12) of the Privacy Act (public notice of 
matching activity) because, to the extent such activities are not 
otherwise excluded from the matching requirements of the Privacy Act (5 
U.S.C. 552a), publishing advance notice in the Federal Register would 
frustrate the ability of intelligence analysts to act quickly in 
furtherance of analytical efforts.
    (12) From paragraph (f) of the Privacy Act (5 U.S.C. 552a) (agency 
rules for notifying subjects to the existence of records about them, for 
accessing and amending records, and for assessing fees) because the 
system is exempt from provisions in paragraph (d) of the Privacy Act 
regarding access and amendment of records by record subjects. 
Nevertheless, ODNI has published agency rules concerning notification of 
a subject in response to his request if any system of records named by 
the subject contains a record pertaining to him and procedures by which 
the subject may access or amend the records. Notwithstanding exemption, 
ODNI may determine it appropriate to satisfy a record subject's access 
request.
    (13) From paragraph (g) of the Privacy Act (5 U.S.C. 552a) (civil 
remedies) to the extent that the civil remedies relate to provisions of 
5 U.S.C. 552a from which this rule exempts the system.

[84 FR 31195, July 1, 2019]



Sec.  1701.22  ODNI systems of records subject to exemption.

    (a) ODNI systems of records subject to exemption:
    (1) Manuscript, Presentation, and Resume Review Records (ODNI-01), 5 
U.S.C. 552a(k)(1).
    (2) Executive Secretary Action Management System Records (ODNI-02), 
5 U.S.C. 552a(k)(1).
    (3) Public Affairs Office Records (ODNI-03), 5 U.S.C. 552a(k)(1).
    (4) Office of Legislative Affairs Records (ODNI-04), 5 U.S.C. 
552a(k)(1).
    (5) ODNI Guest Speaker Records (ODNI-05), 5 U.S.C. 552a(k)(1).
    (6) Office of General Counsel Records (ODNI-06), 5 U.S.C. 
552a(k)(1), (2), and (5).
    (7) Intelligence Community Customer Registry (ODNI-09), 5 U.S.C. 
552a(k)(1).
    (8) Office of Intelligence Community Equal Employment Opportunity 
and Diversity Records (ODNI-10), 5 U.S.C. 552a(k)(1), (2), and (5).
    (9) Office of Protocol Records (ODNI-11), 5 U.S.C. 552a(k)(1).
    (10) Intelligence Community Security Clearance and Access Approval 
Repository (ODNI-12), 5 U.S.C. 552a(k)(1), (2), and (5).
    (11) Security Clearance Reform Research and Oversight Records (ODNI-
13), 5 U.S.C. 552a(k)(1), (2), and (5).
    (12) Civil Liberties and Privacy Office Complaint Records (ODNI-14), 
5 U.S.C. 552a(k)(1), (2), and (5).
    (13) Mission Outreach and Collaboration Records (ODNI-15), 5 U.S.C. 
552a(k)(1).
    (14) ODNI Human Resource Records (ODNI-16), 5 U.S.C. 552a(k)(1).
    (15) ODNI Personnel Security Records (ODNI-17), 5 U.S.C. 552a(k)(1), 
(2), and (5).
    (16) ODNI Freedom of Information Act, Privacy Act, and Mandatory 
Declassification Review Request Records (ODNI-18), 5 U.S.C. 552a(k)(1), 
(2), and (5).
    (17) ODNI Information Technology Systems Activity and Access Records 
(ODNI-19), 5 U.S.C. 552a(k)(1), (2), and (5).
    (18) ODNI Security Clearance Reciprocity Hotline Records (ODNI-20), 
5 U.S.C. 552a(k)(1) and (5).
    (19) ODNI Information Technology Network Support, Administration and

[[Page 284]]

Analysis Records (ODNI-21), 5 U.S.C. 552a(k)(1).
    (20) Insider Threat Program Records (ODNI-22), 5 U.S.C. 552a(k)(1), 
(2), and (5).
    (b) ODNI/National Counterintelligence and Security Center (NCSC) 
systems of records:
    (1) Damage Assessment Records (ODNI/NCIX-001), 5 U.S.C. 552a(k)(1) 
and (2).
    (2) Counterintelligence Trends Analyses Records (ODNI/NCSC-002), 5 
U.S.C. 552a(k)(1) and (2).
    (3) Continuous Evaluation Records (ODNI/NCSC-003), 5 U.S.C. 
552a(k)(1), (2), and (5).
    (c) ODNI/National Counterterrorism Center (NCTC) systems of records:
    (1) NCTC Access Authorization Records (ODNI/NCTC-002), 5 U.S.C. 
552a(k)(1).
    (2) NCTC Telephone Directory (ODNI/NCTC-003), 5 U.S.C. 552a(k)(1).
    (3) NCTC Knowledge Repository (ODNI/NCTC-004), 5 U.S.C. 552a(k)(1) 
and (2).
    (4) NCTC Current (ODNI/NCTC-005), 5 U.S.C. 552a(k)(1) and (2).
    (5) NCTC Partnership Management Records (ODNI/NCTC-006), 5 U.S.C. 
552a(k)(1).
    (6) NCTC Tacit Knowledge Management Records (ODNI/NCTC-007), 5 
U.S.C. 552a(k)(1).
    (7) NCTC Terrorism Analysis Records (ODNI/NCTC-008), 5 U.S.C. 
552a(k)(1) and (2).
    (8) Terrorist Identities Records (ODNI/NCTC-009), 5 U.S.C. 
552a(k)(1) and (2).
    (d) ODNI/Office of the Intelligence Community Inspector General 
(ICIG) systems of records:
    (1) OIG Human Resources Records (ODNI/OIG-001), 5 U.S.C. 552a(k)(1) 
and (5).
    (2) OIG Experts Contact Records (ODNI/OIG-002), 5 U.S.C. 552a(k)(1) 
and (5).
    (3) OIG Investigation and Interview Records (ODNI/OIG-003), 5 U.S.C. 
552a(j)(2); (k)(1), (2), and (5).

[84 FR 31197, July 1, 2019]



   Subpart C_Routine Uses Applicable to More Than One ODNI System of 
                                 Records



Sec.  1701.30  Policy and applicability.

    (a) ODNI proposes the following general routine uses to foster 
simplicity and economy and to avoid redundancy or error by duplication 
in multiple ODNI systems of records and in systems of records 
established hereafter by ODNI or by one of its components.
    (b) These general routine uses may apply to every Privacy Act system 
of records maintained by ODNI and its components, unless specifically 
stated otherwise in the System of Records Notice for a particular 
system. Additional general routine uses may be identified as notices of 
systems of records are published.
    (c) Routine uses specific to a particular System of Records are 
identified in the System of Records Notice for that system.



Sec.  1701.31  General routine uses.

    (a) Except as noted on Standard Forms 85 and 86 and supplemental 
forms thereto (questionnaires for employment in, respectively, ``non-
sensitive'' and ``national security'' positions within the Federal 
government), a record that on its face or in conjunction with other 
information indicates or relates to a violation or potential violation 
of law, whether civil, criminal, administrative or regulatory in nature, 
and whether arising by general statute, particular program statute, 
regulation, rule or order issued pursuant thereto, may be disclosed as a 
routine use to an appropriate federal, state, territorial, tribal, local 
law enforcement authority, foreign government or international law 
enforcement authority, or to an appropriate regulatory body charged with 
investigating, enforcing, or prosecuting such violations.
    (b) A record from a system of records maintained by the ODNI may be 
disclosed as a routine use, subject to appropriate protections for 
further disclosure, in the course of presenting information or evidence 
to a magistrate, special master, administrative law judge, or to the 
presiding official of an

[[Page 285]]

administrative board, panel or other administrative body.
    (c) A record from a system of records maintained by the ODNI may be 
disclosed as a routine use to representatives of the Department of 
Justice or any other entity responsible for representing the interests 
of the ODNI in connection with potential or actual civil, criminal, 
administrative, judicial or legislative proceedings or hearings, for the 
purpose of representing or providing advice to: The ODNI; any staff of 
the ODNI in his or her official capacity; any staff of the ODNI in his 
or her individual capacity where the staff has submitted a request for 
representation by the United States or for reimbursement of expenses 
associated with retaining counsel; or the United States or another 
Federal agency, when the United States or the agency is a party to such 
proceeding and the record is relevant and necessary to such proceeding.
    (d) A record from a system of records maintained by the ODNI may be 
disclosed as a routine use in a proceeding before a court or 
adjudicative body when any of the following is a party to litigation or 
has an interest in such litigation, and the ODNI, Office of General 
Counsel, determines that use of such records is relevant and necessary 
to the litigation: The ODNI; any staff of the ODNI in his or her 
official capacity; any staff of the ODNI in his or her individual 
capacity where the Department of Justice has agreed to represent the 
staff or has agreed to provide counsel at government expense; or the 
United States or another Federal agency, where the ODNI, Office of 
General Counsel, determines that litigation is likely to affect the 
ODNI.
    (e) A record from a system of records maintained by the ODNI may be 
disclosed as a routine use to representatives of the Department of 
Justice and other U.S. Government entities, to the extent necessary to 
obtain advice on any matter within the official responsibilities of such 
representatives and the responsibilities of the ODNI.
    (f) A record from a system of records maintained by the ODNI may be 
disclosed as a routine use to a Federal, state or local agency or other 
appropriate entities or individuals from which/whom information may be 
sought relevant to: A decision concerning the hiring or retention of an 
employee or other personnel action; the issuing or retention of a 
security clearance or special access, contract, grant, license, or other 
benefit; or the conduct of an authorized investigation or inquiry, to 
the extent necessary to identify the individual, inform the source of 
the nature and purpose of the inquiry, and identify the type of 
information requested.
    (g) A record from a system of records maintained by the ODNI may be 
disclosed as a routine use to any Federal, state, local, tribal or other 
public authority, or to a legitimate agency of a foreign government or 
international authority to the extent the record is relevant and 
necessary to the other entity's decision regarding the hiring or 
retention of an employee or other personnel action; the issuing or 
retention of a security clearance or special access, contract, grant, 
license, or other benefit; or the conduct of an authorized inquiry or 
investigation.
    (h) A record from a system of records maintained by the ODNI may be 
disclosed as a routine use to a Member of Congress or Congressional 
staffer in response to an inquiry from that Member of Congress or 
Congressional staffer made at the written request of the individual who 
is the subject of the record.
    (i) A record from a system of records maintained by the ODNI may be 
disclosed to the Office of Management and Budget in connection with the 
review of private relief legislation, as set forth in Office of 
Management and Budget Circular No. A-19, at any stage of the legislative 
coordination and clearance process as set forth in the Circular.
    (j) A record from a system of records maintained by the ODNI may be 
disclosed as a routine use to any agency, organization, or individual 
for authorized audit operations, and for meeting related reporting 
requirements, including disclosure to the National Archives and Records 
Administration for records management inspections and such other 
purposes conducted under the authority of 44 U.S.C. 2904 and 2906, or 
successor provisions.

[[Page 286]]

    (k) A record from a system of records maintained by the ODNI may be 
disclosed as a routine use to individual members or staff of 
Congressional intelligence oversight committees in connection with the 
exercise of the committees' oversight and legislative functions.
    (l) A record from a system of records maintained by the ODNI may be 
disclosed as a routine use pursuant to Executive Order to the 
President's Foreign Intelligence Advisory Board, the President's 
Intelligence Oversight Board, to any successor organizations, and to any 
intelligence oversight entity established by the President, when the 
Office of the General Counsel or the Office of the Inspector General 
determines that disclosure will assist such entities in performing their 
oversight functions and that such disclosure is otherwise lawful.
    (m) A record from a system of records maintained by the ODNI may be 
disclosed as a routine use to contractors, grantees, experts, 
consultants, or others when access to the record is necessary to perform 
the function or service for which they have been engaged by the ODNI.
    (n) A record from a system of records maintained by the ODNI may be 
disclosed as a routine use to a former staff of the ODNI for the 
purposes of responding to an official inquiry by a Federal, state, or 
local government entity or professional licensing authority or 
facilitating communications with a former staff of the ODNI that may be 
necessary for personnel-related or other official purposes when the ODNI 
requires information or consultation assistance, or both, from the 
former staff regarding a matter within that person's former area of 
responsibility.
    (o) A record from a system of records maintained by the ODNI may be 
disclosed as a routine use to legitimate foreign, international or 
multinational security, investigatory, law enforcement or administrative 
authorities in order to comply with requirements imposed by, or to claim 
rights conferred in, formal agreements and arrangements to include those 
regulating the stationing and status in foreign countries of Department 
of Defense military and civilian personnel.
    (p) A record from a system of records maintained by the ODNI may be 
disclosed as a routine use to any Federal agency when documents or other 
information obtained from that agency are used in compiling the record 
and the record is relevant to the official responsibilities of that 
agency, provided that disclosure of the recompiled or enhanced record to 
the source agency is otherwise authorized and lawful.
    (q) A record from a system of records maintained by the ODNI may be 
disclosed as a routine use to appropriate agencies, entities, and 
persons when: The security or confidentiality of information in the 
system of records has or may have been compromised; and the compromise 
may result in economic or material harm to individuals (e.g., identity 
theft or fraud), or harm to the security or integrity of the affected 
information or information technology systems or programs (whether or 
not belonging to the ODNI) that rely upon the compromised information; 
and disclosure is necessary to enable ODNI to address the cause(s) of 
the compromise and to prevent, minimize, or remedy potential harm 
resulting from the compromise.
    (r) A record from a system of records maintained by the ODNI may be 
disclosed as a routine use to a Federal, state, local, tribal, 
territorial, foreign, or multinational agency or entity or to any other 
appropriate entity or individual for any of the following purposes: to 
provide notification of a serious terrorist threat for the purpose of 
guarding against or responding to such threat; to assist in coordination 
of terrorist threat awareness, assessment, analysis, or response; or to 
assist the recipient in performing authorized responsibilities relating 
to terrorism or counterterrorism.
    (s) A record from a system of records maintained by the ODNI may be 
disclosed as a routine use for the purpose of conducting or supporting 
authorized counterintelligence activities as defined by section 401a(3) 
of the National Security Act of 1947, as amended, to elements of the 
Intelligence Community, as defined by section 401a(4) of the National 
Security Act of 1947, as amended; to the head of any Federal agency or 
department; to selected

[[Page 287]]

counterintelligence officers within the Federal government.
    (t) A record from a system of records maintained by the ODNI may be 
disclosed as a routine use to a Federal, state, local, tribal, 
territorial, foreign, or multinational government agency or entity, or 
to other authorized entities or individuals, but only if such disclosure 
is undertaken in furtherance of responsibilities conferred by, and in a 
manner consistent with, the National Security Act of 1947, as amended; 
the Counterintelligence Enhancement Act of 2002, as amended; Executive 
Order 12333 or any successor order together with its implementing 
procedures approved by the Attorney General; and other provisions of 
law, Executive Order or directive relating to national intelligence or 
otherwise applicable to the ODNI. This routine use is not intended to 
supplant the other routine uses published by the ODNI.



PART 1702_PROCEDURES GOVERNING THE ACCEPTANCE OF SERVICE OF PROCESS-
-Table of Contents



Sec.
1702.1 Scope and purpose.
1702.2 Definitions.
1702.3 Procedures governing acceptance of service of process.
1702.4 Notification to Office of General Counsel.
1702.5 Interpretation.

    Authority: The Intelligence Reform and Terrorism Prevention Act of 
2004, Pub. L. No. 108-458, 118 Stat. 3638 (2004); National Security Act 
of 1947, as amended, 50 U.S.C. Sec.  401 et seq.; Executive Order 12333, 
as amended.

    Source: 74 FR 11479, Mar. 18, 2009, unless otherwise noted.



Sec.  1702.1  Scope and purpose.

    This part sets forth the ODNI policy concerning service of process 
upon the ODNI and ODNI employees in their official, individual or 
combined official and individual capacities. This part is intended to 
ensure the orderly execution of ODNI affairs and is not intended to 
impede the legal process.



Sec.  1702.2  Definitions.

    For purposes of this part the following terms have the following 
meanings:
    DNI. The Director of National Intelligence.
    General Counsel. The ODNI's General Counsel, Acting General Counsel 
or Deputy General Counsel.
    ODNI. The Office of the Director of National Intelligence and all of 
its components, including, but not limited to, the National 
Counterintelligence Executive, the National Counterterrorism Center, the 
National Counterproliferation Center, the Program Manager for the 
Information Sharing Environment, and all national intelligence centers 
and program managers the DNI may establish.
    ODNI Employee. Any current or former employee, contractor, 
independent contractor, assignee or detailee to the ODNI.
    OGC. The Office of the General Counsel of the ODNI.
    Process. A summons, complaint, subpoena or other document properly 
issued by or under the authority of, a federal, state, local or other 
government entity of competent jurisdiction.



Sec.  1702.3  Procedures governing acceptance of service of process.

    (a) Service of process upon the ODNI or an ODNI employee in the 
employee's official capacity.
    (1) Personal service. Unless otherwise expressly authorized by the 
General Counsel, personal service of process upon the ODNI or an ODNI 
employee in the employee's official capacity, may be accepted only by an 
OGC attorney at ODNI Headquarters. The OGC attorney shall write or stamp 
``Service Accepted In Official Capacity Only'' on the return of service 
form.
    (2) Mail service. Where service of process by registered or 
certified mail is authorized by law, only an OGC attorney may accept 
such service of process upon the ODNI or an ODNI employee in the 
employee's official capacity, unless otherwise expressly authorized by 
the General Counsel. The OGC attorney shall write or stamp, ``Service 
Accepted In Official Capacity Only,'' on the waiver of personal service 
form. Service of process by mail must be addressed to the Office of the 
Director of National Intelligence, Office of General Counsel, 
Washington, DC 20511, and the

[[Page 288]]

envelope must be conspicuously marked ``Service of Process.''
    (b) Service of process upon an ODNI employee solely in the 
employee's individual capacity.
    (1) Generally. ODNI employees will not be required to accept service 
of process in their purely individual capacity on ODNI facilities or 
premises.
    (2) Personal Service. Subject to the sole discretion of the General 
Counsel, process servers generally will not be allowed to enter ODNI 
facilities or premises for the purpose of serving process upon an ODNI 
employee solely in the employee's individual capacity. Except for the 
DNI, the Principal Deputy Director of National Intelligence, and the 
Director of the Intelligence Staff, the OGC is not authorized to accept 
service of process on behalf of any ODNI employee in the employee's 
individual capacity.
    (3) Mail Service. Unless otherwise expressly authorized by the 
General Counsel, ODNI employees are not authorized to accept or forward 
mailed service of process directed to another ODNI employee in that 
employee's individual capacity. Any such process will be returned to the 
sender via appropriate postal channels.
    (c) Service of Process Upon an ODNI employee in a combined official 
and individual capacity. Unless otherwise expressly authorized by the 
General Counsel, service of process, in person or by mail, upon an ODNI 
employee in the employee's combined official and individual capacity, 
may be accepted only for the ODNI employee in the employee's official 
capacity by an OGC attorney at ODNI Headquarters. The OGC attorney shall 
write or stamp, ``Service Accepted In Official Capacity Only,'' on the 
return of service form.
    (d) Acceptance of service of process shall not constitute an 
admission or waiver with respect to jurisdiction, propriety of service, 
improper venue or any other defense in law or equity available under the 
laws or rules applicable to the service of process.



Sec.  1702.4  Notification to Office of General Counsel.

    An ODNI employee who receives or has reason to expect to receive, 
service of process in an official, individual or combined individual and 
official capacity in a matter that may involve testimony or the 
furnishing of documents that could reasonably be expected to involve 
ODNI interests, shall promptly notify the OGC ((703) 275-2527) prior to 
responding to the service in any manner, and if possible, before 
accepting service.



Sec.  1702.5  Interpretation.

    Any questions concerning interpretation of this regulation shall be 
referred to the Office of General Counsel for resolution.



PART 1703_PRODUCTION OF ODNI INFORMATION OR MATERIAL IN PROCEEDINGS 
BEFORE FEDERAL, STATE, LOCAL OR OTHER GOVERNMENT ENTITY OF COMPETENT 
JURISDICTION--Table of Contents



Sec.
1703.1 Scope and purpose.
1703.2 Definitions.
1703.3 General.
1703.4 Procedure for production.
1703.5 Interpretation.

    Authority: The Intelligence Reform and Terrorism Prevention Act of 
2004, Public Law No. 108-458, 118 Stat. 3638 (2004); National Security 
Act of 1947, as amended, 50 U.S.C. 401 et seq.; Executive Order 12333, 
as amended; and United States ex rel. Touhy v. Ragen, 340 U.S. 462 
(1951).

    Source: 74 FR 11480, Mar. 18, 2009, unless otherwise noted.



Sec.  1703.1  Scope and purpose.

    This part sets forth the policy and procedures with respect to the 
production or disclosure of material contained in the files of the ODNI, 
information relating to or based upon material contained in the files of 
the ODNI, and information acquired by any person while such person was 
an employee of the ODNI as part of the performance of that person's 
official duties or because of that person's association with the ODNI.



Sec.  1703.2  Definitions.

    The following definitions apply to this part:
    Defenses: Any and all legal defenses, privileges or objections 
available to the ODNI in response to a demand.

[[Page 289]]

    Demand:
    (1) Any subpoena, order or other legal summons issued by a federal, 
state, local or other government entity of competent jurisdiction with 
the authority to require a response on a particular matter or a request 
for appearance of an individual where a demand could issue.
    (2) Any request for production or disclosure which may result in the 
issuance of a subpoena, order, or other legal process to compel 
production or disclosure.
    DNI: The Director of National Intelligence.
    General Counsel: The ODNI's General Counsel, Acting General Counsel 
or Deputy General Counsel.
    ODNI: The Office of the Director of National Intelligence and all of 
its components, including, but not limited to, the Office of the 
National Counterintelligence Executive, the National Counterterrorism 
Center, the National Counterproliferation Center, the Program Manager 
for the Information Sharing Environment, and all national intelligence 
centers and program managers the DNI may establish.
    ODNI Employee: Any current or former employee, contractor, 
independent contractor, assignee or detailee to the ODNI.
    ODNI Information or Material: Information or material that is 
contained in ODNI files, related to or based upon material contained in 
ODNI files or acquired by any ODNI employee as part of that employee's 
official duties or because of that employee's association with the ODNI.
    OGC: The Office of the General Counsel of the ODNI.
    OGC Attorney: Any attorney in the OGC.
    Proceeding: Any matter before a court of law, administrative law 
judge, administrative tribunal or commission or other body that conducts 
legal or administrative proceedings, and includes all phases of the 
proceeding.
    Production or Produce: The disclosure of ODNI information or 
material in response to a demand.



Sec.  1703.3  General.

    (a) No ODNI employee shall respond to a demand for ODNI information 
or material without prior authorization as set forth in this part.
    (b) This part is intended only to provide procedures for responding 
to demands for production of documents or information, and does not 
create any right or benefit, substantive or procedural, enforceable by 
any party against the United States.



Sec.  1703.4  Procedure for production.

    (a) Whenever a demand is made for ODNI information or material, the 
employee who received the demand shall immediately notify OGC ((703) 
275-2527). The OGC and the ODNI employee shall then follow the 
procedures set forth in this section.
    (b) The OGC may assert any and all defenses before any search for 
potentially responsive ODNI information or material begins. Further, in 
its sole discretion the ODNI may decline to begin a search for 
potentially responsive ODNI information or material until a final and 
non-appealable disposition of any or all of the asserted defenses is 
made by the federal, state, local or government entity of competent 
jurisdiction. When the OGC determines that it is appropriate to search 
for potentially responsive ODNI information and material, the OGC will 
forward the demand to the appropriate ODNI offices or entities with 
responsibility for the ODNI information or material sought in the 
demand. Those ODNI offices or entities shall then search for and provide 
to the OGC all potentially responsive ODNI information and material. The 
OGC may then assert any and all defenses to the production of what it 
determines is responsive ODNI information or material.
    (c) In reaching a decision on whether to produce responsive ODNI 
information or material, or to object to the demand, the OGC shall 
consider whether:
    (1) Any relevant privileges are applicable;
    (2) The applicable rules of discovery or procedure require 
production;
    (3) Production would violate a statute, regulation, executive order 
or other provision of law;
    (4) Production would violate a non-disclosure agreement;

[[Page 290]]

    (5) Production would be inconsistent with the DNI's responsibility 
to protect intelligence sources and methods, or reveal classified 
information or state secrets;
    (6) Production would violate a specific ODNI policy issuance or 
instruction; and
    (7) Production would unduly interfere with the orderly conduct of 
ODNI functions.
    (d) If oral or written testimony is sought by a demand in a case or 
matter in which the ODNI is not a party, a reasonably detailed 
description of the testimony sought in the form of an affidavit, or a 
written statement if that is not feasible, by the party seeking the 
testimony or its attorney must be furnished to the OGC.
    (e) The OGC shall notify the appropriate employees of all decisions 
regarding responses to demands and provide advice and counsel for the 
implementation of the decisions.
    (f) If response to a demand is required before a decision is made 
whether to provide responsive ODNI information or material, an OGC 
attorney will request that a Department of Justice attorney appear with 
the ODNI employee upon whom that demand has been made before the court 
or other competent authority and provide it with a copy of this 
regulation and inform the court or other authority as to the status of 
the demand. The court will be requested to stay the demand pending 
resolution by the ODNI. If the request for a stay is denied or there is 
a ruling that the demand must be complied with irrespective of 
instructions rendered in accordance with this Part, the employee upon 
whom the demand was made shall, if directed to do so by the General 
Counsel or its designee, respectfully decline to comply with the demand 
under the authority of United States ex rel. Touhy v. Ragen, 340 U.S. 
462 (1951), and this regulation.
    (g) ODNI officials may delegate in writing any authority given to 
them in this part to subordinate officials.
    (h) Any individual or entity not an ODNI employee as defined in this 
part who receives a demand for the production or disclosure of ODNI 
information or material acquired because of that person's or entity's 
association with the ODNI should notify the OGC ((703) 275-2527) for 
guidance and assistance. In such cases the provisions of this regulation 
shall be applicable.



Sec.  1703.5  Interpretation.

    Any questions concerning interpretation of this Regulation shall be 
referred to the OGC for resolution.



PART 1704_MANDATORY DECLASSIFICATION REVIEW PROGRAM--Table of Contents



Sec.
1704.1 Authority and purpose.
1704.2 Definitions.
1704.3 Contact information.
1704.4 MDR program feedback.
1704.5 Guidance.
1704.6 Exceptions.
1704.7 Requirements.
1704.8 Fees.
1704.9 Determination by originator or interested party.
1704.10 Appeals.

    Authority: 50 U.S.C. 3001; E.O. 13526, 75 FR 707, 3 CFR, 2009 Comp, 
p. 298.

    Source: 81 FR 24019, Apr. 25, 2016, unless otherwise noted.



Sec.  1704.1  Authority and purpose.

    (a) Authority. This part is issued under the authority of 32 CFR 
2001.33; Section 3.5 of Executive Order 13526 (or successor Orders); the 
National Security Act of 1947, as amended (50 U.S.C. 3001 et seq.).
    (b) Purpose. This part prescribes procedures, subject to limitations 
set forth below, for requesters to request a mandatory declassification 
review of information classified under Executive Order 13526 or 
predecessor or successor orders. Section 3.5 of Executive Order 13526 
and these regulations are not intended to and do not create any right or 
benefit, substantive or procedural, enforceable at law by a party 
against the United States, its agencies, officers, employees, or agents, 
or any other person.



Sec.  1704.2  Definitions.

    For purposes of this part:
    Control means the authority of the agency that originates 
information, or its successor in function, to regulate access to the 
information. (32 CFR 2001.92)

[[Page 291]]

    Day means U.S. Federal Government working day, which excludes 
Saturdays, Sundays, and federal holidays. Three (3) days may be added to 
any time limit imposed on a requester by this part if responding by U.S. 
domestic mail; ten (10) days may be added if responding by international 
mail.
    D/IMD means the Director of the Information Management Division and 
the leader of any successor organization, who serves as the ODNI's 
manager of the information review and release program.
    Federal agency 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 comes into the possession of 
classified information.
    Information means any knowledge that can be communicated or 
documentary material, regardless of its physical form, that is owned by, 
produced by or for, or under the control of the U.S. Government; it does 
not include information originated by the incumbent President, White 
House Staff, appointed committees, commissions or boards, or any 
entities within the Executive Office that solely advise and assist the 
incumbent President.
    Interested party means any official in the executive, military, 
congressional, or judicial branches of government, or a U.S. Government 
contractor who, at the sole discretion of the ODNI, has a subject matter 
or other interest in the documents or information at issue.
    NARA means the National Archives and Records Administration.
    ODNI means the Office of the Director of National Intelligence.
    Order means Executive Order 13526, ``Classified National Security 
Information'' (December 29, 2009) or successor Orders.
    Originating element means the element that created the information 
at issue.
    Presidential libraries means the libraries or collection authorities 
established under the Presidential Libraries Act (44 U.S.C. 2112) and 
similar institutions or authorities as may be established in the future.
    Referral means coordination with or transfer of action to an 
interested party.
    Requester means any person or organization submitting an MDR 
request.



Sec.  1704.3  Contact information.

    For general information on the regulation in this part or to submit 
a request for a MDR, please direct your communication by mail to the 
Office of the Director of National Intelligence, Director of the 
Information Management Division, Washington, DC 20511; by facsimile to 
(703) 874-8910; or by email to [email protected]. For general information 
on the ODNI MDR program or status information on pending MDR cases, call 
(703) 874-8500.



Sec.  1704.4  MDR program feedback.

    The ODNI welcomes suggestions for improving the administration of 
our MDR program in accordance with Executive Order 13526. Suggestions 
should identify the specific purpose and the items for consideration. 
The ODNI will respond to all communications and take such actions as 
determined feasible and appropriate.



Sec.  1704.5  Guidance.

    Address all communications to the point of contact as specified in 
Sec.  1704.3. Clearly describe, list, or label said communication as an 
MDR Request.



Sec.  1704.6  Exceptions.

    MDR requests will not be accepted from a foreign government entity 
or any representative thereof. MDR requests will not be accepted for 
documents required to be submitted for prepublication review or other 
administrative process pursuant to an approved nondisclosure agreement; 
for information that is the subject of pending litigation; nor for any 
document or material containing information from within an operational 
file exempted from search and review, publication, and disclosure under 
the FOIA. If the ODNI has reviewed the requested information for 
declassification within the past two years, the ODNI will not conduct 
another review, but the D/IMD will notify the requester of this fact and 
the prior review decision. Requests will not be accepted from requesters

[[Page 292]]

who have outstanding fees for MDR or FOIA requests with the ODNI or 
another federal agency.



Sec.  1704.7  Requirements.

    An MDR request shall describe the document or material containing 
the information with sufficient specificity to enable the ODNI to locate 
it with a reasonable amount of effort.



Sec.  1704.8  Fees.

    (a) In general. Any search, review, and reproduction fees will be 
charged in accordance with the provisions below relating to schedule, 
limitations, and category of requester. Applicable fees will be due even 
if a subsequent search locates no responsive records.
    (b) Agency discretion to waive fees. Records will be furnished 
without charge or at a reduced rate when ODNI determines that:
    (1) As a matter of administrative discretion, the interest of the 
United States Government would be served, or
    (2) It is in the public interest to provide responsive records 
because the disclosure is likely to contribute significantly to the 
public understanding of the operations or activities of the United 
States Government and is not primarily in the commercial interest of the 
requester.
    (c) Agreement to pay fees. If you request an MDR, it shall be 
considered a firm commitment by you to pay all applicable fees 
chargeable under this regulation, up to and including the amount of 
$25.00. When making a request, you may specify a willingness to pay a 
greater or lesser amount.
    (d) Advance payment. The ODNI may require an advance payment of up 
to 100 percent of the estimated fees when projected fees exceed $250.00, 
not including charges associated with the first 100 pages of production 
and two hours of search (when applicable), or when the requester 
previously failed to pay fees in a timely fashion, for fees of any 
amount. ODNI will hold in abeyance for 45 days those requests where 
advance payment has been requested.
    (e) Schedule of fees--(1) In general. The schedule of fees for 
services performed in responding to requests for records is as follows:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
                       Personnel Search and Review
------------------------------------------------------------------------
Clerical/Technical...................  Quarter Hour............   $ 5.00
Professional/Supervisory.............  Quarter Hour............    10.00
Manager/Senior Professional..........  Quarter Hour............    18.00
------------------------------------------------------------------------
                     Computer Search and Production
------------------------------------------------------------------------
Search (online)......................  Flat Rate...............    10.00
Search (offline).....................  Flat Rate...............    30.00
Other activity.......................  Per minute..............    10.00
Tapes (mainframe cassette)...........  Each....................     9.00
Tapes (mainframe cartridge)..........  Each....................     9.00
Tapes (mainframe reel)...............  Each....................    20.00
Tapes (PC 9mm).......................  Each....................    25.00
Diskette (3.5'').....................  Each....................     4.00
CD (bulk recorded)...................  Each....................    10.00
CD (recordable)......................  Each....................    20.00
Telecommunications...................  Per minute..............      .50
Paper (mainframe printer)............  Per page................      .10
Paper (PC b&w laser printer).........  Per page................      .10
Paper (PC color printer).............  Per page................     1.00
------------------------------------------------------------------------
                            Paper Production
------------------------------------------------------------------------
Photocopy (standard or legal)........  Per page................      .10
Preprinted (if available)............  Per 100 pages...........     5.00
Published (if available).............  Per item................     NTIS
------------------------------------------------------------------------

    (2) Application of schedule. Personnel search time includes time 
expended in manual paper records searches, indices searches, review of 
computer search results for relevance, and personal computer system 
searches. In any event in which the actual cost to ODNI of a particular 
item is less than the above schedule (e.g., a large production run of a 
document resulting in a cost less than $5.00 per hundred pages), then 
the actual lesser cost will be charged.
    (3) Other services. For all other types of output, production, or 
reproduction (e.g., photographs, maps, or published reports), ODNI will 
charge actual cost or amounts authorized by statute. Determinations of 
actual cost shall include the commercial cost of the media, the 
personnel time expended in making the item to be released, and an 
allocated cost of the equipment used in making the item, or, if the 
production is effected by a commercial service, then that charge shall 
be deemed the actual cost for purposes of this regulation.
    (f) Limitations on collection of fees--(1) In general. No fees will 
be charged if the cost of collecting the fee is equal to or greater than 
the fee itself. That cost includes the administrative costs to ODNI of 
billing, receiving, recording, and processing the fee for deposit to the 
Treasury Department and, as of the date of these regulations, is deemed 
to be $10.00.

[[Page 293]]

    (g) Associated requests. If it appears that a requester or a group 
of requesters acting in concert have requested portions of an apparently 
unitary request for the purpose of avoiding the assessment of fees, ODNI 
may aggregate any such requests and charge accordingly. Requests from 
multiple requesters will not be aggregated without clear evidence. ODNI 
will not aggregate multiple unrelated requests.



Sec.  1704.9  Determination by originator or interested party.

    (a) In general. The originating element(s) of the classified 
information (document) is always an interested party to any mandatory 
declassification review. Other interested parties may become involved 
through a referral by the D/IMD when it is determined that some or all 
of the information is also within their official cognizance.
    (b) Required determinations: These parties shall respond in writing 
to the D/IMD with a finding as to the classified status of the 
information, including the category of protected information as set 
forth in section 1.4 of the Order, and if older than ten years, the 
basis for the extension of classification time under sections 1.5 and 
3.3 of the Order. These parties shall also indicate whether withholding 
is otherwise authorized and warranted in accordance with sections 3.5(c) 
and 6.2(d) of the Order.
    (c) Time. Responses to the requester shall be provided on a first-
in/first-out basis, taking into account the business requirements of the 
originating element(s) and other interested parties, and, in accordance 
with Executive Order 13526, ODNI will respond to requesters within one 
year of the receipt of requests.
    (d) Deciding official. The IMD FOIA Branch Chief, in consultation 
with the D/IMD and the Classification Management Branch Chief, will 
ordinarily be the deciding official on initial reviews of MDR requests 
to the ODNI.



Sec.  1704.10  Appeals.

    (a) Administrative. Appeals of initial decisions must be received in 
writing by the D/IMD within 60 days of the date of mailing of the ODNI's 
decision. The appeal must identify with specificity the documents or 
information to be considered on appeal and it may, but need not, provide 
a factual or legal basis for the appeal.
    (1) Exceptions. No appeal shall be accepted from a foreign 
government entity or any representative thereof. Appeals will not be 
accepted for documents required to be submitted for prepublication 
review or other administrative process pursuant to an approved 
nondisclosure agreement; for information that is the subject of pending 
litigation; nor for any document or material containing information from 
within an operational file exempted from search and review, publication, 
and disclosure under the FOIA. No appeals shall be accepted if the 
requester has outstanding fees for information services at ODNI or 
another federal agency. In addition, no appeal shall be accepted if the 
information in question has been the subject of a declassification 
review within the previous two years.
    (2) Receipt, recording, and tasking. The D/IMD will record each 
appeal received under this part and acknowledge receipt to the 
requester.
    (3) Appellate authority. The ODNI Chief Management Officer (CMO), 
after consultation with all interested parties or ODNI component 
organizations, as well as the Office of General Counsel, will make a 
final determination on the appeal within 60 days.
    (b) Final appeal. The D/IMD will prepare and communicate the ODNI 
administrative appeal decision to the requester, NARA, Presidential 
library, and referring agency, as appropriate. Correspondence will 
include a notice, if applicable, that a further appeal of ODNI's final 
decision may be made to the Interagency Security Classification Appeals 
Panel (ISCAP) established pursuant to section 5.3 of Executive Order 
13526. Action by that Panel will be the subject of rules to be 
promulgated by the Information Security Oversight Office.

                       PARTS 1705	1799 [RESERVED]

[[Page 295]]



           CHAPTER XVIII--NATIONAL COUNTERINTELLIGENCE CENTER




  --------------------------------------------------------------------
Part                                                                Page
1800            Public access to NACIC records under the 
                    Freedom of Information Act (FOIA).......         297
1801            Public rights under the Privacy Act of 1974.         306
1802            Challenges to classification of documents by 
                    authorized holders pursuant to section 
                    1.9 of Executive Order 12958............         314
1803            Public requests for mandatory 
                    declassification review of classified 
                    information pursuant to section 3.6 of 
                    Executive Order 12958...................         317
1804            Access by historical researchers and former 
                    presidential appointees pursuant to 
                    section 4.5 of Executive Order 12958....         321
1805            Production of official records or disclosure 
                    of official information in proceedings 
                    before Federal, State or local 
                    government entities of competent 
                    juridiction.............................         324
1806            Procedures governing acceptance of service 
                    of process..............................         326
1807            Enforcement of nondiscrimination on the 
                    basis of disability in programs or 
                    activities conducted by the National 
                    Counterintelligence Center..............         327
1808-1899

 [Reserved]

[[Page 297]]



PART 1800_PUBLIC ACCESS TO NACIC RECORDS UNDER THE FREEDOM OF INFORMATION
ACT (FOIA)--Table of Contents



                            Subpart A_General

Sec.
1800.1 Authority and purpose.
1800.2 Definitions.
1800.3 Contact for general information and requests.
1800.4 Suggestions and complaints.

                    Subpart B_Filing of FOIA Requests

1800.11 Preliminary information.
1800.12 Requirements as to form and content.
1800.13 Fees for record services.
1800.14 Fee estimates (pre-request option).

                 Subpart C_NACIC Action on FOIA Requests

1800.21 Processing of requests for records.
1800.22 Action and determination(s) by originator(s) or any interested 
          party.
1800.23 Payment of fees, notification of decision, and right of appeal.

               Subpart D_Additional Administrative Matters

1800.31 Procedures for business information.
1800.32 Procedures for information concerning other persons.
1800.33 Allocation of resources; agreed extensions of time.
1800.34 Requests for expedited processing.

          Subpart E_NACIC Action on FOIA Administrative Appeals

1800.41 Appeal authority.
1800.42 Right of appeal and appeal procedures.
1800.43 Determination(s) by Office Chief(s).
1800.44 Action by appeals authority.
1800.45 Notification of decision and right of judicial review.

    Authority: 5 U.S.C. 552.

    Source: 64 FR 49879, Sept. 14, 1999, unless otherwise noted.



                            Subpart A_General



Sec.  1800.1  Authority and purpose.

    This part is issued under the authority of and in order to implement 
the Freedom of Information Act (FOIA), as amended (5 U.S.C. 552); and 
section 102 of the National Security Act of 1947, as amended (50 U.S.C. 
403). It prescribes procedures for:
    (a) Requesting information on available NACIC records, or NACIC 
administration of the FOIA, or estimates of fees that may become due as 
a result of a request;
    (b) Requesting records pursuant to the FOIA; and
    (c) Filing an administrative appeal of an initial adverse decision 
under the FOIA.



Sec.  1800.2  Definitions.

    For purposes of this part, the following terms have the meanings 
indicated:
    NACIC means the United States National Counterintelligence Center 
acting through the NACIC Information and Privacy Coordinator;
    Days means calendar days when NACIC is operating and specifically 
excludes Saturdays, Sundays, and legal public holidays. Three (3) days 
may be added to any time limit imposed on a requester by this part if 
responding by U.S. domestic mail; otherwise ten (10) days may be added 
if responding by international mail;
    Control means ownership or the authority of NACIC pursuant to 
federal statute or privilege to regulate official or public access to 
records;
    Coordinator means the NACIC Information and Privacy Coordinator who 
serves as the NACIC manager of the information review and release 
program instituted under the Freedom of Information Act;
    Direct-costs means those expenditures which an agency actually 
incurs in the processing of a FOIA request; it does not include overhead 
factors such as space; it does include:
    (1) Pages means paper copies of standard office size or the dollar 
value equivalent in other media;
    (2) Reproduction means generation of a copy of a requested record in 
a form appropriate for release;
    (3) Review means all time expended in examining a record to 
determine whether any portion must be withheld pursuant to law and in 
effecting any required deletions but excludes personnel hours expended 
in resolving general legal or policy issues; it also

[[Page 298]]

means personnel hours of professional time;
    (4) Search means all time expended in looking for and retrieving 
material that may be responsive to a request utilizing available paper 
and electronic indices and finding aids; it also means personnel hours 
of professional time or the dollar value equivalent in computer 
searches;
    Expression of interest means a written communication submitted by a 
member of the public requesting information on or concerning the FOIA 
program and/or the availability of documents from NACIC;
    Federal agency means any executive department, military department, 
or other establishment or entity included in the definition of agency in 
5 U.S.C. 552(f);
    Fees means those direct costs which may be assessed a requester 
considering the categories established by the FOIA; requesters should 
submit information to assist NACIC in determining the proper fee 
category and NACIC may draw reasonable inferences from the identity and 
activities of the requester in making such determinations; the fee 
categories include:
    (1) Commercial means a request in which the disclosure sought is 
primarily in the commercial interest of the requester and which furthers 
such commercial, trade, income or profit interests;
    (2) Non-commercial educational or scientific institution means a 
request from an accredited United States educational institution at any 
academic level or institution engaged in research concerning the social, 
biological, or physical sciences or an instructor or researcher or 
member of such institutions; it also means that the information will be 
used in a specific scholarly or analytical work, will contribute to the 
advancement of public knowledge, and will be disseminated to the general 
public;
    (3) Representative of the news media means a request from an 
individual actively gathering news for an entity that is organized and 
operated to publish and broadcast news to the American public and 
pursuant to their news dissemination function and not their commercial 
interests; the term news means information which concerns current 
events, would be of current interest to the general public, would 
enhance the public understanding of the operations or activities of the 
U.S. Government, and is in fact disseminated to a significant element of 
the public at minimal cost; freelance journalists are included in this 
definition if they can demonstrate a solid basis for expecting 
publication through such an organization, even though not actually 
employed by it; a publication contract or prior publication record is 
relevant to such status;
    (4) All other means a request from an individual not within 
categories (h)(1), (2), or (3) of this section;
    Freedom of Information Act or ``FOIA'' means the statutes as 
codified at 5 U.S.C. 552;
    Interested party means any official in the executive, military, 
congressional, or judicial branches of government, United States or 
foreign, or U.S. Government contractor who, in the sole discretion of 
NACIC, has a subject matter or physical interest in the documents or 
information at issue;
    Originator means the U.S. Government official who originated the 
document at issue or successor in office or such official who has been 
delegated release or declassification authority pursuant to law;
    Potential requester means a person, organization, or other entity 
who submits an expression of interest;
    Reasonably described records means a description of a document 
(record) by unique identification number or descriptive terms which 
permit a NACIC employee to locate documents with reasonable effort given 
existing indices and finding aids;
    Records or agency records means all documents, irrespective of 
physical or electronic form, made or received by NACIC in pursuance of 
federal law or in connection with the transaction of public business and 
appropriate for preservation by NACIC as evidence of the organization, 
functions, policies, decisions, procedures, operations, or other 
activities of NACIC or because of the informational value of the data 
contained therein; it does not include:

[[Page 299]]

    (1) Books, newspapers, magazines, journals, magnetic or printed 
transcripts of electronic broadcasts, or similar public sector materials 
acquired generally and/or maintained for library or reference purposes; 
to the extent that such materials are incorporated into any form of 
analysis or otherwise distributed or published by NACIC, they are fully 
subject to the disclosure provisions of the FOIA;
    (2) Index, filing, or museum documents made or acquired and 
preserved solely for reference, indexing, filing, or exhibition 
purposes; and
    (3) Routing and transmittal sheets and notes and filing or 
destruction notes which do not also include information, comment, or 
statements of substance;
    Responsive records means those documents (i.e., records) which NACIC 
has determined to be within the scope of a FOIA request.



Sec.  1800.3  Contact for general information and requests.

    For general information on this part, to inquire about the FOIA 
program at NACIC, or to file a FOIA request (or expression of interest), 
please direct your communication in writing to the Information and 
Privacy Coordinator, Executive Secretariat Office, National 
Counterintelligence Center, 3W01 NHB, Washington, DC 20505. Such 
inquiries will also be accepted by facsimile at (703)874-5844. For 
general information or status information on pending cases only, the 
telephone number is (703)874-4121. Collect calls cannot be accepted.



Sec.  1800.4  Suggestions and complaints.

    NACIC welcomes suggestions or complaints with regard to its 
administration of the Freedom of Information Act. Letters of suggestion 
or complaint should identify the specific purpose and the issues for 
consideration. NACIC will respond to all substantive communications and 
take such actions as determined feasible and appropriate.



                    Subpart B_Filing of FOIA Requests



Sec.  1800.11  Preliminary information.

    Members of the public shall address all communications to the NACIC 
Coordinator as specified at Sec.  1800.03 and clearly delineate the 
communication as a request under the Freedom of Information Act and this 
regulation. NACIC employees receiving a communication in the nature of a 
FOIA request shall expeditiously forward same to the Coordinator. 
Requests and appeals on requests, referrals, or coordinations received 
from members of the public who owe outstanding fees for information 
services at this or other federal agencies will not be accepted and 
action on all pending requests shall be terminated in such 
circumstances.



Sec.  1800.12  Requirements as to form and content.

    (a) Required information. No particular form is required. A request 
need only reasonably describe the records of interest. This means that 
documents must be described sufficiently to enable a professional 
employee familiar with the subject to locate the documents with a 
reasonable effort. Commonly this equates to a requirement that the 
documents must be locatable through the indexing of our various systems. 
Extremely broad or vague requests or requests requiring research do not 
satisfy this requirement.
    (b) Additional information for fee determination. In addition, a 
requester should provide sufficient personal identifying information to 
allow us to determine the appropriate fee category. A requester should 
also provide an agreement to pay all applicable fees or fees not to 
exceed a certain amount or request a fee waiver.
    (c) Otherwise. Communications which do not meet these requirements 
will be considered an expression of interest and NACIC will work with, 
and offer suggestions to, the potential requester in order to define a 
request properly.



Sec.  1800.13  Fees for record services.

    (a) In general. Search, review, and reproduction fees will be 
charged in accordance with the provisions below relating to schedule, 
limitations, and category of requester. Applicable fees will be due even 
if our search locates no responsive records or some or all of the 
responsive records must be denied under one or more of the exemptions of 
the Freedom of Information Act.

[[Page 300]]

    (b) Fee waiver requests. Records will be furnished without charge or 
at a reduced rate whenever NACIC determines:
    (1) That, as a matter of administrative discretion, the interest of 
the United States Government would be served, or
    (2) That it is in the public interest because it is likely to 
contribute significantly to the public understanding of the operations 
or activities of the United States Government and is not primarily in 
the commercial interest of the requester; NACIC shall consider the 
following factors when making this determination:
    (i) Whether the subject of the request concerns the operations or 
activities of the United States Government; and, if so,
    (ii) Whether the disclosure of the requested documents is likely to 
contribute to an understanding of United States Government operations or 
activities; and, if so,
    (iii) Whether the disclosure of the requested documents will 
contribute to public understanding of United States Government 
operations or activities; and, if so,
    (iv) Whether the disclosure of the requested documents is likely to 
contribute significantly to public understanding of United States 
Government operations and activities; and
    (v) Whether the requester has a commercial interest that would be 
furthered by the requested disclosure; and, if so,
    (vi) Whether the disclosure is primarily in the commercial interest 
of the requester.
    (c) Fee waiver appeals. Denials of requests for fee waivers or 
reductions may be appealed to the Director, NACIC via the Coordinator. A 
requester is encouraged to provide any explanation or argument as to how 
his or her request satisfies the statutory requirement set forth in 
paragraph (b) of this section.
    (d) Time for fee waiver requests and appeals. It is suggested that 
such requests and appeals be made and resolved prior to the initiation 
of processing and the incurring of costs. However, fee waiver requests 
will be accepted at any time prior to the release of documents or the 
completion of a case, and fee waiver appeals within forty-five (45) days 
of our initial decision subject to the following condition: if 
processing has been initiated, then the requester must agree to be 
responsible for costs in the event of an adverse administrative or 
judicial decision.
    (e) Agreement to pay fees. In order to protect requesters from large 
and/or unanticipated charges, NACIC will request specific commitment 
when it estimates that fees will exceed $100.00. NACIC will hold in 
abeyance for forty-five (45) days requests requiring such agreement and 
will thereafter deem the request closed. This action, of course, would 
not prevent an individual from refiling his or her FOIA request with a 
fee commitment at a subsequent date.
    (f) Deposits. NACIC may require an advance deposit of up to 100 
percent of the estimated fees when fees may exceed $250.00 and the 
requester has no history of payment, or when, for fees of any amount, 
there is evidence that the requester may not pay the fees which would be 
accrued by processing the request. NACIC will hold in abeyance for 
forty-five (45) days those requests where deposits have been requested.
    (g) Schedule of fees--(1) In general. The schedule of fees for 
services performed in responding to requests for records is established 
as follows:
    (i) Personnel Search and Review

Clerical/Technical_Quarter hour_$ 5.00_Professional/Supervisory_Quarter 
hour_ 10.00__Manager/Senior Professional_Quarter hour_18.00

    (ii) Computer Search and Production

Search (on-line)_Flat rate_10.00_Search (off-line)_Flat rate_30.00_Other 
activity_Per minute_10.00_Tapes (mainframe cassette)_Each_9.00_Tapes 
(mainframe cartridge)_Each_9.00_Tapes (mainframe reel)_Each_20.00_Tapes 
(PC 9mm)_Each_25.00_Diskette (3.5)
_Each_4.00_CD (bulk recorded)_Each_10.00_CD (recordable)_Each_20.00_ 
Telecommunications _Per minute_.50_ Paper (mainframe printer)_Per 
page_.10_Paper (PC b&w laser printer)_Per page_.10_Paper (PC color 
printer)_Per page_1.00

    (iii) Paper Production


[[Page 301]]


Photocopy (standard or legal)_Per page_.10_Microfiche_Per frame_.20_Pre-
printed (if available)_Per 100 pages_5.00_Published (if available)_Per 
item_NTIS_

    (2) Application of schedule. Personnel search time includes time 
expended in either manual paper records searches, indices searches, 
review of computer search results for relevance, personal computer 
system searches, and various reproduction services. In any event where 
the actual cost to NACIC of a particular item is less than the above 
schedule (e.g., a large production run of a document resulted in a cost 
less than $5.00 per hundred pages), then the actual lesser cost will be 
charged.
    (3) Other services. For all other types of output, production, or 
reproduction (e.g., photographs, maps, or published reports), actual 
cost or amounts authorized by statute. Determinations of actual cost 
shall include the commercial cost of the media, the personnel time 
expended in making the item to be released, and an allocated cost of the 
equipment used in making the item, or, if the production is effected by 
a commercial service, then that charge shall be deemed the actual cost 
for purposes of this part.
    (h) Limitations on collection of fees--(1) In general. No fees will 
be charged if the cost of collecting the fee is equal to or greater than 
the fee itself. That cost includes the administrative costs to NACIC of 
billing, receiving, recording, and processing the fee for deposit to the 
Treasury Department and, as of the date of these regulations, is deemed 
to be $10.00.
    (2) Requests for personal information. No fees will be charged for 
requesters seeking records about themselves under the FOIA; such 
requests are processed in accordance with both the FOIA and the Privacy 
Act in order to ensure the maximum disclosure without charge.
    (i) Fee categories. There are four categories of FOIA requesters for 
fee purposes: ``commercial use'' requesters, ``educational and non-
commercial scientific institution'' requesters, ``representatives of the 
news media'' requesters, and ``all other'' requesters. The categories 
are defined in Sec.  1800.2, and applicable fees, which are the same in 
two of the categories, will be assessed as follows:
    (1) ``Commercial use'' requesters: Charges which recover the full 
direct costs of searching for, reviewing, and duplicating responsive 
records (if any);
    (2) ``Educational and non-commercial scientific institution'' 
requesters as well as ``representatives of the news media'' requesters: 
Only charges for reproduction beyond the first 100 pages;
    (3) ``All other'' requesters: Charges which recover the full direct 
cost of searching for and reproducing responsive records (if any) beyond 
the first 100 pages of reproduction and the first two hours of search 
time which will be furnished without charge.
    (j) Associated requests. A requester or associated requesters may 
not file a series of multiple requests, which are merely discrete 
subdivisions of the information actually sought for the purpose of 
avoiding or reducing applicable fees. In such instances, NACIC may 
aggregate the requests and charge the applicable fees.



Sec.  1800.14  Fee estimates (pre-request option).

    In order to avoid unanticipated or potentially large fees, a 
requester may submit a request for a fee estimate. Pursuant to the 
Electronic Freedom of Information Act Amendments of 1996, NACIC will 
endeavor within twenty (20) days to provide an accurate estimate, and, 
if a request is thereafter submitted, NACIC will not accrue or charge 
fees in excess of our estimate without the specific permission of the 
requester.



                 Subpart C_NACIC Action On FOIA Requests



Sec.  1800.21  Processing of requests for records.

    (a) In general. Requests meeting the requirements of Sec. Sec.  
1800.11 through 1800.13 shall be accepted as formal requests and 
processed under the Freedom of Information Act, 5 U.S.C. 552, and these 
regulations. Pursuant to the Electronic Freedom of Information Act 
Amendments of 1996, upon receipt, NACIC shall within twenty (20) days 
record each request, acknowledge receipt to the requester in writing, 
and

[[Page 302]]

thereafter effect the necessary taskings to the NACIC components 
reasonably believed to hold responsive records.
    (b) Database of ``officially released information.'' As an 
alternative to extensive tasking and as an accommodation to many 
requesters, NACIC maintains a database of ``officially released 
information'' which contains copies of documents released by NACIC. 
Searches of this database can be accomplished expeditiously. Moreover, 
requests that are specific and well-focused will often incur minimal, if 
any, costs. Requesters interested in this means of access should so 
indicate in their correspondence. Consistent with the mandate of the 
Electronic Freedom of Information Act Amendments of 1996, on-line 
electronic access to these records is available to the public. Detailed 
information regarding such access is available from the point of contact 
specified in Sec.  1800.3.
    (c) Effect of certain exemptions. In processing a request, NACIC 
shall decline to confirm or deny the existence or nonexistence of any 
responsive records whenever the fact of their existence or nonexistence 
is itself classified under Executive Order 12958 and may jeopardize 
intelligence sources or methods protected pursuant to section 103(c)(6) 
of the National Security Act of 1947. In such circumstances, NACIC, in 
the form of a final written response, shall so inform the requester and 
advise of his or her right to an administrative appeal.
    (d) Time for response. Pursuant to the Electronic Freedom of 
Information Act Amendments of 1996, NACIC will utilize every effort to 
determine within the statutory guideline of twenty (20) days after 
receipt of an initial request whether to comply with such a request. 
However, should the volume of requests require that NACIC seek 
additional time from a requester pursuant to Sec.  1800.33, NACIC will 
inform the requester in writing and further advise of his or her right 
to file an administrative appeal of any adverse determination.



Sec.  1800.22  Action and determination(s) by originator(s) or any 
interested party.

    (a) Initial action for access. (1) NACIC components tasked pursuant 
to a FOIA request shall search all relevant record systems within their 
cognizance. They shall:
    (i) Determine whether a record exists;
    (ii) Determine whether and to what extent any FOIA exemptions apply;
    (iii) Approve the disclosure of all non-exempt records or portions 
of records for which they are the originator; and
    (iv) Forward to the Coordinator all records approved for release or 
necessary for coordination with or referral to another originator or 
interested party.
    (2) In making these decisions, the NACIC component officers shall be 
guided by the applicable law as well as the procedures specified at 
Sec.  1800.31 and Sec.  1800.32 regarding confidential commercial 
information and personal information (about persons other than the 
requester).
    (b) Referrals and coordinations. As applicable and within twenty 
(20) days, pursuant to the Electronic Freedom of Information Act 
Amendments of 1996, of receipt by the Coordinator, any NACIC records 
containing information originated by other NACIC components shall be 
forwarded to those entities for action in accordance with paragraph (a) 
of this section and return. Records originated by other federal agencies 
or NACIC records containing other federal agency information shall be 
forwarded to such agencies within twenty (20) days of our completion of 
initial action in the case for action under their regulations and direct 
response to the requester (for other agency records) or return to NACIC 
(for NACIC records).



Sec.  1800.23  Payment of fees, notification of decision, and right of
appeal.

    (a) Fees in general. Fees collected under this part do not accrue to 
the National Counterintelligence Center and shall be deposited 
immediately to the general account of the United States Treasury.
    (b) Notification of decision. Upon completion of all required review 
and the

[[Page 303]]

receipt of accrued fees (or promise to pay such fees), NACIC will 
promptly inform the requester in writing of those records or portions of 
records which may be released and which must be denied. With respect to 
the former, NACIC will provide copies; with respect to the latter, NACIC 
shall explain the reasons for the denial, identify the person(s) 
responsible for such decisions by name and title, and give notice of a 
right of administrative appeal.
    (c) Availability of reading room. As an alternative to receiving 
records by mail, a requester may arrange to inspect the records deemed 
releasable at a NACIC ``reading room'' in the metropolitan Washington, 
DC area. Access will be granted after applicable and accrued fees have 
been paid. Requests to review or browse documents in our database of 
``officially released records'' will also be honored in this manner to 
the extent that paper copies or electronic copies in unclassified 
computer systems exist. All such requests shall be in writing and 
addressed pursuant to Sec.  1800.3. The records will be available at 
such times as mutually agreed but not less than three (3) days from our 
receipt of a request. The requester will be responsible for reproduction 
charges for any copies of records desired.



               Subpart D_Additional Administrative Matters



Sec.  1800.31  Procedures for business information.

    (a) In general. Business information obtained by NACIC by a 
submitter shall not be disclosed pursuant to a Freedom of Information 
Act request except in accordance with this section. For purposes of this 
section, the following definitions apply:
    Business information means commercial or financial information in 
which a legal entity has a recognized property interest;
    Confidential commercial information means such business information 
provided to the United States Government by a submitter which is 
reasonably believed to contain information exempt from release under 
exemption (b)(4) of the Freedom of Information Act, 5 U.S.C. 552, 
because disclosure could reasonably be expected to cause substantial 
competitive harm;
    Submitter means any person or entity who provides confidential 
commercial information to the United States Government; it includes, but 
is not limited to, corporations, businesses (however organized), state 
governments, and foreign governments; and
    (b) Designation of confidential commercial information. A submitter 
of business information will use good-faith efforts to designate, by 
appropriate markings, either at the time of submission or at a 
reasonable time thereafter, any portions of its submission that it 
considers to be confidential commercial information and hence protected 
from required disclosure pursuant to exemption (b)(4). Such designations 
shall expire ten (10) years after the date of the submission unless the 
submitter requests, and provides justification for, a longer designation 
period.
    (c) Process in event of FOIA request--(1) Notice to submitters. 
NACIC shall provide a submitter with prompt written notice of receipt of 
a Freedom of Information Act request encompassing business information 
whenever:
    (i) The submitter has in good faith designated the information as 
confidential commercial information, or
    (ii) NACIC believes that disclosure of the information could 
reasonably be expected to cause substantial competitive harm, and
    (iii) The information was submitted within the last ten (10) years 
unless the submitter requested and provided acceptable justification for 
a specific notice period of greater duration.
    (2) Form of notice. This notice shall either describe the exact 
nature of the confidential commercial information at issue or provide 
copies of the responsive records containing such information.
    (3) Response by submitter. (i) Within seven (7) days of the above 
notice, all claims of confidentiality by a submitter must be supported 
by a detailed statement of any objection to disclosure. Such statement 
shall:
    (A) Specify that the information has not been disclosed to the 
public;
    (B) Explain why the information is contended to be a trade secret or 
confidential commercial information;

[[Page 304]]

    (C) Explain how the information is capable of competitive damage if 
disclosed;
    (D) State that the submitter will provide NACIC and the Department 
of Justice with such litigation defense as requested; and
    (E) Be certified by an officer authorized to legally bind the 
corporation or similar entity.
    (ii) It should be noted that information provided by a submitter 
pursuant to this provision may itself be subject to disclosure under the 
FOIA.
    (4) Decision and notice of intent to disclose. (i) NACIC shall 
consider carefully a submitter's objections and specific grounds for 
nondisclosure prior to its final determination. If NACIC decides to 
disclose a document over the objection of a submitter, NACIC shall 
provide the submitter a written notice which shall include:
    (A) A statement of the reasons for which the submitter's disclosure 
objections were not sustained;
    (B) A description of the information to be disclosed; and
    (C) A specified disclosure date which is seven (7) days after the 
date of the instant notice.
    (ii) When notice is given to a submitter under this section, NACIC 
shall also notify the requester and, if NACIC notifies a submitter that 
it intends to disclose information, then the requester shall be notified 
also and given the proposed date for disclosure.
    (5) Notice of FOIA lawsuit. If a requester initiates a civil action 
seeking to compel disclosure of information asserted to be within the 
scope of this section, NACIC shall promptly notify the submitter. The 
submitter, as specified above, shall provide such litigation assistance 
as required by NACIC and the Department of Justice.
    (6) Exceptions to notice requirement. The notice requirements of 
this section shall not apply if NACIC determines that:
    (i) The information should not be disclosed in light of other FOIA 
exemptions;
    (ii) The information has been published lawfully or has been 
officially made available to the public;
    (iii) The disclosure of the information is otherwise required by law 
or federal regulation; or
    (iv) The designation made by the submitter under this section 
appears frivolous, except that, in such a case, NACIC will, within a 
reasonable time prior to the specified disclosure date, give the 
submitter written notice of any final decision to disclose the 
information.

[64 FR 49879, Sept. 14, 1999; 64 FR 53769, Oct. 4, 1999]



Sec.  1800.32  Procedures for information concerning other persons.

    (a) In general. Personal information concerning individuals other 
than the requester shall not be disclosed under the Freedom of 
Information Act if the proposed release would constitute a clearly 
unwarranted invasion of personal privacy. See 5 U.S.C. 552(b)(6). For 
purposes of this section, the following definitions apply:
    Personal information means any information about an individual that 
is not a matter of public record, or easily discernible to the public, 
or protected from disclosure because of the implications that arise from 
Government possession of such information.
    Public interest means the public interest in understanding the 
operations and activities of the United States Government and not simply 
any matter which might be of general interest to the requester or 
members of the public.
    (b) Determination to be made. In making the required determination 
under this section and pursuant to exemption (b)(6) of the FOIA, NACIC 
will balance the privacy interests that would be compromised by 
disclosure against the public interest in release of the requested 
information.
    (c) Otherwise. A requester seeking information on a third person is 
encouraged to provide a signed affidavit or declaration from the third 
person waiving all or some of their privacy rights. However, all such 
waivers shall be narrowly construed and the Coordinator, in the exercise 
of his discretion and administrative authority, may seek clarification 
from the third party prior to any or all releases.

[[Page 305]]



Sec.  1800.33  Allocation of resources; agreed extensions of time.

    (a) In general. NACIC components shall devote such personnel and 
other resources to the responsibilities imposed by the Freedom of 
Information Act as may be appropriate and reasonable considering:
    (1) The totality of resources available to the component,
    (2) The business demands imposed on the component by the Director of 
NACIC or otherwise by law,
    (3) The information review and release demands imposed by the 
Congress or other governmental authority, and
    (4) The rights of all members of the public under the various 
information review and disclosure laws.
    (b) Discharge of FOIA responsibilities. Components shall exercise 
due diligence in their responsibilities under the FOIA and must allocate 
a reasonable level of resources to requests under the Act in a strictly 
``first-in, first-out'' basis and utilizing two or more processing 
queues to ensure that smaller as well as larger (i.e., project) cases 
receive equitable attention. The Information and Privacy Coordinator is 
responsible for management of the NACIC-wide program defined by this 
part and for establishing priorities for cases consistent with 
established law. The Director, NACIC shall provide policy and resource 
direction as necessary and render decisions on administrative appeals.
    (c) Requests for extension of time. When NACIC is unable to meet the 
statutory time requirements of the FOIA, it will inform the requester 
that the request cannot be processed within the statutory time limits, 
provide an opportunity for the requester to limit the scope of the 
request so that it can be processed within the statutory time limits, or 
arrange with the requester an agreed upon time frame for processing the 
request, or determine that exceptional circumstances mandate additional 
time in accordance with the definition of ``exceptional circumstances'' 
per section 552(a)(6)(C) of the Freedom of Information Act, as amended, 
effective October 2, 1997. In such instances NACIC will, however, inform 
a requester of his or her right to decline our request and proceed with 
an administrative appeal or judicial review as appropriate.



Sec.  1800.34  Requests for expedited processing.

    (a) In general. All requests will be handled in the order received 
on a strictly ``first-in, first-out'' basis. Exceptions to this section 
will only be made in accordance with the following procedures. In all 
circumstances, however, and consistent with established judicial 
precedent, requests more properly the scope of requests under the 
Federal Rules of Civil or Criminal Procedure (or other federal, state, 
or foreign judicial or quasi-judicial rules) will not be granted 
expedited processing under this or related (e.g., Privacy Act) 
provisions unless expressly ordered by a federal court of competent 
jurisdiction.
    (b) Procedure. Requests for expedited processing will be approved 
only when a compelling need is established to the satisfaction of NACIC. 
A requester may make such a request with a certification of ``compelling 
need'' and, within ten (10) days of receipt, NACIC will decide whether 
to grant expedited processing and will notify the requester of its 
decision. The certification shall set forth with specificity the 
relevant facts upon which the requester relies and it appears to NACIC 
that substantive records relevant to the stated needs may exist and be 
deemed releasable. A ``compelling need'' is deemed to exist:
    (1) When the matter involves an imminent threat to the life or 
physical safety of an individual; or
    (2) When the request is made by a person primarily engaged in 
disseminating information and the information is relevant to a subject 
of public urgency concerning an actual or alleged Federal government 
activity.



          Subpart E_NACIC Action On FOIA Administrative Appeals



Sec.  1800.41  Appeal authority.

    The Director, NACIC will make final NACIC decisions from appeals of 
initial adverse decisions under the Freedom of Information Act and such 
other information release decisions made under parts 1801, 1802, and 
1803 of this chapter. Matters decided by the Director,

[[Page 306]]

NACIC will be deemed a final decision by NACIC.



Sec.  1800.42  Right of appeal and appeal procedures.

    (a) Right of Appeal. A right of administrative appeal exists 
whenever access to any requested record or any portion thereof is 
denied, no records are located in response to a request, or a request 
for a fee waiver is denied. NACIC will apprise all requesters in writing 
of their right to appeal such decisions to the Director, NACIC through 
the Coordinator.
    (b) Requirements as to time and form. Appeals of decisions must be 
received by the Coordinator within forty-five (45) days of the date of 
NACIC's initial decision. NACIC may, for good cause and as a matter of 
administrative discretion, permit an additional thirty (30) days for the 
submission of an appeal. All appeals shall be in writing and addressed 
as specified in Sec.  1800.3. All appeals must identify the documents or 
portions of documents at issue with specificity and may present such 
information, data, and argument in support as the requester may desire.
    (c) Exceptions. No appeal shall be accepted if the requester has 
outstanding fees for information services at this or another federal 
agency. In addition, no appeal shall be accepted if the information in 
question has been the subject of a review within the previous two (2) 
years or is the subject of pending litigation in the federal courts.
    (d) Receipt, recording, and tasking. NACIC shall promptly record 
each request received under this part, acknowledge receipt to the 
requester in writing, and thereafter effect the necessary taskings to 
the office(s) which originated or has an interest in the record(s) 
subject to the appeal.
    (e) Time for response. NACIC shall attempt to complete action on an 
appeal within twenty (20) days of the date of receipt. The volume of 
requests, however, may require that NACIC request additional time from 
the requester pursuant to Sec.  1800.33. In such event, NACIC will 
inform the requester of the right to judicial review.



Sec.  1800.43  Determination(s) by Office Chief(s).

    Each Office Chief in charge of an office which originated or has an 
interest in any of the records subject to the appeal, or designee, is a 
required party to any appeal; other interested parties may become 
involved through the request of the Coordinator when it is determined 
that some or all of the information is also within their official 
cognizance. These parties shall respond in writing to the Coordinator 
with a finding as to the exempt status of the information. This response 
shall be provided expeditiously on a ``first-in, first-out'' basis 
taking into account the business requirements of the parties and 
consistent with the information rights of members of the general public 
under the various information review and release laws.



Sec.  1800.44  Action by appeals authority.

    (a) Preparation of docket. The Coordinator shall provide a summation 
memorandum for consideration of the Director, NACIC; the complete record 
of the request consisting of the request, the document(s) (sanitized and 
full text) at issue, and the findings of concerned Office Chiefs or 
designee(s).
    (b) Decision by the Director, NACIC. The Director, NACIC shall 
personally decide each case; no personal appearances shall be permitted 
without the express permission of the Director, NACIC.



Sec.  1800.45  Notification of decision and right of judicial review.

    The Coordinator shall promptly prepare and communicate the decision 
of the Director, NACIC to the requester. With respect to any decision to 
deny information, that correspondence shall state the reasons for the 
decision, identify the officer responsible, and include a notice of a 
right to judicial review.



PART 1801_PUBLIC RIGHTS UNDER THE PRIVACY ACT OF 1974--Table of Contents



                            Subpart A_General

Sec.
1801.1 Authority and purpose.
1801.2 Definitions.

[[Page 307]]

1801.3 Contact for general information and requests.
1801.4 Suggestions and complaints.

                Subpart B_Filing Of Privacy Act Requests

1801.11 Preliminary information.
1801.12 Requirements as to form.
1801.13 Requirements as to identification of requester.
1801.14 Fees.

                Subpart C_Action On Privacy Act Requests

1801.21 Processing requests for access to or amendment of records.
1801.22 Action and determination(s) by originator(s) or any interested 
          party.
1801.23 Notification of decision and right of appeal.

               Subpart D_Additional Administrative Matters

1801.31 Special procedures for medical and psychological records.
1801.32 Requests for expedited processing.
1801.33 Allocation of resources; agreed extensions of time.

         Subpart E_Action On Privacy Act Administrative Appeals

1801.41 Appeal authority.
1801.42 Right of appeal and appeal procedures.
1801.43 Determination(s) by Office Chief(s).
1801.44 Action by appeals authority.
1801.45 Notification of decision and right of judicial review.

                         Subpart F_Prohibitions

1801.51 Limitations on disclosure.
1801.52 Criminal penalties.

                          Subpart G_Exemptions

1801.63 Specific exemptions.

    Authority: 5 U.S.C. 552a.

    Source: 64 FR 49884, Sept. 14, 1999, unless otherwise noted.



                            Subpart A_General



Sec.  1801.1  Authority and purpose.

    (a) Authority. This part is issued under the authority of and in 
order to implement the Privacy Act of 1974 (5 U.S.C. 552a) and section 
102 of the National Security Act of 1947, as amended (50 U.S.C. 403).
    (b) Purpose in general. This part prescribes procedures for a 
requester, as defined herein:
    (1) To request notification of whether the National 
Counterintellingence Center (NACIC) maintains a record concerning them 
in any non-exempt portion of a system of records or any non-exempt 
system of records;
    (2) To request a copy of all non-exempt records or portions of 
records;
    (3) To request that any such record be amended or augmented; and
    (4) To file an administrative appeal to any initial adverse 
determination to deny access to or amend a record.
    (c) Other purposes. This part also sets forth detailed limitations 
on how and to whom NACIC may disclose personal information and gives 
notice that certain actions by officers or employees of the United 
States Government or members of the public could constitute criminal 
offenses.



Sec.  1801.2  Definitions.

    For purposes of this part, the following terms have the meanings 
indicated:
    NACIC means the United States National Counterintelligence Center 
acting through the NACIC Information and Privacy Coordinator;
    Days means calendar days when NACIC is operating and specifically 
excludes Saturdays, Sundays, and legal public holidays. Three (3) days 
may be added to any time limit imposed on a requester by this part if 
responding by U.S. domestic mail; ten (10) days may be added if 
responding by international mail;
    Control means ownership or the authority of NACIC pursuant to 
federal statute or privilege to regulate official or public access to 
records;
    Coordinator means the NACIC Information and Privacy Coordinator who 
serves as the NACIC manager of the information review and release 
program instituted under the Privacy Act;
    Federal agency means any executive department, military department, 
or other establishment or entity included in the definition of agency in 
5 U.S.C. 552(f);
    Interested party means any official in the executive, military, 
congressional, or judicial branches of government,

[[Page 308]]

United States or foreign, or U.S. Government contractor who, in the sole 
discretion of NACIC, has a subject matter or physical interest in the 
documents or information at issue;
    Maintain means maintain, collect, use, or disseminate;
    Originator means the U.S. Government official who originated the 
document at issue or successor in office or such official who has been 
delegated release or declassification authority pursuant to law;
    Privacy Act or PA means the statute as codified at 5 U.S.C. 552a;
    Record means an item, collection, or grouping of information about 
an individual that is maintained by NACIC in a system of records;
    Requester or individual means a citizen of the United States or an 
alien lawfully admitted for permanent residence who is a living being 
and to whom a record might pertain;
    Responsive record means those documents (records) which NACIC has 
determined to be within the scope of a Privacy Act request;
    Routine use means, with respect to the disclosure of a record, the 
use of such record for a purpose which is compatible with the purpose 
for which the record is maintained;
    System of records means a group of any records under the control of 
NACIC from which records are retrieved by the name of an individual or 
by some identifying number, symbol, or other identifying particular 
assigned to that individual.



Sec.  1801.3  Contact for general information and requests.

    For general information on this part, to inquire about the Privacy 
Act program at NACIC, or to file a Privacy Act request, please direct 
your communication in writing to the Information and Privacy 
Coordinator, Executive Secretariat Office, National Counterintelligence 
Center, 3W01 NHB, Washington, DC 20505. Requests with the required 
identification statement pursuant to Sec.  1801.13 must be filed in 
original form by mail. Subsequent communications and any inquiries will 
be accepted by mail or facsimile at (703) 874-5844 or by telephone at 
(703) 874-4121. Collect calls cannot be accepted.



Sec.  1801.4  Suggestions and complaints.

    NACIC welcomes suggestions or complaints with regard to its 
administration of the Privacy Act. Letters of suggestion or complaint 
should identify the specific purpose and the issues for consideration. 
NACIC will respond to all substantive communications and take such 
actions as determined feasible and appropriate.



                Subpart B_Filing Of Privacy Act Requests



Sec.  1801.11  Preliminary information.

    Members of the public shall address all communications to the 
contact specified at Sec.  1801.3 and clearly delineate the 
communication as a request under the Privacy Act and this regulation. 
Requests and administrative appeals on requests, referrals, and 
coordinations received from members of the public who owe outstanding 
fees for information services at this or other federal agencies will not 
be accepted and action on existing requests and appeals will be 
terminated in such circumstances.



Sec.  1801.12  Requirements as to form.

    (a) In general. No particular form is required. All requests must 
contain the identification information required at Sec.  1801.13.
    (b) For access. For requests seeking access, a requester should, to 
the extent possible, describe the nature of the record sought and the 
record system(s) in which it is thought to be included. Requesters may 
find assistance from information described in the Privacy Act Issuances 
Compilation which is published biennially by the Federal Register. In 
lieu of this, a requester may simply describe why and under what 
circumstances it is believed that NACIC maintains responsive records; 
NACIC will undertake the appropriate searches.
    (c) For amendment. For requests seeking amendment, a requester 
should identify the particular record or portion subject to the request, 
state a justification for such amendment, and provide the desired 
amending language.

[[Page 309]]



Sec.  1801.13  Requirements as to identification of requester.

    (a) In general. Individuals seeking access to or amendment of 
records concerning themselves shall provide their full (legal) name, 
address, date and place of birth, and current citizenship status 
together with a statement that such information is true under penalty of 
perjury or a notarized statement swearing to or affirming identity. If 
NACIC determines that this information is not sufficient, NACIC may 
request additional or clarifying information.
    (b) Requirement for aliens. Only aliens lawfully admitted for 
permanent residence (PRAs) may file a request pursuant to the Privacy 
Act and this part. Such individuals shall provide, in addition to the 
information required under paragraph (a) of this section, their Alien 
Registration Number and the date that status was acquired.
    (c) Requirement for representatives. The parent or guardian of a 
minor individual, the guardian of an individual under judicial 
disability, or an attorney retained to represent an individual shall 
provide, in addition to establishing the identity of the minor or 
individual represented as required in paragraph (a) or (b) of this 
section, evidence of such representation by submission of a certified 
copy of the minor's birth certificate, court order, or representational 
agreement which establishes the relationship and the requester's 
identity.
    (d) Procedure otherwise. If a requester or representative fails to 
provide the information in paragraph (a), (b), or (c) of this section 
within forty-five (45) days of the date of our request, NACIC will deem 
the request closed. This action, of course, would not prevent an 
individual from refiling his or her Privacy Act request at a subsequent 
date with the required information.



Sec.  1801.14  Fees.

    No fees will be charged for any action under the authority of the 
Privacy Act, 5 U.S.C. 552a, irrespective of the fact that a request is 
or may be processed under the authority of both the Privacy Act and the 
Freedom of Information Act.



                Subpart C_Action On Privacy Act Requests



Sec.  1801.21  Processing requests for access to or amendment of 
records.

    (a) In general. Requests meeting the requirements of Sec.  1801.11 
through Sec.  1801.13 shall be processed under both the Freedom of 
Information Act, 5 U.S.C. 552, and the Privacy Act, 5 U.S.C. 552a, and 
the applicable regulations, unless the requester demands otherwise in 
writing. Such requests will be processed under both Acts regardless of 
whether the requester cites one Act in the request, both, or neither. 
This action is taken in order to ensure the maximum possible disclosure 
to the requester.
    (b) Receipt, recording and tasking. Upon receipt of a request 
meeting the requirements of Sec. Sec.  1801.11 through 1801.13, NACIC 
shall within ten (10) days record each request, acknowledge receipt to 
the requester, and thereafter effect the necessary taskings to the 
office(s) reasonably believed to hold responsive records.
    (c) Effect of certain exemptions. In processing a request, NACIC 
shall decline to confirm or deny the existence or nonexistence of any 
responsive records whenever the fact of their existence or nonexistence 
is itself classified under Executive Order 12958 and that confirmation 
of the existence of a record may jeopardize intelligence sources and 
methods protected pursuant to section 103(c)(6) of the National Security 
Act of 1947. In such circumstances, NACIC, in the form of a final 
written response, shall so inform the requester and advise of his or her 
right to an administrative appeal.
    (d) Time for response. Although the Privacy Act does not mandate a 
time for response, our joint treatment of requests under both the 
Privacy Act and the FOIA means that the NACIC should provide a response 
within the FOIA statutory guideline of ten (10) days on initial requests 
and twenty (20) days on administrative appeals. However, the volume of 
requests may require that NACIC seek additional time from a requester 
pursuant to Sec.  1801.33. In such event, NACIC will inform the 
requester in writing and further advise of his or

[[Page 310]]

her right to file an administrative appeal.



Sec.  1801.22  Action and determination(s) by originator(s) or any 
interested party.

    (a) Initial action for access. NACIC offices tasked pursuant to a 
Privacy Act access request shall search all relevant record systems 
within their cognizance. They shall:
    (1) Determine whether responsive records exist;
    (2) Determine whether access must be denied in whole or part and on 
what legal basis under both Acts in each such case;
    (3) Approve the disclosure of records for which they are the 
originator; and
    (4) Forward to the Coordinator all records approved for release or 
necessary for coordination with or referral to another originator or 
interested party as well as the specific determinations with respect to 
denials (if any).
    (b) Initial action for amendment. NACIC offices tasked pursuant to a 
Privacy Act amendment request shall review the official records alleged 
to be inaccurate and the proposed amendment submitted by the requester. 
If they determine that NACIC's records are not accurate, relevant, 
timely or complete, they shall promptly:
    (1) Make the amendment as requested;
    (2) Write to all other identified persons or agencies to whom the 
record has been disclosed (if an accounting of the disclosure was made) 
and inform of the amendment; and
    (3) Inform the Coordinator of such decisions.
    (c) Action otherwise on amendment request. If the NACIC office 
records manager declines to make the requested amendment (or declines to 
make the requested amendment) but agrees to augment the official 
records, that manager shall promptly:
    (1) Set forth the reasons for refusal; and
    (2) Inform the Coordinator of such decision and the reasons 
therefore.
    (d) Referrals and coordinations. As applicable and within ten (10) 
days of receipt by the Coordinator, any NACIC records containing 
information originated by other NACIC offices shall be forwarded to 
those entities for action in accordance with paragraphs (a), (b), or (c) 
of this section and return. Records originated by other federal agencies 
or NACIC records containing other federal information shall be forwarded 
to such agencies within ten (10) days of our completion of initial 
action in the case for action under their regulations and direct 
response to the requester (for other NACIC records) or return to NACIC 
(for NACIC records).
    (e) Effect of certain exemptions. This section shall not be 
construed to allow access to systems of records exempted by the 
Director, NACIC pursuant to subsections (j) and (k) of the Privacy Act 
or where those exemptions require that NACIC can neither confirm nor 
deny the existence or nonexistence of responsive records.



Sec.  1801.23  Notification of decision and right of appeal.

    Within ten (10) days of receipt of responses to all initial taskings 
and subsequent coordinations (if any), and dispatch of referrals (if 
any), NACIC will provide disclosable records to the requester. If a 
determination has been made not to provide access to requested records 
(in light of specific exemptions) or that no records are found, NACIC 
shall so inform the requester, identify the denying official, and advise 
of the right to administrative appeal.



               Subpart D_Additional Administrative Matters



Sec.  1801.31  Special procedures for medical and psychological records.

    (a) In general. When a request for access or amendment involves 
medical or psychological records and when the originator determines that 
such records are not exempt from disclosure, NACIC will, after 
consultation with the Director of Medical Services, CIA, determine:
    (1) Which records may be sent directly to the requester and
    (2) Which records should not be sent directly to the requester 
because of possible medical or psychological harm to the requester or 
another person.

[[Page 311]]

    (b) Procedure for records to be sent to physician. In the event that 
NACIC determines, in accordance with paragraph (a)(2) of this section, 
that records should not be sent directly to the requester, NACIC will 
notify the requester in writing and advise that the records at issue can 
be made available only to a physician of the requester's designation. 
Upon receipt of such designation, verification of the identity of the 
physician, and agreement by the physician:
    (1) To review the documents with the requesting individual,
    (2) To explain the meaning of the documents, and
    (3) To offer counseling designed to temper any adverse reaction, 
NACIC will forward such records to the designated physician.
    (c) Procedure if physician option not available. If within sixty 
(60) days of paragraph (a)(2) of this section, the requester has failed 
to respond or designate a physician, or the physician fails to agree to 
the release conditions, NACIC will hold the documents in abeyance and 
advise the requester that this action may be construed as a technical 
denial. NACIC will also advise the requester of the responsible official 
and of his or her rights to administrative appeal and thereafter 
judicial review.



Sec.  1801.32  Requests for expedited processing.

    (a) All requests will be handled in the order received on a strictly 
``first-in, first-out'' basis. Exceptions to this rule will only be made 
in circumstances that NACIC deems to be exceptional. In making this 
determination, NACIC shall consider and must decide in the affirmative 
on all of the following factors:
    (1) That there is a genuine need for the records; and
    (2) That the personal need is exceptional; and
    (3) That there are no alternative forums for the records sought; and
    (4) That it is reasonably believed that substantive records relevant 
to the stated needs may exist and be deemed releasable.
    (b) In sum, requests shall be considered for expedited processing 
only when health, humanitarian, or due process considerations involving 
possible deprivation of life or liberty create circumstances of 
exceptional urgency and extraordinary need. In accordance with 
established judicial precedent, requests more properly the scope of 
requests under the Federal Rules of Civil or Criminal Procedure (or 
equivalent state rules) will not be granted expedited processing under 
this or related (e.g., Freedom of Information Act) provisions unless 
expressly ordered by a federal court of competent jurisdiction.



Sec.  1801.33  Allocation of resources; agreed extensions of time.

    (a) In general. NACIC components shall devote such personnel and 
other resources to the responsibilities imposed by the Privacy Act as 
may be appropriate and reasonable considering:
    (1) The totality of resources available to the component,
    (2) The business demands imposed on the component by the Director, 
NACIC or otherwise by law,
    (3) The information review and release demands imposed by the 
Congress or other governmental authority, and
    (4) The rights of all members of the public under the various 
information review and disclosure laws.
    (b) Discharge of Privacy Act responsibilities. Offices shall 
exercise due diligence in their responsibilities under the Privacy Act 
and must allocate a reasonable level of resources to requests under the 
Act in a strictly ``first-in, first-out'' basis and utilizing two or 
more processing queues to ensure that smaller as well as larger (i.e., 
project) cases receive equitable attention. The Information and Privacy 
Coordinator is responsible for management of the NACIC-wide program 
defined by this part and for establishing priorities for cases 
consistent with established law. The Director, NACIC shall provide 
policy and resource direction as necessary and shall render decisions on 
administrative appeals.
    (c) Requests for extension of time. While the Privacy Act does not 
specify time requirements, our joint treatment of requests under the 
FOIA means that when NACIC is unable to meet the statutory time 
requirements of the FOIA, NACIC may request additional

[[Page 312]]

time from a requester. In such instances NACIC will inform a requester 
of his or her right to decline our request and proceed with an 
administrative appeal or judicial review as appropriate.



         Subpart E_Action On Privacy Act Administrative Appeals



Sec.  1801.41  Appeal authority.

    The Director, NACIC will make final NACIC decisions from appeals of 
initial adverse decisions under the Privacy Act and such other 
information release decisions made under 32 CFR parts 1800, 1802, and 
1803 of this chapter. Matters decided by the Director, NACIC will be 
deemed a final decision by NACIC.



Sec.  1801.42  Right of appeal and appeal procedures.

    (a) Right of Appeal. A right of administrative appeal exists 
whenever access to any requested record or any portion thereof is 
denied, no records are located in response to a request, or a request 
for amendment is denied. NACIC will apprise all requesters in writing of 
their right to appeal such decisions to the Director, NACIC through the 
Coordinator.
    (b) Requirements as to time and form. Appeals of decisions must be 
received by the Coordinator within forty-five (45) days of the date of 
NACIC's initial decision. NACIC may, for good cause and as a matter of 
administrative discretion, permit an additional thirty (30) days for the 
submission of an appeal. All appeals to the Director, NACIC shall be in 
writing and addressed as specified in Sec.  1801.3. All appeals must 
identify the documents or portions of documents at issue with 
specificity, provide the desired amending language (if applicable), and 
may present such information, data, and argument in support as the 
requester may desire.
    (c) Exceptions. No appeal shall be accepted if the requester has 
outstanding fees for information services at this or another federal 
agency. In addition, no appeal shall be accepted if the information in 
question has been the subject of an administrative review within the 
previous two (2) years or is the subject of pending litigation in the 
federal courts.
    (d) Receipt, recording, and tasking. NACIC shall promptly record 
each administrative appeal, acknowledge receipt to the requester in 
writing, and thereafter effect the necessary taskings to the office 
chief in charge of the office(s) which originated or has an interest in 
the record(s) subject to the appeal.



Sec.  1801.43  Determination(s) by Office Chiefs.

    Each Office Chief in charge of an office which originated or has an 
interest in any of the records subject to the appeal, or designee, is a 
required party to any appeal; other interested parties may become 
involved through the request of the Coordinator when it is determined 
that some or all of the information is also within their official 
cognizance. These parties shall respond in writing to the Coordinator 
with a finding as to the exempt or non-exempt status of the information 
including citations to the applicable exemption and/or their agreement 
or disagreement as to the requested amendment and the reasons therefore. 
Each response shall be provided expeditiously on a ``first-in, first-
out'' basis taking into account the business requirements of the parties 
and consistent with the information rights of members of the general 
public under the various information review and release laws.



Sec.  1801.44  Action by appeals authority.

    (a) Preparation of docket. The Coordinator shall provide a summation 
memorandum for consideration of the Director, NACIC; the complete record 
of the request consisting of the request, the document(s) (sanitized and 
full text) at issue, and the findings of any concerned office chiefs or 
designee(s).
    (b) Decision by the Director, NACIC. The Director, NACIC shall 
personally decide each case; no personal appearances shall be permitted 
without the express permission of the Director, NACIC.

[[Page 313]]



Sec.  1801.45  Notification of decision and right of judicial review.

    (a) In general. The Coordinator shall promptly prepare and 
communicate the decision of the Director, NACIC to the requester. With 
respect to any decision to deny information or deny amendment, that 
correspondence shall state the reasons for the decision, identify the 
officer responsible, and include a notice of the right to judicial 
review.
    (b) For amendment requests. With further respect to any decision to 
deny an amendment, that correspondence shall also inform the requester 
of the right to submit within forty-five (45) days a statement of his or 
her choice which shall be included in the official records of NACIC. In 
such cases, the applicable record system manager shall clearly note any 
portion of the official record which is disputed, append the requester's 
statement, and provide copies of the statement to previous recipients 
(if any are known) and to any future recipients when and if the disputed 
information is disseminated in accordance with a routine use.



                         Subpart F_Prohibitions



Sec.  1801.51  Limitations on disclosure.

    No record which is within a system of records shall be disclosed by 
any means of communication to any individual or to another agency, 
except pursuant to a written request by, or with the prior written 
consent of, the individual to whom the record pertains, unless 
disclosure of the record would be:
    (a) To those officers and employees of NACIC which maintains the 
record who have a need for the record in the performance of their 
duties;
    (b) Required under the Freedom of Information Act, 5 U.S.C. 552;
    (c) For a routine use as defined in Sec.  1801.02(m), as contained 
in the Privacy Act Issuances Compilation which is published biennially 
in the Federal Register, and as described in sections (a)(7) and 
(e)(4)(D) of the Act;
    (d) To the Bureau of the Census for purposes of planning or carrying 
out a census or survey or related activity pursuant to the provisions of 
U.S.C. Title 13;
    (e) To a recipient who has provided NACIC with advance adequate 
written assurance that the record will be used solely as a statistical 
research or reporting record, and the record is to be transferred in a 
form that is not individually identifiable;
    (f) To the National Archives and Records Administration as a record 
which has sufficient historical or other value to warrant its continued 
preservation by the United States Government, or for evaluation by the 
Archivist of the United States or designee to determine whether the 
record has such value;
    (g) To another agency or to an instrumentality of any governmental 
jurisdiction within or under the control of the United States for a 
civil or criminal law enforcement activity if the activity is authorized 
by law, and if the head of that agency or instrumentality has made a 
written request to NACIC specifying the particular information desired 
and the law enforcement activity for which the record is sought;
    (h) To a person pursuant to a showing of compelling circumstances 
affecting the health or safety of an individual if upon such disclosure 
notification is transmitted to the last known address of such 
individual;
    (i) To either House of Congress, or, to the extent of matter within 
its jurisdiction, any committee or subcommittee thereof, any joint 
committee of Congress or subcommittee of any such joint committee;
    (j) To the Comptroller General or any of his authorized 
representatives in the course of the performance of the duties of the 
General Accounting Office; or
    (k) To any agency, government instrumentality, or other person or 
entity pursuant to the order of a court of competent jurisdiction of the 
United States or constituent states.



Sec.  1801.52  Criminal penalties.

    (a) Unauthorized disclosure. Criminal penalties may be imposed 
against any officer or employee of NACIC who, by virtue of employment, 
has possession of or access to NACIC records which contain information 
identifiable with an individual, the disclosure of which is prohibited 
by the Privacy Act or by these rules, and who, knowing that disclosure 
of the specific material is so

[[Page 314]]

prohibited, willfully discloses the material in any manner to any person 
or agency not entitled to receive same.
    (b) Unauthorized maintenance. Criminal penalties may be imposed 
against any officer or employee of NACIC who willfully maintains a 
system of records without meeting the requirements of section (e)(4) of 
the Privacy Act, 5 U.S.C. 552a. The Coordinator and the Director of 
NACIC are authorized independently to conduct such surveys and inspect 
such records as necessary from time to time to ensure that these 
requirements are met.
    (c) Unauthorized requests. Criminal penalties may be imposed upon 
any person who knowingly and willfully requests or obtains any record 
concerning an individual from NACIC under false pretenses.



                          Subpart G_Exemptions



Sec.  1801.63  Specific exemptions.

    Pursuant to authority granted in section (k) of the Privacy Act, the 
Director, NACIC has determined to exempt from section (d) of the Privacy 
Act those portions and only those portions of all systems of records 
maintained by NACIC that would consist of, pertain to, or otherwise 
reveal information that is:
    (a) Classified pursuant to Executive Order 12958 (or successor or 
prior Order) and thus subject to the provisions of 5 U.S.C. 552(b)(1) 
and 5 U.S.C. 552a(k)(1);
    (b) Investigatory in nature and compiled for law enforcement 
purposes, other than material within the scope of section (j)(2) of the 
Act; provided however, that if an individual is denied any right, 
privilege, or benefit to which they are otherwise eligible, as a result 
of the maintenance of such material, then such material shall be 
provided to that individual except to the extent that the disclosure 
would reveal the identity of a source who furnished the information to 
the United States Government under an express promise of 
confidentiality, or, prior to the effective date of this section, under 
an implied promise of confidentiality;
    (c) Maintained in connection with providing protective services to 
the President of the United States or other individuals pursuant to 18 
U.S.C. 3056;
    (d) Required by statute to be maintained and used solely as 
statistical records;
    (e) Investigatory in nature and compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information, but only to the extent that the disclosure of 
such material would reveal the identity of a source who furnished 
information to the United States Government under an express promise of 
confidentiality, or, prior to the effective date of this section, under 
an implied promise of confidentiality;
    (f) Testing or examination material used solely to determine 
individual qualifications for appointment or promotion in the federal 
service the disclosure of which would compromise the objectivity or 
fairness of the testing or examination process; or
    (g) Evaluation material used to determine potential for promotion in 
the armed services, but only to the extent that the disclosure of such 
material would reveal the identity of a source who furnished information 
to the United States Government under an express promise of 
confidentiality, or, prior to the effective date of this section, under 
an implied promise of confidentiality.



PART 1802_CHALLENGES TO CLASSIFICATION OF DOCUMENTS BY AUTHORIZED HOLDERS
PURSUANT TO SECTION 1.9 OF EXECUTIVE ORDER 12958--Table of Contents



                            Subpart A_General

Sec.
1802.1 Authority and purpose.
1802.2 Definitions.
1802.3 Contact for general information and requests.
1802.4 Suggestions and complaints.

                     Subpart B_Filing of Challenges

1802.11 Prerequisites.
1802.12 Requirements as to form.
1802.13 Identification of material at issue.
1802.14 Transmission.

[[Page 315]]

                     Subpart C_Action on Challenges

1802.21 Receipt, recording, and tasking.
1802.22 Challenges barred by res judicata.
1802.23 Determination by originator(s) and/or any interested party.
1802.24 Designation of authority to hear challenges.
1802.25 Action on challenge.
1802.26 Notification of decision and prohibition on adverse action.

                        Subpart D_Right of Appeal

1802.31 Right of Appeal.

    Authority: Executive Order 12958, 60 FR 19825, 3 CFR 1996 Comp., p. 
333-356 (or successor Orders).

    Source: 64 FR 49889, Sept. 14, 1999, unless otherwise noted.



                            Subpart A_General



Sec.  1802.1  Authority and purpose.

    (a) Authority. This part is issued under the authority of and in 
order to implement Sec.  1.9 of Executive Order (E.O.) 12958 and section 
102 of the National Security Act of 1947.
    (b) Purpose. This part prescribes procedures for authorized holders 
of information classified under the various provisions of E.O. 12958, or 
predecessor Orders, to seek a review or otherwise challenge the 
classified status of information to further the interests of the United 
States Government. This part and Sec.  1.9 of E.O. 12958 confer no 
rights upon members of the general public, or authorized holders acting 
in their personal capacity, both of whom shall continue to request 
reviews of classification under the mandatory declassification review 
provisions set forth at Sec.  3.6 of E.O. 12958.



Sec.  1802.2  Definitions.

    For purposes of this part, the following terms have the meanings as 
indicated:
    NACIC means the United States National Counterintelligence Center 
acting through the NACIC Information and Privacy Coordinator;
    Authorized holders means any member of any United States executive 
department, military department, the Congress, or the judiciary (Article 
III) who holds a security clearance from or has been specifically 
authorized by NACIC to possess and use on official business classified 
information, or otherwise has Constitutional authority pursuant to their 
office;
    Days means calendar days when NACIC is operating and specifically 
excludes Saturdays, Sundays, and legal public holidays. Three (3) days 
may be added to any requirement of this part if responding by U.S. 
domestic mail; ten (10) days may be added if responding by international 
mail;
    Challenge means a request in the individual's official, not 
personal, capacity and in furtherance of the interests of the United 
States;
    Control means ownership or the authority of NACIC pursuant to 
federal statute or privilege to regulate official or public access to 
records;
    Coordinator means the NACIC Information and Privacy Coordinator 
acting in the capacity of the Director of NACIC;
    Information means any knowledge that can be communicated or 
documentary material, regardless of its physical form, that is:
    (1) Owned by, produced by or for, or under the control of the United 
States Government, and
    (2) Lawfully and actually in the possession of an authorized holder 
and for which ownership and control has not been relinquished by NACIC;
    Interested party means any official in the executive, military, 
congressional, or judicial branches of government, United States or 
foreign, or U.S. Government contractor who, in the sole discretion of 
NACIC, has a subject matter or physical interest in the documents or 
information at issue;
    Originator means the NACIC officer who originated the information at 
issue, or successor in office, or a NACIC officer who has been delegated 
declassification authority for the information at issue in accordance 
with the provisions of this Order;
    This Order means Executive Order 12958 of April 17, 1995, or 
successor Orders.



Sec.  1802.3  Contact for general information and requests.

    For information on this part or to file a challenge under this part, 
please direct your inquiry to the Director, National Counterintelligence 
Center,

[[Page 316]]

Washington, DC 20505. The commercial (non-secure) telephone is (703) 
874-4117; the classified (secure) telephone for voice and facsimile is 
(703) 874-5829.



Sec.  1802.4  Suggestions and complaints.

    NACIC welcomes suggestions or complaints with regard to its 
administration of the Executive Order. Letters of suggestion or 
complaint should identify the specific purpose and the issues for 
consideration. NACIC will respond to all substantive communications and 
take such actions as determined feasible and appropriate.



                     Subpart B_Filing Of Challenges



Sec.  1802.11  Prerequisites.

    Prior to reliance on this part, authorized holders are required to 
first exhaust such established administrative procedures for the review 
of classified information. Further information on these procedures is 
available from the point of contact, Sec.  1802.3.



Sec.  1802.12  Requirements as to form.

    The challenge shall include identification of the challenger by full 
name and title of position, verification of security clearance or other 
basis of authority, and an identification of the documents or portions 
of documents or information at issue. The challenge shall also, in 
detailed and factual terms, identify and describe the reasons why it is 
believed that the information is not protected by one or more of the 
Sec.  1.5 provisions, that the release of the information would not 
cause damage to the national security, or that the information should be 
declassified due to the passage of time. The challenge must be properly 
classified; in this regard, until the challenge is decided, the 
authorized holder must treat the challenge, the information being 
challenged, and any related or explanatory information as classified at 
the same level as the current classification of the information in 
dispute.



Sec.  1802.13  Identification of material at issue.

    Authorized holders shall append the documents at issue and clearly 
mark those portions subject to the challenge. If information not in 
documentary form is in issue, the challenge shall state so clearly and 
present or otherwise refer with specificity to that information in the 
body of the challenge.



Sec.  1802.14  Transmission.

    Authorized holders must direct challenge requests to NACIC as 
specified in Sec.  1802.3. The classified nature of the challenge, as 
well as the appended documents, require that the holder transmit same in 
full accordance with established security procedures. In general, 
registered U.S. mail is approved for SECRET, non-compartmented material; 
higher classifications require use of approved Top Secret facsimile 
machines or NACIC-approved couriers. Further information is available 
from NACIC as well as corporate or other federal agency security 
departments.



                     Subpart C_Action On Challenges



Sec.  1802.21  Receipt, recording, and tasking.

    The Coordinator shall within ten (10) days record each challenge 
received under this part, acknowledge receipt to the authorized holder, 
and task the originator and other interested parties. Additional 
taskings, as required during the review process, shall be accomplished 
within five (5) days of notification.



Sec.  1802.22  Challenges barred by res judicata.

    The Coordinator shall respond on behalf of the Director, NACIC and 
deny any challenge where the information in question has been the 
subject of a classification review within the previous two (2) years or 
is the subject of pending litigation in the federal courts.



Sec.  1802.23  Response by originator(s) and/or any interested party.

    (a) In general. The originator of the classified information 
(document) is a required party to any challenge; other interested 
parties may become involved through the request of the Director, NACIC 
or the originator when it is determined that some or all of the 
information is also within their official cognizance.
    (b) Determination. These parties shall respond in writing to the 
Director,

[[Page 317]]

NACIC with a mandatory unclassified finding, to the greatest extent 
possible, and an optional classified addendum. This finding shall agree 
to a declassification or, in specific and factual terms, explain the 
basis for continued classification including identification of the 
category of information, the harm to national security which could be 
expected to result from disclosure, and, if older than ten (10) years, 
the basis for the extension of classification time under Sec. Sec.  1.6 
and 3.4 of this Order. These parties shall also provide a statement as 
to whether or not there is any other statutory, common law, or 
Constitutional basis for withholding as required by Sec.  6.1(c) of this 
Order.
    (c) Time. The determination(s) shall be provided on a first in, 
first out basis with respect to all challenges pending under this 
section and shall be accomplished expeditiously taking into account the 
requirements of the authorized holder as well as the business 
requirements of the originator including their responsibilities under 
the Freedom of Information Act, the Privacy Act, or the mandatory 
declassification review provisions of this Order.



Sec.  1802.24  Designation of authority to hear challenges.

    The Director, NACIC is the NACIC authority to hear and decide 
challenges under this part.



Sec.  1802.25  Action on challenge.

    Action by Coordinator. The Coordinator shall provide a summation 
memorandum for consideration of the Director, NACIC; the complete 
package consisting of the challenge, the information at issue, and the 
findings of the originator and interested parties shall also be 
provided. The Director, NACIC shall personally decide each case; no 
personal appearances shall be permitted without the express permission 
of the Director, NACIC.



Sec.  1802.26  Notification of decision and prohibition on adverse action.

    The Coordinator shall communicate the decision of NACIC to the 
authorized holder, the originator, and other interested parties within 
ten (10) days of the decision by the Coordinator. That correspondence 
shall include a notice that no adverse action or retribution can be 
taken in regard to the challenge and that an appeal of the decision may 
be made to the Interagency Security Classification Appeals Panel (ISCAP) 
established pursuant to Sec.  5.4 of this Order.



                        Subpart D_Right of Appeal



Sec.  1802.31  Right of appeal.

    A right of appeal is available to the ISCAP established pursuant to 
Sec.  5.4 of this Order. Action by that body will be the subject of 
rules to be promulgated by the Information Security Oversight Office 
(ISOO).



PART 1803_PUBLIC REQUESTS FOR MANDATORY DECLASSIFICATION REVIEW OF
CLASSIFIED INFORMATION PURSUANT TO SECTION 3.6 OF EXECUTIVE ORDER 12958-
-Table of Contents



                            Subpart A_General

Sec.
1803.1 Authority and purpose.
1803.2 Definitions.
1803.3 Contact for general information and requests.
1803.4 Suggestions and complaints.

  Subpart B_Filing of Mandatory Declassification Review (MDR) Requests

1803.11 Preliminary information.
1803.12 Requirements as to form.
1803.13 Fees.

                 Subpart C_NACIC Action on MDR Requests

1803.21 Receipt, recording, and tasking.
1803.22 Requests barred by res judicata.
1803.23 Determination by originator or interested party.
1803.24 Notification of decision and right of appeal.

                  Subpart D_NACIC Action on MDR Appeals

1803.31 Requirements as to time and form.
1803.32 Receipt, recording, and tasking.
1803.33 Determination by NACIC Office Chiefs.
1803.34 Appeal authority.
1803.35 Action by appeals authority.
1803.36 Notification of decision and right of further appeal.

[[Page 318]]

                        Subpart E_Further Appeals

1803.41 Right of further appeal.

    Authority: Section 3.6 of Executive Order 12958 (or successor 
Orders) and Section 102 of the National Security Act, as amended (50 
U.S.C. 403).

    Source: 64 FR 49890, Sept. 14, 1999, unless otherwise noted.



                            Subpart A_General



Sec.  1803.1  Authority and purpose.

    (a) Authority. This part is issued under the authority of and in 
order to implement Sec.  3.6 of Executive Order (E.O.) 12958 (or 
successor Orders); and Section 102 of the National Security Act of 1947, 
as amended (50 U.S.C. 403).
    (b) Purpose. This part prescribes procedures, subject to limitations 
set forth below, for members of the public to request a declassification 
review of information classified under the various provisions of this or 
predecessor Orders. Section 3.6 of E.O. 12958 and these regulations do 
not create any right or benefit, substantive or procedural, enforceable 
at law by a party against the United States, its agencies, officers, or 
employees.



Sec.  1803.2  Definitions.

    For purposes of this part, the following terms have the meanings as 
indicated:
    NACIC means the United States National Counterintelligence Center 
acting through the NACIC Information and Privacy Coordinator;
    Days means calendar days when NACIC is operating and specifically 
excludes Saturdays, Sundays, and legal public holidays. Three (3) days 
may be added to any requirement of this part if responding by U.S. 
domestic mail; ten (10) days may be added if responding by international 
mail;
    Control means ownership or the authority of NACIC pursuant to 
federal statute or privilege to regulate official or public access to 
records;
    Coordinator means the NACIC Information and Privacy Coordinator who 
serves as the NACIC manager of the information review and release 
program instituted under the mandatory declassification review 
provisions of Executive Order 12958;
    Federal agency means any executive department, military department, 
or other establishment or entity included in the definition of agency in 
5 U.S.C. 552(f);
    Information means any knowledge that can be communicated or 
documentary material, regardless of its physical form that is owned by, 
produced by or for, or under the control of the United States 
Government; it does not include information originated by the incumbent 
President, White House Staff, appointed committees, commissions or 
boards, or any entities within the Executive Office that solely advise 
and assist the incumbent President;
    Interested party means any official in the executive, military, 
congressional, or judicial branches of government, United States or 
foreign, or U.S. Government contractor who, in the sole discretion of 
NACIC, has a subject matter or physical interest in the documents or 
information at issue;
    NARA means the National Archives and Records Administration;
    Originator means the NACIC officer who originated the information at 
issue, or successor in office, or a NACIC officer who has been delegated 
declassification authority for the information at issue in accordance 
with the provisions of this Order;
    Presidential libraries means the libraries or collection authorities 
established by statute to house the papers of former Presidents Hoover, 
Roosevelt, Truman, Eisenhower, Kennedy, Johnson, Nixon, Ford, Carter, 
Reagan, Bush and similar institutions or authorities as may be 
established in the future;
    Referral means coordination with or transfer of action to an 
interested party;
    This Order means Executive Order 12958 of April 17, 1995 or 
successor Orders;



Sec.  1803.3  Contact for general information and requests.

    For general information on this part or to request a 
declassification review, please direct your communication to the 
Information and Privacy Coordinator, National Counterintelligence 
Center, 3W01 NHB, Washington, DC 20505. Such inquiries will also be 
accepted by facsimile at (703) 874-5844.

[[Page 319]]

For general or status information only, the telephone number is (703) 
874-4121. Collect calls cannot be accepted.



Sec.  1803.4  Suggestions and complaints.

    NACIC welcomes suggestions or complaints with regard to its 
administration of the mandatory declassification review program 
established under Executive Order 12958. Letters of suggestion or 
complaint should identify the specific purpose and the issues for 
consideration. NACIC will respond to all substantive communications and 
take such actions as determined feasible and appropriate.



  Subpart B_Filing of Mandatory Declassification Review (MDR) Requests



Sec.  1803.11  Preliminary information.

    Members of the public shall address all communications to the point 
of contact specified above and clearly delineate the communication as a 
request under this part. Requests and appeals on requests received from 
members of the public who owe outstanding fees for information services 
under this Order or the Freedom of Information Act at this or another 
federal agency will not be accepted until such debts are resolved.



Sec.  1803.12  Requirements as to form.

    The request shall identify the document(s) or material(s) with 
sufficient specificity (e.g., National Archives and Records 
Administration (NARA) Document Accession Number or other applicable, 
unique document identifying number) to enable NACIC to locate it with 
reasonable effort. Broad or topical requests for records on a particular 
subject may not be accepted under this provision. A request for 
documents contained in the various Presidential libraries shall be 
effected through the staff of such institutions who shall forward the 
document(s) in question for NACIC review. The requester shall also 
provide sufficient personal identifying information when required by 
NACIC to satisfy requirements of this part.



Sec.  1803.13  Fees.

    Requests submitted via NARA or the various Presidential libraries 
shall be responsible for reproduction costs required by statute or 
regulation. Requests made directly to NACIC will be liable for costs in 
the same amount and under the same conditions as specified in part 1800 
of this chapter.



                 Subpart C_NACIC Action on MDR Requests



Sec.  1803.21  Receipt, recording, and tasking.

    The Information and Privacy Coordinator shall within ten (10) days 
record each mandatory declassification review request received under 
this part, acknowledge receipt to the requester in writing (if received 
directly from a requester), and shall thereafter task the originator and 
other interested parties. Additional taskings, as required during the 
review process, shall be accomplished within ten (10) days of 
notification.



Sec.  1803.22  Requests barred by res judicata.

    The Coordinator shall respond to the requester and deny any request 
where the information in question has been the subject of a 
classification review within the previous two (2) years or is the 
subject of pending litigation in the federal courts.



Sec.  1803.23  Determination by originator or interested party.

    (a) In general. The originator of the classified information 
(document) is a required party to any mandatory declassification review 
request; other interested parties may become involved through a referral 
by the Coordinator when it is determined that some or all of the 
information is also within their official cognizance.
    (b) Required determinations. These parties shall respond in writing 
to the Coordinator with a finding as to the classified status of the 
information including the category of protected information as set forth 
in Sec.  1.5 of this Order, and, if older than ten (10) years, the basis 
for the extension of classification time under Sec. Sec.  1.6 and 3.4 of 
this Order.

[[Page 320]]

These parties shall also provide a statement as to whether or not there 
is any other statutory, common law, or Constitutional basis for 
withholding as required by Sec.  6.1(c) of this Order.
    (c) Time. This response shall be provided expeditiously on a first-
in, first-out basis taking into account the business requirements of the 
originator or interested parties and consistent with the information 
rights of members of the general public under the Freedom of Information 
Act and the Privacy Act.



Sec.  1803.24  Notification of decision and right of appeal.

    The Coordinator shall communicate the decision of NACIC to the 
requester within ten (10) days of completion of all review action. That 
correspondence shall include a notice of a right of administrative 
appeal to the Director, NACIC pursuant to Sec.  3.6(d) of this Order.



                  Subpart D_NACIC Action on MDR Appeals



Sec.  1803.31  Requirements as to time and form.

    Appeals of decisions must be received by the Coordinator within 
forty-five (45) days of the date of mailing of NACIC's initial decision. 
It shall identify with specificity the documents or information to be 
considered on appeal and it may, but need not, provide a factual or 
legal basis for the appeal.



Sec.  1803.32  Receipt, recording, and tasking.

    The Coordinator shall promptly record each appeal received under 
this part, acknowledge receipt to the requester, and task the originator 
and other interested parties. Additional taskings, as required during 
the review process, shall be accomplished within ten (10) days of 
notification.



Sec.  1803.33  Determination by NACIC Office Chiefs.

    Each NACIC Office Chief in charge of an office which originated or 
has an interest in any of the records subject to the appeal, or 
designee, is a required party to any appeal; other interested parties 
may become involved through the request of the Coordinator when it is 
determined that some or all of the information is also within their 
official cognizance. These parties shall respond in writing to the 
Coordinator with a finding as to the classified status of the 
information including the category of protected information as set forth 
in Sec.  1.5 of this Order, and, if older than ten (10) years, the basis 
for continued classification under Sec. Sec.  1.6 and 3.4 of this Order. 
These parties shall also provide a statement as to whether or not there 
is any other statutory, common law, or Constitutional basis for 
withholding as required by Sec.  6.1(c) of this Order. This response 
shall be provided expeditiously on a ``first-in, first-out'' basis 
taking into account the business requirements of the parties and 
consistent with the information rights of members of the general public 
under the Freedom of Information Act and the Privacy Act.



Sec.  1803.34  Appeal authority.

    The Director, NACIC will make final NACIC decisions from appeals of 
initial denial decisions under E.O. 12958. Matters decided by the 
Director, NACIC will be deemed a final decision by NACIC.



Sec.  1803.35  Action by appeals authority.

    Action by the Director, NACIC. The Coordinator shall provide a 
summation memorandum for consideration of the Director, NACIC; the 
complete record of the request consisting of the request, the 
document(s) (sanitized and full text) at issue, and the findings of the 
originator and interested parties. The Director, NACIC shall personally 
decide each case; no personal appearances shall be permitted without the 
express permission of the Director, NACIC.



Sec.  1803.36  Notification of decision and right of further appeal.

    The Coordinator shall communicate the decision of the Director, 
NACIC to the requester, NARA, or the particular Presidential Library 
within ten (10) days of such decision. That correspondence shall include 
a notice that an appeal of the decision may be made to the Interagency 
Security Classification

[[Page 321]]

Appeals Panel (ISCAP) established pursuant to Sec.  5.4 of this Order.



                        Subpart E_Further Appeals



Sec.  1803.41  Right of further appeal.

    A right of further appeal is available to the ISCAP established 
pursuant to Sec.  5.4 of this Order. Action by that Panel will be the 
subject of rules to be promulgated by the Information Security Oversight 
Office (ISOO).



PART 1804_ACCESS BY HISTORICAL RESEARCHERS AND FORMER PRESIDENTIAL 
APPOINTEES PURSUANT TO SECTION 4.5 OF EXECUTIVE ORDER 12958-
-Table of Contents



                            Subpart A_General

Sec.
1804.01 Authority and purpose.
1804.02 Definitions.
1804.03 Contact for general information and requests.
1804.04 Suggestions and complaints.

                Subpart B_Requests for Historical Access

1804.11 Requirements as to who may apply.
1804.12 Designations of authority to hear requests.
1804.13 Receipt, recording, and tasking.
1804.14 Determinations by tasked officials.
1804.15 Action by hearing authority.
1804.16 Action by appeal authority.
1804.17 Notification of decision.
1804.18 Termination of access.

    Authority: Section 4.5 of Executive Order 12958 (or successor 
Orders) and Presidential Decision Directive/NSC 24 ``U.S. 
Counterintelligence Effectiveness,'' dated May 3, 1994.

    Source: 64 FR 49892, Sept. 14, 1999, unless otherwise noted.



                            Subpart A_General



Sec.  1804.1  Authority and purpose.

    (a) Authority. This part is issued under the authority of and in 
order to implement Sec.  4.5 of Executive Order 12958 (or successor 
Orders); and Presidential Decision Directive/NSC 24, U.S. 
Counterintelligence Effectiveness, dated May 3, 1994.
    (b) Purpose. (1) This part prescribes procedures for:
    (i) Requesting access to NACIC records for purposes of historical 
research, or
    (ii) Requesting access to NACIC records as a former Presidential 
appointee.
    (2) Section 4.5 of Executive Order 12958 and this part do not create 
any right or benefit, substantive or procedural, enforceable at law by a 
party against the United States, its agencies, officers, or employees.



Sec.  1804.2  Definitions.

    For purposes of this part, the following terms have the meanings 
indicated:
    NACIC means the United States National Counterintelligence Center 
acting through the NACIC Information and Privacy Coordinator;
    Days means calendar days when NACIC is operating and specifically 
excludes Saturdays, Sundays, and legal public holidays. Three (3) days 
may be added to any requirement of this part if responding by U.S. 
domestic mail; ten (10) days may be added if responding by international 
mail;
    Control means ownership or the authority of NACIC pursuant to 
federal statute or privilege to regulate official or public access to 
records;
    Coordinator means the NACIC Information and Privacy Coordinator who 
serves as the NACIC manager of the historical access program established 
pursuant to Section 4.5 of this Order;
    Federal agency means any executive department, military department, 
or other establishment or entity included in the definition of agency in 
5 U.S.C. 552(f);
    Former Presidential appointee means any person who has previously 
occupied a policy-making position in the executive branch of the United 
States Government to which they were appointed by the current or former 
President and confirmed by the United States Senate;
    Historian or historical researcher means any individual with 
professional training in the academic field of history (or related 
fields such as journalism) engaged in a research project leading to 
publication (or any similar

[[Page 322]]

activity such as academic course development) reasonably intended to 
increase the understanding of the American public into the operations 
and activities of the United States government;
    Information means any knowledge that can be communicated or 
documentary material, regardless of its physical form that is owned by, 
produced by or for, or is under the control of the United States 
Government;
    Interested party means any official in the executive, military, 
congressional, or judicial branches of government, United States or 
foreign, or U.S. Government contractor who, in the sole discretion of 
NACIC, has a subject matter or physical interest in the documents or 
information at issue;
    Originator means the NACIC officer who originated the information at 
issue, or successor in office, or a NACIC officer who has been delegated 
declassification authority for the information at issue in accordance 
with the provisions of this Order;
    This Order means Executive Order 12958 of April 17, 1995 or 
successor Orders.



Sec.  1804.3  Contact for general information and requests.

    For general information on this part, to inquire about historical 
access to NACIC records, or to make a formal request for such access, 
please direct your communication in writing to the Information and 
Privacy Coordinator, Executive Secretariat, 3W01 NHB, National 
Counterintelligence Center, Washington, DC 20505. Inquiries will also be 
accepted by facsimile at (703) 874-5844. For general information only, 
the telephone number is (703) 874-4121. Collect calls cannot be 
accepted.



Sec.  1804.4  Suggestions and complaints.

    NACIC welcomes suggestions or complaints with regard to its 
administration of the historical access program established pursuant to 
Executive Order 12958. Letters of suggestion or complaint should 
identify the specific purpose and the issues for consideration. NACIC 
will respond to all substantive communications and take such actions as 
determined feasible and appropriate.



                Subpart B_Requests for Historical Access



Sec.  1804.11  Requirements as to who may apply.

    (a) Historical researchers:--(1) In general. Any historian engaged 
in a historical research project as defined above may submit a request 
in writing to the Coordinator to be given access to classified 
information for purposes of that research. Any such request shall 
indicate the nature, purpose, and scope of the research project.
    (2) Additional considerations. In light of the very limited 
resources for NACIC's various historical programs, it is the policy of 
NACIC to consider applications for historical research privileges only 
in those instances where the researcher's needs cannot be satisfied 
through requests for access to reasonably described records under the 
Freedom of Information Act or the mandatory declassification review 
provisions of Executive Order 12958 and where issues of internal 
resource availability and fairness to all members of the historical 
research community militate in favor of a particular grant.
    (b) Former Presidential appointees. Any former Presidential 
appointee as defined herein may also submit a request to be given access 
to any classified records which they originated, reviewed, signed, or 
received while serving in that capacity. Such appointees may also 
request approval for a research associate but there is no entitlement to 
such enlargement of access and the decision in this regard shall be in 
the sole discretion of NACIC. Requests from appointees shall be in 
writing to the Coordinator and shall identify the records of interest.



Sec.  1804.12  Designations of authority to hear requests.

    The Director, NACIC has designated the Coordinator, as the NACIC 
authority to decide requests for historical and former Presidential 
appointee access under Executive Order 12958 (or successor Orders) and 
this part.



Sec.  1804.13  Receipt, recording, and tasking.

    The Information and Privacy Coordinator shall within ten (10) days 
record

[[Page 323]]

each request for historical access received under this part, acknowledge 
receipt to the requester in writing and take the following action:
    (a) Compliance with general requirements. The Coordinator shall 
review each request under this part and determine whether it meets the 
general requirements as set forth in Sec.  1804.11; if it does not, the 
Coordinator shall so notify the requester and explain the legal basis 
for this decision.
    (b) Action on requests meeting general requirements. For requests 
which meet the requirements of Sec.  1804.11, the Coordinator shall 
thereafter task the originator(s) of the materials for which access is 
sought and other interested parties. Additional taskings, as required 
during the review process, shall be accomplished within ten (10) days of 
notification.



Sec.  1804.14  Determinations by tasked officials.

    (a) Required determinations. The tasked parties as specified below 
shall respond in writing to the Coordinator with recommended findings to 
the following issues:
    (1) That a serious professional or scholarly research project by the 
requester is contemplated;
    (2) That such access is clearly consistent with the interests of 
national security (by originator and interested party, if any);
    (3) That a non-disclosure agreement has been or will be executed by 
the requester (or research associate, if any) and other appropriate 
steps have been taken to assure that classified information will not be 
disclosed or otherwise compromised;
    (4) That a pre-publication agreement has been or will be executed by 
the requester (or research associate, if any) which provides for a 
review of notes and any resulting manuscript by the Deputy Director of 
NACIC;
    (5) That the information requested is reasonably accessible and can 
be located and compiled with a reasonable effort (by the Deputy Director 
of NACIC and the originator);
    (6) That it is reasonably expected that substantial and substantive 
government documents and/or information will be amenable to 
declassification and release and/or publication (by the Deputy Director 
of NACIC and the originator);
    (7) That sufficient resources are available for the administrative 
support of the researcher given current mission requirements (by the 
Deputy Director of NACIC and the originator); and,
    (8) That the request cannot be satisfied to the same extent through 
requests for access to reasonably described records under the Freedom of 
Information Act or the mandatory declassification review provisions of 
Executive Order 12958 (by the Coordinator, the Deputy Director of NACIC 
and the originator).
    (b) Time. These responses shall be provided expeditiously on a 
first-in, first-out basis taking into account the business requirements 
of the tasked offices and consistent with the information rights of 
members of the general public under the Freedom of Information Act and 
the Privacy Act. NACIC will utilize its best efforts to complete action 
on requests under this part within thirty (30) days of date of receipt.



Sec.  1804.15  Action by hearing authority.

    Action by Coordinator. The Coordinator shall provide a summation 
memorandum for consideration of the Director, NACIC, the complete record 
of the request consisting of the request and the findings of the tasked 
parties. The Director, NACIC shall decide requests on the basis of the 
eight factors enumerated at Sec.  1804.14(a). The Director, NACIC shall 
personally decide each case; no personal appearances shall be permitted 
without the express permission of the Director, NACIC.



Sec.  1804.16  Action by appeal authority.

    The record compiled (the request, the memoranda filed by the 
originator and interested parties, and the previous decision(s)) as well 
as any memorandum of law or policy the referent desires to be 
considered, shall be certified by the Coordinator and shall constitute 
the official record of the proceedings and must be included in any 
subsequent filings. In such cases, the factors to be determined as 
specified in Sec.  1804.14(a) will be considered by the Director,

[[Page 324]]

NACIC de novo and that decision shall be final.



Sec.  1804.17  Notification of decision.

    The Coordinator shall inform the requester of the decision of the 
Director, NACIC within ten (10) days of the decision and, if favorable, 
shall manage the access for such period as deemed required but in no 
event for more than two (2) years unless renewed by the Director, NACIC 
in accordance with the requirements of Sec.  1804.14(a).



Sec.  1804.18  Termination of access.

    The Coordinator shall cancel any authorization whenever the security 
clearance of a requester (or research associate, if any) has been 
canceled or whenever the Director, NACIC determines that continued 
access would not be in compliance with one or more of the requirements 
of Sec.  1804.14(a).



 PART 1805_PRODUCTION OF OFFICIAL RECORDS OR DISCLOSURE OF OFFICIAL 
 INFORMATION IN PROCEEDINGS BEFORE FEDERAL, STATE OR LOCAL GOVERNMENT
 ENTITIES OF COMPETENT JURISDICTION--Table of Contents



Sec.
1805.1 Scope and purpose.
1805.2 Definitions.
1805.3 General.
1805.4 Procedures for production.

    Authority: 5 U.S.C. 104; Presidential Decision Directive/NSC 24 
``U.S. Counterintelligence Effectiveness, dated May 3, 1994; 50 U.S.C. 
403g; United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951); E.O. 
12333; E.O. 12356; U.S. v. Snepp 444 U.S. 507 (1980).

    Source: 64 FR 49894, Sept. 14, 1999, unless otherwise noted.



Sec.  1805.1  Scope and purpose.

    This part sets forth the policy and procedures with respect to the 
production or disclosure of:
    (a) Material contained in the files of NACIC,
    (b) Information relating to or based upon material contained in the 
files of NACIC,
    (c) Information acquired by any person while such person is an 
employee of NACIC as part of the performance of that person's official 
duties or because of that person's association with NACIC.



Sec.  1805.2  Definitions.

    For the purpose of this part:
    NACIC means the National Counterintelligence Center and includes all 
staff elements of the NACIC.
    Demand means any subpoena, order or other legal summons (except 
garnishment orders) that is issued by a federal, state or local 
government entity of competent jurisdiction with the authority to 
require a response on a particular matter, or a request for appearance 
of an individual where a demand could issue.
    Employee means any officer, any staff, contract or other employee of 
NACIC, any person including independent contractors associated with or 
acting on behalf of NACIC; and any person formerly having such 
relationships with NACIC.
    Production or produce means the disclosure of:
    (1) Any material contained in the files of NACIC; or
    (2) Any information relating to material contained in the files of 
NACIC, including but not limited to summaries of such information or 
material, or opinions based on such information or material; or
    (3) Any information acquired by persons while such persons were 
employees of NACIC as a part of the performance of their official duties 
or because of their official status or association with NACIC; in 
response to a demand upon an employee of NACIC.
    NACIC Counsel is the NACIC employee designated to manage legal 
matters and regulatory compliance.



Sec.  1805.3  General.

    (a) No employee shall produce any materials or information in 
response to a demand without prior authorization as set forth in this 
part. This part also applies to former employees to the extent 
consistent with applicable non-disclosure agreements.
    (b) This part is intended only to provide procedures for responding 
to demands for production of documents or information, and is not 
intended to, does not, and may not be relied upon

[[Page 325]]

to, create any right or benefit, substantive or procedural, enforceable 
by any party against the United States.



Sec.  1805.4  Procedure for production.

    (a) Whenever a demand for production is made upon an employee, the 
employee shall immediately notify NACIC Counsel, who will follow the 
procedures set forth in this section.
    (b) NACIC Counsel and the Office Chiefs with responsibility for the 
information sought in the demand shall determine whether any information 
or materials may properly be produced in response to the demand, except 
that NACIC Counsel may assert any and all legal defenses and objections 
to the demand available to NACIC prior to the start of any search for 
information responsive to the demand. NACIC may, in its sole discretion, 
decline to begin any search for information responsive to the demand 
until a final and non-appealable disposition of any such defenses and 
objections raised by NACIC has been made by the entity or person that 
issued the demand.
    (c) NACIC officials shall consider the following factors, among 
others, in reaching a decision:
    (1) Whether production is appropriate in light of any relevant 
privilege;
    (2) Whether production is appropriate under the applicable rules of 
discovery or the procedures governing the case or matter in which the 
demand arose; and
    (3) Whether any of the following circumstances apply:
    (i) Disclosure would violate a statute, including but not limited to 
the Privacy Act of 1974, as amended, 5 U.S.C. 552a;
    (ii) Disclosure would reveal classified information;
    (iii) Disclosure would improperly reveal trade secrets or 
proprietary confidential information without the owner's consent; or
    (iv) Disclosure would interfere with the orderly conduct of NACIC's 
functions.
    (d) If oral or written testimony is sought by a demand in a case or 
matter in which the NACIC is not a party, a reasonably detailed 
description of the testimony sought, in the form of an affidavit or, if 
that is not feasible, a written statement, by the party seeking the 
testimony or by the party's attorney must be furnished to the NACIC 
Counsel.
    (e) The NACIC Counsel shall be responsible for notifying the 
appropriate employees and other persons of all decisions regarding 
responses to demands and providing advice and counsel as to the 
implementation of such decisions.
    (f) If response to a demand is required before a decision is made 
whether to provide the documents or information sought by the demand, 
NACIC Counsel, after consultation with the Department of Justice, shall 
appear before and furnish the court or other competent authority with a 
copy of this part and state that the demand has been or is being, as the 
case may be, referred for the prompt consideration of the appropriate 
NACIC officials, and shall respectfully request the court or other 
authority to stay the demand pending receipt of the required 
instructions.
    (g) If the court or any other authority declines to stay the demand 
pending receipt of instructions in response to a request made in 
accordance with Sec.  1805.4(g) or rules that the demand must be 
complied with regardless of instructions rendered in accordance with 
this part not to produce the material or disclose the information 
sought, the employee upon whom the demand has been made shall, if so 
directed by NACIC Counsel, respectfully decline to comply with the 
demand under the authority of United States ex. rel. Touhy v. Ragen, 340 
U.S. 462 (1951), and this part.
    (h) With respect to any function granted to NACIC officials in this 
part, such officials are authorized to delegate in writing their 
authority in any case or matter or category thereof to subordinate 
officials.
    (i) Any non-employee who receives a demand for the production or 
disclosure of NACIC information acquired because of that person's 
association or contacts with NACIC should notify NACIC Counsel, (703) 
874-4121, for guidance and assistance. In such cases, the provisions of 
this part shall be applicable.

[[Page 326]]



PART 1806_PROCEDURES GOVERNING ACCEPTANCE OF SERVICE OF PROCESS-
-Table of Contents



Sec.
1806.1 Scope and Purpose.
1806.2 Definitions.
1806.3 Procedures governing acceptance of service of process.
1806.4 Notification to NACIC Counsel.
1806.5 Authority of NACIC Counsel.

    Authority: 5 U.S.C. 104; Presidential Decision Directive/NSC 24 
``U.S. Counterintelligence Effectiveness'', dated May 3, 1994; 50 U.S.C. 
403g; E.O. 12333.

    Source: 64 FR 49895, Sept. 14, 1999, unless otherwise noted.



Sec.  1806.1  Scope and purpose.

    (a) This part sets forth the authority of NACIC personnel to accept 
service of process on behalf of the NACIC or any NACIC employee.
    (b) This part is intended to ensure the orderly execution of the 
NACIC's affairs and not to impede any legal proceeding.
    (c) NACIC regulations concerning employee responses to demands for 
production of official information before federal, state or local 
government entities are set out in part 1805 of this chapter.



Sec.  1806.2  Definitions.

    NACIC means the National Counterintelligence Center and include all 
staff elements of NACIC.
    Process means a summons complaint, subpoena, or other official paper 
(except garnishment orders) issued in conjunction with a proceeding or 
hearing being conducted by a federal, state, or local government entity 
of competent jurisdiction.
    Employee means any NACIC officer, any staff, contract, or other 
employee of NACIC, any person including independent contractors 
associated with or acting for or on behalf of NACIC, and any person 
formerly having such a relationship with NACIC.
    NACIC Counsel refers to the NACIC employee designated by NACIC to 
manage legal issues and regulatory compliance.



Sec.  1806.3  Procedures governing acceptance of service of process.

    (a) Service of Process Upon the NACIC or a NACIC Employee in an 
Official Capacity--(1) Personal Service. Unless otherwise expressly 
authorized by NACIC Counsel, or designee, personal service of process 
may be accepted only by NACIC Counsel, Director, NACIC, or Deputy 
Director, NACIC, located at Central Intelligence Agency Headquarters, 
Langley, Virginia.
    (2) Mail Service. Where service of process by registered or 
certified mail is authorized by law, unless expressly directed otherwise 
by the NACIC Counsel or designee, personal service of process may be 
accepted only by NACIC Counsel, Director, NACIC, or Deputy Director, 
NACIC. Process by mail should be addressed as follows: NACIC Counsel, 
National Counterintelligence Center, Washington, DC 20505.
    (b) Service of Process Upon a NACIC Employee Solely in An Individual 
Capacity--(1) General. NACIC will not provide the name or address of any 
current or former NACIC employee to individuals or entities seeking to 
serve process upon such employee solely in his or her individual 
capacity, even when the matter is related to NACIC activities.
    (2) Personal Service. Subject to the sole discretion of appropriate 
officials of the CIA, where NACIC is physically located, process servers 
generally will not be allowed to enter CIA Headquarters for the purpose 
of serving process upon any NACIC employee solely in his or her 
individual capacity. Subject to the sole discretion of the Director, 
NACIC, process servers will generally not be permitted to enter NACIC 
office space for the purpose of serving process upon a NACIC employee 
solely in his or her individual capacity. The NACIC Counsel, the 
Director, NACIC, and the Deputy Director, NACIC are not permitted to 
accept service of process on behalf of a NACIC employee in his or her 
individual capacity.
    (3) Mail Service. Unless otherwise expressly authorized by the NACIC 
Counsel, or designee, NACIC personnel are not authorized to accept or 
forward mailed service of process directed to any NACIC employee in his 
or her individual capacity. Any such process will

[[Page 327]]

be returned to the sender via appropriate postal channels.
    (c) Service of Process Upon a NACIC Employee in a Combined Official 
and Individual Capacity--Unless expressly directed otherwise by the 
NACIC Counsel, or designee, any process to be served upon a NACIC 
employee in his or her combined official and individual capacity, in 
person or by mail, can be accepted only by NACIC Counsel, Director, 
NACIC, or Deputy Director, NACIC, National Counterintelligence Center, 
Langley, Virginia.
    (d) Service of Process Upon a NACIC Counsel. The documents for which 
service is accepted in official capacity only shall be stamped ``Service 
Accepted in Official Capacity Only.'' Acceptance of Service of Process 
shall not constitute an admission or waiver with respect to 
jurisdiction, propriety of service, improper venue, or any other defense 
in law or equity available under the laws or rules applicable to the 
service of process.



Sec.  1806.4  Notification to NACIC Counsel.

    A NACIC employee who receives or has reason to expect to receive 
service of process in an individual, official, or combined individual 
and official capacity, in a matter that may involve or the furnishing of 
documents and that could reasonably be expected to involve NACIC 
interests, shall promptly notify the NACIC Counsel. Such notification 
should be given prior to providing the requestor, personal counsel or 
any other representative, any NACIC information and prior to the 
acceptance of service of process.



Sec.  1806.5  Authority of NACIC Counsel.

    Any questions concerning interpretation of this part shall be 
referred to the NACIC Counsel for resolution



PART 1807_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF DISABILITY 
IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE NATIONAL COUNTERINTELLIGENCE
CENTER--Table of Contents



Sec.
1807.101 Purpose.
1807.102 Application.
1807.103 Definitions.
1807.104-1807.110 [Reserved]
1807.111 Notice.
1807.112-1807.129 [Reserved]
1807.130 General prohibitions against discrimination.
1807.131-1807.139 [Reserved]
1807.140 Employment.
1807.141-1807.148 [Reserved]
1807.149 Program accessibility: discrimination prohibited.
1807.150 Program accessibility: existing facilities.
1807.151 Program accessibility: new construction and alterations.
1807.152-1807.159 [Reserved]
1807.160 Communications.
1807.161-1807.169 [Reserved]
1807.170 Compliance procedures.

    Authority: 5 U.S.C. 104, Presidential Decision Directive/NSC 24 U.S. 
Counterintelligence Effectiveness, dated May 3, 1994, 29 U.S.C. 794.

    Source: 64 FR 49896, Sept. 14, 1999, unless otherwise noted.



Sec.  1807.101  Purpose.

    The purpose of this part is to effectuate section 119 of the 
Rehabilitation, Comprehensive Services, and Developmental Disabilities 
Amendments of 1978, which amended section 504 of the Rehabilitation Act 
of 1973 to prohibit discrimination on the basis of disability in 
programs or activities conducted by Executive agencies or the United 
States Postal Service.



Sec.  1807.102  Application.

    This part applies to all programs or activities conducted by the 
NACIC.



Sec.  1807.103  Definitions.

    For purposes of this part, the following terms means--
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the NACIC. For example, auxiliary aids useful 
for persons with impaired vision include readers, materials in Braille, 
audio recordings, and other similar services and devices. Auxiliary aids

[[Page 328]]

useful for persons with impaired hearing include telephone handset 
amplifiers, telephones compatible with hearing aids, telecommunication 
devices for deaf persons (TDD's), interpreters, notetakers, written 
materials, and other similar services and devices. The CIA, where NACIC 
is physically located, may prohibit from any of its facilities any 
auxiliary aid, or category of auxiliary aid that the Center for CIA 
Security (CCS) determines creates a security risk or potential security 
risk. CCS reserves the right to examine any auxiliary aid brought into 
the NACIC facilities at CIA Headquarters.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the NACIC's alleged 
discriminatory action in sufficient detail to inform the NACIC of the 
nature and date of the alleged violation of section 504. It must be 
signed by the complainant or by someone authorized to do so on his or 
her behalf. Complaints filed on behalf of classes or third parties must 
describe or identify (by name, if possible) the alleged victims of 
discrimination.
    Director means the Director of NACIC or an official or employee of 
the NACIC acting for the Director under a delegation of authority.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances or other real or personal property.
    Individual with disabilities means 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. As used in this definition, the phrase--
    (1) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Cardiovascular; Neurological; musculoskeletal; special sense organs; 
respiratory, including speech organs; reproductive; digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term physical or mental impairment 
includes, but is not limited to, such diseases and conditions as 
orthopedic, visual, speech, and hearing impairments, cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, 
diabetes, mental retardation, emotional illness, drug addiction, and 
alcoholism.
    (2) Major life activities includes 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 means 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 means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the NACIC as constituting 
such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
the impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by the NACIC as having such an impairment.
    Qualified individual with disabilities means--
    (1) With respect to any NACIC program or activity under which a 
person is required to perform services or to achieve a level of 
accomplishment, an individual with a handicap who meets the essential 
eligibility requirements and who can achieve the purpose of the program 
or activity without modifications in the program or activity that the 
NACIC can demonstrate would result in a fundamental alteration in its 
nature;
    (2) With respect to any other NACIC program or activity, an 
individual with disabilities who meets the essential eligibility 
requirements for participation in, or receipt of benefits from, that 
program or activity; and

[[Page 329]]

    (3) Qualified individual with a disability as that term is defined 
for purposes of employment in 29 CFR 1614.203(a)(6), which is made 
applicable to this part by Sec.  1807.140.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617); 
the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-002, 92 Stat. 2955); and the 
Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810). 
As used in this part, section 504 applies only to programs or activities 
conducted by the NACIC and not to federally assisted programs.



Sec. Sec.  1807.104-1807.110  [Reserved]



Sec.  1807.111  Notice.

    The NACIC shall make available to employees, applicants, 
participants, beneficiaries, and other interested persons, such 
information regarding the provisions of this part and its applicability 
to the programs or activities conducted by the NACIC, and make that 
information available to them in such manner as the Director finds 
necessary to apprise those persons of the protections against 
discrimination assured them by section 504 and the regulations in this 
part.



Sec. Sec.  1807.112-1807.129  [Reserved]



Sec.  1807.130  General prohibitions against discrimination.

    (a) No qualified individual with disabilities shall, on the basis of 
disability, be excluded from participation in, be denied the benefits 
of, or otherwise be subjected to discrimination under, any program or 
activity conducted by the NACIC.
    (b)(1) The NACIC, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of disability:
    (i) Deny a qualified individual with disabilities the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Deny a qualified individual with disabilities an opportunity to 
obtain the same result, to gain the same benefit, to reach the same 
level of achievement as that provided to others;
    (iii) Provide a qualified individual with disabilities with an aid, 
benefit, or service that is not as effective in affording equal 
opportunity to obtain the same result, to gain the same benefit, or to 
reach the same level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
individuals with disabilities or to any class of individuals with 
disabilities than is provided to others unless that action is necessary 
to provide qualified individuals with disabilities with aid, benefits, 
or services that are as effective as those provided to others;
    (v) Deny a qualified individual with disabilities the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified individual with disabilities in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving the aid, benefit, or service.
    (2) The NACIC may not deny a qualified individual with disabilities 
the opportunity to participate in programs or activities that are not 
separate or different, despite the existence of permissibly separate or 
different programs or activities.
    (3) The NACIC may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration the purpose 
or effect of which would:
    (i) Subject qualified individuals with disabilities to 
discrimination on the basis of disability; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to individuals with disabilities.
    (4) The NACIC may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would:
    (i) Exclude individuals with disabilities from, deny them the 
benefits of, or otherwise subject them to discrimination under, any 
program or activity conducted by the NACIC; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives

[[Page 330]]

of a program or activity with respect to individuals with disabilities.
    (5) The NACIC, in the selection of procurement contractors, may not 
use criteria that subject qualified individuals with disabilities to 
discrimination on the basis of disability.
    (6) The NACIC may not administer a licensing or certification 
program in a manner that subjects qualified individuals with 
disabilities to discrimination on the basis of disability, nor may the 
NACIC establish requirements for the programs or activities of licensees 
or certified entities that subject qualified individuals with 
disabilities to discrimination on the basis of disability. However, the 
programs or activities of entities that are licensed or certified by the 
NACIC are not, themselves, covered by this part.
    (c) The exclusion of persons without disabilities from the benefits 
of a program limited by Federal statute or Executive Order to 
individuals with disabilities or the exclusion of a specific class of 
individuals with disabilities from a program limited by Federal statute 
or Executive Order to a different class of individuals with disabilities 
is not prohibited by this part.
    (d) The NACIC shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified individuals 
with disabilities.



Sec. Sec.  1807.131-1807.139  [Reserved]



Sec.  1807.140  Employment.

    No qualified individual with disabilities shall, solely on the basis 
of disability, be subjected to discrimination in employment under any 
program or activity conducted by the NACIC. The definitions, 
requirements, and procedures of section 501 of the Rehabilitation Act of 
1979 (29 U.S.C. 791), as established by the Equal Employment Opportunity 
Commission in 29 CFR part 1614, shall apply to employment in federally 
conducted programs or activities.



Sec. Sec.  1807.141-1807.148  [Reserved]



Sec.  1807.149  Program accessibility: discrimination prohibited.

    Except as otherwise provided in Sec.  1807.150, no qualified 
individual with disabilities shall, because the NACIC's facilities are 
inaccessible to or unusable by individuals with disabilities, be denied 
the benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the NACIC.



Sec.  1807.150  Program accessibility: existing facilities.

    (a) General. The NACIC shall operate each program or activity so 
that the program or activity, viewed in its entirety, is readily 
accessible to and usable by individuals with disabilities. This program 
does not:
    (1) Necessarily require the NACIC to make each of its existing 
facilities accessible to and usable by individuals with disabilities;
    (2)(i) Require the NACIC to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens.
    (ii) The NACIC has the burden of proving that compliance with Sec.  
1807.150(a) would result in that alteration or those burdens.
    (iii) The decision that compliance would result in that alteration 
of those burdens must be made by the Director after considering all of 
the NACIC's resources available for use in the funding and operation of 
the conducted program or activity, and must be accompanied by a written 
statement of the reasons for reaching that conclusion.
    (iv) If an action would result in that alteration or those burdens, 
the NACIC shall take any other action that would not result in the 
alteration of burdens but would nevertheless ensure that individuals 
with disabilities receive the benefits and services of the program or 
activity.
    (b) Methods. (1) The NACIC may comply with the requirements of this 
section through such means as redesign of equipment, delivery of 
services at alternate accessible sites, alteration of existing 
facilities, or any other methods that result in making its programs or 
activities readily accessible to and usable by individuals with 
disabilities.

[[Page 331]]

    (2) The NACIC is not required to make structural changes in existing 
facilities if other methods are effective in achieving compliance with 
this section.
    (3) In choosing among available methods for meeting the requirements 
of this section, the NACIC shall give priority to those methods that 
offer programs and activities to qualified individuals with disabilities 
in the most integrated setting appropriate.



Sec.  1807.151  Program accessibility: new construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of, the NACIC shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
individuals with disabilities in compliance with the definitions, 
requirements, and standards of the Americans with Disabilities Act 
Accessibility Guidelines, 36 CFR part 1191.



Sec. Sec.  1807.152-1807.159  [Reserved]



Sec.  1807.160  Communications.

    (a) The NACIC shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public as follows:
    (1)(i) The NACIC shall furnish appropriate auxiliary aids if 
necessary to afford an individual with disabilities an equal opportunity 
to participate in, and enjoy the benefits of, a program or activity 
conducted by the NACIC.
    (ii) In determining what type of auxiliary aid is necessary, the 
NACIC shall give primary consideration to the requests of the individual 
with disabilities.
    (2) Where the NACIC communicates with applicants and beneficiaries 
by telephone, telecommunication devices for deaf persons (TDD's) or 
equally effective telecommunication systems shall be used to communicate 
with persons with impaired hearing.
    (b) The NACIC shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) This section does not require the NACIC to take any action that 
it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and administrative 
burdens. In those circumstances where NACIC personnel believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the NACIC 
has the burden of proving that compliance with Sec.  1807.160 would 
result in such alteration or burdens. The decision that compliance would 
result in such alteration or burdens must be made by the NACIC head or 
his or her designee after considering all NACIC resources available for 
use in the funding and operation of the conducted program or activity 
and must be accompanied by a written statement of the reasons for 
reaching that conclusion. If an action required to comply with this 
section would result in such an alteration or such burdens, the NACIC 
shall take any other action that would not result in such an alteration 
or such burdens but would nevertheless ensure that, to the maximum 
extent possible, individuals with disabilities receive the benefits and 
services of the program or activity.



Sec. Sec.  1807.161-1807.169  [Reserved]



Sec.  1807.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
disability in programs and activities conducted by the NACIC.
    (b) The NACIC shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1614 pursuant to section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791).
    (c) The Director, Office of Equal Employment Opportunity, is 
responsible for coordinating implementation of this section. Complaints 
may be sent to NACIC, Director, Washington, DC 20505.
    (d) The NACIC shall accept and investigate all complete complaints 
for which it has jurisdiction. All complete

[[Page 332]]

complaints must be filed within 180 days of the alleged act of 
discrimination. The NACIC may extend this time period for good cause.
    (e) If the NACIC receives a complaint over which it does not have 
jurisdiction, it shall promptly notify the complainant and shall make 
reasonable efforts to refer the complaint to the appropriate government 
entity.
    (f) The NACIC shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Americans with Disabilities 
Act Accessibility Guidelines is not readily accessible to and usable by 
individuals with disabilities.
    (g) Within 180 days of the receipt of a complete complaint for which 
it has jurisdiction, The NACIC shall notify the complainant of the 
results of the investigation in a letter containing:
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within 90 days of receipt from 
the NACIC of the letter required by paragraph (g) of this section. The 
NACIC may extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the Director.
    (j) The NACIC shall notify the complainant of the results of the 
appeal within 60 days of the receipt of the request. If the NACIC 
determines that it needs additional information from the complainant, it 
shall have 60 days from the date it receives the additional information 
to make its determination on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section 
may be extended with the permission of the Assistant Attorney General.
    (l) The Director may delegate the authority for conducting complaint 
investigations to other Federal agencies, except that the authority for 
making the final determination may not be delegated.

                       PARTS 1808	1899 [RESERVED]

[[Page 333]]



                CHAPTER XIX--CENTRAL INTELLIGENCE AGENCY




  --------------------------------------------------------------------
Part                                                                Page
1900            Public access to CIA records under the 
                    Freedom of Information Act (FOIA).......         335
1901            Public rights under the Privacy Act of 1974.         346
1903            Conduct on Agency installations.............         356
1904            Procedures governing acceptance of service 
                    of process..............................         362
1905            Production of official records or disclosure 
                    of official information in proceedings 
                    before Federal, State or local 
                    governmental entities of competent 
                    jurisdiction............................         364
1906            Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the Central 
                    Intelligence Agency.....................         365
1907            Challenges to classification of documents by 
                    authorized holders pursuant to Sec. 1.8 
                    of Executive Order 13526................         371
1908            Public requests for mandatory 
                    declassification review of classified 
                    information pursuant to Sec. 3.5 of 
                    Executive Order 13526...................         375
1909             Access to classified CIA information by 
                    historical researchers and certain 
                    former government personnel pursuant to 
                    Sec. 4.4 of Executive Order 13526.......         380
1910            Debarment and suspension procedures.........         384
1911            Special procedures for discretionary access 
                    to classified historical Central 
                    Intelligence Agency records requested by 
                    other Federal agencies..................         385
1912-1999

 [Reserved]

[[Page 335]]



PART 1900_PUBLIC ACCESS TO CIA RECORDS UNDER THE FREEDOM OF INFORMATION
ACT (FOIA)--Table of Contents



                                 General

Sec.
1900.01 Authority and purpose.
1900.02 Definitions.
1900.03 Contact for general information and requests.
1900.04 Suggestions and complaints.

                         Filing of FOIA Requests

1900.11 Preliminary information.
1900.12 Requirements as to form and content.
1900.13 Fees for record services.
1900.14 Fee estimates (pre-request option).

                       CIA Action on FOIA Requests

1900.21 Processing of requests for records.
1900.22 Action and determination(s) by originator(s) or any interested 
          party.
1900.23 Payment of fees, notification of decision, and right of appeal.

                    Additional Administrative Matters

1900.31 Procedures for business information.
1900.32 Procedures for information concerning other persons.
1900.33 Allocation of resources; agreed extensions of time.
1900.34 Requests for expedited processing.

                CIA Action on FOIA Administrative Appeals

1900.41 Establishment of appeals structure.
1900.42 Right of appeal and appeal procedures.
1900.43 Determination(s) by Deputy Director(s).
1900.44 Action by appeals authority.
1900.45 Notification of decision and right of judicial review.

    Authority: National Security Act of 1947, as amended; Central 
Intelligence Agency Act of 1949, as amended; Freedom of Information Act, 
as amended; CIA Information Act of 1984; and Executive Order 12958 , 60 
FR 19825, 3 CFR 1996 Comp., p. 333-356 (or successor Orders).

    Source: 62 FR 32481, June 16, 1997, unless otherwise noted.

                                 General



Sec.  1900.01  Authority and purpose.

    This part is issued under the authority of and in order to implement 
the Freedom of Information Act (FOIA), as amended (5 U.S.C. 552); the 
CIA Information Act of 1984 (50 U.S.C. 431); sec. 102 of the National 
Security Act of 1947, as amended (50 U.S.C. 403); and sec. 6 of the 
Central Intelligence Agency Act of 1949, as amended (50 U.S.C. 403g). It 
prescribes procedures for:
    (a) Requesting information on available CIA records, or the CIA 
administration of the FOIA, or estimates of fees that may become due as 
a result of a request;
    (b) Requesting records pursuant to the FOIA; and
    (c) Filing an administrative appeal of an initial adverse decision 
under the FOIA.



Sec.  1900.02  Definitions.

    For purposes of this part, the following terms have the meanings 
indicated:
    (a) Agency or CIA means the United States Central Intelligence 
Agency acting through the CIA Information and Privacy Coordinator;
    (b) Days means calendar days when the Agency is operating and 
specifically excludes Saturdays, Sundays, and legal public holidays. 
Three (3) days may be added to any time limit imposed on a requester by 
this part if responding by U.S. domestic mail; ten (10) days may be 
added if responding by international mail;
    (c) Control means ownership or the authority of the CIA pursuant to 
federal statute or privilege to regulate official or public access to 
records;
    (d) Coordinator means the CIA Information and Privacy Coordinator 
who serves as the Agency manager of the information review and release 
program instituted under the Freedom of Information Act;
    (e) Direct costs means those expenditures which an agency actually 
incurs in the processing of a FOIA request; it does not include overhead 
factors such as space; it does include:
    (1) Pages means paper copies of standard office size or the dollar 
value equivalent in other media;
    (2) Reproduction means generation of a copy of a requested record in 
a form appropriate for release;
    (3) Review means all time expended in examining a record to 
determine whether any portion must be withheld pursuant to law and in 
effecting any

[[Page 336]]

required deletions but excludes personnel hours expended in resolving 
general legal or policy issues; it also means personnel hours of 
professional time;
    (4) Search means all time expended in looking for and retrieving 
material that may be responsive to a request utilizing available paper 
and electronic indices and finding aids; it also means personnel hours 
of professional time or the dollar value equivalent in computer 
searches;
    (f) Expression of interest means a written communication submitted 
by a member of the public requesting information on or concerning the 
FOIA program and/or the availability of documents from the CIA;
    (g) Federal agency means any executive department, military 
department, or other establishment or entity included in the definition 
of agency in 5 U.S.C. 552(f);
    (h) Fees means those direct costs which may be assessed a requester 
considering the categories established by the FOIA; requesters should 
submit information to assist the Agency in determining the proper fee 
category and the Agency may draw reasonable inferences from the identity 
and activities of the requester in making such determinations; the fee 
categories include:
    (1) Commercial means a request in which the disclosure sought is 
primarily in the commercial interest of the requester and which furthers 
such commercial, trade, income or profit interests;
    (2) Non-commercial educational or scientific institution means a 
request from an accredited United States educational institution at any 
academic level or institution engaged in research concerning the social, 
biological, or physical sciences or an instructor or researcher or 
member of such institutions; it also means that the information will be 
used in a specific scholarly or analytical work, will contribute to the 
advancement of public knowledge, and will be disseminated to the general 
public;
    (3) Representative of the news media refers to any person actively 
gathering news for an entity that is organized and operated to publish 
or broadcast news to the public. The term ``news'' means information 
that is about current events or that would be of current interest to the 
public. Examples of news media entities include television or radio 
stations broadcasting to the public at large, and publishers of 
periodicals (but only in those instances when they can qualify as 
disseminators of ``news'') who make their products available for 
purchase or subscription by the general public. These examples are not 
intended to be all-inclusive. Moreover, as traditional methods of news 
delivery evolve (e.g., electronic dissemination of newspapers through 
telecommunications services), such alternative media would be included 
in this category. In the case of ``freelance'' journalists, they may be 
regarded as working for a news organization if they can demonstrate a 
solid basis for expecting publication through that organization, even 
though not actually employed by it. A publication contract would be the 
clearest proof, but agencies may also look to the past publication 
record of a requestor in making this determination:
    (4) All other means a request from an individual not within 
paragraph (h)(1), (2), or (3) of this section;
    (i) Freedom of Information Act or ``FOIA'' means the statutes as 
codified at 5 U.S.C. 552;
    (j) Interested party means any official in the executive, military, 
congressional, or judicial branches of government, United States or 
foreign, or U.S. Government contractor who, in the sole discretion of 
the CIA, has a subject matter or physical interest in the documents or 
information at issue;
    (k) Originator means the U.S. Government official who originated the 
document at issue or successor in office or such official who has been 
delegated release or declassification authority pursuant to law;
    (l) Potential requester means a person, organization, or other 
entity who submits an expression of interest;
    (m) Reasonably described records means a description of a document 
(record) by unique identification number or descriptive terms which 
permit an Agency employee to locate documents with reasonable effort 
given existing indices and finding aids;

[[Page 337]]

    (n) Records or agency records means all documents, irrespective of 
physical or electronic form, made or received by the CIA in pursuance of 
federal law or in connection with the transaction of public business and 
appropriate for preservation by the CIA as evidence of the organization, 
functions, policies, decisions, procedures, operations, or other 
activities of the CIA or because of the informational value of the data 
contained therein; it does not include:
    (1) Books, newspapers, magazines, journals, magnetic or printed 
transcripts of electronic broadcasts, or similar public sector materials 
acquired generally and/or maintained for library or reference purposes; 
to the extent that such materials are incorporated into any form of 
analysis or otherwise distributed or published by the Agency, they are 
fully subject to the disclosure provisions of the FOIA;
    (2) Index, filing, or museum documents made or acquired and 
preserved solely for reference, indexing, filing, or exhibition 
purposes; and
    (3) Routing and transmittal sheets and notes and filing or 
destruction notes which do not also include information, comment, or 
statements of substance;
    (o) Responsive records means those documents (i.e., records) which 
the Agency has determined to be within the scope of a FOIA request.

[62 FR 32481, June 16, 1997, as amended at 72 FR 39316, July 18, 2007]



Sec.  1900.03  Contact for general information and requests.

    For general information on this part, to inquire about the FOIA 
program at CIA, or to file a FOIA request (or expression of interest), 
please direct your communication in writing to the Information and 
Privacy Coordinator, Central Intelligence Agency, Washington, DC 20505. 
Such inquiries will also be accepted by facsimile at (703) 613-3007. For 
general information or status information on pending cases only, the 
telephone number is (703) 613-1287. Collect calls cannot be accepted.



Sec.  1900.04  Suggestions and complaints.

    The Agency welcomes suggestions or complaints with regard to its 
administration of the Freedom of Information Act. Many requesters will 
receive pre-paid, customer satisfaction survey cards. Letters of 
suggestion or complaint should identify the specific purpose and the 
issues for consideration. The Agency will respond to all substantive 
communications and take such actions as determined feasible and 
appropriate.

                         Filing of FOIA Requests



Sec.  1900.11  Preliminary Information.

    Members of the public shall address all communications to the CIA 
Coordinator as specified at 32 CFR 1900.03 and clearly delineate the 
communication as a request under the Freedom of Information Act and this 
regulation. CIA employees receiving a communication in the nature of a 
FOIA request shall expeditiously forward same to the Coordinator. 
Requests and appeals on requests, referrals, or coordinations received 
from members of the public who owe outstanding fees for information 
services at this or other federal agencies will not be accepted and 
action on all pending requests shall be terminated in such 
circumstances.



Sec.  1900.12  Requirements as to form and content.

    (a) Required information. No particular form is required. A request 
need only reasonably describe the records of interest. This means that 
documents must be described sufficiently to enable a professional 
employee familiar with the subject to locate the documents with a 
reasonable effort. Commonly this equates to a requirement that the 
documents must be locatable through the indexing of our various systems. 
Extremely broad or vague requests or requests requiring research do not 
satisfy this requirement.
    (b) Additional information for fee determination. In addition, a 
requester should provide sufficient personal identifying information to 
allow us to determine the appropriate fee category. A requester should 
also provide an agreement to pay all applicable fees or fees not to 
exceed a certain amount or request a fee waiver.
    (c) Otherwise. Communications which do not meet these requirements 
will be considered an expression of interest and the Agency will work 
with, and

[[Page 338]]

offer suggestions to, the potential requester in order to define a 
request properly.



Sec.  1900.13  Fees for record services.

    (a) In general. Search, review, and reproduction fees will be 
charged in accordance with the provisions below relating to schedule, 
limitations, and category of requester. Applicable fees will be due even 
if our search locates no responsive records or some or all of the 
responsive records must be denied under one or more of the exemptions of 
the Freedom of Information Act.
    (b) Fee waiver requests. Records will be furnished without charge or 
at a reduced rate whenever the Agency determines:
    (1) That, as a matter of administrative discretion, the interest of 
the United States Government would be served, or
    (2) That it is in the public interest because it is likely to 
contribute significantly to the public understanding of the operations 
or activities of the United States Government and is not primarily in 
the commercial interest of the requester; the Agency shall consider the 
following factors when making this determination:
    (i) Whether the subject of the request concerns the operations or 
activities of the United States Government; and, if so,
    (ii) Whether the disclosure of the requested documents is likely to 
contribute to an understanding of United States Government operations or 
activities; and, if so,
    (iii) Whether the disclosure of the requested documents will 
contribute to public understanding of United States Government 
operations or activities; and, if so,
    (iv) Whether the disclosure of the requested documents is likely to 
contribute significantly to public understanding of United States 
Government operations and activities; and
    (v) Whether the requester has a commercial interest that would be 
furthered by the requested disclosure; and, if so,
    (vi) Whether the disclosure is primarily in the commercial interest 
of the requester.
    (c) Fee waiver appeals. Denials of requests for fee waivers or 
reductions may be appealed to the Chair of the Agency Release Panel via 
the Coordinator. A requester is encouraged to provide any explanation or 
argument as to how his or her request satisfies the statutory 
requirement set forth above.
    (d) Time for fee waiver requests and appeals. It is suggested that 
such requests and appeals be made and resolved prior to the initiation 
of processing and the incurring of costs. However, fee waiver requests 
will be accepted at any time prior to the release of documents or the 
completion of a case, and fee waiver appeals within forty-five (45) days 
of our initial decision subject to the following condition: If 
processing has been initiated, then the requester must agree to be 
responsible for costs in the event of an adverse administrative or 
judicial decision.
    (e) Agreement to pay fees. In order to protect requesters from large 
and/or unanticipated charges, the Agency will request specific 
commitment when it estimates that fees will exceed $100.00. The Agency 
will hold in abeyance for forty-five (45) days requests requiring such 
agreement and will thereafter deem the request closed. This action, of 
course, would not prevent an individual from refiling his or her FOIA 
request with a fee commitment at a subsequent date.
    (f) Deposits. The Agency may require an advance deposit of up to 100 
percent of the estimated fees when fees may exceed $250.00 and the 
requester has no history of payment, or when, for fees of any amount, 
there is evidence that the requester may not pay the fees which would be 
accrued by processing the request. The Agency will hold in abeyance for 
forty-five (45) days those requests where deposits have been requested.
    (g) Schedule of fees--(1) In general. The schedule of fees for 
services performed in responding to requests for records is established 
as follows:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
                       Personnel Search and Review
------------------------------------------------------------------------
Clerical/Technical...................  Quarter hour............    $5.00
Professional/Supervisory.............  Quarter hour............    10.00
Manager/Senior Professional..........  Quarter hour............    18.00
------------------------------------------------------------------------

[[Page 339]]

 
                     Computer Search and Production
------------------------------------------------------------------------
Search (on-line).....................  Flat rate...............    10.00
Search (off-line)....................  Flat rate...............    30.00
Other activity.......................  Per minute..............    10.00
Tapes (mainframe cassette)...........  Each....................     9.00
Tapes (mainframe cartridge)..........  Each....................     9.00
Tapes (mainframe reel)...............  Each....................    20.00
Tapes (PC 9mm).......................  Each....................    25.00
Diskette (3.5)............  Each....................     4.00
CD (bulk recorded)...................  Each....................    10.00
CD (recordable)......................  Each....................    20.00
Telecommunications...................  Per minute..............      .50
Paper (mainframe printer)............  Per page................      .10
Paper (PC b&w laser printer).........  Per page................      .10
Paper (PC color printer).............  Per page................     1.00
------------------------------------------------------------------------
                            Paper Production
------------------------------------------------------------------------
Photocopy (standard or legal)........  Per page................      .10
Microfiche...........................  Per frame...............      .20
Pre-printed (if available)...........  Per 100 pages...........     5.00
Published (if available).............  Per item................     NTIS
------------------------------------------------------------------------

    (2) Application of schedule. Personnel search time includes time 
expended in either manual paper records searches, indices searches, 
review of computer search results for relevance, personal computer 
system searches, and various reproduction services. In any event where 
the actual cost to the Agency of a particular item is less than the 
above schedule (e.g., a large production run of a document resulted in a 
cost less than $5.00 per hundred pages), then the actual lesser cost 
will be charged. Items published and available at the National Technical 
Information Service (NTIS) are also available from CIA pursuant to this 
part at the NTIS price as authorized by statute.
    (3) Other services. For all other types of output, production, or 
reproduction (e.g., photographs, maps, or published reports), actual 
cost or amounts authorized by statute. Determinations of actual cost 
shall include the commercial cost of the media, the personnel time 
expended in making the item to be released, and an allocated cost of the 
equipment used in making the item, or, if the production is effected by 
a commercial service, then that charge shall be deemed the actual cost 
for purposes of this part.
    (h) Limitations on collection of fees--(1) In general. No fees will 
be charged if the cost of collecting the fee is equal to or greater than 
the fee itself. That cost includes the administrative costs to the 
Agency of billing, receiving, recording, and processing the fee for 
deposit to the Treasury Department and, as of the date of these 
regulations, is deemed to be $10.00.
    (2) Requests for personal information. No fees will be charged for 
requesters seeking records about themselves under the FOIA; such 
requests are processed in accordance with both the FOIA and the Privacy 
Act in order to ensure the maximum disclosure without charge.
    (i) Fee categories. There are four categories of FOIA requesters for 
fee purposes: Commercial use requesters, educational and non-commercial 
scientific institution requesters, representatives of the news media 
requesters, and all other requesters. The categories are defined in 
Sec.  1900.02, and applicable fees, which are the same in two of the 
categories, will be assessed as follows:
    (1) Commercial use requesters: Charges which recover the full direct 
costs of searching for, reviewing, and duplicating responsive records 
(if any);
    (2) Educational and non-commercial scientific institution requesters 
as well as ``representatives of the news media'' requesters: Only 
charges for reproduction beyond the first 100 pages;
    (3) All other requesters: Charges which recover the full direct cost 
of searching for and reproducing responsive records (if any) beyond the 
first 100 pages of reproduction and the first two hours of search time 
which will be furnished without charge.
    (j) Associated requests. A requester or associated requesters may 
not file a series of multiple requests, which are merely discrete 
subdivisions of the information actually sought for the purpose of 
avoiding or reducing applicable fees. In such instances, the Agency may 
aggregate the requests and charge the applicable fees.



Sec.  1900.14  Fee estimates (pre-request option).

    In order to avoid unanticipated or potentially large fees, a 
requester may submit a request for a fee estimate. The Agency will 
endeavor within ten (10) days to provide an accurate estimate, and, if a 
request is thereafter submitted, the Agency will not accrue or charge 
fees in excess of our estimate without the specific permission of the 
requester. Effective October 2, 1997, the ten (10) day provision is 
modified to

[[Page 340]]

twenty (20) days pursuant to the Electronic Freedom of Information Act 
Amendments of 1996.

                       CIA Action on FOIA Requests



Sec.  1900.21  Processing of requests for records.

    (a) In general. Requests meeting the requirements of Sec. Sec.  
1900.11 through 1900.13 shall be accepted as formal requests and 
processed under the Freedom of Information Act, 5 U.S.C. 552, and these 
regulations. Upon receipt, the Agency shall within ten (10) days record 
each request, acknowledge receipt to the requester in writing, and 
thereafter effect the necessary taskings to the CIA components 
reasonably believed to hold responsive records. Effective October 2, 
1997, the ten (10) day provision is modified to twenty (20) days 
pursuant to the Electronic Freedom of Information Act Amendments of 
1996.
    (b) Database of ``officially released information.'' As an 
alternative to extensive tasking and as an accommodation to many 
requesters, the Agency maintains a database of ``officially released 
information'' which contains copies of documents released by this 
Agency. Searches of this database, containing currently in excess of 
500,000 pages, can be accomplished expeditiously. Moreover, requests 
that are specific and well-focused will often incur minimal, if any, 
costs. Requesters interested in this means of access should so indicate 
in their correspondence. Effective November 1, 1997 and consistent with 
the mandate of the Electronic Freedom of Information Act Amendments of 
1996, on-the public. Detailed information regarding such access will 
line electronic access to these records will be available to be 
available at that time from the point of contact specified in Sec.  
1900.03.
    (c) Effect of certain exemptions. In processing a request, the 
Agency shall decline to confirm or deny the existence or nonexistence of 
any responsive records whenever the fact of their existence or 
nonexistence is itself classified under Executive Order 12958 or 
revealing of intelligence sources and methods protected pursuant to 
section 103(c)(5) of the National Security Act of 1947. In such 
circumstances, the Agency, in the form of a final written response, 
shall so inform the requester and advise of his or her right to an 
administrative appeal.
    (d) Time for response. The Agency will utilize every effort to 
determine within the statutory guideline of ten (10) days after receipt 
of an initial request whether to comply with such a request. However, 
the current volume of requests require that the Agency seek additional 
time from a requester pursuant to 32 CFR 1900.33. In such event, the 
Agency will inform the requester in writing and further advise of his or 
her right to file an administrative appeal of any adverse determination. 
Effective October 2, 1997, the ten (10) day provision is modified to 
twenty (20) days pursuant to the Electronic Freedom of Information Act 
Amendments of 1996.



Sec.  1900.22  Action and determination(s) by originator(s) or any 
interested party.

    (a) Initial action for access. CIA components tasked pursuant to a 
FOIA request shall search all relevant record systems within their 
cognizance which have not been excepted from search by the provisions of 
the CIA Information Act of 1984. They shall:
    (1) Determine whether a record exists;
    (2) Determine whether and to what extent any FOIA exemptions apply;
    (3) Approve the disclosure of all non-exempt records or portions of 
records for which they are the originator; and
    (4) Forward to the Coordinator all records approved for release or 
necessary for coordination with or referral to another originator or 
interested party. In making these decisions, the CIA component officers 
shall be guided by the applicable law as well as the procedures 
specified at 32 CFR 1900.31 and 32 CFR 1900.32 regarding confidential 
commercial information and personal information (about persons other 
than the requester).
    (b) Referrals and coordinations. As applicable and within ten (10) 
days of receipt by the Coordinator, any CIA records containing 
information originated by other CIA components shall be forwarded to 
those entities for action in accordance with paragraph (a)

[[Page 341]]

of this section and return. Records originated by other federal agencies 
or CIA records containing other federal agency information shall be 
forwarded to such agencies within ten (10) days of our completion of 
initial action in the case for action under their regulations and direct 
response to the requester (for other agency records) or return to the 
CIA (for CIA records). Effective October 2, 1997, the ten (10) day 
provision is modified to twenty (20) days pursuant to the Electronic 
Freedom of Information Act Amendments of 1996.



Sec.  1900.23  Payment of fees, notification of decision, and right 
of appeal.

    (a) Fees in general. Fees collected under this part do not accrue to 
the Central Intelligence Agency and shall be deposited immediately to 
the general account of the United States Treasury.
    (b) Notification of decision. Upon completion of all required review 
and the receipt of accrued fees (or promise to pay such fees), the 
Agency will promptly inform the requester in writing of those records or 
portions of records which may be released and which must be denied. With 
respect to the former, the Agency will provide copies; with respect to 
the latter, the Agency shall explain the reasons for the denial, 
identify the person(s) responsible for such decisions by name and title, 
and give notice of a right of administrative appeal.
    (c) Availability of reading room. As an alternative to receiving 
records by mail, a requester may arrange to inspect the records deemed 
releasable at a CIA ``reading room'' in the metropolitan Washington, DC 
area. Access will be granted after applicable and accrued fees have been 
paid. Requests to review or browse documents in our database of 
``officially released records'' will also be honored in this manner to 
the extent that paper copies or electronic copies in unclassified 
computer systems exist. All such requests shall be in writing and 
addressed pursuant to 32 CFR 1900.03. The records will be available at 
such times as mutually agreed but not less than three (3) days from our 
receipt of a request. The requester will be responsible for reproduction 
charges for any copies of records desired.

                    Additional Administrative Matters



Sec.  1900.31  Procedures for business information.

    (a) In general. Business information obtained by the Central 
Intelligence Agency by a submitter shall not be disclosed pursuant to a 
Freedom of Information Act request except in accordance with this 
section. For purposes of this section, the following definitions apply:
    (1) Business information means commercial or financial information 
in which a legal entity has a recognized property interest;
    (2) Confidential commercial information means such business 
information provided to the United States Government by a submitter 
which is reasonably believed to contain information exempt from release 
under exemption (b)(4) of the Freedom of Information Act, 5 U.S.C. 552, 
because disclosure could reasonably be expected to cause substantial 
competitive harm;
    (3) Submitter means any person or entity who provides confidential 
commercial information to the United States Government; it includes, but 
is not limited to, corporations, businesses (however organized), state 
governments, and foreign governments; and
    (b) Designation of confidential commercial information. A submitter 
of business information will use good-faith efforts to designate, by 
appropriate markings, either at the time of submission or at a 
reasonable time thereafter, any portions of its submission that it 
considers to be confidential commercial information and hence protected 
from required disclosure pursuant to exemption (b)(4). Such designations 
shall expire ten (10) years after the date of the submission unless the 
submitter requests, and provides justification for, a longer designation 
period.
    (c) Process in event of FOIA request--(1) Notice to submitters. The 
Agency shall provide a submitter with prompt written notice of receipt 
of a Freedom of Information Act request encompassing business 
information whenever:

[[Page 342]]

    (i) The submitter has in good faith designated the information as 
confidential commercial information, or
    (ii) The Agency believes that disclosure of the information could 
reasonably be expected to cause substantial competitive harm, and
    (iii) The information was submitted within the last ten (10) years 
unless the submitter requested and provided acceptable justification for 
a specific notice period of greater duration.
    (2) Form of notice. This notice shall either describe the exact 
nature of the confidential commercial information at issue or provide 
copies of the responsive records containing such information.
    (3) Response by submitter. (i) Within seven (7) days of the above 
notice, all claims of confidentiality by a submitter must be supported 
by a detailed statement of any objection to disclosure. Such statement 
shall:
    (A) Specify that the information has not been disclosed to the 
public;
    (B) Explain why the information is contended to be a trade secret or 
confidential commercial information;
    (C) Explain how the information is capable of competitive damage if 
disclosed;
    (D) State that the submitter will provide the Agency and the 
Department of Justice with such litigation defense as requested; and
    (E) Be certified by an officer authorized to legally bind the 
corporation or similar entity.
    (ii) It should be noted that information provided by a submitter 
pursuant to this provision may itself be subject to disclosure under the 
FOIA.
    (4) Decision and notice of intent to disclose. (i) The Agency shall 
consider carefully a submitter's objections and specific grounds for 
nondisclosure prior to its final determination. If the Agency decides to 
disclose a document over the objection of a submitter, the Agency shall 
provide the submitter a written notice which shall include:
    (A) A statement of the reasons for which the submitter's disclosure 
objections were not sustained;
    (B) A description of the information to be disclosed; and
    (C) A specified disclosure date which is seven (7) days after the 
date of the instant notice.
    (ii) When notice is given to a submitter under this section, the 
Agency shall also notify the requester and, if the Agency notifies a 
submitter that it intends to disclose information, then the requester 
shall be notified also and given the proposed date for disclosure.
    (5) Notice of FOIA lawsuit. If a requester initiates a civil action 
seeking to compel disclosure of information asserted to be within the 
scope of this section, the Agency shall promptly notify the submitter. 
The submitter, as specified above, shall provide such litigation 
assistance as required by the Agency and the Department of Justice.
    (6) Exceptions to notice requirement. The notice requirements of 
this section shall not apply if the Agency determines that:
    (i) The information should not be disclosed in light of other FOIA 
exemptions;
    (ii) The information has been published lawfully or has been 
officially made available to the public;
    (iii) The disclosure of the information is otherwise required by law 
or federal regulation; or
    (iv) The designation made by the submitter under this section 
appears frivolous, except that, in such a case, the Agency will, within 
a reasonable time prior to the specified disclosure date, give the 
submitter written notice of any final decision to disclose the 
information.



Sec.  1900.32  Procedures for information concerning other persons.

    (a) In general. Personal information concerning individuals other 
than the requester shall not be disclosed under the Freedom of 
Information Act if the proposed release would constitute a clearly 
unwarranted invasion of personal privacy. See 5 U.S.C. 552(b)(6). For 
purposes of this section, the following definitions apply:
    (1) Personal information means any information about an individual 
that is not a matter of public record, or easily discernible to the 
public, or protected from disclosure because of the implications that 
arise from Government possession of such information.

[[Page 343]]

    (2) Public interest means the public interest in understanding the 
operations and activities of the United States Government and not simply 
any matter which might be of general interest to the requester or 
members of the public.
    (b) Determination to be made. In making the required determination 
under this section and pursuant to exemption (b)(6) of the FOIA, the 
Agency will balance the privacy interests that would be compromised by 
disclosure against the public interest in release of the requested 
information.
    (c) Otherwise. A requester seeking information on a third person is 
encouraged to provide a signed affidavit or declaration from the third 
person waiving all or some of their privacy rights. However, all such 
waivers shall be narrowly construed and the Coordinator, in the exercise 
of his discretion and administrative authority, may seek clarification 
from the third party prior to any or all releases.



Sec.  1900.33  Allocation of resources; agreed extensions of time.

    (a) In general. Agency components shall devote such personnel and 
other resources to the responsibilities imposed by the Freedom of 
Information Act as may be appropriate and reasonable considering:
    (1) The totality of resources available to the component,
    (2) The business demands imposed on the component by the Director of 
Central Intelligence or otherwise by law,
    (3) The information review and release demands imposed by the 
Congress or other governmental authority, and
    (4) The rights of all members of the public under the various 
information review and disclosure laws.
    (b) Discharge of FOIA responsibilities. Components shall exercise 
due diligence in their responsibilities under the FOIA and must allocate 
a reasonable level of resources to requests under the Act in a strictly 
``first-in, first-out'' basis and utilizing two or more processing 
queues to ensure that smaller as well as larger (i.e., project) cases 
receive equitable attention. The Information and Privacy Coordinator is 
responsible for management of the Agency-wide program defined by this 
part and for establishing priorities for cases consistent with 
established law. The Director, Information Management through the Agency 
Release Panel shall provide policy and resource direction as necessary 
and render decisions on administrative appeals.
    (c) Requests for extension of time. When the Agency is unable to 
meet the statutory time requirements of the FOIA, it will inform the 
requester that the request cannot be processed within the statutory time 
limits, provide an opportunity for the requester to limit the scope of 
the request so that it can be processed within the statutory time 
limits, or arrange with the requester an agreed upon time frame for 
processing the request, or determine that exceptional circumstances 
mandate additional time. In such instances the Agency will, however, 
inform a requester of his or her right to decline our request and 
proceed with an administrative appeal or judicial review as appropriate. 
Effective October 2 1997, the definition of exceptional circumstances is 
modified per section 552(a)(6)(C) of the Freedom of Information Act, as 
amended.



Sec.  1900.34  Requests for expedited processing.

    (a) In general. All requests will be handled in the order received 
on a strictly ``first-in, first-out'' basis. Exceptions to this rule 
will only be made in accordance with the following procedures. In all 
circumstances, however, and consistent with established judicial 
precedent, requests more properly the scope of requests under the 
Federal Rules of Civil or Criminal Procedure (or other federal, state, 
or foreign judicial or quasi-judicial rules) will not be granted 
expedited processing under this or related (e.g., Privacy Act) 
provisions unless expressly ordered by a federal court of competent 
jurisdiction.
    (b) Procedure prior to October 2, 1997. Requests for expedited 
processing shall be granted only in circumstances that the Agency deems 
to be exceptional. In making this determination, the Agency shall 
consider and must decide in the affirmative on all of the following 
factors:
    (i) That there is a genuine need for the specific requested records; 
and

[[Page 344]]

    (ii) That the personal need is exceptional; and
    (iii) That there are no alternative forums for the records or 
information sought; and
    (iv) That it is reasonably believed that substantive records 
relevant to the stated needs may exist and be deemed releasable.
    (2) In sum, requests shall be considered for expedited processing 
only when health, humanitarian, or due process considerations involving 
possible deprivation of life or liberty create circumstances of 
exceptional urgency and extraordinary need.
    (c) Procedure on or after October 2, 1997. Requests for expedited 
processing will be approved only when a compelling need is established 
to the satisfaction of the Agency. A requester may make such a request 
with a certification of ``compelling need'' and, within ten (10) days of 
receipt, the Agency will decide whether to grant expedited processing 
and will notify the requester of its decision. The certification shall 
set forth with specificity the relevant facts upon which the requester 
relies and it appears to the Agency that substantive records relevant to 
the stated needs may exist and be deemed releasable. A ``compelling 
need'' is deemed to exist:
    (1) When the matter involves an imminent threat to the life or 
physical safety of an individual; or
    (2) When the request is made by a person primarily engaged in 
disseminating information and the information is relevant to a subject 
of public urgency concerning an actual or alleged Federal government 
activity.

                CIA Action on FOIA Administrative Appeals



Sec.  1900.41  Establishment of appeals structure.

    (a) In general. Two administrative entities have been established by 
the Director of Central Intelligence to facilitate the processing of 
administrative appeals under the Freedom of Information Act. Their 
membership, authority, and rules of procedure are as follows.
    (b) Historical Records Policy Board (``HRPB'' or ``Board''). This 
Board, the successor to the CIA Information Review Committee, acts as 
the senior corporate board in the CIA on all matters of information 
review and release.
    (1) Membership. The HRPB is composed of the Executive Director, who 
serves as its Chair, the Deputy Director for Administration, the Deputy 
Director for Intelligence, the Deputy Director for Operations, the 
Deputy Director for Science and Technology, the General Counsel, the 
Director of Congressional Affairs, the Director of the Public Affairs 
Staff, the Director, Center for the Study of Intelligence, and the 
Associate Deputy Director for Administration/Information Services, or 
their designees.
    (2) Authorities and activities. The HRPB, by majority vote, may 
delegate to one or more of its members the authority to act on any 
appeal or other matter or authorize the Chair to delegate such 
authority, as long as such delegation is not to the same individual or 
body who made the initial denial. The Executive Secretary of the HRPB is 
the Director, Information Management. The Chair may request interested 
parties to participate when special equities or expertise are involved.
    (c) Agency Release Panel (``ARP'' or ``Panel''). The HRPB, pursuant 
to its delegation of authority, has established a subordinate Agency 
Release Panel.
    (1) Membership. The ARP is composed of the Director, Information 
Management, who serves as its Chair; the Information Review Officers 
from the Directorates of Administration, Intelligence, Operations, 
Science and Technology, and the Director of Central Intelligence Area; 
the CIA Information and Privacy Coordinator; the Chief, Historical 
Review Group; the Chair, Publications Review Board; the Chief, Records 
Declassification Program; and representatives from the Office of General 
Counsel, the Office of Congressional Affairs, and the Public Affairs 
Staff.
    (2) Authorities and activities. The Panel shall meet on a regular 
schedule and may take action when a simple majority of the total 
membership is present. The Panel shall advise and assist the HRPB on all 
information release issues, monitor the adequacy and

[[Page 345]]

timeliness of Agency releases, set component search and review 
priorities, review adequacy of resources available to and planning for 
all Agency release programs, and perform such other functions as deemed 
necessary by the Board. The Information and Privacy Coordinator also 
serves as Executive Secretary of the Panel. The Chair may request 
interested parties to participate when special equities or expertise are 
involved. The Panel, functioning as a committee of the whole or through 
individual members, will make final Agency decisions from appeals of 
initial adverse decisions under the Freedom of Information Act and such 
other information release decisions made under 32 CFR parts 1901, 1907, 
and 1908. Issues shall be decided by a majority of members present; in 
all cases of a divided vote, any member of the ARP then present may 
refer such matter to the HRPB by written memorandum to the Executive 
Secretary of the HRPB. Matters decided by the Panel or Board will be 
deemed a final decision by the Agency.



Sec.  1900.42  Right of appeal and appeal procedures.

    (a) Right of Appeal. A right of administrative appeal exists 
whenever access to any requested record or any portion thereof is 
denied, no records are located in response to a request, or a request 
for a fee waiver is denied. The Agency will apprise all requesters in 
writing of their right to appeal such decisions to the CIA Agency 
Release Panel through the Coordinator.
    (b) Requirements as to time and form. Appeals of decisions must be 
received by the Coordinator within forty-five (45) days of the date of 
the Agency's initial decision. The Agency may, for good cause and as a 
matter of administrative discretion, permit an additional thirty (30) 
days for the submission of an appeal. All appeals shall be in writing 
and addressed as specified in 32 CFR 1900.03. All appeals must identify 
the documents or portions of documents at issue with specificity and may 
present such information, data, and argument in support as the requester 
may desire.
    (c) Exceptions. No appeal shall be accepted if the requester has 
outstanding fees for information services at this or another federal 
agency. In addition, no appeal shall be accepted if the information in 
question has been the subject of a review within the previous two (2) 
years or is the subject of pending litigation in the federal courts.
    (d) Receipt, recording, and tasking. The Agency shall promptly 
record each request received under this part, acknowledge receipt to the 
requester in writing, and thereafter effect the necessary taskings to 
the Deputy Director(s) in charge of the directorate(s) which originated 
or has an interest in the record(s) subject to the appeal. As used 
herein, the term Deputy Director includes an equivalent senior official 
in the DCI-area as well as a designee known as the Information Review 
Officer for a directorate or area.
    (e) Time for response. The Agency shall attempt to complete action 
on an appeal within twenty (20) days of the date of receipt. The current 
volume of requests, however, often requires that the Agency request 
additional time from the requester pursuant to 32 CFR 1900.33. In such 
event, the Agency will inform the requester of the right to judicial 
review.



Sec.  1900.43  Determination(s) by Deputy Director(s).

    Each Deputy Director in charge of a directorate which originated or 
has an interest in any of the records subject to the appeal, or 
designee, is a required party to any appeal; other interested parties 
may become involved through the request of the Coordinator when it is 
determined that some or all of the information is also within their 
official cognizance. These parties shall respond in writing to the 
Coordinator with a finding as to the exempt status of the information. 
This response shall be provided expeditiously on a ``first-in, first-
out'' basis taking into account the business requirements of the parties 
and consistent with the information rights of members of the general 
public under the various information review and release laws.



Sec.  1900.44  Action by appeals authority.

    (a) Preparation of docket. The Coordinator, acting in the capacity 
of Executive Secretary of the Agency Release

[[Page 346]]

Panel, shall place administrative appeals of FOIA requests ready for 
adjudication on the agenda at the next occurring meeting of that Panel. 
The Executive Secretary shall provide a summation memorandum for 
consideration of the members; the complete record of the request 
consisting of the request, the document(s) (sanitized and full text) at 
issue, and the findings of the concerned Deputy Director(s) or 
designee(s).
    (b) Decision by the Agency Release Panel. The Agency Release Panel 
shall meet and decide requests sitting as a committee of the whole. 
Decisions are by majority vote of those present at a meeting and shall 
be based on the written record and their deliberations; no personal 
appearances shall be permitted without the express permission of the 
Panel.
    (c) Decision by the Historical Records Policy Board. In any cases of 
divided vote by the ARP, any member of that body is authorized to refer 
the request to the CIA Historical Records Policy Board which acts as the 
senior corporate board for the Agency. The record compiled (the request, 
the memoranda filed by the originator and interested parties, and the 
previous decision(s)) as well as any memorandum of law or policy the 
referent desires to be considered, shall be certified by the Executive 
Secretary of the Agency Release Panel and shall constitute the official 
record of the proceedings and must be included in any subsequent 
filings.



Sec.  1900.45  Notification of decision and right of judicial review.

    The Executive Secretary of the Agency Release Panel shall promptly 
prepare and communicate the decision of the Panel or Board to the 
requester. With respect to any decision to deny information, that 
correspondence shall state the reasons for the decision, identify the 
officer responsible, and include a notice of a right to judicial review.



PART 1901_PUBLIC RIGHTS UNDER THE PRIVACY ACT OF 1974--Table of Contents



                                 General

Sec.
1901.01 Authority and purpose.
1901.02 Definitions.
1901.03 Contact for general information and requests.
1901.04 Suggestions and complaints.

                     Filing of Privacy Act Requests

1901.11 Preliminary information.
1901.12 Requirements as to form.
1901.13 Requirements as to identification of requester.
1901.14 Fees.

                     Action on Privacy Act Requests

1901.21 Processing requests for access to or amendment of records.
1901.22 Action and determination(s) by originator(s) or any interested 
          party.
1901.23 Notification of decision and right of appeal.

                    Additional Administrative Matters

1901.31 Special procedures for medical and psychological records.
1901.32 Requests for expedited processing.
1901.33 Allocation of resources; agreed extensions of time.

              Action on Privacy Act Administrative Appeals

1901.41 Establishment of appeals structure.
1901.42 Right of appeal and appeal procedures.
1901.43 Determination(s) by Deputy Director(s).
1901.44 Action by appeals authority.
1901.45 Notification of decision and right of judicial review.

                              Prohibitions

1901.51 Limitations on disclosure.
1901.52 Criminal penalties.

                               Exemptions

1901.61 Purpose and authority.
1901.62 General exemptions.
1901.63 Specific exemptions.

    Authority: National Security Act of 1947, as amended; Central 
Intelligence Agency Act of 1949, as amended; Privacy Act, as amended; 
and Executive Order 12958 (or successor Orders).

    Source: 62 FR 32488, June 16, 1997, unless otherwise noted.

                                 General



Sec.  1901.01  Authority and purpose.

    (a) Authority. This part is issued under the authority of and in 
order to implement the Privacy Act of 1974 (5 U.S.C. 552a); sec. 102 of 
the National Security Act of 1947, as amended (50

[[Page 347]]

U.S.C. 403); and sec. 6 of the Central Intelligence Agency Act of 1949, 
as amended (50 U.S.C. 403g).
    (b) Purpose in general. This part prescribes procedures for a 
requester, as defined herein:
    (1) To request notification of whether the Central Intelligence 
Agency maintains a record concerning them in any non-exempt portion of a 
system of records or any non-exempt system of records;
    (2) To request a copy of all non-exempt records or portions of 
records;
    (3) To request that any such record be amended or augmented; and
    (4) To file an administrative appeal to any initial adverse 
determination to deny access to or amend a record.
    (c) Other purposes. This part also sets forth detailed limitations 
on how and to whom the Agency may disclose personal information and 
gives notice that certain actions by officers or employees of the United 
States Government or members of the public could constitute criminal 
offenses.



Sec.  1901.02  Definitions.

    For purposes of this part, the following terms have the meanings 
indicated:
    (a) Agency or CIA means the United States Central Intelligence 
Agency acting through the CIA Information and Privacy Coordinator;
    (b) Days means calendar days when the Agency is operating and 
specifically excludes Saturdays, Sundays, and legal public holidays. 
Three (3) days may be added to any time limit imposed on a requester by 
this part if responding by U.S. domestic mail; ten (10) days may be 
added if responding by international mail;
    (c) Control means ownership or the authority of the CIA pursuant to 
federal statute or privilege to regulate official or public access to 
records;
    (d) Coordinator means the CIA Information and Privacy Coordinator 
who serves as the Agency manager of the information review and release 
program instituted under the Privacy Act;
    (e) Federal agency means any executive department, military 
department, or other establishment or entity included in the definition 
of agency in 5 U.S.C. 552(f);
    (f) Interested party means any official in the executive, military, 
congressional, or judicial branches of government, United States or 
foreign, or U.S. Government contractor who, in the sole discretion of 
the CIA, has a subject matter or physical interest in the documents or 
information at issue;
    (g) Maintain means maintain, collect, use, or disseminate;
    (h) Originator means the U.S. Government official who originated the 
document at issue or successor in office or such official who has been 
delegated release or declassification authority pursuant to law;
    (i) Privacy Act or PA means the statute as codified at 5 U.S.C. 
552a;
    (j) Record means an item, collection, or grouping of information 
about an individual that is maintained by the Central Intelligence 
Agency in a system of records;
    (k) Requester or individual means a citizen of the United States or 
an alien lawfully admitted for permanent residence who is a living being 
and to whom a record might pertain;
    (l) Responsive record means those documents (records) which the 
Agency has determined to be within the scope of a Privacy Act request;
    (m) Routine use means, with respect to the disclosure of a record, 
the use of such record for a purpose which is compatible with the 
purpose for which the record is maintained;
    (n) System of records means a group of any records under the control 
of the Central Intelligence Agency from which records are retrieved by 
the name of an individual or by some identifying number, symbol, or 
other identifying particular assigned to that individual.



Sec.  1901.03  Contact for general information and requests.

    For general information on this part, to inquire about the Privacy 
Act program at CIA, or to file a Privacy Act request, please direct your 
communication in writing to the Information and Privacy Coordinator, 
Central Intelligence Agency, Washington, DC. 20505. Requests with the 
required identification statement pursuant to 32 CFR 1901.13 must be 
filed in original form by mail. Subsequent communications and

[[Page 348]]

any inquiries will be accepted by mail or facsimile at (703) 613-3007 or 
by telephone at (703) 613-1287. Collect calls cannot be accepted.



Sec.  1901.04  Suggestions and complaints.

    The Agency welcomes suggestions or complaints with regard to its 
administration of the Privacy Act. Many requesters will receive pre-
paid, customer satisfaction survey cards. Letters of suggestion or 
complaint should identify the specific purpose and the issues for 
consideration. The Agency will respond to all substantive communications 
and take such actions as determined feasible and appropriate.

                     Filing of Privacy Act Requests



Sec.  1901.11  Preliminary information.

    Members of the public shall address all communications to the 
contact specified at Sec.  1901.03 and clearly delineate the 
communication as a request under the Privacy Act and this regulation. 
Requests and administrative appeals on requests, referrals, and 
coordinations received from members of the public who owe outstanding 
fees for information services at this or other federal agencies will not 
be accepted and action on existing requests and appeals will be 
terminated in such circumstances.



Sec.  1901.12  Requirements as to form.

    (a) In general. No particular form is required. All requests must 
contain the identification information required at Sec.  1901.13.
    (b) For access. For requests seeking access, a requester should, to 
the extent possible, describe the nature of the record sought and the 
record system(s) in which it is thought to be included. Requesters may 
find assistance from information described in the Privacy Act Issuances 
Compilation which is published biannually by the Federal Register. In 
lieu of this, a requester may simply describe why and under what 
circumstances it is believed that this Agency maintains responsive 
records; the Agency will undertake the appropriate searches.
    (c) For amendment. For requests seeking amendment, a requester 
should identify the particular record or portion subject to the request, 
state a justification for such amendment, and provide the desired 
amending language.



Sec.  1901.13  Requirements as to identification of requester.

    (a) In general. Individuals seeking access to or amendment of 
records concerning themselves shall provide their full (legal) name, 
address, date and place of birth, and current citizenship status 
together with a statement that such information is true under penalty of 
perjury or a notarized statement swearing to or affirming identity. If 
the Agency determines that this information is not sufficient, the 
Agency may request additional or clarifying information.
    (b) Requirement for aliens. Only aliens lawfully admitted for 
permanent residence (PRAs) may file a request pursuant to the Privacy 
Act and this part. Such individuals shall provide, in addition to the 
information required under paragraph (a) of this section, their Alien 
Registration Number and the date that status was acquired.
    (c) Requirement for representatives. The parent or guardian of a 
minor individual, the guardian of an individual under judicial 
disability, or an attorney retained to represent an individual shall 
provide, in addition to establishing the identity of the minor or 
individual represented as required in paragraph (a) or (b) of this 
section, evidence of such representation by submission of a certified 
copy of the minor's birth certificate, court order, or representational 
agreement which establishes the relationship and the requester's 
identity.
    (d) Procedure otherwise. If a requester or representative fails to 
provide the information in paragraph (a), (b), or (c) of this section 
within forty-five (45) days of the date of our request, the Agency will 
deem the request closed. This action, of course, would not prevent an 
individual from refiling his or her Privacy Act request at a subsequent 
date with the required information.



Sec.  1901.14  Fees.

    No fees will be charged for any action under the authority of the 
Privacy Act, 5 U.S.C. 552a, irrespective of the fact

[[Page 349]]

that a request is or may be processed under the authority of both the 
Privacy Act and the Freedom of Information Act.

                     Action on Privacy Act Requests



Sec.  1901.21  Processing requests for access to or amendment of records.

    (a) In general. Requests meeting the requirements of 32 CFR 1901.11 
through 1901.13 shall be processed under both the Freedom of Information 
Act, 5 U.S.C. 552, and the Privacy Act, 5 U.S.C. 552a, and the 
applicable regulations, unless the requester demands otherwise in 
writing. Such requests will be processed under both Acts regardless of 
whether the requester cites one Act in the request, both, or neither. 
This action is taken in order to ensure the maximum possible disclosure 
to the requester.
    (b) Receipt, recording and tasking. Upon receipt of a request 
meeting the requirements of Sec. Sec.  1901.11 through 1901.13, the 
Agency shall within ten (10) days record each request, acknowledge 
receipt to the requester, and thereafter effect the necessary taskings 
to the components reasonably believed to hold responsive records.
    (c) Effect of certain exemptions. In processing a request, the 
Agency shall decline to confirm or deny the existence or nonexistence of 
any responsive records whenever the fact of their existence or 
nonexistence is itself classified under Executive Order 12958 or 
revealing of intelligence sources and methods protected pursuant to 
section 103(c)(5) of the National Security Act of 1947. In such 
circumstances, the Agency, in the form of a final written response, 
shall so inform the requester and advise of his or her right to an 
administrative appeal.
    (d) Time for response. Although the Privacy Act does not mandate a 
time for response, our joint treatment of requests under both the 
Privacy Act and the FOIA means that the Agency should provide a response 
within the FOIA statutory guideline of ten (10) days on initial requests 
and twenty (20) days on administrative appeals. However, the current 
volume of requests require that the Agency often seek additional time 
from a requester pursuant to 32 CFR 1901.33. In such event, the Agency 
will inform the requester in writing and further advise of his or her 
right to file an administrative appeal.



Sec.  1901.22  Action and determination(s) by originator(s) or any 
interested party.

    (a) Initial action for access. CIA components tasked pursuant to a 
Privacy Act access request shall search all relevant record systems 
within their cognizance. They shall:
    (1) Determine whether responsive records exist;
    (2) Determine whether access must be denied in whole or part and on 
what legal basis under both Acts in each such case;
    (3) Approve the disclosure of records for which they are the 
originator; and
    (4) Forward to the Coordinator all records approved for release or 
necessary for coordination with or referral to another originator or 
interested party as well as the specific determinations with respect to 
denials (if any).
    (b) Initial action for amendment. CIA components tasked pursuant to 
a Privacy Act amendment request shall review the official records 
alleged to be inaccurate and the proposed amendment submitted by the 
requester. If they determine that the Agency's records are not accurate, 
relevant, timely or complete, they shall promptly:
    (1) Make the amendment as requested;
    (2) Write to all other identified persons or agencies to whom the 
record has been disclosed (if an accounting of the disclosure was made) 
and inform of the amendment; and
    (3) Inform the Coordinator of such decisions.
    (c) Action otherwise on amendment request. If the CIA component 
records manager declines to make the requested amendment or declines to 
make the requested amendment but agrees to augment the official records, 
that manager shall promptly:
    (1) Set forth the reasons for refusal; and
    (2) Inform the Coordinator of such decision and the reasons 
therefore.

[[Page 350]]

    (d) Referrals and coordinations. As applicable and within ten (10) 
days of receipt by the Coordinator, any CIA records containing 
information originated by other CIA components shall be forwarded to 
those entities for action in accordance with paragraphs (a), (b), or (c) 
of this section and return. Records originated by other federal agencies 
or CIA records containing other federal agency information shall be 
forwarded to such agencies within ten (10) days of our completion of 
initial action in the case for action under their regulations and direct 
response to the requester (for other agency records) or return to the 
CIA (for CIA records).
    (e) Effect of certain exemptions. This section shall not be 
construed to allow access to systems of records exempted by the Director 
of Central Intelligence pursuant to subsections (j) and (k) of the 
Privacy Act or where those exemptions require that the CIA can neither 
confirm nor deny the existence or nonexistence of responsive records.



Sec.  1901.23  Notification of decision and right of appeal.

    Within ten (10) days of receipt of responses to all initial taskings 
and subsequent coordinations (if any), and dispatch of referrals (if 
any), the Agency will provide disclosable records to the requester. If a 
determination has been made not to provide access to requested records 
(in light of specific exemptions) or that no records are found, the 
Agency shall so inform the requester, identify the denying official, and 
advise of the right to administrative appeal.

                    Additional Administrative Matters



Sec.  1901.31  Special procedures for medical and psychological records.

    (a) In general. When a request for access or amendment involves 
medical or psychological records and when the originator determines that 
such records are not exempt from disclosure, the Agency will, after 
consultation with the Director of Medical Services, determine:
    (1) Which records may be sent directly to the requester and
    (2) Which records should not be sent directly to the requester 
because of possible medical or psychological harm to the requester or 
another person.
    (b) Procedure for records to be sent to physician. In the event that 
the Agency determines, in accordance with paragraph (a)(2) of this 
section, that records should not be sent directly to the requester, the 
Agency will notify the requester in writing and advise that the records 
at issue can be made available only to a physician of the requester's 
designation. Upon receipt of such designation, verification of the 
identity of the physician, and agreement by the physician:
    (1) To review the documents with the requesting individual,
    (2) To explain the meaning of the documents, and
    (3) To offer counseling designed to temper any adverse reaction, the 
Agency will forward such records to the designated physician.
    (c) Procedure if physician option not available. If within sixty 
(60) days of the paragraph (a)(2) of this section, the requester has 
failed to respond or designate a physician, or the physician fails to 
agree to the release conditions, the Agency will hold the documents in 
abeyance and advise the requester that this action may be construed as a 
technical denial. The Agency will also advise the requester of the 
responsible official and of his or her rights to administrative appeal 
and thereafter judicial review.



Sec.  1901.32  Requests for expedited processing.

    (a) All requests will be handled in the order received on a strictly 
``first-in, first-out'' basis. Exceptions to this rule will only be made 
in circumstances that the Agency deems to be exceptional. In making this 
determination, the Agency shall consider and must decide in the 
affirmative on all of the following factors:
    (1) That there is a genuine need for the records; and
    (2) That the personal need is exceptional; and
    (3) That there are no alternative forums for the records sought; and
    (4) That it is reasonably believed that substantive records relevant 
to the

[[Page 351]]

stated needs may exist and be deemed releasable.
    (b) In sum, requests shall be considered for expedited processing 
only when health, humanitarian, or due process considerations involving 
possible deprivation of life or liberty create circumstances of 
exceptional urgency and extraordinary need. In accordance with 
established judicial precedent, requests more properly the scope of 
requests under the Federal Rules of Civil or Criminal Procedure (or 
equivalent state rules) will not be granted expedited processing under 
this or related (e.g., Freedom of Information Act) provisions unless 
expressly ordered by a federal court of competent jurisdiction.



Sec.  1901.33  Allocation of resources; agreed extensions of time.

    (a) In general. Agency components shall devote such personnel and 
other resources to the responsibilities imposed by the Privacy Act as 
may be appropriate and reasonable considering:
    (1) The totality of resources available to the component,
    (2) The business demands imposed on the component by the Director of 
Central Intelligence or otherwise by law,
    (3) The information review and release demands imposed by the 
Congress or other governmental authority, and
    (4) The rights of all members of the public under the various 
information review and disclosure laws.
    (b) Discharge of Privacy Act responsibilities. Components shall 
exercise due diligence in their responsibilities under the Privacy Act 
and must allocate a reasonable level of resources to requests under the 
Act in a strictly ``first-in, first-out'' basis and utilizing two or 
more processing queues to ensure that smaller as well as larger (i.e., 
project) cases receive equitable attention. The Information and Privacy 
Coordinator is responsible for management of the Agency-wide program 
defined by this part and for establishing priorities for cases 
consistent with established law. The Director, Information Management 
through the Agency Release Panel shall provide policy and resource 
direction as necessary and shall make determinations on administrative 
appeals.
    (c) Requests for extension of time. While the Privacy Act does not 
specify time requirements, our joint treatment of requests under the 
FOIA means that when the Agency is unable to meet the statutory time 
requirements of the FOIA, the Agency may request additional time from a 
requester. In such instances the Agency will inform a requester of his 
or her right to decline our request and proceed with an administrative 
appeal or judicial review as appropriate.

              Action on Privacy Act Administrative Appeals



Sec.  1901.41  Establishment of appeals structure.

    (a) In general. Two administrative entities have been established by 
the Director of Central Intelligence to facilitate the processing of 
administrative appeals under the Freedom of Information Act. Their 
membership, authority, and rules of procedure are as follows.
    (b) Historical Records Policy Board (``HRPB'' or ``Board''). This 
Board, the successor to the CIA Information Review Committee, acts as 
the senior corporate board in the CIA on all matters of information 
review and release.
    (1) Membership. The HRPB is composed of the Executive Director, who 
serves as its Chair, the Deputy Director for Administration, the Deputy 
Director for Intelligence, the Deputy Director for Operations, the 
Deputy Director for Science and Technology, the General Counsel, the 
Director of Congressional Affairs, the Director of the Public Affairs 
Staff, the Director, Center for the Study of Intelligence, and the 
Associate Deputy Director for Administration/Information Services, or 
their designees.
    (2) Authorities and activities. The HRPB, by majority vote, may 
delegate to one or more of its members the authority to act on any 
appeal or other matter or authorize the Chair to delegate such 
authority, as long as such delegation is not to the same individual or 
body who made the initial denial. The Executive Secretary of the HRPB is 
the Director, Information Management. The Chair may request interested 
parties to participate when

[[Page 352]]

special equities or expertise are involved.
    (c) Agency Release Panel (``ARP'' or ``Panel''). The HRPB, pursuant 
to its delegation of authority, has established a subordinate Agency 
Release Panel.
    (1) Membership. The ARP is composed of the Director, Information 
Management, who serves as its Chair; the Information Review Officers 
from the Directorates of Administration, Intelligence, Operations, 
Science and Technology, and the Director of Central Intelligence Area; 
the CIA Information and Privacy Coordinator; the Chief, Historical 
Review Group; the Chair, Publications Review Board; the Chief, Records 
Declassification Program; and representatives from the Office of General 
Counsel, the Office of Congressional Affairs, and the Public Affairs 
Staff.
    (2) Authorities and activities. The Panel shall meet on a regular 
schedule and may take action when a simple majority of the total 
membership is present. The Panel shall advise and assist the HRPB on all 
information release issues, monitor the adequacy and timeliness of 
Agency releases, set component search and review priorities, review 
adequacy of resources available to and planning for all Agency release 
programs, and perform such other functions as deemed necessary by the 
Board. The Information and Privacy Coordinator also serves as Executive 
Secretary of the Panel. The Chair may request interested parties to 
participate when special equities or expertise are involved. The Panel, 
functioning as a committee of the whole or through individual members, 
will make final Agency decisions from appeals of initial adverse 
decisions under the Freedom of Information Act and such other 
information release decisions made under 32 CFR parts 1901, 1907, and 
1908. Issues shall be decided by a majority of members present; in all 
cases of a divided vote, any member of the ARP then present may refer 
such matter to the HRPB by written memorandum to the Executive Secretary 
of the HRPB. Matters decided by the Panel or Board will be deemed a 
final decision by the Agency.



Sec.  1901.42  Right of appeal and appeal procedures.

    (a) Right of Appeal. A right of administrative appeal exists 
whenever access to any requested record or any portion thereof is 
denied, no records are located in response to a request, or a request 
for amendment is denied. The Agency will apprise all requesters in 
writing of their right to appeal such decisions to the CIA Agency 
Release Panel through the Coordinator.
    (b) Requirements as to time and form. Appeals of decisions must be 
received by the Coordinator within forty-five (45) days of the date of 
the Agency's initial decision. The Agency may, for good cause and as a 
matter of administrative discretion, permit an additional thirty (30) 
days for the submission of an appeal. All appeals to the Panel shall be 
in writing and addressed as specified in 32 CFR 1901.03. All appeals 
must identify the documents or portions of documents at issue with 
specificity, provide the desired amending language (if applicable), and 
may present such information, data, and argument in support as the 
requester may desire.
    (c) Exceptions. No appeal shall be accepted if the requester has 
outstanding fees for information services at this or another federal 
agency. In addition, no appeal shall be accepted if the information in 
question has been the subject of an administrative review within the 
previous two (2) years or is the subject of pending litigation in the 
federal courts.
    (d) Receipt, recording, and tasking. The Agency shall promptly 
record each administrative appeal, acknowledge receipt to the requester 
in writing, and thereafter effect the necessary taskings to the Deputy 
Director(s) in charge of the directorate(s) which originated or has an 
interest in the record(s) subject to the appeal. As used herein, the 
term Deputy Director includes an equivalent senior official within the 
DCI-area as well as a designee known as the Information Review Officer 
for a directorate or area.



Sec.  1901.43  Determination(s) by Deputy Director(s).

    Each Deputy Director in charge of a directorate which originated or 
has an

[[Page 353]]

interest in any of the records subject to the appeal, or designee, is a 
required party to any appeal; other interested parties may become 
involved through the request of the Coordinator when it is determined 
that some or all of the information is also within their official 
cognizance. These parties shall respond in writing to the Coordinator 
with a finding as to the exempt or non-exempt status of the information 
including citations to the applicable exemption and/or their agreement 
or disagreement as to the requested amendment and the reasons therefore. 
Each response shall be provided expeditiously on a ``first-in, first-
out'' basis taking into account the business requirements of the parties 
and consistent with the information rights of members of the general 
public under the various information review and release laws.



Sec.  1901.44  Action by appeals authority.

    (a) Preparation of docket. The Coordinator, acting as the Executive 
Secretary of the Agency Release Panel, shall place administrative 
appeals of Privacy Act requests ready for adjudication on the agenda at 
the next occurring meeting of that Panel. The Executive Secretary shall 
provide a summation memorandum for consideration of the members; the 
complete record of the request consisting of the request, the 
document(s) (sanitized and full text) at issue, and the findings of the 
concerned Deputy Director(s) or designee(s).
    (b) Decision by the Agency Release Panel. The Agency Release Panel 
shall meet and decide requests sitting as a committee of the whole. 
Decisions are by majority vote of those present at a meeting and shall 
be based on the written record and their deliberations; no personal 
appearances shall be permitted without the express permission of the 
Panel.
    (c) Decision by the Historical Records Policy Board. In any cases of 
divided vote by the ARP, any member of that body is authorized to refer 
the request to the CIA Historical Records Policy Board which acts as the 
senior corporate board for the Agency. The record compiled (the request, 
the memoranda filed by the originator and interested parties, and the 
previous decision(s)) as well as any memorandum of law or policy the 
referent desires to be considered, shall be certified by the Executive 
Secretary of the Agency Release Panel and shall constitute the official 
record of the proceedings and must be included in any subsequent 
filings.



Sec.  1901.45  Notification of decision and right of judicial review.

    (a) In general. The Executive Secretary of the Agency Release Panel 
shall promptly prepare and communicate the decision of the Panel or 
Board to the requester. With respect to any decision to deny information 
or deny amendment, that correspondence shall state the reasons for the 
decision, identify the officer responsible, and include a notice of the 
right to judicial review.
    (b) For amendment requests. With further respect to any decision to 
deny an amendment, that correspondence shall also inform the requester 
of the right to submit within forty-five (45) days a statement of his or 
her choice which shall be included in the official records of the CIA. 
In such cases, the applicable record system manager shall clearly note 
any portion of the official record which is disputed, append the 
requester's statement, and provide copies of the statement to previous 
recipients (if any are known) and to any future recipients when and if 
the disputed information is disseminated in accordance with a routine 
use.

                              Prohibitions



Sec.  1901.51  Limitations on disclosure.

    No record which is within a system of records shall be disclosed by 
any means of communication to any individual or to another agency, 
except pursuant to a written request by, or with the prior written 
consent of, the individual to whom the record pertains, unless 
disclosure of the record would be:
    (a) To those officers and employees of this Agency which maintains 
the record who have a need for the record in the performance of their 
duties;
    (b) Required under the Freedom of Information Act, 5 U.S.C. 552;
    (c) For a routine use as defined in Sec.  1901.02(m), as contained 
in the Privacy

[[Page 354]]

Act Issuances Compilation which is published biennially in the Federal 
Register, and as described in Sec. Sec.  (a)(7) and (e)(4)(D) of the 
Act;
    (d) To the Bureau of the Census for purposes of planning or carrying 
out a census or survey or related activity pursuant to the provisions of 
U.S.C. Title 13;
    (e) To a recipient who has provided the Agency with advance adequate 
written assurance that the record will be used solely as a statistical 
research or reporting record, and the record is to be transferred in a 
form that is not individually identifiable;
    (f) To the National Archives and Records Administration as a record 
which has sufficient historical or other value to warrant its continued 
preservation by the United States Government, or for evaluation by the 
Archivist of the United States or designee to determine whether the 
record has such value;
    (g) To another agency or to an instrumentality of any governmental 
jurisdiction within or under the control of the United States for a 
civil or criminal law enforcement activity if the activity is authorized 
by law, and if the head of that agency or instrumentality has made a 
written request to the CIA specifying the particular information desired 
and the law enforcement activity for which the record is sought;
    (h) To a person pursuant to a showing of compelling circumstances 
affecting the health or safety of an individual if upon such disclosure 
notification is transmitted to the last known address of such 
individual;
    (i) To either House of Congress, or, to the extent of matter within 
its jurisdiction, any committee or subcommittee thereof, any joint 
committee of Congress or subcommittee of any such joint committee;
    (j) To the Comptroller General or any of his authorized 
representatives in the course of the performance of the duties of the 
General Accounting Office; or
    (k) To any agency, government instrumentality, or other person or 
entity pursuant to the order of a court of competent jurisdiction of the 
United States or constituent states.



Sec.  1901.52  Criminal penalties.

    (a) Unauthorized disclosure. Criminal penalties may be imposed 
against any officer or employee of the CIA who, by virtue of employment, 
has possession of or access to Agency records which contain information 
identifiable with an individual, the disclosure of which is prohibited 
by the Privacy Act or by these rules, and who, knowing that disclosure 
of the specific material is so prohibited, willfully discloses the 
material in any manner to any person or agency not entitled to receive 
same.
    (b) Unauthorized maintenance. Criminal penalties may be imposed 
against any officer or employee of the CIA who willfully maintains a 
system of records without meeting the requirements of section (e)(4) of 
the Privacy Act, 5 U.S.C.552a. The Coordinator and the Inspector General 
are authorized independently to conduct such surveys and inspect such 
records as necessary from time to time to ensure that these requirements 
are met.
    (c) Unauthorized requests. Criminal penalties may be imposed upon 
any person who knowingly and willfully requests or obtains any record 
concerning an individual from the CIA under false pretenses.

                               Exemptions



Sec.  1901.61  Purpose and authority.

    Purpose of exemptions. This part sets forth those systems of records 
or portions of systems of records which the Director of Central 
Intelligence has determined to exempt from the procedures established by 
this regulation and from certain provisions of the Privacy Act:
    (a) The purpose of the following specified general exemption of 
polygraph records is to prevent access and review of records which 
intimately reveal CIA operational methods. The purpose of the general 
exemption from the provisions of sections (c)(3) and (e)(3) (A)-(D) of 
the Privacy Act is to avoid disclosures that may adversely affect 
ongoing operational relationships with other intelligence and related 
organizations and thus reveal or jeopardize intelligence sources and 
methods or risk exposure of intelligence sources

[[Page 355]]

and methods in the processing of covert employment applications.
    (b) The purpose of the general exemption from sections (d), 
(e)(4)(G), (f)(1), and (g) of the Privacy Act is to protect only those 
portions of systems of records which if revealed would risk exposure of 
intelligence sources and methods or hamper the ability of the CIA to 
effectively use information received from other agencies or foreign 
governments.
    (c) It should be noted that by subjecting information which would 
consist of, reveal, or pertain to intelligence sources and methods to 
separate determinations by the Director of Central Intelligence under 
the provision entitled ``General exemptions,'' 32 CFR 1901.62 regarding 
access and notice, an intent is established to apply the exemption from 
access and notice only in those cases where notice in itself would 
constitute a revelation of intelligence sources and methods; in all 
cases where only access to information would reveal such source or 
method, notice will be given upon request.
    (d) The purpose of the general exemption for records that consist 
of, pertain to, or would otherwise reveal the identities of employees 
who provide information to the Office of the Inspector General is to 
implement section 17 of the CIA Act of 1949, as amended, 50 U.S.C. 
403q(e)(3), and to ensure that no action constituting a reprisal or 
threat of reprisal is taken because an employee has cooperated with the 
Office of Inspector General.
    (e) The purpose of the specific exemptions provided for under 
section (k) of the Privacy Act is to exempt only those portions of 
systems of records which would consist of, reveal, or pertain to that 
information which is enumerated in that section of the Act.
    (f) In each case, the Director of Central Intelligence currently or 
then in office has determined that the enumerated classes of information 
should be exempt in order to comply with dealing with the proper 
classification of national defense or foreign policy information; 
protect the identification of persons who provide information to the CIA 
Inspector General; protect the privacy of other persons who supplied 
information under an implied or express grant of confidentiality in the 
case of law enforcement or employment and security suitability 
investigations (or promotion material in the case of the armed 
services); protect information used in connection with protective 
services under 18 U.S.C. 3056; protect the efficacy of testing 
materials; and protect information which is required by statute to be 
maintained and used solely as statistical records.



Sec.  1901.62  General exemptions.

    (a) Pursuant to authority granted in section (j) of the Privacy Act, 
the Director of Central Intelligence has determined to exempt from all 
sections of the Act--except sections 552a(b); (c) (1) and (2); (e) (1), 
(4) (A)-(F), (5), (6), (7), (9), (10), and (11); and (i)--the following 
systems of records or portions of records in a system of record:
    (1) Polygraph records.
    (2) [Reserved]
    (b) Pursuant to authority granted in section (j) of the Privacy Act, 
the Director of Central Intelligence has determined to exempt from 
sections (c)(3) and (e)(3) (A)-(D) of the Act all systems of records 
maintained by this Agency.
    (c) Pursuant to authority granted in section (j) of the Privacy Act, 
the Director of Central Intelligence has determined to exempt from 
notification under sections (e)(4)(G) and (f)(1) those portions of each 
and all systems of records which have been exempted from individual 
access under section (j) in those cases where the Coordinator determines 
after advice by the responsible components that confirmation of the 
existence of a record may jeopardize intelligence sources and methods. 
In such cases the Agency must neither confirm nor deny the existence of 
the record and will advise a requester that there is no record which is 
available pursuant to the Privacy Act of 1974.
    (d) Pursuant to authority granted in section (j) of the Privacy Act, 
the Director of Central Intelligence has determined to exempt from 
access by individuals under section (d) of the Act those portions and 
only those portions of all systems of records maintained by the CIA 
that:

[[Page 356]]

    (1) Consist of, pertain to, or would otherwise reveal intelligence 
sources and methods;
    (2) Consist of documents or information provided by any foreign 
government entity, international organization, or, any United States 
federal, state, or other public agency or authority; and
    (3) Consist of information which would reveal the identification of 
persons who provide information to the CIA Inspector General.
    (e) Pursuant to authority granted in section (j) of the Privacy Act, 
the Director of Central Intelligence has determined to exempt from 
judicial review under section (g) of the Act all determinations to deny 
access under section (d) of the Act and all decisions to deny notice 
under sections (e)(4)(G) and (f)(1) of the Act pursuant to determination 
made under paragraph (c) of this section when it has been determined by 
an appropriate official of the CIA that such access would disclose 
information which would:
    (1) Consist of, pertain to, or otherwise reveal intelligence sources 
and methods;
    (2) Consist of documents or information provided by any foreign 
government entity, international organization, or, any United States 
federal, state, or other public agency or authority; and
    (3) Consist of information which would reveal the identification of 
persons who provide information to the CIA Inspector General.



Sec.  1901.63  Specific exemptions.

    Pursuant to authority granted in section (k) of the Privacy Act, the 
Director of Central Intelligence has determined to exempt from section 
(d) of the Privacy Act those portions and only those portions of all 
systems of records maintained by the CIA that would consist of, pertain 
to, or otherwise reveal information that is:
    (a) Classified pursuant to Executive Order 12958 (or successor or 
prior Order) and thus subject to the provisions of 5 U.S.C. 552(b)(1) 
and 5 U.S.C. 552a(k)(1);
    (b) Investigatory in nature and compiled for law enforcement 
purposes, other than material within the scope of section (j)(2) of the 
Act; provided however, that if an individual is denied any right, 
privilege, or benefit to which they are otherwise eligible, as a result 
of the maintenance of such material, then such material shall be 
provided to that individual except to the extent that the disclosure 
would reveal the identity of a source who furnished the information to 
the United States Government under an express promise of 
confidentiality, or, prior to the effective date of this section, under 
an implied promise of confidentiality;
    (c) Maintained in connection with providing protective services to 
the President of the United States or other individuals pursuant to 18 
U.S.C. 3056;
    (d) Required by statute to be maintained and used solely as 
statistical records;
    (e) Investigatory in nature and compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information, but only to the extent that the disclosure of 
such material would reveal the identity of a source who furnished 
information to the United States Government under an express promise of 
confidentiality, or, prior to the effective date of this section, under 
an implied promise of confidentiality;
    (f) Testing or examination material used solely to determine 
individual qualifications for appointment or promotion in the federal 
service the disclosure of which would compromise the objectivity or 
fairness of the testing or examination process; or
    (g) Evaluation material used to determine potential for promotion in 
the armed services, but only to the extent that the disclosure of such 
material would reveal the identity of a source who furnished information 
to the United States Government under an express promise of 
confidentiality, or, prior to the effective date of this section, under 
an implied promise of confidentiality.



PART 1903_CONDUCT ON AGENCY INSTALLATIONS--Table of Contents



Sec.
1903.1 Definitions.

[[Page 357]]

1903.2 Applicability.
1903.3 State law applicable.
1903.4 Vehicles and traffic safety.
1903.5 Enforcement of parking regulations.
1903.6 Admission on to an Agency installation.
1903.7 Trespassing.
1903.8 Interfering with Agency functions.
1903.9 Explosives.
1903.10 Weapons.
1903.11 Restrictions on photographic, transmitting, and recording 
          equipment.
1903.12 Alcoholic beverages and controlled substances.
1903.13 Intoxicated on an Agency installation.
1903.14 Disorderly conduct.
1903.15 Preservation of property.
1903.16 Restrictions on animals.
1903.17 Soliciting, vending, and debt collection.
1903.18 Distribution of materials.
1903.19 Gambling.
1903.20 Penalties and effects on other laws.

    Authority: 50 U.S.C. 403o.

    Source: 63 FR 44786, Aug. 21, 1998, unless otherwise noted.



Sec.  1903.1  Definitions.

    As used in this part:
    Agency installation. For the purposes of this part, the term Agency 
installation means the property within the Agency Headquarters Compound 
and the property controlled and occupied by the Federal Highway 
Administration located immediately adjacent to such Compound, and 
property within any other Agency installation and protected property 
(i.e., property owned, leased, or otherwise controlled by the Central 
Intelligence Agency).
    Authorized person. An officer of the Security Protective Service, or 
any other Central Intelligence Agency employee who has been authorized 
by the Director of Central Intelligence pursuant to section 15 of the 
Central Intelligence Agency Act of 1949 to enforce the provisions of 
this part.
    Blasting agents. The term is defined for the purposes of this part 
as it is defined in Title 18 U.S.C. 841.
    Controlled Substance. Any drug or other substance, or immediate 
precursor that has been defined as a controlled substance in the 
Controlled Substances Act (Title 21 U.S.C. 801 et seq.).
    Explosives/Explosive Materials. The term is defined for the purposes 
of this part as it is defined in Title 18 U.S.C. 841.
    Operator. A person who operates, drives, controls, or otherwise has 
charge of, or is in actual physical control of a mechanical mode of 
transportation or any other mechanical equipment.
    Permit. A written authorization to engage in uses or activities that 
are otherwise prohibited, restricted, or regulated.
    Possession. Exercising direct physical control or dominion, with or 
without ownership, over the property.
    State law. The applicable and non-conflicting laws, statutes, 
regulations, ordinances, and codes of the State(s) and other political 
subdivision(s) within whose exterior boundaries an Agency installation 
or a portion thereof is located.
    Traffic. Pedestrians, ridden or herded animals, vehicles, and other 
conveyances, either singly or together, while using any road, path, 
street, or other thoroughfare for the purpose of travel.
    Vehicles. Any vehicle that is self-propelled or designed for self-
propulsion, any motorized vehicle, and any vehicle drawn by or designed 
to be drawn by a motor vehicle, including any device in, upon, or by 
which any person or property is or can be transported or drawn upon a 
roadway, highway, hallway, or pathway; to include any device moved by 
human or animal power. Whether required to be licensed in any State or 
otherwise.
    Weapons. Any firearms or any other loaded or unloaded pistol, rifle, 
shotgun, or other weapon which is designed to, or may be readily 
converted to expel a projectile by ignition of a propellant, by 
compressed gas, or which is spring-powered. Any bow and arrow, crossbow, 
blowgun, spear gun, hand-thrown spear, sling-shot, irritant gas device, 
explosive device, or any other implement designed to discharge missiles; 
or a weapon, device, instrument, material, or substance, animate or 
inanimate, that is used for or is readily capable of, causing death or 
serious bodily injury, including any weapon the possession of which is 
prohibited under the laws of the State in which the Agency installation 
or portion thereof is located; except that such

[[Page 358]]

term does not include a closing pocket knife with a blade of less than 
2\1/2\ inches in length.



Sec.  1903.2  Applicability.

    The provisions of this part apply to all Agency installations, and 
to all persons entering on to or when on an Agency installation. They 
supplement the provisions of Title 18, United States Code, relating to 
crimes and criminal procedures, and those provisions of State law that 
are federal criminal offenses by virtue of the Assimilative Crimes Act, 
18 U.S.C. 13. The Director of Central Intelligence, at his discretion, 
may suspend the applicability of this part, or a portion thereof, on any 
Agency installation, or any portion of the installation, covered under 
this part. Where necessary and when consistent with national security 
requirements notices will be posted on the affected Agency installation 
to indicate that the applicability of this part or a portion thereof has 
been suspended.



Sec.  1903.3  State law applicable.

    (a) Unless specifically addressed by the regulations in this part, 
traffic safety and the permissible use and operation of vehicles within 
an Agency installation are governed by State law. State law that is now 
or may later be in effect is adopted and made a part of the regulations 
in this part.
    (b) Violating a provision of State law is prohibited.



Sec.  1903.4  Vehicles and traffic safety.

    (a) Open container of alcoholic beverage. (1) Each person within the 
vehicle is responsible for complying with the provisions of this section 
that pertain to carrying an open container. The operator of the vehicle 
is the person responsible for complying with the provisions of this 
section that pertain to the storage of an open container.
    (2) Carrying or storing a bottle, can, or other receptacle 
containing an alcoholic beverage that is open or has been opened, or 
whose seal is broken, or the contents of which have been partially 
removed, within a vehicle on an Agency installation is prohibited.
    (3) This section does not apply to:
    (i) An open container stored in the trunk of a vehicle or, if a 
vehicle is not equipped with a trunk, to an open container stored in 
some other portion of the vehicle designated for the storage of luggage 
and not normally occupied by or readily accessible to the operator or 
passenger; or
    (ii) An open container stored in the living quarters of a motor home 
or camper.
    (4) For the purpose of paragraph (a)(3)(i) of this section, a 
utility compartment or glove compartment is deemed to be readily 
accessible to the operator and passengers of a vehicle.
    (b) Operating under the influence of alcohol, drugs, or controlled 
substances. (1) Operating or being in actual physical control of a 
vehicle is prohibited while.
    (i) Under the influence of alcohol, drug or drugs, a controlled 
substance, or any combination thereof, to a degree that renders the 
operator incapable of safe operation; or
    (ii) The alcohol concentration in the operator's blood is 0.08 grams 
or more of alcohol per 100 milliliters of blood or 0.08 grams or more 
alcohol per 210 liters of breath. Provided, however, that if the 
applicable State law that applies to operating a vehicle while under the 
influence of alcohol establishes more restrictive limits of alcohol 
concentration in the operator's blood or breath, those limits supersede 
the limits specified in this section.
    (2) The provisions or paragraph (b)(1) of this section shall also 
apply to an operator who is or has been legally entitled to use alcohol 
or another drug.
    (3) Test. (i) At the request or direction of an authorized person 
who has probable cause to believe that an operator of a vehicle within 
an Agency installation has violated a provision of paragraph (b)(1) of 
this section, the operator shall submit to one or more tests of blood, 
breath, saliva, or urine for the purpose of determining blood alcohol, 
drug, and controlled substance content.
    (ii) Refusal by an operator to submit to a test is prohibited and 
may result in detention and citation by an authorized person. Proof of 
refusal many be admissible in any related judicial proceeding.

[[Page 359]]

    (iii) Any test or tests for the presence of alcohol, drugs, and 
controlled substances shall be determined by and administered at the 
direction of an officer of the Security Protective Service.
    (iv) Any test shall be conducted by using accepted scientific 
methods and equipment of proven accuracy and reliability and operated by 
personnel certified in its use.
    (4) Presumptive levels. (i) The results of chemical or other 
quantitative tests are intended to supplement the elements of probable 
cause used as the basis for the arrest of an operator charged with a 
violation of this section. If the alcohol concentration in the 
operator's blood or breath at the time of the testing is less than the 
alcohol concentration specified in paragraph (b)(1)(ii) of this section 
this fact does not give rise to any presumption that the operator is or 
is not under the influence of alcohol.
    (ii) The provisions of paragraph (b)(4)(i) of this section are not 
intended to limit the introduction of any other competent evidence 
bearing upon the question of whether the operator, at the time of the 
alleged violation, was under the influence of alcohol, a drug or drugs, 
or a controlled substance, or any combination thereof.

[63 FR 44786, Aug. 21, 1998; 64 FR 27041, May 18, 1999]



Sec.  1903.5  Enforcement of parking regulations.

    (a) A vehicle parked in any location without authorization, pursuant 
to a fraudulent, fabricated, copied or altered parking permit, or parked 
contrary to the directions of posted signs or markings, shall be subject 
to any penalties imposed by this section and the vehicle may be removal 
from the Agency installation a the owner's risk and expense. The Central 
Intelligence Agency assumes no responsibility for the payment of any 
fees or costs related to the removal and/or storage of the vehicle which 
may be charged to the owner of the vehicle by the towing organization.
    (b) The use, attempted use or possession of a fraudulent, 
fabricated, copied or altered parking permit is prohibited.
    (c) The blocking of entrances, driveways, sidewalks, paths, loading 
platforms, or fire hydrants on an Agency installation is prohibited.
    (d) This section may be supplemented or the applicability suspended 
from time to time by the Director of the Center for CIA Security, or by 
his or her designee, by the issuance and posting of such parking 
directives as may be required, and when so issued and posted, such 
directives shall the same force and effects as if made a part thereof.
    (e) Proof that a vehicle was parked in violation of the regulations 
of this section or directives may be taken as prima facie evidence that 
the registered owner was responsible for the violation.



Sec.  1903.6  Admission on to an Agency installation.

    (a) Access on to any Agency installation shall be controlled and 
restricted to ensure the orderly and secure conduct of Agency business. 
Admission on to an Agency installation or into a restricted area on an 
Agency installation shall be limited to Agency employees and other 
persons with proper authorization.
    (b) All persons entering on to or when on an Agency installation 
shall, when required and/or requested, produce and display proper 
identification to authorized persons.
    (c) All personal property, including but not limited to any 
packages, briefcases, other containers or vehicles brought on to, on, or 
being removed from an Agency installation are subject to inspection and 
search by authorized persons.
    (d) A full search of a person may accompany an investigative stop or 
an arrest.
    (e) Persons entering on to an Agency installation or into a 
restricted area who refuse to permit an inspection and search will be 
denied further entry and will be ordered to leave the Agency 
installation or restricted area pursuant to Sec.  1903.7(a) of this 
part.
    (f) All persons entering on to or when on any Agency installation 
shall comply with all official signs of a prohibitory, regulatory, or 
directory nature at all times while on the Agency installation.

[[Page 360]]

    (g) All persons entering on to or when on any Agency installation 
shall comply with the instructions or directions of authorized persons.



Sec.  1903.7  Trespassing.

    (a) Entering, or remaining on any Agency installation without proper 
authorization is prohibited. Failure to obey an order to leave given 
under this section by an authorized person, or reentry or attempted 
reentry onto the Agency installation after being ordered to leave or 
after being instructed not to reenter by an authorized person under this 
section is also prohibited.
    (b) Any person who violates the provisions of this part may be 
ordered to leave the Agency installation by an authorized person. A 
violator's reentry may also be prohibited.



Sec.  1903.8  Interfering with Agency functions.

    The following are prohibited:
    (a) Interference. Threatening, resisting, intimidating, or 
intentionally interfering with a government employee or agent engaged in 
an official duty, or on account of the performance of an official duty.
    (b) Violation of a lawful order. Violating the lawful order of an 
authorized person to maintain order and control, public access and 
movement during fire fighting operations, law enforcement actions, and 
emergency operations that involve a threat to public safety or 
government resources, or other activities where the control of public 
movement and activities is necessary to maintain order and public health 
or safety.
    (c) False information. Knowingly giving false information:
    (1) To an authorized person investigating an accident or violation 
of law or regulation; or
    (2) On an application for a permit.
    (d) False report. Knowingly giving a false report for the purpose of 
misleading an authorized person in the conduct of official duties, or 
making a false report that causes a response by the government to a 
fictitious event.



Sec.  1903.9  Explosives.

    (a) Using, possessing, storing, or transporting explosives, blasting 
agents, ammunition or explosive materials is prohibited on any Agency 
installation, except as authorized by the Director of the Center for CIA 
Security. When permitted, the use, possession, storage, and 
transportation shall be in accordance with applicable Federal and State 
laws, and shall also be in accordance with applicable Central 
Intelligence Agency rules and/or regulations.
    (b) Using, possessing, storing, or transporting items intended to be 
used to fabricate an explosive or incendiary device, either openly or 
concealed, except for official purposes is prohibited.



Sec.  1903.10  Weapons.

    (a) Except as provided in paragraph (c) of this section, knowingly 
possessing or causing to be present a weapon on an Agency installation, 
or attempting to do so is prohibited.
    (b) Knowingly possessing or causing to be present a weapon on an 
Agency installation, incident to hunting or other lawful purposes is 
prohibited.
    (c) This section does not apply--
    (1) Where Title 18 U.S.C. 930 applies;
    (2) To any person who has received authorization from the Director 
of the Center for CIA Security, or from his or her designee to possess, 
carry, transport, or use a weapon in support of the Agency's mission or 
for other lawful purposes as determined by the Director of the Center 
for CIA Security;
    (3) To the lawful performance of official duties by an officer, 
agent, or employee of the United States, a State, or a political 
subdivision thereof, who is authorized by law to engage in or supervise 
the prevention, detection, investigation, or prosecution of any 
violation of law; or
    (4) To the possession of a weapon by a Federal official or a member 
of the Armed Forces if such possession is authorized by law.



Sec.  1903.11  Restrictions on photographic, transmitting, and recording
equipment.

    (a) Except as otherwise authorized under this section, the following 
are prohibited on Agency installations:

[[Page 361]]

    (1) Possessing a camera, other visual or audio recording devices, or 
electronic transmitting equipment of any kind.
    (2) Carrying a camera, other visual or audio recording devices, or 
electronic transmitting equipment of any kind.
    (3) Using a camera, other visual or audio recording devices, or 
electronic transmitting equipment of any kind.
    (b) This section does not apply to any person using, possessing or 
storing a government or privately owned cellular telephone or pager 
while on any Agency installation. The Central Intelligence Agency may 
regulate or otherwise administratively control cellular telephones and 
pagers outside the provisions of this part.
    (c) This section does not apply to any officer, agent, or employee 
of the United States, a State, or a political subdivision thereof, who 
may enter on to an Agency installation to engage in or supervise the 
prevention, detection, investigation, or prosecution of any violation of 
law.
    (d) This section does not apply to any person who has received 
approval from the Director of the Center for CIA Security, or from his 
or her designee to carry, transport, or use a camera, other visual or 
audio recording devices, or electronic transmitting equipment while on 
an Agency installation.



Sec.  1903.12  Alcoholic beverages and controlled substance.

    (a) Alcoholic beverages. The possession, transportation of alcoholic 
beverages in closed containers and their consumption on an Agency 
installation will be administratively controlled by the Agency outside 
the provisions of this part.
    (b) Controlled substances. The following are prohibited on an Agency 
installation:
    (1) The delivery of a controlled substance, except when distribution 
is made by a licensed physician or pharmacist in accordance with 
applicable Federal or State law, or as otherwise permitted by Federal or 
State law. For the purpose of this paragraph, delivery means the actual, 
attempt, or constructive transfer of a controlled substance.
    (2) The possession of a controlled substance, unless such substance 
was obtained by the possessor directly from, or pursuant to a valid 
prescription or ordered by, a licensed physician or pharmacist, or as 
otherwise allowed by Federal or State law.



Sec.  1903.13  Intoxicated on an Agency installation.

    Presence on an Agency installation when under the influence of 
alcohol, a drug, or a controlled substance or a combination thereof to a 
degree that interferes with, impedes or hinders the performance of the 
official duties of any government employee, or damages government or 
personal property is prohibited.



Sec.  1903.14  Disorderly conduct.

    A person commits disorderly conduct when, with intent to cause 
public alarm, nuisance, jeopardy, or violence, or knowingly or 
recklessly creating a risk thereof, such person commits any of the 
following prohibited acts:
    (a) Engages in fighting or threatening, or in violent behavior.
    (b) Acts in a manner that is physically threatening or menacing, or 
acts in a manner that is likely to inflict injury or incite an immediate 
breach of peace.
    (c) Makes noises that are unreasonable considering the nature and 
purpose of the actor's conduct, location, time of day or night, and 
other factors that would govern the conduct of a reasonable prudent 
person under the circumstances.
    (d) Uses obscene language, an utterance, or gesture, or engages in a 
display or act that is obscene.
    (e) Impedes or threatens the security of persons or property, or 
disrupts the performance of official duties by employees, officers, 
contractors or visitors on an Agency installation or obstructs the use 
of areas on an Agency installation such as entrances, foyers, lobbies, 
corridors, concourses, offices, elevators, stairways, roadways, 
driveways, walkways, or parking lots.



Sec.  1903.15  Preservation of property.

    The following are prohibited:
    (a) Property Damage. Destroying or damaging private property.

[[Page 362]]

    (b) Theft. The theft of private property, except where Title 18 
U.S.C. 661 applies.
    (c) Creation of hazard. The creation of hazard to persons or things, 
the throwing of articles of any kind from or at buildings, vehicles, or 
persons while on an Agency installation.
    (d) Improper disposal. The improper disposal of trash or rubbish 
while on an Agency installation.



Sec.  1903.16  Restriction on animals.

    Animals, except for those animals used for the assistance of persons 
with disabilities, or animals under the charge and control of the 
Central Intelligence Agency, shall not be brought onto an Agency 
installation for other than official purposes.



Sec.  1903.17  Soliciting, vending, and debt collection.

    Commercial or political soliciting, vending of all kinds, displaying 
or distributing commercial advertising, collecting private debts or 
soliciting alms on any Agency installation is prohibited. This does not 
apply to:
    (a) National or local drives for funds for welfare, health, or other 
purposes as authorized by Title 5 CFR parts 110 and 950 as amended and 
sponsored or approved by the Director of Central Intelligence, or by his 
or her designee.
    (b) Personal notices posted on authorized bulletin boards and in 
compliance with Central Intelligence Agency rules governing the use of 
such authorized bulletin boards advertising to sell or rent property of 
Central Intelligence Agency employees or their immediate families.



Sec.  1903.18  Distribution of materials.

    Distributing, posting, or affixing materials, such as pamphlets, 
handbills, or flyers, on any Agency installation is prohibited except as 
authorized by Sec.  1903.17(b), or by other authorization from the 
Director of the Center for CIA Security, or from his or her designee.



Sec.  1903.19  Gambling.

    Gambling in any form, or the operation of gambling devices, is 
prohibited. This prohibition shall not apply to the vending or exchange 
of chances by licensed blind operators of vending facilities for any 
lottery set forth in a State law and authorized by the provisions of the 
Randolph-Sheppard Act (Title 20 U.S.C. 107 et seq.).



Sec.  1903.20  Penalties and effects on other laws.

    (a) Whoever shall be found guilty of violating any rule or 
regulation enumerated in this part is subject to the penalties imposed 
by Federal law for the commission of a Class B misdemeanor offense.
    (b) Nothing in this part shall be construed to abrogate or supersede 
any other Federal law or any non-conflicting State or local law, 
ordinance or regulation applicable to any location where the Agency 
installation is situated.



PART 1904_PROCEDURES GOVERNING ACCEPTANCE OF SERVICE OF PROCESS-
-Table of Contents



Sec.
1904.1 Scope and purpose.
1904.2 Definitions.
1904.3 Procedures governing acceptance of service of process.
1904.4 Notification to CIA Office of General Counsel.
1904.5 Authority of General Counsel.

    Authority: 50 U.S.C. 403g; 50 U.S.C. 403(d)(3); E.O. 12333 sections 
1.8(h), 1.8(i), 3.2.

    Source: 56 FR 41458, Aug. 21, 1991, unless otherwise noted.



Sec.  1904.1  Scope and purpose.

    (a) This part sets forth the limits of authority of CIA personnel to 
accept service of process on behalf of the CIA or any CIA employee.
    (b) This part is intended to ensure the orderly execution of the 
Agency's affairs and not to impede any legal proceeding.
    (c) CIA regulations concerning employee responses to demands for 
production of official information in proceedings before federal, state, 
or local government entities are set out in part 1905 of this chapter.



Sec.  1904.2  Definitions.

    (a) Agency or CIA means the Central Intelligence Agency and include 
all staff elements of the Director of Central Intelligence.

[[Page 363]]

    (b) Process means a summons, complaint, subpoena, or other official 
paper (except garnishment orders) issued in conjunction with a 
proceeding or hearing being conducted by a federal, state, or local 
governmental entity of competent jurisdiction.
    (c) Employee means any CIA officer, any staff, contract, or other 
employee of CIA, any person including independent contractors associated 
with or acting for or on behalf of CIA, and any person formerly having 
such a relationship with CIA.
    (d) General Counsel includes the Deputy General Counsel or Acting 
General Counsel.



Sec.  1904.3  Procedures governing acceptance of service of process.

    (a) Service of Process Upon the CIA or a CIA Employee in An Official 
Capacity--(1) Personal service. Unless otherwise expressly authorized by 
the General Counsel, or designee, personal service of process may be 
accepted only by attorneys of the Office of General Counsel at CIA 
Headquarters in Langley, Virginia.
    (2) Mail service. Where service of process by registered or 
certified mail is authorized by law, unless expressly directed otherwise 
by the General Counsel or designee, such process may only be accepted by 
attorneys of the Office of General Counsel. Process by mail should be 
addressed as follows: Litigation Division, Office of General Counsel, 
Central Intelligence Agency, Washington, DC 20505.
    (b) Service of Process Upon a CIA Employee Solely in An Individual 
Capacity--(1) General. Consistent with section 6 of the CIA Act of 1949, 
as amended, 50 U.S.C. 403g, CIA will not provide the name or address of 
any current or former employee of CIA to individuals or entities seeking 
to serve process upon such employee solely in his or her individual 
capacity, even where the matter is related to CIA activities.
    (2) Personal Service. Subject to the sole discretion of appropriate 
officials of the CIA, process servers generally will not be allowed to 
enter CIA facilities or premises for the purpose of serving process upon 
any CIA employee solely in his or her individual capacity. The Office of 
General Counsel is not authorized to accept service of process on behalf 
of a CIA employee--except the Director and Deputy Director of Central 
Intelligence--in his or her individual capacity.
    (3) Mail Service. Unless otherwise expressly authorized by the 
General Counsel, or designee, CIA personnel are not authorized to accept 
or forward mailed service of process directed to any CIA employee in his 
or her individual capacity. Any such process will be returned to the 
sender via appropriate postal channels.
    (c) Service of Process Upon a CIA Employee in A Combined Official 
and Individual Capacity. Unless expressly directed otherwise by the 
General Counsel, or designee, any process to be served upon a CIA 
employee in his or her combined official and individual capacity, in 
person or by mail, can be accepted only by attorneys of the Office of 
General Counsel at CIA Headquarters in Langley, Virginia.
    (d) The documents for which service is accepted in official capacity 
only shall be stamped ``Service Accepted in Official Capacity Only.'' 
Acceptance of service of process shall not constitute an admission or 
waiver with respect to jurisdiction, propriety of service, improper 
venue, or any other defense in law or equity available under the laws or 
rules applicable to the service of process.



Sec.  1904.4  Notification to CIA Office of General Counsel.

    A CIA employee who receives or has reason to expect service of 
process in an individual, official, or combined individual and official 
capacity, in a matter that may involve testimony or the furnishing of 
documents and that could reasonably be expected to involve Agency 
interests, shall promptly notify the Litigation Division, Office of 
General Counsel (703-874-3118). Such notification should be given prior 
to providing the requestor, counsel or other representative any Agency 
information, and prior to accepting service of process.



Sec.  1904.5  Authority of General Counsel.

    Any questions concerning interpretation of this regulation shall be 
referred

[[Page 364]]

to the Office of General Counsel for resolution.



PART 1905_PRODUCTION OF OFFICIAL RECORDS OR DISCLOSURE OF OFFICIAL 
INFORMATION IN PROCEEDINGS BEFORE FEDERAL, STATE OR LOCAL GOVERNMENTAL
ENTITIES OF COMPETENT JURISDICTION--Table of Contents



Sec.
1905.1 Scope and purpose.
1905.2 Definitions.
1905.3 General.
1905.4 Procedure for production.

    Authority: 5 U.S.C. 403(d)(3); 50 U.S.C. 403g; United States ex rel. 
Touhy v. Ragen, 340 U.S. 462 (1951); E.O. 12333 Sec. Sec.  1.8(i), 
1.5(h), 3.2; E.O. 12356; U.S. v. Snepp, 444 U.S. 507 (1980).

    Source: 56 FR 41459, Aug. 21, 1991, unless otherwise noted.



Sec.  1905.1  Scope and purpose.

    This part sets forth the policy and procedures with respect to the 
production or disclosure of (a) material contained in the files of CIA, 
(b) information relating to or based upon material contained in the 
files of CIA, and (c) information acquired by any person while such 
person was an employee of CIA as part of the performance of that 
person's official duties or because of that person's association with 
CIA.



Sec.  1905.2  Definitions.

    For the purpose of this part:
    (a) CIA or Agency means the Central Intelligence Agency and includes 
all staff elements of the Director of Central Intelligence.
    (b) Demand means any subpoena, order, or other legal summons (except 
garnishment orders) that is issued by a federal, state, or local 
governmental entity of competent jurisdiction with the authority to 
require a response on a particular matter, or a request for appearance 
of an individual where a demand could issue.
    (c) Employee means any officer, any staff, contract, or other 
employee of CIA; any person including independent contractors associated 
with or acting on behalf of CIA; and any person formerly having such a 
relationship with CIA.
    (d) Production or produce means the disclosure of:
    (1) Any material contained in the files of CIA; or
    (2) Any information relating to material contained in the files of 
CIA, including but not limited to summaries of such information or 
material, or opinions based on such information or material; or
    (3) Any information acquired by persons while such persons were 
employees of CIA as a part of the performance of their official duties 
or because of their official status or association with CIA;

in response to a demand upon an employee of CIA.
    (e) General Counsel includes the Deputy General Counsel or Acting 
General Counsel.



Sec.  1905.3  General.

    (a) No employee shall produce any materials or information in 
response to a demand without prior authorization as set forth in this 
part. This part applies to former employees to the extent consistent 
with applicable nondisclosure agreements.
    (b) This part is intended only to provide procedures for responding 
to demands for production of documents or information, and is not 
intended to, does not, and may not be relied upon to, create any right 
or benefit, substantive or procedural, enforceable by any party against 
the United States.



Sec.  1905.4  Procedure for production.

    (a) Whenever a demand for production is made upon an employee, the 
employee shall immediately notify the Litigation Division, Office of 
General Counsel, Central Intelligence Agency, Washington, DC 20505 (703/
874-3118), which shall follow the procedures set forth in this section.
    (b) The General Counsel of CIA and Deputy Directors or Heads of 
Independent Offices with responsibility for the information sought in 
the demand, or their designees, shall determine whether any information 
or materials may properly be produced in response to the demand, except 
that the Office of General Counsel may assert any and

[[Page 365]]

all legal defenses and objections to the demand available to CIA prior 
to the start of any search for information responsive to the demand. CIA 
may, in its sole discretion, decline to begin any search for information 
responsive to the demand until a final and non-appealable disposition of 
any such defenses and objections raised by CIA has been made by the 
entity or person that issued the demand.
    (c) CIA officials shall consider the following factors, among 
others, in reaching a decision:
    (1) Whether production is appropriate in light of any relevant 
privilege;
    (2) Whether production is appropriate under the applicable rules of 
discovery or the procedures governing the case or matter in which the 
demand arose; and
    (3) Whether any of the following circumstances apply:
    (i) Disclosure would violate a statute, including but not limited to 
the Privacy Act of 1974, as amended, 5 U.S.C. 552a;
    (ii) Disclosure would be inconsistent with the statutory 
responsibility of the Director of Central Intelligence to protect 
intelligence sources and methods;
    (iii) Disclosure would violate a specific CIA regulation or 
directive;
    (iv) Disclosure would reveal classified information;
    (v) Disclosure would improperly reveal trade secrets or proprietary 
confidential information without the owner's consent; or
    (vi) Disclosure would unduly interfere with the orderly conduct of 
CIA's functions.
    (d) If oral or written testimony is sought by a demand in a case or 
matter in which the CIA is not a party, a reasonably detailed 
description of the testimony sought, in the form of an affidavit or, if 
that is not feasible, a written statement, by the party seeking the 
testimony or by the party's attorney must be furnished to the CIA Office 
of General Counsel.
    (e) The Office of General Counsel shall be responsible for notifying 
the appropriate employees and other persons of all decisions regarding 
responses to demands and providing advice and counsel as to the 
implementation of such decisions.
    (f) If response to a demand is required before a decision is made 
whether to provide the documents or information sought by the demand, an 
attorney from the Office of General Counsel, after consultation with the 
Department of Justice, shall appear before and furnish the court or 
other competent authority with a copy of this Regulation and state that 
the demand has been or is being, as the case may be, referred for the 
prompt consideration of the appropriate CIA officials, and shall 
respectfully request the court or other authority to stay the demand 
pending receipt of the requested instructions.
    (g) If the court or other authority declines to stay the demand 
pending receipt of instructions in response to a request made in 
accordance with Sec.  1905.4(g), or rules that the demand must be 
complied with irrespective of instructions rendered in accordance with 
this part not to produce the material or disclose the information 
sought, the employee upon whom the demand has been made shall, if so 
directed by the General Counsel of CIA, or designee, respectfully 
decline to comply with the demand under the authority of United States 
ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), and this Regulation.
    (h) With respect to any function granted to CIA officials in this 
part, such officials are authorized to delegate in writing their 
authority in any case or matter or category thereof to subordinate 
officials.
    (i) Any nonemployee who receives a demand for the production or 
disclosure of CIA information acquired because of that person's 
association or contacts with CIA should notify CIA's Office of General 
Counsel, Litigation Division (703/874-3118) for guidance and assistance. 
In such cases the provisions of this regulation shall be applicable.



PART 1906_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN
PROGRAMS OR ACTIVITIES CONDUCTED BY THE CENTRAL INTELLIGENCE AGENCY-
-Table of Contents



Sec.
1906.101 Purpose.
1906.102 Application.

[[Page 366]]

1906.103 Definitions.
1906.104-1906.109 [Reserved]
1906.110 Self-evaluation.
1906.111 Notice.
1906.112-1906.129 [Reserved]
1906.130 General prohibitions against discrimination.
1906.131-1906.139 [Reserved]
1906.140 Employment.
1906.141-1906.148 [Reserved]
1906.149 Program accessibility: Discrimination prohibited.
1906.150 Program accessibility: Existing facilities.
1906.151 Program accessibility: New construction and alterations.
1906.152-1906.159 [Reserved]
1906.160 Communications.
1906.161-1906.169 [Reserved]
1906.170 Compliance procedures.

    Authority: 19 U.S.C. 794.

    Source: 57 FR 39610, Sept. 1, 1992, unless otherwise noted.



Sec.  1906.101  Purpose.

    The purpose of this part is to effectuate section 119 of the 
Rehabilitation, Comprehensive Services, and Developmental Disabilities 
Amendments of 1978, which amended section 504 of the Rehabilitation Act 
of 1973 to prohibit discrimination on the basis of handicap in programs 
or activities conducted by Executive agencies or the United States 
Postal Service.



Sec.  1906.102  Application.

    This part applies to all programs or activities conducted by the 
Agency except for programs or activities conducted outside the United 
States that do not involve handicapped persons in the United States. 
This regulation will apply to the Agency only to the extent consistent 
with the National Security Act of 1947 (50 U.S.C. 402 et seq.), as 
amended; the Central Intelligence Agency Act of 1949 (50 U.S.C. 403a et 
seq.), as amended; and other applicable law.



Sec.  1906.103  Definitions.

    For purposes of this part, the following terms means--
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the Agency. For example, auxiliary aids useful 
for persons with impaired vision include readers, materials in braille, 
audio recordings, and other similar services and devices. Auxiliary aids 
useful for persons with impaired hearing include telephone handset 
amplifiers, telephones compatible with hearing aids, telecommunication 
devices for deaf persons (TDD's), interpreters, notetakers, written 
materials, and other similar services and devices. The Central 
Intelligence Agency may prohibit from any of its facilities any 
auxiliary aid, or category of auxiliary aid, that the Office of Security 
(OS) determines creates a security risk or potential security risk. OS 
reserves the right to examine any auxiliary aid brought into an Agency 
facility.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the Agency's alleged 
discriminatory action in sufficient detail to inform the Agency of the 
nature and date of the alleged violation of section 504. It must be 
signed by the complainant or by someone authorized to do so on his or 
her behalf. Complaints filed on behalf of classes or third parties must 
describe or identify (by name, if possible) the alleged victims of 
discrimination.
    Director means the Director of Central Intelligence or an official 
or employee of the Agency acting for the Director under a delegation of 
authority.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances or other real or personal property.
    Individual with handicaps means 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. As used in this definition, the phrase--
    (1) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of

[[Page 367]]

the following body systems: Cardiovascular; Neurological; 
musculoskeletal; special sense organs; respiratory, including speech 
organs; reproductive; digestive; genitourinary; hemic and lymphatic; 
skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term ``physical or mental 
impairment'' includes, but is not limited to, such diseases and 
conditions as orthopedic, visual, speech, and hearing impairments, 
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, 
cancer, heart disease, diabetes, mental retardation, emotional illness, 
drug addiction, and alcoholism.
    (2) Major life activities includes 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 means 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 means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the Agency as constituting 
such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
the impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by the Agency as having such an impairment.
    Qualified individual with handicaps means--
    (1) With respect to any Agency program or activity under which a 
person is required to perform services or to achieve a level of 
accomplishment, an individual with handicaps who meets the essential 
eligibility requirements and who can achieve the purpose of the program 
or activity without modifications in the program or activity that the 
Agency can demonstrate would result in a fundamental alteration in its 
nature;
    (2) With respect to any other Agency program or activity, an 
individual with handicaps who meets the essential eligibility 
requirements for participation in, or receipt of benefits from, that 
program or activity; and
    (3) Qualified handicapped person as that term is defined for 
purposes of employment in 29 CFR 1613.702(f), which is made applicable 
to this part by Sec.  1906.140.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617); 
the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-002, 92 Stat. 2955); and the 
Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810). 
As used in this part, section 504 applies only to programs or activities 
conducted by the Agency and not to federally assisted programs.



Sec. Sec.  1906.104-1906.109  [Reserved]



Sec.  1906.110  Self-evaluation.

    (a) The Agency shall, within one year of the effective date of this 
part, evaluate its current policies and practices, and the effect 
thereof, that do not or may not meet the requirements of this part, and 
to the extent modification of any of those policies and practices is 
required, the Agency shall proceed to make the necessary modifications.
    (b) The Agency shall provide an opportunity to interested persons, 
including individuals with handicaps or organizations representing 
individuals with handicaps to participate in the self-evaluation process 
by submitting comments (both oral and written).
    (c) The Agency shall, for at least 3 years following completion of 
the self-evaluation, maintain on file, and make available for public 
inspection--
    (1) A description of areas examined and any problems identified; and
    (2) A description of any modifications made.

[[Page 368]]



Sec.  1906.111  Notice.

    The Agency shall make available, to employees, applicants, 
participants, beneficiaries, and other interested persons, such 
information regarding the provisions of this part and its applicability 
to the programs or activities conducted by the Agency, and make that 
information available to them in such manner as the Director finds 
necessary to apprise those persons of the protections against 
discrimination assured them by section 504 and the regulations in this 
part.



Sec. Sec.  1906.112-1906.129  [Reserved]



Sec.  1906.130  General prohibitions against discrimination.

    (a) No qualified individual with handicaps shall, on the basis of 
handicap, be excluded from participation in, be denied the benefits of, 
or otherwise be subjected to discrimination under, any program or 
activity conducted by the Agency.
    (b)(1) The Agency, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of handicap:
    (i) Deny a qualified individual with handicap the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Deny a qualified individual with handicaps an opportunity to 
obtain the same result, to gain the same benefit, to reach the same 
level of achievement as that provided to others;
    (iii) Provide a qualified individual with handicaps with an aid, 
benefit, or service that is not as effective in affording equal 
opportunity to obtain the same result, to gain the same benefit, or to 
reach the same level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
individuals with handicaps or to any class of individuals with handicaps 
than is provided to others unless that action is necessary to provide 
qualified individuals with handicaps with aid, benefits, or services 
that are as effective as those provided to others;
    (v) Deny a qualified individual with handicaps the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified individual with handicaps in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving the aid, benefit, or service.
    (2) The Agency may not deny a qualified individual with handicaps 
the opportunity to participate in programs or activities that are not 
separate or different, despite the existence of permissibly separate or 
different programs or activities.
    (3) The Agency may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified individuals with handicaps to discrimination 
on the basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to individuals with handicaps.
    (4) The Agency may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude individuals with handicaps from, deny them the benefits 
of, or otherwise subject them to discrimination under, any program or 
activity conducted by the Agency; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to individuals with 
handicaps.
    (5) The Agency, in the selection of procurement contractors, may not 
use criteria that subject qualified individuals with handicaps to 
discrimination on the basis of handicap.
    (6) The Agency may not administer a licensing or certification 
program in a manner that subjects qualified individuals with handicaps 
to discrimination on the basis of handicap, nor may the Agency establish 
requirements for the programs or activities of licensees or certified 
entities that subject qualified individuals with handicaps to 
discrimination on the basis on handicap. However, the programs or 
activities of entities that are licensed or certified by the Agency are 
not, themselves, covered by this part.

[[Page 369]]

    (c) The exclusion of nonhandicapped persons from the benefits or a 
program limited by Federal statute or Executive Order to individuals 
with handicaps or the exclusion of a specific class of individuals with 
handicaps from a program limited by Federal statute or Executive Order 
to a different class of individuals with handicaps is not prohibited by 
this part.
    (d) The Agency shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified individuals 
with handicaps.



Sec. Sec.  1906.131-1906.139  [Reserved]



Sec.  1906.140  Employment.

    No qualified individual with handicaps shall, solely on the basis of 
handicap, be subjected to discrimination in employment under any program 
or activity conducted by the Agency. The definitions, requirements, and 
procedures of section 501 of the Rehabilitation Act of 1979 (29 U.S.C. 
791), as established by the Equal Employment Opportunity Commission in 
29 CFR part 1613, shall apply to employment in federally conducted 
programs or activities.



Sec. Sec.  1906.141-1906.148  [Reserved]



Sec.  1906.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec.  1906.150, no qualified 
individual with handicaps shall, because the Agency's facilities are 
inaccessible to or unusable by individuals with handicaps, be denied the 
benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the Agency.



Sec.  1906.150  Program accessibility: Existing facilities.

    (a) General. The Agency shall operate each program or activity so 
that the program or activity, viewed in its entirety, is readily 
accessible to and usable by individuals with handicaps. This program 
does not--
    (1) Necessarily require the Agency to make each of its existing 
facilities accessible to and usable by individuals with handicaps;
    (2)(i) Require the Agency to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens.
    (ii) The Agency has the burden of proving that compliance with Sec.  
1906.150(a) would result in that alteration or those burdens.
    (iii) The decision that compliance would result in that alteration 
or those burdens must be made by the Director after considering all of 
the Agency's resources available for use in the funding and operation of 
the conducted program or activity, and must be accompanied by a written 
statement of the reasons for reaching that conclusion.
    (iv) If an action would result in that alteration or those burdens, 
the Agency shall take any other action that would not result in the 
alteration or burdens but would nevertheless ensure that individuals 
with handicaps receive the benefits and services of the program or 
activity.
    (b) Methods. (1) The Agency may comply with the requirements of this 
section through such means as redesign of equipment, reassignment of 
services to accessible buildings, assignment of aides to beneficiaries, 
home visits, delivery of services at alternate accessible sites, 
alteration of existing facilities and construction of new facilities, 
use of accessible rolling stock, or any other methods that result in 
making its programs or activities readily accessible to and usable by 
individuals with handicaps.
    (2) The Agency is not required to make structural changes in 
existing facilities if other methods are effective in achieving 
compliance with this section.
    (3) The Agency, in making alterations to existing buildings, shall 
meet accessibility requirements to the extent compelled by the 
Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), 
and any regulations implementing that Act.
    (4) In choosing among available methods for meeting the requirements 
of this section, the Agency shall give priority to those methods that 
offer

[[Page 370]]

programs and activities to qualified individuals with handicaps in the 
most integrated setting appropriate.
    (c) Time period for compliance. The Agency shall comply with the 
obligations established under this section within 60 days of the 
effective date of this part except that if structural changes in 
facilities are undertaken, the changes shall be made within 3 years of 
the effective date of this part, but in any event as expeditiously as 
possible.
    (d) Transition plan. (1) In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
Agency shall develop, within 6 months of the effective date of this 
part, a transition plan setting forth the steps necessary to complete 
those changes.
    (2) The Agency shall provide an opportunity to interested persons, 
including individuals with handicaps or organizations representing 
individuals with handicaps, to participate in the development of the 
transition plan by submitting comments (both oral and written). A copy 
of the transition plan must be made available for public inspection.
    (3) The plan must, at a minimum--
    (i) Identify physical obstacles in the Agency's facilities that 
limit the accessibility of its programs or activities to individuals 
with handicaps;
    (ii) Describe in detail the methods that will be used to make the 
facilities accessible;
    (iii) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (iv) Indicate the official responsible for implementation of the 
plan.



Sec.  1906.151  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of, the Agency shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
individuals with handicaps. The definitions, requirements, and standards 
of the Architectural Barriers Act of 1968 (42 U.S.C. 4151-4175), as 
established in 41 CFR 101-19.600 to 101-19-607, apply to buildings 
covered by this section.



Sec. Sec.  1906.152-1906.159  [Reserved]



Sec.  1906.160  Communications.

    (a) The Agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public as follows:
    (1)(i) The Agency shall furnish appropriate auxiliary aids if 
necessary to afford an individual with handicaps an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the Agency.
    (ii) In determining what type of auxiliary aid is necessary, the 
Agency shall give primary consideration to the requests of the 
individual with handicaps.
    (2) Where the Agency communicates with applicants and beneficiaries 
by telephone, telecommunication devices for deaf persons (TDD's) or 
equally effective telecommunication systems shall be used to communicate 
with persons with impaired hearing.
    (b) The Agency shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The Agency shall provide signage at a primary entrance to each 
of its inaccessible facilities, directing users to a location at which 
they can obtain information about accessible facilities. The 
international symbol for accessibility shall be used at each primary 
entrance of an accessible facility.
    (d) This section does not require the Agency to take any action that 
it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and administrative 
burdens. In those circumstances where Agency personnel believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the Agency 
has the burden of proving that compliance with Sec.  1906.160 would 
result in such alteration or burdens.

[[Page 371]]

The decision that compliance would result in such alteration or burdens 
must be made by the Agency head or his or her designee after considering 
all Agency resources available for use in the funding and operation of 
the conducted program or activity and must be accompanied by a written 
statement of the reasons for reaching that conclusion. If an action 
required to comply with this section would result in such an alteration 
or such burdens, the Agency shall take any other action that would not 
result in such an alteration or such burdens but would nevertheless 
ensure that, to the maximum extent possible, individuals with handicaps 
receive the benefits and services of the program or activity.



Sec. Sec.  1906.161-1906.169  [Reserved]



Sec.  1906.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
handicap in programs and activities conducted by the Agency.
    (b) The Agency shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791).
    (c) The Director, Office of Equal Employment Opportunity, is 
responsible for coordinating implementation of this section. Complaints 
may be sent to Central Intelligence Agency, Director, Office of Equal 
Employment Opportunity, Washington, DC 20505.
    (d) The Agency shall accept and investigate all complete complaints 
for which it has jurisdiction. All complete complaints must be filed 
within 180 days of the alleged act of discrimination. The Agency may 
extend this time period for good cause.
    (e) If the Agency receives a complaint over which it does not have 
jurisdiction, it shall promptly notify the complainant and shall make 
reasonable efforts to refer the complaint to the appropriate government 
entity.
    (f) The Agency shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157) is not readily accessible to 
and usable by individuals with handicaps.
    (g) Within 180 days of the receipt of a complete complaint for which 
it has jurisdiction, The Agency shall notify the complainant of the 
results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within 90 days of receipt from 
the Agency of the letter required by Sec.  1906.170(g). The Agency may 
extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the Director.
    (j) The Agency shall notify the complainant of the results of the 
appeal within 60 days of the receipt of the request. If the Agency 
determines that it needs additional information from the complainant, it 
shall have 60 days from the date it receives the additional information 
to make its determination on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section 
may be extended with the permission of the Assistant Attorney General.
    (l) The Director may delegate the authority for conducting complaint 
investigations to other Federal agencies, except that the authority for 
making the final determination may not be delegated.



PART 1907_CHALLENGES TO CLASSIFICATION OF DOCUMENTS BY AUTHORIZED HOLDERS
PURSUANT TO SEC. 1.8 OF EXECUTIVE ORDER 13526--Table of Contents



                                 General

Sec.
1907.01 Authority and purpose.
1907.02 Definitions.
1907.03 Contact for general information and requests.
1907.04 Suggestions and complaints.

[[Page 372]]

                          Filing of Challenges

1907.11 Prerequisites.
1907.12 Requirements as to form.
1907.13 Identification of material at issue.
1907.14 Transmission.

                          Action on Challenges

1907.21 Exceptions.
1907.22 [Reserved]
1907.23 Designation of authority to hear challenges.
1907.24 Initial determination.
1907.25 Action on appeal of initial Agency determination.
1907.26 Prohibition on adverse action.

                             Right of Appeal

1907.31 Right of appeal.

    Authority: Executive Order 13526 75 FR 707, 3 CFR 2010 Comp., P. 
298-327; section 102 of the National Security Act of 1947; section 6 of 
the CIA Act of 1949.

    Source: 62 FR 32494, June 16, 1997, unless otherwise noted.

                                 General



Sec.  1907.01  Authority and purpose.

    (a) Authority: This Part is issued under the authority of and in 
order to implement section 1.8 of E.O. 13526, section 102 of the 
National Security Act of 1947, and section 6 of the CIA Act of 1949.
    (b) Purpose: This part prescribes procedures for non-Agency 
personnel who are authorized holders of CIA information, to challenge 
the classification status, whether classified or unclassified, based on 
a good faith belief that the current status of CIA information is 
improper. This part and section 1.8 of Executive Order 13526 confer no 
rights upon members of the general public or individuals who are not 
authorized holders of CIA information.

[76 FR 59031, Sept. 23, 2011]



Sec.  1907.02  Definitions.

    For purposes of this part, the following terms have the meanings as 
indicated:
    (a) Agency or CIA means the United States Central Intelligence 
Agency acting through the CIA Information and Privacy Coordinator;
    (b) Authorized holder means anyone who has satisfied the conditions 
for access to classified information stated in section 4.1(a) of 
Executive Order 13526 and who has been granted access to such 
information; the term does not include anyone authorized such access by 
section 4.4 of Executive Order 13526.
    (c) Ddays means calendar days when the Agency is operating and 
specifically excludes Saturdays, Sundays, and legal public holidays. 
Three (3) days may be added to any time limit imposed on a requester by 
this CFR part if responding by U.S. domestic mail; ten (10) days may be 
added if responding by international mail;
    (d) Challenge means a request in the individual's official, not 
personal, capacity and in furtherance of the interests of the United 
States;
    (e) Control means ownership or the authority of the CIA pursuant to 
federal statute or privilege to regulate official or public access to 
records;
    (f) Coordinator means the CIA Information and Privacy Coordinator 
acting in the capacity of Executive Secretary of the Agency Release 
Panel;
    (g) Information means any knowledge that can be communicated or 
documentary material, regardless of its physical form, that is:
    (1) Owned by, produced by or for, or under the control of the United 
States Government, and
    (2) Lawfully and actually in the possession of an authorized holder 
and for which ownership and control has not been relinquished by the 
CIA;
    (h) Interested party means any official in the executive, military, 
congressional, or judicial branches of government, United States or 
foreign, or U.S. Government contractor who, in the sole discretion of 
the CIA, has a subject matter or physical interest in the documents or 
information at issue;
    (i) Originator means the CIA officer who originated the information 
at issue, or successor in office, or a CIA officer who has been 
delegated declassification authority for the information at issue in 
accordance with the provisions of this Order;
    (j) The Order means Executive Order 13526 of December 29, 2009 and 
published at 75 FR 707 (or successor Orders).
    (k) Chief, Classification Management and Collaboration Group refers 
to the Agency official authorized to make the

[[Page 373]]

initial Agency determination with respect to a challenge of the 
classification status of CIA information.
    (l) Agency Release Panel refers to the Agency's forum for reviewing 
information review and release policy, the adequacy of resources 
available to all Agency declassification and release programs, and 
hearing appeals in accordance with this section.

[62 FR 32494, June 16, 1997, as amended at 76 FR 59031, Sept. 23, 2011]



Sec.  1907.03  Contact for general information and requests.

    For information on this part or to file a challenge under this part, 
please direct your inquiry to the Executive Secretary, Agency Release 
Panel, Central Intelligence Agency, Washington, DC 20505. The commercial 
(non-secure) telephone is (703) 613-1287; the classified (secure) 
telephone for voice and facsimile is (703) 613-3007.



Sec.  1907.04  Suggestions and complaints.

    The Agency welcomes suggestions or complaints with regard to its 
administration of the Executive Order. Letters of suggestion or 
complaint should identify the specific purpose and the issues for 
consideration. The Agency will respond to all substantive communications 
and take such actions as determined feasible and appropriate.

                          Filing of Challenges



Sec.  1907.11  Prerequisites.

    The Central Intelligence Agency has established liaison and 
procedures with many agencies for declassification issues. Prior to 
reliance on this Part, authorized holders are required to first exhaust 
such established administrative procedures for the review of classified 
information. Further information on these procedures is available from 
the point of contact, see 32 CFR 1907.03.



Sec.  1907.12  Requirements as to form.

    The challenge shall include identification of the challenger by full 
name, Executive Branch agency, title of position, and information 
required for verification of access, security clearance, and status as 
an authorized holder of the CIA information in question. In addition, 
the challenger must clearly identify documents or portions of documents 
at issue and identify and describe the reasons why it is believed that 
the information is improperly classified. The challenge, itself, must be 
properly marked and classified and, in this regard, the authorized 
holder must assume the current classification status and marking of the 
information is correct until determined otherwise unless the challenger 
asserts that the information marked unclassified should be classified or 
that the information should be classified at a higher level, in which 
case the challenger should mark the challenge and related documents at 
the asserted classification level.

[76 FR 59031, Sept. 23, 2011]



Sec.  1907.13  Identification of material at issue.

    Authorized holders shall append the documents at issue and clearly 
mark those portions subject to the challenge. If information not in 
documentary form is in issue, the challenge shall state so clearly and 
present or otherwise refer with specificity to that information in the 
body of the challenge.



Sec.  1907.14  Transmission.

    Authorized holders must direct challenge requests to the CIA as 
specified in Sec.  1907.03. The classified nature of the challenge, as 
well as the appended documents, require that the holder transmit same in 
full accordance with established security procedures. In general, 
registered U.S. mail is approved for SECRET, non-compartmented material; 
higher classifications require use of approved Top Secret facsimile 
machines or CIA-approved couriers. Further information is available from 
the CIA as well as corporate or other federal agency security 
departments.

                          Action on Challenges



Sec.  1907.21  Exceptions.

    (a) Documents required to be submitted for prepublication review or 
other administrative process pursuant to an approved nondisclosure 
agreement is not covered by this section.
    (b) Whenever the Agency receives a classification challenge to 
information that has been the subject of a challenge

[[Page 374]]

within the past two years, the Agency is not required to process the 
challenge beyond informing the challenger of this fact and the prior 
review decision; advising the challenger of the right to appeal a final 
Agency decision to the Interagency Security Classification Appeals Panel 
(ISCAP); and informing the challenger that if they wish to exercise this 
right, they must do so through Chief, Classification Management and 
Collaboration Group who will then forward the appeal to the ISCAP.
    (c) The Agency is not required to process classification challenges 
to information that is the subject of pending litigation. If the 
information that is the subject of a challenge falls into this category, 
the Agency will take no action on the challenge and will notify the 
challenger of this fact within 10 business days.

[76 FR 59031, Sept. 23, 2011]



Sec.  1907.22  [Reserved]



Sec.  1907.23  Designation of authority to hear challenges.

    (a) Chief, Classification Management and Collaboration Group shall 
be responsible for the initial Agency decision in a classification 
challenge.
    (b) Agency Release Panel (ARP). Appeals of denials of classification 
challenges shall be reviewed by the ARP which shall issue the final 
Agency decision in accordance with 1907.25(c).
    (c) ARP membership: The ARP is chaired by the Chief, Information 
Review and Release Group and composed of the Information Review Officers 
from the various Directorates and the Director, Central Intelligence 
Agency area, as well as the representatives of the various release 
programs and offices. The Information and Privacy Coordinator also 
serves as Executive Secretary of the Panel.

[76 FR 59032, Sept. 23, 2011]



Sec.  1907.24.  Initial determination.

    (a) Formal challenges shall be directed to the CIA Information and 
Privacy Coordinator (Coordinator) who shall promptly forward the 
challenge to the C/CMCG for action. The C/CMCG shall be responsible for 
the administrative processing of the challenge consistent with this 
section.
    (b) Within 10 business days of receipt of a challenge, the 
Coordinator shall record the receipt of the challenge and provide the 
challenger with written acknowledgement of the Agency's receipt.
    (c) Except as provided in paragraph (d) of this section, the Agency 
shall render an initial written response to a challenge within 60 
business days of receipt.
    (d) If the C/CMCG determines that the Agency is unable to respond 
with a determination within 60 business days of receipt of the 
challenge, C/CMCG will inform the Coordinator who will provide the 
challenger with written notice of the date by which the Agency will 
respond and a statement that if no Agency response is received within 
120 business days, the challenger has the right to have the challenge 
forwarded to the ISCAP, and may exercise this right through C/CMCG who 
will then forward the challenge to ISCAP.
    (e) The C/CMCG, after consultation with the originator of the 
information and other parties shall inform the Coordinator of the 
initial decision on the challenge and the Coordinator shall promptly 
inform the challenger of the decision in writing and inform the 
challenger of the right to appeal to the ARP if the challenge was 
denied.

[76 FR 59032, Sept. 23, 2011]



Sec.  1907.25  Action on appeal of initial Agency determination.

    (a) The challenger may, within 45 calendar days of receiving notice 
of a denial of the challenge, appeal the denial to the ARP by sending 
the appeal and any supplementary information in support of the challenge 
to the Executive Secretary of the ARP (ES/ARP).
    (b) Within 10 business days of receipt of an appeal, the ES/ARP will 
record receipt, provide the challenger with written acknowledgement, and 
forward the appeal to C/CMCG, the appropriate IMTOs, originator, and 
other appropriate parties, who shall review the appeal and related 
materials, and within 30 business days provide a written recommendation 
to the ARP.
    (c) The ARP shall meet on a regular schedule and may take action 
when a

[[Page 375]]

simple majority of the total membership is present. Issues shall be 
decided by a majority of the members present. In all cases of a divided 
vote, before the decision of the ARP becomes final, any member of the 
ARP may by written memorandum to the ES/ARP, refer such matters to the 
Director, Information Management Services (D/IMS) for decision. In the 
event of a disagreement with any decision by D/IMS related to the 
classification challenge, Directorate heads may appeal to the Associate 
Deputy Director, CIA (ADD) for resolution. The final Agency decision 
shall reflect the vote of the ARP, unless changed by the D/IMS or the 
ADD.
    (d) The ES/ARP shall promptly provide the challenger with written 
notice of the final Agency decision and, if the appeal is denied, inform 
the challenger of the right to appeal to the ISCAP through C/CMCG, who 
will forward the appeal to the ISCAP.

[76 FR 59032, Sept. 23, 2011]



Sec.  1907.26  Prohibition on adverse action.

    Agency correspondence to the challenger shall include a notice that 
CIA will take no adverse action or retribution against the challenger 
for bringing the classification challenge in good faith.

[76 FR 59032, Sept. 23, 2011]

                             Right of Appeal



Sec.  1907.31  Right of appeal.

    A right of appeal may be available to the ISCAP established pursuant 
to section 5.3 of the Order. Action by that body will be the subject of 
rules to be promulgated by the Information Security Oversight Office.

[76 FR 59032, Sept. 23, 2011]



PART 1908_PUBLIC REQUESTS FOR MANDATORY DECLASSIFICATION REVIEW OF 
CLASSIFIED INFORMATION PURSUANT TO SEC. 3.5 OF EXECUTIVE ORDER 13526-
-Table of Contents



                                 General

Sec.
1908.01 Authority and purpose.
1908.02 Definitions.
1908.03 Contact for general information and requests.
1908.04 Suggestions and complaints.

       Filing of Mandatory Declassification Review (MDR) Requests

1908.11 Preliminary information.
1908.12 Exceptions.
1908.13 Fees.
1908.14 Fees.

                      Agency Action on MDR Requests

1908.21 Receipt, recording, and tasking.
1908.22 [Reserved]
1908.23 Determination by originator or interested party.
1908.24 [Reserved]

                      Agency Action on MDR Appeals

1908.31 Requirements as to time and form.
1908.32 Receipt, recording, and tasking.
1908.33 Determination by Deputy Director(s).
1908.34 Establishment of appeals structure.
1908.35 [Reserved]
1908.36 Notification of decision and right of further appeal.

                             Further Appeals

1908.41 Right of further appeal.

    Authority: Executive Order 13526 75 FR 707, 3 CFR 2010 Comp., p. 
298-327 (or successor orders).

    Source: 62 FR 32495, June 16, 1997, unless otherwise noted.

                                 General



Sec.  1908.01  Authority and purpose.

    (a) Authority: This part is issued under the authority of and in 
order to implement section 3.5 of E.O. 13526 (or successor Orders); the 
CIA Information Act of 1984), as amended (50 U.S.C. 431; section 102 of 
the National Security Act of 1947, as amended (50 U.S.C. 403); and 
section 6 of the CIA Act of 1949, as amended (5 U.S.C. 403g).
    (b) Purpose: This part prescribes procedures, subject to limitations 
set forth below, for members of the public to request a declassification 
review of information classified under the Executive Order 13526 or 
predecessor Orders. Section 3.5 of Executive Order 13526 and these 
regulations are not intended to and do not create any right or benefit, 
substantive or procedural, enforceable at law by a party against the 
United

[[Page 376]]

States, its agencies, officers, employees, or agents, or any other 
person.

[76 FR 59033, Sept. 23, 2011]



Sec.  1908.02  Definitions.

    For purposes of this part, the following terms have the meanings as 
indicated:
    (a) Agency or CIA means the United States Central Intelligence 
Agency acting through the CIA Information and Privacy Coordinator;
    (b) Days means calendar days when the Agency is operating and 
specifically excludes Saturdays, Sundays, and legal public holidays. 
Three (3) days may be added to any time limit imposed on a requester by 
this part if responding by U.S. domestic mail; ten (10) days may be 
added if responding by international mail;
    (c) Control means ownership or the authority of the CIA pursuant to 
Federal statute or privilege to regulate official or public access to 
records;
    (d) Coordinator means the CIA Information and Privacy Coordinator 
who serves as the Agency manager of the information review and release 
program instituted under the mandatory declassification review 
provisions of Executive Order 13526;
    (e) Federal agency means any executive department, military 
department, or other establishment or entity included in the definition 
of agency in 5 U.S.C. 552(f);
    (f) Information means any knowledge that can be communicated or 
documentary material, regardless of its physical form that is owned by, 
produced by or for, or under the control of the United States 
Government; it does not include:
    (1) Information within the scope of the CIA Information Act, or
    (2) Information originated by the incumbent President, White House 
Staff, appointed committees, commissions or boards, or any entities 
within the Executive Office that solely advise and assist the incumbent 
President;
    (g) Interested party means any official in the executive, military, 
congressional, or judicial branches of government, United States or 
foreign, or U.S. Government contractor who, in the sole discretion of 
the CIA, has a subject matter or physical interest in the documents or 
information at issue;
    (h) NARA means the National Archives and Records Administration;
    (i) Originator means the CIA officer who originated the information 
at issue, or successor in office, or a CIA officer who has been 
delegated declassification authority for the information at issue in 
accordance with the provisions of this Order;
    (j) Presidential libraries means the libraries or collection 
authorities established by statute to house the papers of former 
Presidents Hoover, Roosevelt, Truman, Eisenhower, Kennedy, Nixon, Ford, 
Carter, Reagan, Bush and similar institutions or authorities as may be 
established in the future;
    (k) Referral means coordination with or transfer of action to an 
interested party;
    (l) The Order means Executive Order 13526 of December 29, 2009 and 
published at 75 FR 707 (or successor Orders);
    (m) Agency Release Panel (ARP) refers to the Agency's forum for 
reviewing information review and release policy, the adequacy of 
resources available to all Agency declassification and release programs, 
and hearing appeals in accordance with this section.

[62 FR 32495, June 16, 1997, as amended at76 FR 59033, Sept. 23, 2011]



Sec.  1908.03  Contact for general information and requests.

    For general information on this part or to request a 
declassification review, please direct your communication to the 
Information and Privacy Coordinator, Central Intelligence Agency, 
Washington, DC 20505. Such inquiries will also be accepted by facsimile 
at (703) 613-3007. For general or status information only, the telephone 
number is (703) 613-1287. Collect calls cannot be accepted.



Sec.  1908.04  Suggestions and complaints.

    The Agency welcomes suggestions, comments, or complaints with regard 
to its administration of the mandatory declassification review program 
established under Executive Order 13526. Members of the public shall 
address such communications to the CIA Information and Privacy 
Coordinator. The

[[Page 377]]

Agency will respond as determined feasible and appropriate under the 
circumstances.

       Filing of Mandatory Declassification Review (MDR) Requests



Sec.  1908.11  Preliminary information.

    Members of the public shall address all communications to the point 
of contact specified above and clearly delineate the communication as a 
request under this regulation. Requests and appeals on requests received 
from members of the public who owe outstanding fees for information 
services under this Order or the Freedom of Information Act at this or 
another federal agency will not be accepted until such debts are 
resolved.



Sec.  1908.12  Exceptions.

    Mandatory Declassification Review requests will not be accepted from 
an individual who is not a citizen of the United States or an alien 
lawfully admitted for permanent residence, nor from a foreign government 
entity or any representative thereof. Declassification review requests 
will not be accepted for documents required to be submitted for 
prepublication review or other administrative process pursuant to an 
approved nondisclosure agreement; for information that is the subject of 
pending litigation; nor for any document or material containing 
information contained within an operational file exempted from search 
and review, publication, and disclosure under the Freedom of Information 
Act. If the Agency has reviewed the requested information for 
declassification within the past two years, the Agency will not conduct 
another review, but the Coordinator will notify requester of this fact, 
the prior review decision, and of applicable appeal rights pursuant to 
section 3.5(e) of the Order.

[76 FR 59033, Sept. 23, 2011]



Sec.  1908.13  Requirements as to form.

    The request shall describe the document or material containing the 
information with sufficient specificity to enable the Agency to locate 
it with a reasonable amount of effort.

[76 FR 59033, Sept. 23, 2011]



Sec.  1908.14  Fees.

    (a) Form of payment. Fees may be paid in cash, by a check drawn on 
or money order made payable to the Treasurer of the United States.
    (b) Reproduction fees. Requesters submitting requests via NARA or 
the various Presidential libraries or making requests directly to this 
Agency shall be responsible for reproduction costs as follows: Fifty 
cents per page and $10.00 per CD. There is a minimum fee of $15.00 per 
request for reproductions.
    (c) Search and review fees. Requesters making requests directly to 
this agency also shall be liable for search and review fees as follows.
    (d) Search fees. Applicable fees will be due even if our search 
locates no responsive information or some or all of the responsive 
information must be withheld under applicable authority.
    (e) Computer searching. (1) Clerical/Technical--$20.00 per hour (or 
fraction thereof).
    (2) Professional/Supervisory--$40.00 per hour (or fraction thereof).
    (3) Manager/Senior Professional--$72.00 per hour (or fraction 
thereof).
    (f) Manual searching. (1) Clerical/Technical--$20.00 per hour (or 
fraction thereof).
    (2) Professional/Supervisory--$40.00 per hour (or fraction thereof).
    (3) Manager/Senior Professional--$72.00 per hour (or fraction 
thereof).
    (g) Document review. (1) Professional/Supervisory--$40.00 per hour 
(or fraction thereof).
    (2) Manager/Senior Professional--$72.00 per hour (or fraction 
thereof).
    (3) CIA will not charge review fees for time spent resolving general 
legal or policy issues regarding the responsive information.

[76 FR 59033, Sept. 23, 2011]



Sec.  1908.21  Receipt, recording, and tasking.

    The Information and Privacy Coordinator shall within ten (10) days 
record each mandatory declassification review request received under 
this part, acknowledge receipt to the requester in

[[Page 378]]

writing (if received directly from a requester), and shall thereafter 
task the originator and other interested parties. Additional taskings, 
as required during the review process, shall be accomplished within ten 
(10) days of notification.



Sec.  1908.22  [Reserved]



Sec.  1908.23  Determination by originator or interested party.

    (a) In general. The originator of the classified information 
(document) is a required party to any mandatory declassification review 
request; other interested parties may become involved through a referral 
by the Coordinator when it is determined that some or all of the 
information is also within their official cognizance.
    (b) Required determinations: These parties shall respond in writing 
to the Coordinator with a finding as to the classified status of the 
information, including the category of protected information as set 
forth in section 1.4 of the Order, and, if older than ten years, the 
basis for the extension of classification time under sections 1.5 and 
3.3 of the Order. These parties shall also indicate whether withholding 
is otherwise authorized and warranted in accordance with sections 3.5(c) 
and 6.2(d) of the Order.
    (c) Time. This response shall be provided expeditiously on a 
``first-in, first-out'' basis taking into account the business 
requirements of the originator or interested parties and consistent with 
the information rights of members of the general public under the 
Freedom of Information Act and the Privacy Act.

[62 FR 32495, June 16, 1997, as amended at76 FR 59034, Sept. 23, 2011]



Sec.  1908.24  [Reserved]



Sec.  1908.31  Requirements as to time and form.

    Appeals of decisions must be received by the Coordinator within 
forty-five (45) days of the date of mailing of the Agency's initial 
decision. It shall identify with specificity the documents or 
information to be considered on appeal and it may, but need not, provide 
a factual or legal basis for the appeal.



Sec.  1908.32  Receipt, recording, and tasking.

    The Coordinator shall promptly record each appeal received under 
this part, acknowledge receipt to the requester, and task the originator 
and other interested parties. Additional taskings, as required during 
the review process, shall be accomplished within ten (10) days of 
notification.



Sec.  1908.33  Designation of authority to hear appeals.

    (a) Appeals: Appeals of initial denial decisions under the Mandatory 
Declassification Request provisions of Executive Order 13526 shall be 
reviewed by the Agency Release Panel, which shall issue the final Agency 
decision.
    (b) Membership: The Agency Release Panel (ARP) is chaired by the 
Chief, Information Review and Release Group and composed of the 
Information Review Officers from the various Directorates and the 
Director, Central Intelligence Agency area, as well as the 
representatives of the various release programs and offices. The 
Information and Privacy Coordinator also serves as Executive Secretary 
of the ARP.
    (c) Decisions: The ARP shall meet on a regular schedule and may take 
action when a simple majority of the total membership is present. Issues 
shall be decided by a majority of the members present. Any member of the 
ARP disagreeing with the results of a vote may appeal the decision in 
writing to the Director, Information Management Services (D/IMS). The 
appeal shall set forth clearly and concisely the reasons D/IMS should 
reverse the ARP's decision. Upon receiving the written appeal, D/IMS 
shall have ten business days to affirm or reverse, in writing the APR's 
decision and shall so notify the appellant. In the event of a 
disagreement with any declassification and release decision by D/IMS, 
Directorate heads may appeal to the Associate Deputy Director of CIA 
(ADD) for resolution. The final Agency decision shall reflect the vote 
of the ARP, unless changed by the D/IMS or the ADD.

[76 FR 59034, Sept. 23, 2011]

[[Page 379]]



Sec.  1908.34  Establishment of appeals structure.

    (a) In general. Two administrative entities have been established by 
the Director of Central Intelligence to facilitate the processing of 
administrative appeals under the mandatory declassification review 
provisions of this Order. Their membership, authority, and rules of 
procedure are as follows.
    (b) Historical Records Policy Board (``HRPB'' or ``Board''). This 
Board, the successor to the CIA Information Review Committee, acts as 
the senior corporate board in the CIA on all matters of information 
review and release. It is composed of the Executive Director, who serves 
as its Chair, the Deputy Director for Administration, the Deputy 
Director for Intelligence, the Deputy Director for Operations, the 
Deputy Director for Science and Technology, the General Counsel, the 
Director of Congressional Affairs, the Director of the Public Affairs 
Staff, the Director, Center for the Study of Intelligence, and the 
Associate Deputy Director for Administration/Information Services, or 
their designees. The Board, by majority vote, may delegate to one or 
more of its members the authority to act on any appeal or other matter 
or authorize the Chair to delegate such authority, as long as such 
delegation is not to the same individual or body who made the initial 
denial. The Executive Secretary of the HRPB is the Director, Information 
Management. The Chair may request interested parties to participate when 
special equities or expertise are involved.
    (c) Agency Release Panel (``ARP'' or ``Panel''). The HRPB, pursuant 
to its delegation of authority, has established a subordinate Agency 
Release Panel. This Panel is composed of the Director, Information 
Management, who serves as its Chair; the Information Review Officers 
from the Directorates of Administration, Intelligence, Operations, 
Science and Technology, and the Director of Central Intelligence Area; 
the CIA Information and Privacy Coordinator; the Chief, Historical 
Review Group; the Chair, Publications Review Board; the Chief, Records 
Declassification Program; and representatives from the Offices of 
General Counsel and Congressional Affairs, and the Public Affairs Staff. 
The Information and Privacy Coordinator also serves as the Executive 
Secretary of the Panel. The Panel advises and assists the HRPB on all 
information release issues, monitors the adequacy and timeliness of 
Agency releases, sets component search and review priorities, reviews 
adequacy of resources available to and planning for all Agency release 
programs, and performs such other functions as deemed necessary by the 
Board. The Chair may request interested parties to participate when 
special equities or expertise are involved. The Panel, functioning as a 
committee of the whole or through individual members, will make final 
Agency decisions from appeals of initial denial decisions under E.O. 
12958. Issues not resolved by the Panel will be referred by the Panel to 
the HRPB. Matters decided by the Panel or Board will be deemed a final 
decision by the Agency.



Sec.  1908.35  [Reserved]



Sec.  1908.36  Notification of decision and right of further appeal.

    The Executive Secretary of the Agency Release Panel shall promptly 
prepare and communicate the final Agency decision to the requester, 
NARA, or the particular Presidential Library. That correspondence shall 
include a notice, if applicable, that an appeal of the decision may be 
made to the Interagency Security Classification Appeals Panel (ISCAP) 
established pursuant to section 5.3 of the Order.

[76 FR 59034, Sept. 23, 2011]

                             Further Appeals



Sec.  1908.41  Right of further appeal.

    A right of further appeal may be available to the Interagency 
Security Classification Appeals Panel established pursuant to section 
5.3 of the Order. Action by that Panel will be the subject of rules to 
be promulgated by the Information Security Oversight Office.

[76 FR 59034, Sept. 23, 2011]

[[Page 380]]



PART 1909_ACCESS TO CLASSIFIED CIA INFORMATION BY HISTORICAL RESEARCHERS
AND CERTAIN FORMER GOVERNMENT PERSONNEL PURSUANT TO SEC. 4.4 OF EXECUTIVE
ORDER 13526--Table of Contents



Sec.
1909.1 Authority and purpose.
1909.2 Definitions.
1909.3 Contact for general information and requests.
1909.4 Suggestions and complaints.
1909.5 Requirements as to who may apply.
1909.6 Designation of authority to waive need-to-know and grant 
          historical access requests.
1909.7 Receipt, recording, and tasking.
1909.8 Determinations on requests for access by former Presidents and 
          Vice Presidents, former Presidential and Vice Presidential 
          appointees or designees, and historical researchers.
1909.9 Action by the ARP.
1909.10 Final CIA decision.
1909.11 Notification of decision.
1909.12 Termination of access.

    Authority: Executive Order 13526, 75 FR 707, 3 CFR 2010 Comp., p. 
298-327 (or successor Orders).

    Source: 81 FR 64063, Sept. 19, 2016, unless otherwise noted.



Sec.  1909.1  Authority and purpose.

    (a) Authority. This part is issued under the authority of and in 
order to implement section 4.4 of Executive Order 13526, as amended (or 
successor Orders); section 1.6 of Executive Order 12333, as amended (or 
successor Orders); section 102A of the National Security Act of 1947, as 
amended; and section 6 of the Central Intelligence Agency Act of 1947, 
as amended.
    (b) Purpose. This part prescribes procedures for waiving the need-
to-know requirement for access to classified information with respect to 
persons:
    (1) Requesting access to classified CIA information as historical 
researchers;
    (2) Requesting access to classified CIA information as a former 
Presidential or Vice Presidential appointee or designee; or
    (3) Requesting access to classified CIA information as a former 
President or Vice President.



Sec.  1909.2  Definitions.

    As used in this part:
    Agency Release Panel or Panel or ARP means the CIA Agency Release 
Panel established pursuant to part 1900 of this chapter.
    CIA means the Unites States Central Intelligence Agency.
    Control means ownership or the authority of the CIA pursuant to 
Federal statute or legal privilege to regulate official or public access 
to records.
    Coordinator means the CIA Information and Privacy Coordinator who 
serves as the CIA manager of the historical access process established 
pursuant to section 4.4 of the Order.
    Days means business days. Three (3) days may be added to any time 
limit imposed on a requester by this part if responding by U.S. domestic 
mail; ten (10) days may be added if responding by international mail;
    Director of Security means the CIA official responsible for making 
determinations regarding all security and access approvals and 
overseeing execution of the necessary secrecy, nondisclosure, and/or 
prepublication review agreements as may be required.
    Former Presidential or Vice Presidential appointee or designee means 
any person who has previously occupied a senior policy-making position 
in the Executive branch of the United States Government to which they 
were appointed or designated by the current or a former President or 
Vice President.
    Historical researcher means any individual with professional 
training in the academic field of history (or related fields such as 
journalism) engaged in a historical research project that is intended 
for publication (or any similar activity such as academic course 
development) and that is reasonably intended to increase the 
understanding of the American public regarding the operations and 
activities of the United States Government. This term also means anyone 
selected by a former President or Vice President, or by a former 
Presidential or Vice Presidential appointee or designee, to assist them 
in historical research as a research associate.

[[Page 381]]

    Information means any knowledge that can be communicated or 
documentary material, regardless of its physical form that is owned by, 
produced by or for, or is under the control of the United States 
Government.
    Interested party means any official in the executive, congressional, 
or judicial branches of government, United States or foreign, or U.S. 
Government contractor who, in the sole discretion of the CIA, has a 
subject matter or physical interest in the documents or information at 
issue;
    Originator means the CIA officer who originated the information at 
issue, or successor in office, or a CIA officer who has been delegated 
declassification authority for the information at issue in accordance 
with the provisions of the Order.
    Order means Executive Order 13526 of December 29, 2009 and published 
at 75 FR 707 (or successor Orders).
    Senior Agency Official means the official designated by the DCIA 
under section 5.4(d) of the Order to direct and administer the CIA's 
program under which information is classified, safeguarded, and 
declassified.



Sec.  1909.3  Contact for general information and requests.

    For general information on this part, to inquire about access to CIA 
information under this part, or to make a formal request for such 
access, please direct your communication in writing to the Information 
and Privacy Coordinator, Central Intelligence Agency, Washington, DC 
20505. Inquiries will also by accepted by facsimile at (703) 613-3007. 
For general information only, the telephone number is (703) 613-1287. 
Collect calls cannot be accepted.



Sec.  1909.4  Suggestions and complaints.

    The CIA welcomes suggestions, comments, or complaints with regard to 
its administration of the historical access provisions of Executive 
Order 13526. Members of the public shall address all such communications 
to the CIA Information and Privacy Coordinator. The CIA will respond as 
determined feasible and appropriate under the circumstances.



Sec.  1909.5  Requirements as to who may apply.

    (a) Historical researchers--(1) In general. Any historical 
researcher as defined above may submit a request in writing to the 
Coordinator to be given access to classified information for purposes of 
that research. Any such request shall indicate the nature, purpose, and 
scope of the research project.
    (2) Additional considerations. In light of the very limited Agency 
resources, it is the policy of the Agency to consider applications for 
access by historical researchers (other than research associates) only 
in those instances where the researcher's needs cannot be satisfied 
through requests for access to reasonably described records under the 
Freedom of Information Act or the mandatory declassification review 
provisions of Executive Order 13526, and where issues of internal 
resource availability and fairness to all members of the historical 
research community militate in favor of a particular grant.
    (b) Former Presidential and Vice Presidential appointees or 
designees. Any former Presidential or Vice Presidential appointee or 
designee as defined herein may also submit a request to be given access 
to any classified items which they originated, reviewed, signed, or 
received while serving in that capacity. Requests from such appointees 
or designees shall be in writing to the Coordinator and shall identify 
the records containing the classified information of interest. Such 
appointees or designees may also request approval for a research 
associate, but there is no entitlement to such enlargement of access and 
the decision in this regard shall be in the sole discretion of the 
Senior Agency Official.
    (c) Former Presidents and Vice Presidents. Any former President or 
Vice President may submit a request for access to classified CIA 
information. Requests from former Presidents or Vice Presidents shall be 
in writing to the Coordinator and shall identify the records containing 
the classified information of interest. A former President or Vice 
President may also request approval for a research associate, but there 
is no entitlement to such enlargement of access and the decision in

[[Page 382]]

this regard shall be in the sole discretion of the Senior Agency 
Official



Sec.  1909.6  Designation of authority to waive need-to-know and grant
historical access requests.

    (a) The Agency Release Panel (ARP) is designated to review requests 
and shall issue a recommendation to the Senior Agency Official who shall 
issue the final CIA decision whether or not to waive the need-to-know 
and grant requests for access by historical researchers, by former 
Presidential and Vice Presidential appointees and designees, or by 
former Presidents and Vice Presidents under Executive Order 13526 (or 
successor Orders) and these regulations.
    (b) ARP Membership. The ARP is chaired by the Director, Information 
Management Services and composed of the Chief, Information Review and 
Release Group, the Chief, Classification Management Program Office, the 
Information Review Officers from the various Directorates and the DCIA 
area, as well as the representatives of the various release programs and 
offices within CIA. The Information and Privacy Coordinator also serves 
as Executive Secretary of the ARP.



Sec.  1909.7  Receipt, recording, and tasking.

    The Information and Privacy Coordinator shall within ten (10) days 
make a record of each request for access received under this part, 
acknowledge receipt to the requester in writing, and take the following 
actions:
    (a) Compliance with general requirements. The Coordinator shall 
review each request under this part and determine whether it meets the 
general requirements as set forth in Sec.  1909.5 and notify the 
requester that the request has been accepted for consideration if it 
does. If it does not, the Coordinator shall so notify the requester and 
explain the basis for this decision and any steps that can be taken to 
perfect the request.
    (b) Action on requests meeting general requirements. For requests 
which meet the requirements of Sec.  1909.5, the Coordinator shall 
thereafter task the Director, Center for the Study of Intelligence, the 
originator(s) of the information for which access is sought, and other 
interested parties to review the request and provide their input 
concerning whether or not the required determinations set forth in Sec.  
1909.8 can be made. Additional taskings may be directed as required 
during the review process.



Sec.  1909.8  Determinations on requests for access by former Presidents
and Vice Presidents, former Presidential and Vice Presidential appointees
or designees, and historical researchers.

    (a) Required determinations for former Presidents and Vice 
Presidents. In order to recommend approval of an access request made by 
a former President or Vice President, the ARP must make the following 
determinations in writing:
    (1) That the access is consistent with the interest of national 
security;
    (2) That a nondisclosure agreement has been or will be executed by 
the requester and other appropriate steps are taken to assure that 
classified information will not be disclosed or otherwise compromised;
    (3) That a CIA prepublication review agreement has been or will be 
executed by the requester which provides for a review of notes and any 
resulting manuscript; and,
    (4) That appropriate steps can be taken to ensure that the 
information is safeguarded in a manner consistent with Executive Order 
13526.
    (b) Required determinations for former Presidential and Vice 
Presidential appointees or designees. In order to recommend approval of 
an access request made by a former Presidential or Vice Presidential 
appointee or designee, the ARP must make the following determinations in 
writing:
    (1) That the requester has previously occupied a senior policy-
making position to which the requester was appointed or designated by 
the President or Vice President;
    (2) That the access is consistent with the interest of national 
security;
    (3) That a nondisclosure agreement has been or will be executed by 
the requester and other appropriate steps are taken to assure that 
classified information will not be disclosed or otherwise compromised;

[[Page 383]]

    (4) That a CIA prepublication review agreement has been or will be 
executed by the requester which provides for a review of notes and any 
resulting manuscript;
    (5) That appropriate steps can be taken to ensure that the 
information is safeguarded in a manner consistent with Executive Order 
13526; and,
    (6) That access will be limited to items that the person originated, 
reviewed, signed, or received while serving as a Presidential or Vice 
Presidential appointee or designee.
    (c) Required determinations for a research associate of a former 
President or Vice President, or of a former Presidential or Vice 
Presidential appointee or designee. In order to recommend approval of a 
request for historical access by a research associate, the ARP must make 
the following determinations in writing:
    (1) That the requester has been selected as a research associate of 
a former President or Vice President, or of a Presidential or Vice 
Presidential appointee or designee;
    (2) That the access is consistent with the interest of national 
security, and one factor in that determination is that an appropriate 
security check has been conducted and a security clearance or access has 
been issued by an appropriate U.S. Government agency;
    (3) That a nondisclosure agreement has been or will be executed by 
the requester and other appropriate steps are taken to assure that 
classified information will not be disclosed or otherwise compromised;
    (4) That a CIA prepublication review agreement has been or will be 
executed by the requester which provides for a review of notes and any 
resulting manuscript;
    (5) That appropriate steps can be taken to ensure that the 
information is safeguarded in a manner consistent with Executive Order 
13526; and,
    (6) That, in the case of a former Presidential or Vice Presidential 
appointee or designee, access by the research associate will be limited 
to items that the Presidential or Vice Presidential appointee or 
designee who selected the research associate originated, reviewed, 
signed, or received while serving as a Presidential or Vice Presidential 
appointee or designee.
    (d) Required determinations for a historical researcher (other than 
a research associate). In order to recommend approval of an access 
request made by a historical researcher (other than a research associate 
to which paragraph (c) of this section applies) the ARP must make the 
following determinations in writing:
    (1) That a serious professional or scholarly research project by the 
requester is contemplated;
    (2) That the access is consistent with the interest of national 
security, and one factor in that determination is that an appropriate 
security check has been conducted and a security clearance or access has 
been issued by an appropriate U.S. Government agency;
    (3) That a nondisclosure agreement has been or will be executed by 
the requester, and other appropriate steps are taken to assure that 
classified information will not be disclosed or otherwise compromised;
    (4) That a CIA prepublication review agreement has been or will be 
executed by the requester, which provides for a review of notes and any 
resulting manuscript;
    (5) That the information requested is reasonably accessible and can 
be located and compiled with a reasonable effort;
    (6) That it is reasonably expected that substantial and substantive 
Government documents and/or information will be amenable to 
declassification and release and/or publication;
    (7) That sufficient resources are available for the administrative 
support of the historical researcher given current requirements; and,
    (8) That the request cannot be satisfied to the same extent through 
requests for access to reasonably described records under the Freedom of 
Information Act or the Mandatory Declassification Review provisions of 
Executive Order 13526.



Sec.  1909.9  Action by the ARP.

    The ARP shall meet on a regular schedule and may take action when a 
simple majority of the total membership is present. A recommendation to 
the Senior Agency Official concerning

[[Page 384]]

whether or not to grant requests for access to classified CIA 
information by former Presidents or Vice Presidents, by former 
Presidential or Vice Presidential appointees or designees, or by 
historical researchers shall be made by a majority vote of the members 
present.



Sec.  1909.10  Final CIA decision.

    (a) Upon receipt of a recommendation by the ARP concerning whether 
or not to grant access to classified CIA information under this part, 
the Senior Agency Official may, in his sole discretion, waive the need-
to-know requirement and approve such access only if he or she:
    (1) Determines in writing that access is consistent with the 
interests of national security;
    (2) Takes appropriate steps to protect classified information from 
unauthorized disclosure or compromise and ensures that the information 
is safeguarded in a manner consistent with Executive Order 13526; and,
    (3) Limits any access granted to former Presidential or Vice 
Presidential appointees and designees (or any research associate they 
select) to the items that the former Presidential or Vice Presidential 
appointee or designee originated, reviewed, signed, or received while 
serving in that capacity.
    (b) The Director of the Central Intelligence Agency reserves the 
authority to make a superseding decision concerning whether or not to 
waive the need-to-know requirement and to grant access to classified CIA 
information under this part in any case only if he or she:
    (1) Determines in writing that access is consistent with the 
interests of national security;
    (2) Takes appropriate steps to protect classified information from 
unauthorized disclosure or compromise, and ensures that the information 
is safeguarded in a manner consistent with Executive Order 13526; and,
    (3) Limits any historical access granted to former Presidential or 
Vice Presidential appointees and designees (or any research associate 
they select) to the items that the former Presidential or Vice 
Presidential appointee or designee originated, reviewed, signed, or 
received while serving in that capacity.
    (c) The Senior Agency Official also may make a determination that a 
successive request for historical access falls within the scope of an 
earlier waiver of the ``need-to-know'' criterion under section 4.4 of 
the Order, so long as the extant waiver is no more than two years old.



Sec.  1909.11  Notification of decision.

    The Executive Secretary shall inform the requester of the final CIA 
decision and, if favorable, shall manage the access for such period of 
time as deemed required, but in no event for more than two years unless 
renewed by the Senior Agency Official, in accordance with the 
requirements of this part for waiving need-to-know and granting access 
in the first instance.



Sec.  1909.12  Termination of access.

    The Coordinator shall cancel any authorization and deny any further 
access whenever the Director of Security cancels the security clearance 
of any person who has been granted access to classified CIA information 
under the part; or whenever the Senior Agency Official, or the Director 
of the Central Intelligence Agency, determines that continued access 
would no longer be consistent with the requirements of this part; or at 
the conclusion of the authorized period of up to two years if there is 
no renewal under Sec.  1909.11.



PART 1910_DEBARMENT AND SUSPENSION PROCEDURES--Table of Contents



    Authority: 50 U.S.C. 401-442; 50 U.S.C. 403a-403u; 48 CFR ch. 1, 
subpart 9.4.



Sec.  1910.1  General.

    The Central Intelligence Agency (CIA), in accordance with its 
authorities under the Central Intelligence Agency Act of 1949, as 
amended, and the National Security Act of 1947, as amended, has an 
established debarment and suspension process in accordance with subpart 
9.402(d) of the Federal Acquisition Regulation (FAR). This process and 
the causes for debarment and suspension are consistent with those found 
in FAR 9.406 and 9.407. The rights

[[Page 385]]

of CIA contractors in all matters involving debarment and suspension are 
hereby governed by the provisions of subpart 9.4 of the FAR.

[69 FR 63064, Oct. 29, 2004]



PART 1911_SPECIAL PROCEDURES FOR DISCRETIONARY ACCESS TO CLASSIFIED 
HISTORICAL CENTRAL INTELLIGENCE AGENCY RECORDS REQUESTED BY OTHER FEDERAL
AGENCIES--Table of Contents



Sec.
1911.1 Authority and purpose.
1911.2 Definitions.
1911.3 Applicability.
1911.4 Federal agency requests for access and processing procedures.

    Authority: 50 U.S.C. 3001 et seq.; 50 U.S.C. 3141 et seq.; Executive 
Order 13526, 75 FR 707, 3 CFR 2010 Comp., p. 298-327, (or successor 
Orders); Executive Order 12333, 40 FR 235, 3 CFR 1981 Comp., p. 200 (or 
successor Orders).

    Source: 81 FR 52591, Aug. 9, 2016, unless otherwise noted.



Sec.  1911.1  Authority and purpose.

    (a) Authority. This part is issued under the authority of the 
National Security Act of 1947, as amended, the Central Intelligence 
Agency Act of 1949, as amended, Executive Order 13526 (or successor 
Orders), and section 1.6 of Executive Order 12333, as amended (or 
successor Orders).
    (b) Purpose. This part prescribes procedures for providing, as a 
matter of discretion, appropriately cleared staff and contractor 
personnel of other Federal agencies with access to classified historical 
CIA records that their agency has requested when such access is not 
expressly required by statute.



Sec.  1911.2  Definitions.

    As used in this part:
    Agency Release Panel (ARP) means the CIA Agency Release Panel set 
forth in part 1900 of this chapter.
    CIA means the United States Central Intelligence Agency.
    Control means ownership or the authority of the CIA pursuant to 
Federal statute or privilege to regulate official or public access to 
records.
    Federal agency means any executive department, military department 
or other establishment or entity included in the definition of agency in 
5 U.S.C. 552(f).
    Information means any knowledge that can be communicated or 
documentary material, regardless of its physical form that is owned by, 
produced by or for, or is under the control of the United States 
Government.
    Interested party means any official in the executive, military, 
congressional, or judicial branches of government, United States or 
foreign, or under U.S. Government contract who, in the sole discretion 
of the CIA, has a subject matter or physical interest in the documents 
or information at issue.
    Records mean records as defined by 44 U.S.C. 3301.



Sec.  1911.3  Applicability.

    This part does not apply to requests for access to current 
information or finished intelligence that is routinely disseminated to 
other Federal agencies in support of the CIA's intelligence, 
counterintelligence, or special activities responsibilities, or for 
administrative purposes. This part applies to special requests for 
access to classified historical CIA records in furtherance of historical 
research and not expressly required by statute that fall outside of the 
regular channels and procedures that CIA has already established to 
provide information to U.S. Government customers. Examples include, but 
are not limited to, a Federal agency, including a branch of the 
military, conducting research in preparation for the production of a set 
of historical studies, an official agency history, or a review of past 
military activities, that require access to classified historical CIA 
records.



Sec.  1911.4  Federal agency requests for access and processing procedures.

    (a) Federal agency requests. Cleared staff and contractor personnel, 
working for a Federal agency, and seeking access to classified CIA 
historical records in an official capacity, shall send the request to 
the CIA Information and Privacy Coordinator (Coordinator) identifying 
the particular records needed, the purpose for which the records are 
needed, whether declassification of the information contained

[[Page 386]]

in the records will be required, and the position and security 
clearances or security approvals held by the requester.
    (b) Special procedures. The Coordinator shall review the request and 
solicit input from the Director of the Center for the Study of 
Intelligence and other interested parties concerning whether or not the 
required determinations set forth in paragraph (c) of this section can 
be made. After considering any input received, the Coordinator will 
either make or not make the determinations set forth in paragraph (c), 
in consultation with the ARP, and forward the request and the 
Coordinator's recommendation to the Chief, Information Review and 
Release Group (IRRG), Information Management Services for decision on 
whether or not to provide the access requested. A negative determination 
by the Chief of IRRG shall be reviewed by the Director, Information 
Management Services, who shall issue the final CIA decision whether or 
not to grant the request for access.
    (c) Determinations. As a condition precedent for access, the 
Coordinator must make all of the following determinations with respect 
to each request:
    (1) That the requester is a current staff employee or contractor of 
the U.S. Government;
    (2) That the requester is currently cleared, or security approved, 
for access to classified information and that the specific clearance or 
security approval and access levels of that individual has been 
officially recorded;
    (3) That the scope of the request for information is clearly 
delineated;
    (4) That the information requested is reasonably accessible and can 
be located and compiled with a reasonable effort;
    (5) That a nondisclosure agreement with a prepublication review 
clause has been executed by the requester;
    (6) That all notes and any resulting document will be appropriately 
safeguarded, that further access will be appropriately limited, and that 
no further dissemination of information such as that marked ORCON 
(Dissemination and Extraction of Information Controlled by Originator) 
or HUMINT (Human Intelligence) shall be made beyond the requesting 
agency unless CIA permission is obtained;
    (7) That if the resulting document containing CIA information or 
equities is intended to be declassified, the document will be submitted 
to the Coordinator for declassification review;
    (8) That the information and documents will remain classified until 
a final declassification review and release decision is made by CIA; 
and,
    (9) That the request for access is an official agency request, made 
in the requester's official capacity on behalf of the requester's 
agency.
    (d) Limitations. (1) With respect to requests for access to CIA 
information and equities residing outside of CIA, upon a favorable CIA 
determination in accordance with paragraph (c) of this section, the CIA 
will notify both the requester and the agency holding the records with 
CIA equities. The requester will need to follow the access requirements 
of the agency holding the records in addition to any access requirements 
mandated by CIA.
    (2) If access to classified historical CIA records is granted, as a 
rule, such access shall be provided on CIA premises only. No copies of 
any classified historical CIA records shall be provided to the requester 
for reference and use on requester premises without the express approval 
of the Director, Information Management Services. In exceptional cases, 
if the provision of classified CIA historical records to the requester 
for reference and use on requester premises is permitted, the classified 
CIA historical records provided shall not be disclosed or disseminated 
beyond the requesting agency, and shall be returned to CIA or destroyed 
when use of the records has ended. Similarly, any notes taken that are 
derived from classified historical CIA records that have been accessed 
in accordance with this part shall not be disclosed or disseminated 
beyond the requesting agency.

                       PARTS 1912	1999 [RESERVED]

[[Page 387]]



CHAPTER XX--INFORMATION SECURITY OVERSIGHT OFFICE, NATIONAL ARCHIVES AND 
                         RECORDS ADMINISTRATION




  --------------------------------------------------------------------
Part                                                                Page
2000

Administrative procedures [Reserved]

2001            Classified national security information....         389
2002            Controlled unclassified information (CUI)...         433
2003            Interagency Security Classification Appeals 
                    Panel (ISCAP) bylaws, rules, and appeal 
                    procedures..............................         453
2004            National Industrial Security Program (NISP).         459
2005-2099

 [Reserved]

[[Page 389]]

             PART 2000_ADMINISTRATIVE PROCEDURES [RESERVED]



PART 2001_CLASSIFIED NATIONAL SECURITY INFORMATION--Table of Contents



                         Subpart A_Scope of Part

Sec.
2001.1 Purpose and scope.

                        Subpart B_Classification

2001.10 Classification standards.
2001.11 Original classification authority.
2001.12 Duration of classification.
2001.13 Classification prohibitions and limitations.
2001.14 Classification challenges.
2001.15 Classification guides.
2001.16 Fundamental classification guidance review.

                  Subpart C_Identification and Markings

2001.20 General.
2001.21 Original classification.
2001.22 Derivative classification.
2001.23 Classification marking in the electronic environment.
2001.24 Additional requirements.
2001.25 Declassification markings.
2001.26 Automatic declassification exemption markings.

                       Subpart D_Declassification

2001.30 Automatic declassification.
2001.31 Systematic declassification review.
2001.32 Declassification guides.
2001.33 Mandatory review for declassification.
2001.34 Referrals.
2001.35 Discretionary declassification.
2001.36 Classified information in the custody of private organizations 
          or individuals.
2001.37 Assistance to the Department of State.

                         Subpart E_Safeguarding

2001.40 General.
2001.41 Responsibilities of holders.
2001.42 Standards for security equipment.
2001.43 Storage.
2001.44 Reciprocity of use and inspection of facilities.
2001.45 Information controls.
2001.46 Transmission.
2001.47 Destruction.
2001.48 Loss, possible compromise, or unauthorized disclosure.
2001.49 Special access programs.
2001.50 Telecommunications, automated information systems, and network 
          security.
2001.51 Technical security.
2001.52 Emergency authority.
2001.53 Open storage areas.
2001.54 Foreign government information.
2001.55 Foreign disclosure of classified information.

                       Subpart F_Self-Inspections

2001.60 General.

                Subpart G_Security Education and Training

2001.70 General.
2001.71 Coverage.

                        Subpart H_Standard Forms

2001.80 Prescribed standard forms.

                   Subpart I_Reporting and Definitions

2001.90 Agency annual reporting requirements.
2001.91 Other agency reporting requirements.
2001.92 Definitions.

    Authority: Sections 5.1(a) and (b), E.O. 13526, (75 FR 707, January 
5, 2010).

    Source: 75 FR 37254, June 28, 2010, unless otherwise noted.



                         Subpart A_Scope of Part



Sec.  2001.1  Purpose and scope.

    (a) This part is issued under Executive Order. (E.O.) 13526, 
Classified National Security Information (the Order). Section 5 of the 
Order provides that the Director of the Information Security Oversight 
Office (ISOO) shall develop and issue such directives as are necessary 
to implement the Order.
    (b) The Order provides that these directives are binding on 
agencies. Section 6.1(a) of the Order defines ``agency'' to mean 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 comes into the possession of classified 
information.
    (c) For the convenience of the user, the following table provides 
references between the sections contained in this part and the relevant 
sections of the Order.

------------------------------------------------------------------------
                                               Related section of E.O.
                CFR section                             13526
------------------------------------------------------------------------
2001.10 Classification standards..........  1.1, 1.4

[[Page 390]]

 
2001.11 Original classification authority.  1.3
2001.12 Duration of classification........  1.5
2001.13 Classification prohibitions and     1.7
 limitations.
2001.14 Classification challenges.........  1.8
2001.15 Classification guides.............  2.2
2001.16 Fundamental classification          1.9
 guidance review.
2001.20 General...........................  1.6
2001.21 Original classification...........  1.6(a)
2001.22 Derivative classification.........  2.1
2001.23 Classification marking in the       1.6
 electronic environment.
2001.24 Additional requirements...........  1.6
2001.25 Declassification markings.........  1.5, 1.6, 3.3
2001.26 Automatic declassification          3.3
 exemption markings.
2001.30 Automatic declassification........  3.3, 3.7
2001.31 Systematic declassification review  3.4
2001.32 Declassification guides...........  3.3, 3.7
2001.33 Mandatory review for                3.5, 3.6
 declassification.
2001.34 Referrals.........................  3.3, 3.6, 3.7
2001.35 Discretionary declassification....  3.1
2001.36 Classified information in the       none
 custody of private organizations or
 individuals.
2001.37 Assistance to the Department of     none
 State.
2001.40 General...........................  4.1
2001.41 Responsibilities of holders.......  4.1
2001.42 Standards for security equipment..  4.1
2001.43 Storage...........................  4.1
2001.44 Reciprocity of use and inspection   4.1
 of facilities.
2001.45 Information controls..............  4.1, 4.2
2001.46 Transmission......................  4.1, 4.2
2001.47 Destruction.......................  4.1, 4.2
2001.48 Loss, possible compromise, or       4.1, 4.2
 unauthorized disclosure.
2001.49 Special access programs...........  4.3
2001.50 Telecommunications, automated       4.1, 4.2
 information systems, and network security.
2001.51 Technical security................  4.1
2001.52 Emergency authority...............  4.2
2001.53 Open storage areas................  4.1
2001.54 Foreign government information....  4.1
2001.55 Foreign disclosure of classified    4.1(i)(2)
 information.
2001.60 Self-Inspections, General.........  5.4
2001.70 Security Education and Training,    5.4
 General.
2001.71 Coverage..........................  1.3(d), 2.1(d), 3.7(b),
                                             4.1(b), 5.4(d)(3)
2001.80 Prescribed standard forms.........  5.2(b)(7)
2001.90 Agency annual reporting             1.3(c), 5.2(b)(4),
 requirements.                               5.4(d)(4), 5.4(d)(8)
2001.91 Other agency reporting              1.3(d), 1.7(c)(3), 1.9(d),
 requirements.                               2.1(d), 5.5
2001.92 Definitions.......................  6.1
------------------------------------------------------------------------



                        Subpart B_Classification



Sec.  2001.10  Classification standards.

    Identifying or describing damage to the national security. Section 
1.1(a) of the Order specifies the conditions that must be met when 
making classification decisions. Section 1.4 specifies that information 
shall not be considered for classification unless its unauthorized 
disclosure could reasonably be expected to cause identifiable or 
describable damage to the national security. There is no requirement, at 
the time of the decision, for the original classification authority to 
prepare a written description of such damage. However, the original 
classification authority must be able to support the decision in 
writing, including identifying or describing the damage, should the 
classification decision become the subject of a challenge or access 
demand pursuant to the Order or law.



Sec.  2001.11  Original classification authority.

    (a) General. Agencies shall establish a training program for 
original classifiers in accordance with subpart G of this part.
    (b) Requests for original classification authority. Agencies not 
possessing such authority shall forward requests to the Director of 
ISOO. The agency head must make the request and shall provide a specific 
justification of the need for this authority. The Director of ISOO shall 
forward the request, along with the Director's recommendation, to the 
President through the National Security Advisor within 30 days. Agencies 
wishing to increase their assigned level of original classification 
authority shall forward requests in accordance with the procedures of 
this paragraph.
    (c) Reporting delegations of original classification authority. All 
delegations of original classification authority shall be reported to 
the Director of ISOO. This can be accomplished by an initial submission 
followed by updates on a frequency determined by the senior agency 
official, but at least annually.

[[Page 391]]



Sec.  2001.12  Duration of classification.

    (a) Determining duration of classification for information 
originally classified under the Order--(1) Establishing duration of 
classification. Except for information that should clearly and 
demonstrably be expected to reveal the identity of a confidential human 
source or a human intelligence source or key design concepts of weapons 
of mass destruction, an original classification authority shall follow 
the sequence listed in paragraphs (a)(1)(i), (ii), and (iii) of this 
section when determining the duration of classification for information 
originally classified under this Order.
    (i) The original classification authority shall attempt to determine 
a date or event that is less than 10 years from the date of original 
classification and which coincides with the lapse of the information's 
national security sensitivity, and shall assign such date or event as 
the declassification instruction.
    (ii) If unable to determine a date or event of less than 10 years, 
the original classification authority shall ordinarily assign a 
declassification date that is 10 years from the date of the original 
classification decision.
    (iii) If unable to determine a date or event of 10 years, the 
original classification authority shall assign a declassification date 
not to exceed 25 years from the date of the original classification 
decision.
    (2) Duration of classification of special categories of information. 
The only exceptions to the sequence in paragraph (a)(1) of this section 
are as follows:
    (i) If an original classification authority is classifying 
information that should clearly and demonstrably be expected to reveal 
the identity of a confidential human source or a human intelligence 
source, the duration shall be up to 75 years and shall be designated 
with the following marking, ``50X1-HUM;'' or
    (ii) If an original classification authority is classifying 
information that should clearly and demonstrably be expected to reveal 
key design concepts of weapons of mass destruction, the duration shall 
be up to 75 years and shall be designated with the following marking, 
``50X2-WMD.''
    (b) Extending duration of classification for information classified 
under the Order. Extensions of classification are not automatic. If an 
original classification authority with jurisdiction over the information 
does not extend the classification of information assigned a date or 
event for declassification, the information is automatically 
declassified upon the occurrence of the date or event.
    (1) If the date or event assigned by the original classification 
authority has not passed, an original classification authority with 
jurisdiction over the information may extend the classification duration 
of such information for a period not to exceed 25 years from the date of 
origin of the record.
    (2) If the date or event assigned by the original classification 
authority has passed, an original classification authority with 
jurisdiction over the information may reclassify the information in 
accordance with the Order and this Directive only if it meets the 
standards for classification under sections 1.1 and 1.5 of the Order as 
well as section 3.3 of the Order, if appropriate.
    (3) In all cases, when extending the duration of classification, the 
original classification authority must:
    (i) Be an original classification authority with jurisdiction over 
the information;
    (ii) Ensure that the information continues to meet the standards for 
classification under the Order; and
    (iii) Make reasonable attempts to notify all known holders of the 
information.
    (c) Duration of information classified under prior orders--(1) 
Specific date or event. Unless declassified earlier, information marked 
with a specific date or event for declassification under a prior order 
is automatically declassified upon that date or event. If the specific 
date or event has not passed, an original classification authority with 
jurisdiction over the information may extend the duration in accordance 
with the requirements of paragraph (b) of this section. If the date or 
event assigned by the original classification authority has passed, an 
original classification authority with jurisdiction over the information 
may only reclassify information in accordance with

[[Page 392]]

the standards and procedures under the Order and this Directive. If the 
information is contained in records determined to be permanently 
valuable, and the prescribed date or event will take place more than 25 
years from the date of origin of the document, the declassification of 
the information will instead be subject to section 3.3 of the Order.
    (2) Indefinite duration of classification. For information marked 
with X1, X2, X3, X4, X5, X6, X7, or X8; ``Originating Agency's 
Determination Required'' or its acronym ``OADR,'' ``Manual Review'' or 
its acronym ``MR;'' ``DCI Only;'' ``DNI Only;'' and any other marking 
indicating an indefinite duration of classification under a prior order; 
or in those cases where a document is missing a required 
declassification instruction or the instruction is not complete:
    (i) A declassification authority, as defined in section 3.1(b) of 
the Order, may declassify it;
    (ii) An original classification authority with jurisdiction over the 
information may re-mark the information to establish a duration of 
classification of no more than 25 years from the date of origin of the 
document, consistent with the requirements for information originally 
classified under the Order, as provided in paragraph (a) of this 
section; or
    (iii) Unless declassified earlier, such information contained in 
records determined to be permanently valuable shall remain classified 
for 25 years from the date of its origin, at which time it will be 
subject to section 3.3 of the Order.
    (3) Release of imagery acquired by space-based intelligence 
reconnaissance systems. The duration of classification of imagery as 
defined in E.O. 12951, Release of Imagery Acquired by Space-Based 
Intelligence Reconnaissance Systems, that is otherwise marked with an 
indefinite duration, such as ``DCI Only'' or ``DNI Only,'' shall be 
established by the Director of National Intelligence in accordance with 
E.O. 12951 and consistent with E.O. 13526. Any such information shall be 
remarked in accordance with instructions prescribed by the Director of 
National Intelligence.



Sec.  2001.13  Classification prohibitions and limitations.

    (a) Declassification without proper authority. Classified 
information that has been declassified without proper authority, as 
determined by an original classification authority with jurisdiction 
over the information, remains classified and administrative action shall 
be taken to restore markings and controls, as appropriate. All such 
determinations shall be reported to the senior agency official who shall 
promptly provide a written report to the Director of ISOO.
    (1) If the information at issue is in records in the physical and 
legal custody of the National Archives and Records Administration (NARA) 
and has been made available to the public, the original classification 
authority with jurisdiction over the information shall, as part of 
determining whether the restoration of markings and controls is 
appropriate, consider whether the removal of the information from public 
purview will significantly mitigate the harm to national security or 
otherwise draw undue attention to the information at issue. Written 
notification, classified when appropriate under the Order, shall be made 
to the Archivist, which shall include a description of the record(s) at 
issue, the elements of information that are classified, the duration of 
classification, and the specific authority for continued classification. 
If the information at issue is more than 25 years of age and the 
Archivist does not agree with the decision, the information shall 
nonetheless be temporarily withdrawn from public access and shall be 
referred to the Director of ISOO for resolution in collaboration with 
affected parties.
    (b) Reclassification after declassification and release to the 
public under proper authority. In making the decision to reclassify 
information that has been declassified and released to the public under 
proper authority, the agency head must approve, in writing, a 
determination on a document-by-document basis that the reclassification 
is required to prevent significant and demonstrable damage to the 
national security. As part of making such a determination, the following 
shall apply:

[[Page 393]]

    (1) The information must be reasonably recoverable without bringing 
undue attention to the information which means that:
    (i) Most individual recipients or holders are known and can be 
contacted and all instances of the information to be reclassified will 
not be more widely disseminated;
    (ii) If the information has been made available to the public via a 
means such as Government archives or reading room, consideration is 
given to length of time the record has been available to the public, the 
extent to which the record has been accessed for research, and the 
extent to which the record and/or classified information at issue has 
been copied, referenced, or publicized; and
    (iii) If the information has been made available to the public via 
electronic means such as the internet, consideration is given as to the 
number of times the information was accessed, the form of access, and 
whether the information at issue has been copied, referenced, or 
publicized.
    (2) If the reclassification concerns a record in the physical 
custody of NARA and has been available for public use, reclassification 
requires notification to the Archivist and approval by the Director of 
ISOO.
    (3) Any recipients or holders of the reclassified information who 
have current security clearances shall be appropriately briefed about 
their continuing legal obligations and responsibilities to protect this 
information from unauthorized disclosure. The recipients or holders who 
do not have security clearances shall, to the extent practicable, be 
appropriately briefed about the reclassification of the information that 
they have had access to, their obligation not to disclose the 
information, and be requested to sign an acknowledgement of this 
briefing.
    (4) The reclassified information must be appropriately marked in 
accordance with section 2001.24(l) and safeguarded. The markings should 
include the authority for and the date of the reclassification action.
    (5) Once the reclassification action has occurred, it must be 
reported to the National Security Advisor and to the Director of ISOO by 
the agency head or senior agency official within 30 days. The 
notification must include details concerning paragraphs (b)(1) and (3) 
of this section.
    (c) Classification by compilation. A determination that information 
is classified through the compilation of unclassified information is a 
derivative classification action based upon existing original 
classification guidance. If the compilation of unclassified information 
reveals a new aspect of information that meets the criteria for 
classification, it shall be referred to an original classification 
authority with jurisdiction over the information to make an original 
classification decision.



Sec.  2001.14  Classification challenges.

    (a) Challenging classification. Authorized holders, including 
authorized holders outside the classifying agency, who want to challenge 
the classification status of information shall present such challenges 
to an original classification authority with jurisdiction over the 
information. An authorized holder is any individual who has been granted 
access to specific classified information in accordance with the 
provisions of the Order to include the special conditions set forth in 
section 4.1(h) of the Order. A formal challenge under this provision 
must be in writing, but need not be any more specific than to question 
why information is or is not classified, or is classified at a certain 
level.
    (b) Agency procedures. (1) Because the Order encourages authorized 
holders to challenge classification as a means for promoting proper and 
thoughtful classification actions, agencies shall ensure that no 
retribution is taken against any authorized holders bringing such a 
challenge in good faith.
    (2) Agencies shall establish a system for processing, tracking and 
recording formal classification challenges made by authorized holders. 
Agencies shall consider classification challenges separately from 
Freedom of Information Act or other access requests, and shall not 
process such challenges in turn with pending access requests.
    (3) The agency shall provide an initial written response to a 
challenge within 60 days. If the agency is unable to respond to the 
challenge within 60

[[Page 394]]

days, the agency must acknowledge the challenge in writing, and provide 
a date by which the agency will respond. The acknowledgment must include 
a statement that if no agency response is received within 120 days, the 
challenger has the right to forward the challenge to the Interagency 
Security Classification Appeals Panel (Panel) for a decision. The 
challenger may also forward the challenge to the Panel if an agency has 
not responded to an internal appeal within 90 days of the agency's 
receipt of the appeal. Agency responses to those challenges it denies 
shall include the challenger's appeal rights to the Panel.
    (4) Whenever an agency receives a classification challenge to 
information that has been the subject of a challenge within the past two 
years, or that is the subject of pending litigation, the agency is not 
required to process the challenge beyond informing the challenger of 
this fact and of the challenger's appeal rights, if any.
    (c) Additional considerations. (1) Challengers and agencies shall 
attempt to keep all challenges, appeals and responses unclassified. 
However, classified information contained in a challenge, an agency 
response, or an appeal shall be handled and protected in accordance with 
the Order and this Directive. Information being challenged for 
classification shall remain classified unless and until a final decision 
is made to declassify it.
    (2) The classification challenge provision is not intended to 
prevent an authorized holder from informally questioning the 
classification status of particular information. Such informal inquiries 
should be encouraged as a means of holding down the number of formal 
challenges and to ensure the integrity of the classification process.



Sec.  2001.15  Classification guides.

    (a) Preparation of classification guides. Originators of 
classification guides are encouraged to consult users of guides for 
input when developing or updating guides. When possible, originators of 
classification guides are encouraged to communicate within their 
agencies and with other agencies that are developing guidelines for 
similar activities to ensure the consistency and uniformity of 
classification decisions. Each agency shall maintain a list of its 
classification guides in use.
    (b) General content of classification guides. Classification guides 
shall, at a minimum:
    (1) Identify the subject matter of the classification guide;
    (2) Identify the original classification authority by name and 
position, or personal identifier;
    (3) Identify an agency point-of-contact or points-of-contact for 
questions regarding the classification guide;
    (4) Provide the date of issuance or last review;
    (5) State precisely the elements of information to be protected;
    (6) State which classification level applies to each element of 
information, and, when useful, specify the elements of information that 
are unclassified;
    (7) State, when applicable, special handling caveats;
    (8) State a concise reason for classification which, at a minimum, 
cites the applicable classification category or categories in section 
1.4 of the Order; and
    (9) Prescribe a specific date or event for declassification, the 
marking ``50X1-HUM'' or ``50X2-WMD'' as appropriate, or one or more of 
the exemption codes listed in 2001.26(a)(2), provided that:
    (i) The exemption has been approved by the Panel under section 
3.3(j) of the Order;
    (ii) The Panel is notified of the intent to take such actions for 
specific information in advance of approval and the information remains 
in active use; and
    (iii) The exemption code is accompanied with a declassification date 
or event that has been approved by the Panel.
    (c) Dissemination of classification guides. Classification guides 
shall be disseminated as necessary to ensure the proper and uniform 
derivative classification of information.
    (d) Reviewing and updating classification guides. (1) Agencies shall 
incorporate original classification decisions into classification guides 
as soon as practicable.
    (2) Originators of classification guides are encouraged to consult 
the

[[Page 395]]

users of guides and other subject matter experts when reviewing or 
updating guides. Also, 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.



Sec.  2001.16  Fundamental classification guidance review.

    (a) Performance of fundamental classification guidance reviews. An 
initial fundamental classification guidance review shall be completed by 
every agency with original classification authority and which authors 
security classification guides no later than June 27, 2012. Agencies 
shall conduct fundamental classification guidance reviews on a periodic 
basis thereafter. The frequency of the reviews shall be determined by 
each agency considering factors such as the number of classification 
guides and the volume and type of information they cover. However, a 
review shall be conducted at least once every five years.
    (b) Coverage of reviews. At a minimum, the fundamental 
classification guidance review shall focus on:
    (1) Evaluation of content.
    (i) Determining if the guidance conforms to current operational and 
technical circumstances; and
    (ii) Determining if the guidance meets the standards for 
classification under section 1.4 of the Order and an assessment of 
likely damage under section 1.2 of the Order; and
    (2) Evaluation of use:
    (i) Determining if the dissemination and availability of the 
guidance is appropriate, timely, and effective; and
    (ii) An examination of recent classification decisions that focuses 
on ensuring that classification decisions reflect the intent of the 
guidance as to what is classified, the appropriate level, the duration, 
and associated markings.
    (c) Participation in reviews. The agency head or senior agency 
official shall direct the conduct of a fundamental classification 
guidance review and shall ensure the appropriate agency subject matter 
experts participate to obtain the broadest possible range of 
perspectives. To the extent practicable, input should also be obtained 
from external subject matter experts and external users of the reviewing 
agency's classification guidance and decisions.
    (d) Reports on results. Agency heads shall provide a detailed report 
summarizing the results of each classification guidance review to ISOO 
and release an unclassified version to the public except when the 
existence of the guide or program is itself classified.



                  Subpart C_Identification and Markings



Sec.  2001.20  General.

    A uniform security classification system requires that standard 
markings or other indicia be applied to classified information. Except 
in extraordinary circumstances, or as approved by the Director of ISOO, 
the marking of classified information shall not deviate from the 
following prescribed formats. If markings cannot be affixed to specific 
classified information or materials, the originator shall provide 
holders or recipients of the information with written instructions for 
protecting the information. Markings shall be uniformly and 
conspicuously applied to leave no doubt about the classified status of 
the information, the level of protection required, and the duration of 
classification.



Sec.  2001.21  Original classification.

    (a) Primary markings. At the time of original classification, the 
following shall be indicated in a manner that is immediately apparent:
    (1) Classification authority. The name and position, or personal 
identifier, of the original classification authority shall appear on the 
``Classified By'' line. An example might appear as:

Classified By: David Smith, Chief, Division 5

    or

Classified By: IDIMNO1

    (2) Agency and office of origin. If not otherwise evident, the 
agency and office of origin shall be identified and follow the name on 
the ``Classified By'' line. An example might appear as:

Classified By: David Smith, Chief, Division 5, Department of Good Works, 
Office of Administration.


[[Page 396]]


    (3) Reason for classification. The original classification authority 
shall identify the reason(s) for the decision to classify. The original 
classification authority shall include on the ``Reason'' line the number 
1.4 plus the letter(s) that corresponds to that classification category 
in section 1.4 of the Order.
    (i) These categories, as they appear in the Order, are as follows:
    (A) Military plans, weapons systems, or operations;
    (B) Foreign government information;
    (C) Intelligence activities (including covert action), intelligence 
sources or methods, or cryptology;
    (D) Foreign relations or foreign activities of the United States, 
including confidential sources;
    (E) Scientific, technological, or economic matters relating to the 
national security;
    (F) United States Government programs for safeguarding nuclear 
materials or facilities;
    (G) Vulnerabilities or capabilities of systems, installations, 
infrastructures, projects, plans, or protection services relating to the 
national security; or
    (H) The development, production, or use of weapons of mass 
destruction.
    (ii) An example might appear as:

Classified By: David Smith, Chief, Division 5, Department of Good Works, 
Office of Administration Reason: 1.4(g)

    (4) Declassification instructions. The duration of the original 
classification decision shall be placed on the ``Declassify On'' line. 
When declassification dates are displayed numerically, the following 
format shall be used: YYYYMMDD. Events must be reasonably definite and 
foreseeable. The original classification authority will apply one of the 
following instructions:
    (i) A date or event for declassification that corresponds to the 
lapse of the information's national security sensitivity, which is equal 
to or less than 10 years from the date of the original decision. The 
duration of classification would be marked as:

Classified By: David Smith, Chief, Division 5, Department of Good Works, 
Office of Administration
Reason: 1.4(g)
Declassify On: 20201014 or
Declassify On: Completion of Operation

    (ii) A date not to exceed 25 years from the date of the original 
decision. For example, on a document that contains information 
classified on October 10, 2010, apply a date up to 25 years on the 
``Declassify On'' line:

Classified By: David Smith, Chief, Division 5, Department of Good Works, 
Office of Administration
Reason: 1.4(g)
Declassify On: 20351010

    (iii) If the classified information should clearly and demonstrably 
be expected to reveal the identity of a confidential human source or a 
human intelligence source, no date or event is required and the marking 
``50X1-HUM'' shall be used in the ``Declassify On'' line; or
    (iv) If the classified information should clearly and demonstrably 
be expected to reveal key design concepts of weapons of mass 
destruction, no date or event is required and the marking ``50X2-WMD'' 
shall be used in the ``Declassify On'' line.
    (b) Overall marking. The highest level of classification is 
determined by the highest level of any one portion within the document 
and shall appear in a way that will distinguish it clearly from the 
informational text.
    (1) Conspicuously place the overall classification at the top and 
bottom of the outside of the front cover (if any), on the title page (if 
any), on the first page, and on the outside of the back cover (if any).
    (2) For documents containing information classified at more than one 
level, the overall marking shall be the highest level. For example, if a 
document contains some information marked ``Secret'' and other 
information marked ``Confidential,'' the overall marking would be 
``Secret.''
    (3) Each interior page of a classified document shall be marked at 
the top and bottom either with the highest level of classification of 
information contained on that page, including the designation 
``Unclassified'' when it is applicable, or with the highest overall 
classification of the document.
    (c) Portion marking. Each portion of a document, ordinarily a 
paragraph, but including subjects, titles, graphics, tables, charts, 
bullet statements, sub-paragraphs, classified signature blocks,

[[Page 397]]

bullets and other portions within slide presentations, and the like, 
shall be marked to indicate which portions are classified and which 
portions are unclassified by placing a parenthetical symbol immediately 
preceding the portion to which it applies.
    (1) To indicate the appropriate classification level, the symbols 
``(TS)'' for Top Secret, ``(S)'' for Secret, and ``(C)'' for 
Confidential will be used.
    (2) Portions which do not meet the standards of the Order for 
classification shall be marked with ``(U)'' for Unclassified.
    (3) In cases where portions are segmented such as paragraphs, sub-
paragraphs, bullets, and sub-bullets and the classification level is the 
same throughout, it is sufficient to put only one portion marking at the 
beginning of the main paragraph or main bullet. If there are different 
levels of classification among these segments, then all segments shall 
be portion marked separately in order to avoid over-classification of 
any one segment. If the information contained in a sub-paragraph or sub-
bullet is a higher level of classification than its parent paragraph or 
parent bullet, this does not make the parent paragraph or parent bullet 
classified at that same level. Each portion shall reflect the 
classification level of that individual portion and not any other 
portions. At the same time, any portion, no matter what its status, is 
still capable of determining the overall classification of the document.
    (d) Dissemination control and handling markings. Many agencies 
require additional control and handling markings that supplement the 
overall classification markings. See Sec.  2001.24(j) for specific 
guidance.
    (e) Date of origin of document. The date of origin of the document 
shall be indicated in a manner that is immediately apparent.



Sec.  2001.22  Derivative classification.

    (a) General. Information classified derivatively on the basis of 
source documents or classification guides shall bear all markings 
prescribed in Sec.  2001.20 and Sec.  2001.21, except as provided in 
this section. Information for these markings shall be carried forward 
from the source document or taken from instructions in the appropriate 
classification guide.
    (b) Identity of persons who apply derivative classification 
markings. Derivative classifiers shall be identified by name and 
position, or by personal identifier, in a manner that is immediately 
apparent on each derivatively classified document. If not otherwise 
evident, the agency and office of origin shall be identified and follow 
the name on the ``Classified By'' line. An example might appear as:

Classified By: Peggy Jones, Lead Analyst, Research and Analysis Division 
or
Classified By: ID  IMN01

    (c) Source of derivative classification. (1) The derivative 
classifier shall concisely identify the source document or the 
classification guide on the ``Derived From'' line, including the agency 
and, where available, the office of origin, and the date of the source 
or guide. An example might appear as:

Derived From: Memo, ``Funding Problems,'' October 20, 2008, Office of 
Administration, Department of Good Works or
Derived From: CG No. 1, Department of Good Works, dated October 20, 2008

    (i) When a document is classified derivatively on the basis of more 
than one source document or classification guide, the ``Derived From'' 
line shall appear as:

Derived From: Multiple Sources

    (ii) The derivative classifier shall include a listing of the source 
materials on, or attached to, each derivatively classified document.
    (2) A document derivatively classified on the basis of a source 
document that is itself marked ``Multiple Sources'' shall cite the 
source document on its ``Derived From'' line rather than the term 
``Multiple Sources.'' An example might appear as:

Derived From: Report entitled, ``New Weapons,'' dated October 20, 2009, 
Department of Good Works, Office of Administration

    (d) Reason for classification. The reason for the original 
classification decision, as reflected in the source document(s) or 
classification guide, is not transferred in a derivative classification 
action.

[[Page 398]]

    (e) Declassification instructions. (1) The derivative classifier 
shall carry forward the instructions on the ``Declassify On'' line from 
the source document to the derivative document, or the duration 
instruction from the classification or declassification guide, unless it 
contains one of the declassification instructions as listed in paragraph 
(e)(3) of this section. If the source document is missing the 
declassification instruction, then a calculated date of 25 years from 
the date of the source document (if available) or the current date (if 
the source document date is not available) shall be carried forward by 
the derivative classifier.
    (2) When a document is classified derivatively on the basis of more 
than one source document or more than one element of a classification 
guide, the ``Declassify On'' line shall reflect the longest duration of 
any of its sources.
    (3) When a document is classified derivatively either from a source 
document(s) or a classification guide that contains one of the following 
declassification instructions, ``Originating Agency's Determination 
Required,'' ``OADR,'' or ``Manual Review,'' ``MR,'' or any of the 
exemption markings X1, X2, X3, X4, X5, X6, X7, and X8, the derivative 
classifier shall calculate a date that is 25 years from the date of the 
source document when determining a derivative document's date or event 
to be placed in the ``Declassify On'' line.
    (i) If a document is marked with the declassification instructions 
``DCI Only'' or ``DNI Only'' and does not contain information described 
in E.O. 12951, ``Release of Imagery Acquired by Space-Based National 
Intelligence Reconnaissance Systems,'' the derivative classifier shall 
calculate a date that is 25 years from the date of the source document 
when determining a derivative document's date or event to be placed in 
the ``Declassify On'' line.
    (ii) If a document is marked with ``DCI Only'' or ``DNI Only'' and 
the information is subject to E.O. 12951, the derivative classifier 
shall use a date or event as prescribed by the Director of National 
Intelligence.
    (4) When determining the most restrictive declassification 
instruction among multiple source documents, adhere to the following 
hierarchy for determining the declassification instructions for the 
``Declassify On'' line:
    (i) 50X1-HUM or 50X2-WMD, or an ISOO-approved designator reflecting 
the Panel approval for classification beyond 50 years in accordance with 
section 3.3(h)(2) of the Order;
    (ii) 25X1 through 25X9, with a date or event;
    (iii) A specific declassification date or event within 25 years;
    (iv) Absent guidance from an original classification authority with 
jurisdiction over the information, a calculated 25-year date from the 
date of the source document.
    (5) When declassification dates are displayed numerically, the 
following format shall be used: YYYYMMDD.
    (f) Overall marking. The derivative classifier shall conspicuously 
mark the classified document with the highest level of classification of 
information included in the document, as provided in Sec.  2001.21(b).
    (g) Portion marking. Each portion of a derivatively classified 
document shall be marked immediately preceding the portion to which it 
applies, in accordance with its source, and as provided in Sec.  
2001.21(c).
    (h) Dissemination control and handling markings. Many agencies 
require additional control and handling markings that supplement the 
overall classification markings. See Sec.  2001.24(j) for specific 
guidance.
    (i) Date of origin of document. The date of origin of the document 
shall be indicated in a manner that is immediately apparent.



Sec.  2001.23  Classification marking in the electronic environment.

    (a) General. Classified national security information in the 
electronic environment shall be:
    (1) Subject to all requirements of the Order.
    (2) Marked with proper classification markings to the extent that 
such marking is practical, including portion marking, overall 
classification, ``Classified By,'' ``Derived From,'' ``Reason'' for 
classification (originally classified information only), and 
``Declassify On.''

[[Page 399]]

    (3) Marked with proper classification markings when appearing in an 
electronic output (e.g., database query) in which users of the 
information will need to be alerted to the classification status of the 
information.
    (4) Marked in accordance with derivative classification procedures, 
maintaining traceability of classification decisions to the original 
classification authority. In cases where classified information in an 
electronic environment cannot be marked in this manner, a warning shall 
be applied to alert users that the information may not be used as a 
source for derivative classification and providing a point of contact 
and instructions for users to receive further guidance on the use and 
classification of the information.
    (5) Prohibited from use as source of derivative classification if it 
is dynamic in nature (e.g., wikis and blogs) and where information is 
not marked in accordance with the Order.
    (b) Markings on classified e-mail messages. (1) E-mail transmitted 
on or prepared for transmission on classified systems or networks shall 
be configured to display the overall classification at the top and 
bottom of the body of each message. The overall classification marking 
string for the e-mail shall reflect the classification of the header and 
body of the message. This includes the subject line, the text of the e-
mail, a classified signature block, attachments, included messages, and 
any other information conveyed in the body of the e-mail. A single 
linear text string showing the overall classification and markings shall 
be included in the first line of text and at the end of the body of the 
message after the signature block.
    (2) Classified e-mail shall be portion marked. Each portion shall be 
marked to reflect the highest level of information contained in that 
portion. A text portion containing a uniform resource locator (URL) or 
reference (i.e., link) to another document shall be portion marked based 
on the classification of the content of the URL or link text, even if 
the content to which it points reflects a higher classification marking.
    (3) A classified signature block shall be portion marked to reflect 
the highest classification level markings of the information contained 
in the signature block itself.
    (4) Subject lines shall be portion marked to reflect the sensitivity 
of the information in the subject line itself and shall not reflect any 
classification markings for the e-mail content or attachments. Subject 
lines and titles shall be portion marked before the subject or title.
    (5) For a classified e-mail, the classification authority block 
shall be placed after the signature block, but before the overall 
classification marking string at the end of the e-mail. These blocks may 
appear as single linear text strings instead of the traditional 
appearance of three lines of text.
    (6) When forwarding or replying to an e-mail, individuals shall 
ensure that, in addition to the markings required for the content of the 
reply or forward e-mail itself, the markings shall reflect the overall 
classification and declassification instructions for the entire string 
of e-mails and attachments. This will include any newly drafted 
material, material received from previous senders, and any attachments.
    (c) Marking Web pages with classified content. (1) Web pages shall 
be classified and marked on their own content regardless of the 
classification of the pages to which they link. Any presentation of 
information to which the web materials link shall also be marked based 
on its own content.
    (2) The overall classification marking string for every web page 
shall reflect the overall classification markings (and any dissemination 
control or handling markings) for the information on that page. Linear 
text appearing on both the top and bottom of the page is acceptable.
    (3) If any graphical representation is utilized, a text equivalent 
of the overall classification marking string shall be included in the 
hypertext statement and page metadata. This will enable users without 
graphic display to be aware of the classification level of the page and 
allows for the use of text translators.
    (4) Classified Web pages shall be portion marked. Each portion shall 
be marked to reflect the highest level of information contained in that 
portion.

[[Page 400]]

A portion containing a URL or reference to another document shall be 
portion marked based on the classification of the content of the URL 
itself, even if the content to which it points reflects a higher 
classification marking.
    (5) Classified Web pages shall include the classification authority 
block on either the top or bottom of the page. These blocks may appear 
as single linear text strings instead of the traditional appearance of 
three lines of text.
    (6) Electronic media files such as video, audio, images, or slides 
shall carry the overall classification and classification authority 
block, unless the addition of such information would render them 
inoperable. In such cases, another procedure shall be used to ensure 
recipients are aware of the classification status of the information and 
the declassification instructions.
    (d) Marking classified URLs. URLs provide unique addresses in the 
electronic environment for web content and shall be portion marked based 
on the classification of the content of the URL itself. The URL shall 
not be portion marked to reflect the classification of the content to 
which it points. URLs shall be developed at an unclassified level 
whenever possible. When a URL is classified, a classification portion 
mark shall be used in the text of the URL string in a way that does not 
make the URL inoperable to identify the URL as a classified portion in 
any textual references to that URL. An example may appear as:

http://www.center.xyz/SECRET/filename_(S).html
http://www.center.xyz/filename2_(TS).html
http://www.center.xyz/filename_(TS//NF).html

    (e) Marking classified dynamic documents and relational databases. 
(1) A dynamic page contains electronic information derived from a 
changeable source or ad hoc query, such as a relational database. The 
classification levels of information returned may vary depending upon 
the specific request.
    (2) If there is a mechanism for determining the actual 
classification markings for dynamic documents, the appropriate 
classification markings shall be applied to and displayed on the 
document. If such a mechanism does not exist, the default should be the 
highest level of information in the database and a warning shall be 
applied at the top of each page of the document. Such content shall not 
be used as a basis for derivative classification. An example of such an 
applied warning may appear as:

    This content is classified at the [insert system-high classification 
level] level and may contain elements of information that are 
unclassified or classified at a lower level than the overall 
classification displayed. This content may not be used as a source of 
derivative classification; refer instead to the pertinent classification 
guide(s).

    (3) This will alert the users of the information that there may be 
elements of information that may be either unclassified or classified at 
a lower level than the highest possible classification of the 
information returned. Users shall be encouraged to make further 
inquiries concerning the status of individual elements in order to avoid 
unnecessary classification and/or impediments to information sharing. 
Resources such as classification guides and points of contact shall be 
established to assist with these inquiries.
    (4) Users developing a document based on query results from a 
database must properly mark the document in accordance with Sec.  
2001.22. If there is doubt about the correct markings, users should 
contact the database originating agency for guidance.
    (f) Marking classified bulletin board postings and blogs. (1) A 
blog, an abbreviation of the term ``web log,'' is a Web site consisting 
of a series of entries, often commentary, description of events, or 
other material such as graphics or video, created by the same individual 
as in a journal or by many individuals. While the content of the overall 
blog is dynamic, entries are generally static in nature.
    (2) The overall classification marking string for every bulletin 
board or blog shall reflect the overall classification markings for the 
highest level of information allowed in that space. Linear text 
appearing on both the top and bottom of the page is acceptable.
    (3) Subject lines of bulletin board postings, blog entries, or 
comments shall be portion marked to reflect the sensitivity of the 
information in the

[[Page 401]]

subject line itself, not the content of the post.
    (4) The overall classification marking string for the bulletin board 
posting, blog entry, or comment shall reflect the classification 
markings for the subject line, the text of the posting, and any other 
information in the posting. These strings shall be entered manually or 
utilizing an electronic classification tool in the first line of text 
and at the end of the body of the posting. These strings may appear as 
single linear text.
    (5) Bulletin board postings, blog entries, or comments shall be 
portion marked. Each portion shall be marked to reflect the highest 
level of information contained in that portion.
    (g) Marking classified wikis. (1) Initial wiki submissions shall 
include the overall classification marking string, portion marking, and 
the classification authority block string in the same manner as 
mentioned above for bulletin boards and blogs. All of these strings may 
appear as single line text.
    (2) When users modify existing entries which alter the 
classification level of the content or add new content, they shall 
change the required markings to reflect the classification markings for 
the resulting information. Systems shall provide a means to log the 
identity of each user, the changes made, and the time and date of each 
change.
    (3) Wiki articles and entries shall be portion marked. Each portion 
shall be marked to reflect the highest level of information contained in 
that portion.
    (h) Instant messaging, chat, and chat rooms. (1) Instant messages 
and chat conversations generally consist of brief textual messages but 
may also include URLs, images, or graphics. Chat discussions captured 
for retention or printing shall be marked at the top and bottom of each 
page with the overall classification reflecting all of the information 
within the discussion and, for classified discussions, portion markings 
and the classification authority block string shall also appear.
    (2) Chat rooms shall display system-high overall classification 
markings and shall contain instructions informing users that the 
information may not be used as a source for derivative classification 
unless it is portion marked, contains an overall classification marking, 
and a classification authority block.
    (i) Attached files. When files are attached to another electronic 
message or document, the overall classification of the message or 
document shall account for the classification level of the attachment 
and the message or document shall be marked in accordance with Sec.  
2001.24(b).
    (ii) Reserved.



Sec.  2001.24  Additional requirements.

    (a) Marking prohibitions. Markings other than ``Top Secret,'' 
``Secret,'' and ``Confidential'' shall not be used to identify 
classified national security information.
    (b) Transmittal documents. A transmittal document shall indicate on 
its face the highest classification level of any classified information 
attached or enclosed. The transmittal shall also include conspicuously 
on its face the following or similar instructions, as appropriate:

Unclassified When Classified Enclosure Removed or
Upon Removal of Attachments, This Document is (Classification Level)

    (c) Foreign government information. Unless otherwise evident, 
documents that contain foreign government information should include the 
marking, ``This Document Contains (indicate country of origin) 
Information.'' Agencies may also require that the portions of the 
documents that contain the foreign government information be marked to 
indicate the government and classification level, using accepted country 
code standards, e.g., ``(Country code--C).'' If the identity of the 
specific government must be concealed, the document shall be marked, 
``This Document Contains Foreign Government Information,'' and pertinent 
portions shall be marked ``FGI'' together with the classification level, 
e.g., ``(FGI-C).'' In such cases, a separate record that identifies the 
foreign government shall be maintained in order to facilitate subsequent 
declassification actions. If the fact that information is foreign 
government information must be concealed, the markings described in this 
paragraph shall not be

[[Page 402]]

used and the document shall be marked as if it were wholly of U.S. 
origin. When classified records are transferred to NARA for storage or 
archival purposes, the accompanying documentation shall, at a minimum, 
identify the boxes that contain foreign government information.
    (d) Working papers. A working paper is defined as 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. Working papers containing classified information shall be 
dated when created, marked with the highest classification of any 
information contained in them, protected at that level, and if otherwise 
appropriate, destroyed when no longer needed. When any of the following 
conditions applies, working papers shall be controlled and marked in the 
same manner prescribed for a finished document at the same 
classification level:
    (1) Released by the originator outside the originating activity;
    (2) Retained more than 180 days from the date of origin; or
    (3) Filed permanently.
    (e) Other material. Bulky material, equipment, and facilities, etc., 
shall be clearly identified in a manner that leaves no doubt about the 
classification status of the material, the level of protection required, 
and the duration of classification. Upon a finding that identification 
would itself reveal classified information, such identification is not 
required. Supporting documentation for such a finding must be maintained 
in the appropriate security facility.
    (f) Unmarked materials. Information contained in unmarked records, 
or presidential or related materials, and which pertains to the national 
defense or foreign relations of the United States, created, maintained, 
and protected as classified information under prior orders shall 
continue to be treated as classified information under the Order, and is 
subject to its provisions regarding declassification.
    (g) Classification by compilation/aggregation. Compilation of items 
that are individually unclassified may be classified if the compiled 
information meets the standards established in section 1.2 of the Order 
and reveals an additional association or relationship, as determined by 
the original classification authority. Any unclassified portions will be 
portion marked (U), while the overall markings will reflect the 
classification of the compiled information even if all the portions are 
marked (U). In any such situation, clear instructions must appear with 
the compiled information as to the circumstances under which the 
individual portions constitute a classified compilation, and when they 
do not.
    (h) Commingling of Restricted Data (RD) and Formerly Restricted Data 
(FRD) with information classified under the Order. (1) To the extent 
practicable, the commingling in the same document of RD or FRD with 
information classified under the Order should be avoided. When it is not 
practicable to avoid such commingling, the marking requirements in the 
Order and this Directive, as well as the marking requirements in 10 CFR 
part 1045, Nuclear Classification and Declassification, must be 
followed.
    (2) Automatic declassification of documents containing RD or FRD is 
prohibited. Documents marked as containing RD or FRD are excluded from 
the automatic declassification provisions of the Order until the RD or 
FRD designation is properly removed by the Department of Energy. When 
the Department of Energy determines that an RD or FRD designation may be 
removed, any remaining information classified under the Order must be 
referred to the appropriate agency in accordance with the 
declassification provisions of the Order and this Directive.
    (3) For commingled documents, the ``Declassify On'' line required by 
the Order and this Directive shall not include a declassification date 
or event and shall instead be annotated with ``Not Applicable (or N/A) 
to RD/FRD portions'' and ``See source list for NSI portions.'' The 
source list, as described in Sec.  2001.22(c)(1)(ii), shall include the 
declassification instruction for each of the source documents classified 
under the Order and shall not appear on the front page of the document.
    (4) If an RD or FRD portion is extracted for use in a new document, 
the

[[Page 403]]

requirements of 10 CFR part 1045 must be followed.
    (5) If a portion classified under the Order is extracted for use in 
a new document, the requirements of the Order and this Directive must be 
followed. The declassification date for the extracted portion shall be 
determined by using the source list required by Sec.  2001.22(c)(1)(ii), 
the pertinent classification guide, or consultation with the original 
classification authority with jurisdiction for the information. However, 
if a commingled document is not portion marked, it shall not be used as 
a source for a derivatively classified document.
    (6) If a commingled document is not portion marked based on 
appropriate authority, annotating the source list with the 
declassification instructions and including the ``Declassify on'' line 
in accordance with paragraph (h)(3) of this section are not required. 
The lack of declassification instructions does not eliminate the 
requirement to process commingled documents for declassification in 
accordance with the Order, this Directive, the Atomic Energy Act, or 10 
CFR part 1045 when they are requested under statute or the Order.
    (i) Transclassified Foreign Nuclear Information (TFNI). (1) As 
permitted under 42 U.S.C. 2162(e), the Department of Energy shall remove 
from the Restricted Data category such information concerning the atomic 
energy programs of other nations as the Secretary of Energy and the 
Director of National Intelligence jointly determine to be necessary to 
carry out the provisions of 50 U.S.C. 403 and 403-1 and safeguarded 
under applicable Executive orders as ``National Security Information'' 
under a process called transclassification.
    (2) When Restricted Data information is transclassified and is 
safeguarded as ``National Security Information,'' it shall be handled, 
protected, and classified in conformity with the provisions of the Order 
and this Directive. Such information shall be labeled as ``TFNI'' and 
with any additional identifiers prescribed by the Department of Energy. 
The label ``TFNI'' shall be included on documents to indicate the 
information's transclassification from the Restricted Data category and 
its declassification process governed by the Secretary of Energy under 
the Atomic Energy Act.
    (3) Automatic declassification of documents containing TFNI is 
prohibited. Documents marked as containing TFNI are excluded from the 
automatic declassification provisions of the Order until the TFNI 
designation is properly removed by the Department of Energy. When the 
Department of Energy determines that a TFNI designation may be removed, 
any remaining information classified under the Order must be referred to 
the appropriate agency in accordance with the declassification 
provisions of the Order and this Directive.
    (j) Approved dissemination control and handling markings. (1) 
Dissemination control and handling markings identify the expansion or 
limitation on the distribution of the information. These markings are in 
addition to, and separate from, the level of classification.
    (2) Only those external dissemination control and handling markings 
approved by ISOO or, with respect to the Intelligence Community by the 
Director of National Intelligence for intelligence and intelligence-
related information, may be used by agencies to control and handle the 
dissemination of classified information pursuant to agency regulations 
and to policy directives and guidelines issued under section 5.4(d)(2) 
and section 6.2(b) of the Order. Such approved markings shall be uniform 
and binding on all agencies and must be available in a central registry.
    (3) If used, the dissemination control and handling markings will 
appear at the top and bottom of each page after the level of 
classification.
    (k) Portion marking waivers. (1) An agency head or senior agency 
official may request a waiver from the portion marking requirement for a 
specific category of information. Such a request shall be submitted to 
the Director of ISOO and should include the reasons that the benefits of 
portion marking are outweighed by other factors. The request must also 
demonstrate that the requested waiver will not create impediments to 
information sharing. Statements citing administrative burden alone will 
ordinarily not be viewed

[[Page 404]]

as sufficient grounds to support a waiver.
    (2) Any approved portion marking waiver will be temporary with 
specific expiration dates.
    (3) Requests for portion marking waivers from elements of the 
Intelligence Community (to include pertinent elements of the Department 
of Defense) should include a statement of support from the Director of 
National Intelligence or his or her designee. Requests for portion 
marking waivers from elements of the Department of Defense (to include 
pertinent elements of the Intelligence Community) should include a 
statement of support from the Secretary of Defense or his or her 
designee. Requests for portion marking waivers from elements of the 
Department of Homeland Security should include a statement of support 
from the Secretary of Homeland Security or his or her designee.
    (4) A document not portion marked, based on an ISOO-approved waiver, 
must contain a warning statement that it may not be used as a source for 
derivative classification.
    (5) If a classified document that is not portion marked, based on an 
ISOO-approved waiver, is transmitted outside the originating 
organization, the document must be portion marked unless otherwise 
explicitly provided in the waiver approval.
    (l) Marking information that has been reclassified. Specific 
information may only be reclassified if all the conditions of section 
1.7(d) of the Order and its implementing directives have been met.
    (1) When taking this action, an original classification authority 
must include the following markings on the information:
    (i) The level of classification;
    (ii) The identity, by name and position, or by personal identifier 
of the original classification authority;
    (iii) Declassification instructions;
    (iv) A concise reason for classification, including reference to the 
applicable classification category from section 1.4 of the Order; and
    (v) The date the reclassification action was taken.
    (2) The original classification authority shall notify all known 
authorized holders of this action.
    (m) Marking of electronic storage media. Classified computer media 
such as USB sticks, hard drives, CD ROMs, and diskettes shall be marked 
to indicate the highest overall classification of the information 
contained within the media.



Sec.  2001.25  Declassification markings.

    (a) General. A uniform security classification system requires that 
standard markings be applied to declassified information. Except in 
extraordinary circumstances, or as approved by the Director of ISOO, the 
marking of declassified information shall not deviate from the following 
prescribed formats. If declassification markings cannot be affixed to 
specific information or materials, the originator shall provide holders 
or recipients of the information with written instructions for marking 
the information. Markings shall be uniformly and conspicuously applied 
to leave no doubt about the declassified status of the information and 
who authorized the declassification.
    (b) The following markings shall be applied to records, or copies of 
records, regardless of media:
    (1) The word, ``Declassified;''
    (2) The identity of the declassification authority, by name and 
position, or by personal identifier, or the title and date of the 
declassification guide. If the identity of the declassification 
authority must be protected, a personal identifier may be used or the 
information may be retained in agency files.
    (3) The date of declassification; and
    (4) The overall classification markings that appear on the cover 
page or first page shall be lined with an ``X'' or straight line. An 
example might appear as:

SECRET
Declassified by David Smith, Chief, Division 5, August 17, 2008



Sec.  2001.26  Automatic declassification exemption markings.

    (a) Marking information exempted from automatic declassification at 
25 years. (1) When the Panel has approved an agency proposal to exempt 
permanently valuable information from automatic

[[Page 405]]

declassification at 25 years, the ``Declassify On'' line shall be 
revised to include the symbol ``25X'' plus the number(s) that 
corresponds to the category(ies) in section 3.3(b) of the Order. Except 
for when the exemption pertains to information that should clearly and 
demonstrably be expected to reveal the identity of a confidential human 
source, or a human intelligence source, or key design concepts of 
weapons of mass destruction, the revised ``Declassify On'' line shall 
also include the new date for declassification as approved by the Panel, 
not to exceed 50 years from the date of origin of the record. Records 
that contain information, the release of which should clearly and 
demonstrably be expected to reveal the identity of a confidential human 
source or a human intelligence source, or key design concepts of weapons 
of mass destruction, are exempt from automatic declassification at 50 
years.
    (2) The pertinent exemptions, using the language of section 3.3(b) 
of the Order, are:

    25X1: reveal the identity of a confidential human source, a human 
intelligence source, a relationship with an intelligence or security 
service of a foreign government or international organization, or a non-
human intelligence source; or impair the effectiveness of an 
intelligence method currently in use, available for use, or under 
development.
    25X2: reveal information that would assist in the development, 
production, or use of weapons of mass destruction;
    25X3: reveal information that would impair U.S. cryptologic systems 
or activities;
    25X4: reveal information that would impair the application of state-
of-the-art technology within a U.S. weapon system;
    25X5: reveal formally named or numbered U.S. military war plans that 
remain in effect, or reveal operational or tactical elements of prior 
plans that are contained in such active plans;
    25X6: reveal information, including foreign government information, 
that would cause serious harm to relations between the United States and 
a foreign government, or to ongoing diplomatic activities of the United 
States;
    25X7: reveal information that would impair the current ability of 
United States Government officials to protect the President, Vice 
President, and other protectees for whom protection services, in the 
interest of the national security, are authorized;
    25X8: reveal information that would seriously impair current 
national security emergency preparedness plans or reveal current 
vulnerabilities of systems, installations, or infrastructures relating 
to the national security; or
    25X9: violate a statute, treaty, or international agreement that 
does not permit the automatic or unilateral declassification of 
information at 25 years.

    (3) The pertinent portion of the marking would appear as:
    Declassify On: 25X4, 20501001

    (4) Documents should not be marked with a ``25X'' marking until the 
agency has been informed that the Panel concurs with the proposed 
exemption.
    (5) Agencies need not apply a ``25X'' marking to individual 
documents contained in a file series exempted from automatic 
declassification under section 3.3(c) of the Order until the individual 
document is removed from the file and may only apply such a marking as 
approved by the Panel under section 3.3(j) of the Order.
    (6) Information containing foreign government information will be 
marked with a date in the ``Declassify On'' line that is no more than 25 
years from the date of the document unless the originating agency has 
applied for and received Panel approval to exempt foreign government 
information from declassification at 25 years. Upon receipt of Panel 
approval, the agency may use either the 25X6 or 25X9 exemption markings, 
as appropriate, in the ``Declassify On'' followed by a date that has 
also been approved by the Panel. An example might appear as: 25X6, 
20600129, or 25X9, 20600627. The marking ``subject to treaty or 
international agreement'' is not to be used at any time.
    (b) Marking information exempted from automatic declassification at 
50 years. Records exempted from automatic declassification at 50 years 
shall be automatically declassified on December 31 of a year that is no 
more than 75 years from the date of origin unless an agency head, within 
five years of that date, proposes to exempt specific information from 
declassification at 75 years and the proposal is formally approved by 
the Panel.
    (1) When the information clearly and demonstrably could be expected 
to reveal the identity of a confidential human source or a human 
intelligence

[[Page 406]]

source, the marking shall be ``50X1-HUM.''
    (2) When the information clearly and demonstrably could reveal key 
design concepts of weapons of mass destruction, the marking shall be 
``50X2-WMD.''
    (3) In extraordinary cases in which the Panel has approved an 
exemption from declassification at 50 years under section 3.3(h) of the 
Order, the same procedures as those under Sec.  2001.26(a) will be 
followed with the exception that the number ``50'' will be used in place 
of the ``25.''
    (4) Requests for exemption from automatic declassification at 50 
years from elements of the Intelligence Community (to include pertinent 
elements of the Department of Defense) should include a statement of 
support from the Director of National Intelligence or his or her 
designee. Requests for automatic declassification exemptions from 
elements of the Department of Defense (to include pertinent elements of 
the Intelligence community) should include a statement of support from 
the Secretary of Defense or his or her designee. Requests for automatic 
declassification exemptions from elements of the Department of Homeland 
Security should include a statement of support from the Secretary of the 
Department of Homeland Security or his or her designee.
    (c) Marking information exempted from automatic declassification at 
75 years. Records exempted from automatic declassification at 75 years 
shall be automatically declassified on December 31 of the year that has 
been formally approved by the Panel.
    (1) Information approved by the Panel as exempt from automatic 
declassification at 75 years shall be marked ``75X'' with the 
appropriate automatic declassification exemption category number 
followed by the approved declassification date or event.
    (2) Requests for exemption from automatic declassification at 75 
years from elements of the Intelligence Community (to include pertinent 
elements of the Department of Defense) should include a statement of 
support from the Director of National Intelligence or his or her 
designee. Requests for automatic declassification exemptions from 
elements of the Department of Defense (to include pertinent elements of 
the Intelligence community) should include a statement of support from 
the Secretary of Defense or his or her designee.



                       Subpart D_Declassification



Sec.  2001.30  Automatic declassification.

    (a) General. All departments and agencies that have original 
classification authority or previously had original classification 
authority, or maintain records determined to be permanently valuable 
that contain classified national security information, shall comply with 
the automatic declassification provisions of the Order. All agencies 
with original classification authority shall cooperate with NARA in 
managing automatic declassification of accessioned Federal records, 
presidential papers and records, and donated historical materials under 
the control of the Archivist.
    (b) Presidential papers, materials, and records. The Archivist shall 
establish procedures for the declassification of presidential, vice-
presidential, or White House materials transferred to the legal custody 
of NARA or maintained in the presidential libraries.
    (c) Classified information in the custody of contractors, licensees, 
certificate holders, or grantees. Pursuant to the provisions of the 
National Industrial Security Program, agencies must provide security 
classification/declassification guidance to such entities or individuals 
who possess classified information. Agencies must also determine if 
classified Federal records are held by such entities or individuals, and 
if so, whether they are permanent records of historical value and thus 
subject to section 3.3 of the Order. Until such a determination has been 
made by an appropriate agency official, such records shall not be 
subject to automatic declassification, or destroyed, and shall be 
safeguarded in accordance with the most recent security classification/
declassification guidance provided by the agency.
    (d) Transferred information. In the case of classified information 
transferred in conjunction with a transfer of functions, and not merely 
for storage,

[[Page 407]]

the receiving agency shall be deemed to be the originating agency.
    (e) Unofficially transferred information. In the case of classified 
information that is not officially transferred as described in paragraph 
(d) of this section but that originated in an agency that has ceased to 
exist and for which there is no successor agency, the agency in 
possession shall serve as the originating agency and shall be 
responsible for actions for those records in accordance with section 3.3 
of the Order and in consultation with the Director of the National 
Declassification Center (NDC).
    (f) Processing records originated by another agency. When an agency 
uncovers classified records originated by another agency that appear to 
meet the criteria for referral according to section 3.3(d) of the Order, 
the finding agency shall identify those records for referral to the 
originating agency as described in Sec.  2001.34.
    (g) Unscheduled records. Classified information in records that have 
not been scheduled for disposal or retention by NARA is not subject to 
section 3.3 of the Order. Classified information in records that become 
scheduled as permanently valuable when that information is already more 
than 20 years old shall be subject to the automatic declassification 
provisions of section 3.3 of the Order five years from the date the 
records are scheduled. Classified information in records that become 
scheduled as permanently valuable when that information is less than 20 
years old shall be subject to the automatic declassification provisions 
of section 3.3 of the Order at 25 years.
    (h) Temporary records and non-record materials. Classified 
information contained in records determined not to be permanently 
valuable or non-record materials shall be processed in accordance with 
section 3.6(c) of the Order.
    (i) Foreign government information. The declassifying agency is the 
agency that initially received or classified the information. When 
foreign government information appears to be subject to automatic 
declassification, the declassifying agency shall determine whether the 
information is subject to a treaty or international agreement that does 
not permit automatic or unilateral declassification. The declassifying 
agency shall also determine if another exemption under section 3.3(b) of 
the Order, such as the exemption that pertains to United States foreign 
relations, may apply to the information. If the declassifying agency 
believes such an exemption may apply, it should consult with any other 
concerned agencies in making its declassification determination. The 
declassifying agency or the Department of State, as appropriate, may 
consult with the foreign government prior to declassification.
    (j) Assistance to the Archivist of the United States. Agencies shall 
consult with the Director of the NDC established in section 3.7 of the 
Order concerning their automatic declassification programs. At the 
request of the Archivist, agencies shall cooperate with the Director of 
the NDC in developing priorities for the declassification of records to 
ensure that declassification is accomplished efficiently and in a timely 
manner. Agencies shall consult with NARA and the Director of the NDC 
before reviewing records in their holdings to ensure that appropriate 
procedures are established for maintaining the integrity of the records 
and that NARA receives accurate and sufficient information about agency 
declassification actions, including metadata and other processing 
information, when records are accessioned by NARA. This data shall 
include certification by the agency that the records have been reviewed 
in accordance with Public Law 105-261, section 3161 governing Restricted 
Data and Formerly Restricted Data.
    (k) Use of approved declassification guides. Approved 
declassification guides are the sole basis for the exemption from 
automatic declassification of specific information as provided in 
section 3.3(b) of the Order and the sole basis for the continued 
classification of information under section 3.3(h) of the Order. These 
guides must be prepared in accordance with section 3.3(j) of the Order 
and include additional pertinent detail relating to the exemptions 
described in sections 3.3(b) and 3.3(h) of the Order, and follow the 
format required of declassification guides as described in Sec.  
2001.32. During a review

[[Page 408]]

under section 3.3 of the Order, it is expected that agencies will use 
these guides to identify specific information for exemption from 
automatic declassification. It is further expected that the guides or 
detailed declassification guidance will be made available to the NDC 
under section 3.7(b) of the Order and to appropriately cleared 
individuals of other agencies to support equity recognition.
    (l) Automatic declassification date. No later than December 31 of 
the year that is 25 years from the date of origin, classified records 
determined to be permanently valuable shall be automatically 
declassified unless automatic declassification has been delayed for any 
reason as provided in Sec.  2001.30(n) and sections 3.3(b) and (c) of 
the Order. If the date of origin of an individual record cannot be 
readily determined, the date of original classification shall be used 
instead.
    (m) Exemption from Automatic Declassification at 25, 50, or 75 
years. Agencies may propose to exempt from automatic declassification 
specific information, either by reference to information in specific 
records, in specific file series of records, or in the form of a 
declassification guide, in accordance with section 3.3(j) of the Order. 
Agencies may propose to exempt information within five years of, but not 
later than one year before the information is subject to automatic 
declassification. The agency head or senior agency official, within the 
specified timeframe, shall notify the Director of ISOO, serving as the 
Executive Secretary of the Panel, of the specific information being 
proposed for exemption from automatic declassification.
    (n) Delays in the onset of automatic declassification--(1) Media 
that make a review for possible declassification exemptions more 
difficult or costly. An agency head or senior agency official shall 
consult with the Director of the NDC before delaying automatic 
declassification for up to five years for classified information 
contained in media that make a review for possible declassification more 
difficult or costly. When determined by NARA or jointly determined by 
NARA and another agency, the following may be delayed due to the 
increased difficulty and cost of conducting declassification processing:
    (i) Records requiring extraordinary preservation or conservation 
treatment, to include reformatting, to preclude damage to the records by 
declassification processing;
    (ii) Records which pose a potential menace to health, life, or 
property due to contamination by a hazardous substance; and
    (iii) Electronic media if the media is subject to issues of software 
or hardware obsolescence or degraded data.
    (2) Referred records. Records containing classified information that 
originated with other agencies or the disclosure of which would affect 
the interests or activities of other agencies and could reasonably be 
expected to fall under one or more of the exemption categories of 
section 3.3(b) of the Order shall be identified prior to the onset of 
automatic declassification for later referral to those agencies. 
Declassification reviewers shall be trained periodically on other agency 
equities to aid in the proper identification of other agency equities 
eligible for referral.
    (i) Information properly identified as a referral to another agency 
contained in records accessioned by NARA or in the custody of the 
presidential libraries shall be subject to automatic declassification 
only after the referral has been made available by NARA for agency 
review in accordance with Sec.  2001.34, provided the information has 
not otherwise been properly exempted by an equity holding agency under 
section 3.3 of the Order.
    (ii) Information properly identified as a referral to another agency 
contained in records maintained in the physical, but not legal, custody 
of NARA shall be subject to automatic declassification after 
accessioning and in accordance with Sec.  2001.34, provided the 
information has not otherwise been properly exempted by an equity 
holding agency under section 3.3 of the Order.
    (3) Newly discovered records. An agency head or senior agency 
official must consult with the Director of ISOO on any decision to delay 
automatic declassification of newly discovered records no later than 90 
days, from the

[[Page 409]]

discovery of the records. The notification shall identify the records, 
their volume, the anticipated date for declassification, and the 
circumstances of the discovery. An agency may be granted up to three 
years from the date of discovery to make a declassification, exemption, 
or referral determination. If referrals to other agencies are properly 
identified, they will be handled in accordance with subparagraphs 2(i) 
and 2(ii) above.
    (4) Integral file blocks. Classified records within an integral file 
block that are otherwise subject to automatic declassification under 
section 3.3 of the Order shall not be automatically declassified until 
December 31 of the year that is 25 years from the date of the most 
recent record within the file block. For purposes of automatic 
declassification, integral file blocks shall contain only records dated 
within ten years of the oldest record in the file block. Integral file 
blocks applied prior to December 29, 2009, that cover more than ten 
years remain in effect until December 31, 2012, unless an agency 
requests an extension from the Director of ISOO on a case-by-case basis 
prior to December 31, 2011, which is subsequently approved.
    (5) File series exemptions. Agencies seeking to delay the automatic 
declassification of a specific series of records as defined in section 
6.1(r) of the Order because it almost invariably contains information 
that falls within one or more of the exemption categories under section 
3.3(b) must submit their request in accordance with section 3.3(c) of 
the Order to the Director of ISOO, serving as Executive Secretary of the 
Panel, at least one year prior to the onset of automatic 
declassification. Once approved by the Panel, the records in the file 
series exemption remain subject to section 3.5 of the Order. This delay 
applies only to records within the specific file series. Copies of 
records within the specific file series or records of a similar topic to 
the specific file series located elsewhere may be exempted in accordance 
with exemptions approved by the Panel.
    (o) Redaction standard. Agencies are encouraged but are not required 
to redact documents that contain information that is exempt from 
automatic declassification under section 3.3 of the Order, especially if 
the information that must remain classified comprises a relatively small 
portion of the document. Any such redactions shall be performed in 
accordance with policies and procedures established in accordance with 
Sec.  2001.45(d).
    (p) Restricted Data and Formerly Restricted Data. (1) Restricted 
Data and Formerly Restricted Data are excluded from the automatic 
declassification requirements in section 3.3 of the Order because they 
are classified under the Atomic Energy Act of 1954, as amended. 
Restricted Data concerns:
    (i) The design, manufacture, or utilization of atomic weapons;
    (ii) The production of special nuclear material, e.g., enriched 
uranium or plutonium; or
    (iii) The use of special nuclear material in the production of 
energy.
    (2) Formerly Restricted Data is information that is still classified 
under the Atomic Energy Act of 1954, as amended, but which has been 
removed from the Restricted Data category because it is related 
primarily to the military utilization of atomic weapons.
    (3) Any document marked as containing Restricted Data or Formerly 
Restricted Data or identified as potentially containing unmarked 
Restricted Data or Formerly Restricted Data shall be referred to the 
Department of Energy in accordance with Sec.  2001.34(b)(8).
    (4) Automatic declassification of documents containing Restricted 
Data or Formerly Restricted Data is prohibited. Documents marked as 
containing Restricted Data or Formerly Restricted Data are excluded from 
the automatic declassification provisions of the Order until the 
Restricted Data or Formerly Restricted Data designation is properly 
removed by the Department of Energy. When the Department of Energy 
determines that a Restricted Data or Formerly Restricted Data 
designation may be removed, any remaining information classified under 
the Order must be referred to the appropriate agency in accordance with 
the declassification provisions of the Order and this Directive.

[[Page 410]]

    (5) Any document containing information concerning foreign nuclear 
programs that was removed from the Restricted Data category in order to 
carry out provisions of the National Security Act of 1947, as amended, 
shall be referred to the Department of Energy.
    (6) The Secretary of Energy shall determine when information 
concerning foreign nuclear programs that was removed from the Restricted 
Data category in order to carry out the provisions of the National 
Security Act of 1947, as amended, may be declassified. Unless otherwise 
determined, information concerning foreign nuclear programs (e.g., 
intelligence assessments or reports, foreign nuclear program information 
provided to the U.S. Government) shall be declassified when comparable 
information concerning the United States nuclear program is 
declassified. When the Secretary of Energy determines that information 
concerning foreign nuclear programs may be declassified, any remaining 
information classified under the Order must be referred to the 
appropriate agency in accordance with the declassification provisions of 
the Order and this Directive.



Sec.  2001.31  Systematic declassification review.

    (a) General. Agencies shall establish systematic review programs for 
those records containing information exempted from automatic 
declassification. This includes individual records as well as file 
series of records. Agencies shall prioritize their review of such 
records in accordance with priorities established by the NDC.



Sec.  2001.32  Declassification guides.

    (a) Preparation of declassification guides. Beginning one year after 
the effective date of this directive, declassification guides must be 
submitted to the Director of ISOO, serving as the Executive Secretary of 
the Panel, at least one year prior to the onset of automatic 
declassification for approval by the Panel. Currently approved guides 
remain in effect until a new guide is approved, to the extent they are 
otherwise applied consistent with section 3.3(b) of the Order. The 
information to be exempted must be narrowly defined, with sufficient 
specificity to allow the user to identify the information with 
precision. Exemptions must be based upon specific content and not type 
of document. Exemptions for general categories of information are not 
acceptable. Agencies must prepare guides that clearly delineate between 
the exemptions proposed under sections 3.3(b), 3.3(h)(1) and (2), and 
3.3(h)(3).
    (b) General content of declassification guides. Declassification 
guides must be specific and detailed as to the information requiring 
continued classification and clearly and demonstrably explain the 
reasons for continued classification. Declassification guides shall:
    (1) Be submitted by the agency head or the designated senior agency 
official;
    (2) Provide the date of issuance or last review;
    (3) State precisely the information that the agency proposes to 
exempt from automatic declassification and to specifically declassify;
    (4) Identify any related files series that have been exempted from 
automatic declassification pursuant to section 3.3(c) of the Order; and
    (5) To the extent a guide is used in conjunction with the automatic 
declassification provisions in section 3.3 of the Order, state precisely 
the elements of information to be exempted from declassification to 
include:
    (i) The appropriate exemption category listed in section 3.3(b), 
and, if appropriate, section 3.3(h) of the Order; and
    (ii) A date or event for declassification that is in accordance with 
section 3.3(b) or section 3.3(h).
    (c) Internal review and update. Agency declassification guides shall 
be reviewed and updated as circumstances require, but at least once 
every five years. Each agency shall maintain a list of its 
declassification guides in use.
    (d) Dissemination of guides. (1) Declassification guides shall be 
disseminated within the agency to be used by all personnel with 
declassification review responsibilities.
    (2) Declassification guides or detailed declassification guidance 
shall be submitted to the Director of the NDC in

[[Page 411]]

accordance with section 3.7(b)(3) of the Order.



Sec.  2001.33  Mandatory review for declassification.

    (a) U.S. originated information--(1) Regulations. Each agency shall 
publish, and update as needed or required, in the Federal Register 
regulations concerning the handling of mandatory declassification review 
requests, to include the identity of the person(s) or office(s) to which 
requests should be addressed.
    (2) Processing--(i) Requests for classified records in the custody 
of the originating agency. A valid mandatory declassification review 
request must be of sufficient specificity to allow agency personnel to 
locate the records containing the information sought with a reasonable 
amount of effort. Requests for broad types of information, entire file 
series of records, or similar non-specific requests may be denied by 
agencies for processing under this section. In responding to mandatory 
declassification review requests, agencies shall make a final 
determination within one year from the date of receipt. When information 
cannot be declassified in its entirety, agencies shall make reasonable 
efforts to release, consistent with other applicable laws, those 
declassified portions of the requested information that constitute a 
coherent segment. Upon denial, in whole or in part, of an initial 
request, the agency shall also notify the requestor of the right of an 
administrative appeal, which must be filed within 60 days of receipt of 
the denial. Agencies receiving mandatory review requests are expected to 
conduct a line-by-line review of the record(s) for public access and are 
expected to release the information to the requestor, unless that 
information is prohibited from release under the provisions of a 
statutory authority, such as, but not limited to, the Freedom of 
Information Act, (5 U.S.C. 552), as amended, the Presidential Records 
Act of 1978 (44 U.S.C. 2201-2207), or the National Security Act of 1947 
(Pub. L. 235, 61 Stat. 496, 50 U.S.C. Chapter 15).
    (ii) Requests for classified records in the custody of an agency 
other than the originating agency. When an agency receives a mandatory 
declassification review request for records in its possession that were 
originated by another agency, it shall refer the request and the 
pertinent records to the originating agency. However, if the originating 
agency has previously agreed that the custodial agency may review its 
records, the custodial agency shall review the requested records in 
accordance with declassification guides or guidelines provided by the 
originating agency. Upon receipt of a request from the referring agency, 
the originating agency shall promptly process the request for 
declassification and release in accordance with this section. The 
originating agency shall communicate its declassification determination 
to the referring agency. The referring agency is responsible for 
collecting all agency review results and informing the requestor of any 
final decision regarding the declassification of the requested 
information unless a prior arrangement has been made with the 
originating agency.
    (iii) Appeals of denials of mandatory declassification review 
requests. The agency appellate authority shall normally make a 
determination within 60 working days following the receipt of an appeal. 
If additional time is required to make a determination, the agency 
appellate authority shall notify the requester of the additional time 
needed and provide the requester with the reason for the extension. The 
agency appellate authority shall notify the requestor in writing of the 
final determination and of the reasons for any denial. The appellate 
authority must inform the requestor of his or her final appeal rights to 
the Panel.
    (iv) Appeals to the Interagency Security Classification Appeals 
Panel. In accordance with section 5.3(c) of the Order, the Panel shall 
publish in the Federal Register the rules and procedures for bringing 
mandatory declassification appeals before it.
    (v) Records subject to mandatory declassification review. Records 
containing information exempted from automatic declassification in 
accordance with section 3.3(c) of the Order or with Sec.  2001.30(n)(1) 
are still subject to the mandatory declassification review provisions of 
section 3.5 of the Order.

[[Page 412]]

    (b) Foreign government information. Except as provided in this 
paragraph, agencies shall process mandatory declassification review 
requests for classified records containing foreign government 
information in accordance with this section. The declassifying agency is 
the agency that initially received or classified the information. When 
foreign government information is being considered for declassification, 
the declassifying agency shall determine whether the information is 
subject to a treaty or international agreement that does not permit 
automatic or unilateral declassification. The declassifying agency or 
the Department of State, as appropriate, may consult with the foreign 
government(s) prior to declassification.
    (c) Cryptologic information. Mandatory declassification review 
requests for cryptologic information shall be processed in accordance 
with special procedures issued by the Secretary of Defense and, when 
cryptologic information pertains to intelligence activities, the 
Director of National Intelligence.
    (d) Intelligence information. Mandatory declassification review 
requests for information pertaining to intelligence sources, methods, 
and activities shall be processed in accordance with special procedures 
issued by the Director of National Intelligence.
    (e) Fees. In responding to mandatory declassification review 
requests for classified records, agency heads may charge fees in 
accordance with 31 U.S.C. 9701 or relevant fee provisions in other 
applicable statutes.
    (f) Requests filed under mandatory declassification review and the 
Freedom of Information Act. When a requester submits a request both 
under mandatory declassification review and the Freedom of Information 
Act (FOIA), the agency shall require the requestor to select one process 
or the other. If the requestor fails to select one or the other, the 
request will be treated as a FOIA request unless the requested materials 
are subject only to mandatory declassification review.
    (g) FOIA and Privacy Act requests. Agency heads shall process 
requests for declassification that are submitted under the provisions of 
the FOIA, as amended, or the Privacy Act of 1974 (5 U.S.C. 552a), as 
amended, in accordance with the provisions of those Acts.
    (h) Redaction standard. Agencies shall redact documents that are the 
subject of an access demand unless the overall meaning or informational 
value of the document is clearly distorted by redaction. The specific 
reason for the redaction, as provided for in section 1.4 or 3.3(b) of 
the Order, as applicable, must be included for each redaction. 
Information that is redacted due to a statutory authority must be 
clearly marked with the specific authority that authorizes the 
redaction. Any such redactions shall be performed in accordance with 
policies and procedures established in accordance with Sec.  2001.45(d).
    (i) Limitations on requests. Requests for mandatory declassification 
review made to an element of the Intelligence Community by anyone other 
than a citizen of the United States or an alien lawfully admitted for 
permanent residence, may be denied by the receiving Intelligence 
Community element. Documents required to be submitted for pre-
publication review or other administrative process pursuant to an 
approved nondisclosure agreement are not subject to mandatory 
declassification review.



Sec.  2001.34  Referrals.

    (a) General. Referrals are required under sections 3.3(d)(3) and 
3.6(b) of the Order in order to ensure the timely, efficient, and 
effective processing of reviews and requests and in order to protect 
classified information from inadvertent disclosure.
    (b) Automatic declassification. The referral process for records 
subject to automatic declassification entails identification of records 
containing classified information that originated with other agencies or 
the disclosure of which would affect the interests or activities of 
other agencies. Those records that could reasonably be expected to fall 
under one or more of the exemptions in section 3.3(b) of the Order are 
eligible for referral. The referral process also entails formal 
notification to those agencies, making the records available for review 
by those agencies, and recording final agency determinations.

[[Page 413]]

    (1) In accordance with section 3.3(d)(3) of the Order, the 
identification of records eligible for referral is the responsibility of 
the primary reviewing agency and shall be completed prior to the date of 
automatic declassification established by section 3.3(a) of the Order.
    (2) Except as otherwise determined by the Director of the NDC, 
primary reviewing agencies shall utilize the Standard Form 715, 
Government Declassification Review Tab, to tab and identify any Federal 
record requiring referral and record the referral in a manner that 
provides the referral information in an NDC database system.
    (3) Notification of referral of records accessioned into NARA or in 
the custody of the presidential libraries, and making the records 
available for review, is the responsibility of NARA and shall be 
accomplished through the NDC.
    (4) Within 180 days of the effective date of this provision, the NDC 
shall develop and provide the affected agencies with a comprehensive and 
prioritized schedule for the resolution of referrals contained in 
accessioned Federal records and Presidential records. The schedule shall 
be developed in consultation with the affected agencies, consider the 
public interest in the records, and be in accordance with the authorized 
delays to automatic declassification set forth in section 3.3(d) of the 
Order. The initial schedule shall cover the balance of the first 
effective fiscal year and four subsequent fiscal years. Thereafter, the 
schedule shall cover five fiscal years. The NDC shall consult with the 
affected agencies and update and provide such schedules annually.
    (5) The NDC shall provide formal notification of the availability of 
a referral to the receiving agency and records will be subject to 
automatic declassification in accordance with the schedule promulgated 
by the NDC in paragraph (b)(4) of this section, unless the information 
has been properly exempted by an equity holding agency under section 3.3 
of the Order.
    (6) Records in the physical but not legal custody of NARA shall be 
subject to automatic declassification after accessioning and in 
accordance with paragraphs (b)(3) and (b)(5) of this section.
    (7) Agencies that establish a centralized facility as described in 
section 3.7(e) may make direct referrals provided such activities fall 
within the priorities and schedule established by the NDC and the 
activity is otherwise coordinated with the NDC. In such cases, the 
centralized facility is responsible for providing formal notification of 
a referral to receiving agencies and for making the records available 
for review or direct formal referral to agencies by providing a copy of 
the records unless another mechanism is identified in coordination with 
the NDC. As established in section 3.3(d)(3)(B), referrals to agencies 
from a centralized agency records facility as described in section 
3.7(e) of the Order will be automatically declassified up to three years 
after the formal notification has been made, if the receiving agency 
fails to provide a final determination.
    (8) Records marked as containing Restricted Data or Formerly 
Restricted Data or identified as potentially containing unmarked 
Restricted Data or Formerly Restricted Data shall be referred to the 
Department of Energy through the NDC. If the Department of Energy 
confirms that the document contains Restricted Data or Formerly 
Restricted Data, it shall then be excluded from the automatic 
declassification provisions of the Order until the Restricted Data or 
Formerly Restricted Data designation is properly removed.
    (i) When the Department of Energy provides notification that a 
Restricted Data or Formerly Restricted Data designation is not 
appropriate or when it is properly removed, the record shall be 
processed for automatic declassification through the NDC.
    (ii) In all cases, should the record be the subject of an access 
demand made pursuant to the Order or provision of law, the information 
classified pursuant to Executive order (rather than the Atomic Energy 
Act, as amended) must stand on its own merits.
    (9) The NDC, as well as any centralized agency facility established 
under section 3.7(e) of the Order, shall track

[[Page 414]]

and document referral actions and decisions in a manner that facilitates 
archival processing for public access. Central agency facilities must 
work with the NDC to ensure documentation meets NDC requirements, and 
transfer all documentation on pending referral actions and referral 
decisions to the NDC when transferring the records to NARA.
    (10) In all cases, receiving agencies shall acknowledge receipt of 
formal referral notifications in a timely manner. If a disagreement 
arises concerning referral notifications, the Director of ISOO will 
determine the automatic declassification date and notify the senior 
agency official, as well as the NDC or the primary reviewing agency.
    (11) Remote Archives Capture (RAC). Presidential records or 
materials scanned in the RAC process shall be prioritized and scheduled 
for review by the NDC. The initial notification shall be made to the 
agency with primary equity, which shall have up to one year to act on 
its information and to identify all other equities eligible for 
referral. All such additional referrals in an individual record shall be 
made at the same time, and once notified by the NDC of an eligible 
referral, such receiving agencies shall have up to one year to review 
the records before the onset of automatic declassification.
    (c) Agencies eligible to receive referrals. The Director of ISOO 
will publish annually a list of those agencies eligible to receive 
referrals for each calendar year.
    (d) Systematic declassification review. The identification of 
equities shall be accomplished in accordance with paragraph (b) of this 
section. Priorities for review will be established by the NDC.
    (e) Identification of interests other than national security. 
Referrals under sections 3.3(d)(3) and 3.6(b) of the Order shall be 
assumed to be intended for later public release unless withholding is 
otherwise authorized and warranted under applicable law. If a receiving 
agency proposes to withhold any such information, it must notify the 
referring agency at the time they otherwise respond to the referral. 
Such notification shall identify the specific information at issue and 
the pertinent law.



Sec.  2001.35  Discretionary declassification.

    (a) In accordance with section 3.1(d) of the Order, agencies may 
declassify information when the public interest in disclosure outweighs 
the need for continued classification.
    (b) Agencies may also establish a discretionary declassification 
program that is separate from their automatic, systematic, and mandatory 
review programs.



Sec.  2001.36  Classified information in the custody of private 
organizations or individuals.

    (a) Authorized holders. Agencies may allow for the holding of 
classified information by a private organization or individual provided 
that all access and safeguarding requirements of the Order have been 
met. Agencies must provide declassification assistance to such 
organizations or individuals.
    (b) Others. Anyone who becomes aware of organizations or individuals 
who possess potentially classified national security information outside 
of government control must contact the Director of ISOO for guidance and 
assistance. The Director of ISOO, in consultation with other agencies, 
as appropriate, will ensure that the safeguarding and declassification 
requirements of the Order are met.



Sec.  2001.37  Assistance to the Department of State.

    Heads of agencies shall assist the Department of State in its 
preparation of the Foreign Relations of the United States (FRUS) series 
by facilitating access to appropriate classified materials in their 
custody and by expediting declassification review of documents proposed 
for inclusion in the FRUS. If an agency fails to provide a final 
declassification review determination regarding a Department of State 
referral within 120 days of the date of the referral, or if applicable, 
within 120 days of the date of a High Level Panel decision, the 
Department of State, consistent with 22 U.S.C. 4353 and any implementing 
agency procedures, may seek the assistance of the Panel.

[[Page 415]]



                         Subpart E_Safeguarding



Sec.  2001.40  General.

    (a) Classified information, regardless of its form, shall be 
afforded a level of protection against loss or unauthorized disclosure 
commensurate with its level of classification.
    (b) Except for foreign government information, agency heads or their 
designee(s) may adopt alternative measures, using risk management 
principles, to protect against loss or unauthorized disclosure when 
necessary to meet operational requirements. When alternative measures 
are used for other than temporary, unique situations, the alternative 
measures shall be documented and provided to the Director of ISOO. Upon 
request, the description shall be provided to any other agency with 
which classified information or secure facilities are shared. In all 
cases, the alternative measures shall provide protection sufficient to 
reasonably deter and detect loss or unauthorized disclosure. Risk 
management factors considered will include sensitivity, value, and 
crucial nature of the information; analysis of known and anticipated 
threats; vulnerability; and countermeasure benefits versus cost.
    (c) North Atlantic Treaty Organization (NATO) classified information 
shall be safeguarded in compliance with U.S. Security Authority for NATO 
Instruction (USSAN) 1-07. Other foreign government information shall be 
safeguarded as described herein for U.S. information except as required 
by an existing treaty, agreement or other obligation (hereinafter, 
obligation). When the information is to be safeguarded pursuant to an 
existing obligation, the additional requirements at Sec.  2001.54 may 
apply to the extent they were required in the obligation as originally 
negotiated or are agreed upon during amendment. Negotiations on new 
obligations or amendments to existing obligations shall strive to bring 
provisions for safeguarding foreign government information into accord 
with standards for safeguarding U.S. information as described in this 
Directive.
    (d) Need-to-know determinations. (1) Agency heads, through their 
designees, shall identify organizational missions and personnel 
requiring access to classified information to perform or assist in 
authorized governmental functions. These mission and personnel 
requirements are determined by the functions of an agency or the roles 
and responsibilities of personnel in the course of their official 
duties. Personnel determinations shall be consistent with section 4.1(a) 
of the Order.
    (2) In instances where the provisions of section 4.1(a) of the Order 
are met, but there is a countervailing need to restrict the information, 
disagreements that cannot be resolved shall be referred by agency heads 
or designees to either the Director of ISOO or, with respect to the 
Intelligence Community, the Director of National Intelligence, as 
appropriate. Disagreements concerning information protected under 
section 4.3 of the Order shall instead be referred to the appropriate 
official named in section 4.3 of the Order.



Sec.  2001.41  Responsibilities of holders.

    Authorized persons who have access to classified information are 
responsible for:
    (a) Protecting it from persons without authorized access to that 
information, to include securing it in approved equipment or facilities 
whenever it is not under the direct control of an authorized person;
    (b) Meeting safeguarding requirements prescribed by the agency head; 
and
    (c) Ensuring that classified information is not communicated over 
unsecured voice or data circuits, in public conveyances or places, or in 
any other manner that permits interception by unauthorized persons.



Sec.  2001.42  Standards for security equipment.

    (a) Storage. The Administrator of the General Services 
Administration (GSA) shall, in coordination with agency heads 
originating classified information, establish and publish uniform 
standards, specifications, qualified product lists or databases, and 
supply schedules for security equipment designed to provide secure 
storage for classified information. Whenever new secure storage 
equipment is procured, it shall be in conformance with the

[[Page 416]]

standards and specifications established by the Administrator of the 
GSA, and shall, to the maximum extent possible, be of the type available 
through the Federal Supply System.
    (b) Destruction. Effective January 1, 2011, only equipment listed on 
an Evaluated Products List (EPL) issued by the National Security Agency 
(NSA) may be utilized to destroy classified information using any method 
covered by an EPL. However, equipment approved for use prior to January 
1, 2011, and not found on an EPL, may be utilized for the destruction of 
classified information until December 31, 2016. Unless NSA determines 
otherwise, whenever an EPL is revised, equipment removed from an EPL may 
be utilized for the destruction of classified information up to six 
years from the date of its removal from an EPL. In all cases, if any 
such previously approved equipment needs to be replaced or otherwise 
requires a rebuild or replacement of a critical assembly, the unit must 
be taken out of service for the destruction in accordance with this 
section. The Administrator of the GSA shall, to the maximum extent 
possible, coordinate supply schedules and otherwise seek to make 
equipment on an EPL available through the Federal Supply System.



Sec.  2001.43  Storage.

    (a) General. Classified information shall be stored only under 
conditions designed to deter and detect unauthorized access to the 
information. Storage at overseas locations shall be at U.S. Government-
controlled facilities unless otherwise stipulated in treaties or 
international agreements. Overseas storage standards for facilities 
under a Chief of Mission are promulgated under the authority of the 
Overseas Security Policy Board.
    (b) Requirements for physical protection--(1) Top Secret. Top Secret 
information shall be stored in a GSA-approved security container, a 
vault built to Federal Standard (FED STD) 832, or an open storage area 
constructed in accordance with Sec.  2001.53. In addition, supplemental 
controls are required as follows:
    (i) For GSA-approved containers, one of the following supplemental 
controls:
    (A) Inspection of the container every two hours by an employee 
cleared at least to the Secret level;
    (B) An Intrusion Detection System (IDS) with the personnel 
responding to the alarm arriving within 15 minutes of the alarm 
annunciation. Acceptability of Intrusion Detection Equipment (IDE): All 
IDE must be in accordance with standards approved by ISOO. Government 
and proprietary installed, maintained, or furnished systems are subject 
to approval only by the agency head; or
    (C) Security-In-Depth coverage of the area in which the container is 
located, provided the container is equipped with a lock meeting Federal 
Specification FF-L-2740.
    (ii) For open storage areas covered by Security-In-Depth, an IDS 
with the personnel responding to the alarm arriving within 15 minutes of 
the alarm annunciation.
    (iii) For open storage areas not covered by Security-In-Depth, 
personnel responding to the alarm shall arrive within five minutes of 
the alarm annunciation.
    (2) Secret. Secret information shall be stored in the same manner as 
Top Secret information or, until October 1, 2012, in a non-GSA-approved 
container having a built-in combination lock or in a non-GSA-approved 
container secured with a rigid metal lockbar and an agency head approved 
padlock. Security-In-Depth is required in areas in which a non-GSA-
approved container or open storage area is located. Except for storage 
in a GSA-approved container or a vault built to FED STD 832, one of the 
following supplemental controls is required:
    (i) Inspection of the container or open storage area every four 
hours by an employee cleared at least to the Secret level; or
    (ii) An IDS with the personnel responding to the alarm arriving 
within 30 minutes of the alarm annunciation.
    (3) Confidential. Confidential information shall be stored in the 
same manner as prescribed for Top Secret or Secret information except 
that supplemental controls are not required.
    (c) Combinations. Use and maintenance of dial-type locks and other 
changeable combination locks.

[[Page 417]]

    (1) Equipment in service. Combinations to dial-type locks shall be 
changed only by persons authorized access to the level of information 
protected unless other sufficient controls exist to prevent access to 
the lock or knowledge of the combination. Combinations shall be changed 
under the following conditions:
    (i) Whenever such equipment is placed into use;
    (ii) Whenever a person knowing the combination no longer requires 
access to it unless other sufficient controls exist to prevent access to 
the lock; or
    (iii) Whenever a combination has been subject to possible 
unauthorized disclosure.
    (2) Equipment out of service. When security equipment is taken out 
of service, it shall be inspected to ensure that no classified 
information remains and the combination lock should be reset to a 
standard combination of 50-25-50 for built-in combination locks or 10-
20-30 for combination padlocks.
    (d) Key operated locks. When special circumstances exist, an agency 
head may approve the use of key operated locks for the storage of Secret 
and Confidential information. Whenever such locks are used, 
administrative procedures for the control and accounting of keys and 
locks shall be included in implementing regulations required under 
section 5.4(d)(2) of the Order.
    (e) Repairs. The neutralization and repair of GSA-approved security 
containers and vault doors will be in accordance with FED STD 809.



Sec.  2001.44  Reciprocity of use and inspection of facilities.

    (a) Once a facility is authorized, approved, certified, or 
accredited for classified use, then all agencies desiring to conduct 
classified work in the designated space(s) at the same security level 
shall accept the authorization, approval, certification, or 
accreditation without change, enhancements, or upgrades provided that no 
waiver, exception, or deviation has been issued or approved. In the 
event that a waiver exception, or deviation was granted in the original 
accreditation of the designated space(s), an agency seeking to utilize 
the designated facility space may require that a risk mitigation 
strategy be implemented or agreed upon prior to using the space(s).
    (b) Subsequent security inspections or reviews for authorization, 
approval, certification, or accreditation purposes shall normally be 
conducted no more frequently than annually unless otherwise required due 
to a change in the designated facility space(s) or due to a change in 
the use or ownership of the facility space(s). This does not imply a 
formal one-year inspection or review requirement or establish any other 
formal period for inspections or review.



Sec.  2001.45  Information controls.

    (a) General. Agency heads shall establish a system of control 
measures which assure that access to classified information is provided 
to authorized persons. The control measures shall be appropriate to the 
environment in which the access occurs and the nature and volume of the 
information. The system shall include technical, physical, and personnel 
control measures. Administrative control measures which may include 
records of internal distribution, access, generation, inventory, 
reproduction, and disposition of classified information shall be 
required when technical, physical and personnel control measures are 
insufficient to deter and detect access by unauthorized persons.
    (1) Combinations. Combinations to locks used to secure vaults, open 
storage areas, and security containers that are approved for the 
safeguarding of classified information shall 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.
    (2) Computer and information system passwords. Passwords shall be 
protected in the same manner as the highest level of classified 
information that the computer or system is certified and accredited to 
process. Passwords shall be changed on a frequency determined to be 
sufficient to meet the level of risk assessed by the agency.
    (b) Reproduction. Reproduction of classified information shall be 
held to the minimum consistent with operational requirements. The 
following additional control measures shall be taken:

[[Page 418]]

    (1) Reproduction shall be accomplished by authorized persons 
knowledgeable of the procedures for classified reproduction;
    (2) Unless restricted by the originating agency, Top Secret, Secret, 
and Confidential information may be reproduced to the extent required by 
operational needs, or to facilitate review for declassification;
    (3) Copies of classified information shall be subject to the same 
controls as the original information; and
    (4) The use of technology that prevents, discourages, or detects the 
unauthorized reproduction of classified information is encouraged.
    (c) Forms. The use of standard forms prescribed in subpart H of this 
part is mandatory for all agencies that create and/or handle national 
security information.
    (d) Redaction--(1) Policies and procedures. Classified information 
may be subject to loss, compromise, or unauthorized disclosure if it is 
not correctly redacted. Agencies shall establish policies and procedures 
for the redaction of classified information from documents intended for 
release. Such policies and procedures require the approval of the agency 
head and shall be sufficiently detailed to ensure that redaction is 
performed consistently and reliably, using only approved redaction 
methods that permanently remove the classified information from copies 
of the documents intended for release. Agencies shall ensure that 
personnel who perform redaction fully understand the policies, 
procedures, and methods and are aware of the vulnerabilities surrounding 
the process.
    (2) Technical guidance for redaction. Technical guidance concerning 
appropriate methods, equipment, and standards for the redaction of 
classified electronic and optical media shall be issued by NSA.



Sec.  2001.46  Transmission.

    (a) General. Classified information shall be transmitted and 
received in an authorized manner which ensures that evidence of 
tampering can be detected, that inadvertent access can be precluded, and 
that provides a method which assures timely delivery to the intended 
recipient. Persons transmitting classified information are responsible 
for ensuring that intended recipients are authorized persons with the 
capability to store classified information in accordance with this 
Directive.
    (b) Dispatch. Agency heads shall establish procedures which ensure 
that:
    (1) All classified information physically transmitted outside 
facilities shall be enclosed in two layers, both of which provide 
reasonable evidence of tampering and which conceal the contents. The 
inner enclosure shall clearly identify the address of both the sender 
and the intended recipient, the highest classification level of the 
contents, and any appropriate warning notices. The outer enclosure shall 
be the same except that no markings to indicate that the contents are 
classified shall be visible. Intended recipients shall be identified by 
name only as part of an attention line. The following exceptions apply:
    (i) If the classified information is an internal component of a 
packable item of equipment, the outside shell or body may be considered 
as the inner enclosure provided it does not reveal classified 
information;
    (ii) If the classified information is an inaccessible internal 
component of a bulky item of equipment, the outside or body of the item 
may be considered to be a sufficient enclosure provided observation of 
it does not reveal classified information;
    (iii) If the classified information is an item of equipment that is 
not reasonably packable and the shell or body is classified, it shall be 
concealed with an opaque enclosure that will hide all classified 
features;
    (iv) Specialized shipping containers, including closed cargo 
transporters or diplomatic pouch, may be considered the outer enclosure 
when used; and
    (v) When classified information is hand-carried outside a facility, 
a locked briefcase may serve as the outer enclosure.
    (2) Couriers and authorized persons designated to hand-carry 
classified information shall ensure that the information remains under 
their constant and continuous protection and that direct point-to-point 
delivery is made. As an exception, agency heads may approve, as a 
substitute for a courier on

[[Page 419]]

direct flights, the use of specialized shipping containers that are of 
sufficient construction to provide evidence of forced entry, are secured 
with a combination padlock meeting Federal Specification FF-P-110, are 
equipped with an electronic seal that would provide evidence of 
surreptitious entry and are handled by the carrier in a manner to ensure 
that the container is protected until its delivery is completed.
    (c) Transmission methods within and between the U.S., Puerto Rico, 
or a U.S. possession or trust territory--(1) Top Secret. Top Secret 
information shall be transmitted by direct contact between authorized 
persons; the Defense Courier Service or an authorized government agency 
courier service; a designated courier or escort with Top Secret 
clearance; electronic means over approved communications systems. Under 
no circumstances will Top Secret information be transmitted via the U.S. 
Postal Service or any other cleared or uncleared commercial carrier.
    (2) Secret. Secret information shall be transmitted by:
    (i) Any of the methods established for Top Secret; U.S. Postal 
Service Express Mail and U.S. Postal Service Registered Mail, as long as 
the Waiver of Signature block on the U.S. Postal Service Express Mail 
Label shall not be completed; and cleared commercial carriers or cleared 
commercial messenger services. The use of street-side mail collection 
boxes is strictly prohibited; and
    (ii) Agency heads may, when a requirement exists for overnight 
delivery within the U.S. and its Territories, authorize the use of the 
current holder of the GSA contract for overnight delivery of information 
for the Executive Branch as long as applicable postal regulations (39 
CFR. Chapter I) are met. Any such delivery service shall be U.S. owned 
and operated, provide automated in-transit tracking of the classified 
information, and ensure package integrity during transit. The contract 
shall require cooperation with government inquiries in the event of a 
loss, theft, or possible unauthorized disclosure of classified 
information. The sender is responsible for ensuring that an authorized 
person will be available to receive the delivery and verification of the 
correct mailing address. The package may be addressed to the recipient 
by name. The release signature block on the receipt label shall not be 
executed under any circumstances. The use of external (street side) 
collection boxes is prohibited. Classified Communications Security 
Information, NATO, and foreign government information shall not be 
transmitted in this manner.
    (3) Confidential. Confidential information shall be transmitted by 
any of the methods established for Secret information or U.S. Postal 
Service Certified Mail. In addition, when the recipient is a U.S. 
Government facility, the Confidential information may be transmitted via 
U.S. First Class Mail. However, Confidential information shall not be 
transmitted to government contractor facilities via first class mail. 
When first class mail is used, the envelope or outer wrapper shall be 
marked to indicate that the information is not to be forwarded, but is 
to be returned to sender. The use of streetside mail collection boxes is 
prohibited.
    (d) Transmission methods to a U.S. Government facility located 
outside the U.S. The transmission of classified information to a U.S. 
Government facility located outside the 50 states, the District of 
Columbia, the Commonwealth of Puerto Rico, or a U.S. possession or trust 
territory, shall be by methods specified above for Top Secret 
information or by the Department of State Courier Service. U.S. 
Registered Mail through Military Postal Service facilities may be used 
to transmit Secret and Confidential information provided that the 
information does not at any time pass out of U.S. citizen control nor 
pass through a foreign postal system.
    (e) Transmission of U.S. classified information to foreign 
governments. Such transmission shall take place between designated 
government representatives using the government-to-government 
transmission methods described in paragraph (d) of this section or 
through channels agreed to by the National Security Authorities of the 
two governments. When classified information is transferred to a foreign 
government or

[[Page 420]]

its representative a signed receipt is required.
    (f) Receipt of classified information. Agency heads shall establish 
procedures which ensure that classified information is received in a 
manner which precludes unauthorized access, provides for inspection of 
all classified information received for evidence of tampering and 
confirmation of contents, and ensures timely acknowledgment of the 
receipt of Top Secret and Secret information by an authorized recipient. 
As noted in paragraph (e) of this section, a receipt acknowledgment of 
all classified material transmitted to a foreign government or its 
representative is required.



Sec.  2001.47  Destruction.

    Classified information identified for destruction shall be destroyed 
completely to preclude recognition or reconstruction of the classified 
information in accordance with procedures and methods prescribed by 
agency heads. The methods and equipment used to routinely destroy 
classified information include burning, cross-cut shredding, wet-
pulping, melting, mutilation, chemical decomposition or pulverizing. 
Agencies shall comply with the destruction equipment standard stated in 
Sec.  2001.42(b) of this Directive.



Sec.  2001.48  Loss, possible compromise or unauthorized disclosure.

    (a) General. Any person who has knowledge that classified 
information has been or may have been lost, possibly compromised or 
disclosed to an unauthorized person(s) shall immediately report the 
circumstances to an official designated for this purpose.
    (b) Cases involving information originated by a foreign government 
or another U.S. government agency. Whenever a loss or possible 
unauthorized disclosure involves the classified information or interests 
of a foreign government agency, or another U.S. government agency, the 
department or agency in which the compromise occurred shall advise the 
other government agency or foreign government of the circumstances and 
findings that affect their information or interests. However, foreign 
governments normally will not be advised of any security system 
vulnerabilities that contributed to the compromise.
    (c) Inquiry/investigation and corrective actions. Agency heads shall 
establish appropriate procedures to conduct an inquiry/investigation of 
a loss, possible compromise or unauthorized disclosure of classified 
information, in order to implement appropriate corrective actions, which 
may include disciplinary sanctions, and to ascertain the degree of 
damage to national security.
    (d) Reports to ISOO. In accordance with section 5.5(e)(2) of the 
Order, agency heads or senior agency officials shall notify the Director 
of ISOO when a violation occurs under paragraphs 5.5(b)(1), (2), or (3) 
of the Order that:
    (1) Is reported to oversight committees in the Legislative branch;
    (2) May attract significant public attention;
    (3) Involves large amounts of classified information; or
    (4) Reveals a potential systemic weakness in classification, 
safeguarding, or declassification policy or practices.
    (e) Department of Justice and legal counsel coordination. Agency 
heads shall establish procedures to ensure coordination with legal 
counsel whenever a formal action, beyond a reprimand, is contemplated 
against any person believed responsible for the unauthorized disclosure 
of classified information. Whenever a criminal violation appears to have 
occurred and a criminal prosecution is contemplated, agency heads shall 
use established procedures to ensure coordination with:
    (1) The Department of Justice, and
    (2) The legal counsel of the agency where the individual responsible 
is assigned or employed.



Sec.  2001.49  Special access programs.

    (a) General. The safeguarding requirements of this Directive may be 
enhanced for information in special access programs (SAP), established 
under the provisions of section 4.3 of the Order by the agency head 
responsible for creating the SAP. Agency heads shall ensure that the 
enhanced controls are based on an assessment of the value, critical 
nature, and vulnerability of the information.

[[Page 421]]

    (b) Significant interagency support requirements. Agency heads must 
ensure that a Memorandum of Agreement/Understanding is established for 
each SAP that has significant interagency support requirements, to 
appropriately and fully address support requirements and supporting 
agency oversight responsibilities for that SAP.



Sec.  2001.50  Telecommunications automated information systems and 
network security.

    Each agency head shall ensure that classified information 
electronically accessed, processed, stored or transmitted is protected 
in accordance with applicable national policy issuances identified in 
the Committee on National Security Systems (CNSS) issuances and the 
Intelligence Community Directive (ICD) 503, Intelligence Community 
Information Technology Systems Security Risk Management, Certification, 
and Accreditation.



Sec.  2001.51  Technical security.

    Based upon the risk management factors referenced in Sec.  2001.40 
of this directive, agency heads shall determine the requirement for 
technical countermeasures such as Technical Surveillance Countermeasures 
and TEMPEST necessary to detect or deter exploitation of classified 
information through technical collection methods and may apply 
countermeasures in accordance with NSTISSI 7000, TEMPEST Countermeasures 
for Facilities, and SPB Issuance 6-97, National Policy on Technical 
Surveillance Countermeasures.



Sec.  2001.52  Emergency authority.

    (a) Agency heads or any designee may prescribe special provisions 
for the dissemination, transmission, safeguarding, and destruction of 
classified information during certain emergency situations.
    (b) In emergency situations, in which there is an imminent threat to 
life or in defense of the homeland, agency heads or designees may 
authorize the disclosure of classified information to an individual or 
individuals who are otherwise not routinely eligible for access under 
the following conditions:
    (1) Limit the amount of classified information disclosed to the 
absolute minimum to achieve the purpose;
    (2) Limit the number of individuals who receive it;
    (3) Transmit the classified information via approved Federal 
Government channels by the most secure and expeditious method to include 
those required in Sec.  2001.46, or other means deemed necessary when 
time is of the essence;
    (4) Provide instructions about what specific information is 
classified and how it should be safeguarded; physical custody of 
classified information must remain with an authorized Federal Government 
entity, in all but the most extraordinary circumstances;
    (5) Provide appropriate briefings to the recipients on their 
responsibilities not to disclose the information and obtain a signed 
nondisclosure agreement;
    (6) Within 72 hours of the disclosure of classified information, or 
the earliest opportunity that the emergency permits, but no later than 
30 days after the release, the disclosing authority must notify the 
originating agency of the information by providing the following 
information:
    (i) A description of the disclosed information;
    (ii) To whom the information was disclosed;
    (iii) How the information was disclosed and transmitted;
    (iv) Reason for the emergency release;
    (v) How the information is being safeguarded; and
    (vi) A description of the briefings provided and a copy of the 
nondisclosure agreements signed.
    (7) Information disclosed in emergency situations shall not be 
required to be declassified as a result of such disclosure or subsequent 
use by a recipient.



Sec.  2001.53  Open storage areas.

    This section describes the minimum construction standards for open 
storage areas.
    (a) Construction. The perimeter walls, floors, and ceiling will be 
permanently constructed and attached to each other. All construction 
must be done in

[[Page 422]]

a manner as to provide visual evidence of unauthorized penetration.
    (b) Doors. Doors shall be constructed of wood, metal, or other solid 
material. Entrance doors shall be secured with a built-in GSA-approved 
three-position combination lock. When special circumstances exist, the 
agency head may authorize other locks on entrance doors for Secret and 
Confidential storage. Doors other than those secured with the 
aforementioned locks shall be secured from the inside with either 
deadbolt emergency egress hardware, a deadbolt, or a rigid wood or metal 
bar which extends across the width of the door, or by other means 
approved by the agency head.
    (c) Vents, ducts, and miscellaneous openings. All vents, ducts, and 
similar openings in excess of 96 square inches (and over 6 inches in its 
smallest dimension) that enter or pass through an open storage area 
shall be protected with either bars, expanded metal grills, commercial 
metal sounds baffles, or an intrusion detection system.
    (d) Windows. (1) All windows which might reasonably afford visual 
observation of classified activities within the facility shall be made 
opaque or equipped with blinds, drapes, or other coverings.
    (2) Windows within 18 feet of the ground will be constructed from or 
covered with materials which provide protection from forced entry. The 
protection provided to the windows need be no stronger than the strength 
of the contiguous walls. Open storage areas which are located within a 
controlled compound or equivalent may eliminate the requirement for 
forced entry protection if the windows are made inoperable either by 
permanently sealing them or equipping them on the inside with a locking 
mechanism and they are covered by an IDS (either independently or by the 
motion detection sensors within the area).



Sec.  2001.54  Foreign government information.

    The requirements described below are additional baseline 
safeguarding standards that may be necessary for foreign government 
information, other than NATO information, that requires protection 
pursuant to an existing treaty, agreement, bilateral exchange or other 
obligation. NATO classified information shall be safeguarded in 
compliance with USSAN 1-07. To the extent practical, and to facilitate 
its control, foreign government information should be stored separately 
from other classified information. To avoid additional costs, separate 
storage may be accomplished by methods such as separate drawers of a 
container. The safeguarding standards described in paragraphs (a) 
through (e) of this section may be modified if required or permitted by 
treaties or agreements, or for other obligations, with the prior written 
consent of the National Security Authority of the originating 
government, hereafter ``originating government.''
    (a) Top Secret. Records shall be maintained of the receipt, internal 
distribution, destruction, access, reproduction, and transmittal of 
foreign government Top Secret information. Reproduction requires the 
consent of the originating government. Destruction will be witnessed.
    (b) Secret. Records shall be maintained of the receipt, external 
dispatch and destruction of foreign government Secret information. Other 
records may be necessary if required by the originator. Secret foreign 
government information may be reproduced to meet mission requirements 
unless prohibited by the originator. Reproduction shall be recorded 
unless this requirement is waived by the originator.
    (c) Confidential. Records need not be maintained for foreign 
government Confidential information unless required by the originator.
    (d) Restricted and other foreign government information provided in 
confidence. In order to assure the protection of other foreign 
government information provided in confidence (e.g., foreign government 
``Restricted,'' ``Designated,'' or unclassified provided in confidence), 
such information must be classified under the Order. The receiving 
agency, or a receiving U.S. contractor, licensee, grantee, or 
certificate holder acting in accordance with instructions received from 
the U.S. Government, shall provide a degree of protection to the foreign 
government information at least equivalent to that

[[Page 423]]

required by the government or international organization that provided 
the information. When adequate to achieve equivalency, these standards 
may be less restrictive than the safeguarding standards that ordinarily 
apply to U.S. Confidential information. If the foreign protection 
requirement is lower than the protection required for U.S. Confidential 
information, the following requirements shall be met:
    (1) Documents may retain their original foreign markings if the 
responsible agency determines that these markings are adequate to meet 
the purposes served by U.S. classification markings. Otherwise, 
documents shall be marked, ``This document contains (insert name of 
country) (insert classification level) information to be treated as U.S. 
(insert classification level).'' The notation, ``Modified Handling 
Authorized,'' may be added to either the foreign or U.S. markings 
authorized for foreign government information. If remarking foreign 
originated documents or matter is impractical, an approved cover sheet 
is an authorized option;
    (2) Documents shall be provided only to persons in accordance with 
sections 4.1(a) and (h) of the Order;
    (3) Individuals being given access shall be notified of applicable 
handling instructions. This may be accomplished by a briefing, written 
instructions, or by applying specific handling requirements to an 
approved cover sheet;
    (4) Documents shall be stored in such a manner so as to prevent 
unauthorized access;
    (5) Documents shall be transmitted in a method approved for 
classified information, unless this method is waived by the originating 
government.
    (e) Third-country transfers. The release or disclosure of foreign 
government information to any third-country entity must have the prior 
consent of the originating government if required by a treaty, 
agreement, bilateral exchange, or other obligation.



Sec.  2001.55  Foreign disclosure of classified information.

    Classified information originating in one agency may be disseminated 
by any other agency to which it has been made available to a foreign 
government or international organization of governments, or any element 
thereof, in accordance with statute, the Order, directives implementing 
the Order, direction of the President, or with the consent of the 
originating agency, unless the originating agency has determined that 
prior authorization is required for such dissemination and has marked or 
indicated such requirement on the medium containing the classified 
information. Markings used to implement this section shall be approved 
in accordance with Sec.  2001.24(j). With respect to the Intelligence 
Community, the Director of National Intelligence may issue policy 
directives or guidelines pursuant to section 6.2(b) of the Order that 
modify such prior authorization.



                       Subpart F_Self-Inspections



Sec.  2001.60  General.

    (a) Purpose. This subpart sets standards for establishing and 
maintaining an ongoing agency self-inspection program, which shall 
include regular reviews of representative samples of the agency's 
original and derivative classification actions.
    (b) Responsibility. The senior agency official is responsible for 
directing and administering the agency's self-inspection program. The 
senior agency official shall designate agency personnel to assist in 
carrying out this responsibility. The program shall be structured to 
provide the senior agency official with information necessary to assess 
the effectiveness of the classified national security information 
program within individual agency activities and the agency as a whole, 
in order to enable the senior agency official to fulfill his or her 
responsibility to oversee the agency's program under section 5.4(d) of 
the Order.
    (c) Approach. The senior agency official shall determine the means 
and methods for the conduct of self-inspections.
    (1) Self-inspections should evaluate the adherence to the principles 
and requirements of the Order and this directive and the effectiveness 
of agency

[[Page 424]]

programs covering original classification, derivative classification, 
declassification, safeguarding, security violations, security education 
and training, and management and oversight.
    (2) Regular reviews of representative samples of the agency's 
original and derivative classification actions shall encompass all 
agency activities that generate classified information. They shall 
include a sample of varying types of classified information (in document 
and electronic format such as e-mail) to provide a representative sample 
of the activity's classification actions. The sample shall be 
proportionally sufficient to enable a credible assessment of the 
agency's classified product. Agency personnel who are assigned to 
conduct reviews of agencies' original and derivative classification 
actions shall be knowledgeable of the classification and marking 
requirements of the Order and this directive, and have access to 
pertinent security classification guides. In accordance with section 
5.4(d)(4) of the Order, the senior agency official shall authorize 
appropriate agency officials to correct misclassification actions.
    (3) Self-inspections should include a review of relevant security 
directives and instructions, as well as interviews with producers and 
users of classified information.
    (d) Frequency. Self-inspections shall be regular, ongoing, and 
conducted at least annually with the senior agency official setting the 
frequency on the basis of program needs and the degree of classification 
activity. Activities that generate significant amounts of classified 
information shall include a representative sample of their original and 
derivative classification actions.
    (e) Coverage. The senior agency official shall establish self-
inspection coverage requirements based on program and policy needs. 
Agencies with special access programs shall evaluate those programs in 
accordance with sections 4.3(b)(2) and (4) of the Order, at least 
annually.
    (f) Reporting. Agencies shall document the findings of self-
inspections internally.
    (1) Internal. The senior agency official shall set the format for 
documenting self-inspection findings. As part of corrective action for 
findings and other concerns of a systemic nature, refresher security 
education and training should address the underlying cause(s) of the 
issue.
    (2) External. The senior agency official shall report annually to 
the Director of ISOO on the agency's self-inspection program. This 
report shall include:
    (i) A description of the agency's self-inspection program to include 
activities assessed, program areas covered, and methodology utilized;
    (ii) The assessment and a summary of the findings of the agency 
self-inspections in the following program areas: Original 
classification, derivative classification, declassification, 
safeguarding, security violations, security education and training, and 
management and oversight;
    (iii) Specific information with regard to the findings of the annual 
review of the agency's original and derivative classification actions to 
include the volume of classified materials reviewed and the number and 
type of discrepancies that were identified;
    (iv) Actions that have been taken or are planned to correct 
identified deficiencies or misclassification actions, and to deter their 
reoccurrence; and
    (v) Best practices that were identified during self-inspections.



                Subpart G_Security Education and Training



Sec.  2001.70  General.

    (a) Purpose. This subpart sets standards for agency security 
education and training programs. Implementation of these standards 
should:
    (1) Ensure that all executive branch employees who create, process, 
or handle classified information have a satisfactory knowledge and 
understanding of classification, safeguarding, and declassification 
policies and procedures;
    (2) Increase uniformity in the conduct of agency security education 
and training programs; and
    (3) Reduce instances of over-classification or improper 
classification, improper safeguarding, and inappropriate or inadequate 
declassification practices.

[[Page 425]]

    (b) Responsibility. The senior agency official is responsible for 
the agency's security education and training program. The senior agency 
official shall designate agency personnel, as necessary, to assist in 
carrying out this responsibility.
    (c) Approach. Security education and training should be tailored to 
meet the specific needs of the agency's security program and the 
specific roles employees are expected to play in that program. The 
agency official(s) responsible for the program shall determine the means 
and methods for providing security education and training. Training 
methods may include briefings, interactive videos, dissemination of 
instructional materials, on-line presentations, and other media and 
methods. Each agency shall maintain records about the programs it has 
offered and employee participation in them.
    (d) Frequency. The frequency of agency security education and 
training will vary in accordance with the needs of the agency's security 
classification program, subject to the following requirements:
    (1) Initial training shall be provided to every person who has met 
the standards for access to classified information in accordance with 
section 4.1 of the Order.
    (2) Original classification authorities shall receive training in 
proper classification and declassification prior to originally 
classifying information and at least once each calendar year thereafter.
    (3) Persons who apply derivative classification markings shall 
receive training in the proper application of the derivative 
classification principles of the Order prior to derivatively classifying 
information and at least once every two years.
    (4) Each agency shall provide some form of refresher security 
education and training at least annually for all its personnel who 
handle or generate classified information.



Sec.  2001.71  Coverage.

    (a) General. Each department or agency shall establish and maintain 
a formal security education and training program which provides for 
initial training, refresher training, specialized training, and 
termination briefings. This subpart establishes fundamental security 
education and training standards for original classification 
authorities, derivative classifiers, declassification authorities, 
security managers, classification management officers, security 
specialists, and all other personnel whose duties significantly involve 
the creation or handling of classified information. Agency officials 
responsible for the security education and training programs should 
determine the specific training to be provided according to the agency's 
program and policy needs.
    (b) Initial training. All cleared agency personnel shall receive 
initial training on basic security policies, principles, practices, and 
criminal, civil, and administrative penalties. Such training must be 
provided in conjunction with the granting of a security clearance, and 
prior to accessing classified information.
    (c) Training for original classification authorities. Original 
classification authorities shall be provided detailed training on proper 
classification and declassification, with an emphasis on the avoidance 
of over-classification. At a minimum, the training shall cover 
classification standards, classification levels, classification 
authority, classification categories, duration of classification, 
identification and markings, classification prohibitions and 
limitations, sanctions, classification challenges, security 
classification guides, and information sharing.
    (1) Personnel shall receive this training prior to originally 
classifying information.
    (2) In addition to this initial training, original classification 
authorities shall receive training in proper classification and 
declassification at least once each calendar year.
    (3) Original classification authorities who do not receive such 
mandatory training at least once within a calendar year shall have their 
classification authority suspended until such training has taken place.
    (i) An agency head, deputy agency head, or senior agency official 
may grant a waiver of this requirement if an individual is unable to 
receive this

[[Page 426]]

training due to unavoidable circumstances. All such waivers shall be 
documented.
    (ii) Whenever such a waiver is granted, the individual shall receive 
the required training as soon as practicable.
    (d) Training for persons who apply derivative classification 
markings. Persons who apply derivative classification markings shall 
receive training in the proper application of the derivative 
classification principles of the Order, emphasizing the avoidance of 
over-classification. At a minimum, the training shall cover the 
principles of derivative classification, classification levels, duration 
of classification, identification and markings, classification 
prohibitions and limitations, sanctions, classification challenges, 
security classification guides, and information sharing.
    (1) Personnel shall receive this training prior to derivatively 
classifying information.
    (2) In addition to this preparatory training, derivative classifiers 
shall receive such training at least once every two years.
    (3) Derivative classifiers who do not receive such mandatory 
training at least once every two years shall have their authority to 
apply derivative classification markings suspended until they have 
received such training.
    (i) An agency head, deputy agency head, or senior agency official 
may grant a waiver of this requirement if an individual is unable to 
receive this training due to unavoidable circumstances. All such waivers 
shall be documented.
    (ii) Whenever such a waiver is granted, the individual shall receive 
the required training as soon as practicable.
    (e) Other specialized security education and training. 
Classification management officers, security managers, security 
specialists, declassification authorities, and all other personnel whose 
duties significantly involve the creation or handling of classified 
information shall receive more detailed or additional training no later 
than six months after assumption of duties that require other 
specialized training.
    (f) Annual refresher security education and training. Agencies shall 
provide annual refresher training to employees who create, process, or 
handle classified information. Annual refresher training should 
reinforce the policies, principles and procedures covered in initial and 
specialized training. Annual refresher training should also address 
identification and handling of other agency-originated information and 
foreign government information, as well as the threat and the techniques 
employed by foreign intelligence activities attempting to obtain 
classified information, and advise personnel of penalties for engaging 
in espionage activities. Annual refresher training should also address 
issues or concerns identified during agency self-inspections.
    (g) Termination briefings. Except in extraordinary circumstances, 
each agency shall ensure that each employee who is granted access to 
classified information and who leaves the service of the agency receives 
a termination briefing. Also, each agency employee whose clearance is 
withdrawn or revoked must receive such a briefing. At a minimum, 
termination briefings must impress upon each employee the continuing 
responsibility not to disclose any classified information to which the 
employee had access and the potential penalties for non-compliance, and 
the obligation to return to the appropriate agency official all 
classified documents and materials in the employee's possession.
    (h) Other security education and training. Agencies are encouraged 
to develop additional security education and training according to 
program and policy needs. Such security education and training could 
include:
    (1) Practices applicable to U.S. officials traveling overseas;
    (2) Procedures for protecting classified information processed and 
stored in automated information systems;
    (3) Methods for dealing with uncleared personnel who work in 
proximity to classified information;
    (4) Responsibilities of personnel serving as couriers of classified 
information; and
    (5) Security requirements that govern participation in international 
programs.

[[Page 427]]



                        Subpart H_Standard Forms



Sec.  2001.80  Prescribed standard forms.

    (a) General. The purpose of the standard forms is to promote the 
implementation of the government-wide information security program. 
Standard forms are prescribed when their use will enhance the protection 
of national security information and/or will reduce the costs associated 
with its protection. The use of the standard forms prescribed is 
mandatory for agencies of the executive branch that create or handle 
national security information. As appropriate, these agencies may 
mandate the use of these forms by their contractors, licensees, or 
grantees who are authorized access to national security information.
    (b) Waivers. Except for the SF 312, ``Classified Information 
Nondisclosure Agreement,'' and the SF 714, ``Financial Disclosure 
Report,'' (which are waiverable by the Director of National 
Intelligence, as the Security Executive Agent, under E.O. 13467, 
Reforming Processes Related to Suitability for Government Employment, 
Fitness for Contractor Employees, and Eligibility for Access to 
Classified National Security Information) only the Director of ISOO may 
grant a waiver from the use of the prescribed standard forms. To apply 
for a waiver, an agency must submit its proposed alternative form to the 
Director of ISOO along with its justification for use. The Director of 
ISOO will review the request and notify the agency of the decision. 
Waivers approved prior to December 29, 2009, remain in effect and are 
subject to review.
    (c) Availability. Agencies may obtain copies of the standard forms 
prescribed by ordering through FEDSTRIP/MILSTRIP or from the GSA 
Consumer Global Supply Centers, or the GSA Advantage on-line service. 
Some of these standard forms can be downloaded from the GSA Forms 
Library.
    (d) Standard Forms. Standard forms required for application to 
national security information are as follows.
    (1) SF 311, Agency Security Classification Management Program Data: 
The SF 311 is a data collection form completed by only those executive 
branch agencies that create and/or handle classified national security 
information. The form is a record of classification management data 
provided by the agencies. The agencies submit the completed forms on an 
annual basis to ISOO, no later than November 15 following the reporting 
period, for inclusion in a report to the President.
    (2) SF 312, Classified Information Nondisclosure Agreement:
    (i) The SF 312 is a nondisclosure agreement between the United 
States and an employee of the Federal Government or one of its 
contractors, licensees, or grantees. The prior execution of this form by 
an individual is necessary before the United States Government may grant 
that individual access to classified information, with the exception of 
an emergency as defined in section 4.2(b) of the Order.
    (ii) Electronic signatures on SF-312s are prohibited.
    (iii) The SF 312 is the current authorized form; if an employee 
originally signed the now outdated SF 189 or SF 189-A, or a form under 
an approved waiver, as agreement to nondisclosure, the forms remain 
valid. The SF 189 and SF 189-A are no longer available for use with new 
employees.
    (iv) The use of the ``Security Debriefing Acknowledgement'' portion 
of the SF 312 is optional at the discretion of the implementing agency. 
If an agency chooses not to record its debriefing by signing/dating the 
debriefing section of the SF 312, then the agency shall provide an 
alternative record.
    (v) An authorized representative of a contractor, licensee, grantee, 
or other non-Government organization, acting as a designated agent of 
the United States, may witness the execution of the SF 312 by another 
non-Government employee, and may accept it on behalf of the United 
States. Also, an employee of a United States agency may witness the 
execution of the SF 312 by an employee, contractor, licensee, or grantee 
of another United States agency, provided that an authorized United 
States Government official or, for non-Government employees only, a 
designated agent of the United States subsequently accepts by signature 
the SF 312 on behalf of the United States.
    (vi) The provisions of the SF 312, the SF 189, and the SF 189-A do 
not supersede the provisions of 5 U.S.C. 2302,

[[Page 428]]

which pertain to the protected disclosure of information by Government 
employees, or any other laws of the United States.
    (vii) Each agency must retain its executed copies of the SF 312, SF 
189, and SF 189-A in file systems from which an agreement can be 
expeditiously retrieved in the event that the United States must seek 
its enforcement or a subsequent employer must confirm its prior 
execution. The original, or a legally enforceable facsimile that is 
retained in lieu of the original, such as microfiche, microfilm, 
computer disk, or electronic storage medium, must be retained for 50 
years following its date of execution. For agreements executed by 
civilian employees of the United States Government, an agency may store 
the executed copy of the SF 312 and SF 189 in the United States Office 
of Personnel Management's Official Personnel Folder as a long-term 
(right side) document for that employee. An agency may permit its 
contractors, licensees, and grantees to retain the executed agreements 
of their employees during the time of employment. Upon the termination 
of employment, the contractors, licensee, or grantee shall deliver the 
original or legally enforceable facsimile of the executed SF 312, SF 
189, or SF 189-A of that employee to the Government agency primarily 
responsible for his or her classified work. A contractor, licensee, or 
grantee of an agency participating in the National Industrial Security 
Program shall provide the copy or legally enforceable facsimile of the 
executed SF 312, SF 189, or SF 189-A of a terminated employee to their 
cognizant security office. Each agency shall inform ISOO of the file 
systems that it uses to store these agreements for each category of 
affected individuals.
    (viii) Only the Director of National Intelligence, as the Security 
Executive Agent, may grant an agency's request for a waiver from the use 
of the SF 312. To apply for a waiver, an agency must submit its proposed 
alternative nondisclosure agreement to the Director of the Special 
Security Center (SSC), Office of the Director of National Intelligence, 
along with a justification for its use. The Director, SSC, shall request 
a determination about the alternative agreement's enforceability from 
the Department of Justice.
    (ix) The national stock number for the SF 312 is 7540-01-280-5499.
    (3) SF 700, Security Container Information: The SF 700 provides the 
names, addresses, and telephone numbers of employees who are to be 
contacted if the security container to which the form pertains is found 
open and unattended. The form also includes the means to maintain a 
current record of the security container's combination and provides the 
envelope to be used to forward this information to the appropriate 
agency activity or official. If an agency determines, as part of its 
risk management strategy, that a security container information form is 
required, the SF 700 shall be used. Parts 2 and 2A of each completed 
copy of SF 700 shall be classified at the highest level of 
classification of the information authorized for storage in the security 
container. A new SF 700 must be completed each time the combination to 
the security container is changed. The national stock number for the SF 
700 is 7540-01-214-5372.
    (4) SF 701, Activity Security Checklist: The SF 701 provides a 
systematic means to make a thorough end-of-day security inspection for a 
particular work area and to allow for employee accountability in the 
event that irregularities are discovered. If an agency determines, as 
part of its risk management strategy, that an activity security 
checklist is required, the SF 701 will be used. Completion, storage, and 
disposition of SF 701 will be in accordance with each agency's security 
regulations. The national stock number for the SF 701 is 7540-01-213-
7899.
    (5) SF 702, Security Container Check Sheet: The SF 702 provides a 
record of the names and times that persons have opened, closed, or 
checked a particular container that holds classified information. If an 
agency determines, as part of its risk management strategy, that a 
security container check sheet is required, the SF 702 will be used. 
Completion, storage, and disposal of the SF 702 will be in accordance 
with each agency's security regulations. The national stock number of 
the SF 702 is 7540-01-213-7900.

[[Page 429]]

    (6) SF 703, TOP SECRET Cover Sheet: The SF 703 serves as a shield to 
protect Top Secret classified information from inadvertent disclosure 
and to alert observers that Top Secret information is attached to it. If 
an agency determines, as part of its risk management strategy, that a 
TOP SECRET cover sheet is required, the SF 703 will be used. The SF 703 
is affixed to the top of the Top Secret document and remains attached 
until the document is downgraded, requiring the appropriate 
classification level cover sheet, declassified, or destroyed. When the 
SF 703 has been appropriately removed, it may, depending upon its 
condition, be reused. The national stock number of the SF 703 is 7540-
01-213-7901.
    (7) SF 704, SECRET Cover Sheet: The SF 704 serves as a shield to 
protect Secret classified information from inadvertent disclosure and to 
alert observers that Secret information is attached to it. If an agency 
determines, as part of its risk management strategy, that a SECRET cover 
sheet is required, the SF 704 will be used. The SF 704 is affixed to the 
top of the Secret document and remains attached until the document is 
downgraded, requiring the appropriate classification level cover sheet, 
declassified, or destroyed. When the SF 704 has been appropriately 
removed, it may, depending upon its condition, be reused. The national 
stock number of the SF 704 is 7540-01-213-7902.
    (8) SF 705, CONFIDENTIAL Cover Sheet: The SF 705 serves as a shield 
to protect Confidential classified information from inadvertent 
disclosure and to alert observers that Confidential information is 
attached to it. If an agency determines, as part of its risk management 
strategy, that a CONFIDENTIAL cover sheet is required, the SF 705 will 
be used. The SF 705 is affixed to the top of the Confidential document 
and remains attached until the document is destroyed. When the SF 705 
has been appropriately removed, it may, depending upon its condition, be 
reused. The national stock number of the SF 704 is 7540-01-213-7903.
    (9) SF 706, TOP SECRET Label: The SF 706 is used to identify and 
protect electronic media and other media that contain Top Secret 
information. The SF 706 is used instead of the SF 703 for media other 
than documents. If an agency determines, as part of its risk management 
strategy, that a TOP SECRET label is required, the SF 706 will be used. 
The SF 706 is affixed to the medium containing Top Secret information in 
a manner that would not adversely affect operation of equipment in which 
the medium is used. Once the label has been applied, it cannot be 
removed. The national stock number of the SF 706 is 7540-01-207-5536.
    (10) SF 707, SECRET Label: The SF 707 is used to identify and 
protect electronic media and other media that contain Secret 
information. The SF 707 is used instead of the SF 704 for media other 
than documents. If an agency determines, as part of its risk management 
strategy, that a SECRET label is required, the SF 707 will be used. The 
SF 707 is affixed to the medium containing Secret information in a 
manner that would not adversely affect operation of equipment in which 
the medium is used. Once the label has been applied, it cannot be 
removed. The national stock number of the SF 707 is 7540-01-207-5537.
    (11) SF 708, CONFIDENTIAL Label: The SF 708 is used to identify and 
protect electronic media and other media that contain Confidential 
information. The SF 708 is used instead of the SF 705 for media other 
than documents. If an agency determines, as part of its risk management 
strategy, that a CONFIDENTIAL label is required, the SF 708 will be 
used. The SF 708 is affixed to the medium containing Confidential 
information in a manner that would not adversely affect operation of 
equipment in which the medium is used. Once the label has been applied, 
it cannot be removed. The national stock number of the SF 708 is 7540-
01-207-5538.
    (12) SF 709, CLASSIFIED Label: The SF 709 is used to identify and 
protect electronic media and other media that contain classified 
information pending a determination by the classifier of the specific 
classification level of the information. If an agency determines, as 
part of its risk management strategy, that a CLASSIFIED label is 
required, the SF 709 will be used. The SF 709 is affixed to the medium 
containing classified information in a manner that would not adversely 
affect operation of

[[Page 430]]

equipment in which the medium is used. Once the label has been applied, 
it cannot be removed. When a classifier has made a determination of the 
specific level of classification of the information contained on the 
medium, either the SF 706, SF 707, or SF 708 shall be affixed on top of 
the SF 709 so that only the SF 706, SF 707, or SF 708 is visible. The 
national stock number of the SF 709 is 7540-01-207-5540.
    (13) SF 710, UNCLASSIFIED Label: In a mixed environment in which 
classified and unclassified information are being processed or stored, 
the SF 710 is used to identify electronic media and other media that 
contain unclassified information. Its function is to aid in 
distinguishing among those media that contain either classified or 
unclassified information in a mixed environment. If an agency 
determines, as part of its risk management strategy, that an 
UNCLASSIFIED label is required, the SF 710 will be used. The SF 710 is 
affixed to the medium containing unclassified information in a manner 
that would not adversely affect operation of equipment in which the 
medium is used. Once the label has been applied, it cannot be removed. 
However, the label is small enough so that it can be wholly covered by a 
SF 706, SF 707, SF 708, or SF 709 if the medium subsequently contains 
classified information. The national stock number of the SF 710 is 7540-
01-207-5539.
    (14) SF 711, DATA DESCRIPTOR Label: The SF 711 is used to identify 
additional safeguarding controls that pertain to classified information 
that is stored or contained on electronic or other media. If an agency 
determines, as part of its risk management strategy, that a DATA 
DESCRIPTOR label is required, the SF 711 will be used. The SF 711 is 
affixed to the electronic medium containing classified information in a 
manner that would not adversely affect operation of equipment in which 
the medium is used. The SF 711 is ordinarily used in conjunction with 
the SF 706, SF 707, SF 708, or SF 709, as appropriate. Once the label 
has been applied, it cannot be removed. The SF 711 provides spaces for 
information that should be completed as required. The national stock 
number of the SF 711 is 7540-01-207-5541.
    (15) SF 714, Financial Disclosure Report: When required by an agency 
head or by the Director of National Intelligence, as the Security 
Executive Agent, the SF 714 contains information that is used to make 
personnel security determinations, including whether to grant a security 
clearance; to allow access to classified information, sensitive areas, 
and equipment; or to permit assignment to sensitive national security 
positions. The data may later be used as a part of a review process to 
evaluate continued eligibility for access to classified information or 
as evidence in legal proceedings. The SF 714 assists law enforcement 
agencies in obtaining pertinent information in the preliminary stages of 
potential espionage and counter terrorism cases.
    (16) SF 715, Government Declassification Review Tab: The SF 715 is 
used to record the status of classified national security information 
reviewed for declassification. The SF 715 shall be used in all 
situations that call for the use of a tab as part of the processing of 
records determined to be of permanent historical value. The national 
stock number for the SF 715 is 7540-01-537-4689.



                   Subpart I_Reporting and Definitions



Sec.  2001.90  Agency annual reporting requirements.

    (a) Delegations of original classification authority. Agencies shall 
report delegations of original classification authority to ISOO annually 
in accordance with section 1.3(c) of the Order and Sec.  2001.11(c).
    (b) Statistical reporting. Each agency that creates or safeguards 
classified information shall report annually to the Director of ISOO 
statistics related to its security classification program. The Director 
will instruct agencies what data elements are required, and how and when 
they are to be reported.
    (c) Accounting for costs. (1) Information on the costs associated 
with the implementation of the Order will be collected from the 
agencies. The agencies will provide data to ISOO on the cost estimates 
for classification-related activities. ISOO will report these

[[Page 431]]

cost estimates annually to the President. The agency senior official 
should work closely with the agency comptroller to ensure that the best 
estimates are collected.
    (2) The Secretary of Defense, acting as the executive agent for the 
National Industrial Security Program under E.O.12829, as amended, 
National Industrial Security Program, and consistent with agreements 
entered into under section 202 of E.O. 12989, as amended, will collect 
cost estimates for classification-related activities of contractors, 
licensees, certificate holders, and grantees, and report them to ISOO 
annually. ISOO will report these cost estimates annually to the 
President.
    (d) Self-Inspections. Agencies shall report annually to the Director 
of ISOO as required by section 5.4(d)(4) of the Order and outlined in 
Sec.  2001.60(f).



Sec.  2001.91  Other agency reporting requirements.

    (a) Information declassified without proper authority. 
Determinations that classified information has been declassified without 
proper authority shall be promptly reported in writing to the Director 
of ISOO in accordance with Sec.  2001.13(a).
    (b) Reclassification actions. Reclassification of information that 
has been declassified and released under proper authority shall be 
reported promptly to the National Security Advisor and the Director of 
ISOO in accordance with section 1.7(c)(3) of the Order and Sec.  
2001.13(b).
    (c) Fundamental classification guidance review. The initial 
fundamental guidance review is to be completed no later than June 27, 
2012. Agency heads shall provide a detailed report summarizing the 
results of each classification guidance review to ISOO and release an 
unclassified version to the public in accordance with section 1.9 of the 
Order and Sec.  2001.16(d).
    (d) Violations of the Order. Agency heads or senior agency officials 
shall notify the Director of ISOO when a violation occurs under sections 
5.5(b)(1), (2), or (3) of the Order and Sec.  2001.48(d).



Sec.  2001.92  Definitions.

    (a) Accessioned records means records of permanent historical value 
in the legal custody of NARA.
    (b) 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.
    (c) Classification management means the life-cycle management of 
classified national security information from original classification to 
declassification.
    (d) 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 National Industrial Security Program.
    (e) Control means the authority of the agency that originates 
information, or its successor in function, to regulate access to the 
information.
    (f) Employee means a person, other than the President and Vice 
President, employed by, detailed or assigned to, an agency, including 
members of the Armed Forces; an expert or consultant to an agency; an 
industrial or commercial contractor, licensee, certificate holder, or 
grantee of an agency, including all subcontractors; a personal services 
contractor; or any other category of person who acts for or on behalf of 
an agency as determined by the appropriate agency head.
    (g) Equity refers to information:
    (1) Originally classified by or under the control of an agency;
    (2) In the possession of the receiving agency in the event of 
transfer of function; or
    (3) In the possession of a successor agency for an agency that has 
ceased to exist.
    (h) Exempted means nomenclature and markings indicating information 
has been determined to fall within an enumerated exemption from 
automatic declassification under the Order.
    (i) Facility means an activity of an agency authorized by 
appropriate authority to conduct classified operations or to perform 
classified work.
    (j) Federal record includes all books, papers, maps, photographs, 
machine-

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readable materials, or other documentary materials, regardless of 
physical form or characteristics, made or received by an agency of the 
United States Government under Federal law or in connection with the 
transaction of public business and preserved or appropriate for 
preservation by that agency or its legitimate successor as evidence of 
the organization, functions, policies, decisions, procedures, 
operations, or other activities of the Government or because of the 
informational value of data in them. Library and museum material made or 
acquired and preserved solely for reference, and stocks of publications 
and processed documents are not included. (44 U.S.C. 3301)
    (k) Newly discovered records means records that were inadvertently 
not reviewed prior to the effective date of automatic declassification 
because the appropriate agency personnel were unaware of their 
existence.
    (l) Open storage area means an area constructed in accordance with 
Sec.  2001.53 of this part and authorized by the agency head for open 
storage of classified information.
    (m) Original classification authority with jurisdiction over the 
information includes:
    (1) The official who authorized the original classification, if that 
official is still serving in the same position;
    (2) The originator's current successor in function;
    (3) A supervisory official of either; or
    (4) The senior agency official under the Order.
    (n) Permanent records means any Federal record that has been 
determined by the National Archives to have sufficient value to warrant 
its preservation in the National Archives. Permanent records include all 
records accessioned by the National Archives into the National Archives 
and later increments of the same records, and those for which the 
disposition is permanent on SF 115s, Request for Records Disposition 
Authority, approved by the National Archives on or after May 14, 1973.
    (o) Permanently valuable information or permanent historical value 
refers to information contained in:
    (1) Records that have been accessioned by the National Archives;
    (2) Records that have been scheduled as permanent under a records 
disposition schedule approved by the National Archives; and
    (3) Presidential historical materials, presidential records or 
donated historical materials located in the National Archives, a 
presidential library, or any other approved repository.
    (p) Presidential papers, historical materials, and records means the 
papers or records of the former Presidents under the legal control of 
the Archivist pursuant to sections 2111, 2111 note, or 2203 of title 44, 
U.S.C.
    (q) Redaction means the removal of classified information from 
copies of a document such that recovery of the information on the copy 
is not possible using any reasonably known technique or analysis.
    (r) Risk management principles means the principles applied for 
assessing threats and vulnerabilities and implementing security 
countermeasures while maximizing the sharing of information to achieve 
an acceptable level of risk at an acceptable cost.
    (s) Security-in-depth means a determination by the agency head that 
a facility'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 (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.
    (t) Supplemental controls means prescribed procedures or systems 
that provide security control measures designed to augment the physical 
protection of classified information. Examples of supplemental controls 
include intrusion detection systems, periodic inspections of security 
containers or areas, and security-in-depth.
    (u) Temporary records means Federal records approved by NARA for 
disposal, either immediately or after a specified

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retention period. Also called disposable records.
    (v) Transclassification means information that has been removed from 
the Restricted Data category in order to carry out provisions of the 
National Security Act of 1947, as amended, and safeguarded under 
applicable Executive orders as ``National Security Information.''
    (w) Unscheduled records means Federal records whose final 
disposition has not been approved by NARA. All records that fall under a 
NARA approved records control schedule are considered to be scheduled 
records.



PART 2002_CONTROLLED UNCLASSIFIED INFORMATION (CUI)--Table of Contents



                      Subpart A_General Information

Sec.
2002.1 Purpose and scope.
2002.2 Incorporation by reference.
2002.4 Definitions.
2002.6 CUI Executive Agent (EA).
2002.8 Roles and responsibilities.

                Subpart B_Key Elements of the CUI Program

2002.10 The CUI Registry.
2002.12 CUI categories and subcategories.
2002.14 Safeguarding.
2002.16 Accessing and disseminating.
2002.18 Decontrolling.
2002.20 Marking.
2002.22 Limitations on applicability of agency CUI policies.
2002.24 Agency self-inspection program.

                    Subpart C_CUI Program Management

2002.30 Education and training.
2002.32 CUI cover sheets.
2002.34 Transferring records.
2002.36 Legacy materials.
2002.38 Waivers of CUI requirements.
2002.44 CUI and disclosure statutes.
2002.46 CUI and the Privacy Act.
2002.48 CUI and the Administrative Procedure Act (APA).
2002.50 Challenges to designation of information as CUI.
2002.52 Dispute resolution for agencies.
2002.54 Misuse of CUI.
2002.56 Sanctions for misuse of CUI.

Appendix A to Part 2002--Acronyms

    Authority: E.O. 13556, 75 FR 68675, 3 CFR, 2010 Comp., pp. 267-270.

    Source: 81 FR 63336, Sept. 14, 2016, unless otherwise noted.



                      Subpart A_General Information



Sec.  2002.1  Purpose and scope.

    (a) This part describes the executive branch's Controlled 
Unclassified Information (CUI) Program (the CUI Program) and establishes 
policy for designating, handling, and decontrolling information that 
qualifies as CUI.
    (b) The CUI Program standardizes the way the executive branch 
handles information that requires protection under laws, regulations, or 
Government-wide policies, but that does not qualify as classified under 
Executive Order 13526, Classified National Security Information, 
December 29, 2009 (3 CFR, 2010 Comp., p. 298), or any predecessor or 
successor order, or the Atomic Energy Act of 1954 (42 U.S.C. 2011, et 
seq.), as amended.
    (c) All unclassified information throughout the executive branch 
that requires any safeguarding or dissemination control is CUI. Law, 
regulation (to include this part), or Government-wide policy must 
require or permit such controls. Agencies therefore may not implement 
safeguarding or dissemination controls for any unclassified information 
other than those controls consistent with the CUI Program.
    (d) Prior to the CUI Program, agencies often employed ad hoc, 
agency-specific policies, procedures, and markings to handle this 
information. This patchwork approach caused agencies to mark and handle 
information inconsistently, implement unclear or unnecessarily 
restrictive disseminating policies, and create obstacles to sharing 
information.
    (e) An executive branch-wide CUI policy balances the need to 
safeguard CUI with the public interest in sharing information 
appropriately and without unnecessary burdens.
    (f) This part applies to all executive branch agencies that 
designate or handle information that meets the standards for CUI. This 
part does not apply directly to non-executive branch entities, but it 
does apply indirectly to non-executive branch CUI recipients, through 
incorporation into agreements (see Sec. Sec.  2002.4(c) and 2002.16(a) 
for more information).

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    (g) This part rescinds Controlled Unclassified Information (CUI) 
Office Notice 2011-01: Initial Implementation Guidance for Executive 
Order 13556 (June 9, 2011).
    (h) This part creates no right or benefit, substantive or 
procedural, enforceable by law or in equity by any party against the 
United States, its departments, agencies, or entities, its officers, 
employees, or agents, or any other person.
    (i) This part, which contains the CUI Executive Agent (EA)'s control 
policy, overrides agency-specific or ad hoc requirements when they 
conflict. This part does not alter, limit, or supersede a requirement 
stated in laws, regulations, or Government-wide policies or impede the 
statutory authority of agency heads.



Sec.  2002.2  Incorporation by reference.

    (a) NARA incorporates certain material by reference into this part 
with the approval of the Director of the Federal Register under 5 U.S.C. 
552(a) and 1 CFR part 51. To enforce any edition other than that 
specified in this section, NARA must publish notice of change in the 
Federal Register and the material must be available to the public. You 
may inspect all approved material incorporated by reference at NARA's 
textual research room, located at National Archives and Records 
Administration; 8601 Adelphi Road; Room 2000; College Park, MD 20740-
6001. To arrange to inspect this approved material at NARA, contact 
NARA's Regulation Comments Desk (Strategy and Performance Division (SP)) 
by email at [email protected] or by telephone at 
301.837.3151. All approved material is available from the sources listed 
below. You may also inspect approved material at the Office of the 
Federal Register (OFR). For information on the availability of this 
material at the OFR, call 202-741-6030 or go to http://www.archives.gov/
federal_register/code_of_federal_regulations/ibr_locations.html.
    (b) The National Institute of Standards and Technology (NIST), by 
mail at 100 Bureau Drive, Stop 1070; Gaithersburg, MD 20899-1070, by 
email at [email protected], by phone at (301) 975-NIST (6478) or 
Federal Relay Service (800) 877-8339 (TTY), or online at http://
nist.gov/publication-portal.cfm.
    (1) FIPS PUB 199, Standards for Security Categorization of Federal 
Information and Information Systems, February 2004. IBR approved for 
Sec. Sec.  2002.14(c) and (g), and 2002.16(c).
    (2) FIPS PUB 200, Minimum Security Requirements for Federal 
Information and Information Systems, March 2006. IBR approved for 
Sec. Sec.   2002.14(c) and (g), and 2002.16(c).
    (3) NIST Special Publication 800-53, Security and Privacy Controls 
for Federal Information Systems and Organizations, Revision 4, April 
2013 (includes updates as of 01-22-2015), (NIST SP 800-53). IBR approved 
for Sec. Sec.  2002.14(c), (e), (f), and (g), and 2002.16(c).
    (4) NIST Special Publication 800-88, Guidelines for Media 
Sanitization, Revision 1, December 2014, (NIST SP 800-88). IBR approved 
for Sec.  2002.14(f).
    (5) NIST Special Publication 800-171, Protecting Controlled 
Unclassified Information in Nonfederal Systems and Organizations, June 
2015 (includes updates as of January 14, 2016), (NIST SP 800-171). IBR 
approved for Sec.  2002.14(h).



Sec.  2002.4  Definitions.

    As used in this part:
    (a) Agency (also Federal agency, executive agency, executive branch 
agency) is any ``executive agency,'' as defined in 5 U.S.C. 105; the 
United States Postal Service; and any other independent entity within 
the executive branch that designates or handles CUI.
    (b) Agency CUI policies are the policies the agency enacts to 
implement the CUI Program within the agency. They must be in accordance 
with the Order, this part, and the CUI Registry and approved by the CUI 
EA.
    (c) Agreements and arrangements are any vehicle that sets out 
specific CUI handling requirements for contractors and other 
information-sharing partners when the arrangement with the other party 
involves CUI. Agreements and arrangements include, but are not limited 
to, contracts, grants, licenses, certificates, memoranda of agreement/
arrangement or understanding, and information-sharing agreements or 
arrangements. When disseminating or sharing CUI with non-executive 
branch entities, agencies should enter into written

[[Page 435]]

agreements or arrangements that include CUI provisions whenever feasible 
(see Sec.  2002.16(a)(5) and (6) for details). When sharing information 
with foreign entities, agencies should enter agreements or arrangements 
when feasible (see Sec.  2002.16(a)(5)(iii) and (a)(6) for details).
    (d) Authorized holder is an individual, agency, organization, or 
group of users that is permitted to designate or handle CUI, in 
accordance with this part.
    (e) Classified information is information that Executive Order 
13526, ``Classified National Security Information,'' December 29, 2009 
(3 CFR, 2010 Comp., p. 298), or any predecessor or successor order, or 
the Atomic Energy Act of 1954, as amended, requires agencies to mark 
with classified markings and protect against unauthorized disclosure.
    (f) Controlled environment is any area or space an authorized holder 
deems to have adequate physical or procedural controls (e.g., barriers 
or managed access controls) to protect CUI from unauthorized access or 
disclosure.
    (g) Control level is a general term that indicates the safeguarding 
and disseminating requirements associated with CUI Basic and CUI 
Specified.
    (h) Controlled Unclassified Information (CUI) is information the 
Government creates or possesses, or that an entity creates or possesses 
for or on behalf of the Government, that a law, regulation, or 
Government-wide policy requires or permits an agency to handle using 
safeguarding or dissemination controls. However, CUI does not include 
classified information (see paragraph (e) of this section) 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. 
Law, regulation, or Government-wide policy may require or permit 
safeguarding or dissemination controls in three ways: Requiring or 
permitting agencies to control or protect the information but providing 
no specific controls, which makes the information CUI Basic; requiring 
or permitting agencies to control or protect the information and 
providing specific controls for doing so, which makes the information 
CUI Specified; or requiring or permitting agencies to control the 
information and specifying only some of those controls, which makes the 
information CUI Specified, but with CUI Basic controls where the 
authority does not specify.
    (i) Controls are safeguarding or dissemination controls that a law, 
regulation, or Government-wide policy requires or permits agencies to 
use when handling CUI. The authority may specify the controls it 
requires or permits the agency to apply, or the authority may generally 
require or permit agencies to control the information (in which case, 
the agency applies controls from the Order, this part, and the CUI 
Registry).
    (j) CUI Basic is the subset of CUI for which the authorizing law, 
regulation, or Government-wide policy does not set out specific handling 
or dissemination controls. Agencies handle CUI Basic according to the 
uniform set of controls set forth in this part and the CUI Registry. CUI 
Basic differs from CUI Specified (see definition for CUI Specified in 
this section), and CUI Basic controls apply whenever CUI Specified ones 
do not cover the involved CUI.
    (k) CUI categories and subcategories are those types of information 
for which laws, regulations, or Government-wide policies require or 
permit agencies to exercise safeguarding or dissemination controls, and 
which the CUI EA has approved and listed in the CUI Registry. The 
controls for any CUI Basic categories and any CUI Basic subcategories 
are the same, but the controls for CUI Specified categories and 
subcategories can differ from CUI Basic ones and from each other. A CUI 
category may be Specified, while some or all of its subcategories may 
not be, and vice versa. If dealing with CUI that falls into a CUI 
Specified category or subcategory, review the controls for that category 
or subcategory on the CUI Registry. Also consult the agency's CUI policy 
for specific direction from the Senior Agency Official.
    (l) CUI category or subcategory markings are the markings approved 
by the CUI EA for the categories and subcategories listed in the CUI 
Registry.

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    (m) CUI Executive Agent (EA) is the National Archives and Records 
Administration (NARA), which implements the executive branch-wide CUI 
Program and oversees Federal agency actions to comply with the Order. 
NARA has delegated this authority to the Director of the Information 
Security Oversight Office (ISOO).
    (n) CUI Program is the executive branch-wide program to standardize 
CUI handling by all Federal agencies. The Program includes the rules, 
organization, and procedures for CUI, established by the Order, this 
part, and the CUI Registry.
    (o) CUI Program manager is an agency official, designated by the 
agency head or CUI SAO, to serve as the official representative to the 
CUI EA on the agency's day-to-day CUI Program operations, both within 
the agency and in interagency contexts.
    (p) CUI Registry is the online repository for all information, 
guidance, policy, and requirements on handling CUI, including everything 
issued by the CUI EA other than this part. Among other information, the 
CUI Registry identifies all approved CUI categories and subcategories, 
provides general descriptions for each, identifies the basis for 
controls, establishes markings, and includes guidance on handling 
procedures.
    (q) CUI senior agency official (SAO) is a senior official designated 
in writing by an agency head and responsible to that agency head for 
implementation of the CUI Program within that agency. The CUI SAO is the 
primary point of contact for official correspondence, accountability 
reporting, and other matters of record between the agency and the CUI 
EA.
    (r) CUI Specified is the subset of CUI in which the authorizing law, 
regulation, or Government-wide policy contains specific handling 
controls that it requires or permits agencies to use that differ from 
those for CUI Basic. The CUI Registry indicates which laws, regulations, 
and Government-wide policies include such specific requirements. CUI 
Specified controls may be more stringent than, or may simply differ 
from, those required by CUI Basic; the distinction is that the 
underlying authority spells out specific controls for CUI Specified 
information and does not for CUI Basic information. CUI Basic controls 
apply to those aspects of CUI Specified where the authorizing laws, 
regulations, and Government-wide policies do not provide specific 
guidance.
    (s) Decontrolling occurs when an authorized holder, consistent with 
this part and the CUI Registry, removes safeguarding or dissemination 
controls from CUI that no longer requires such controls. Decontrol may 
occur automatically or through agency action. See Sec.  2002.18.
    (t) Designating CUI occurs when an authorized holder, consistent 
with this part and the CUI Registry, determines that a specific item of 
information falls into a CUI category or subcategory. The authorized 
holder who designates the CUI must make recipients aware of the 
information's CUI status in accordance with this part.
    (u) Designating agency is the executive branch agency that 
designates or approves the designation of a specific item of information 
as CUI.
    (v) Disseminating occurs when authorized holders provide access, 
transmit, or transfer CUI to other authorized holders through any means, 
whether internal or external to an agency.
    (w) Document means any tangible thing which constitutes or contains 
information, and means the original and any copies (whether different 
from the originals because of notes made on such copies or otherwise) of 
all writings of every kind and description over which an agency has 
authority, whether inscribed by hand or by mechanical, facsimile, 
electronic, magnetic, microfilm, photographic, or other means, as well 
as phonic or visual reproductions or oral statements, conversations, or 
events, and including, but not limited to: Correspondence, email, notes, 
reports, papers, files, manuals, books, pamphlets, periodicals, letters, 
memoranda, notations, messages, telegrams, cables, facsimiles, records, 
studies, working papers, accounting papers, contracts, licenses, 
certificates, grants, agreements, computer disks, computer tapes, 
telephone logs, computer mail, computer printouts, worksheets, sent or 
received communications of any kind, teletype messages, agreements,

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diary entries, calendars and journals, printouts, drafts, tables, 
compilations, tabulations, recommendations, accounts, work papers, 
summaries, address books, other records and recordings or transcriptions 
of conferences, meetings, visits, interviews, discussions, or telephone 
conversations, charts, graphs, indexes, tapes, minutes, contracts, 
leases, invoices, records of purchase or sale correspondence, electronic 
or other transcription of taping of personal conversations or 
conferences, and any written, printed, typed, punched, taped, filmed, or 
graphic matter however produced or reproduced. Document also includes 
the file, folder, exhibits, and containers, the labels on them, and any 
metadata, associated with each original or copy. Document also includes 
voice records, film, tapes, video tapes, email, personal computer files, 
electronic matter, and other data compilations from which information 
can be obtained, including materials used in data processing.
    (x) Federal information system is an information system 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. 3554(a)(1)(A)(ii).
    (y) Foreign entity is a foreign government, an international 
organization of governments or any element thereof, an international or 
foreign public or judicial body, or an international or foreign private 
or non-governmental organization.
    (z) Formerly Restricted Data (FRD) is a type of information 
classified under the Atomic Energy Act, and defined in 10 CFR 1045, 
Nuclear Classification and Declassification.
    (aa) Handling is any use of CUI, including but not limited to 
marking, safeguarding, transporting, disseminating, re-using, and 
disposing of the information.
    (bb) Lawful Government purpose is any activity, mission, function, 
operation, or endeavor that the U.S. Government authorizes or recognizes 
as within the scope of its legal authorities or the legal authorities of 
non-executive branch entities (such as state and local law enforcement).
    (cc) Legacy material is unclassified information that an agency 
marked as restricted from access or dissemination in some way, or 
otherwise controlled, prior to the CUI Program.
    (dd) Limited dissemination control is any CUI EA-approved control 
that agencies may use to limit or specify CUI dissemination.
    (ee) Misuse of CUI occurs when someone uses CUI in a manner not in 
accordance with the policy contained in the Order, this part, the CUI 
Registry, agency CUI policy, or the applicable laws, regulations, and 
Government-wide policies that govern the affected information. This may 
include intentional violations or unintentional errors in safeguarding 
or disseminating CUI. This may also include designating or marking 
information as CUI when it does not qualify as CUI.
    (ff) National Security System is a special type of information 
system (including telecommunications systems) whose function, operation, 
or use is defined in National Security Directive 42 and 44 U.S.C. 
3542(b)(2).
    (gg) Non-executive branch entity is a person or organization 
established, operated, and controlled by individual(s) acting outside 
the scope of any official capacity as officers, employees, or agents of 
the executive branch of the Federal Government. Such entities may 
include: Elements of the legislative or judicial branches of the Federal 
Government; state, interstate, tribal, or local government elements; and 
private organizations. Non-executive branch entity does not include 
foreign entities as defined in this part, nor does it include 
individuals or organizations when they receive CUI information pursuant 
to federal disclosure laws, including the Freedom of Information Act 
(FOIA) and the Privacy Act of 1974.
    (hh) On behalf of an agency occurs when a non-executive branch 
entity uses or operates an information system or maintains or collects 
information for the purpose of processing, storing, or transmitting 
Federal information, and those activities are not incidental to 
providing a service or product to the Government.
    (ii) Order is Executive Order 13556, Controlled Unclassified 
Information, November 4, 2010 (3 CFR, 2011 Comp., p. 267), or any 
successor order.

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    (jj) Portion is ordinarily a section within a document, and may 
include subjects, titles, graphics, tables, charts, bullet statements, 
sub-paragraphs, bullets points, or other sections.
    (kk) Protection includes all controls an agency applies or must 
apply when handling information that qualifies as CUI.
    (ll) Public release occurs when the agency that originally 
designated particular information as CUI makes that information 
available to the public through the agency's official public release 
processes. Disseminating CUI to non-executive branch entities as 
authorized does not constitute public release. Releasing information to 
an individual pursuant to the Privacy Act of 1974 or disclosing it in 
response to a FOIA request also does not automatically constitute public 
release, although it may if that agency ties such actions to its 
official public release processes. Even though an agency may disclose 
some CUI to a member of the public, the Government must still control 
that CUI unless the agency publicly releases it through its official 
public release processes.
    (mm) Records are agency records and Presidential papers or 
Presidential records (or Vice-Presidential), as those terms are defined 
in 44 U.S.C. 3301 and 44 U.S.C. 2201 and 2207. Records also include such 
items created or maintained by a Government contractor, licensee, 
certificate holder, or grantee that are subject to the sponsoring 
agency's control under the terms of the entity's agreement with the 
agency.
    (nn) Required or permitted (by a law, regulation, or Government-wide 
policy) is the basis by which information may qualify as CUI. If a law, 
regulation, or Government-wide policy requires that agencies exercise 
safeguarding or dissemination controls over certain information, or 
specifically permits agencies the discretion to do so, then that 
information qualifies as CUI. The term 'specifically permits' in this 
context can include language such as ``is exempt from'' applying certain 
information release or disclosure requirements, ``may'' release or 
disclose the information, ``may not be required to'' release or disclose 
the information, ``is responsible for protecting'' the information, and 
similar specific but indirect, forms of granting the agency discretion 
regarding safeguarding or dissemination controls. This does not include 
general agency or agency head authority and discretion to make 
decisions, risk assessments, or other broad agency authorities, 
discretions, and powers, regardless of the source. The CUI Registry 
reflects all appropriate authorizing authorities.
    (oo) Restricted Data (RD) is a type of information classified under 
the Atomic Energy Act, defined in 10 CFR part 1045, Nuclear 
Classification and Declassification.
    (pp) Re-use means incorporating, restating, or paraphrasing 
information from its originally designated form into a newly created 
document.
    (qq) Self-inspection is an agency's internally managed review and 
evaluation of its activities to implement the CUI Program.
    (rr) Unauthorized disclosure occurs when an authorized holder of CUI 
intentionally or unintentionally discloses CUI without a lawful 
Government purpose, in violation of restrictions imposed by safeguarding 
or dissemination controls, or contrary to limited dissemination 
controls.
    (ss) Uncontrolled unclassified information is information that 
neither the Order nor the authorities governing classified information 
cover as protected. Although this information is not controlled or 
classified, agencies must still handle it in accordance with Federal 
Information Security Modernization Act (FISMA) requirements.
    (tt) Working papers are documents or materials, regardless of form, 
that an agency or user expects to revise prior to creating a finished 
product.



Sec.  2002.6  CUI Executive Agent (EA).

    (a) Section 2(c) of the Order designates NARA as the CUI Executive 
Agent (EA) to implement the Order and to oversee agency efforts to 
comply with the Order, this part, and the CUI Registry.
    (b) NARA has delegated the CUI EA responsibilities to the Director 
of ISOO. Under this authority, ISOO staff

[[Page 439]]

carry out CUI oversight responsibilities and manage the Federal CUI 
program.



Sec.  2002.8  Roles and responsibilities.

    (a) The CUI EA:
    (1) Develops and issues policy, guidance, and other materials, as 
needed, to implement the Order, the CUI Registry, and this part, and to 
establish and maintain the CUI Program;
    (2) Consults with affected agencies, Government-wide policy bodies, 
State, local, Tribal, and private sector partners, and representatives 
of the public on matters pertaining to CUI as needed;
    (3) Establishes, convenes, and chairs the CUI Advisory Council (the 
Council) to address matters pertaining to the CUI Program. The CUI EA 
consults with affected agencies to develop and document the Council's 
structure and procedures, and submits the details to OMB for approval;
    (4) Reviews and approves agency policies implementing this part to 
ensure their consistency with the Order, this part, and the CUI 
Registry;
    (5) Reviews, evaluates, and oversees agencies' actions to implement 
the CUI Program, to ensure compliance with the Order, this part, and the 
CUI Registry;
    (6) Establishes a management and planning framework, including 
associated deadlines for phased implementation, based on agency 
compliance plans submitted pursuant to section 5(b) of the Order, and in 
consultation with affected agencies and OMB;
    (7) Approves categories and subcategories of CUI as needed and 
publishes them in the CUI Registry;
    (8) Maintains and updates the CUI Registry as needed;
    (9) Prescribes standards, procedures, guidance, and instructions for 
oversight and agency self-inspection programs, to include performing on-
site inspections;
    (10) Standardizes forms and procedures to implement the CUI Program;
    (11) Considers and resolves, as appropriate, disputes, complaints, 
and suggestions about the CUI Program from entities in or outside the 
Government; and
    (12) Reports to the President on implementation of the Order and the 
requirements of this part. This includes publishing a report on the 
status of agency implementation at least biennially, or more frequently 
at the discretion of the CUI EA.
    (b) Agency heads:
    (1) Ensure agency senior leadership support, and make adequate 
resources available to implement, manage, and comply with the CUI 
Program as administered by the CUI EA;
    (2) Designate a CUI senior agency official (SAO) responsible for 
oversight of the agency's CUI Program implementation, compliance, and 
management, and include the official in agency contact listings;
    (3) Approve agency policies, as required, to implement the CUI 
Program; and
    (4) Establish and maintain a self-inspection program to ensure the 
agency complies with the principles and requirements of the Order, this 
part, and the CUI Registry.
    (c) The CUI SAO:
    (1) Must be at the Senior Executive Service level or equivalent;
    (2) Directs and oversees the agency's CUI Program;
    (3) Designates a CUI Program manager;
    (4) Ensures the agency has CUI implementing policies and plans, as 
needed;
    (5) Implements an education and training program pursuant to Sec.  
2002.30;
    (6) Upon request of the CUI EA under section 5(c) of the Order, 
provides an update of CUI implementation efforts for subsequent 
reporting;
    (7) Submits to the CUI EA any law, regulation, or Government-wide 
policy not already incorporated into the CUI Registry that the agency 
proposes to use to designate unclassified information for safeguarding 
or dissemination controls;
    (8) Coordinates with the CUI EA, as appropriate, any proposed law, 
regulation, or Government-wide policy that would establish, eliminate, 
or modify a category or subcategory of CUI, or change information 
controls applicable to CUI;

[[Page 440]]

    (9) Establishes processes for handling CUI decontrol requests 
submitted by authorized holders;
    (10) Includes a description of all existing waivers in the annual 
report to the CUI EA, along with the rationale for each waiver and, 
where applicable, the alternative steps the agency is taking to ensure 
sufficient protection of CUI within the agency;
    (11) Develops and implements the agency's self-inspection program;
    (12) Establishes a mechanism by which authorized holders (both 
inside and outside the agency) can contact a designated agency 
representative for instructions when they receive unmarked or improperly 
marked information the agency designated as CUI;
    (13) Establishes a process to accept and manage challenges to CUI 
status (which may include improper or absent marking);
    (14) Establish processes and criteria for reporting and 
investigating misuse of CUI; and
    (15) Follows the requirements for the CUI SAO listed in Sec.  
2002.38(e), regarding waivers for CUI.
    (d) The Director of National Intelligence: After consulting with the 
heads of affected agencies and the Director of ISOO, may issue 
directives to implement this part with respect to the protection of 
intelligence sources, methods, and activities. Such directives must be 
in accordance with the Order, this part, and the CUI Registry.



                Subpart B_Key Elements of the CUI Program



Sec.  2002.10  The CUI Registry.

    (a) The CUI EA maintains the CUI Registry, which:
    (1) Is the authoritative central repository for all guidance, 
policy, instructions, and information on CUI (other than the Order and 
this part);
    (2) Is publicly accessible;
    (3) Includes authorized CUI categories and subcategories, associated 
markings, applicable decontrolling procedures, and other guidance and 
policy information; and
    (4) Includes citation(s) to laws, regulations, or Government-wide 
policies that form the basis for each category and subcategory.
    (b) Agencies and authorized holders must follow the instructions 
contained in the CUI Registry in addition to all requirements in the 
Order and this part.



Sec.  2002.12  CUI categories and subcategories.

    (a) CUI categories and subcategories are the exclusive designations 
for identifying unclassified information that a law, regulation, or 
Government-wide policy requires or permits agencies to handle by means 
of safeguarding or dissemination controls. All unclassified information 
throughout the executive branch that requires any kind of safeguarding 
or dissemination control is CUI. Agencies may not implement safeguarding 
or dissemination controls for any unclassified information other than 
those controls permitted by the CUI Program.
    (b) Agencies may use only those categories or subcategories approved 
by the CUI EA and published in the CUI Registry to designate information 
as CUI.



Sec.  2002.14  Safeguarding.

    (a) General safeguarding policy. (1) Pursuant to the Order and this 
part, and in consultation with affected agencies, the CUI EA issues 
safeguarding standards in this part and, as necessary, in the CUI 
Registry, updating them as needed. These standards require agencies to 
safeguard CUI at all times in a manner that minimizes the risk of 
unauthorized disclosure while allowing timely access by authorized 
holders.
    (2) Safeguarding measures that agencies are authorized or accredited 
to use for classified information and national security systems are also 
sufficient for safeguarding CUI in accordance with the organization's 
management and acceptance of risk.
    (3) Agencies may increase CUI Basic's confidentiality impact level 
above moderate only internally, or by means of agreements with agencies 
or non-executive branch entities (including agreements for the operation 
of an information system on behalf of the agencies). Agencies may not 
otherwise require controls for CUI Basic at a level higher than 
permitted in the CUI

[[Page 441]]

Basic requirements when disseminating the CUI Basic outside the agency.
    (4) Authorized holders must comply with policy in the Order, this 
part, and the CUI Registry, and review any applicable agency CUI 
policies for additional instructions. For information designated as CUI 
Specified, authorized holders must also follow the procedures in the 
underlying laws, regulations, or Government-wide policies.
    (b) CUI safeguarding standards. Authorized holders must safeguard 
CUI using one of the following types of standards:
    (1) CUI Basic. CUI Basic is the default set of standards authorized 
holders must apply to all CUI unless the CUI Registry annotates that CUI 
as CUI Specified.
    (2) CUI Specified. (i) Authorized holders safeguard CUI Specified in 
accordance with the requirements of the underlying authorities indicated 
in the CUI Registry.
    (ii) When the laws, regulations, or Government-wide policies 
governing a specific type of CUI Specified are silent on either a 
safeguarding or disseminating control, agencies must apply CUI Basic 
standards to that aspect of the information's controls, unless this 
results in treatment that does not accord with the CUI Specified 
authority. In such cases, agencies must apply the CUI Specified 
standards and may apply limited dissemination controls listed in the CUI 
Registry to ensure they treat the information in accord with the CUI 
Specified authority.
    (c) Protecting CUI under the control of an authorized holder. 
Authorized holders must take reasonable precautions to guard against 
unauthorized disclosure of CUI. They must include the following measures 
among the reasonable precautions:
    (1) Establish controlled environments in which to protect CUI from 
unauthorized access or disclosure and make use of those controlled 
environments;
    (2) Reasonably ensure that unauthorized individuals cannot access or 
observe CUI, or overhear conversations discussing CUI;
    (3) Keep CUI under the authorized holder's direct control or protect 
it with at least one physical barrier, and reasonably ensure that the 
authorized holder or the physical barrier protects the CUI from 
unauthorized access or observation when outside a controlled 
environment; and
    (4) Protect the confidentiality of CUI that agencies or authorized 
holders process, store, or transmit on Federal information systems in 
accordance with the applicable security requirements and controls 
established in FIPS PUB 199, FIPS PUB 200, and NIST SP 800-53, 
(incorporated by reference, see Sec.  2002.2), and paragraph (g) of this 
section.
    (d) Protecting CUI when shipping or mailing. When sending CUI, 
authorized holders:
    (1) May use the United States Postal Service or any commercial 
delivery service when they need to transport or deliver CUI to another 
entity;
    (2) Should use in-transit automated tracking and accountability 
tools when they send CUI;
    (3) May use interoffice or interagency mail systems to transport 
CUI; and
    (4) Must mark packages that contain CUI according to marking 
requirements contained in this part and in guidance published by the CUI 
EA. See Sec.  2002.20 for more guidance on marking requirements.
    (e) Reproducing CUI. Authorized holders:
    (1) May reproduce (e.g., copy, scan, print, electronically 
duplicate) CUI in furtherance of a lawful Government purpose; and
    (2) Must ensure, when reproducing CUI documents on equipment such as 
printers, copiers, scanners, or fax machines, that the equipment does 
not retain data or the agency must otherwise sanitize it in accordance 
with NIST SP 800-53 (incorporated by reference, see Sec.  2002.2).
    (f) Destroying CUI. (1) Authorized holders may destroy CUI when:
    (i) The agency no longer needs the information; and
    (ii) Records disposition schedules published or approved by NARA 
allow.
    (2) When destroying CUI, including in electronic form, agencies must 
do so in a manner that makes it unreadable, indecipherable, and 
irrecoverable. Agencies must use any destruction method

[[Page 442]]

specifically required by law, regulation, or Government-wide policy for 
that CUI. If the authority does not specify a destruction method, 
agencies must use one of the following methods:
    (i) Guidance for destruction in NIST SP 800-53, Security and Privacy 
Controls for Federal Information Systems and Organizations, and NIST SP 
800-88, Guidelines for Media Sanitization (incorporated by reference, 
see Sec.  2002.2); or
    (ii) Any method of destruction approved for Classified National 
Security Information, as delineated in 32 CFR 2001.47, Destruction, or 
any implementing or successor guidance.
    (g) Information systems that process, store, or transmit CUI. In 
accordance with FIPS PUB 199 (incorporated by reference, see Sec.  
2002.2), CUI Basic is categorized at no less than the moderate 
confidentiality impact level. FIPS PUB 199 defines the security impact 
levels for Federal information and Federal information systems. Agencies 
must also apply the appropriate security requirements and controls from 
FIPS PUB 200 and NIST SP 800-53 (incorporated by reference, see Sec.  
2002.2) to CUI in accordance with any risk-based tailoring decisions 
they make. Agencies may increase CUI Basic's confidentiality impact 
level above moderate only internally, or by means of agreements with 
agencies or non-executive branch entities (including agreements for the 
operation of an information system on behalf of the agencies). Agencies 
may not otherwise require controls for CUI Basic at a level higher or 
different from those permitted in the CUI Basic requirements when 
disseminating the CUI Basic outside the agency.
    (h) Information systems that process, store, or transmit CUI are of 
two different types:
    (1) A Federal information system is an information system used or 
operated by an agency or by a contractor of an agency or other 
organization on behalf of an agency. An information system operated on 
behalf of an agency provides information processing services to the 
agency that the Government might otherwise perform itself but has 
decided to outsource. This includes systems operated exclusively for 
Government use and systems operated for multiple users (multiple Federal 
agencies or Government and private sector users). Information systems 
that a non-executive branch entity operates on behalf of an agency are 
subject to the requirements of this part as though they are the agency's 
systems, and agencies may require these systems to meet additional 
requirements the agency sets for its own internal systems.
    (2) A non-Federal information system is any information system that 
does not meet the criteria for a Federal information system. Agencies 
may not treat non-Federal information systems as though they are agency 
systems, so agencies cannot require that non-executive branch entities 
protect these systems in the same manner that the agencies might protect 
their own information systems. When a non-executive branch entity 
receives Federal information only incidental to providing a service or 
product to the Government other than processing services, its 
information systems are not considered Federal information systems. NIST 
SP 800-171 (incorporated by reference, see Sec.  2002.2) defines the 
requirements necessary to protect CUI Basic on non-Federal information 
systems in accordance with the requirements of this part. Agencies must 
use NIST SP 800-171 when establishing security requirements to protect 
CUI's confidentiality on non-Federal information systems (unless the 
authorizing law, regulation, or Government-wide policy listed in the CUI 
Registry for the CUI category or subcategory of the information involved 
prescribes specific safeguarding requirements for protecting the 
information's confidentiality, or unless an agreement establishes 
requirements to protect CUI Basic at higher than moderate 
confidentiality).



Sec.  2002.16  Accessing and disseminating.

    (a) General policy--(1) Access. Agencies should disseminate and 
permit access to CUI, provided such access or dissemination:
    (i) Abides by the laws, regulations, or Government-wide policies 
that established the CUI category or subcategory;
    (ii) Furthers a lawful Government purpose;

[[Page 443]]

    (iii) Is not restricted by an authorized limited dissemination 
control established by the CUI EA; and,
    (iv) Is not otherwise prohibited by law.
    (2) Dissemination controls. (i) Agencies must impose dissemination 
controls judiciously and should do so only to apply necessary 
restrictions on access to CUI, including those required by law, 
regulation, or Government-wide policy.
    (ii) Agencies may not impose controls that unlawfully or improperly 
restrict access to CUI.
    (3) Marking. Prior to disseminating CUI, authorized holders must 
label CUI according to marking guidance issued by the CUI EA, and must 
include any specific markings required by law, regulation, or 
Government-wide policy.
    (4) Reasonable expectation. To disseminate CUI to a non-executive 
branch entity, authorized holders must reasonably expect that all 
intended recipients are authorized to receive the CUI and have a basic 
understanding of how to handle it.
    (5) Agreements. Agencies should enter into agreements with any non-
executive branch or foreign entity with which the agency shares or 
intends to share CUI, as follows (except as provided in paragraph (a)(7) 
of this section):
    (i) Information-sharing agreements. When agencies intend to share 
CUI with a non-executive branch entity, they should enter into a formal 
agreement (see Sec.  2004.4(c) for more information on agreements), 
whenever feasible. Such an agreement may take any form the agency head 
approves, but when established, it must include a requirement to comply 
with Executive Order 13556, Controlled Unclassified Information, 
November 4, 2010 (3 CFR, 2011 Comp., p. 267) or any successor order (the 
Order), this part, and the CUI Registry.
    (ii) Sharing CUI without a formal agreement. When an agency cannot 
enter into agreements under paragraph (a)(6)(i) of this section, but the 
agency's mission requires it to disseminate CUI to non-executive branch 
entities, the agency must communicate to the recipient that the 
Government strongly encourages the non-executive branch entity to 
protect CUI in accordance with the Order, this part, and the CUI 
Registry, and that such protections should accompany the CUI if the 
entity disseminates it further.
    (iii) Foreign entity sharing. When entering into agreements or 
arrangements with a foreign entity, agencies should encourage that 
entity to protect CUI in accordance with the Order, this part, and the 
CUI Registry to the extent possible, but agencies may use their judgment 
as to what and how much to communicate, keeping in mind the ultimate 
goal of safeguarding CUI. If such agreements or arrangements include 
safeguarding or dissemination controls on unclassified information, the 
agency must not establish a parallel protection regime to the CUI 
Program: For example, the agency must use CUI markings rather than 
alternative ones (e.g., such as SBU) for safeguarding or dissemination 
controls on CUI received from or sent to foreign entities, must abide by 
any requirements set by the CUI category or subcategory's governing 
laws, regulations, or Government-wide policies, etc.
    (iv) Pre-existing agreements. When an agency entered into an 
information-sharing agreement prior to November 14, 2016, the agency 
should modify any terms in that agreement that conflict with the 
requirements in the Order, this part, and the CUI Registry, when 
feasible.
    (6) Agreement content. At a minimum, agreements with non-executive 
branch entities must include provisions that state:
    (i) Non-executive branch entities must handle CUI in accordance with 
the Order, this part, and the CUI Registry;
    (ii) Misuse of CUI is subject to penalties established in applicable 
laws, regulations, or Government-wide policies; and
    (iii) The non-executive branch entity must report any non-compliance 
with handling requirements to the disseminating agency using methods 
approved by that agency's SAO. When the disseminating agency is not the 
designating agency, the disseminating agency must notify the designating 
agency.

[[Page 444]]

    (7) Exceptions to agreements. Agencies need not enter a written 
agreement when they share CUI with the following entities:
    (i) Congress, including any committee, subcommittee, joint 
committee, joint subcommittee, or office thereof;
    (ii) A court of competent jurisdiction, or any individual or entity 
when directed by an order of a court of competent jurisdiction or a 
Federal administrative law judge (ALJ) appointed under 5 U.S.C. 3501;
    (iii) The Comptroller General, in the course of performing duties of 
the Government Accountability Office; or
    (iv) Individuals or entities, when the agency releases information 
to them pursuant to a FOIA or Privacy Act request.
    (b) Controls on accessing and disseminating CUI--(1) CUI Basic. 
Authorized holders should disseminate and encourage access to CUI Basic 
for any recipient when the access meets the requirements set out in 
paragraph (a)(1) of this section.
    (2) CUI Specified. Authorized holders disseminate and allow access 
to CUI Specified as required or permitted by the authorizing laws, 
regulations, or Government-wide policies that established that CUI 
Specified.
    (i) The CUI Registry annotates CUI that requires or permits 
Specified controls based on law, regulation, and Government-wide policy.
    (ii) In the absence of specific dissemination restrictions in the 
authorizing law, regulation, or Government-wide policy, agencies may 
disseminate CUI Specified as they would CUI Basic.
    (3) Receipt of CUI. Non-executive branch entities may receive CUI 
directly from members of the executive branch or as sub-recipients from 
other non-executive branch entities.
    (4) Limited dissemination. (i) Agencies may place additional limits 
on disseminating CUI only through use of the limited dissemination 
controls approved by the CUI EA and published in the CUI Registry. These 
limited dissemination controls are separate from any controls that a CUI 
Specified authority requires or permits.
    (ii) Using limited dissemination controls to unnecessarily restrict 
access to CUI is contrary to the goals of the CUI Program. Agencies may 
therefore use these controls only when it furthers a lawful Government 
purpose, or laws, regulations, or Government-wide policies require or 
permit an agency to do so. If an authorized holder has significant doubt 
about whether it is appropriate to use a limited dissemination control, 
the authorized holder should consult with and follow the designating 
agency's policy. If, after consulting the policy, significant doubt 
still remains, the authorized holder should not apply the limited 
dissemination control.
    (iii) Only the designating agency may apply limited dissemination 
controls to CUI. Other entities that receive CUI and seek to apply 
additional controls must request permission to do so from the 
designating agency.
    (iv) Authorized holders may apply limited dissemination controls to 
any CUI for which they are required or permitted to restrict access by 
or to certain entities.
    (v) Designating entities may combine approved limited dissemination 
controls listed in the CUI Registry to accommodate necessary practices.
    (c) Methods of disseminating CUI. (1) Before disseminating CUI, 
authorized holders must reasonably expect that all intended recipients 
have a lawful Government purpose to receive the CUI. Authorized holders 
may then disseminate the CUI by any method that meets the safeguarding 
requirements of this part and the CUI Registry and ensures receipt in a 
timely manner, unless the laws, regulations, or Government-wide policies 
that govern that CUI require otherwise.
    (2) To disseminate CUI using systems or components that are subject 
to NIST guidelines and publications (e.g., email applications, text 
messaging, facsimile, or voicemail), agencies must do so in accordance 
with the no-less-than-moderate confidentiality impact value set out in 
FIPS PUB 199, FIPS PUB 200, NIST SP 800-53 (incorporated by reference, 
see Sec.  2002.2).



Sec.  2002.18  Decontrolling.

    (a) Agencies should decontrol as soon as practicable any CUI 
designated by their agency that no longer requires safeguarding or 
dissemination controls,

[[Page 445]]

unless doing so conflicts with the governing law, regulation, or 
Government-wide policy.
    (b) Agencies may decontrol CUI automatically upon the occurrence of 
one of the conditions below, or through an affirmative decision by the 
designating agency:
    (1) When laws, regulations or Government-wide policies no longer 
require its control as CUI and the authorized holder has the appropriate 
authority under the authorizing law, regulation, or Government-wide 
policy;
    (2) When the designating agency decides to release it to the public 
by making an affirmative, proactive disclosure;
    (3) When the agency discloses it in accordance with an applicable 
information access statute, such as the FOIA, or the Privacy Act (when 
legally permissible), if the agency incorporates such disclosures into 
its public release processes; or
    (4) When a pre-determined event or date occurs, as described in 
Sec.  2002.20(g), unless law, regulation, or Government-wide policy 
requires coordination first.
    (c) The designating agency may also decontrol CUI:
    (1) In response to a request by an authorized holder to decontrol 
it; or
    (2) Concurrently with any declassification action under Executive 
Order 13526 or any predecessor or successor order, as long as the 
information also appropriately qualifies for decontrol as CUI.
    (d) An agency may designate in its CUI policies which agency 
personnel it authorizes to decontrol CUI, consistent with law, 
regulation, and Government-wide policy.
    (e) Decontrolling CUI relieves authorized holders from requirements 
to handle the information under the CUI Program, but does not constitute 
authorization for public release.
    (f) Authorized holders must clearly indicate that CUI is no longer 
controlled when restating, paraphrasing, re-using, releasing to the 
public, or donating it to a private institution. Otherwise, authorized 
holders do not have to mark, review, or take other actions to indicate 
the CUI is no longer controlled.
    (1) Agency policy may allow authorized holders to remove or strike 
through only those CUI markings on the first or cover page of the 
decontrolled CUI and markings on the first page of any attachments that 
contain CUI.
    (2) If an authorized holder uses the decontrolled CUI in a newly 
created document, the authorized holder must remove all CUI markings for 
the decontrolled information.
    (g) Once decontrolled, any public release of information that was 
formerly CUI must be in accordance with applicable law and agency 
policies on the public release of information.
    (h) Authorized holders may request that the designating agency 
decontrol certain CUI.
    (i) If an authorized holder publicly releases CUI in accordance with 
the designating agency's authorized procedures, the release constitutes 
decontrol of the information.
    (j) Unauthorized disclosure of CUI does not constitute decontrol.
    (k) Agencies must not decontrol CUI in an attempt to conceal, or to 
otherwise circumvent accountability for, an identified unauthorized 
disclosure.
    (l) When laws, regulations, or Government-wide policies require 
specific decontrol procedures, authorized holders must follow such 
requirements.
    (m) The Archivist of the United States may decontrol records 
transferred to the National Archives in accordance with Sec.  2002.34, 
absent a specific agreement otherwise with the designating agency. The 
Archivist decontrols records to facilitate public access pursuant to 44 
U.S.C. 2108 and NARA's regulations at 36 CFR parts 1235, 1250, and 1256.



Sec.  2002.20  Marking.

    (a) General marking policy. (1) CUI markings listed in the CUI 
Registry are the only markings authorized to designate unclassified 
information requiring safeguarding or dissemination controls. Agencies 
and authorized holders must, in accordance with the implementation 
timelines established for the agency by the CUI EA:
    (i) Discontinue all use of legacy or other markings not permitted by 
this

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part or included in the CUI Registry; and
    (ii) Uniformly and conspicuously apply CUI markings to all CUI 
exclusively in accordance with the part and the CUI Registry, unless 
this part or the CUI EA otherwise specifically permits. See paragraph 
(a)(6) of this section and Sec. Sec.  2002.38, Waivers of CUI 
requirements, and 2002.36, Legacy materials, for more information.
    (2) Agencies may not modify CUI Program markings or deviate from the 
method of use prescribed by the CUI EA (in this part and the CUI 
Registry) in an effort to accommodate existing agency marking practices, 
except in circumstances approved by the CUI EA. The CUI Program 
prohibits using markings or practices not included in this part or the 
CUI Registry. If legacy markings remain on information, the legacy 
markings are void and no longer indicate that the information is 
protected or that it is or qualifies as CUI.
    (3) An agency receiving an incorrectly marked document should notify 
either the disseminating entity or the designating agency, and request a 
properly marked document.
    (4) The designating agency determines that the information qualifies 
for CUI status and applies the appropriate CUI marking when it 
designates that information as CUI.
    (5) If an agency has information within its control that qualifies 
as CUI but has not been previously marked as CUI for any reason (for 
example, pursuant to an agency internal marking waiver as referenced in 
Sec.  2002.38 (a)), the agency must mark it as CUI prior to 
disseminating it.
    (6) Agencies must not mark information as CUI to conceal illegality, 
negligence, ineptitude, or other disreputable circumstances embarrassing 
to any person, any agency, the Federal Government, or any of their 
partners, or for any purpose other than to adhere to the law, 
regulation, or Government-wide policy authorizing the control.
    (7) The lack of a CUI marking on information that qualifies as CUI 
does not exempt the authorized holder from abiding by applicable 
handling requirements as described in the Order, this part, and the CUI 
Registry.
    (8) When it is impractical for an agency to individually mark CUI 
due to quantity or nature of the information, or when an agency has 
issued a limited CUI marking waiver, authorized holders must make 
recipients aware of the information's CUI status using an alternate 
marking method that is readily apparent (for example, through user 
access agreements, a computer system digital splash screen (e.g., alerts 
that flash up when accessing the system), or signs in storage areas or 
on containers).
    (b) The CUI banner marking. Designators of CUI must mark all CUI 
with a CUI banner marking, which may include up to three elements:
    (1) The CUI control marking (mandatory). (i) The CUI control marking 
may consist of either the word ``CONTROLLED'' or the acronym ``CUI,'' at 
the designator's discretion. Agencies may specify in their CUI policy 
that employees must use one or the other.
    (ii) The CUI Registry contains additional, specific guidance and 
instructions for using the CUI control marking.
    (iii) Authorized holders who designate CUI may not use alternative 
markings to identify or mark items as CUI.
    (2) CUI category or subcategory markings (mandatory for CUI 
Specified). (i) The CUI Registry lists the category and subcategory 
markings, which align with the CUI's governing category or subcategory.
    (ii) Although the CUI Program does not require agencies to use 
category or subcategory markings on CUI Basic, an agency's CUI SAO may 
establish agency policy that mandates use of CUI category or subcategory 
markings on CUI Basic.
    (iii) However, authorized holders must include in the CUI banner 
marking all CUI Specified category or subcategory markings that pertain 
to the information in the document. If law, regulation, or Government-
wide policy requires specific marking, disseminating, informing, 
distribution limitation, or warning statements, agencies must use those 
indicators as those authorities require or permit. However,

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agencies must not include these additional indicators in the CUI banner 
marking or CUI portion markings.
    (iv) The CUI Registry contains additional, specific guidance and 
instructions for using CUI category and subcategory markings.
    (3) Limited dissemination control markings. (i) CUI limited 
dissemination control markings align with limited dissemination controls 
established by the CUI EA under Sec.  2002.16(b)(4).
    (ii) Agency policy should include specific criteria establishing 
which authorized holders may apply limited dissemination controls and 
their corresponding markings, and when. Such agency policy must align 
with the requirements in Sec.  2002.16(b)(4).
    (iii) The CUI Registry contains additional, specific guidance and 
instructions for using limited dissemination control markings.
    (c) Using the CUI banner marking. (1) The content of the CUI banner 
marking must apply to the whole document (i.e., inclusive of all CUI 
within the document) and must be the same on each page of the document 
that includes CUI.
    (2) The CUI Registry contains additional, specific guidelines and 
instructions for using the CUI banner marking.
    (d) CUI designation indicator (mandatory). (1) All documents 
containing CUI must carry an indicator of who designated the CUI within 
it. This must include the designator's agency (at a minimum) and may 
take any form that identifies the designating agency, including 
letterhead or other standard agency indicators, or adding a ``Controlled 
by'' line (for example, ``Controlled by: Division 5, Department of Good 
Works.'').
    (2) The designation indicator must be readily apparent to authorized 
holders and may appear only on the first page or cover. The CUI Registry 
contains additional, specific guidance and requirements for using CUI 
designation indicators.
    (e) CUI decontrolling indicators. (1) Where feasible, designating 
agencies must include a specific decontrolling date or event with all 
CUI. Agencies may do so in any manner that makes the decontrolling 
schedule readily apparent to an authorized holder.
    (2) Authorized holders may consider specific items of CUI as 
decontrolled as of the date indicated, requiring no further review by, 
or communication with, the designator.
    (3) If using a specific event after which the CUI is considered 
decontrolled:
    (i) The event must be foreseeable and verifiable by any authorized 
holder (e.g., not based on or requiring special access or knowledge); 
and
    (ii) The designator should include point of contact and preferred 
method of contact information in the decontrol indicator when using this 
method, to allow authorized holders to verify that a specified event has 
occurred.
    (4) The CUI Registry contains additional, specific guidance and 
instructions for using limited dissemination control markings.
    (f) Portion marking CUI. (1) Agencies are permitted and encouraged 
to portion mark all CUI, to facilitate information sharing and proper 
handling.
    (2) Authorized holders who designate CUI may mark CUI only with 
portion markings approved by the CUI EA and listed in the CUI Registry.
    (3) CUI portion markings consist of the following elements:
    (i) The CUI control marking, which must be the acronym ``CUI'';
    (ii) CUI category/subcategory portion markings (if required or 
permitted); and
    (iii) CUI limited dissemination control portion markings (if 
required).
    (4) When using portion markings:
    (i) CUI category and subcategory portion markings are optional for 
CUI Basic. Agencies may manage their use by means of agency policy.
    (ii) Authorized holders permitted to designate CUI must portion mark 
both CUI and uncontrolled unclassified portions.
    (5) In cases where portions consist of several segments, such as 
paragraphs, sub-paragraphs, bullets, and sub-bullets, and the control 
level is the same throughout, designators of CUI may place a single 
portion marking at the beginning of the primary paragraph or bullet. 
However, if the portion includes

[[Page 448]]

different CUI categories or subcategories, or if the portion includes 
some CUI and some uncontrolled unclassified information, authorized 
holders should portion mark all segments separately to avoid improper 
control of any one segment.
    (6) Each portion must reflect the control level of only that 
individual portion. If the information contained in a sub-paragraph or 
sub-bullet is a different CUI category or subcategory from its parent 
paragraph or parent bullet, this does not make the parent paragraph or 
parent bullet controlled at that same level.
    (7) The CUI Registry contains additional, specific guidance and 
instructions for using CUI portion markings and uncontrolled 
unclassified portion markings.
    (g) Commingling CUI markings with Classified National Security 
Information (CNSI). When authorized holders include CUI in documents 
that also contain CNSI, the decontrolling provisions of the Order and 
this part apply only to portions marked as CUI. In addition, authorized 
holders must:
    (1) Portion mark all CUI to ensure that authorized holders can 
distinguish CUI portions from portions containing classified and 
uncontrolled unclassified information;
    (2) Include the CUI control marking, CUI Specified category and 
subcategory markings, and limited dissemination control markings in an 
overall banner marking; and
    (3) Follow the requirements of the Order and this part, and 
instructions in the CUI Registry on marking CUI when commingled with 
CNSI.
    (h) Commingling restricted data (RD) and formerly restricted data 
(FRD) with CUI. (1) To the extent possible, avoid commingling RD or FRD 
with CUI in the same document. When it is not practicable to avoid such 
commingling, follow the marking requirements in the Order and this part, 
and instructions in the CUI Registry, as well as the marking 
requirements in 10 CFR part 1045, Nuclear Classification and 
Declassification.
    (2) Follow the requirements of 10 CFR part 1045 when extracting an 
RD or FRD portion for use in a new document.
    (3) Follow the requirements of the Order and this part, and 
instructions in the CUI Registry if extracting a CUI portion for use in 
a new document.
    (4) The lack of declassification instructions for RD or FRD portions 
does not eliminate the requirement to process commingled documents for 
declassification in accordance with the Atomic Energy Act, or 10 CFR 
part 1045.
    (i) Packages and parcels containing CUI. (1) Address packages that 
contain CUI for delivery only to a specific recipient.
    (2) Do not put CUI markings on the outside of an envelope or 
package, or otherwise indicate on the outside that the item contains 
CUI.
    (j) Transmittal document marking requirements. (1) When a 
transmittal document accompanies CUI, the transmittal document must 
include a CUI marking on its face (``CONTROLLED'' or ``CUI''), 
indicating that CUI is attached or enclosed.
    (2) The transmittal document must also include conspicuously on its 
face the following or similar instructions, as appropriate:
    (i) ``When enclosure is removed, this document is Uncontrolled 
Unclassified Information''; or
    (ii) ``When enclosure is removed, this document is (control level); 
upon removal, this document does not contain CUI.''
    (k) Working papers. Mark working papers containing CUI the same way 
as the finished product containing CUI would be marked and as required 
for any CUI contained within them. Handle them in accordance with this 
part and the CUI Registry.
    (l) Using supplemental administrative markings with CUI. (1) Agency 
heads may authorize the use of supplemental administrative markings 
(e.g. ``Pre-decisional,'' ``Deliberative,'' ``Draft'') for use with CUI.
    (2) Agency heads may not authorize the use of supplemental 
administrative markings to establish safeguarding requirements or 
disseminating restrictions, or to designate the information as CUI. 
However, agencies may use these markings to inform recipients of the 
non-final status of documents under development to avoid confusion

[[Page 449]]

and maintain the integrity of an agency's decision-making process.
    (3) Agencies must detail requirements for using supplemental 
administrative markings with CUI in agency policy that is available to 
anyone who may come into possession of CUI with these markings.
    (4) Authorized holders must not incorporate or include supplemental 
administrative markings in the CUI marking scheme detailed in this part 
and the CUI Registry.
    (5) Supplemental administrative markings must not duplicate any CUI 
marking described in this part or the CUI Registry.
    (m) Unmarked CUI. Treat unmarked information that qualifies as CUI 
as described in the Order, Sec.  2002.8(c), and the CUI Registry.



Sec.  2002.22  Limitations on applicability of agency CUI policies.

    (a) Agency CUI policies do not apply to entities outside that agency 
unless a law, regulation, or Government-wide policy requires or permits 
the controls contained in the agency policy to do so, and the CUI 
Registry lists that law, regulation, or Government-wide policy as a CUI 
authority.
    (b) Agencies may not include additional requirements or restrictions 
on handling CUI other than those permitted in the Order, this part, or 
the CUI Registry when entering into agreements.



Sec.  2002.24  Agency self-inspection program.

    (a) The agency must establish a self-inspection program pursuant to 
the requirement in Sec.  2002.8(b)(4).
    (b) The self-inspection program must include:
    (1) At least annual review and assessment of the agency's CUI 
program. The agency head or CUI SAO should determine any greater 
frequency based on program needs and the degree to which the agency 
engages in designating CUI;
    (2) Self-inspection methods, reviews, and assessments that serve to 
evaluate program effectiveness, measure the level of compliance, and 
monitor the progress of CUI implementation;
    (3) Formats for documenting self-inspections and recording findings 
when not prescribed by the CUI EA;
    (4) Procedures by which to integrate lessons learned and best 
practices arising from reviews and assessments into operational 
policies, procedures, and training;
    (5) A process for resolving deficiencies and taking corrective 
actions; and
    (6) Analysis and conclusions from the self-inspection program, 
documented on an annual basis and as requested by the CUI EA.



                    Subpart C_CUI Program Management



Sec.  2002.30  Education and training.

    (a) The CUI SAO must establish and implement an agency training 
policy. At a minimum, the training policy must address the means, 
methods, and frequency of agency CUI training.
    (b) Agency training policy must ensure that personnel who have 
access to CUI receive training on designating CUI, relevant CUI 
categories and subcategories, the CUI Registry, associated markings, and 
applicable safeguarding, disseminating, and decontrolling policies and 
procedures.
    (c) Agencies must train employees on these matters when the 
employees first begin working for the agency and at least once every two 
years thereafter.
    (d) The CUI EA reviews agency training materials to ensure 
consistency and compliance with the Order, this part, and the CUI 
Registry.



Sec.  2002.32  CUI cover sheets.

    (a) Agencies may use cover sheets for CUI. If an agency chooses to 
use cover sheets, it must use CUI EA-approved cover sheets, which 
agencies can find on the CUI Registry.
    (b) Agencies may use cover sheets to identify CUI, alert observers 
that CUI is present from a distance, and serve as a shield to protect 
the attached CUI from inadvertent disclosure.



Sec.  2002.34  Transferring records.

    (a) When feasible, agencies must decontrol records containing CUI 
prior to transferring them to NARA.

[[Page 450]]

    (b) When an agency cannot decontrol records before transferring them 
to NARA, the agency must:
    (1) Indicate on a Transfer Request (TR) in NARA's Electronic Records 
Archives (ERA) or on an SF 258 paper transfer form, that the records 
should continue to be controlled as CUI (subject to NARA's regulations 
on transfer, public availability, and access; see 36 CFR parts 1235, 
1250, and 1256); and
    (2) For hard copy transfer, do not place a CUI marking on the 
outside of the container.
    (c) If the agency does not indicate the status as CUI on the TR or 
SF 258, NARA may assume the agency decontrolled the information prior to 
transfer, regardless of any CUI markings on the actual records.



Sec.  2002.36  Legacy materials.

    (a) Agencies must review documents created prior to November 14, 
2016 and re-mark any that contain information that qualifies as CUI in 
accordance with the Order, this part, and the CUI Registry. When 
agencies do not individually re-mark legacy material that qualifies as 
CUI, agencies must use an alternate permitted marking method (see Sec.  
2002.20(a)(8)).
    (b) When the CUI SAO deems re-marking legacy documents to be 
excessively burdensome, the CUI SAO may grant a legacy material marking 
waiver under Sec.  2002.38(b).
    (c) When the agency re-uses any information from legacy documents 
that qualifies as CUI, whether the documents have obsolete control 
markings or not, the agency must designate the newly-created document 
(or other re-use) as CUI and mark it accordingly.



Sec.  2002.38  Waivers of CUI requirements.

    (a) Limited CUI marking waivers within the agency. When an agency 
designates information as CUI but determines that marking it as CUI is 
excessively burdensome, an agency's CUI SAO may approve waivers of all 
or some of the CUI marking requirements while that CUI remains within 
agency control.
    (b) Limited legacy material marking waivers within the agency. (1) 
In situations in which the agency has a substantial amount of stored 
information with legacy markings, and removing legacy markings and 
designating or re-marking it as CUI would be excessively burdensome, the 
agency's CUI SAO may approve a waiver of these requirements for some or 
all of that information while it remains under agency control.
    (2) When an authorized holder re-uses any legacy information or 
information derived from legacy documents that qualifies as CUI, they 
must remove or redact legacy markings and designate or re-mark the 
information as CUI, even if the information is under a legacy material 
marking waiver prior to re-use.
    (c) Exigent circumstances waivers. (1) In exigent circumstances, the 
agency head or the CUI SAO may waive the provisions and requirements 
established in this part or the CUI Registry for any CUI while it is 
within the agency's possession or control, unless specifically 
prohibited by applicable laws, regulations, or Government-wide policies.
    (2) Exigent circumstances waivers may apply when an agency shares 
the information with other agencies or non-Federal entities. In such 
cases, the authorized holders must make recipients aware of the CUI 
status of any disseminated information.
    (d) For all waivers. (1) The CUI SAO must still ensure that the 
agency appropriately safeguards and disseminates the CUI. See Sec.  
2002.20(a)(7);
    (2) The CUI SAO must detail in each waiver the alternate protection 
methods the agency will employ to ensure protection of CUI subject to 
the waiver;
    (3) All marking waivers apply to CUI subject to the waiver only 
while that agency continues to possess that CUI. No marking waiver may 
accompany CUI when an authorized holder disseminates it outside that 
agency;
    (4) Authorized holders must uniformly and conspicuously apply CUI 
markings to all CUI prior to disseminating it outside the agency unless 
otherwise specifically permitted by the CUI EA; and
    (5) When the circumstances requiring the waiver end, the CUI SAO 
must reinstitute the requirements for all CUI subject to the waiver 
without delay.
    (e) The CUI SAO must:

[[Page 451]]

    (1) Retain a record of each waiver;
    (2) Include a description of all current waivers and waivers issued 
during the preceding year in the annual report to the CUI EA, along with 
the rationale for each waiver and the alternate steps the agency takes 
to ensure sufficient protection of CUI; and
    (3) Notify authorized recipients and the public of these waivers.



Sec.  2002.44  CUI and disclosure statutes.

    (a) General policy. The fact that an agency designates certain 
information as CUI does not affect an agency's or employee's 
determinations pursuant to any law that requires the agency or the 
employee to disclose that information or permits them to do so as a 
matter of discretion. The agency or employee must make such 
determinations according to the criteria set out in the governing law, 
not on the basis of the information's status as CUI.
    (b) CUI and the Freedom of Information Act (FOIA). Agencies must not 
cite the FOIA as a CUI safeguarding or disseminating control authority 
for CUI. When an agency is determining whether to disclose information 
in response to a FOIA request, the agency must base its decision on the 
content of the information and applicability of any FOIA statutory 
exemptions, regardless of whether an agency designates or marks the 
information as CUI. There may be circumstances in which an agency may 
disclose CUI to an individual or entity, including through a FOIA 
response, but such disclosure does not always constitute public release 
as defined in this part. Although disclosed via a FOIA response, the 
agency may still need to control the CUI while the agency continues to 
hold the information, despite the disclosure, unless the agency 
otherwise decontrols it (or the agency includes in its policies that 
FOIA disclosure always results in public release and the CUI does not 
otherwise have another legal requirement for its continued control).
    (c) CUI and the Whistleblower Protection Act. This part does not 
change or affect existing legal protections for whistleblowers. The fact 
that an agency designates or marks certain information as CUI does not 
determine whether an individual may lawfully disclose that information 
under a law or other authority, and does not preempt or otherwise affect 
whistleblower legal protections provided by law, regulation, or 
executive order or directive.



Sec.  2002.46  CUI and the Privacy Act.

    The fact that records are subject to the Privacy Act of 1974 does 
not mean that agencies must mark them as CUI. Consult agency policies or 
guidance to determine which records may be subject to the Privacy Act; 
consult the CUI Registry to determine which privacy information must be 
marked as CUI. Information contained in Privacy Act systems of records 
may also be subject to controls under other CUI categories or 
subcategories and the agency may need to mark that information as CUI 
for that reason. In addition, when determining whether the agency must 
protect certain information under the Privacy Act, or whether the 
Privacy Act allows the agency to release the information to an 
individual, the agency must base its decision on the content of the 
information and the Privacy Act's criteria, regardless of whether an 
agency designates or marks the information as CUI.



Sec.  2002.48  CUI and the Administrative Procedure Act (APA).

    Nothing in the regulations in this part alters the Administrative 
Procedure Act (APA) or the powers of Federal administrative law judges 
(ALJs) appointed thereunder, including the power to determine 
confidentiality of information in proceedings over which they preside. 
Nor do the regulations in this part impose requirements concerning the 
manner in which ALJs designate, disseminate, control access to, 
decontrol, or mark such information, or make such determinations.



Sec.  2002.50  Challenges to designation of information as CUI.

    (a) Authorized holders of CUI who, in good faith, believe that its 
designation as CUI is improper or incorrect, or who believe they have 
received unmarked CUI, should notify the disseminating agency of this 
belief. When the disseminating agency is not the designating agency, the 
disseminating agency must notify the designating agency.

[[Page 452]]

    (b) If the information at issue is involved in Government 
litigation, or the challenge to its designation or marking as CUI arises 
as part of the litigation, the issue of whether the challenger may 
access the information will be addressed via the litigation process 
instead of by the agency CUI program. Challengers should nonetheless 
notify the agency of the issue through the agency process described 
below, and include its litigation connection.
    (c) CUI SAOs must create a process within their agency to accept and 
manage challenges to CUI status. At a minimum, this process must include 
a timely response to the challenger that:
    (1) Acknowledges receipt of the challenge;
    (2) States an expected timetable for response to the challenger;
    (3) Provides an opportunity for the challenger to define a rationale 
for belief that the CUI in question is inappropriately designated;
    (4) Gives contact information for the official making the agency's 
decision in this matter; and
    (5) Ensures that challengers who are authorized holders have the 
option of bringing such challenges anonymously, and that challengers are 
not subject to retribution for bringing such challenges.
    (d) Until the challenge is resolved, authorized holders should 
continue to safeguard and disseminate the challenged CUI at the control 
level indicated in the markings.
    (e) If a challenging party disagrees with the response to a 
challenge, that party may use the Dispute Resolution procedures 
described in Sec.  2002.52.



Sec.  2002.52  Dispute resolution for agencies.

    (a) When laws, regulations, or Government-wide policies governing 
the CUI involved in a dispute set out specific procedures, processes, 
and requirements for resolving disputes, agencies must follow those 
processes for that CUI. This includes submitting the dispute to someone 
other than the CUI EA for resolution if the authority so requires. If 
the CUI at issue is involved in litigation, the agency should refer the 
issue to the appropriate attorneys for resolution through the litigation 
process.
    (b) When laws, regulations, and Government-wide policies governing 
the CUI do not set out specific procedures, processes, or requirements 
for CUI dispute resolution (or the information is not involved in 
litigation), this part governs.
    (c) All parties to a dispute arising from implementing or 
interpreting the Order, this part, or the CUI Registry should make every 
effort to resolve the dispute expeditiously. Parties should address 
disputes within a reasonable, mutually acceptable time period, taking 
into consideration the parties' mission, sharing, and protection 
requirements.
    (d) If parties to a dispute cannot reach a mutually acceptable 
resolution, either party may refer the matter to the CUI EA.
    (e) The CUI EA acts as the impartial arbiter of the dispute and has 
the authority to render a decision on the dispute after consulting with 
all affected parties. If a party to the dispute is also a member of the 
Intelligence Community, the CUI EA must consult with the Office of the 
Director of National Intelligence when the CUI EA receives the dispute 
for resolution.
    (f) Until the dispute is resolved, authorized holders should 
continue to safeguard and disseminate any disputed CUI at the control 
level indicated in the markings, or as directed by the CUI EA if the 
information is unmarked.
    (g) Parties may appeal the CUI EA's decision through the Director of 
OMB to the President for resolution, pursuant to section 4(e) of the 
Order. If one of the parties to the dispute is the CUI EA and the 
parties cannot resolve the dispute under paragraph (c) of this section, 
the parties may likewise refer the matter to OMB for resolution.



Sec.  2002.54  Misuse of CUI.

    (a) The CUI SAO must establish agency processes and criteria for 
reporting and investigating misuse of CUI.
    (b) The CUI EA reports findings on any incident involving misuse of 
CUI to the offending agency's CUI SAO or

[[Page 453]]

CUI Program manager for action, as appropriate.



Sec.  2002.56  Sanctions for misuse of CUI.

    (a) To the extent that agency heads are otherwise authorized to take 
administrative action against agency personnel who misuse CUI, agency 
CUI policy governing misuse should reflect that authority.
    (b) Where laws, regulations, or Government-wide policies governing 
certain categories or subcategories of CUI specifically establish 
sanctions, agencies must adhere to such sanctions.





                 Sec. Appendix A to Part 2002--Acronyms

CNSI--Classified National Security Information
Council or the Council--The CUI Advisory Council
CUI--Controlled unclassified information
EA--The CUI Executive Agent (which is ISOO)
FOIA--Freedom of Information Act
FRD--Formerly Restricted Data
ISOO--Information Security Oversight Office at the National Archives and 
Records Administration
NARA--National Archives and Records Administration
OMB--Office of Management and Budget within the Office of Information 
and Regulatory Affairs of the Executive Office of the President
PM--the agency's CUI program manager
RD--Restricted Data
SAO--the senior agency official [for CUI]
TR--Transfer Request in NARA's Electronic Records Archives (ERA)



PART 2003_INTERAGENCY SECURITY CLASSIFICATION APPEALS PANEL (ISCAP) 
BYLAWS, RULES, AND APPEAL PROCEDURES--Table of Contents



                            Subpart A_Bylaws

Sec.
2003.1 Purpose (Article I).
2003.2 Authority (Article II).
2003.3 Functions (Article III).
2003.4 Membership (Article IV).
2003.5 Meetings (Article V).
2003.6 Voting (Article VI.).
2003.7 Support Staff (Article VII).
2003.8 Records (Article VIII).
2003.9 Reports to the President (Article IX).
2003.10 Approval, amendment, and publication of bylaws, rules, and 
          procedures (Article X).

                       Subpart B_Appeal Procedures

2003.11 Appeals of agency decisions regarding classification challenges 
          under section 1.8 of the Order.
2003.12 Review of agency exemptions from automatic declassification 
          under section 3.3 of the Order.
2003.13 Appeals of agency decisions denying declassification under 
          mandatory review provisions in section 3.5 of the Order.
2003.14 Dissemination of ISCAP decisions.
2003.15 Additional functions.

    Authority: E.O. 13526, 75 FR 707, 75 FR 1013, 3 CFR, 2010 Comp., p. 
298

    Source: 77 FR 40261, July 9, 2012, unless otherwise noted.



                            Subpart A_Bylaws



Sec.  2003.1  Purpose (Article I).

    The Interagency Security Classification Appeals Panel (hereafter 
``ISCAP'' or ``the Panel'') advises and assists the President in the 
discharge of his constitutional and discretionary authority to protect 
the national security of the United States.



Sec.  2003.2  Authority (Article II).

    ISCAP was established by, and receives its authority from, Executive 
Order 13526 ``Classified National Security Information'' (hereafter the 
``Order''), December 29, 2009, section 5.3(a)(1), and the Order's 
implementing directives. Section 5.3(c) of the Order directs ISCAP to 
issue bylaws, rules, and procedures and to publish them in the Federal 
Register.



Sec.  2003.3  Functions (Article III).

    In carrying out its purpose, the Panel:
    (a) Decides appeals by people who have filed classification 
challenges under section 1.8 of the Order;
    (b) Approves, denies, or amends agency exemptions from automatic 
declassification under section 3.3 of the Order;
    (c) Decides appeals by people or entities who have filed requests 
for mandatory declassification review under section 3.5 of the Order; 
and

[[Page 454]]

    (d) Informs senior agency officials and the public, as appropriate, 
of final Panel decisions on appeals under sections 1.8 and 3.5 of the 
Order.



Sec.  2003.4  Membership (Article IV).

    (a) Member organizations and members. (1) The Departments of State, 
Defense, and Justice, the National Archives and Records Administration, 
the Office of the Director of National Intelligence, and the National 
Security Advisor each have a member on the Panel.
    (2) Additionally, the Director of the Central Intelligence Agency 
may appoint a temporary representative, who meets the member criteria, 
to participate as a voting member in all Panel deliberations and 
associated support activities concerning classified information 
originated by the Central Intelligence Agency.
    (b) Alternate member. Each member organization also designates in 
writing an alternate, or alternates, to represent it on all occasions 
when the primary member is unable to participate. When serving for a 
primary member, an alternate assumes all the rights and responsibilities 
of that primary member, including voting. The alternate member must meet 
the member criteria. The member organization head, or the organization's 
deputy or senior agency official for the Order, makes the written 
designation of an alternate, addressed to the ISCAP Chair.
    (c) Selection criteria for member. (1) Members must be senior-level 
agency Federal officials or employees, full-time or permanent part-time, 
and must be designated to serve as a member on the Panel by the 
respective agency head.
    (2) Panel members must meet security access criteria in order to 
fulfill the Panel's functions.
    (d) Member vacancies. Vacancies among the primary members must be 
filled as quickly as possible. The Chair, working through the Executive 
Secretary, takes all appropriate measures to encourage the organization 
to fill the vacancy quickly. In the interim, the organization's 
designated alternate serves as its member.
    (e) Liaisons. Each member organization also designates in writing an 
individual or individuals (hereafter ``liaisons'') to serve as liaison 
to the Executive Secretary in support of the primary member and 
alternate(s). The liaisons meet at the call of the Executive Secretary. 
The agency head, or the deputy or senior agency official for the Order, 
makes the written designation, addressed to the ISCAP Chair.
    (f) Chair. The President of the United States selects the Chair from 
among the primary members.
    (g) Vice Chair. The members may elect from among the primary members 
a Vice Chair who:
    (1) Chairs meetings that the Chair is unable to attend; and
    (2) Serves as Acting Chair during a vacancy in the Chair of the 
ISCAP.
    (h) Executive Secretary. The Director of the Information Security 
Oversight Office (ISOO), National Archives and Records Administration, 
is the Executive Secretary of the Panel and oversees the Panel's support 
staff.



Sec.  2003.5  Meetings (Article V).

    (a) Purpose. The primary purpose of ISCAP meetings is to discuss and 
bring formal resolution to matters before the Panel and carry out the 
functions listed in Sec.  2003.3, Article III, of these bylaws.
    (b) Frequency. The Panel meets at the call of the Chair, who 
schedules meetings as necessary for the Panel to fulfill its functions 
in a timely manner. The Chair also convenes the ISCAP when requested by 
a majority of its member organizations.
    (c) Quorum. Panel meetings may be held only when a quorum is 
present. For this purpose, a quorum requires the presence of at least 
five primary or alternate members.
    (d) Attendance. As determined by the Chair, attendance at Panel 
meetings is limited to only the people necessary for the Panel to 
fulfill its functions in a complete and timely manner. The members may 
arrange briefings by substantive experts from individual departments or 
agencies, after consultation with the Chair.
    (e) Agenda. The Chair establishes the agenda for all meetings. Any 
member or the Executive Secretary may submit potential items for the 
agenda. Acting through the Executive Secretary, the

[[Page 455]]

Chair distributes the agenda and supporting materials to the members as 
soon as possible before a scheduled meeting.
    (f) Minutes. The Executive Secretary and staff prepare each 
meeting's minutes, and distribute draft minutes to each member. The 
minutes include a record of the members present at the meeting and the 
result of each vote. At each Panel meeting, the Chair reads or 
references the previous meeting's draft minutes. At that time the 
minutes are corrected, as necessary, approved by the membership, and 
certified by the Chair. The approved minutes are maintained among the 
Panel's records.



Sec.  2003.6  Voting (Article VI).

    (a) Motions. When the Panel is required to make a decision or 
recommendation to resolve a matter before it, the Chair requests or 
accepts a motion for a vote. Any member, including the Chair, may make a 
motion for a vote. No second is required to bring any motion to a vote. 
A quorum must be present when a vote is taken.
    (b) Eligibility. Only the member, including the Chair, may vote on a 
motion before the ISCAP, with each represented member organization 
having one vote.
    (c) Voting procedures at meetings. Votes are ordinarily taken and 
tabulated by a show of hands.
    (d) Passing a motion. In response to a motion, members may vote 
affirmatively, negatively, or abstain from voting. A motion passes when 
it receives a majority of affirmative votes of the members voting. In 
circumstances in which members abstain from voting, a Panel decision to 
reverse an agency's classification decision requires the affirmative 
vote of at least a majority of the members present.
    (e) Votes in a non-meeting context. The Chair may call for a vote of 
the membership outside the context of a formal ISCAP meeting. An 
alternate member may also participate in such a vote if the primary 
member cannot be present. The Executive Secretary records and retains 
such votes in a documentary form and immediately reports the results to 
the Chair and other primary or alternate members, including all notes of 
concurrence or dissent. If a member expresses dissent to taking a non-
meeting vote, any member may request the Chair call a meeting of the 
members to discuss the issue under consideration and to hold an in-
person vote.



Sec.  2003.7  Support Staff (Article VII).

    The staff of the Information Security Oversight Office (ISOO), 
National Archives and Records Administration, provides program and 
administrative support for the Panel. The Executive Secretary supervises 
the staff in this function pursuant to the direction of the Chair and 
ISCAP. On an as-needed basis, the Panel may seek detailees from agencies 
to augment the ISOO staff in support of the ISCAP. All staff must meet 
security access criteria in order to fulfill the Panel's functions.



Sec.  2003.8  Records (Article VIII).

    (a) Integrity of ISCAP Records. The Executive Secretary maintains 
records that are produced by or presented to the ISCAP or its staff in 
the performance of the Panel's functions, consistent with applicable 
law.
    (b) Access requests or Freedom of Information Act (FOIA) requests 
for ISCAP records. The Panel refers any FOIA request or other access 
request for information that originated within an agency other than the 
ISCAP to that agency for processing. The Panel processes requests for 
information originated by the ISCAP in accordance with 44 U.S.C. 
sections 2201-2207 (Presidential Records Act).
    (c) Disposition. The Executive Secretary maintains Panel records in 
accordance with 44 U.S.C. sections 2201-2207 (Presidential Records Act).



Sec.  2003.9  Reports to the President (Article IX).

    ISOO includes pertinent information and data about the activities of 
the Panel in ISOO's reports to the President of the United States. The 
Panel also includes such information in any reports it may make to the 
President. The Chair, in coordination with the other members of the 
ISCAP and the Executive Secretary, determines what information and data 
to include in each report.

[[Page 456]]



Sec.  2003.10  Approval, amendment, and publication of bylaws, rules,
and procedures (Article X).

    Approval and amendment of Panel bylaws, rules, and procedures 
requires the affirmative vote of at least four members. The Executive 
Secretary submits approved bylaws, rules, procedures, and their 
amendments, for publication in the Federal Register.



                       Subpart B_Appeal Procedures



Sec.  2003.11  Appeals of agency decisions regarding classification
challenges under section 1.8 of the Order.

    Authorized holders of information who, in good faith, believe that 
its classification status is improper may challenge an agency's 
classification of the information in accordance with agency procedures. 
After challenging the classification at the agency level, the authorized 
holder may appeal the agency's decision to the ISCAP.
    (a) Jurisdiction. The ISCAP will consider and decide appeals from 
classification challenges that otherwise meet the standards of the Order 
if:
    (1) The appeal is filed in accordance with these procedures;
    (2) The appellant has previously challenged the classification 
action at the agency that originated, or is otherwise responsible for, 
the information in question. The previous challenge must have followed 
the agency's established procedures or, if the agency has failed to 
establish procedures, the appellant must have filed a written challenge 
directly with the agency head or designated senior agency official, as 
defined in section 5.4(d) of the Order;
    (3) The appellant has:
    (i) Received a final agency decision denying his or her challenge; 
or
    (ii) Not received--
    (A) An initial written response to the classification challenge from 
the agency within 120 days of its filing, or
    (B) A written response to an agency level appeal within 90 days of 
the filing of the appeal;
    (4) There is no action pending in the federal courts regarding the 
information in question;
    (5) The information in question has not been the subject of a FOIA 
or mandatory declassification review within the past two years; and
    (6) The information in question has not been the subject of a 
prepublication review or other administrative process pursuant to an 
approved nondisclosure agreement.
    (b) Submission of appeals. Appeals may be submitted to the Panel by 
email or mail. Appeals should be sent via email to: [email protected] or by 
mail to: Executive Secretary, Interagency Security Classification 
Appeals Panel; Attn: Classification Challenge Appeals; c/o Information 
Security Oversight Office; National Archives and Records Administration; 
700 Pennsylvania Avenue NW., Room 503; Washington, DC 20408.
    (1) The appeal must contain enough information for the Executive 
Secretary to be able to obtain all pertinent documents about the 
classification challenge from the affected agency.
    (2) No classified information should be included within the initial 
appeal correspondence. The Executive Secretary will arrange for the 
transmittal of classified information from the agency after receiving 
the appeal. If it is impossible for the appellant to file an appeal 
without including classified information, prior arrangements must be 
made by contacting the Panel in one of the two methods listed above.
    (c) Timeliness of appeals. An appeal to the ISCAP must be filed 
within 60 days of:
    (1) The date of the final agency decision; or
    (2) The agency's failure to meet the time frames established in 
paragraph (a)(3)(i) and (ii) of this section.
    (d) Rejection of appeals. If the Executive Secretary determines that 
an appeal does not meet the requirements of the Order or these bylaws, 
the Executive Secretary notifies the appellant in writing that the 
appeal will not be considered by the ISCAP. The notification includes an 
explanation of why the appeal is deficient.
    (e) Preparation of appeals and creation of appeals files. The 
Executive Secretary notifies the designated senior agency official, and, 
if applicable, the primary member, alternate, or liaison of the affected 
agency(ies) when an appeal is lodged. Under the direction of

[[Page 457]]

the ISCAP, the Executive Secretary supervises the preparation of an 
appeal file, pertinent portions of which are presented to the members of 
the Panel for review prior to a vote on the appeal. The appeal file 
eventually includes all records pertaining to the appeal.
    (f) Resolution of appeals. The Panel may vote to affirm the agency's 
decision, to reverse the agency's decision in whole or in part, or to 
remand the matter to the agency for further consideration. A decision to 
reverse an agency's decision requires the affirmative vote of at least a 
majority of the members present. In circumstances in which members 
abstain from voting, a Panel decision to reverse an agency's 
classification decision requires the affirmative vote of at least a 
majority of the members present.
    (g) Notification. The Executive Secretary promptly notifies the 
appellant and the designated senior agency official in writing of the 
Panel's decision.
    (h) Agency appeals. Within 60 days of receipt of an ISCAP decision 
that reverses a final agency decision, the agency head may petition the 
President through the National Security Advisor to overrule the Panel's 
decision. The information at issue remains classified until the 
President has issued a decision.
    (i) Protection of classified information. All persons involved in 
the appeal will make every effort to minimize the inclusion of 
classified information in the appeal file. Any classified information 
contained in the appeal file is handled and protected in accordance with 
the Order and its implementing directives. Information being challenged 
for classification remains classified unless and until a final decision 
is made to declassify it.
    (j) Maintenance and disposition of file. The Executive Secretary 
maintains the appeal file among the ISCAP's records in accordance with 
44 U.S.C. 2201-2207 (the Presidential Records Act).



Sec.  2003.12  Review of agency exemptions from automatic declassification
under section 3.3 of the Order.

    All classified records that are more than 25 years old and have been 
determined to have permanent historical value under title 44, United 
States Code, are automatically declassified whether or not the records 
have been reviewed. However, agency heads may exempt information that 
would otherwise fall into this category on specific bases set out in 
section 3.3 of the Order. The ISCAP reviews and approves, denies, or 
amends agency proposals to exempt such information from automatic 
declassification.
    (a) Agency notification of exemptions. The agency head or designated 
senior agency official notifies the Executive Secretary of proposed 
agency exemptions in accordance with the requirements of the Order and 
its implementing directives. Agencies provide any additional information 
or justification that the Executive Secretary believes is necessary or 
helpful in order for the ISCAP to review and decide on the exemption.
    (b) Preparation of the exemptions files. The Executive Secretary 
notifies the Chair of an agency's submission. At the direction of the 
ISCAP, the Executive Secretary supervises the preparation of an 
exemption file, pertinent portions of which are presented to the members 
of the Panel for review prior to a vote on the exemptions. The exemption 
file eventually includes all records pertaining to the ISCAP's 
consideration of the agency's exemptions.
    (c) Resolution. The Panel may vote to approve an agency exemption, 
to deny an agency exemption, to amend an agency exemption, or to remand 
the matter to the agency for further consideration. A decision to deny 
or amend an agency exemption requires the affirmative vote of a majority 
of the members present.
    (d) Notification. The Executive Secretary promptly notifies the 
designated senior agency official in writing of the Panel's decision.
    (e) Agency appeals. Within 60 days of receipt of an ISCAP decision 
that denies or amends an agency exemption, the agency head may petition 
the President through the National Security Advisor to overrule the 
Panel's decision.
    (f) Protection of classified information. All persons involved in 
the appeal will make every effort to minimize the inclusion of 
classified information in the

[[Page 458]]

appeal file. Any classified information contained in the exemption file 
is handled and protected in accordance with the Order and its 
implementing directives. Information that the agency maintains is exempt 
from declassification remains classified unless and until a final 
decision is made to declassify it.
    (g) Maintenance and disposition of file. The Executive Secretary 
maintains the exemption file among the ISCAP's records in accordance 
with 44 U.S.C. 2201-2207 (the Presidential Records Act).



Sec.  2003.13  Appeals of agency decisions denying declassification under
mandatory review provisions in section 3.5 of the Order.

    Section 3.5 of the Order requires agencies to conduct a mandatory 
declassification review, upon request, of classified information that 
meets the requirements set out in the Order. An agency may deny such a 
review for specific reasons set out in section 5.3(a) of the Order. If 
an agency denies a request for such review, a person may appeal the 
denial through the agency's appeal process. After that process, a person 
may further appeal to the ISCAP.
    (a) Jurisdiction. The ISCAP considers and decides appeals from 
denials of mandatory review for declassification requests that otherwise 
meet the standards of the Order if:
    (1) The appeal is filed in accordance with these procedures;
    (2) The appellant has previously filed a request for mandatory 
declassification review at the agency that originated, or is otherwise 
responsible for, the information in question, and filed an appeal at the 
agency level. The request and appeal must have followed the agency's 
established procedures or, if the agency has failed to establish 
procedures, the appellant must have filed a written request directly 
with the agency head or designated senior agency official;
    (3) The appellant has:
    (i) Received a final agency decision denying his or her request; or
    (ii) Not received--
    (A) An initial decision on the request for mandatory 
declassification review from the agency within one year of its filing, 
or
    (B) A final decision on an agency level appeal within 180 days of 
the filing of the appeal;
    (4) There is no action pending in the federal courts regarding the 
information in question;
    (5) The information in question has not been the subject of an 
access review by the Federal courts or the ISCAP within the past two 
years; and
    (6) The information in question is not the subject of a 
prepublication review or other administrative process pursuant to an 
approved nondisclosure agreement.
    (b) Submission of appeals. Appeals may be submitted to the Panel by 
email or mail. Appeals should be sent via email to: [email protected] or by 
mail to: Executive Secretary, Interagency Security Classification 
Appeals Panel; Attn: Mandatory Declassification Review Appeals; c/o 
Information Security Oversight Office; National Archives and Records 
Administration; 700 Pennsylvania Avenue NW., Room 503; Washington, DC 
20408.
    (1) The appeal must contain enough information for the Executive 
Secretary to be able to obtain all pertinent documents about the 
mandatory declassification review appeal from the affected agency.
    (2) No classified information should be included within the initial 
appeal correspondence. The Executive Secretary will arrange for the 
transmittal of classified information from the agency after receiving 
the appeal. If it is impossible for the appellant to file an appeal 
without including classified information, prior arrangements must be 
made by contacting the Panel in one of the two methods listed above.
    (c) Timeliness of appeals. An appeal to the ISCAP must be filed 
within 60 days of:
    (1) The date of the final agency decision; or
    (2) The agency's failure to meet the time frames established in 
paragraph (a)(3)(i) and (ii) of this section.
    (d) Rejection of appeals. If the Executive Secretary determines that 
an appeal does not meet the requirements of the Order or these bylaws, 
the Executive Secretary notifies the appellant in writing that the 
appeal will not be considered by the ISCAP. The notification

[[Page 459]]

includes an explanation of why the appeal is deficient.
    (e) Preparation of appeals and creation of appeals files. The 
Executive Secretary notifies the senior agency official or primary 
member, alternate, or liaison of the affected agency(ies) when an appeal 
is lodged. Under the direction of the ISCAP, the Executive Secretary 
supervises the preparation of an appeal file, pertinent portions of 
which are presented to the members of the Panel for review prior to a 
vote on the appeal. The appeal file eventually includes all records 
pertaining to the appeal.
    (f) Narrowing appeals. To expedite the resolution of appeals and 
minimize backlogs, the Executive Secretary consults as relevant with 
appellants and agencies to narrow or prioritize the information subject 
to the appeal.
    (g) Resolution of appeals. The Panel may vote to affirm the agency's 
decision, to reverse the agency's decision in whole or in part, or to 
remand the matter to the agency for further consideration. A decision to 
reverse an agency's decision requires the affirmative vote of at least a 
majority of the members present. In circumstances in which members 
abstain from voting, a Panel decision to reverse an agency's 
classification decision requires the affirmative vote of at least a 
majority of the members present.
    (h) Notification. The Executive Secretary promptly notifies the 
appellant and designated senior agency official in writing of the 
Panel's decision.
    (i) Agency appeals. Within 60 days of receipt of an ISCAP decision 
that reverses a final agency decision, the agency head may petition the 
President through the National Security Advisor to overrule the Panel's 
decision.
    (j) Protection of classified information. All persons involved in 
the appeal will make every effort to minimize the inclusion of 
classified information in the appeal file. Any classified information 
contained in the appeal file is handled and protected in accordance with 
the Order and its implementing directives. Information that is subject 
to an appeal from an agency decision denying declassification under the 
mandatory review provisions of the Order remains classified unless and 
until a final decision is made to declassify it.
    (k) Maintenance and disposition of file. The Executive Secretary 
shall maintain the appeal file among the ISCAP's records in accordance 
with 44 U.S.C. 2201-2207 (Presidential Records Act).



Sec.  2003.14  Dissemination of ISCAP decisions.

    The Executive Secretary informs senior agency officials and the 
public of final ISCAP decisions on appeals under sections 1.8 and 3.5 of 
the Order.



Sec.  2003.15  Additional functions.

    As directed by the President through the National Security Advisor, 
the ISCAP performs such additional advisory functions as are consistent 
with, and supportive of, the successful implementation of the Order.



PART 2004_NATIONAL INDUSTRIAL SECURITY PROGRAM (NISP)--Table of Contents



                 Subpart A_Implementation and Oversight

Sec.
2004.1 Purpose and scope.
2004.4 Definitions that apply to this part.
2004.10 Responsibilities of the Director, Information Security Oversight 
          Office (ISOO).
2004.11 CSA and agency implementing regulations, internal rules, or 
          guidelines.
2004.12 ISOO reviews of agency NISP implementation.

                        Subpart B_Administration

2004.20 National Industrial Security Program Executive Agent (EA) and 
          Operating Manual (NISPOM).
2004.22 Agency responsibilities.
2004.24 Insider threat program.
2004.26 Reviews of entity NISP implementation.
2004.28 Cost reports.

                          Subpart C_Operations

2004.30 Security classification requirements and guidance.
2004.32 Determining entity eligibility for access to classified 
          information.
2004.34 Foreign ownership, control, or influence (FOCI).
2004.36 Determining entity employee eligibility for access to classified 
          information.
2004.38 Safeguarding and marking.
2004.40 Information system security.
2004.42 [Reserved]

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Appendix A to Part 2004--Acronym Table

    Authority: Section 102(b)(1) of E.O. 12829 (January 6, 1993), as 
amended by E.O. 12885 (December 14, 1993), E.O. 13691 (February 12, 
2015), and section 4 of E.O. 13708 (September 30, 2015).

    Source: 83 FR 19951, May 7, 2018, unless otherwise noted.



                 Subpart A_Implementation and Oversight



Sec.  2004.1  Purpose and scope.

    (a) This part sets out the National Industrial Security Program 
(``NISP'' or ``the Program'') governing the protection of agency 
classified information released to Federal contractors, licensees, 
grantees, and certificate holders. It establishes uniform standards 
throughout the Program, and helps agencies implement requirements in 
E.O. 12829, National Industrial Security Program, as amended by E.O. 
12558 and E.O.13691 (collectively referred to as ``E.O. 12829''), E.O. 
13691, Promoting Private Sector Cybersecurity Information Sharing, and 
E.O. 13587, Structural Reforms to Improve the Security of Classified 
Networks and the Responsible Sharing and Safeguarding of Classified 
Information. It applies to any executive branch agency that releases 
classified information to current, prospective, or former Federal 
contractors, licensees, grantees, or certificate holders. However, this 
part does not stand alone; users should refer concurrently to the 
underlying executive orders for guidance. ISOO maintains policy 
oversight over the NISP as established by E.O.12829.
    (b) This part also does not apply to release of classified 
information pursuant to criminal proceedings. The Classified Information 
Procedures Act (CIPA) (18 U.S.C. Appendix 3) governs release of 
classified information in criminal proceedings.
    (c) Nothing in this part supersedes the authority of the Secretary 
of Energy or the Nuclear Regulatory Commission under the Atomic Energy 
Act of 1954, as amended (42 U.S.C. 2011, et seq.) (collectively referred 
to as ``the Atomic Energy Act''); the authority of the Director of 
National Intelligence (or any intelligence community element) under the 
Intelligence Reform and Terrorism Prevention Act of 2004 (Pub. L. 108-
458), the National Security Act of 1947 as amended (50 U.S.C. 401, et 
seq.), and E.O. 12333 (December 4, 1981), as amended by E.O. 13355, 
Strengthened Management of the Intelligence Community (August 27, 2004) 
and E.O. 13470, Further Amendments to Executive Order 12333 (July 30, 
2008) (collectively referred to as ``E.O. 12333''); or the authority of 
the Secretary of Homeland Security, as the Executive Agent for the 
Classified National Security Information Program established under E.O. 
13549, Classified National Security Information Program for State, 
Local, Tribal, and Private Sector Entities (August 18, 2010), or as 
established by E.O. 13284, Amendment of Executive Orders, and Other 
Actions, in Connection with the Establishment of the Department of 
Homeland Security (January 23, 2003). In exercising these authorities, 
CSAs make every effort to facilitate reciprocity, avoid duplication of 
regulatory requirements, and facilitate uniform standards.



Sec.  2004.4  Definitions that apply to this part.

    (a) Access is the ability or opportunity to gain knowledge of 
classified information.
    (b) Agency(ies) are 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 regulation.
    (c) Classified Critical Infrastructure Protection Program (CCIPP) is 
the DHS program that executes the classified infrastructure protection 
program designated by E.O. 13691, ``Promoting Private Sector 
Cybersecurity Information Sharing.'' The Government uses this program to 
share classified cybersecurity-related information with employees of 
private sector entities that own or operate critical infrastructure. 
Critical infrastructure refers to systems and assets, whether physical 
or virtual, so vital to the United States that incapacitating or 
destroying such systems

[[Page 461]]

and assets would have a debilitating impact on security, national 
economic security, national public health or safety, or any combination 
thereof. These entities include banks and power plants, among others. 
The sectors of critical infrastructure are listed in Presidential Policy 
Directive 21, Critical Infrastructure Security and Resilience (February 
12, 2013).
    (d) Classified Critical Infrastructure Protection Program (CCIPP) 
security point of contact (security POC) is an official whom a CCIPP 
entity designates to maintain eligibility information about the entity 
and its cleared employees, and to report that information to DHS. The 
CCIPP security POC must be eligible for access to classified 
information.
    (e) Classified information is information the Government designates 
as requiring protection against unauthorized disclosure in the interest 
of national security, pursuant to E.O. 13526, Classified National 
Security Information, or any predecessor order, and the Atomic Energy 
Act of 1954, as amended. Classified information includes national 
security information (NSI), restricted data (RD), and formerly 
restricted data (FRD), regardless of its physical form or 
characteristics (including tangible items other than documents).
    (f) Cognizance is the area over which a CSA has operational 
oversight. Normally, a statute or executive order establishes a CSA's 
cognizance over certain types of information, programs, or non-CSA 
agencies, although CSAs may also have cognizance through an agreement 
with another CSA or non-CSA agency or an entity. A CSA may have 
cognizance over a particular type(s) of classified information based on 
specific authorities (such as those listed in Sec.  2004.1(c)), and a 
CSA may have cognizance over certain agencies or cross-agency programs 
(such as DoD's cognizance over non-CSA agencies as the EA for NISP, or 
ODNI's oversight (if applicable) of all intelligence community elements 
within the executive branch). Entities fall under a CSA's cognizance 
when they enter or compete to enter contracts or agreements to access 
classified information under the CSA's cognizance, including when they 
enter or compete to enter such contracts or agreements with a non-CSA 
agency or another entity under the CSA's cognizance.
    (g) Cognizant security agencies (CSAs) are the agencies E.O. 12829, 
sec. 202, designates as having NISP implementation and security 
responsibilities for their own agencies (including component agencies) 
and any entities and non-CSA agencies under their cognizance. The CSAs 
are: Department of Defense (DoD); Department of Energy (DOE); Nuclear 
Regulatory Commission (NRC); Office of the Director of National 
Intelligence (ODNI); and Department of Homeland Security (DHS).
    (h) Cognizant security office (CSO) is an organizational unit to 
which the head of a CSA delegates authority to administer industrial 
security services on behalf of the CSA.
    (i) Contracts or agreements are any type of arrangement between an 
agency and an entity or an agency and another agency. They include, but 
are not limited to, contracts, sub-contracts, licenses, certificates, 
memoranda of understanding, inter-agency service agreements, other types 
of documents or arrangements setting out responsibilities, requirements, 
or terms agreed upon by the parties, programs, projects, and other 
legitimate U.S. or foreign government requirements. FOCI mitigation or 
negation measures, such as Voting Trust Agreements, that have the word 
``agreement'' in their title are not included in the term ``agreements'' 
within this part.
    (j) Controlling agency is an agency that owns or controls the 
following categories of proscribed information and thus has authority 
over access to or release of the information: NSA for communications 
security information (COMSEC); DOE for restricted data (RD); and ODNI 
for sensitive compartmented information (SCI).
    (k) 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,

[[Page 462]]

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), a specific location or facility, or the headquarters/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 part 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.
    (l) Entity eligibility determination is 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). Eligibility determinations may 
be broad or limited to specific contracts, sponsoring agencies, or 
circumstances. A favorable 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 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. Some CSAs refer to their 
favorable determinations as facility security clearances (FCL). A 
favorable entity eligibility determination does not convey authority to 
store classified information.
    (m) Foreign interest is any foreign government, element 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 United States citizen or 
national.
    (n) Government contracting activity (GCA) is an agency component or 
subcomponent to which the agency head delegates broad authority 
regarding acquisition functions. A foreign government may also be a GCA.
    (o) Industrial security services are those activities performed by a 
CSA to verify that an entity is protecting classified information. They 
include, but are not limited to, conducting oversight reviews, making 
eligibility determinations, and providing agency and entity guidance and 
training.
    (p) Insider(s) are entity employees who are eligible to access 
classified information and may be authorized access to any U.S. 
Government or entity resource (such as personnel, facilities, 
information, equipment, networks, or systems).
    (q) Insider threat is 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 entity or program information to the extent 
that the information impacts the entity's or agency's obligations to 
protect classified information.
    (r) Insider threat response action(s) are actions (such as 
investigations) an agency takes to ascertain whether an insider threat 
exists, and actions the agency takes to mitigate the threat. Agencies 
may conduct insider threat response actions through their 
counterintelligence (CI), security, law enforcement, or inspector 
general organizations, depending on the statutory authority and internal 
policies that govern the agency.
    (s) Insider threat program senior official (SO) is the official an 
agency head or entity designates with responsibility to manage, account 
for, and oversee the agency's or entity's insider threat program, 
pursuant to the National Insider Threat Policy and Minimum Standards. An 
agency may have more than one insider threat program SO.
    (t) Key managers and officials (KMO) are the senior management 
official (or authorized executive official under CCIPP), the entity's 
security officer (or security POC under CCIPP), the insider threat 
program senior official, and other entity employees whom the responsible 
CSA identifies as having authority, direct or indirect, to influence or 
decide matters affecting the entity's

[[Page 463]]

management or operations, its contracts requiring access to classified 
information, or national security interests. They may include 
individuals who hold majority ownership interest in the entity (in the 
form of stock or other ownership interests).
    (u) Proscribed information is information that is classified as top 
secret (TS) information; communications security (COMSEC) information 
(excluding controlled cryptographic items when un-keyed or utilized with 
unclassified keys); restricted data (RD); special access program 
information (SAP); or sensitive compartmented information (SCI).
    (v) Security officer is a U.S. citizen employee the entity 
designates to supervise and direct security measures implementing NISPOM 
(or equivalent; such as DOE Orders) requirements. Some CSAs refer to 
this position as a facility security officer (FSO). The security officer 
must complete security training specified by the responsible CSA, and 
must have and maintain an employee eligibility determination level that 
is at least the same level as the entity's eligibility determination 
level.
    (w) Senior agency official for NISP (SAO for NISP) is the official 
an agency head designates to direct and administer the agency's National 
Industrial Security Program.
    (x) Senior management official (SMO) is the person in charge of an 
entity. Under the CCIPP, this is the authorized executive official with 
authority to sign the security agreement with DHS.
    (y) Sub-entity is an entity's branch or division, another type of 
sub-element, a sub-contractor, subsidiary, or other subordinate or 
connected entity. Sub-entities fall under the definition of ``entity,'' 
but this part refers to them as sub-entities when necessary to 
distinguish such entities from prime contractor or parent entities. See 
definition of ``entity'' in paragraph (k) of this section for more 
context.



Sec.  2004.10  Responsibilities of the Director, Information Security
Oversight Office (ISOO).

    The Director, ISOO:
    (a) Implements E.O. 12829, including ensuring that:
    (1) The NISP operates as a single, integrated program across the 
executive branch of the Federal Government (i.e., such that agencies 
that release classified information to entities adhere to NISP 
principles);
    (2) A responsible CSA oversees each entity's NISP implementation in 
accordance with Sec.  2004.22;
    (3) All agencies that contract for classified work include the 
Security Requirements clause, 48 CFR 52.204-2, from the Federal 
Acquisition Regulation (FAR), or an equivalent clause, in contracts that 
require access to classified information;
    (4) Those agencies for which the Department of Defense (DoD) serves 
as the CSA or provides industrial security services have agreements with 
DoD defining the Secretary of Defense's responsibilities on behalf of 
their agency;
    (5) Each CSA issues directions to entities under their cognizance 
that are consistent with the NISPOM insider threat guidance;
    (6) CSAs share with each other, as lawful and appropriate, relevant 
information about entity employees that indicates an insider threat; and
    (7) CSAs conduct ongoing analysis and adjudication of adverse or 
relevant information about entity employees that indicates an insider 
threat.
    (b) Raises an issue to the National Security Council (NSC) for 
resolution if the EA's NISPOM coordination process cannot reach a 
consensus on NISPOM security standards (see Sec.  2004.20(d)).



Sec.  2004.11  CSA and agency implementing regulations, internal rules,
or guidelines.

    (a) Each CSA implements NISP practices in part through policies and 
guidelines that are consistent with this regulation, so that agencies 
for which it serves as the CSA are aware of appropriate security 
standards, engage in consistent practices with entities, and so that 
practices effectively protect classified information those entities 
receive (including foreign government information that the U.S. 
Government must protect in the interest of national security).

[[Page 464]]

    (b) Each CSA must also routinely review and update its NISP policies 
and guidelines and promptly issue revisions when needed (including when 
a change in national policy necessitates a change in agency NISP 
policies and guidelines).
    (c) Non-CSA agencies may choose to augment CSA NISP policies or 
guidelines as long as the agency policies or guidelines are consistent 
with the CSA's policies or guidelines and this regulation.



Sec.  2004.12  ISOO review of agency NISP implementation.

    (a) ISOO fulfills its oversight role based, in part, on information 
received from NISP Policy Advisory Committee (NISPPAC) members, from on-
site reviews that ISOO conducts under the authority of E.O. 12829, and 
from any submitted complaints and suggestions. ISOO reports findings to 
the responsible CSA or agency.
    (b) ISOO reviews agency policies and guidelines to ensure 
consistency with NISP policies and procedures. ISOO may conduct reviews 
during routine oversight visits, when a problem or potential problem 
comes to ISOO's attention, or after a change in national policy that 
impacts agency policies and guidelines. ISOO provides the responsible 
agency with findings from these reviews.



                        Subpart B_Administration



Sec.  2004.20  National Industrial Security Program Executive Agent
and Operating Manual.

    (a) The executive agent (EA) for NISP is the Secretary of Defense. 
The EA:
    (1) Provides industrial security services for agencies that are not 
CSAs but that release classified information to entities. The EA 
provides industrial security services only through an agreement with the 
agency. Non-CSA agencies must enter an agreement with the EA and comply 
with EA industrial security service processes before releasing 
classified information to an entity;
    (2) Provides services for other CSAs by agreement; and
    (3) Issues and maintains the National Industrial Security Program 
Operating Manual (NISPOM) in consultation with all affected agencies and 
with the concurrence of the other CSAs.
    (b) The NISPOM sets out the procedures and standards that entities 
must follow during all phases of the contracting process to safeguard 
any classified information an agency releases to an entity. The NISPOM 
requirements may apply to the entity directly (i.e., through FAR clauses 
or other contract clauses referring entities to the NISPOM) or through 
equivalent contract clauses or requirements documents that are 
consistent with NISPOM requirements.
    (c) The EA, in consultation with all affected agencies and with the 
concurrence of the other CSAs, develops the requirements, restrictions, 
and safeguards contained in the NISPOM. The EA uses security standards 
applicable to agencies as the basis for developing NISPOM entity 
standards to the extent practicable and reasonable.
    (d) The EA also facilitates the NISPOM coordination process, which 
addresses issues raised by entities, agencies, ISOO, or the NISPPAC, 
including requests to create or change NISPOM security standards.



Sec.  2004.22  Agency responsibilities.

    (a) Agency categories and general areas of responsibility. Federal 
agencies fall into three categories for the purpose of NISP 
responsibilities:
    (1) CSAs. CSAs are responsible for carrying out NISP implementation 
within their agency, for providing NISP industrial security services on 
behalf of non-CSA agencies by agreement when authorized, and for 
overseeing NISP compliance by entities that access classified 
information under the CSA's cognizance. When the CSA has oversight 
responsibilities for a particular non-CSA agency or for an entity, the 
CSA also functions as the responsible CSA;
    (2) Non-CSA agencies. Non-CSA agencies are responsible for entering 
agreements with a designated CSA for industrial security services, and 
are responsible for carrying out NISP implementation within their agency 
consistently with the agreement, the CSA's guidelines and procedures, 
and this regulation; or

[[Page 465]]

    (3) Agencies that are components of another agency. Component 
agencies do not have itemized responsibilities under this regulation and 
do not independently need to enter agreements with a CSA, but they 
follow, and may have responsibilities under, implementing guidelines and 
procedures established by their CSA or non-CSA agency, or both.
    (b) Responsible CSA role. (1) The responsible CSA is the CSA (or its 
delegated CSO) that provides NISP industrial security services on behalf 
of an agency, determines an entity's eligibility for access, and 
monitors and inspects an entity's NISP implementation.
    (2) In general, the goal is to have one responsible CSA for each 
agency and for each entity, to minimize the burdens that can result from 
complying with differing CSA procedures and requirements.
    (i) With regard to agencies, NISP accomplishes this goal by a 
combination of designated CSAs and agreements between agencies and CSAs.
    (ii) With regard to entities, CSAs strive to reduce the number of 
responsible CSAs for a given entity as much as possible. To this end, 
when more than one CSA releases classified information to a given 
entity, those CSAs agree on which is the responsible CSA. However, due 
to certain unique agency authorities, there may be circumstances in 
which a given entity is under the oversight of more than one responsible 
CSA.
    (3) Responsible CSA for agencies:
    (i) In general, each CSA serves as the responsible CSA for 
classified information that it (or any of its component agencies) 
releases to entities, unless it enters an agreement otherwise with 
another CSA.
    (ii) DoD serves as the responsible CSA for DHS with the exception of 
the CCIPP, based on an agreement between the two CSAs.
    (iii) DoD serves as the responsible CSA on behalf of all non-CSA 
agencies, except CSA components, based on E.O. 12829 and its role as 
NISP EA.
    (iv) ODNI serves as the responsible CSA for CIA.
    (4) Responsible CSA for entities: When determining the responsible 
CSA for a given entity, the involved CSAs consider, at a minimum: 
retained authorities, the information's classification level, number of 
contracts requiring access to classified information, location, number 
of Government customers, volume of classified activity, safeguarding 
requirements, responsibility for entity employee eligibility 
determinations, and any special requirements.
    (5) Responsible CSAs may delegate oversight responsibility to a 
cognizant security office (CSO) through CSA policy or by written 
delegation. The CSA must inform entities under its cognizance if it 
delegates responsibilities. For purposes of this rule, the term CSA also 
refers to the CSO.
    (c) CSA responsibilities. (1) The CSA may perform GCA 
responsibilities as its own GCA.
    (2) As CSA, the CSA performs or delegates the following 
responsibilities:
    (i) Designates a CSA senior agency official (SAO) for NISP;
    (ii) Identifies the insider threat program senior official (SO) to 
the Director, ISOO;
    (iii) Shares insider threat information with other CSAs, as lawful 
and appropriate, including information that indicates an insider threat 
about entity employees eligible to access classified information;
    (iv) Acts upon and shares--with security management, GCAs, insider 
threat program employees, and Government program and CI officials--any 
relevant entity-reported information about security or CI concerns, as 
appropriate;
    (v) Submits reports to ISOO as required by this part; and
    (vi) Develops, coordinates, and provides concurrence on changes to 
the NISPOM when requested by the EA.
    (3) As a responsible CSA, the CSA also performs or delegates the 
following responsibilities:
    (i) Determines whether an entity is eligible for access to 
classified information (see Sec.  2004.32);
    (ii) Allocates funds, ensures appropriate investigations are 
conducted, and determines entity employee eligibility for access to 
classified information (see Sec.  2004.36);

[[Page 466]]

    (iii) Reviews and approves entity safeguarding measures, including 
making safeguarding capability determinations (see Sec.  2004.38);
    (iv) Conducts periodic security reviews of entity operations (see 
Sec.  2004.26) to determine that entities: effectively protect 
classified information provided to them; and follow NISPOM (or 
equivalent) requirements;
    (v) Provides and regularly updates guidance, training, training 
materials, and briefings to entities on:
    (A) Entity implementation of NISPOM (or equivalent) requirements, 
including: responsibility for protecting classified information, 
requesting NISPOM interpretations, establishing training programs, and 
submitting required reports;
    (B) Initial security briefings and other briefings required for 
special categories of information;
    (C) Authorization measures for information systems processing 
classified information (except DHS) (see Sec.  2004.40);
    (D) Security training for security officers (or CCIPP POCs) and 
other employees whose official duties include performing NISP-related 
functions;
    (E) Insider threat programs in accordance with the National Insider 
Threat Policy and Minimum Standards for Executive Branch Insider Threat 
Programs; and
    (F) Other guidance and training as appropriate;
    (vi) Establishes a mechanism for entities to submit requests for 
waivers to NISPOM (or equivalent) provisions;
    (vii) Reviews, continuously analyzes, and adjudicates, as 
appropriate, reports from entities regarding events that:
    (A) Impact the status of the entity's eligibility for access to 
classisfied information;
    (B) Impact an employee's eligibility for access;
    (C) May indicate an employee poses an insider threat;
    (D) Affect proper safeguarding of classified information; or
    (E) Indicate that classified information has been lost or 
compromised;
    (viii) Verifies that reports offered in confidence and so marked by 
an entity may be withheld from public disclosure under applicable 
exemptions of the Freedom of Information Act (5 U.S.C. 552);
    (ix) Requests any additional information needed from an entity about 
involved employees to determine continued eligibility for access to 
classified information when the entity reports loss, possible 
compromise, or unauthorized disclosure of classified information; and
    (x) Posts hotline information on its website for entity access, or 
otherwise disseminates contact numbers to the entities for which the CSA 
is responsible.
    (d) Non-CSA agency head responsibilities. The head of a non-CSA 
agency that is not a CSA component and that releases classified 
information to entities, performs the following responsibilities:
    (1) Designates an SAO for the NISP;
    (2) Identifies the insider threat program SO to ISOO to facilitate 
information sharing;
    (3) Enters into an agreement with the EA (except agencies that are 
components of another agency or a cross-agency oversight office) to act 
as the responsible CSA on the agency's behalf (see paragraph (a)(1)(ii) 
of this section);
    (4) Performs, or delegates in writing to a GCA, the following 
responsibilities:
    (i) Provides appropriate education and training to agency personnel 
who implement the NISP;
    (ii) Includes FAR security requirements clause 52.204-2, or 
equivalent (such as the DEAR clause 952.204-2), and a contract security 
classification specification (or equivalent guidance) into contracts and 
solicitations that require access to classified information (see Sec.  
2004.30); and
    (iii) Reports to the appropriate CSA adverse information and insider 
threat activity pertaining to entity employees having access to 
classified information.



Sec.  2004.24  Insider threat program.

    (a) Responsible CSAs oversee and analyze entity activity to ensure 
entities implement an insider threat program in accordance with the 
National Insider Threat Policy and Minimum Standards for Executive 
Branch Insider Threat Programs (via requirements in the NISPOM or its 
equivalent) and

[[Page 467]]

guidance from the CSA. CSA oversight responsibilities include, but are 
not limited to:
    (1) Verifying that entities appoint insider threat program SOs;
    (2) Requiring entities to monitor, report, and review insider threat 
program activities and response actions in accordance with the 
provisions set forth in the NISPOM (or equivalent);
    (3) Providing entities with access to data relevant to insider 
threat program activities and applicable reporting requirements and 
procedures;
    (4) Providing entities with a designated means to report insider 
threat-related activity; and
    (5) Advising entities on appropriate insider threat training for 
entity employees eligible for access to classified information.
    (b) CSAs share with other CSAs any insider threat information 
reported to them by entities, as lawful and appropriate.



Sec.  2004.26  Reviews of entity NISP implementation.

    (a) The responsible CSA conducts recurring oversight reviews of 
entities' NISP security programs to verify that the entity is protecting 
classified information and is implementing the provisions of the NISPOM 
(or equivalent). The CSA determines the scope and frequency of reviews. 
The CSA generally notifies entities when a review will take place, but 
may also conduct unannounced reviews at its discretion.
    (b) CSAs make every effort to avoid unnecessarily intruding into 
entity employee personal effects during the reviews.
    (c) A CSA may, on entity premises, physically examine the interior 
spaces of containers not authorized to store classified information in 
the presence of the entity's representative.
    (d) As part of a security review, the CSA:
    (1) Verifies that the entity limits entity employees with access to 
classified information to the minimum number necessary to perform on 
contracts requiring access to classified information.
    (2) Validates that the entity has not provided its employees 
unauthorized access to classified information;
    (3) Reviews the entity's self-inspection program and evaluates and 
records the entity's remedial actions; and
    (4) Verifies that the GCA approved any public release of information 
pertaining to a contract requiring access to classified information.
    (e) As a result of findings during the security review, the CSA may, 
as appropriate, notify:
    (1) GCAs if there are unfavorable results from the review; and
    (2) A prime entity if the CSA discovers unsatisfactory security 
conditions pertaining to a sub-entity.
    (f) The CSA maintains a record of reviews it conducts and the 
results. Based on review results, the responsible CSA determines whether 
an entity's eligibility for access to classified information may 
continue. See Sec.  2004.32(g).



Sec.  2004.28  Cost reports.

    (a) Agencies must annually report to the Director, ISOO, on their 
NISP implementation costs for the previous year.
    (b) CSAs must annually collect information on NISP implementation 
costs incurred by entities under their cognizance and submit a report to 
the Director, ISOO.



                          Subpart C_Operations



Sec.  2004.30  Security classification requirements and guidance.

    (a) Contract or agreement and solicition requirements. (1) The GCA 
must incorporate FAR clause 52.204-2, Security Requirements (or 
equivalent set of security requirements), into contracts or agreements 
and solicitations requiring access to classified information.
    (2) The GCA must also include a contract security classification 
specification (or equivalent guidance) with each contract or agreement 
and solicitation that requires access to classified information. The 
contract security classification specification (or equivalent guidance) 
must identify the specific elements of classified information involved 
in each phase of the contract or agreement life-cycle, such as:
    (i) Level of classification;
    (ii) Where the entity will access or store the classified 
information, and

[[Page 468]]

any requirements or limitations on transmitting classified information 
outside the entity;
    (iii) Any special accesses;
    (iv) Any classification guides or other guidance the entity needs to 
perform during that phase of the contract or agreement;
    (v) Any authorization to disclose information about the contract or 
agreement requiring access to classified information; and
    (vi) GCA personnel responsible for interpreting and applying the 
contract security specifications (or equivalent guidance).
    (3) The GCA revises the contract security classification 
specification (or equivalent guidance) throughout the contract or 
agreement life-cycle as security requirements change.
    (b) Guidance. Classification guidance is the exclusive 
responsibility of the GCA. The GCA prepares classification guidance in 
accordance with 32 CFR 2001.15, and provides appropriate security 
classification and declassification guidance to entities.
    (c) Requests for clarification and classification challenges. (1) 
The GCA responds to entity requests for clarification and classification 
challenges.
    (2) The responsible CSA assists entities to obtain appropriate 
classification guidance from the GCA, and to obtain a classification 
challenge response from the GCA.
    (d) Instructions upon contract or agreement completion or 
termination. (1) The GCA provides instructions to the entity for 
returning or disposing of classified information upon contract or 
agreement completion or termination, or when an entity no longer has a 
legitimate need to retain or possess classified information.
    (2) The GCA also determines whether the entity may retain classified 
information for particular purposes after the contract or agreement 
terminates, and if so, provides written authorization to the entity 
along with any instructions or limitations (such as which information, 
for how long, etc).



Sec.  2004.32  Determining entity eligibility for access to classified
information.

    (a) Eligibility determinations. (1) The responsible CSA determines 
whether an entity is eligible for access to classified information. An 
entity may not have access to classified information until the 
responsible CSA determines that it meets all the requirements in this 
section. In general, the entity must be eligible to access classified 
information at the appropriate level before the CSA may consider any of 
the entity's subsidiaries, sub-contractors, or other sub-entities for 
eligibility. However, when the subsidiary will perform all classified 
work, the CSA may instead exclude the parent entity from access to 
classified information rather than determining its eligibility. In 
either case, the CSA must consider all information relevant to assessing 
whether the entity's access poses an unacceptable risk to national 
security interests.
    (2) A favorable access eligibility determination is not the same as 
a safeguarding capability determination. Entities may access classified 
information with a favorable eligibility determination, but may possess 
classified information only if the CSA determines both access 
eligibility and safeguarding capability, based on the GCA's requirement 
in the contract security classification specification (or equivalent).
    (3) If an entity has an existing eligibility determination, a CSA 
will not duplicate eligibility determination processes performed by 
another CSA. If a CSA cannot acknowledge an entity eligibility 
determination to another CSA, that entity may be subject to duplicate 
processing.
    (4) Each CSA maintains a record of its entities' eligibility 
determinations (or critical infrastructure entity eligibility status 
under the CCIPP, for DHS) and responds to inquiries from GCAs or 
entities, as appropriate and to the extent authorized by law, regarding 
the eligibility status of entities under their cognizance.
    (b) Process. (1) The responsible CSA provides guidance to entities 
on the eligibility determination process and on how to maintain 
eligibility throughout the period of the agreement or as long as an 
entity continues to need access to classified information in connection 
with a legitimate U.S. or foreign government requirement.

[[Page 469]]

    (2) The CSA coordinates with appropriate authorities to determine 
whether an entity meets the eligibility criteria in paragraph (e) of 
this section. This includes coordinating with appropriate U.S. 
Government regulatory authorities to determine entity compliance with 
laws and regulations.
    (3) An entity cannot apply for its own eligibility determination. A 
GCA or an eligible entity must sponsor the entity to the responsible CSA 
for an eligibility determination. The GCA or eligible entity may sponsor 
an entity 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). An entity 
with limited eligibility granted under paragraph (f) of this section may 
sponsor a sub-entity for a limited eligibility determination for the 
same contract, agreement, or circumstance so long as the sponsoring 
entity is not under FOCI (see Sec.  2004.34(i)).
    (4) The GCA must include enough lead time in each phase of the 
acquisition or agreement cycle to accomplish all required security 
actions. Required security actions include any eligibility determination 
necessary for an entity to participate in that phase of the cycle. The 
GCA may award a contract or agreement before the CSA completes the 
entity eligibility determination. However, in such cases, the entity may 
not begin performance on portions of the contract or agreement that 
require access to classified information until the CSA makes a favorable 
entity eligibility determination.
    (5) When a CSA is unable to make an eligibility determination in 
sufficient time to qualify an entity to participate in the particular 
procurement action or phase that gave rise to the GCA request (this 
includes both solicitation and performance phases), the GCA may request 
that the CSA continue the determination process to qualify the entity 
for future classified work for any GCA, provided that the processing 
delay was not due to the entity's lack of cooperation. Once the CSA 
determines that an entity is eligible for access to classified 
information, but a GCA does not award a contract or agreement requiring 
access to classified information to the entity, or the entity's 
eligibility status changes, the CSA terminates the entity eligibility 
determination in accordance with paragraph (g) of this section.
    (c) Coverage. (1) A favorable eligibility determination allows an 
entity to access classified information at the determined eligibility 
level, or lower.
    (2) The CSA must ensure that all entities needing access to 
classified information as part of a legitimate U.S. or foreign 
government requirement have or receive a favorable eligibility 
determination before accessing classified information. This includes 
both prime or parent entities and sub-entities, even in cases in which 
an entity intends to have the classified work performed only by sub-
entities. A prime or parent entity must have a favorable eligibility 
determination at the same classification level or higher than its sub-
entity(ies), unless the CSA determined that the parent entity could be 
effectively excluded from access (see paragraph (a)(1) of this section).
    (3) If a parent and sub-entity need to share classified information 
with each other, the CSA must validate that both the parent and the sub-
entity have favorable eligibility determinations at the level required 
for the classified information prior to sharing the information.
    (d) DHS Classified Critical Infrastructure Protection Program 
(CCIPP). DHS shares classified cybersecurity information with certain 
employees of entities under the Classified Critical Infrastructure 
Protection Program (CCIPP). The CCIPP applies only to entities that do 
not need to store classified information, have no other contracts or 
agreements already requiring access to classified information, and are 
not already determined eligible for access to classified information. 
DHS establishes and implements procedures consistent with the NISP to 
determine CCIPP entity eligibility for access to classified information.
    (e) Eligibility criteria. An entity must meet the following 
requirements to be eligible to access classified information:
    (1) It must need to access classified information as part of a 
legitimate

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U.S. Government or foreign government requirement, and access must be 
consistent with U.S. national security interests as determined by the 
CSA;
    (2) It must be organized and existing under the laws of any of the 
50 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 an American Indian or 
Alaska native tribe formally acknowledged by the Assistant Secretary--
Indian Affairs, of the U.S. Department of the Interior;
    (3) It must be located in the United States or its territorial 
areas;
    (4) It must have a record of compliance with pertinent laws, 
regulations, and contracts (or other relevant agreements);
    (5) Its KMOs must each have and maintain eligibility for access to 
classified information that is at least the same level as the entity 
eligibility level;
    (6) It and all of its KMOs must not be excluded by a Federal agency, 
contract review board, or other authorized official from participating 
in Federal contracts or agreements;
    (7) It must meet all requirements the CSA or the authorizing law, 
regulation, or Government-wide policy establishes for access to the type 
of classified information or program involved; and
    (8) If the CSA determines the entity is under foreign ownership, 
control, or influence (FOCI), the responsible CSA must:
    (i) Agree that sufficient security measures are in place to mitigate 
or negate risk to national security interests due to the FOCI (see Sec.  
2004.34);
    (ii) Determine that it is appropriate to grant eligibility for a 
single, narrowly defined purpose (see Sec.  2004.34(i)); or
    (iii) Determine that the entity is not eligible to access classified 
information.
    (9) DoD and DOE cannot award a contract involving access to 
proscribed information to an entity effectively owned or controlled by a 
foreign government unless the Secretary of the agency first issues a 
waiver (see 10 U.S.C. 2536). A waiver is not required if the CSA 
determines the entity is eligible and it agrees to establish a voting 
trust agreement (VTA) or proxy agreement (PA) (see Sec.  2004.34(f)) 
because both VTAs and PAs effectively negate foreign government control.
    (f) Limited entity eligibility determination. CSAs may choose to 
allow GCAs to request limited entity eligibility determinations (this is 
not the same as limited entity eligibility in situations involving FOCI 
when the FOCI is not mitigated or negated; for more information on 
limited entity eligibility in such FOCI cases, see Sec.  2004.34(i)). If 
a CSA permits GCAs to request a limited entity eligibility 
determination, it must set out parameters within its implementing 
policies that are consistent with the following requirements:
    (1) The GCA, or an entity with limited eligibility, must first 
request a limited entity eligibility determination from the CSA for the 
relevant entity and provide justification for limiting eligibility in 
that case;
    (2) Limited entity eligibility is specific to the requesting GCA's 
classified information, and to a single, narrowly defined contract, 
agreement, or circumstance;
    (3) The entity must otherwise meet the requirements for entity 
eligibility set out in this part;
    (4) The CSA documents the requirements of each limited entity 
eligibility determination it makes, including the scope of, and any 
limitations on, access to classified information;
    (5) The CSA verifies limited entity eligibility determinations only 
to the requesting GCA or entity. In the case of multiple limited entity 
eligibility determinations for a single entity, the CSA verifies each 
one separately only to its requestor; and
    (6) CSAs administratively terminate the limited entity eligibility 
when there is no longer a need for access to the classified information 
for which the CSA approved the limited entity eligibility.
    (g) Terminating or revoking eligibility. (1) The responsible CSA 
terminates the entity's eligible status when the entity no longer has a 
need for access to classified information.
    (2) The responsible CSA revokes the entity's eligible status if the 
entity is

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unable or unwilling to protect classified information.
    (3) The CSA coordinates with the GCA(s) to take interim measures, as 
necessary, toward either termination or revocation.



Sec.  2004.34  Foreign ownership, control, or influence (FOCI).

    (a) FOCI determination. A U.S. entity is under foreign ownership, 
control, or influence (FOCI) when:
    (1) A foreign interest has the power to direct or decide matters 
affecting the entity's management or operations in a manner that could:
    (i) Result in unauthorized access to classified information; or
    (ii) Adversely affect performance of a contract or agreement 
requiring access to classified information; and
    (2) The foreign interest exercises that power:
    (i) Directly or indirectly;
    (ii) Through ownership of the U.S. entity's securities, by 
contractual arrangements, or other similar means;
    (iii) By the ability to control or influence the election or 
appointment of one or more members to the entity's governing board 
(e.g., board of directors, board of managers, board of trustees) or its 
equivalent; or
    (iv) Prospectively (i.e., is not currently exercising the power, but 
could).
    (b) CSA guidance. The CSA establishes guidance for entities on 
filling out and submitting a Standard Form (SF) 328, Certificate 
Pertaining to Foreign Interests (OMB Control No. 0704-0194), and on 
reporting changes in circumstances that might result in a determination 
that the entity is under FOCI or is no longer under FOCI. The CSA also 
advises entities on the Government appeal channels for disputing CSA 
FOCI determinations.
    (c) FOCI factors. To determine whether an entity is under FOCI, the 
CSA analyzes available information to determine the existence, nature, 
and source of FOCI. The CSA:
    (1) Considers information the entity or its parent provides on the 
SF 328/CF 328 (OMB Control No. 0704-0194), and any other relevant 
information; and
    (2) Considers in the aggregate the following factors about the 
entity:
    (i) Record of espionage against U.S. targets, either economic or 
Government;
    (ii) Record of enforcement actions against the entity for 
transferring technology without authorization;
    (iii) Record of compliance with pertinent U.S. laws, regulations, 
and contracts or agreements;
    (iv) Type and sensitivity of the information the entity would 
access;
    (v) 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;
    (vi) Nature of any relevant bilateral and multilateral security and 
information exchange agreements;
    (vii) Ownership or control, in whole or in part, by a foreign 
government; and
    (viii) Any other factor that indicates or demonstrates foreign 
interest capability to control or influence the entity's operations or 
management.
    (d) Entity access while under FOCI. (1) If the CSA is determining 
whether an entity is eligible to access classified information and finds 
that the entity is under FOCI, the CSA must consider the entity 
ineligible for access to classified information. The CSA and the entity 
may then attempt to negotiate FOCI mitigation or negation measures 
sufficient to permit a favorable eligibility determination.
    (2) The CSA may not determine that the entity is eligible to access 
classified information until the entity has put into place appropriate 
security measures to negate or mitigate FOCI or is otherwise no longer 
under FOCI. If the degree of FOCI is such that no mitigation or negation 
efforts will be sufficient, or access to classified information would be 
inconsistent with national security interests, then the CSA will 
determine the entity ineligible for access to classified information.
    (3) If an entity comes under FOCI, the CSA may allow the existing 
eligibility status to continue while the CSA and the entity negotiate 
acceptable FOCI mitigation or negation measures, as long as there is no 
indication that classified information is at risk. If the entity does 
not actively negotiate

[[Page 472]]

mitigation or negation measures in good faith, or there are no 
appropriate measures that will remove the possibility of unauthorized 
access to classified information or adverse effect on the entity's 
performance of contracts or agreements involving classified information, 
the CSA will take steps, in coordination with the GCA, to terminate 
eligibility.
    (e) FOCI and entities under the CCIPP. DHS may sponsor, as part of 
the CCIPP, a U.S. entity that is under FOCI, under the following 
circumstances:
    (1) The Secretary of DHS proposes appropriate FOCI risk mitigation 
or negation measures (see paragraph (f) of this section) to the other 
CSAs and ensures the anticipated release of classified information:
    (i) Is authorized for release to the country involved;
    (ii) Does not include information classified under the Atomic Energy 
Act; and
    (iii) Does not impede or interfere with the entity's ability to 
manage and comply with regulatory requirements imposed by other Federal 
agencies, such as the State Department's International Traffic in Arms 
Regulation.
    (2) If the CSAs agree the mitigation or negation measures are 
sufficient, DHS may proceed to enter a CCIPP information sharing 
agreement with the entity. If one or more CSAs disagree, the Secretary 
of DHS may seek a decision from the Assistant to the President for 
National Security Affairs before entering a CCIPP information sharing 
agreement with the entity.
    (f) Mitigation or negation measures to address FOCI. (1) The CSA-
approved mitigation or negation measures must assure that the entity can 
offset FOCI by effectively denying unauthorized people or entities 
access to classified information and preventing the foreign interest 
from adversely impacting the entity's performance on contracts or 
agreements requiring access to classified information.
    (2) Any mitigation or negation measures the CSA approves for an 
entity must not impede or interfere with the entity's ability to manage 
and comply with regulatory requirements imposed by other Federal 
agencies (such as Department of State's International Traffic in Arms 
Regulation).
    (3) If the CSA approves a FOCI mitigation or negation measure for an 
entity, it may agree that the measure, or particular portions of it, may 
apply to all of the present and future sub-entities within the entity's 
organization.
    (4) Mitigation or negation measures are different for ownership 
versus control or influence.
    (5) Methods to mitigate foreign control or influence (unrelated to 
ownership) may include:
    (i) Assigning specific oversight duties and responsibilities to 
independent board members;
    (ii) Formulating special executive-level security committees to 
consider and oversee matters that affect entity performance on contracts 
or agreements requiring access to classified information;
    (iii) Modifying or terminating loan agreements, contracts, 
agreements, and other understandings with foreign interests;
    (iv) Diversifying or reducing foreign-source income;
    (v) Demonstrating financial viability independent of foreign 
interests;
    (vi) Eliminating or resolving problem debt;
    (vii) Separating, physically or organizationally, the entity 
component performing on contracts or agreements requiring access to 
classified information;
    (viii) Adopting special board resolutions;
    (ix) A combination of these methods, as determined by the CSA; or
    (x) Other actions that effectively negate or mitigate foreign 
control or influence.
    (6) Methods to mitigate or negate foreign ownership include:
    (i) Board resolutions. The CSA and the entity may agree to a board 
resolution when a foreign interest does not own voting interests 
sufficient to elect, or is otherwise not entitled to representation on, 
the entity's governing board. The resolution must identify the foreign 
shareholders and their representatives (if any), note the extent of 
foreign ownership, certify that the foreign shareholders and their 
representatives will not require, will not have, and can

[[Page 473]]

be effectively excluded from, access to all classified information, and 
certify that the entity will not permit the foreign shareholders and 
their representatives to occupy positions that might enable them to 
influence the entity's policies and practices, affecting its performance 
on contracts or agreements requiring access to classified information.
    (ii) Security control agreements (SCAs). The CSA and the entity may 
agree to use an 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. At least one cleared U.S. citizen must serve as an outside 
director on the entity's governing board.
    (iii) Special security agreements (SSAs). The CSA and the entity may 
agree to use an SSA when a foreign interest effectively owns or controls 
an entity. 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. When a 
GCA requires an entity to have access to proscribed information, and the 
CSA proposes an SSA as the mitigation measure, the CSA makes a national 
interest determination (NID) as part of determining an entity's 
eligibility for access. See paragraph (h) of this section for more 
information on NIDs.
    (iv) Voting trust agreements (VTAs) or proxy agreements (PAs). The 
CSA and the entity may agree to use one of these measures when a foreign 
interest effectively owns or controls an entity. The VTA and PA are 
arrangements that vest the voting rights of the foreign-owned stock in 
cleared U.S. citizens approved by the CSA. Under the VTA, the foreign 
owner transfers legal title in the entity to the trustees approved by 
the CSA. Under the PA, the foreign owner conveys their voting rights to 
proxy holders approved by the CSA. The entity must be organized, 
structured, and financed to be capable of operating as a viable business 
entity independently from the foreign owner. Both VTAs and PAs can 
effectively negate foreign ownership and control; therefore, neither 
imposes any restrictions on the entity's eligibility to have access to 
classified information or to compete for contracts or agreements 
requiring access to classified information, including those involving 
proscribed information. Both VTAs and PAs can also effectively negate 
foreign government control.
    (v) Combinations of the measures in paragraphs (f)(6)(i) through 
(iv) of this section or other similar measures that effectively mitigate 
or negate the risks involved with foreign ownership. CSAs must identify 
combination agreements in a way that distinguishes them from other 
agreements (e.g., a combination SSA-proxy agreement cannot be identified 
as either an SSA or a proxy agreement beause those names would not 
distinguish the combination agreement from either of the other types). 
CSAs must also coordinate terms in combination agreements with the 
controlling agency prior to releasing proscribed information.
    (g) Standards for FOCI mitigation or negation measures. The CSA must 
include the following requirements as part of any FOCI mitigation or 
negation measures, to ensure that entities implement necessary security 
and governing controls:
    (1) Annual certification and annual compliance reports by the 
entity's governing board and the KMOs;
    (2) The U.S. Government remedies in case the entity is not 
adequately protecting classified information or not adhering to the 
provisions of the mitigation or negation measure;
    (3) Supplements to FOCI mitigation or negation measures as the CSA 
deems necessary. In addition to the standard FOCI mitigation or negation 
measure's requirements, the CSA may require more procedures via a 
supplement, based upon the circumstances of an entity's operations. The 
CSA may place these requirements in supplements to the FOCI mitigation 
or negation measure to allow flexibility as circumstances change without 
having to renegotiate the entire measure. When making use of 
supplements, the CSA does not consider the FOCI mitigation

[[Page 474]]

measure final until it approves the required supplements (e.g., 
technology control plan, electronic communication plan); and
    (4) For agreements to mitigate or negate ownership (PAs, VTAs, SSAs, 
and SCAs), the following additional requirements apply:
    (i) FOCI oversight. The CSA verifies that the entity establishes an 
oversight body consisting of trustees, proxy holders or outside 
directors, as applicable, and those officers or directors whom the CSA 
determines are eligible for access to classified information (see Sec.  
2004.36). The entity's security officer is the principal advisor to the 
oversight body and attends their meetings. The oversight body:
    (A) Maintains policies and procedures to safeguard classified 
information in the entity's possession with no adverse impact on 
performance of contracts or agreements requiring access to classified 
information; and
    (B) Verifies the entity is complying with the FOCI mitigation or 
negation measure and related documents, contract security requirements 
or equivalent, and the NISP;
    (ii) Qualifications of trustees, proxy holders, and outside 
directors. The CSA determines eligibility for access to classified 
information for trustees, proxy holders, and outside directors at the 
classification level of the entity's eligibility determination. 
Trustees, proxy holders, and outside directors must meet the following 
criteria:
    (A) Be a U.S. citizen residing in the United States who can exercise 
management prerogatives relating to their position in a way that ensures 
that the foreign owner can be effectively insulated from the entity or 
effectively separated from the entity's classified work;
    (B) Be completely disinterested individuals with no prior 
involvement with the entity, the entities with which it is affiliated, 
or the foreign owner and its affiliates. 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; and
    (C) Be involved in no other circumstances that may affect an 
individual's ability to serve effectively, such as the number of boards 
on which the individual serves or the length of time serving on any 
other boards;
    (iii) Annual meeting. The CSA meets at least annually with the 
oversight body to review the purpose and effectiveness of the FOCI 
mitigation or negation agreement; establish a common understanding of 
the operating requirements and their implementation; and provide 
guidance on matters related to FOCI mitigation and industrial security. 
These meetings include a CSA review of:
    (A) Compliance with the approved FOCI mitigation or negation 
measure;
    (B) Problems regarding practical implementation of the mitigation or 
negation measure; and
    (C) Security controls, practices, or procedures and whether they 
warrant adjustment; and
    (iv) Annual certification. The CSA reviews the entity's annual 
report; addresses, and resolves issues identified in the report; and 
documents the results of this review and any follow-up actions.
    (h) National interest determination (NID)--(1) Requirement for a 
NID. (i) The CSA must determine whether allowing an entity access to 
proscribed information under an SSA is consistent with national security 
interests of the United States as part of making an entity eligibility 
determination in cases in which:
    (A) The GCA requires an entity to have access to proscribed 
information;
    (B) The entity is under FOCI; and
    (C) The CSA proposes an SSA to mitigate the FOCI.
    (ii) This determination is called a national interest determination 
(NID). A favorable NID confirms that an entity's access to the 
proscribed information under an SSA is consistent with national security 
interests. If the CSA is unable to render a favorable NID, it must 
consider other FOCI mitigation measures instead of an SSA or reassess 
the entity's eligibility for access to classified information.
    (2) NID process. (i) The CSA makes the NID for any categories of 
proscribed information for which the entity requires access.

[[Page 475]]

    (ii) In cases in which any category of the proscribed information is 
controlled by another agency (ODNI for SCI, DOE for RD, NSA for COMSEC), 
the CSA asks that controlling agency to concur on the NID for that 
category of information.
    (iii) 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.
    (iv) 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 the following circumstances:
    (A) The CSA, GCA, or controlling agency becomes aware of adverse 
information that impacts the entity eligibility determination;
    (B) The CSA's threat assessment pertaining to the entity indicates a 
risk to one of the categories of proscribed information;
    (C) The CSA becomes aware of any material change regarding the 
source, nature, and extent of FOCI; or
    (D) The entity's record of NISP compliance, based on CSA reviews in 
accordance with Sec.  2004.26, becomes less than satisfactory.
    (v) Under any of these circumstances, the CSA determines whether an 
entity may continue being eligible for access to classified information, 
it must change the FOCI mitigation measure in order to remain eligible, 
or the CSA must terminate or revoke access.
    (3) Process for concurring or non-concurring on a NID. (i) Each 
controlling agency tells the CSAs what information the controlling 
agency requires to consider a NID. ODNI identifies the information it 
requires to assess a NID for access to SCI, DOE identifies the 
information it requires to assess a NID for access to RD, and NSA 
identifies the information it requires to assess a NID for access to 
COMSEC.
    (ii) The CSA requests from the GCA justification for access, a 
description of the proscribed information involved, and other 
information the controlling agency requires to concur or non-concur on 
the NID.
    (iii) The CSA requests concurrence on the NID from the controlling 
agency for the relevant category of proscribed information (ODNI for 
SCI, DOE for RD, NSA for COMSEC), and provides the information that 
controlling agency identified.
    (iv) The relevant controlling agency (ODNI for SCI, DOE for RD, NSA 
for COMSEC) responds in writing to the CSA's request for concurrence.
    (A) The controlling agency may concur with the NID for access under 
a particular contract or agreement, access under a program or project, 
or for all future access to the same category of proscribed information.
    (B) If the relevant controlling agency does not concur with the NID, 
the controlling agency informs the CSA in writing, citing the reasons 
why it does not concur. The CSA notifies the applicable GCA and, in 
coordination with the GCA, then notifies the entity. The entity cannot 
have access to the category of proscribed information under the control 
of that agency (i.e., if ODNI does not concur, the entity may not have 
access to SCI; if DOE does not concur, the entity may not have access to 
RD; and if NSA does not concur, the entity may not have access to 
COMSEC). The CSA, in consultation with the applicable GCA, must decide 
whether the reason the controlling agency did not concur otherwise 
affects the entity's eligibility for access to classified information 
(see Sec.  2004.32(g)), or requires changing the FOCI mitigation measure 
(see paragraph (f) of this section).
    (v) 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 
requirements for the relevant category of proscribed

[[Page 476]]

information and terms remain unchanged for:
    (A) Renewing the contract or agreement;
    (B) New task orders issued under the contract or agreement;
    (C) A new contract or agreement that contains the same provisions as 
the previous one (this usually applies when the contract or agreement is 
for a program or project); or
    (D) Renewing the SSA.
    (vi) When making the decision whether or not to concur with a NID 
for proscribed information under its control, the controlling agency 
will not duplicate work already performed by the GCA during the contract 
award process or by the CSA when determining entity eligibility for 
access to classified information.
    (4) Timing for concurrence process. (i) The CSA requests NID 
concurrence from the controlling agency as soon as the CSA has made a 
NID, if the entity needs access to SCI, RD, or COMSEC.
    (ii) The controlling agency provides a final, written concurrence or 
non-concurrence to the CSA within 30 days after receiving the request 
for concurrence from the CSA.
    (iii) In cases when a controlling agency requires clarification or 
additional information from the CSA, the controlling agency responds to 
the CSA within 30 days to request clarification or additional 
information as needed, and to coordinate a plan and timeline for 
concurring or non-concurring. The controlling agency must provide 
written updates to the CSA every 30 days until it concurs or non-
concurs. In turn, the CSA provides the GCA and the entity with updates 
every 30 days.
    (i) Limited eligibility determinations (for entities under FOCI 
without mitigation or negation). (1) In exceptional circumstances when 
an entity is under FOCI, the CSA may decide that limited eligibility for 
access to classified information is appropriate when the entity is 
unable or unwilling to implement FOCI mitigation or negation measures 
(this is not the same as limited eligibility in other circumstances; for 
more information on limited eligibility in other cases, see Sec.  
2004.32(f)).
    (2) The GCA first decides whether to request a limited eligibility 
determination for the entity and must articulate a compelling need for 
it to the CSA that is in accordance with U.S. national security 
interests. The GCA must verify to the CSA that access to classified 
information is essential to contract or agreement performance, and 
accept the risk inherent in not mitigating or negating the FOCI. See 
Sec.  2004.32(b)(3).
    (3) The CSA may grant a limited eligibility determination if the GCA 
requests and the entity meets all other eligibility criteria in Sec.  
2004.32(e).
    (4) A foreign government may sponsor a U.S. sub-entity of a foreign 
entity for limited eligibility when the foreign government desires to 
award a contract or agreement to the U.S. sub-entity that involves 
access to classified information for which the foreign government is the 
original classification authority (i.e., foreign government 
information), and there is no other need for the U.S. sub-entity to have 
access to classified information.
    (5) Limited eligibility determinations are specific to the 
classified information of the requesting GCA or foreign government, and 
specific to a single, narrowly defined contract, agreement, or 
circumstance of that GCA or foreign government.
    (6) The access limitations of a favorable limited eligibility 
determination apply to all of the entity's employees, regardless of 
citizenship.
    (7) A limited eligibility determination is not an option for 
entities that require access to proscribed information when a foreign 
government has ownership or control over the entity. See Sec.  
2004.32(e)(9).
    (8) The CSA administratively terminates the entity's limited 
eligibility when there is no longer a need for access to the classified 
information for which the CSA made the favorable limited eligibility 
determination. Terminating one limited eligibility status does not 
impact other ones the entity may have.



Sec.  2004.36  Determining entity employee eligibility for access to 
classified information.

    (a) Making employee eligibility determinations. (1) The responsible 
CSA:

[[Page 477]]

    (i) Determines whether entity employees meet the criteria 
established in the Security Executive Agent Directive (SEAD) 4, National 
Security Adjudicative Guidelines (December 10, 2016). Entity employees 
must have a legitimate requirement (i.e., need to know) for access to 
classified information in the performance of assigned duties and 
eligibility must be clearly consistent with the interest of the national 
security.
    (ii) Notifies entities of its determinations of employee eligibility 
for access to classified information.
    (iii) Terminates eligibility status when there is no longer a need 
for access to classified information by entity employees.
    (2) The responsible CSA maintains:
    (i) SF 312s, Classified Information Nondisclosure Agreements, or 
other approved nondisclosure agreements, executed by entity employees, 
as prescribed by ODNI in accordance with 32 CFR 2001.80 and E.O. 13526; 
and
    (ii) Records of its entity employee eligibility determinations, 
suspensions, and revocations.
    (3) CSAs ensure that entities limit the number of employees with 
access to classified information to the minimum number necessary to work 
on contracts or agreements requiring access to classified information.
    (4) The CSA determines the need for event-driven reinvestigations 
for entity employees.
    (5) CSAs use the Federal Investigative Standards (FIS) issued 
jointly by the Suitability and Security Executive Agents.
    (6) The CSA provides guidance to entities on:
    (i) Requesting employee eligibility determinations, to include 
guidance for submitting fingerprints; and
    (ii) Granting employee access to classified information when the 
employee has had a break in access or a break in employment.
    (7) If the CSA receives adverse information about an eligible entity 
employee, the CSA should consider and possibly investigate, as 
authorized, to determine whether the employee's eligibility to access 
classified information remains clearly consistent with the interests of 
national security. If the CSA determines that an entity employee's 
continued eligibility is not in the interest of national security, the 
CSA implements procedures leading to suspension and ultimate revocation 
of the employee's eligible status, and notifies the entity.
    (b) Consultants. A consultant is an individual under contract or 
agreement to provide professional or technical assistance to an entity 
in a capacity requiring access to classified information. A consultant 
is considered an entity employee for security purposes. The CSA makes 
eligibility determinations for entity consultants in the same way it 
does for entity employees.
    (c) Reciprocity. The responsible CSA determines if an entity 
employee was previously investigated or determined eligible by another 
CSA. CSAs reciprocally accept existing employee eligibility 
determinations in accordance with applicable and current national level 
personnel security policy, and must not duplicate employee eligibility 
investigations conducted by another CSA.
    (d) Limited access authorization (LAA). (1) CSAs may make LAA 
determinations for non-U.S. citizen entity employees in rare 
circumstances, when:
    (i) A non-U.S. citizen employee possesses unique or unusual skill or 
expertise that the agency urgently needs to support a specific U.S. 
Government contract or agreement; and
    (ii) A U.S. citizen with those skills is not available.
    (2) A CSA may grant LAAs up to the secret classified level.
    (3) CSAs may not use LAAs for access to:
    (i) Top secret (TS) information;
    (ii) RD or FRD information;
    (iii) Information that a Government-designated disclosure authority 
has not determined releasable to the country of which the individual is 
a citizen;
    (iv) COMSEC information;
    (v) Intelligence information, to include SCI;
    (vi) NATO information, except as follows: Foreign nationals of a 
NATO member nation may be authorized access to NATO information subject 
to the terms of the contract, if the responsible CSA obtains a NATO 
security

[[Page 478]]

clearance certificate from the individual's country of citizenship. NATO 
access is limited to performance on a specific NATO contract;
    (vii) Information for which the U.S. Government has prohibited 
foreign disclosure in whole or in part; or
    (viii) Information provided to the U.S. Government by another 
government that is classified or provided in confidence.
    (4) The responsible CSA provides specific procedures to entities for 
requesting LAAs. The GCA must concur on an entity's LAA request before 
the CSA may grant it.



Sec.  2004.38  Safeguarding and marking.

    (a) Safeguarding approval. (1) The CSA determines whether an 
entity's safeguarding capability meets requirements established in 32 
CFR part 2001, and other applicable national level policy (e.g., Atomic 
Energy Act for RD). If the CSA makes a favorable determination, the 
entity may store classified information at that level or below. If the 
determination is not favorable, the CSA must ensure that the entity does 
not possess classified information or does not possess information at 
the classification level denied or a higher level.
    (2) The CSA maintains records of its safeguarding capability 
determinations and, upon request from GCAs or entities, and as 
appropriate and to the extent authorized by law, verifies that it has 
made a favorable safeguarding determination for a given entity and at 
what level.
    (b) Marking. The GCA provides guidance to entities that meets 
requirements in 32 CFR 2001.22, 2001.23, 2001.24, and 2001.25, 
Derivative classification, Classification marking in the electronic 
environment, Additional requirements, and Declassification markings; 
ISOO's marking guide, Marking Classified National Security Information; 
and other applicable national level policy (e.g., Atomic Energy Act for 
RD) for marking classified information and material.



Sec.  2004.40  Information system security.

    (a) The responsible CSA must authorize an entity information system 
before the entity can use it to process classified information. The CSA 
must use the most complete, accurate, and trustworthy information to 
make a timely, credible, and risk-based decision whether to authorize an 
entity's system.
    (b) The responsible CSA issues to entities guidance that establishes 
protection measures for entity information systems that process 
classified information. The responsible CSA must base the guidance on 
standards applicable to Federal systems, which must include the Federal 
Information Security Modernization Act of 2014 (FISMA), Public Law 113-
283, and may include National Institute of Standards and Technology 
(NIST) publications, Committee on National Security Systems (CNSS) 
publications, and Federal information processing standards (FIPS).



Sec.  2004.42  [Reserved]



               Sec. Appendix A to Part 2004--Acronym Table

    For details on many of these terms, see the definitions at Sec.  
2004.4.

CCIPP--Classified Critical Infrastructure Protection Program
CCIPP POC--Entity point of contact under the CCIPP program
CIA--Central Intelligence Agency
CSA--Cognizant security agency
CNSS--Committee on National Security Systems
COMSEC--Communications security
CSO--Cognizant security office
DHS--Department of Homeland Security
DoD--Department of Defense
DOE--Department of Energy
EA--Executive agent (the NISP executive agent is DoD)
E.O.--Executive Order
FAR--Federal Aquisition Regulation
FOCI--Foreign ownership, control, or influence
GCA--Government contracting activity
Insider threat program SO--insider threat senior official (for an agency 
or for an entity)
ISOO--Information Security Oversight Office of the National Archives and 
Records Administration (NARA)
KMO--Key managers and officials (of an entity)
LAA--Limited access authorization
NID--National interest determination
NISPOM--National Industrial Security Program Operating Manual
NRC--Nuclear Regulatory Commission
NSA--National Security Agency

[[Page 479]]

ODNI--Office of the Director of National Intelligence
PA--Proxy agreement
RD--Restricted data
SF--Standard Form
SAO--Senior agency official for NISP
SAP--Special access program
SCA--Security control agreement
SCI--Sensitive compartmented information
SSA--Special security agreement
TS--Top secret (classification level)
VT--Voting trust

                       PARTS 2005	2099 [RESERVED]

[[Page 481]]



                 CHAPTER XXI--NATIONAL SECURITY COUNCIL




  --------------------------------------------------------------------
Part                                                                Page
2100-2101

 [Reserved]

2102            Rules and regulations to implement the 
                    Privacy Act of 1974.....................         483
2103            Regulations to implement E.O. 12065--
                    including procedures for public access 
                    to documents that may be declassified...         486
2104-2199

 [Reserved]

[[Page 483]]

                       PARTS 2100	2101 [RESERVED]



PART 2102_RULES AND REGULATIONS TO IMPLEMENT THE PRIVACY ACT OF 1974-
-Table of Contents



Sec.
2102.1 Introduction.
2102.2 Purpose and scope.
2102.3 Definitions.
2102.4 Procedures for determining if an individual is the subject of a 
          record.
2102.13 Requirements for access to a record.
2102.15 Requirements for requests to amend records.
2102.21 Procedures for appeal of determination to deny access to or 
          amendment of requested records.
2102.31 Disclosure of a record to persons other than the individual to 
          whom it pertains.
2102.41 Fees.
2102.51 Penalties.
2102.61 Exemptions.

    Authority: 5 U.S.C. 552a (f) and (k).

    Source: 40 FR 47746, Oct. 9, 1975, unless otherwise noted.



Sec.  2102.1  Introduction.

    (a) Insofar as the Privacy Act of 1974 (5 U.S.C. 552a) applies to 
the National Security Council (hereafter NSC), it provides the American 
public with expanded opportunities to gain access to records maintained 
by the NSC Staff which may pertain to them as individuals. These 
regulations are the exclusive means by which individuals may request 
personally identifiable records and information from the National 
Security Council.
    (b) The NSC Staff, in addition to performing the functions 
prescribed in the National Security Act of 1947, as amended (50 U.S.C. 
401), also serves as the supporting staff to the President in the 
conduct of foreign affairs. In doing so the NSC Staff is acting not as 
an agency but as an extension of the White House Office. In that the 
White House Office is not considered an agency for the purposes of this 
Act, the materials which are used by NSC Staff personnel in their role 
as supporting staff to the President are not subject to the provisions 
of the Privacy Act of 1974. A description of these White House Office 
files is, nevertheless, appended to the NSC notices of systems of files 
and will be published annually in the Federal Register.
    (c) In general, Records in NSC files pertain to individual members 
of the public only if these individuals have been (1) employed by the 
NSC, (2) have corresponded on a foreign policy matter with a member of 
the NSC or its staff, or (3) have, as a U.S. Government official, 
participated in an NSC meeting or in the preparation of foreign policy-
related documents for the NSC.



Sec.  2102.2  Purpose and scope.

    (a) The following regulations set forth procedures whereby 
individuals may seek and gain access to records concerning themselves 
and will guide the NSC Staff response to requests under the Privacy Act. 
In addition, they outline the requirements applicable to the personnel 
maintaining NSC systems of records.
    (b) These regulations, published pursuant to the Privacy Act of 
1974, Pub. L. 93-579, Section 552a (f) and (k), 5 U.S.C. (hereinafter 
the Act), advise of procedures whereby an individual can:
    (1) Request notification of whether the NSC Staff maintains or has 
disclosed a record pertaining to him or her in any non-exempt system of 
records;
    (2) Request a copy of such record or an accounting of that 
disclosure;
    (3) Request an amendment to a record; and,
    (4) Appeal any initial adverse determination of any request under 
the Act.
    (c) These regulations also specify those systems of records which 
the NSC has determined to be exempt from certain provisions of the Act 
and thus not subject to procedures established by this regulation.



Sec.  2102.3  Definitions.

    As used in these regulations:
    (a) Individual. A citizen of the United States or an alien lawfully 
admitted for permanent residence.
    (b) Maintain. Includes maintain, collect, use or disseminate. Under 
the Act it is also used to connote control over, and, therefore, 
responsibility for, systems of records in support of the NSC statutory 
function (50 U.S.C. 401, et seq.).

[[Page 484]]

    (c) Systems of Records. A grouping of any records maintained by the 
NSC from which information is retrieved by the name of the individual or 
by some other identifying particular assigned to the individual.
    (d) Determination. Any decision made by the NSC or designated 
official thereof which affects the individual's rights, opportunities, 
benefits, etc. and which is based in whole or in part on information 
contained in that individual's record.
    (e) Routine Use. With respect to the disclosure of a record, the use 
of such a record in a manner which is compatible with the purpose for 
which it was collected.
    (f) Disclosure. The granting of access or transfer of a record by 
any means.



Sec.  2102.4  Procedures for determining if an individual is the subject
of a record.

    (a) Individuals desiring to determine if they are the subject of a 
record or system of records maintained by the NSC Staff should address 
their inquiries, marking them plainly as a PRIVACY ACT REQUEST, to:

Staff Secretary, National Security Council, Room 374, Old Executive 
Office Building, Washington, DC 20506.


All requests must be made in writing and should contain:
    (1) A specific reference to the system of records maintained by the 
NSC as listed in the NSC Notices of Systems and Records (copies 
available upon request); or
    (2) A description of the record or systems of records in sufficient 
detail to allow the NSC to determine whether the record does, in fact, 
exist in an NSC system of records.
    (b) All requests must contain the printed or typewritten name of the 
individual to whom the record pertains, the signature of the individual 
making the request, and the address to which the reply should be sent. 
In instances when the identification is insufficient to insure 
disclosure to the individual to whom the information pertains in view of 
the sensitivity of the information, NSC reserves the right to solicit 
from the requestor additional identifying information.
    (c) Responses to all requests under the Act will be made by the 
Staff Secretary, or by another designated member of the NSC Staff 
authorized to act in the name of the Staff Secretary in responding to a 
request under this Act. Every effort will be made to inform the 
requestor if he or she is the subject of a specific record or system of 
records within ten working days (excluding Saturdays, Sundays and legal 
Federal Holidays) of receipt of the request. Such a response will also 
contain the procedures to be followed in order to gain access to any 
record which may exist and a copy of the most recent NSC notice, as 
published in the Federal Register, on the system of records in which the 
record is contained.
    (d) Whenever it is not possible to respond in the time period 
specified above, the NSC Staff Secretary or a designated alternate will, 
within ten working days (excluding Saturdays, Sundays and legal Federal 
Holidays), inform the requestor of the reasons for the delay (e.g., 
insufficient requestor information, difficulties in record location, 
etc.), steps that need to be taken in order to expedite the request, and 
the date by which a response is anticipated.



Sec.  2102.13  Requirements for access to a record.

    (a) Individuals requesting access to a record or system of records 
in which there is information concerning them must address a request in 
writing to the Staff Secretary of the NSC (see Sec.  2102.1). Due to 
restricted access to NSC offices in the Old Executive Office Building 
where the files are located, requests cannot be made in person.
    (b) All written requests should contain a concise description of the 
records to which access is requested. In addition, the requestor should 
include any other information which he or she feels would assist in the 
timely identification of the record. Verification of the requestor's 
identity will be determined under the same procedures used in requests 
for learning of the existence of a record.
    (c) To the extent possible, any request for access will be answered 
by

[[Page 485]]

the Staff Secretary or a designated alternate within ten working days 
(excluding Saturdays, Sundays, and legal Federal holidays) of the 
receipt of the request. In the event that a response cannot be made 
within this time, the requestor will be notified by mail of the reasons 
for the delay and the date upon which a reply can be expected.
    (d) The NSC response will forward a copy of the requested materials 
unless further identification or clarification of the request is 
required. In the event access is denied, the requestor shall be informed 
of the reasons therefore and the name and address of the individual to 
whom an appeal should be directed.



Sec.  2102.15  Requirements for requests to amend records.

    (a) Individuals wishing to amend a record contained in the NSC 
systems of records pertaining to them must submit a request in writing 
to the Staff Secretary of the NSC in accordance with the procedures set 
forth herein.
    (b) All requests for amendment or correction of a record must state 
concisely the reason for requesting the amendment. Such requests should 
include a brief statement which describes the information the requestor 
believes to be inaccurate, incomplete, or unnecessary and the amendment 
or correction desired.
    (c) To the extent possible, every request for amendment of a record 
will be answered within ten working days (excluding Saturdays, Sundays, 
and legal Federal holidays) of the receipt of the request. In the event 
that a response cannot be made within this time, the requestor will be 
notified by mail of the reasons for the delay and the date upon which a 
reply can be expected. A final response to a request for amendment will 
include the NSC Staff determination on whether to grant or deny the 
request. If the request is denied, the response will include:
    (1) The reasons for the decision;
    (2) The name and address of the individual to whom an appeal should 
be directed;
    (3) A description of the process for review of the appeal within the 
NSC; and
    (4) A description of any other procedures which may be required of 
the individual in order to process the appeal.



Sec.  2102.21  Procedures for appeal of determination to deny access to
or amendment of requested records.

    (a) Individuals wishing to appeal an NSC Staff denial of a request 
for access or to amend a record concerning them must address a letter of 
appeal to the Staff Secretary of the NSC. The letter must be received 
within thirty days from the date of the Staff Secretary's notice of 
denial and, at a minimum, should identify the following:
    (1) The records involved;
    (2) The dates of the initial request and subsequent NSC 
determination; and
    (3) A brief statement of the reasons supporting the request for 
reversal of the adverse determination.
    (b) Within thirty working days (excluding Saturdays, Sundays and 
legal Federal holidays) of the date of receipt of the letter of appeal, 
the Assistant to the President for National Security Affairs 
(hereinafter the ``Assistant''), or the Deputy Assistant to the 
President for National Security Affairs (hereinafter the ``Deputy 
Assistant''), acting in his name, shall issue a determination on the 
appeal. In the event that a final determination cannot be made within 
this time period, the requestor will be informed of the delay, the 
reasons therefor and the date on which a final response is expected.
    (c) If the original request was for access and the initial 
determination is reversed, a copy of the records sought will be sent to 
the individual. If the initial determination is upheld, the requestor 
will be so advised and informed of the right to judicial review pursuant 
to 5 U.S.C. 552a(g).
    (d) If the initial denial of a request to amend a record is 
reversed, the records will be corrected and a copy of the amended record 
will be sent to the individual. In the event the original decision is 
upheld by the Assistant to the President, the requestor will be so 
advised and informed in writing of his or her right to seek judicial 
review of the final agency determination, pursuant to section 552a(g) of 
title 5, U.S.C. In addition, the requestor will be advised

[[Page 486]]

of his right to have a concise statement of the reasons for disagreeing 
with the final determination appended to the disputed records. This 
statement should be mailed to the Staff Secretary within ten working 
days (excluding Saturdays, Sundays, and legal Federal Holidays) of the 
date of the requestor's receipt of the final determination.



Sec.  2102.31  Disclosure of a record to persons other than the individual
to whom it pertains.

    (a) Except as provided by the Privacy Act, 5 U.S.C. 552a(b), the NSC 
will not disclose a record concerning an individual to another person or 
agency without the prior written consent of the individual to whom the 
record pertains.



Sec.  2102.41  Fees.

    (a) Individuals will not be charged for:
    (1) The first copy of any record provided in response to a request 
for access or amendment;
    (2) The search for, or review of, records in NSC files;
    (3) Any copies reproduced as a necessary part of making a record or 
portion thereof available to the individual.
    (b) After the first copy has been provided, records will be 
reproduced at the rate of twenty-five cents per page for all copying of 
four pages or more.
    (c) The Staff Secretary may provide copies of a record at no charge 
if it is determined to be in the interest of the Government.
    (d) The Staff Secretary may require that all fees be paid in full 
prior to the issuance of the requested copies.
    (e) Remittances shall be in the form of a personal check or bank 
draft drawn on a bank in the United States, or a postal money order. 
Remittances shall be made payable to the ``United States Treasury'' and 
mailed to the Staff Secretary, National Security Council, Washington, DC 
20506.
    (f) A receipt for fees paid will be given only upon request. Refund 
of fees paid for services actually rendered will not be made.



Sec.  2102.51  Penalties.

    Title 18, U.S.C. section 1001, Crimes and Criminal Procedures, makes 
it a criminal offense, subject to a maximum fine of $10,000 or 
imprisonment for not more than five years or both, to knowingly and 
willfully make or cause to be made any false or fraudulent statements or 
representations in any matter within the jurisdiction of any agency of 
the United States. Section (i)(3) of the Privacy Act (5 U.S.C. 552a) 
makes it a misdemeanor, subject to a maximum fine of $5,000, to 
knowingly and willfully request or obtain any record concerning an 
individual under false pretenses. Sections (i)(1) and (2) of 5 U.S.C. 
552a provide penalties for violations by agency employees, of the 
Privacy Act or regulations established thereunder.



Sec.  2102.61  Exemptions.

    Pursuant to subsection (k) of the Privacy Act (5 U.S.C. 552a), the 
Staff Secretary has determined that certain NSC systems of records may 
be exempt in part from sections 553(c)(3), (d), (e)(1), (e)(4), (G), 
(H), (I), and (f) of title 5, and from the provisions of these 
regulations. These systems of records may contain information which is 
classified pursuant to Executive Order 11652. To the extent that this 
occurs, records in the following systems would be exempt under the 
provision of 5 U.S.C. 552a(k)(1):

NSC 1.1--Central Research Index,
NSC 1.2--NSC Correspondence Files, and
NSC 1.3--NSC Meetings Registry.



PART 2103_REGULATIONS TO IMPLEMENT E.O. 12065_INCLUDING PROCEDURES FOR
PUBLIC ACCESS TO DOCUMENTS THAT MAY BE DECLASSIFIED--Table of Contents



                         Subpart A_Introduction

Sec.
2103.1 References.
2103.2 Purpose.
2103.3 Applicability.

                    Subpart B_Original Classification

2103.11 Basic policy.
2103.12 Level of original classification.
2103.13 Duration of original classification.
2103.14 Challenges to classification.

[[Page 487]]

                   Subpart C_Derivative Classification

2103.21 Definition and application.

               Subpart D_Declassification and Downgrading

2103.31 Declassification authority.
2103.32 Mandatory review for declassification.
2103.33 Downgrading authority.

                         Subpart E_Safeguarding

2103.41 Reproduction controls.

                   Subpart F_Implementation and Review

2103.51 Information Security Oversight Committee.
2103.52 Classification Review Committee.

    Authority: E.O. 12065 and Information Security Oversight Office 
Directive No. 1.

    Source: 44 FR 2384, Jan. 11, 1979, unless otherwise noted.



                         Subpart A_Introduction



Sec.  2103.1  References.

    (a) Executive Order 12065, ``National Security Information,'' dated 
June 28, 1978.
    (b) Information Security Oversight Office, Directive No. 1, 
``National Security Information,'' dated October 2, 1978.



Sec.  2103.2  Purpose.

    The purpose of this regulation is to ensure, consistent with the 
authorities listed in Sec.  2103.1, that national security information 
processed by the National Security Council Staff is protected from 
unauthorized disclosure, but only to the extent, and for such period, as 
is necessary to safeguard the national security.



Sec.  2103.3  Applicability.

    This regulation governs the National Security Council Staff 
Information Security Program. In consonance with the authorities listed 
in Sec.  2103.1, it establishes the policy and procedures for the 
security classification, downgrading, declassification, and safeguarding 
of information that is owned by, is produced for or by, or is under the 
control of the National Security Council Staff.



                    Subpart B_Original Classification



Sec.  2103.11  Basic policy.

    It is the policy of the National Security Council Staff to make 
available to the public as much information concerning its activities as 
is possible, consistent with its responsibility to protect the national 
security.



Sec.  2103.12  Level of original classification.

    Unnecessary classification, and classification at a level higher 
than is necessary, shall be avoided. If there is reasonable doubt as to 
which designation in section 1-1 of Executive Order 12065 is 
appropriate, or whether information should be classified at all, the 
less restrictive designation should be used, or the information should 
not be classified.



Sec.  2103.13  Duration of original classification.

    Original classification may be extended beyond six years only by 
officials with Top Secret classification authority. This extension 
authority shall be used only when these officials determine that the 
basis for original classification will continue throughout the entire 
period that the classification will be in effect and only for the 
following reasons:
    (a) The information is ``foreign government information'' as defined 
by the authorities in Sec.  2301.1;
    (b) The information reveals intelligence sources and methods;
    (c) The information pertains to communication security;
    (d) The information reveals vulnerability or capability data, the 
unauthorized disclosure of which can reasonably be expected to render 
ineffective a system, installation, or project important to the national 
security;
    (e) The information concerns plans important to the national 
security, the unauthorized disclosure of which reasonably can be 
expected to nullify the effectiveness of the plan;
    (f) The information concerns specific foreign relations matters, the 
continued protection of which is essential to the national security;

[[Page 488]]

    (g) Disclosure of the information would place a person's life in 
immediate jeopardy; or
    (h) The continued protection of the information is specifically 
required by statute.

Even when the extension authority is exercised, the period of original 
classification shall not be greater than twenty years from the date or 
original classification, except that the original classification of 
``foreign government information'' pursuant to paragraph (a) of this 
section may be for a period of thirty years.



Sec.  2103.14  Challenges to classification.

    If holders of classified information believe that the information is 
improperly or unnecessarily classified, or that original classification 
has been extended for too long a period, they should discuss the matter 
with their immediate superiors or the classifier of the information. If 
these discussions do not satisfy the concerns of the challenger, the 
matter should be brought to the attention of the chairperson of the NSC 
Information Security Oversight Committee (see Sec.  2103.51 of this 
part).



                   Subpart C_Derivative Classification



Sec.  2103.21  Definition and application.

    Derivative classification is the act of assigning a level of 
classification to information that is determined to be the same in 
substance as information that is currently classified. Thus, derivative 
classification may be accomplished by any person cleared for access to 
that level of information, regardless of whether the person has original 
classification authority at that level.



               Subpart D_Declassification and Downgrading



Sec.  2103.31  Declassification authority.

    The Staff Secretary, Staff Counsel, and Director of Freedom of 
Information of the National Security Council Staff are authorized to 
declassify NSC documents after consultation with the appropriate NSC 
Staff members.



Sec.  2103.32  Mandatory review for declassification.

    (a) Receipt. (1) Requests for mandatory review for declassification 
under section 3-501 of Executive Order 12065 must be in writing and 
should be addressed to :

    National Security Council, ATTN: Staff Secretary (Mandatory Review 
Request), Old Executive Office Building, Washington, DC 20506.

    (2) The requestor shall be informed of the date of receipt of the 
request. This date will be the basis for the time limits specified in 
paragraph (b) of this section.
    (3) If the request does not reasonably describe the information 
sought, the requestor shall be notified that, unless additional 
information is provided or the request is made more specific, no further 
action will be taken.
    (b) Review. (1) The requestor shall be informed of the National 
Security Council Staff determination within sixty days of receipt of the 
initial request.
    (2) If the determination is to withhold some or all of the material 
requested, the requestor may appeal the determination. The requestor 
shall be informed that such an appeal must be made in writing within 
sixty days of receipt of the denial and should be addressed to the 
chairperson of the National Security Council Classification Review 
Committee.
    (3) The requestor shall be informed of the appellate determination 
within thirty days of receipt of the appeal.
    (c) Fees. (1) Fees for the location and reproduction of information 
that is the subject of a mandatory review request shall be assessed 
according to the following schedule:
    (i) Search for records. $5.00 per hour when the search is conducted 
by a clerical employee; $8.00 per hour when the search is conducted by a 
professional employee. No fee shall be assessed for searches of less 
than one hour.
    (ii) Reproduction of documents. Documents will be reproduced at a 
rate of $.25 per page for all copying of four pages or more. No fee 
shall be assessed for reproducing documents that are three pages or 
less, or for the first three pages of longer documents.

[[Page 489]]

    (2) Where it is anticipated that the fees chargeable under this 
section will amount to more than $25, and the requestor has not 
indicated in advance a willingness to pay fees as high as are 
anticipated, the requestor shall be promptly notified of the amount of 
the anticipated fee or such portion thereof as can readily be estimated. 
In instances where the estimated fees will greatly exceed $25, an 
advance deposit may be required. Dispatch of such a notice or request 
shall suspend the running of the period for response by the NSC Staff 
until a reply is received from the requestor.
    (3) Remittances shall be in the form either of a personal check or 
bank draft drawn on a bank in the United States, or a postal money 
order. Remittances shall be made payable to the Treasury of the United 
States and mailed to the Staff Secretary, National Security Council, 
Washington, DC 20506.
    (4) [Reserved]
    (5) A receipt for fees paid will be given only upon request. Refund 
of fees paid for services actually rendered will not be made.
    (6) If a requestor fails to pay within thirty days for services 
rendered, further action on any other requests submitted by that 
requestor shall be suspended.
    (7) The Staff Secretary, National Security Council may waive all or 
part of any fee provided for in this section when it is deemed to be in 
either the interest of the NSC Staff or of the general public.



Sec.  2103.33  Downgrading authority.

    The Staff Secretary, Staff Counsel, and Director of Freedom of 
Information of the National Security Council Staff are authorized to 
downgrade NSC documents, after consultation with the appropriate NSC 
Staff members.



                         Subpart E_Safeguarding



Sec.  2103.41  Reproduction controls.

    The Staff Secretary shall maintain records to show the number and 
distribution of all Top Secret documents, of all documents covered by 
special access programs distributed outside the originating agency, and 
of all Secret and Confidential documents that are marked with special 
dissemination or reproduction limitations.



                   Subpart F_Implementation and Review



Sec.  2103.51  Information Security Oversight Committee.

    The NCS Information Security Oversight Committee shall be chaired by 
the Staff Counsel of the National Security Council Staff. The Committee 
shall be responsible for acting on all suggestions and complaints 
concerning the administration of the National Security Council 
information security program. The chairperson, who shall represent the 
NSC Staff on the Interagency Information Security Committee shall also 
be responsible for conducting an active oversight program to ensure 
effective implementation of Executive Order 12065.



Sec.  2103.52  Classification Review Committee.

    The NSC Classification Review Committee shall be chaired by the 
Staff Secretary of the National Security Council. The Committee shall 
decide appeals from denials of declassification requests submitted 
pursuant to section 3-5 of Executive Order 12065. The Committee shall 
consist of the chairperson, the NSC Director of Freedom of Information, 
and the NSC Staff member with primary subject matter responsibility for 
the material under review.

                       PARTS 2104	2199 [RESERVED]

[[Page 491]]



          CHAPTER XXIV--OFFICE OF SCIENCE AND TECHNOLOGY POLICY




  --------------------------------------------------------------------
Part                                                                Page
2400            Regulations to implement E.O. 12356; Office 
                    of Science and Technology Policy 
                    information security program............         493
2402            Regulations implementing the Freedom of 
                    Information Act.........................         506
2403-2499

 [Reserved]

[[Page 493]]



PART 2400_REGULATIONS TO IMPLEMENT E.O. 12356; OFFICE OF SCIENCE AND
TECHNOLOGY POLICY INFORMATION SECURITY PROGRAM--Table of Contents



                      Subpart A_General Provisions

Sec.
2400.1 Authority.
2400.2 Purpose.
2400.3 Applicability.
2400.4 Atomic Energy Material.

                    Subpart B_Original Classification

2400.5 Basic policy.
2400.6 Classification levels.
2400.7 Original classification authority.
2400.8 Limitations on delegation of original classification authority.
2400.9 Classification requirements.
2400.10 Presumption of damage.
2400.11 Duration of classification.
2400.12 Identification and markings.
2400.13 Limitations on classification.

                   Subpart C_Derivative Classification

2400.14 Use of derivative classification.
2400.15 Classification guides.
2400.16 Derivative classification markings.

               Subpart D_Declassification and Downgrading

2400.17 Policy.
2400.18 Declassification and downgrading authority.
2400.19 Declassification by the Director of the Information Security 
          Oversight Office.
2400.20 Systematic review for declassification.
2400.21 Mandatory review for declassification.
2400.22 Freedom of Information Act and Privacy Act requests.
2400.23 Prohibition.
2400.24 Downgrading.

                         Subpart E_Safeguarding

2400.25 Access.
2400.26 Access by historical researchers and former Presidential 
          appointees.
2400.27 Storage of classification information.
2400.28 Dissemination of classified information.
2400.29 Accountability and control.
2400.30 Reproduction of classified information.
2400.31 Destruction of classified information.
2400.32 Transmittal of classified information.
2400.33 Loss or possible compromise.

                Subpart F_Foreign Government Information

2400.34 Classification.
2400.35 Duration of classification.
2400.36 Declassification.
2400.37 Mandatory review.
2400.38 Protection of foreign government information.

                      Subpart G_Security Education

2400.39 Responsibility and objectives.

 Subpart H_Office of Science and Technology Policy Information Security 
                           Program Management

2400.40 Responsibility.
2400.41 Office Review Committee.
2400.42 Security Officer.
2400.43 Heads of offices.
2400.44 Custodians.
2400.45 Information Security Program Review.
2400.46 Suggestions or complaints.

    Authority: E.O. 12356 and Information Security Oversight Office 
Directive No. 1.

    Source: 48 FR 10821, Mar. 15, 1983, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  2400.1  Authority.

    (a) Executive Order 12356 ``National Security Information,'' dated 
April 2, 1982, 47 FR 14874 (Apr. 6, 1982); 47 FR 15557 (Apr. 12, 1982) 
and Order of Designation of May 7, 1982, 47 FR 20105 (May 11, 1982).
    (b) Information Security Oversight Office, Directive No. 1, 
``National Security Information,'' dated June 23, 1982, 47 FR 27836 
(June 25, 1982) (Directive No. 1).



Sec.  2400.2  Purpose.

    The purpose of this Regulation is to ensure, consistent with the 
authorities of Sec.  2400.1 that information of the Office of Science 
and Technology Policy (OSTP) relating to national security is protected 
from unauthorized disclosure, but only to the extent and for such period 
as is necessary to safeguard the national security.

[[Page 494]]



Sec.  2400.3  Applicability.

    This Regulation governs the Office of Science and Technology Policy 
Information Security Program. In accordance with the provisions of 
Executive Order 12356 and Directive No. 1 it establishes, for uniform 
application throughout the Office of Science and Technology Policy, the 
policies and procedures for the security classification, downgrading, 
declassification and safeguarding of information that is owned by, 
produced for or by, or under the control of the office of Science and 
Technology Policy.



Sec.  2400.4  Atomic Energy Material.

    Nothing in this Regulation supersedes any requirement made by or 
under the Atomic Energy act of 1954, as amended. ``Restricted Data'' and 
information designated as ``Formerly Restricted Data'' shall be handled, 
protected, classified, downgraded, and declassified in conformity with 
the provisions of the Atomic Energy Act of 1954, as amended, and 
regulations issued pursuant thereto by the Department of Energy.



                    Subpart B_Original Classification



Sec.  2400.5  Basic policy.

    Except as provided in the Atomic Energy Act of 1954, as amended, 
Executive Order 12356, as implemented by Directive No. 1 and this 
Regulation, provides the only basis for classifying information. The 
policy of the Office of Science and Technology Policy is to make 
available to the public as much information concerning its activities as 
is possible, consistent with its responsibility to protect the national 
security. Information may not be classified unless its disclosure 
reasonably could be expected to cause damage to the national security.



Sec.  2400.6  Classification levels.

    (a) National security information (hereinafter ``classified 
information'') shall be classified at one of the following three levels:
    (1) ``Top Secret'' shall be applied to information, the unauthorized 
disclosure of which reasonably could be expected to cause exceptionally 
grave damage to the national security.
    (2) ``Secret'' shall be applied to information, the unauthorized 
disclosure of which reasonably could be expected to cause serious damage 
to the national security.
    (3) ``Confidential'' shall be applied to information, the 
unauthorized disclosure of which reasonably could be expected to cause 
damage to the national security.
    (b) Except as otherwise provided by statute, no other terms shall be 
used to identify classified information. Markings other than ``Top 
Secret,'' ``Secret,'' and ``Confidential,'' such as ``For Official Use 
Only,'' shall not be used to identify national security information. In 
addition, no other term or phrase shall be used in conjunction with one 
of the three authorized classification levels, such as ``Secret 
Sensitive'' or ``Agency Confidential.'' The terms ``Top Secret'', 
``Secret'', and ``Confidential'' should not be used to identify 
nonclassified executive branch information.
    (c) Unnecessary classification, and classification at a level higher 
than is necessary shall be scrupulously avoided.
    (d) If there is reasonable doubt about the need to classify 
information, it shall be safeguarded as if it were classified 
``Confidential'' pending a determination by an original classification 
authority, who shall make this determination within thirty (30) days. If 
there is reasonable doubt about the appropriate level of classification 
the originator of the information shall safeguard it at the higher level 
of classification pending a determination by an original classification 
authority, who shall make this determination within thirty (30) days. 
Upon the determination of a need for classification and/or the proper 
classification level, the information that is classified shall be marked 
as provided in Sec.  2400.12 of this part.



Sec.  2400.7  Original classification authority.

    (a) Authority for original classification of information as Top 
Secret shall be exercised within OSTP only by the

[[Page 495]]

Director and by such principal subordinate officials having frequent 
need to exercise such authority as the Director shall designate in 
writing.
    (b) The authority to classify information originally as Secret shall 
be exercised within OSTP only by the Director, other officials delegated 
in writing to have original Top Secret classification authority, and any 
other officials delegated in writing to have original Secret 
classification authority.
    (c) The authority to classify information originally as Confidential 
shall be exercised within OSTP only by officials with original Top 
Secret or Secret classification authority and any officials delegated in 
writing to have original Confidential classification authority.



Sec.  2400.8  Limitations on delegation of original classification authority.

    (a) The Director, OSTP is the only official authorized to delegate 
original classification authority.
    (b) Delegations of original classification authority shall be held 
to an absolute minimum.
    (c) Delegations of original classification authority shall be 
limited to the level of classification required.
    (d) Original classification authority shall not be delegated to OSTP 
personnel who only quote, restate, extract or paraphrase, or summarize 
classified information or who only apply classification markings derived 
from source material or as directed by a classification guide.
    (e) The Executive Director, OSTP, shall maintain a current listing 
of persons or positions receiving any delegation of original 
classification authority. If possible, this listing shall be 
unclassified.
    (f) Original classification authority may not be redelegated.
    (g) Exceptional Cases. When an employee, contractor, licensee, or 
grantee of OSTP that does not have original classification authority 
originates information believed by that person to require 
classification, the information shall be protected in a manner 
consistent with these Regulations as provided in Sec.  2400.6(d) of this 
part. The information shall be transmitted promptly as provided in these 
Regulations to the official in OSTP who has appropriate subject matter 
interest and classification authority with respect to this information. 
That official shall decide within thirty (30) days whether to classify 
this information. If the information is not within OSTP's area of 
classification responsibility, OSTP shall promptly transmit the 
information to the responsible agency. If it is not clear which agency 
has classification responsibility for this information, it shall be sent 
to the Director of the Information Security Oversight Office. The 
Director shall determine the agency having primary subject matter 
interest and forward the information, with appropriate recommendations, 
to that agency for a classification determination.



Sec.  2400.9  Classification requirements.

    (a) Information may be classified only if it concerns one or more of 
the categories cited in Executive Order 12356, as subcategorized below, 
and an official having original classification authority determines that 
its unauthorized disclosure, either by itself or in the context of other 
information, reasonably could be expected to cause damage to the 
national security.
    (1) Military plans, weapons or operations;
    (2) The vulnerabilities or capabilities of systems, installations, 
projects, or plans relating to the national security;
    (3) Foreign government information;
    (4) Intelligence activities (including special activities), or 
intelligence sources or methods;
    (5) Foreign relations or foreign activities of the United States;
    (6) Scientific, technological, or economic matters relating to the 
national security;
    (7) United States Government programs for safe-guarding nuclear 
materials or facilities;
    (8) Cryptology;
    (9) A confidential source; or
    (10) Other categories of information which are related to national 
security and that require protection against unauthorized disclosure as 
determined by the Director, Office of Science and Technology Policy. 
Each such determination shall be reported promptly to

[[Page 496]]

the Director of the Information Security Oversight Office.
    (b) Foreign government information need not fall within any other 
classification category listed in paragraph (a) of this section to be 
classified.
    (c) Certain information which would otherwise be unclassified may 
require classification when combined or associated with other 
unclassified or classified information. Classification on this basis 
shall be fully supported by a written explanation that, at a minimum, 
shall be maintained with the file or referenced on the record copy of 
the information.
    (d) Information classified in accordance with this section shall not 
be declassified automatically as a result of any unofficial publication 
or inadvertent or unauthorized disclosure in the United States or abroad 
of identical or similar information. Following an inadvertent or 
unauthorized publication or disclosure of information identical or 
similar to information that has been classified in accordance with 
Executive Order 12356 or predecessor orders, OSTP, if the agency of 
primary interest, shall determine the degree of damage to the national 
security, the need for continued classification, and in coordination 
with the agency in which the disclosure occurred, what action must be 
taken to prevent similar occurrences. If the agency of primary interest 
is other than OSTP, the matter shall be referred to that agency.



Sec.  2400.10  Presumption of damage.

    Unauthorized disclosure of foreign government information, the 
identity of a confidential foreign source, or intelligence sources or 
methods, is presumed to cause damage to the national security.



Sec.  2400.11  Duration of classification.

    (a) Information shall be classified as long as required by national 
security considerations. When it can be determined, a specific date or 
event for declassification shall be set by the original classification 
authority at the time the information is originally classified.
    (b) Automatic declassification determinations under predecessor 
Executive Orders shall remain valid unless the classification is 
extended by an authorized official of the originating agency. These 
extensions may be by individual documents or categories of information. 
The originating agency shall be responsible for notifying holders of the 
information of such extensions.
    (c) Information classified under predecessor Executive Orders and 
marked for declassification review shall remain classified until 
reviewed for declassification under the provisions of Executive Order 
12356.
    (d) Information classified under predecessor Executive Orders that 
does not bear a specific date or event for declassification shall remain 
classified until reviewed for declassification. The authority to extend 
the classification of information subject to automatic declassification 
under predecessor Orders is limited to those officials who have 
classification authority over the information and are designated in 
writing to have original classification authority at the level of the 
information to remain classified. Any decision to extend this 
classification on other than a document-by-document basis shall be 
reported to the Director of the Information Security Oversight Office.



Sec.  2400.12  Identification and markings.

    (a) At the time of original classification, the following 
information shall be shown on the face of all classified documents, or 
clearly associated with other forms of classified information in a 
manner appropriate to the medium involved, unless this information 
itself would reveal a confidential source or relationship not otherwise 
evident in the document or information:
    (1) One of the three classification levels defined in Sec.  2400.6 
of this part;
    (2) The identity of the original classification authority if other 
than the person whose name appears as the approving or signing official;
    (3) The agency and office of origin; and
    (4) The date or event for declassification, or the notation 
``Originating Agency's Determination Required.''
    (b) Each classified document shall, by marking or other means, 
indicate which portions are classified, with the applicable 
classification level, and which portions are not classified. The

[[Page 497]]

Director OSTP may, for good cause, grant and revoke waivers of this 
requirement for specified classes of documents or information. The 
Director of the Information Security Oversight Office shall be notified 
of any waivers.
    (c) Marking designations implementing the provisions of Executive 
Order 12356, including abbreviations, shall conform to the standards 
prescribed in Directive No. 1 issued by the Information Security 
Oversight Office.
    (d) Foreign government information shall either retain its original 
classification or be assigned a United States classification that shall 
ensure a degree of protection at least equivalent to that required by 
the entity that furnished the information.
    (e) Information assigned a level of classification under predecessor 
Executive Orders shall be considered as classified at that level of 
classification despite the omission of other required markings. Omitted 
markings may be inserted on a document by the officials specified in 
Sec.  2400.18 of this part.



Sec.  2400.13  Limitations on classification.

    (a) In no case shall information be classified in order to conceal 
violations of law, inefficiency, or administrative error; to prevent 
embarrassment to a person, organization, or agency; to restrain 
competition; or to prevent or delay the release of information that does 
not require protection in the interest of national security.
    (b) Basic scientific research information not clearly related to the 
national security may not be classified.
    (c) The Director may reclassify information previously declassified 
and disclosed if it is determined in writing that (1) the information 
requires protection in the interest of national security; and (2) the 
information may reasonably be recovered. These reclassification actions 
shall be reported promptly to the Director of the Information Security 
Oversight Office. Before reclassifying any information, the Director 
shall consider the factors listed in Sec.  2001.6 of Directive No. 1, 
which shall be addressed in the report to the Director of the 
Information Security Oversight Office.
    (d) Information may be classified or reclassified after OSTP has 
received a request for it under the Freedom of Information Act (5 U.S.C. 
552a) or the Privacy Act of 1974 (5 U.S.C. 552), or the mandatory review 
provisions of Executive Order 12356 (section 3.4) if such classification 
meets the requirements of this Order and is accomplished personally and 
on a document-by-document basis by the Director.



                   Subpart C_Derivative Classification



Sec.  2400.14  Use of derivative classification.

    (a) Derivative classification is (1) the determination that 
information is in substance the same as information currently 
classified, and (2) the application of the same classification markings. 
Persons who only reproduce, extract, or summarize classified 
information, or who only apply classification markings derived from 
source material or as directed by a classification guide, need not 
possess original classification authority. If a person who applies 
derivative classification markings believes that the paraphrasing, 
restating, or summarizing of classified information has changed the 
level of or removed the basis for classification, that person must 
consult an appropriate official of the originating agency or office of 
origin who has the authority to declassify, downgrade or upgrade the 
information.
    (b) Persons who apply derivative classification markings shall:
    (1) Observe and respect original classification decisions; and
    (2) Carry forward to any newly created documents any assigned 
authorized markings. The declassification date or event that provides 
the longest period of classification shall be used for documents 
classified on the basis of multiple sources.



Sec.  2400.15  Classification guides.

    (a) OSTP shall issue and maintain classification guides to 
facilitate the proper and uniform derivative classification of 
information. These guides shall be used to direct derivative 
classification.
    (b) The classification guides shall be approved, in writing, by the 
Director or by officials having Top Secret original

[[Page 498]]

classification authority. Such approval constitutes an original 
classification decision.
    (c) Each classification guide shall specify the information subject 
to classification in sufficient detail to permit its ready and uniform 
identification and categorization and shall set forth the classification 
level and duration in each instance. Additionally, each classification 
guide shall prescribe declassification instructions for each element of 
information in terms of (1) a period of time, (2) the occurrence of an 
event, or (3) a notation that the information shall not be automatically 
declassified without the approval of OSTP.
    (d) The classification guides shall be kept current and shall be 
fully reviewed at least every two years. The Executive Director, OSTP 
shall maintain a list of all OSTP classification guides in current use.
    (e) The Executive Director, OSTP shall receive and maintain the 
record copy of all approved classification guides and changes thereto. 
He will assist the originator in determining the required distribution.
    (f) The Director may, for good cause, grant and revoke waivers of 
the requirement to prepare classification guides for specified classes 
of documents or information. The Director of the Information Security 
Oversight Office shall be notified of any waivers. The Director's 
decision to waive the requirement to issue classification guides for 
specific classes of documents or information will be based, at a 
minimum, on an evaluation of the following factors:
    (1) The ability to segregate and describe the elements of 
information;
    (2) The practicality of producing or disseminating the guide because 
of the nature of the information;
    (3) The anticipated usage of the guide as a basis for derivative 
classification; and
    (4) The availability of alternative sources for derivatively 
classifying the information in a uniform manner.



Sec.  2400.16  Derivative classification markings.

    (a) Documents classified derivatively on the basis of source 
documents or classification guides shall bear all markings prescribed in 
Sec.  2400.12 of this part and Directive No. 1 as are applicable. 
Information for these markings shall be taken from the source document 
or instructions in the appropriate classification guide. When markings 
are omitted because they may reveal a confidential source or 
relationship not otherwise evident, as described in Sec.  2400.12 of 
this part, the information may not be used as a basis for derivative 
classification.
    (b) The authority for classification shall be shown as directed in 
Directive No. 1.



               Subpart D_Declassification and Downgrading



Sec.  2400.17  Policy.

    Declassification of information shall be given emphasis comparable 
to that accorded classification. Information classified pursuant to 
Executive Order 12356 and prior orders shall be declassified or 
downgraded as soon as national security considerations permit. Decisions 
concerning declassification shall be based on the loss of sensitivity of 
the information with the passage of time or on the occurrence of an 
event which permits declassification. When information is reviewed for 
declassification pursuant to this regulation, that information shall be 
declassified unless the designated declassification authority determines 
that the information continues to meet the classification requirements 
prescribed in Sec.  2400.9 of this part despite the passage of time. The 
Office of Science and Technology Policy officials shall coordinate their 
review of classified information with other agencies that have a direct 
interest in the subject matter.



Sec.  2400.18  Declassification and downgrading authority.

    Information shall be declassified or downgraded by the official who 
authorized the original classification, if that official is still 
serving the same position; the originator's successor; a supervisory 
official of either; or officials delegated such authority in writing by 
the Director, OSTP. The Executive Director, OSTP shall maintain a 
current listing of persons or positions receiving

[[Page 499]]

those delegations. If possible, these listings shall be unclassified.



Sec.  2400.19  Declassification by the Director of the Information
Security Oversight Office.

    If the Director of the Information Security Oversight Office (ISOO) 
determines that information is classified in violation of Executive 
Order 12356, the Director, ISOO may require the information to be 
declassified by the agency that originated the classification. Any such 
decision by the Director ISOO may be appealed by the Director, OSTP to 
the National Security Council. The information shall remain classified, 
pending a prompt decision on the appeal.



Sec.  2400.20  Systematic review for declassification.

    (a) Permanent records. Systematic review is applicable only to those 
classified records, and presidential papers or records that the 
Archivist of the United States, acting under the Federal Records Act, 
has determined to be of sufficient historical or other value to warrant 
permanent retention.
    (b) Non-permanent records. Non-permanent classified records shall be 
disposed of in accordance with schedules approved by the Administrator 
of General Services under the Records Disposal Act. These schedules 
shall provide for the continued retention of records subject to an 
ongoing mandatory review for declassification request.
    (c) Office of Science and Technology Policy Responsibility. The 
Director, OSTP, shall:
    (1) Issue guidelines for systematic declassification review and, if 
applicable, for downgrading. These guidelines shall be developed in 
consultation with the Archivist and the Director of the Information 
Security Oversight Office and be designated to assist the Archivist in 
the conduct of systematic reviews;
    (2) Designate experienced personnel to provide timely assistance to 
the Archivist in the systematic review process;
    (3) Review and update guidelines for systematic declassification 
review and downgrading at least every five years unless earlier review 
is requested by the Archivist.
    (d) Foreign Government Information. Systematic declassification 
review of foreign government information shall be in accordance with 
guidelines issued by the Director of the Information Security Oversight 
Office.
    (e) Special procedures. The Office of Science and Technology Policy 
shall be bound by the special procedures for systematic review of 
classified cryptologic records and classified records pertaining to 
intelligence activities (including special activities) or intelligence 
sources or methods issued by the Secretary of Defense and the Director 
of Central Intelligence, respectively.



Sec.  2400.21  Mandatory review for declassification.

    (a) Except as provided in paragraph (d) of this section, all 
information classified under Executive Order 12356 or predecessor orders 
shall be subject to a review for declassification by the Office of 
Science and Technology Policy, if:
    (1) The request is made by a United States citizen or permanent 
resident alien, a federal agency, or a State or local government; and
    (2) The request is made in writing and describes the document or 
material containing the information with sufficient specificity to 
enable the Office of Science and Technology Policy to locate it with a 
reasonable amount of effort.
    (b) Requests should be addressed to: Executive Director, Office of 
Science and Technology Policy, Executive Office of the President, 
Washington, DC 20506.
    (c) If the request does not reasonably describe the information 
sought to allow identification of documents containing such information, 
the requester shall be notified that unless additional information is 
provided or the request is made more specific, no further action will be 
taken.
    (d) Information originated by a President, the White House Staff, by 
committees, commissions, or boards appointed by the President, or others 
specifically providing advice and counsel to a President or acting on 
behalf of a

[[Page 500]]

President is exempted from the mandatory review provisions of Sec.  
2400.24(a) of this part. The Archivist of the United States shall have 
the authority to review, downgrade and declassify information under the 
control of the Administrator of General Services or the Archivist 
pursuant to sections 2107, 2107 note, or 2203 of title 44, United States 
Code. Review procedures developed by the Archivist shall provide for 
consultation with agencies having primary subject matters interest and 
shall be consistent with the provisions of applicable laws or lawful 
agreements that pertain to the respective presidential papers or 
records. Any decision by the Archivist may be appealed to the Director 
of the Information Security Oversight Office. Agencies with primary 
subject matter interest shall be notified promptly of the Director's 
decision on such appeals and may further appeal to the National Security 
Council. The information shall remain classified pending a prompt 
decision on the appeal.
    (e) Office of Science and Technology Policy officials conducting a 
mandatory review for declassification shall declassify information no 
longer requiring protection under Executive Order 12356. They shall 
release this information unless withholding is otherwise authorized 
under applicable law.
    (f) Office of Science and Technology Policy responses to mandatory 
review requests shall be governed by the amount of search and review 
time required to process the request. Normally the requester shall be 
informed of the Office of Science and Technology Policy determination 
within thirty days of receipt of the original request (or within thirty 
days of the receipt of the required amplifying information in accordance 
with paragraph (c) of this section). In the event that a determination 
cannot be made within thirty days, the requester shall be informed of 
the additional time needed to process the request. However, OSTP, shall 
make a final determination within one year from the date of receipt of 
the request except in unusual circumstances.
    (g) When information cannot be declassified in its entirety, OSTP 
will make a reasonable effort to release, consistent with other 
applicable law, those declassified portions of that requested 
information the constitute a coherent segment.
    (h) If the information may not be released in whole or in part, the 
requester shall be given a brief statement as to the reason for denial, 
and notice of the right to appeal the determination in writing within 
sixty days of receipt of the denial to the chairperson of the Office of 
Science and Technology Policy Review Committee. If appealed, the 
requester shall be informed in writing of the appellate determination 
within thirty days of receipt of the appeal.
    (i) When a request is received for information originated by another 
agency, the Executive Director, Office of Science and Technology Policy, 
shall:
    (1) Forward the request to such agency for review together with a 
copy of the document containing the information requested, where 
practicable, and where appropriate, with the Office of Science and 
Technology Policy recommendation to withhold or declassify and release 
any of the information;
    (2) Notify the requester of the referral unless the agency to which 
the request is referred objects to such notice on grounds that its 
association with the information requires protection; and
    (3) Request, when appropriate, that the agency notify the Office of 
Science and Technology Policy of its determination.
    (j) If the request requires the rendering of services for which fees 
may be charged under title 5 of the Independent Offices Appropriation 
Act, 31 U.S.C. 483a, the Executive Director, Office of Science and 
Technology Policy, may calculate the anticipated amount of fees to be 
charged.
    (1) Fees for the location and reproduction of information that is 
the subject of a mandatory review request shall be assessed according to 
the following schedule:
    (i) Search for records. $5.00 per hour when the search is conducted 
by a clerical employee; $8.00 per hour when the search is conducted by a 
professional employee. No fee shall be assessed for searches of less 
than one hour.
    (ii) Reproduction of documents. Documents will be reproduced at a 
rate of

[[Page 501]]

$.25 per page for all copying of four pages or more. No fee shall be 
assessed for reproducing documents that are three pages or less, or for 
the first three pages of longer documents.
    (2) Where it is anticipated that the fees chargeable under this 
section will amount to more than $25, and the requestor has not 
indicated in advance a willingness to pay fees as high as are 
anticipated, the requester shall be promptly notified of the amount of 
the anticipated fee or such portion thereof as can readily be estimated. 
In instances where the estimated fees will greatly exceed $25, an 
advance deposit may be required. Dispatch of such a notice or request 
shall suspend the running of the period for response by OSTP until a 
reply is received from the requester.
    (3) Remittances shall be in the form either of a personal check or 
bank draft drawn on a bank in the United States, or a postal money 
order. Remittances shall be made to the Treasury of the United States 
and mailed to the Executive Director, Office of Science and Technology 
Policy, Executive Office of the President, Washington, DC 20506.
    (4) A receipt for fees paid will be given only upon request. Refund 
of fees paid for services actually rendered will not be made.
    (5) If a requester fails to pay within thirty days for services 
rendered, further action on any other requests submitted by that 
requestor shall be suspended.
    (6) The Executive Director, Office of Science and Technology Policy 
may waive all or part of any fee provided for in this section when it is 
deemed to be in either the interest of the OSTP or the general public.



Sec.  2400.22  Freedom of Information Act and Privacy Act requests.

    The Office of Science and Technology Policy shall process requests 
for declassification that are submitted under the provisions of the 
Freedom of Information Act, as amended, or the Privacy Act of 1974, in 
accordance with the provisions of those Acts.



Sec.  2400.23  Prohibition.

    In response to a request for information under the Freedom of 
Information Act, the Privacy Act of 1974, or the mandatory review 
provisions of Executive Order 12356 and Directive No. 1, or this 
regulation:
    (a) The Office of Science and Technology Policy shall refuse to 
confirm or deny the existence or non-existence of requested information 
whenever the fact of its existence or non-existence is itself 
classifiable under Executive Order 12356.
    (b) When the Office of Science and Technology Policy receives any 
request for documents in its custody that were classified by another 
agency, it shall refer copies of the request and the requested documents 
to the originating agency for processing, and may, after consultation 
with the originating agency, inform the requester of the referral. In 
cases which the originating agency determines in writing that a response 
under paragraph (a) of this section is required, the Office of Science 
and Technology Policy shall respond to the requester in accordance with 
that paragraph.



Sec.  2400.24  Downgrading.

    (a) When it will serve a useful purpose, original classification 
authorities may, at the time of original classification, specify that 
downgrading of the assigned classification will occur on a specified 
date or upon the occurrence of a stated event.
    (b) Classified information marked for automatic downgrading is 
downgraded accordingly without notification to holders.
    (c) Classified information not marked for automatic downgrading may 
be assigned a lower classification designation by the originator or by 
an official authorized to declassify the same information. Prompt notice 
of such downgrading shall be provided to known holders of the 
information.



                         Subpart E_Safeguarding



Sec.  2400.25  Access.

    (a) A person is eligible for access to classified information 
provided that a determination of trustworthiness has

[[Page 502]]

been made by agency heads or designated officials and provided that such 
access is essential to the accomplishment of lawful and authorized 
Government purposes. A personnel security clearance is an indication 
that the trustworthiness decision has been made. Procedures shall be 
established by the head of each office to prevent access to classified 
information before a personnel security clearance has been granted. The 
number of people cleared and granted access to classified information 
shall be maintained at the minimum number that is consistent with 
operational requirements and needs. No one has a right to have access to 
classified information solely by virtue of rank or position. The final 
responsibility for determinating whether an individual's official duties 
require possession of or access to any element or item of classified 
information, and whether the individual has been granted the appropriate 
security clearance by proper authority, rests with the individual who 
has authorized possession, knowledge, or control of the information and 
not with the prospective recipient. These principles are equally 
applicable if the prospective recipient is an organizational entity, 
other Federal agencies, contractors, foreign governments, and others.
    (b) When access to a specific classification category is no longer 
required for the performance of an individual's assigned duties, the 
security clearance will be administratively adjusted, without prejudice 
to the individual, to the classification category, if any, required.
    (c) The Director, Office of Science and Technology Policy may create 
special access programs to control access, distribution, and protection 
of particularly sensitive information classified pursuant to Executive 
Order 12356 or predecessor orders if:
    (1) Normal management and safeguarding procedures do not limit 
access sufficiently;
    (2) The number of persons with access is limited to the minimum 
necessary to meet the objective of providing extra protection for the 
information;
    (3) The special access program is established in writing; and
    (4) A system of accounting for the program is established and 
maintained.



Sec.  2400.26  Access by historical researchers and former Presidential
appointees.

    (a) The requirement in Section 4.1(a) of Executive Order 12356 that 
access to classified information may be granted only as is essential to 
the accomplishment of authorized and lawful Government purposes may be 
waived as provided in paragraph (b) of this section for persons who:
    (1) Are engaged in historical research projects, or
    (2) Previously have occupied policy-making positions to which they 
were appointed by the President.
    (b) Waivers under paragraph (a) of this section may be granted only 
if the Director, Office of Science and Technology Policy:
    (1) Determines in writing that access is consistent with the 
interest of national security;
    (2) Takes appropriate steps to protect classified information from 
unauthorized disclosure or compromise, and ensures that the information 
is safeguarded in a manner consistent with Executive Order 12356;
    (3) Limits the access granted to former presidential appointees to 
items that the person originated, reviewed, signed, or received while 
serving as a presidential appointee; and
    (4) Has received a written agreement from the researcher or former 
presidential appointee that his notes can be reviewed by OSTP for a 
determination that no classified material is contained therein.



Sec.  2400.27  Storage of classification information.

    Whenever classified information is not under the personal control 
and observation of an authorized person, it will be guarded or stored in 
a locked security container approved for the storage and protection of 
the appropriate level of classified information as prescribed in Sec.  
2001.43 of Directive No. 1.

[[Page 503]]



Sec.  2400.28  Dissemination of classified information.

    Heads of OSTP offices shall establish procedures consistent with 
this Regulation for dissemination of classified material. The 
originating official may prescribe specific restrictions on 
dissemination of classified information when necessary.
    (a) Classified information shall not be disseminated outside the 
executive branch except under conditions that ensure that the 
information will be given protection equivalent to that afforded within 
the executive branch.
    (b) Except as provided by directives issued by the President through 
the National Security Council, classified information originating in one 
agency may not be disseminated outside any other agency to which it has 
been made available without the consent of the originating agency. For 
purposes of this Section, the Department of Defense shall be considered 
one agency.



Sec.  2400.29  Accountability and control.

    (a) Each item of Top Secret, Secret, and Confidential information is 
subject to control and accountability requirements.
    (b) The Security Officer will serve as Top Secret Control Officer 
(TSCO) for the Office of Science and Technology Policy and will be 
responsible for the supervision of the Top Secret control program. He/
she will be assisted by an Assistant Top Secret Control Officer (ATSCO) 
to effect the Controls prescribed herein for all Top Secret material.
    (c) The TSCO shall receive, transmit, and maintain current access 
and accountability records for Top Secret information. The records shall 
show the number and distribution of all Top Secret documents, including 
any reproduced copies.
    (d) Top Secret documents and material will be accounted for by a 
continuous chain of receipts.
    (e) An inventory of Top Secret documents shall be made at least 
annually.
    (f) Destruction of Top Secret documents shall be accomplished only 
by the TSCO or the ATSCO.
    (g) Records shall be maintained to show the number and distribution 
of all classified documents covered by special access programs, and of 
all Secret and Confidential documents which are marked with special 
dissemination and reproduction limitations.
    (h) The Security Officer will develop procedures for the 
accountability and control of Secret and Confidential information. These 
procedures shall require all Secret and Confidential material originated 
or received by OSTP to be controlled. Control shall be accomplished by 
the ATSCO.



Sec.  2400.30  Reproduction of classified information.

    Documents or portions of documents and materials that contain Top 
Secret information shall not be reproduced without the consent of the 
originator or higher authority. Any stated prohibition against 
reproduction shall be strictly observed. Copying of documents containing 
classified information at any level shall be minimized. Specific 
reproduction equipment shall be designated for the reproduction of 
classified information and rules for reproduction of classified 
information shall be posted on or near the designated equipment. Notices 
prohibiting reproduction of classified information shall be posted on 
equipment used only for the reproduction of unclassified information. 
All copies of classified documents reproduced for any purpose including 
those incorporated in a working paper are subject to the same controls 
prescribed for the document from which the reproduction is made.



Sec.  2400.31  Destruction of classified information.

    (a) Classified information no longer needed in current working files 
or for reference or record purposes shall be processed for appropriate 
disposition in accordance with the provisions of chapters 21 and 33 of 
title 44, U.S.C., which governs disposition of classified records. 
Classified information approved for destruction shall be destroyed in 
accordance with procedures and methods prescribed by the Director, OSTP, 
as implemented by the Security Officer. These procedures and methods 
must provide adequate protection to prevent access by unauthorized 
persons and must preclude recognition

[[Page 504]]

or reconstruction of the classified information or material.
    (b) All classified information to be destroyed will be provided to 
the ATSCO for disposition. Controlled documents will be provided whole 
so that accountability records may be corrected prior to destruction by 
the ATSCO.



Sec.  2400.32  Transmittal of classified information.

    The transmittal of classified information outside of the Office of 
Science and Technology Policy shall be in accordance with procedures of 
Sec.  2001.44 of Directive No. 1. The Security Officer shall be 
responsible for resolving any questions relative to such transmittal.



Sec.  2400.33  Loss or possible compromise.

    (a) Any person who has knowledge of the loss or possible compromise 
of classified information shall immediately report the circumstances to 
the Security Officer. The Security Officer shall notify the Director and 
the agency that originated the information as soon as possible so that a 
damage assessment may be conducted and appropriate measures taken to 
negate or minimize any adverse effect of the compromise.
    (b) The Security Officer shall initiate an inquiry to:
    (1) Determine cause,
    (2) Place responsibility, and
    (3) Take corrective measures and appropriate administrative, 
disciplinary, or legal action.
    (c) The Security Officer shall keep the Director advised on the 
details of the inquiry.



                Subpart F_Foreign Government Information



Sec.  2400.34  Classification.

    (a) Foreign government information classified by a foreign 
government or international organization of governments shall retain its 
original classification designation or be assigned a United States 
classification designation that will ensure a degree of protection 
equivalent to that required by the government or organization that 
furnished the information. Original classification authority is not 
required for this purpose.
    (b) Foreign government information that was not classified by a 
foreign entity but was provided with the expectation, expressed or 
implied, that it be held in confidence must be classified because 
Executive Order 12356 states a presumption of damage to the national 
security in the event of unauthorized disclosure of such information.



Sec.  2400.35  Duration of classification.

    Foreign government information shall not be assigned a date or event 
for automatic declassification unless specified or agreed to by the 
foreign entity.



Sec.  2400.36  Declassification.

    Officials shall respect the intent of this Regulation to protect 
foreign government information and confidential foreign sources.



Sec.  2400.37  Mandatory review.

    Except as provided in this paragraph, OSTP shall process mandatory 
review requests for classified records containing foreign government 
information in accordance with Sec.  2400.21. The agency that initially 
received or classified the foreign government information shall be 
responsible for making a declassification determination after 
consultation with concerned agencies. If OSTP receives a request for 
mandatory review and is not the agency that received or classified the 
foreign government information, it shall refer the request to the 
appropriate agency for action. Consultation with the foreign originator 
through appropriate channels may be necessary prior to final action on 
the request.



Sec.  2400.38  Protection of foreign government information.

    Classified foreign government information shall be protected as is 
prescribed by this regulation for United States classified information 
of a comparable level.

[[Page 505]]



                      Subpart G_Security Education



Sec.  2400.39  Responsibility and objectives.

    The OSTP Security Officer shall establish a security education 
program for OSTP personnel. The program shall be sufficient to 
familiarize all OSTP personnel with the provisions of Executive Order 
12356 and Directive No. 1, and this regulation. It shall be designed to 
provide initial, refresher, and termination briefings to impress upon 
them their individual security responsibilities.



 Subpart H_Office of Science and Technology Policy Information Security 
                           Program Management



Sec.  2400.40  Responsibility.

    The Director, OSTP is the senior OSTP official having authority and 
responsibility to ensure effective and uniform compliance with and 
implementation of Executive Order 12356 and its implementing Directive 
No. 1. As such, the Director, OSTP, shall have primary responsibility 
for providing guidance, oversight and approval of policy and procedures 
governing the OSTP Information Security Program. The Director, OSTP, may 
approve waivers or exceptions to the provisions of this regulation to 
the extent such action is consistent with Executive Order 12356 and 
Directive No. 1.



Sec.  2400.41  Office Review Committee.

    The Office of Science and Technology Policy Review Committee 
(hereinafter referred to as the Office Review Committee) is hereby 
established and will be responsible for the continuing review of the 
administration of this Regulation with respect to the classification and 
declassification of information or material originated or held by the 
Office of Science and Technology Policy. The Office Review Committee 
shall be composed of the Executive Director who shall serve as 
chairperson, the Assistant Director for National Security & Space, and 
the Security Officer.



Sec.  2400.42  Security Officer.

    Under the general direction of the Director, the Special Assistant 
to the Executive Director will serve as the Security Officer and will 
supervise the administration of this Regulation. He/she will develop 
programs, in particular a Security Education Program, to insure 
effective compliance with and implementation of the Information Security 
Program. Specifically he/she also shall:
    (a) Maintain a current listing by title and name of all persons who 
have been designated in writing to have original Top Secret, Secret, and 
Confidential Classification authority. Listings will be reviewed by the 
Director on an annual basis.
    (b) Maintain the record copy of all approved OSTP classification 
guides.
    (c) Maintain a current listing of OSTP officials designated in 
writing to have declassification and downgrading authority.
    (d) Develop and maintain systematic review guidelines.



Sec.  2400.43  Heads of offices.

    The Head of each unit is responsible for the administration of this 
regulation within his area. These responsibilities include:
    (a) Insuring that national security information is properly 
classified and protected;
    (b) Exercising a continuing records review to reduce classified 
holdings through retirement, destruction, downgrading or 
declassification;
    (c) Insuring that reproduction of classified information is kept to 
the absolute minimum;
    (d) Issuing appropriate internal security instructions and 
maintaining the prescribed control and accountability records on 
classified information under their jurisdiction.



Sec.  2400.44  Custodians.

    Custodians of classified material shall be responsible for providing 
protection and accountability for such material at all times and 
particularly for locking classified material in approved security 
equipment whenever it is not in use or under direct supervision of 
authorized persons. Custodians shall follow procedures which insure that 
unauthorized persons

[[Page 506]]

do not gain access to classified information or material by sight or 
sound, and classified information shall not be discussed with or in the 
presence of unauthorized persons.



Sec.  2400.45  Information Security Program Review.

    (a) The Director, OSTP, shall require an annual formal review of the 
OSTP Information Security Program to ensure compliance with the 
provisions of Executive Order 12356 and Directive No. 1, and this 
regulation.
    (b) The review shall be conducted by a group of three to five 
persons appointed by the Director and chaired by the Executive Director. 
The Security Officer will provide any records and assistance required to 
facilitate the review.
    (c) The findings and recommendations of the review will be provided 
to the Director for his determination.



Sec.  2400.46  Suggestions or complaints.

    Persons desiring to submit suggestions or complaints regarding the 
Office of Science and Technology Policy Information Security Program 
should do so in writing. This correspondence should be addressed to: 
Executive Director, Office of Science and Technology Policy, Executive 
Office of the President, Washington, DC 20506.



PART 2402_REGULATIONS IMPLEMENTING THE FREEDOM OF INFORMATION ACT-
-Table of Contents



Sec.
2402.1 Purpose and scope.
2402.2 Delegation of authority and responsibilities.
2402.3 General policy and definitions.
2402.4 Procedure for requesting records.
2402.5 Responses to requests.
2402.6 Timing of responses to requests.
2402.7 Confidential commercial information.
2402.8 Appeal of denials.
2402.9 Fees.
2402.10 Waiver of fees.
2402.11 Maintenance of statistics.
2402.12 Disclaimer.

    Authority: 5 U.S.C. 552; E.O. 13392, 70 FR 75373, 3 CFR, 2005 Comp., 
p. 216.

    Source: 85 FR 70055, Nov. 4, 2020, unless otherwise noted.



Sec.  2402.1  Purpose and scope.

    The regulations in this part prescribe procedures by which 
individuals may obtain access to the Office of Science and Technology 
Policy's (OSTP) agency records under the Freedom of Information Act 
(FOIA), 5 U.S.C. 552, as amended, as well as the procedures OSTP must 
follow in response to requests for records under the FOIA. The 
regulations should be read together with the FOIA and the Office of 
Management and Budget's (OMB's) ``Uniform Freedom of Information Fee 
Schedule and Guidelines,'' which provides information about access to 
records. All requests for access to information contained within a 
system of records pursuant to the Privacy Act of 1974, 5 U.S.C. 552a, 
shall be processed in accordance with these regulations as well as those 
contained in 32 CFR part 2403.



Sec.  2402.2  Delegation of authority and responsibilities.

    (a) The Director of OSTP designates the OSTP General Counsel as the 
Chief FOIA Officer and hereby delegates to the Chief FOIA Officer the 
authority to act upon all requests for agency records and to re-delegate 
such authority at his or her discretion.
    (b) The Chief FOIA Officer shall designate a FOIA Public Liaison, 
who shall serve as the supervisory official to whom a FOIA requester can 
raise concerns about the service the FOIA requestor has received 
following an initial request. The FOIA Public Liaison will be listed on 
the OSTP website (https://www.whitehouse.gov/ostp/foia) and may re-
delegate the FOIA Public Liaison's authority at his or her discretion.
    (c) The Director establishes a FOIA Requester Service Center that 
shall be staffed by the Chief FOIA Officer and the FOIA Public Liaison. 
The contact information for the FOIA Requester Service Center is: 
Address: Office of Science and Technology Policy, Eisenhower Executive 
Office Building, 1650 Pennsylvania Avenue NW, Washington, DC 20504; 
Telephone: (202) 456-4444; Fax: (202) 395-1224; Email: 
[email protected]. Updates to this contact information will be made 
on the OSTP website.

[[Page 507]]



Sec.  2402.3  General policy and definitions.

    (a) Non-exempt records available to public. Except for records 
exempt from disclosure by 5 U.S.C. 552(b) or published in the Federal 
Register under 5 U.S.C. 552(a)(1), OSTP's agency records subject to the 
FOIA are available to any requester who requests them in accordance with 
these regulations.
    (b) Record availability on the OSTP website. OSTP shall make records 
available on its website in accordance with 5 U.S.C. 552(a)(2), as 
amended, and other documents that, because of the nature of their 
subject matter, are likely to be the subject of FOIA requests. To save 
both time and money, OSTP strongly urges requesters to review documents 
available on the OSTP website before submitting a request.
    (c) Definitions. For purposes of this part:
    (1) All of the terms defined in the FOIA and the definitions 
included in OMB's ``Uniform Freedom of Information Act Fee Schedule and 
Guidelines'' apply unless otherwise defined in this subpart.
    (2) The term agency record means a record that is:
    (i) Either created or obtained by OSTP; and
    (ii) Under OSTP's control at the time the FOIA request is received.
    (3) The term commercial use request means a request from or on 
behalf of a person who seeks information for a use or purpose that 
furthers his or her commercial, trade, or profit interests, which can 
include furthering those interests through litigation. OSTP shall 
determine, whenever reasonably possible, the use to which a requester 
will put the requested records. When it appears that the requester will 
put the records to a commercial use, either because of the nature of the 
request itself or because OSTP has reasonable cause to doubt a 
requester's stated use, OSTP shall provide the requester a reasonable 
opportunity to submit further clarification.
    (4) The terms disclose and disclosure refer to making records 
available, upon request, for examination and copying, or furnishing a 
copy of records.
    (5) The term direct cost means those expenditures OSTP actually 
incurred in searching for and duplicating (and, in the case of 
commercial use requests, reviewing) records in response to a FOIA 
request. Direct costs include the salary of the personnel performing the 
work (i.e., the basic rate of pay for the employee plus 16 percent of 
that rate to cover benefits) and the cost of operating computers and 
other electronic equipment, such as photocopiers and scanners. Direct 
costs do not include overhead expenses, such as the cost of space, 
heating, or lighting of the facility in which the records are stored.
    (6) The term duplication means the making of a copy of a record, or 
of the information contained in it, necessary to respond to a FOIA 
request. Copies can take the form of paper, microform, audiovisual 
materials, or electronic records (e.g., magnetic tape or disk), among 
others.
    (7) The term educational institution means a preschool, a public or 
private elementary or secondary school, an institution of undergraduate 
higher education, an institution of graduate higher education, an 
institution of professional education, or an institution of vocational 
education that operates a program of scholarly research. To fall within 
this category, a requester must show that the request is authorized by 
and is made under the auspices of a qualifying institution and that the 
records are not sought for a commercial use, but rather are sought to 
further scholarly research.
    (8) The term fee waiver means the waiver or reduction of processing 
fees if a requester can demonstrate that certain statutory standards are 
satisfied.
    (9) The term FOIA Public Liaison means an agency official who is 
responsible for assisting requesters in defining the scope of their 
request to reduce processing time, increasing transparency and 
understanding of the status of requests, and assisting in the resolution 
of disputes.
    (10) The term non-commercial scientific institution means an 
institution that is not operated on a commercial basis, as that term is 
defined in these regulations, and that is operated solely for

[[Page 508]]

the purpose of conducting scientific research, the results of which are 
not intended to promote any particular product or industry. To fall 
within this category, a requester must show that the request is 
authorized by and is made under the auspices of a qualifying institution 
and that the records are not sought for a commercial use, but rather are 
sought to further scientific research.
    (11) The term perfected request means a FOIA request for records 
that reasonably describes the records sought and has been received by 
OSTP in accordance with the requirements set forth in Sec.  2402.4.
    (12) The terms representative of the news media and news media 
requester mean any person or entity that gathers information of 
potential interest to a segment of the public, uses its editorial skills 
to turn the raw materials into a distinct work, and distributes that 
work to an audience. In this clause, the term news means information 
that is about current events or that would be of current interest to the 
public. Examples of news media entities are television or radio stations 
broadcasting to the public at large and publishers of periodicals (but 
only if such entities qualify as disseminators of news) who make their 
products available for purchase by, subscription by, or through free 
distribution to the general public. These examples are not all-
inclusive. Moreover, as methods of news delivery evolve, such as through 
electronic or digital means, such news sources shall be considered to be 
news media entities. A freelance journalist shall be regarded as working 
for a news media entity if the journalist can demonstrate a solid basis 
for expecting publication through that entity, whether or not the 
journalist is actually employed by the entity. A publication contract 
would present a solid basis for such an expectation; the Government may 
also consider the past publication record of the requester in making 
such a determination.
    (13) The term requester means any person, including an individual, 
partnership, corporation, association, Native American tribe, or other 
public or private organization, other than a Federal agency that 
requests access to records.
    (14) The term review means the process of examining documents 
located in response to a request that is for a commercial use to 
determine whether any portion of any document located is permitted to be 
withheld. It includes the processing of any documents for disclosure--
i.e., doing all that is necessary to excise exempt information and 
otherwise prepare them for release. Review does not include time spent 
resolving general legal or policy issues regarding the application of 
exemptions.
    (15) The term search refers to the process of looking for and 
retrieving records or information responsive to a request. It includes 
page-by-page or line-by-line identification of information within 
records and also includes reasonable efforts to locate and retrieve 
information from records maintained in electronic form or format.
    (16) The term working day means a regular Federal working day 
between the hours of 9:00 a.m. and 5:00 p.m. It does not include 
Saturdays, Sundays, or legal Federal holidays. Any requests received 
after 5:00 p.m. on any given working day will be considered received on 
the next working day.



Sec.  2402.4  Procedure for requesting records.

    (a) Format of requests.(1) In general. Requests for information must 
be made in writing and may be delivered by mail, fax, or electronic 
mail, as specified in Sec.  2402.2(c). All requests must be made in 
English. Requests for information may specify the preferred format 
(including electronic formats) of the response. When a requester does 
not specify the preferred format of the response, OSTP shall produce 
scanned records to be delivered electronically.
    (2) Records in electronic formats. (i) OSTP shall provide responsive 
records in the format requested if the record or records are readily 
reproducible by OSTP in that format. OSTP shall make reasonable efforts 
to maintain its records in formats that are reproducible for the 
purposes of disclosure. For purposes of this paragraph, the term readily 
reproducible means, with respect to electronic format, a record that can 
be downloaded or transferred intact to

[[Page 509]]

an electronic medium using equipment currently in use by the agency 
processing the request. Even though some records may initially be 
readily reproducible, the need to segregate exempt records from 
nonexempt records may cause the releasable material to be not readily 
reproducible.
    (ii) In responding to a request for records, OSTP shall make 
reasonable efforts to search for the records in electronic format, 
except where such efforts would interfere with the operation of the 
agency's automated information system(s). For purposes of this 
paragraph, the term search means to locate, manually or by automated 
means, agency records for the purpose of identifying those records that 
are responsive to a request.
    (iii) Searches for records maintained in electronic format may 
require the application of codes, queries, or other minor forms of 
programming to retrieve the requested records.
    (3) Attachment restrictions. To protect OSTP's computer systems, 
OSTP will not accept files sent as email attachments or as web links. A 
requester may submit a request by postal mail, by fax, or in the body of 
the email text.
    (b) Contents. A request must describe the records sought in 
sufficient detail to enable OSTP personnel to locate the records with a 
reasonable amount of effort. To the extent possible, a requester should 
include specific information that may assist OSTP personnel in 
identifying the requested records, such as the date, title or name, 
author, recipient, and subject matter of the record. In general, a 
requester should include as much detail as possible about the specific 
records or the types of records sought. Before submitting a request, a 
requester may contact the OSTP FOIA Public Liaison to discuss the 
records sought and to receive assistance in describing the records. If, 
after receiving a request, OSTP determines that it does not reasonably 
describe the records sought or that the request will be unduly 
burdensome to process, OSTP shall inform the requester of the additional 
information that is needed or how the request may be modified. A 
Requester attempting to reformulate or modify such a request may discuss 
their requests with OSTP's FOIA Public Liaison.
    (c) Date of receipt. A request that complies with paragraphs (a) and 
(b) of this section is deemed a ``perfected request.'' A perfected 
request is deemed received on the actual date it is received by OSTP. A 
request that does not comply with paragraphs (a) and (b) of this section 
is deemed received when information sufficient to perfect the request is 
actually received by OSTP.
    (d) Contact information. A request must contain contact information, 
such as the requester's phone number, email address, or mailing address, 
to enable OSTP to communicate with the requester about the request and 
provide released records. If OSTP cannot contact the requester, or the 
requester does not respond within 30 calendar days to OSTP's requests 
for clarification, OSTP will administratively close the request.
    (e) Types of records not available. The FOIA does not require OSTP 
to:
    (1) Compile or create records solely for the purpose of satisfying a 
request for records;
    (2) Provide records not yet in existence, even if such records may 
be expected to come into existence at some future time; or
    (3) Restore records destroyed or otherwise disposed of, except that 
OSTP must notify the requester of the destruction or disposal of the 
requested records.



Sec.  2402.5  Responses to requests.

    (a) In general. In determining which records are responsive to a 
request, OSTP will ordinarily include only records in its possession as 
of the date it begins its search for records. If any other date is used, 
OSTP shall inform the requester of that date.
    (b) Authority to grant or deny requests. OSTP shall make initial 
determinations to grant or deny, in whole or in part, a request for 
records.
    (c) Granting of requests. When OSTP determines that any responsive 
records shall be made available, OSTP shall notify the requester in 
writing and provide copies of the requested records in whole or in part. 
Records disclosed in part shall be marked or annotated to show the 
exemption(s) applied to the

[[Page 510]]

withheld information and the amount of information withheld unless doing 
so would harm the interest protected by an applicable exemption. If a 
requested record contains exempted material along with nonexempt 
material, all reasonably segregable material shall be disclosed.
    (d) Adverse determinations. If OSTP makes an adverse determination 
denying a request in any respect, it must notify the requester of that 
adverse determination in writing. Adverse determinations include 
decisions that: The requested record is exempt from disclosure, in whole 
or in part; the request does not reasonably describe the records sought, 
but only if, after discussion with the FOIA Public Liaison, the 
requester refuses to modify the terms of the request; the information 
requested is not a record subject to the FOIA; the requested record does 
not exist, cannot be located, or has been destroyed; or the requested 
record is not readily reproducible in the form or format sought by the 
requester; denials involving fees or fee waiver matters; and denials of 
requests for expedited processing.
    (e) Content of adverse determinations. Any adverse determination 
issued by OSTP must include:
    (1) A brief statement of the reason(s) for the adverse 
determination, including any FOIA exemption applied by the agency in 
denying access to a record unless such inclusion would harm the interest 
protected by an applicable exemption;
    (2) An estimate of the volume of any records or information 
withheld, such as the number of pages or other reasonable form of 
estimation, although such an estimate is not required if the volume is 
otherwise indicated by deletions marked on records that are disclosed in 
part or if providing an estimate would harm an interest protected by an 
applicable exemption;
    (3) A statement that the adverse determination may be appealed under 
Sec.  2402.8 of this subpart and a description of the appeal 
requirements; and
    (4) A statement notifying the requester of the assistance available 
from OSTP's FOIA Public Liaison and the dispute resolution services 
offered by the Office of Government Information Services.
    (f) Consultations, referrals, and coordinations. When OSTP receives 
a request for a record in its possession, it shall determine whether 
another agency of the Federal Government is better able to determine 
whether the record is exempt from disclosure under the FOIA and, if so, 
whether it should be disclosed as a matter of administrative discretion. 
If OSTP determines that it is best able to process the record in 
response to the request, then it shall do so. If OSTP determines that it 
is not best able to process the record, then it shall proceed in one of 
the following ways:
    (1) Consultation. When records originating with OSTP contain 
information of interest to another Federal agency, OSTP should typically 
consult with that Federal agency prior to making a release 
determination.
    (2) Referral. (i) When OSTP believes that a different Federal agency 
is best able to determine whether to disclose the record, OSTP should 
typically refer the responsibility for responding to the request 
regarding that record to that agency. Ordinarily, the agency creating 
the record is presumed to be the agency best able to determine whether 
the record should be disclosed. If OSTP and another Federal agency 
jointly agree that the agency processing the request is in the best 
position to respond regarding the record, then the record may be handled 
as a consultation.
    (ii) Whenever OSTP refers any part of the responsibility for 
responding to a request to another agency, OSTP must document the 
referral, maintain a copy of the record that it refers, and notify the 
requester of the referral.
    (iii) After OSTP refers a record to another Federal agency, the 
agency receiving the referral shall make a disclosure determination and 
respond directly to the requester. The referral of a record is not an 
adverse determination and no appeal rights accrue to the requester 
therefrom.
    (3) Coordination. The standard referral procedure is not appropriate 
where disclosure of the identity of the Federal agency to which a 
referral would

[[Page 511]]

be made could harm an interest protected by an applicable exemption, 
such as an exemption that protects personal privacy or national security 
interests. For example, if a non-law enforcement agency responding to a 
request for records on a living third party locates within its files 
records originating with a law enforcement agency, and if the existence 
of that law enforcement interest in the third party is not publicly 
known, then to disclose that law enforcement interest could cause an 
unwarranted invasion into the personal privacy of the third party. 
Similarly, if an agency locates within its files material originating 
with an Intelligence Community agency, and the involvement of that 
agency in the matter is classified and not publicly acknowledged, then 
to disclose or give attribution to the involvement of that Intelligence 
Community agency could harm national security interests. In such 
instances, in order to avoid harm to an interest protected by an 
applicable exemption, OSTP will coordinate with the agency that created 
the record to seek its views on disclosure of the record. OSTP will then 
notify the requester of the disclosure determination for the record that 
is the subject of the coordination.



Sec.  2402.6  Timing of responses to requests.

    (a) In general. OSTP shall ordinarily respond to requests in order 
of their receipt.
    (b) Initial determinations. OSTP will exercise all reasonable 
efforts to make an initial determination acknowledging and granting, 
partially granting, or denying a request for records within twenty (20) 
working days after receiving a perfected request.
    (c) Extensions of response time in ``unusual circumstances.'' (1) 
The twenty (20)-working day period provided in paragraph (b) of this 
section may be extended if unusual circumstances arise. If an extension 
is necessary, OSTP shall promptly notify the requester of the extension, 
briefly state the reasons for the extension, and estimate when a 
response will be issued. Unusual circumstances warranting extension are:
    (i) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request;
    (ii) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are demanded in 
a single request; or
    (iii) The need for consultation, which shall be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request or among two or more components of the 
agency having substantial subject-matter interest therein.
    (2) After OSTP notifies the requester of the reasons for the delay, 
the requester will have an opportunity to modify the request or arrange 
for an alternative time frame for completion of the request. To assist 
in this process, OSTP shall advise the requester of the availability of 
OSTP's FOIA Public Liaison to aid in the resolution of any disputes 
between the requester and OSTP, and notify the requester of his or her 
right to seek dispute resolution services from the Office of Government 
Information Services.
    (3) If no initial determination is made at the end of the twenty-day 
period provided for in paragraph (b) of this section, including any 
extension provided for in paragraph (c)(1) of this section, the 
requester may appeal the action to the FOIA Appeals Officer.
    (d) Expedited processing of request. (1) A requester may make a 
request for expedited processing at any time.
    (2) When a request for expedited processing is received, OSTP must 
determine whether to grant the request for expedited processing within 
ten (10) calendar days of its receipt. Requests will receive expedited 
processing if one of the following compelling needs is met:
    (i) The requester can establish that failure to receive the records 
quickly could reasonably be expected to pose an imminent threat to the 
life or physical safety of an individual; or
    (ii) The requester is primarily engaged in disseminating information 
and can demonstrate that an urgency to inform the public concerning 
actual or alleged Federal Government activity exists.

[[Page 512]]

    (3) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct, explaining in detail the 
basis for making the request for expedited processing. As a matter of 
administrative discretion, OSTP may waive the formal certification 
requirement.
    (4) Administrative appeals of denials of expedited processing will 
be given expeditious consideration. If the FOIA Appeals Officer upholds 
the denial of expedited processing, that decision is immediately subject 
to judicial review in the appropriate Federal district court.
    (e) Multi-track processing. (1) OSTP may use multi-track processing 
in responding to requests. Multi-track processing means placing simple 
requests that require limited review in one processing track and placing 
more voluminous and complex requests in one or more other processing 
tracks. Requests in each track are processed on a first-in, first-out 
basis.
    (i) Track one--expedited requests. Track one is made up of requests 
that sought and received expedited processing as provided for in 
paragraph (d)(2) of this section.
    (ii) Track two--simple requests. Track two is for requests of simple 
to moderate complexity that do not require consultations with other 
entities and do not involve voluminous records.
    (iii) Track three--complex requests. Track three is for complex 
requests that involve voluminous records, require lengthy or numerous 
consultations, raise unique or novel legal questions, or require 
submitter review under Sec.  2402.7.
    (2) OSTP may provide requesters with requests in slower track(s) the 
opportunity to limit the scope of their requests in order to qualify for 
faster processing within the specified limits of faster track(s). OSTP 
will do so by contacting the requester by letter, telephone, email, or 
facsimile, whichever is more efficient in each case. When providing a 
requester with the opportunity to limit the scope of a request, OSTP 
shall also advise the requester of OSTP's FOIA Public Liaison to aid in 
the resolution of any dispute arising between the requester and OSTP as 
well as the requester's right to seek dispute resolution services from 
the Office of Government Information Services.
    (f) Aggregating requests. OSTP may aggregate requests if it 
reasonably appears that multiple requests, submitted either by a single 
requester or by a group of requesters acting in concert, involve related 
matters and constitute a single request that otherwise would involve 
unusual circumstances. For example, OSTP may aggregate multiple requests 
for similar information filed by a single requester within a short 
period of time.



Sec.  2402.7  Confidential commercial information.

    (a) In general. Business information obtained by OSTP from a 
submitter will be disclosed under the FOIA only under this section.
    (b) Definitions. For purposes of this section:
    (1) Confidential commercial information means records provided to 
the government by a submitter that arguably contain material exempt from 
release under 5 U.S.C. 552(b)(4).
    (2) Submitter means any person or entity from whom OSTP directly or 
indirectly obtains confidential commercial information. The term 
includes corporations; State, local, and tribal governments; 
universities; non-profit organizations; associations; and foreign 
governments.
    (c) Designation of business information. Either at the time of 
submission or at a reasonable time thereafter, a submitter of business 
information will use good-faith efforts to designate, by appropriate 
markings, any portions of its submission that it considers to be 
protected from disclosure under 5 U.S.C. 552(b)(4). These designations 
will expire ten years after the date of submission unless the submitter 
requests, and provides justification for, a longer designation period.
    (d) Notice to submitters. OSTP shall provide a submitter with prompt 
written notice of a FOIA request or administrative appeal that seeks its 
business information in order to give the submitter an opportunity to 
object to disclosure of any specified portion of that information. The 
notice shall either

[[Page 513]]

describe the business information requested or include copies of the 
requested records or record portions containing the information. When 
notification of a voluminous number of submitters is required, 
notification may be made by posting or publishing the notice in a place 
reasonably likely to accomplish notification.
    (e) Where notice is required. Notice shall be given to a submitter 
whenever:
    (1) The information has been designated in good faith by the 
submitter as information considered protected from disclosure under 5 
U.S.C. 552(b)(4); or
    (2) OSTP has reason to believe that the information may be protected 
from disclosure under 5 U.S.C. 552(b)(4).
    (f) Opportunity to object to disclosure. OSTP will allow a submitter 
reasonable time to respond to the notice described in paragraph (d) of 
this section and will specify that time period within the notice. If a 
submitter has any objection to disclosure, the submitter must provide a 
detailed written statement of objections. The statement must specify all 
grounds for withholding any portion of the information under any 
exemption of the FOIA and, in the case of information withheld under 5 
U.S.C. 552(b)(4), the submitter must demonstrate the reasons the 
submitter believes the information is a trade secret or commercial or 
financial information that is privileged or confidential. In the event 
that a submitter fails to adequately respond to the notice within the 
time specified, the submitter will be considered to have no objection to 
disclosure of the information. Information provided by the submitter 
that OSTP does not receive within the time specified shall not be 
considered by OSTP. Information provided by a submitter under this 
paragraph may itself be subject to disclosure under the FOIA.
    (g) Notice of intent to disclose. OSTP shall consider a submitter's 
objections and specific grounds for nondisclosure in deciding whether to 
disclose business information. Whenever OSTP determines that disclosure 
is appropriate over the objection of a submitter, OSTP shall, within a 
reasonable number of days prior to disclosure, provide the submitter 
with written notice of the intent to disclose, which shall include:
    (1) A statement of the reason(s) why each of the submitter's 
objections to disclosure was not sustained;
    (2) A description of the business information to be disclosed; and
    (3) A specified disclosure date, which shall be a reasonable time 
subsequent to the notice.
    (h) Exceptions to notice requirements. The notice requirements of 
paragraphs (d) and (g) of this section shall not apply if:
    (1) OSTP determines that the information should not be disclosed;
    (2) The information has been lawfully published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by statute (other than 
the FOIA) or by a regulation issued in accordance with the requirements 
of Executive Order 12600 of June 23, 1987;
    (4) The designation made by the submitter under paragraph (c) of 
this section appears obviously frivolous. In such a case, OSTP shall, 
within a reasonable time prior to a specified disclosure date, give the 
submitter written notice of any final decision to disclose the 
information, but no opportunity to object will be offered; or
    (5) The information requested was not designated by the submitter as 
exempt from disclosure in accordance with this part, when the submitter 
had an opportunity to do so at the time of submission of the information 
or a reasonable time thereafter, unless OSTP has substantial reason to 
believe that disclosure of the information would result in competitive 
harm.
    (i) Notice of FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of business information, OSTP shall 
promptly notify the submitter.
    (j) Notice to requesters. Whenever OSTP provides a submitter with 
notice and an opportunity to object to disclosure under paragraph (d) of 
this section, OSTP shall also notify the requester(s). Whenever OSTP 
notifies a submitter of its intent to disclose requested information 
under paragraph

[[Page 514]]

(g) of this section, OSTP shall also notify the requester(s). Whenever a 
submitter files a lawsuit seeking to prevent the disclosure of business 
information, OSTP shall notify the requester(s).



Sec.  2402.8  Appeal of denials.

    (a) Right to administrative appeal. A requester has the right to 
appeal to the FOIA Appeals Officer any adverse determination.
    (b) Notice of appeal. (1) Time for appeal. To be considered timely, 
an appeal must be postmarked, or in the case of electronic submissions, 
transmitted no later than ninety (90) calendar days after the date of 
the initial adverse determination or after the time limit for response 
by OSTP has expired. Prior to submitting an appeal, the requester must 
pay in full any outstanding fees associated with the request.
    (2) Form of appeal. An appeal shall be initiated by filing a written 
notice of appeal. The notice shall specify the tracking number assigned 
to the FOIA request by OSTP and be accompanied by copies of the original 
request and adverse determination. To expedite the appellate process and 
give the requester an opportunity to present his or her arguments, the 
notice should contain a brief statement of the reason(s) why the 
requester believes the adverse determination to be in error. Requesters 
may submit appeals by mail or electronically. If sent by regular mail, 
appeals shall be sent to: Chief FOIA Officer, Office of Science and 
Technology Policy, Eisenhower Executive Office Building, 1650 
Pennsylvania Avenue NW, Washington, DC 20504. Appeals sent via 
electronic mail shall be submitted to [email protected]. Updates to 
this contact information will be made on the OSTP website. To facilitate 
handling, the requester should mark both the appeal letter and envelope, 
if submitted by mail, or subject line of the transmission, if submitted 
electronically, with ``Freedom of Information Act Appeal.''
    (c) Decisions on appeals. The FOIA Appeals Officer shall make a 
determination in writing on the appeal under 5 U.S.C. 552(a)(6)(A)(ii) 
within twenty (20) working days after the receipt of the appeal. If the 
denial is wholly or partially upheld, the Chief FOIA Officer shall:
    (1) Notify the requester that judicial review is available pursuant 
to 5 U.S.C. 552(a)(4)(B)-(G); and
    (2) Notify the requester that the Office of Government Information 
Services (OGIS) offers mediation services to resolve disputes between 
FOIA requesters and Federal agencies as a non-exclusive alternative to 
litigation. Contact information for OGIS is: Office of Government 
Information Services, National Archives and Records Administration, 8601 
Adelphi Road-OGIS, College Park, MD 20740, Email: [email protected], 
Telephone: 202-741-5770, Facsimile: 202-741-5769, Toll-free: 1-877-684-
6448.
    (d) Dispute resolution services. Dispute resolution is a voluntary 
process. If OSTP agrees to participate in the dispute resolution 
services provided by the Office of Government Information Services, it 
will actively engage as a partner to the process in an attempt to 
resolve the dispute.
    (e) When appeal is required. Before seeking judicial review of 
OSTP's adverse determination in Federal district court, a requester 
generally must first submit a timely administrative appeal.



Sec.  2402.9  Fees.

    (a) Fees generally required. OSTP shall use the most efficient and 
least costly methods to comply with requests for documents made under 
the FOIA. OSTP shall charge fees in accordance with paragraph (b) of 
this section unless fees are waived or reduced in accordance with Sec.  
2402.10.
    (b) Calculation of fees. In general, fees for searching, reviewing, 
and duplication will be based on the direct costs of these services, 
including the average hourly salary (basic pay plus 16% for benefits) of 
the personnel conducting the search, reviewing the records for 
exemption, or duplicating the records. Charges for time less than a full 
hour will be in increments of quarter hours.
    (1) Search fees. Search fees may be charged even if responsive 
documents are not located or are located but withheld on the basis of an 
exemption.

[[Page 515]]

However, search fees shall not be charged or shall be limited as 
follows:
    (i) Educational, scientific, or news media requests. No search fee 
shall be charged if the request is not sought for a commercial use and 
is made by an educational or non-commercial scientific institution, 
whose purpose is scholarly or scientific research, or by a 
representative of the news media.
    (ii) Other non-commercial requests. No search fee shall be charged 
for the first two hours of searching if the request is not for a 
commercial use and is submitted by an entity that is not an educational 
or scientific institution, whose purpose is scholarly or scientific 
research, or a representative of the news media.
    (iii) Requests for records about oneself. No search fee shall be 
charged to search for records performed under the terms of the Privacy 
Act, 5 U.S.C. 552a(f)(5).
    (2) Review fees. Review fees shall be assessed only with respect to 
those requesters who seek records for a commercial use. A review fee 
shall be charged for the initial examination of documents located in 
response to a request to determine whether the documents may be withheld 
from disclosure and for the redaction of document portions exempt from 
disclosure. Records or portions of records withheld under an exemption 
that is subsequently determined not to apply may be reviewed again to 
determine the applicability of other exemptions not previously 
considered. The costs for such subsequent review are also assessable.
    (3) Duplication fees. Records will be photocopied at a rate of ten 
cents ($0.10) per page. For other methods of reproduction or 
duplication, OSTP will charge the actual direct costs of producing the 
document(s). Duplication fees shall not be charged for the first 100 
pages of copies unless the copies are requested for a commercial use.
    (c) Aggregation of requests. When OSTP determines that a requester, 
or a group of requesters acting in concert, is attempting to evade the 
assessment of fees by submitting multiple requests in place of a single, 
more complex request, OSTP may aggregate any such requests and assess 
fees accordingly.
    (d) Fees likely to exceed $25. If total fee charges are likely to 
exceed $25, OSTP shall notify the requester of the estimated amount to 
be charged. The notification shall offer the requester an opportunity to 
confer with the FOIA Public Liaison to reformulate the request to meet 
the requester's needs at a lower cost. OSTP may administratively close a 
submitted FOIA request if the requester does not respond in writing 
within thirty (30) calendar days after the date on which OSTP notifies 
the requester of the fee estimate.
    (e) Advance payments. Fees may be paid upon provision of the 
requested records, except that payment may be required prior to that 
time if the requester has previously failed to pay fees or if OSTP 
determines that the total fees will exceed $250. When payment is 
required in advance of the processing of a request, the time limits 
prescribed in Sec.  2402.6 shall not be deemed to begin until OSTP has 
received payment of the assessed fees. If the requester has previously 
failed to pay fees or charges are likely to exceed $250, OSTP shall 
notify the requester of the estimated cost and:
    (1) Obtain satisfactory assurance from the requester, in writing, of 
full payment; or
    (2) OSTP may require the requester to pay the full amount of any 
fees owed or make an advance payment of the full amount of OSTP's 
estimated charges.
    (3) If OSTP does not receive an adequate response, assurance, or 
advance payment within thirty (30) calendar days of a fee determination 
or notification issued under the authority of this section, OSTP will 
administratively close the corresponding request.
    (f) Other charges. OSTP will recover the full costs of providing 
services, such as those enumerated below, when it elects to provide 
them:
    (1) Certifying that records are true copies; and
    (2) Sending records by special methods, such as express mail.
    (g) Remittances. Remittances shall be made either via personal check 
or bank draft drawn on a bank in the United States, or by postal money 
order. Remittances shall be made payable to the order of the Treasury of 
the United

[[Page 516]]

States and mailed to the Chief FOIA Officer, Office of Science and 
Technology Policy, Eisenhower Executive Office Building, 1650 
Pennsylvania Avenue NW, Washington, DC 20504. Updates to this contact 
information will be made on the OSTP website.
    (h) Receipts and refunds. OSTP will provide a receipt for fees paid 
upon request. OSTP will not refund fees paid for services actually 
rendered.



Sec.  2402.10  Waiver of fees.

    (a) In general. OSTP shall waive part or all of the fees assessed 
under Sec.  2402.9 if, based upon information provided by a requester or 
otherwise made known to OSTP, the disclosure of the requested 
information is in the public interest. Disclosure is in the public 
interest if it is likely to contribute significantly to public 
understanding of government operations or activities and is not 
primarily for commercial purposes. Requests for a waiver or reduction of 
fees shall be considered on a case-by-case basis. To determine whether a 
fee waiver requirement is met, OSTP shall consider the following 
factors:
    (1) Disclosure of the requested information would shed light on the 
operations or activities of the Federal Government. The subject of the 
request must concern identifiable operations or activities of the 
Federal Government with a connection that is direct and clear, not 
remote or attenuated.
    (2) Disclosure of the requested information is likely to contribute 
significantly to public understanding of those operations or activities. 
This factor is satisfied when the following criteria are met:
    (i) Disclosure of the requested records must be meaningfully 
informative about government operations or activities. The disclosure of 
information already in the public domain, in either the same or a 
substantially similar form, would not be meaningfully informative if 
nothing new would be added to the public's understanding.
    (ii) The disclosure must contribute to the understanding of a 
reasonably broad audience of persons interested in the subject, as 
opposed to the individual understanding of the requester. A requester's 
expertise in the subject area as well as the requester's ability and 
intention to effectively convey information to the public must be 
considered. OSTP will presume that a representative of the news media 
will satisfy this consideration.
    (3) The disclosure must not be primarily in the commercial interest 
of the requester. To determine whether disclosure of the requested 
information is primarily in the commercial interest of the requester, 
OSTP will consider the following criteria:
    (i) OSTP will identify whether the requester has any commercial 
interest that would be furthered by the requested disclosure. A 
commercial interest includes any commercial, trade, or profit interest. 
Requesters are encouraged to provide explanatory information regarding 
this consideration.
    (ii) If there is an identified commercial interest, OSTP will 
determine whether that is the primary interest furthered by the request. 
OSTP will ordinarily presume that when a news media requester has 
satisfied the conditions in paragraphs (a)(1) and (2) of this section, 
the request is not primarily in the commercial interest of the 
requester. Data brokers or others who merely compile and market 
government information for direct economic return will not receive the 
benefit of this presumption.
    (b) Timing of fee waivers. A request for a waiver or reduction of 
fees should be made when a request for records is first submitted to the 
agency and should address the criteria referenced in paragraph (a) of 
this section. A requester may submit a fee waiver request at a later 
time so long as the underlying record request is pending or on 
administrative appeal. When a requester who has committed to pay fees 
subsequently asks for a waiver of those fees and that waiver is denied, 
the requester must pay any costs incurred up to the date of the fee 
waiver request was received.
    (c) Clarification. Where OSTP has reasonable cause to doubt the use 
to which a requester will put the records sought, or where that use is 
not clear from the request itself, OSTP may seek clarification from the 
requester before assigning the request to a specific category for fee 
assessment purposes.

[[Page 517]]

    (d) Restrictions on charging fees. Except as described in paragraphs 
(c)(1) through (3) of this section, if OSTP fails to comply with the 
FOIA's time limits for responding to a request, it may not charge search 
fees. In addition, subject to the exceptions set forth in paragraphs 
(c)(1) through (3) of this section, if OSTP does not comply with the 
FOIA's time limits for responding to a request, it may not charge 
duplication fees when records are not sought for a commercial use and 
the request is made by an educational institution, non-commercial 
scientific institution, or representative of the news media.
    (1) If OSTP determines that unusual circumstances, as defined by the 
FOIA, apply and provides timely written notice to the requester in 
accordance with the FOIA, then a failure to comply with the statutory 
time limit shall be excused for an additional ten (10) days.
    (2) If OSTP determines that unusual circumstances, as defined by the 
FOIA, apply and more than 5,000 pages are necessary to respond to the 
request, then OSTP may charge search fees and duplication fees, where 
applicable, if the following steps are taken. OSTP must:
    (i) Provide timely written notice of unusual circumstances to the 
requester in accordance with the FOIA; and
    (ii) Discuss with the requester via postal mail, email, or telephone 
(or made not less than three good-faith attempts to do so) how the 
requester could effectively limit the scope of the request in accordance 
with 5 U.S.C. 552(a)(6)(B)(ii).
    (3) If a court determines that exceptional circumstances exist, as 
defined by the FOIA, then a failure to comply with the statutory time 
limits shall be excused for the length of time provided by the court 
order.



Sec.  2402.11  Maintenance of statistics.

    (a) OSTP shall maintain records sufficient to allow accurate 
reporting of FOIA processing statistics, as required under 5 U.S.C. 
552(e) and all guidelines for the preparation of annual FOIA reports 
issued by the Department of Justice.
    (b) OSTP shall annually, on or before February 1 of each year, 
prepare and submit to the Attorney General an annual report compiling 
the statistics maintained in accordance with paragraph (a) of this 
section for the previous fiscal year. A copy of the report will be 
available for public inspection on the OSTP website.



Sec.  2402.12  Disclaimer.

    Nothing in this part shall be construed to entitle any person, as a 
right, to any service or to the disclosure of any record to which such 
person is not entitled under the FOIA.

                       PARTS 2403	2499 [RESERVED]

[[Page 519]]



        CHAPTER XXVII--OFFICE FOR MICRONESIAN STATUS NEGOTIATIONS




  --------------------------------------------------------------------
Part                                                                Page
2700            Security information regulations............         521
2701-2799

 [Reserved]

[[Page 521]]



PART 2700_SECURITY INFORMATION REGULATIONS--Table of Contents



                         Subpart A_Introduction

Sec.
2700.1 References.
2700.2 Purpose.
2700.3 Applicability.

                    Subpart B_Original Classification

2700.11 Basic policy.
2700.12 Criteria for and level of original classification.
2700.13 Duration of original classification.
2700.14 Challenges to classification.

                   Subpart C_Derivative Classification

2700.21 Definition and application.
2700.22 Classification guides.

               Subpart D_Declassification and Downgrading

2700.31 Declassification authority.
2700.32 Declassification general.
2700.33 Mandatory review for declassification.
2700.34 Downgrading authority.

                         Subpart E_Safeguarding

2700.41 General restrictions on access.
2700.42 Responsibility for safeguarding classified information.
2700.43 Reproduction controls.
2700.44 Administrative sanctions.

                   Subpart F_Implementation and Review

2700.51 Information Security Oversight Committee.
2700.52 Classified Review Committee.

    Authority: E.O. 12065, National Security Regulation of June 28, 1978 
(43 FR 28949, July 31, 1978); Information Security Oversight Office 
Directive No. 1 (43 FR 46280, October 5, 1978).

    Source: 44 FR 51574, Sept. 4, 1979, unless otherwise noted. 
Correctly designated at 44 FR 51990, Sept. 6, 1979.



                         Subpart A_Introduction



Sec.  2700.1  References.

    (a) Executive Order 12065, ``National Security Information,'' June 
28, 1978, (hereinafter E.O. 12065).
    (b) Information Security Oversight Office, Directive No. 1, 
``National Security Information,'' October 2, 1978, (hereinafter ISOO 
Directive No. 1).



Sec.  2700.2  Purpose.

    The purpose of this Regulation is to ensure, consistent with the 
authorities listed in Sec.  2700.1, that national security information 
originated and/or held by the Office for Micronesian Status Negotiations 
(OMSN), which includes the Status Liaison Office, Saipan, Northern 
Mariana Islands (SLNO), is protected. To ensure that such information is 
protected, but only to the extent and for such period as is necessary, 
this regulation identifies the information to be protected and 
prescribes certain classification, declassification and safeguarding 
procedures to be followed.



Sec.  2700.3  Applicability.

    This Regulation supplements E.O. 12065 within OMSN with regard to 
National Security Information. In consonance with the authorities listed 
in Sec.  2700.1, it establishes general policies and certain procedures 
for the classification, declassification and safeguarding of information 
which is owned by, is produced for or by, or is under the control of 
OMSN.



                    Subpart B_Original Classification



Sec.  2700.11  Basic policy.

    (a) General. It is the policy of OMSN to make available to the 
public as much information concerning its activities as is possible, 
consistent with its responsibility to protect the national security.
    (b) Safeguarding national security information. Within the Federal 
Government there is some information which because it bears directly on 
the effectiveness of our national defense and the conduct of our foreign 
relations, must be subject to some constraints for the security of our 
nation.
    (c) Balancing test. To balance the public's interest in access to 
government information with the need to protect certain national 
security information from disclosure, these regulations indentify the 
information to be protected, prescribe classification, downgrading, 
declassification, and safeguarding procedures to be followed, and 
establish education, monitoring and

[[Page 522]]

sanctioning systems to insure their effectiveness. When questions arise 
as whether the need to protect information may be outweighed by the 
public interest in disclosure of the information, they shall be referred 
to OMSN pursuant to Sec.  2700.32(b) for a determination whether the 
public interest in disclosure outweighs the damage to national security 
that might reasonably be expected from disclosure.



Sec.  2700.12  Criteria for and level of original classification.

    (a) General Policy. Documents or other material are to be classified 
only when protecting the national security requires that the information 
they contain be withheld from public disclosure. Information may not be 
classified to conceal violations of law, inefficiency, or administrative 
error, or to prevent embarrassment to a person, organization or agency, 
or to restrain competition. No material may be classified to limit 
dissemination, or to prevent or delay public release, unless its 
classification is consistent with E.O. 12065.
    (b) Criteria. To be eligible for classification, information must 
meet two requirements:
    (1) First, it must deal with one of the criteria set forth in 
section 1-301 of E.O. 12065;
    (2) Second, the President's Personal Representative for Micronesian 
Status Negotiations or his delegate who has original classification 
authority must determine that unauthorized disclosure of the information 
or material can reasonably be expected to cause at least identifiable 
harm to the national security.
    (c) Classification designations. Only three designations of 
classification are authorized--``Top Secret,'' ``Secret,'' 
``Confidential.'' No other classification designation is authorized or 
shall have force.
    (d) Unnecessary classification, and classification at a level higher 
than is necessary, shall be avoided. If there is reasonable doubt as to 
which designation in section 1-1 of E.O. 12065 is appropriate, or 
whether information should be classified at all, the less restrictive 
designation should be used, or the information should not be classified.



Sec.  2700.13  Duration of original classification.

    (a) Information or material which is classified after December 1, 
1978, shall be marked at the time of classification with the date or 
event for declassification or a date for review for declassification. 
This date or event shall be as early as national security permits and 
shall be no more than six years after original classification except as 
provided in paragraph (b) of this section.
    (b) Only the President's Personal Representative for Micronesian 
Status Negotiations may authorize a classification period exceeding six 
years. Originally classified information that is so designated shall be 
identified with the authority and reason for extension. This authority 
shall be used sparingly. In those cases where extension of 
classification is warranted, a declassification date or event, or a date 
for review shall be set. This date or event shall be early as national 
security permits and shall be no more than twenty years after original 
classification except that for foreign information the date or event may 
be up to thirty years after original classification.



Sec.  2700.14  Challenges to classification.

    If holders of classified information believe the information is 
improperly or unnecessarily classified, or that original classification 
has been extended for too long a period, they should discuss the matter 
with their immediate superiors or the classifier of the information. If 
these discussions do not satisfy the concerns of the challenger, the 
matter should be brough to the attention of the chairman of the OMSN 
Information Security Oversight Committee, established pursuant to Sec.  
2700.51. Action on such challenges shall be taken within 30 days from 
date of receipt and the challenger shall be notified of the results. 
When requested, anonymity of the challenger shall be preserved.

[[Page 523]]



                   Subpart C_Derivative Classification



Sec.  2700.21  Definition and application.

    Derivative classification is the act of assigning a level of 
classification to information which is determined to be the same in 
substance as information which is currently classified. Thus, derivative 
classification may be accomplished by any person cleared for access to 
that level of information, regardless of whether the person has original 
classification authority at that level.



Sec.  2700.22  Classification guides.

    OMSN shall issue classification guides pursuant to section 2-2 of 
E.O. 12065. These guides, which shall be used to direct derivative 
classification, shall identify the information to be protected in 
specific and uniform terms so that the information involved can be 
readily identified. The classification guides shall be approved in 
writing by the President's Personal Representative for Micronesian 
Status Negotiations. Such approval constitutes an original 
classification decision. The classification guides shall be kept current 
and shall be reviewed at least every two years.



               Subpart D_Declassification and Downgrading



Sec.  2700.31  Declassification authority.

    The Director, OMSN, is authorized to declassify OMSN originated 
documents after consultation with the appropriate OMSN staff members.



Sec.  2700.32  Declassification general.

    Declassification of classified information shall be given emphasis 
comparable to that accorded to classification. The determination to 
declassify information shall not be made on the basis of the level of 
classification assigned, but on the loss of the sensitivity of the 
information with the passage of time, and with due regard for the public 
interest in access to official information. At the time of review, any 
determination not to declassify shall be based on a determination that 
despite the passage of time since classification, release of information 
reasonably could still be expected to cause at least identifiable damage 
to the national security.



Sec.  2700.33  Mandatory review for declassification.

    (a) General. All information classified under the Order or prior 
orders, except as provided for in section 3-503 of E.O. 12065 shall be 
subject to review for declassification upon request of a member of the 
public, a government employee, or an agency.
    (b) Receipt. (1) Requests for mandatory review for declassification 
under section 3-501 of E.O. 12065 must be in writing and should be 
addressed to: Office for Micronesian Status Negotiations, ATTN: Security 
Officer (Mandatory Review Request), Room 3356, Department of the 
Interior, Washington, DC 20240.
    (2) The requestor shall be informed of the date of receipt of the 
request at OMSN. This date will be the basis for the time limits 
specified in paragraph (c) of this section.
    (3) If the request does not reasonably describe the information 
sought, the requestor shall be notified that, unless additional 
information is provided or the request is made more specific, no further 
action will be taken.
    (4) Subject to paragraph (b)(7) of this section, if the information 
requested is in the custody of and under the exclusive declassification 
authority of OMSN, OMSN shall determine whether the information or any 
reasonably segregable portion of it no longer requires protection. If 
so, OMSN shall promptly make such information available to the 
requester, unless withholding it is otherwise warranted under applicable 
law. If the information may not be released, in whole or in part, OMSN 
shall give the requester a brief statement of the reasons, a notice of 
the right to appeal the determination to the agency review committee, 
and notice that such an appeal must be filed with the review committee 
within 60 days.
    (5) When OMSN receives a request for information in a document which 
is in its custody, but which was classified by

[[Page 524]]

another agency, it shall refer the request to the appropriate agency for 
review, together with a copy of the document containing the information 
requested, where practicable. OMSN shall also notify the requester of 
the referral, unless the association of the reviewing agency with the 
information requires protection. The reviewing agency shall review a 
document in coordination with any other agency involved with the 
classification or having a direct interest in the subject matter. The 
reviewing agency shall respond directly to the requester in accordance 
with the pertinent procedures described above and, if requested, shall 
notify OMSN of its determination.
    (6) Requests for declassification of classified documents originated 
by OMSN or another agency but in the possession and control of the 
Administrator of General Services, pursuant to 44 U.S.C 2107 or 2107 
Note, shall be referred by the Archivist to the agency of origin for 
processing and for direct response to the requests. The Archivist will 
inform requesters of such referrals.
    (7) In the case of requests for documents containing foreign 
government information, OMSN, if it is also the agency which initially 
received the foreign government information, shall determine whether the 
foreign government information in the document may be declassified and 
released in accordance with agency policies or guidelines, consulting 
with other agencies of subject matter interest as necessary. If OMSN is 
not the agency which received the foreign government information, it 
shall refer the request to the latter agency, which shall take action on 
the request. In those cases where available agency policies or 
guidelines do not apply, consultation with the foreign originator 
through appropriate channels may be advisable prior to final action on 
the request.
    (8) If any agency makes a request on behalf of a member of the 
public, the request shall be considered as a request by that member of 
the public and handled accordingly.
    (c) Review. (1) Within sixty days from its receipt, OMSN shall 
inform the requestor of the determination of the mandatory review for 
declassification.
    (2) If the determination is to withhold some or all of the material 
requested, the requestor may appeal the determination. The requestor 
shall be informed that an appeal must be made in writing within sixty 
days of receipt of the denial and should be addressed to the chairperson 
of the OMSN Classification Review Committee established pursuant to 
Sec.  2700.52.
    (3) No agency in possession of a classified document may, in 
response to a request for the document made under the Freedom of 
Information Act (5 U.S.C. 552) or under section 3-5 of E.O. 12065, 
refuse to confirm the existence or non-existence of the document, unless 
the fact of its existence or non-existence would itself be classifiable.
    (4) The requestor shall be informed of the appellate determination 
within thirty days of receipt of the appeal.
    (5) In considering requests for mandatory review, OMSN may decline 
to review again any request for material which has been recently 
reviewed and denied, except insofar as the request constitutes an appeal 
under paragraph (f) of this section.
    (d) Processing of Requests. The processing of requests by OMSN shall 
be as follows:
    (1) The Security Officer or his designee shall record the request, 
and arrange for search and review of the documents. The documents will 
be reviewed for declassification in accordance with these regulations or 
any applicable guidelines. If the documents remain classified and are 
not to be released, in whole or in part, the reviewing office will also 
prepare a letter informing the requester as described in paragraph 
(b)(4) of this section. The letter to the requester shall be signed by 
the President's Personal Representative for Micronesian Status 
Negotiations, his Deputy or the Status Liaison Officer. The Security 
Officer or his designee shall record disposition of the case and forward 
the letter of denial to the requester.
    (2) If any request requires obtaining the views of other agencies, 
the receiving office shall arrange coordination of review with such 
other agencies.
    (3) When all documents involved in the request are declassified and 
released, the receiving office will send a

[[Page 525]]

release statement, to the requester, and shall inform the requester of 
any fees due before releasing documents.
    (4) In the case of documents of agency origin requested by a 
Presidential Library on behalf of a member of the public, if there is a 
partial denial, the letter will advise the requester as described in 
paragraph (b)(4) of this section, but the requester will be referred to 
the Archivist for copies of the released document, with portions 
excised. The receiving office will transmit such documents, with 
portions marked to be excised, to Archives which will transmit them with 
portions excised to the Presidential Library for its records and for use 
in the case of further similar requests.
    (5) The Security Officer or his designee shall also coordinate 
requests from other agencies seeking the views of OMSN as to 
declassification of documents originated by such other agencies but 
involving information of primary subject matter interest to OMSN. The 
Security Officer or his designee will transmit the documents to the 
reviewing individual for a determination as to declassification and will 
coordinate the reply of OMSN to the requesting agency.
    (e) Appeals. (1) The President's Personal Representative for 
Micronesian Status Negotiations shall receive appeals for denial of 
documents by OMSN. Such appeals shall be addressed to President's 
Personal Representative for Micronesian Status Negotiations, Suite 3356, 
Interior Department Building, Washington, DC 20240. The appeal must be 
received in OMSN within 60 days of the date of the original denial 
letter or the final release of documents, whichever is later.
    (2) Appeals shall be decided within 30 days of their receipt.
    (f) Fees. (1) Fees for the location and reproduction of information 
which is the subject of a mandatory review request shall be assessed 
according to the following schedule:
    (i) Search for records: $5.00 per hour when the search is conducted 
by a clerical employee; $8.00 per hour when the search is conducted by a 
professional employee. No fee shall be assessed for searches of less 
than one hour.
    (ii) Reproduction of documents: Documents will be reproduced at a 
rate of $.25 per page for all copying of four pages or more. No fee 
shall be assessed for reproducing documents which are three pages or 
less, or for the first three pages of longer documents.
    (2) Where it is anticipated that the fees chargeable under this 
section will amount to more than $25.00, and the requestor has not 
indicated in advance a willingness to pay fees as high as are 
anticipated, the requestor shall be promptly notified of the amount of 
the anticipated fee or such portion thereof as can readily be estimated. 
In instances where the estimated fees will greatly exceed $25.00, an 
advance deposit may be required. Dispatch of such a notice or request 
shall suspend the running of the period for response by OMSN until a 
reply is received from the requestor.
    (3) Remittance shall be in the form either of a personal check or 
bank draft on a bank in the United States, or a postal money order. 
Remittance shall be made payable to Treasurer of the United States and 
mailed to the address noted in paragraph (b)(1) of this section.
    (4) A receipt for fees paid will be provided only upon request. 
Refund of fees for services actually rendered will not be made.
    (5) OMSN may waive all or part of any fee provided for in this 
section when it is deemed to be in either the interest of OMSN or of the 
general public.



Sec.  2700.34  Downgrading authority.

    The Security Officer, OMSN is authorized to downgrade OMSN 
originated documents after consultation with the staff member who is 
charged with functional responsibility for the subject matter under 
question.



                         Subpart E_Safeguarding



Sec.  2700.41  General restrictions on access.

    (a) Determination of need-to-know. Classified information shall be 
made available to a person only when the possessor of the classified 
information establishes in each instance, except as provided in section 
4-3 of E.O. 12065,

[[Page 526]]

that access is essential to the accomplishment of official Government 
duties or contractual obligations.
    (b) Determination of Trustworthiness. A person is eligible for 
access to classified information only after a showing of trustworthiness 
as determined by the President's Personal Representative for Micronesian 
Status Negotiations based upon appropriate investigations in accordance 
with applicable standards and criteria.



Sec.  2700.42  Responsibility for safeguarding classified information.

    (a) General Policy. The specific responsibility for the maintenance 
of the security of classified information rest with each person having 
knowledge or physical custody therof, no matter how obtained. The 
ultimate responsibility for safeguarding classified information rests on 
each supervisor to the same degree that supervisor is charged with 
functional responsibility.
    (b) Security and Top Secret Control Officers. The Director, OMSN, 
and the Status Liaison Officer, Saipan, are assigned specific security 
responsibilities as Security Officer and Top Secret Control Officer.
    (c) Handling. All documents bearing the terms ``Top Secret,'' 
``Secret'' and ``Confidential'' shall be delivered to the Top Secret 
Control Officer or his designee immediately upon receipt. All potential 
recipients of such documents shall be advised of the names of such 
designees and updated information as necessary. In the event that the 
Top Secret Control Officer or his designees are not available to receive 
such documents, they shall be turned over to the office supervisor and 
secured, unopened, in a designated combination safe located in OMSN or 
SLNO, as appropriate until the Top Secret Control Officer is available. 
All materials not immediately deliverable to the Top Secret Control 
Officer shall be delivered at the earliest opportunity. Under no 
circumstances shall classified material that cannot be delivered to the 
Top Secret Control Officer be stored other than in the designated safe.
    (d) Storage. All classified documents shall be stored in the 
designated combination safe or safes located in OMSN or SLNO as 
appropriate. The combination shall be changed as required by ISOO 
Directive No. 1, section IV F (5)(a). The combinations shall be known 
only to the Security Officer and his designees with the appropriate 
security clearance.
    (e) Security Education Program. The Security Officer shall establish 
a program of briefings to familiarize personnel with the provisions of 
E.O. 12065 and implementing directives. Such briefings shall be held 
once per year, or more frequently. Before any new or newly assigned 
employee enters on duty, he shall be given instruction in sufficient 
detail in security procedures and practices to inform him of his 
responsibilities arising from his access to classified data.
    (f) Access by Historical Researchers and Former Presidential 
Appointees. In keeping with provisions 4-301 and 4-302 of E.O. 12065, 
the President's Personal Representative for Micronesian Status 
Negotiations shall designate appropriate officials to determine, prior 
to granting access to classified information, the propriety of such 
action in the interest of national security and assurance of the 
recipient's trustworthiness and need-to-know.



Sec.  2700.43  Reproduction controls.

    OMSN and SLNO shall maintain records to show the number and 
distribution of all OMSN originated classified documents. Reproduction 
of classified material shall take place only in accordance with section 
4-4 of E.O. 12065 and any limitations imposed by the originator. Should 
copies be made, they are subject to the same controls as the original 
document. Records showing the number of distribution of copies shall be 
maintained by the Office Supervisor and the log stored with the original 
documents. These measures shall not restrict reproduction for the 
purposes of mandatory review.



Sec.  2700.44  Administrative sanctions.

    Officers and employees of the United States Government assigned to 
OMSN shall be subject to appropriate administrative sanctions if they 
knowingly and willingly commit a violation under section 5-5 of E.O. 
12065. These sanctions may include reprimand, suspension without pay, 
removal, termination

[[Page 527]]

of classification authority, or other sanction in accordance with 
applicable law or the applicable regulations of the agency from which 
they are assigned to OMSN.



                   Subpart F_Implementation and Review



Sec.  2700.51  Information Security Oversight Committee.

    The OMSN Information Security Oversight Committee shall be chaired 
by the Security Officer, OMSN. The Committee shall be responsible for 
acting on all suggestions and complaints concerning the administration 
of the OMSN information security program. The chairperson shall also be 
responsible for conducting an active oversight program to ensure 
effective implementation of E.O. 12065.



Sec.  2700.52  Classified Review Committee.

    The OMSN Classification Review Committee shall be chaired by the 
President's Personal Representative for Micronesian Status Negotiations. 
The Committee shall decide appeals from denials of declassification 
requests submitted pursuant to section 3-5 of E.O. 12065. The Committee 
shall consist of the President's Personal Representative, Department of 
Defense/Legal Advisor and Political/Economic Advisor.

                       PARTS 2701	2799 [RESERVED]

[[Page 529]]



    CHAPTER XXVIII--OFFICE OF THE VICE PRESIDENT OF THE UNITED STATES




  --------------------------------------------------------------------
Part                                                                Page
2800            Security procedures.........................         531
2801-2899

 [Reserved]

[[Page 531]]



PART 2800_SECURITY PROCEDURES--Table of Contents



Sec.
2800.1 Purpose.
2800.2 Guiding directives.
2800.3 Policy.
2800.4 General information.
2800.5 Policies.
2800.6 Delegation of classification and declassification authority.
2800.7 Designation of chairperson for Ad Hoc Committees.

Attachment 1 to Part 2800--Employment Agreement & Indoctrination 
          Statement
Attachment 2 to Part 2800--Security Termination Statement
Attachment 3 to Part 2800--Sample

    Authority: E.O. 12065, 43 FR 28949, 3 CFR, 1978 Comp., p. 190; 
(Information Security Oversight Office, Directive No. 1, 43 FR 46280, 32 
CFR ch. II.

    Source: 44 FR 66591, Nov. 20, 1979, unless otherwise noted.



Sec.  2800.1  Purpose.

    To establish procedures and provide guidance for the security of 
classified information and material within the Office of the Vice 
President.



Sec.  2800.2  Guiding directives.

    (a) Executive Order 12065, June 28, 1978, Subject: National Security 
Information.
    (b) Information Security Oversight Office, Directive No. 1, October 
2, 1978, Subject: National Security Information.



Sec.  2800.3  Policy.

    The classification, declassification, safeguarding and handling of 
classified information within the Office of the Vice President will 
comply with the letter and spirit of those directives listed in Sec.  
2800.2. All personnel of the Office of the Vice President are 
responsible individually for complying with the provisions of these 
regulations are in all respects. The provisions of these regulations 
applicable to all personnel assigned or detailed to the Office of the 
Vice President.



Sec.  2800.4  General information.

    (a) Staff Security Officer/Top Secret Control Officer. A Vice 
Presidential Staff Security Officer and Assistant Staff Security Officer 
will be assigned to perform the duties as outlined in these regulations. 
They will normally be on the staff of the Assistant to the Vice 
President for National Security Affairs. The Staff Security Officer and 
Assistant Staff Security Officer will serve as Top Secret Control 
Officer and Assistant Top Secret Control Officer and custodians of 
classified material for the Office of the Vice President respectively, 
and will be responsible for the overall supervision of the Top Secret 
Control program. They will maintain positive control over the movement 
of all Top Secret material under their jurisdiction.
    (b) Custodian, Office of the Assistant to the Vice President for 
Congressional Relations. The Assistant to the Vice President for 
Congressional Relations, Office of the President of the Senate, will be 
designated as Custodian of classified material for that office. He will 
be responsible for compliance with the instructions contained herein. In 
this capacity, he will be charged with safeguarding classified material 
necessary to the operation of the office.
    (c) National Security Classifications. Classifications of National 
Security Information are defined in Executive Order 12065, sections 1-
102 through 1-104.
    (d) Prohibited Markings. (1) The caveats ``FOR OFFICIAL USE ONLY'' 
and ``ADMINISTRATIVELY RESTRICTED'' are used within the Office of the 
Vice President to designate certain unclassified information which 
requires control. These caveats will under no circumstances be applied 
to information which qualifies as classified information. Further, 
neither they nor other terms will be used in conjunction with the 
prescribed security classifications of CONFIDENTIAL, SECRET and TOP 
SECRET.
    (2) Unclassified information bearing either of the foregoing 
administrative designations cannot be protected from release under the 
national security exemption of the Freedom of Information Act (although 
other exemptions may be available).
    (e) Security Clearances. No person shall be given access to 
classified information or material unless a favorable background 
investigation has been

[[Page 532]]

completed determining that the individual is trustworthy and that access 
is necessary for the performance of official duties.
    (1) Security Clearance Procedures. (i) The Counsel to the Vice 
President will:
    (A) Be responsible for the processing of full field investigations 
for personnel assigned to the Vice President's staff. Department of 
Defense detailees are processed by the Defense Investigative Service.
    (B) Inform the Staff Security Office of individuals whose full field 
investigations have been satisfactorily completed and approved and of 
any subsequent changes.
    (C) Notify the Staff Security Office as soon as he/she is aware that 
a staff member is planning to terminate his/her employment.
    (ii) The Staff Security Office will provide newly cleared persons 
with a security orientation briefing covering policy and procedures for 
handling classified information and material. After the briefing 
individuals will sign a Statement of Understanding of Security 
Procedures (Attachment 1). This statement will be kept on file by the 
Staff Security Office.
    (iii) There is no such thing as an ``Interim Security Clearance'' 
for persons employed by or detailed to the Office of the Vice President. 
Under no circumstances will uncleared persons be given access to 
classified material. Access to classified material will be denied until 
the individual has had a satisfactorily completed background 
investigation, has received the security orientation briefing and signed 
the Statement of Understanding of Security Procedures.
    (iv) The Staff Security Office, as part of an individual's departure 
debriefing, will remind them of their continuing responsibilities to 
protect classified information to which they have had access during the 
performance of their official duties. After being debriefed, the 
individual will sign a Security Termination Statement acknowledging his 
responsibilities (Attachment 2).
    (2) Satisfactory completion of a background investigation does not 
in itself grant an individual access to classified information. 
Individual clearances for access to classified information or material 
will be controlled by the Staff Security Office and certified in writing 
on an individual basis.
    (f) Access to Classified Material. Each member of the staff who has 
custody or possession of classified information is responsible for 
providing the required degree of protection from unauthorized disclosure 
at all times.
    (1) Classified information and material will only be disclosed to an 
individual after it has been determined that the individual possesses 
the required clearance and has a valid ``need to know.'' Persons 
releasing the information shall be responsible in every case for 
determining the recipient's eligibility for access.
    (2) Access to Sensitive Compartmented Intelligence Information will 
be controlled by the Assistant to the Vice President for National 
Security Affairs.
    (g) Custody and safekeeping of Classified Material. (1) Classified 
material addressed to the Office of the Vice President will normally be 
delivered to and receipted for by the Staff Security Office where it 
will be entered into the classified material control system.
    (i) Staff members receiving classified material from any source by 
any means will personally deliver such material to the Staff Security 
Office for appropriate entry into the classified control system.
    (ii) Conversely, members of the staff desiring to transmit 
classified material will deliver the material to the Staff Security 
Office for handling in accordance with paragraph (h)(5) of this section.
    (2) Storage of Classified Material. (i) Classified material will be 
stored only in accordance with the provisions of ISOO Directive No. 1, 
paragraph IV-F-1 through 4.
    (ii) Filing of unclassified material in security containers is 
prohibited except where the unclassified material is an integral part of 
a file which contains classified material. If extenuating circumstances 
necessitate the use of a security container for storing only 
unclassified material, the container will be marked with a sign stating 
``This container is not used to store

[[Page 533]]

classified material'' or ``Do not store classified material in this 
container.''
    (3) Record of safe locations. The Staff Security Office will assign 
numbers to all security containers used to store classified material in 
the Office of the Vice President. A record of safe numbers, locations 
and date of last combination change will be maintained in the Staff 
Security Office.
    (4) Changing of lock combinations. Combinations of security 
containers will be changed by the Staff Security Office or the Secret 
Service. This service may be requested by contacting the Staff Security 
Office. Combinations will be changed in accordance with the provisions 
of ISOO Directive No. 1, paragraph IV-F-5.
    (5) Records of combinations. Records of combinations shall be 
maintained by the Staff Security Office. Whenever a combination is 
changed, the new combination and other required information will be 
recorded on GSA Optional Form 63. The sealed envelope will then be 
delivered to the Staff Security Office for retention in the vault safe.
    (6) Custodians. Each container used for storage of classified 
material within the Office of the Vice President will have assigned a 
primary and alternate custodian. Responsibility for security of these 
containers shall rest with those persons, and their names shall be 
affixed on the outside of the top drawer of each container positioned so 
as to be readily discernible. Optional Form 63 shall be used for this 
purpose.
    (h) Handling of Classified Material--(1) Use of cover sheets. A 
separate cover sheet indicating the classification of the material will 
be fastened to the top page of cover of each CONFIDENTIAL, SECRET or TOP 
SECRET document.
    (2) Unattended documents. Classified material will be under the 
direct supervision of a person with an appropriate security clearance 
and a verified need-to-know at all times when in use. Special care will 
be taken to insure that classified material is not left unsecured or 
unattended in an office.
    (3) Working papers. Working papers are documents, including drafts, 
photographs, etc., created to assist in the formulation and preparation 
of finished papers. Working papers containing classified information 
will be marked with the appropriate classification and provided the same 
degree of protection as that given to other documents of an equal 
category of classification.
    (4) Communications security. Classified information shall not be 
discussed over any voice communications device except as authorized over 
approved secure communications circuits. This restriction also applies 
to electrical transmission of classified material via any unsecure 
circuitry involving teletypes, DEX equipment or other systems of a like 
nature. Appropriate secure facilities for the discussion or transmittal 
of classified material may be arranged by contacting the Staff Security 
Office.
    (5) Transmittal of Classified Material--(i) Outside the Office of 
the Vice President and the White House Complex. The Staff Security 
Office is responsible for transmitting or transferring all classified 
material outside the Office of the Vice President and the White House 
Complex in accordance with the provisions of ISOO Directive No. 1, 
paragraphs I, G and H.
    (ii) Within the Office of the Vice President and the White House 
Complex. Transfer or movement of classified material will be 
accomplished only by properly cleared persons handcarrying the material 
to the recipient. The material shall be carried in an envelope marked 
with the appropriate classification. Use of see through messenger 
envelopes is not authorized. Recipients will sign a receipt (GSA 
Optional Form 112) for all material classified SECRET and TOP SECRET. 
Whenever TOP SECRET material is transferred, the Staff Security Office 
will be notified in order to maintain accurate accountability of the 
material. Classified material will never be delivered to an uncleared 
person, left in an unoccupied office, or sent through unclassified mail 
delivery/distribution systems.
    (iii) Staff members requiring the use of classified material at 
conferences or meetings held outside the Washington, DC Metropolitan 
area and who intend to use commercial transportation shall provide the 
material to the Staff Security Office far enough in advance to assure 
that the material will be available

[[Page 534]]

on or before the date needed. This requirement does not apply when 
utilizing government/military transportation. In this case, material may 
be handcarried. The Staff Security Office will brief each staff member 
prior to departure concerning security requirements or arrangements 
needed to safeguard the material while away from his office. For 
meetings or conferences within the Washington, DC Metropolitan area, 
members may handcarry classified material. Use of classified material 
during a conference or meeting requires increased awareness and 
precautionary handling to avoid security violations and/or compromises. 
Staff members using classified material during a meeting or conference 
are responsible for ensuring that the material is properly protected at 
all times, and that personnel present posses appropriate clearances for 
the material being presented.
    (iv) Visits to foreign countries. Special precautions must be taken 
when visiting foreign countries to ensure classified material is 
protected at all times. For all visits to foreign countries a member of 
the staff will be appointed as custodian for all classified material 
required for the success of the mission. This individual will be the 
holder of a diplomatic passport which exempts him from customs 
inspections. Individual so designated will coordinate with United States 
embassy personnel in the country to be visited for securing of 
classified material within the embassy compound or other appropriate 
secure area during the course of the visit.
    (6) Preparation and marking of Classified Material. All classified 
material originating within the office of the Vice President will be 
prepared and marked by properly authorized and cleared personnel in 
accordance with ISOO Directive No. 1, paragraphs I, G, and H. A sample 
letter is attached for your guidance (Attachment 3). Derivitive 
information will be prepared and classified in accordance with ISOO 
Directive No. 1, paragraphs II A through C. Questions concerning 
procedures should be directed to the Staff Security Office.
    (7) Reproduction of Classified Material. (i) Reproduction of 
classified material will be accomplished only by properly cleared 
persons.
    (ii) Reproduction of TOP SECRET material will be accomplished only 
by a member of the Staff Security Office or a designated representative 
of that office.
    (iii) Accountability of reproduced classified material will be 
maintained by informing the Staff Security Office of the reproduction of 
SECRET and TOP SECRET material, the number of copies reproduced and 
their disposition.
    (iv) Reproduction machines can retain the imagery of material passed 
through them. Therefore, to avoid inadvertent disclosure of classified 
information through subsequent use of machines, staff members will 
always run machines through four cycles (four blank pages) after the 
last page of the classified material has been reproduced. These pages 
will be destroyed in the same manner as classified material.
    (8) Destruction of Classified Material. (i) SECRET and TOP SECRET 
material will be given to the Staff Security Office for destruction to 
insure destruction is properly recorded and destroyed material is 
removed from the classified control system.
    (ii) CONFIDENTIAL material may be destroyed in the holder's office 
by tearing lengthwise and placing in a ``Burn Bag'' specifically 
designated for classified material.
    (iii) Classified waste material will be separated from other office 
waste material and placed in ``Burn Bags.'' Classified waste material 
includes working papers, notes, drafts of classified correspondence, 
carbon paper, typewriter ribbons and any other material containing 
information requiring destruction. ``Burn Bags'' will be collected daily 
by a member of the White House Executive Protective Service who will 
then dispose of the bags in a secure facility.
    (iv) Typewriter ribbons. Classified material can be reproduced from 
imprints on used typewriter ribbons. Therefore, ribbons which are used 
in the preparation of classified material must be safeguarded 
accordingly, i.e., they will

[[Page 535]]

be stored in a safe at the close of business, destroyed as classified 
waste when no longer serviceable, etc.
    (9) Inventories. The Staff Security Office will conduct inventories 
of all TOP SECRET material charged to the Office of the Vice President 
at least annually to determine the adequacy of control procedures and 
insure accountability.
    (i) Loss or compromise. Any person who has knowledge of loss of 
possible compromise of classified information shall promptly report the 
circumstances to the Staff Security Office for appropriate action in 
accordance with ISOO Directive No. 1, paragraph IV, H.
    (j) Penalties. Any individual breach of security may warrant 
penalties up to and including the separation of the individual from his 
employment or criminal prosecution.
    (k) Special access. Special access authority is required for release 
of Sensitive Compartmented Intelligence Information. The names of 
personnel cleared for access to this category of information are on file 
in the Staff Security Office.



Sec.  2800.5  Policies.

    (a) Basic policy. Except as provided in the Atomic Energy Act of 
1943, as amended, Executive Order 12065, as implemented by ISOO 
Directive No. 1, provides the only basis for classifying information. It 
is the policy of this office to make available to the public as much 
information concerning its activities as possible consistent with the 
need to protect the national security. Accordingly, security 
classification shall be applied only to protect the national security.
    (b) Duration of classification. Classification shall not be 
continued longer than necessary for the protection of national security. 
Each decision to classify requires a simultaneous determination of the 
duration such classification must remain in effect. For further 
guidance, refer to sections 1-401 and 1-402, E.O. 12065.
    (c) Declassification. Declassification of information shall be given 
emphasis comparable to that accorded to classification. Decisions 
concerning declassification shall be based on the loss of the 
information's sensitivity with the passage of time or upon the 
occurrence of a declassification event. For further guidance, refer to 
sections 3-102, 3-103 and 3-104 of E.O. 12065.
    (d) Systematic review for declassification. Systematic review for 
declassification will be in accordance with sections 3-204, 3-401 and 3-
503 of E.O. 12065.
    (e) Mandatory review requests. Requests from a member of the public, 
a government employee, or an agency, to declassify and release 
information will be acted upon within 60 days provided the request 
reasonably identifies the information. After review, the information or 
any reasonably segregable portion thereof that no longer requires 
protection, shall be declassified and released, except as provided in 
section 3-503, E.O. 12065, unless withholding is otherwise warranted 
under applicable law.
    (f) Classification guides. The Chief Counsel, National Security 
Council, has determined that, in view of the limited amount of material 
originally classified by this office, the preparation and publication of 
classification guides is not required.
    (g) Access to Classified Information by historical researchers and 
former Presidential appointees. Access may be granted under the 
provisions of section 4-3 of E.O. 12065; however, access is permissive 
and not mandatory.



Sec.  2800.6  Delegation of classification and declassification authority.

    Pursuant to the provisions of sections 1-201 and 3-103 of E.O. 12065 
of June 28, 1978, the following officials within the Office of the Vice 
President, are designated to originally classify and declassify 
information as ``SECRET'' and/or ``CONFIDENTIAL'':
    (a) Chief of Staff to the Vice President.
    (b) Counsel to the Vice President.
    (c) Executive Assistant to the Vice President.
    (d) Assistant to the Vice President for National Security Affairs.
    (e) Assistant to the Vice President for Issues Development and 
Domestic Policy.
    (f) Additionally, the following individuals are designated to 
declassify ``SECRET'' and/or ``CONFIDENTIAL''

[[Page 536]]

information in accordance with section 3-103 of E.O. 12065:
    (i) Staff Security Officer/Top Secret Control Officer.
    (ii) Assistant Staff Security Officer/Assistant Top Secret Control 
Officer.



Sec.  2800.7  Designation of chairperson for Ad Hoc Committees.

    The Counsel to the Vice President is designated as the responsible 
official to chair Ad Hoc Committees as necessary to act on all 
suggestions and complaints with respect to the administration of the 
information security program.

[[Page 537]]



 Sec. Attachment 1 to Part 2800--Employment Agreement & Indoctrination 
                                Statement
[GRAPHIC] [TIFF OMITTED] TC21OC91.054


[[Page 538]]


[GRAPHIC] [TIFF OMITTED] TC21OC91.055


[[Page 539]]





     Sec. Attachment 2 to Part 2800--Security Termination Statement
[GRAPHIC] [TIFF OMITTED] TC25OC91.011


[[Page 540]]





                 Sec. Attachment 3 to Part 2800--Sample
[GRAPHIC] [TIFF OMITTED] TC25OC91.012

                       PARTS 2801	2899 [RESERVED]

[[Page 541]]



                              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 543]]



                    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 544]]

     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 545]]

    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 546]]

     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 547]]

        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 548]]

         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 549]]

        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 550]]

      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 551]]

                     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 552]]

                          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 553]]

        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 554]]

        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 555]]

         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 556]]

                          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 557]]

       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 558]]

       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 559]]

                       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 560]]

                      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 561]]

        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 562]]

        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 563]]





           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 564]]

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 565]]

  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 566]]

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 567]]

  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 568]]

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 Environmental Enforcement, Bureau    30, II
       of
  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 569]]

  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 570]]

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
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
Special Education and Rehabilitative Services,    34, III
   Office of
[[Page 571]]

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
  Great Lakes St. Lawrence Seaway Development     33, IV
       Corporation
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 47, IV; 49, V
  Pipeline and Hazardous Materials Safety         49, I
       Administration
  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 573]]



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, 2014 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.

                                  2014

32 CFR
                                                                   79 FR
                                                                    Page
Chapter VIIVII
989.3 (a)(1) introductory text revised.............................35286
989.4 (h) amended..................................................35286
989.5 (d) revised..................................................35286
989.14 (h) revised.................................................35286
989.19 (c)(2) amended..............................................35287
989.20 (a) amended.................................................35287
989.21 (a) amended.................................................35287
989.26 (f) revised.................................................35287
989.34 (a) and (b) amended.........................................35287
989.36 Amended.....................................................35287
989 Appendix A amended.............................................35287
Chapter XII
1285 Redesignated as 300 and transferred to chapter I, subchapter 
        N..........................................................30465

                                  2015

32 CFR
                                                                   80 FR
                                                                    Page
Chapter XVII
1701.24 (a) revised................................................63428

                                  2016

32 CFR
                                                                   81 FR
                                                                    Page
Chapter VII
842 Note revised; nomenclature change..............................83688
842.0 Revised......................................................83688
842.2 (g) removed; (h) through (o) redesignated as new (g) through 
        (n); (f) and new (g) revised...............................83688
842.4 Revised......................................................83688
842.9 Removed......................................................83688
842.10--842.14 (Subpart B) Removed; redesignated from 842.15--
        842.20 (Subpart C).........................................83688
842.10 (a), (b) and (d) revised....................................83688
842.12 (g), (h) and (i) added......................................83688
842.13 Revised.....................................................83688
842.14 Revised.....................................................83688
842.15--842.20 (Subpart C) Redesignated as 842.9--842.14 (Subpart 
        B).........................................................83688
842.15--842.29 (Subpart C) Redesignated from 842.21--842.35 
        (Subpart D)................................................83688
842.16 (a), (c), (e) and (g) removed; (b), (d), (f) and (h) 
        redesignated as (a) through (d)............................83688
842.17 Revised.....................................................83688
842.18 (a) revised.................................................83688
842.19 Introductory text revised...................................83689
842.21--842.35 (Subpart D) Redesignated as 842.15--842.29 (Subpart 
        C).........................................................83688
842.21 Revised.....................................................83689
842.24 (d) revised.................................................83689

[[Page 574]]

842.25 Introductory text, (a) and (b) revised......................83689
842.26 (d), (j), (m), (n), (u), (y) and (z) revised; (aa) through 
        (9)dd(10) revised..........................................83689
842.30--842.44 (Subpart D) Redesignated from 842.40--842.54 
        (Subpart F)................................................83690
842.36--842.39 (Subpart E) Removed.................................83690
842.30 Revised.....................................................83690
842.31 (b) revised.................................................83690
842.32 (a)(1) introductory text, (3) introductory text, (ii), 
        (iii), (4), (5), (b) and (f) introductory text revised; 
        (f)(8) removed; (f)(9), (10) and (11) redesignated as new 
        (f)(8), (9) and (10).......................................83690
842.33 (a) revised.................................................83690
842.34 Revised.....................................................83690
842.35 (a) and (c) revised.........................................83690
842.37 Revised.....................................................83690
842.38 Revised.....................................................83690
842.39 (a) revised; (c), (d) and (f) removed; (e) redesignated as 
        new (c)....................................................83690
842.40 Revised.....................................................83691
842.41 Revised.....................................................83692
842.42 (a) and (c) revised.........................................83692
842.40--842.54 (Subpart F) Redesignated as 842.30--842.44 (Subpart 
        D).........................................................83690
842.45--842.58 (Subpart E) Redesignated from 842.55--842.68 
        (Subpart G)................................................83692
842.55--842.68 (Subpart G) Redesignated as 842.45--842.58 (Subpart 
        E).........................................................83692
842.47 Revised.....................................................83692
842.48 (a) revised.................................................83693
842.49 Revised.....................................................83693
842.50 (a) revised.................................................83693
842.52 (a) and (b) revised.........................................83693
842.53 (b), (c) and (e) revised....................................83693
842.54 (a) revised; (b) removed; (c) redesignated as new (b).......83693
842.55 (a), (c), (f), (h), (m), (o) and (q) revised; (s) and (t) 
        added......................................................83693
842.56 Revised.....................................................83694
842.57 Revised.....................................................83694
842.58 Revised.....................................................83694
842.59--842.62 (Subpart F) Redesignated from 842.69--842.72 
        (Subpart H)................................................83694
842.59 Revised.....................................................83694
842.60 (a) and (d) through (g) revised.............................83694
842.61 Revised.....................................................83694
842.62 (b) revised.................................................83695
842.63--842.71 (Subpart G) Redesignated from 842.73--842.81 
        (Subpart I)................................................83695
842.63 Revised.....................................................83695
842.65 (a)(5) revised..............................................83695
842.68 (a) amended; (c) revised....................................83695
842.69 (e) added...................................................83695
842.71 Revised.....................................................83695
842.69--842.72 (Subpart H) Redesignated as 842.59--842.62 (Subpart 
        F).........................................................83694
842.72--842.75 (Subpart H) Redesignated from 842.82--842.85 
        (Subpart J)................................................83695
842.74 (a)(1)(i) and (b)(3)(iv) revised; (a)(1)(ii) and (iii) 
        removed....................................................83695
842.75 (c) added...................................................83695
842.73--842.81 (Subpart I) Redesignated as 842.63--842.71 (Subpart 
        G).........................................................83695
842.76--842.79 (Subpart I) Added...................................83695
842.80--842.87 (Subpart J) Redesignated from 842.92--842.99 
        (Subpart L)................................................83696
842.82--842.85 (Subpart J) Redesignated as 842.72--842.75 (Subpart 
        H).........................................................83695
842.81 (a) revised.................................................83696
842.82 (a)(2), (c) and (e) revised.................................83696
842.83 (b)(2) revised; (f) added...................................83696
842.85 Revised.....................................................83696
842.86--842.91 (Subpart K) Removed.................................83695
842.88--842.102 (Subpart K) Redesignated from 842.100--842.114 
        (Subpart M)................................................83696
842.88 Revised.....................................................83696
842.89 Revised.....................................................83696
842.90 Introductory text and (f)(1) removed; (f)(2) and (3) 
        redesignated as new (f)(1) and (2); (a)(4), (5) and (b) 
        revised....................................................83696
842.91 Revised.....................................................83697
842.92--842.99 (Subpart L) Redesignated as 842.80--842.87 (Subpart 
        J).........................................................83696
842.92 Revised.....................................................83697
842.93 Revised.....................................................83697
842.94 Revised.....................................................83697
842.95 Revised.....................................................83697

[[Page 575]]

842.96 Revised.....................................................83697
842.97 Revised.....................................................83697
842.98 (a), (b) and (c) revised....................................83697
842.99 Revised.....................................................83698
842.100 Revised....................................................83698
842.101 Revised....................................................83698
842.102 Revised....................................................83698
842.103--842.113 (Subpart L) Redesignated from 842.115--842.125 
        (Subpart N)................................................83698
842.103 Revised....................................................83698
842.104 Introductory text and (a) revised; (h) and (i) added.......83698
842.105 Revised....................................................83698
842.107 Revised....................................................83699
842.108 (a) and (b) revised........................................83699
842.109 Revised....................................................83699
842.111 Revised....................................................83699
842.112 Revised....................................................83699
842.113 Revised....................................................83700
842.100--842.114 (Subpart M) Redesignated as 842.88--842.102 
        (Subpart K)................................................83696
842.114--842.117 (Subpart M) Added.................................83700
842.115--842.125 (Subpart N) Redesignated as 842.103--842.113 
        (Subpart L)................................................83698
842.118--842.124 (Subpart N) Redesignated from 842.137--842.143 
        (Subpart P)................................................83700
842.118 Revised....................................................83700
842.120 Removed; redesignated from 842.122.........................83701
842.121 Removed; redesignated from 842.123.........................83701
842.122 Redesignated as 842.120....................................83701
842.123 Redesignated as 842.121....................................83701
842.124 Redesignated as 842.122....................................83701
842.123--842.129 (Subpart O) Redesignated from 842.144--842.150 
        (Subpart Q)................................................83701
842.126--842.136 (Subpart O) Removed...............................83700
842.123 Revised....................................................83701
842.124 (c)(4) revised.............................................83701
842.126 (b) revised................................................83701
842.137--842.143 (Subpart P) Redesignated as 842.118--842.124 
        (Subpart N)................................................83700
842.144--842.150 (Subpart Q) Redesignated as 842.123--842.129 
        (Subpart O)................................................83701
Chapter XVII
1704 Added...................................................9768, 24019
    Regulation at 81 FR 9768 withdrawn.............................23604
Chapter XIX
1909 Revised.......................................................64063
1911 Added.........................................................52591
Chapter XX
2002 Added.........................................................63336

                                  2017

32 CFR
                                                                   82 FR
                                                                    Page
Chapter XIX
1908.04 correctly revised; CFR correction..........................29237

                                  2018

32 CFR
                                                                   83 FR
                                                                    Page
Chapter VII
806 Removed........................................................26361
Chapter XX
2004 Revised.......................................................19951

                                  2019

32 CFR
                                                                   84 FR
                                                                    Page
Chapter VII
806b Removed.......................................................46882
807 Removed.........................................................5353
809a.6--809a.11 (Subpart B) Removed.................................2735
813 Removed.........................................................5354
881 Removed........................................................51402
884 Removed.........................................................5354
887 Removed........................................................51975
Subtitle B
Chapter XII
Chapter XII Heading revised........................................59724
Chapter XVII
1701.21 Removed; new section redesignated from 1701.24.............31195
1701.22 Removed....................................................31195
    Added..........................................................31197
1701.23 Removed....................................................31195
1701.24 Redesignated as 1701.21....................................31195

[[Page 576]]

                                  2020

   (Regulations published from January 1, 2020, through July 1, 2020)

32 CFR
                                                                   85 FR
                                                                    Page
Subtitle A
Chapter VII
903 Removed........................................................10285
Subtitle B
Chapter XII
1288 Removed........................................................6804
Chapter XXIV
2402 Revised.......................................................70055

                                  2021

  (No regulations published from January 1, 2021, through July 1, 2021)


                                  [all]